Brian Auten over at the Boars Head Tavern has drawn attention to my previous post and asked a very salient question about the latter portion:
“How does this work if it’s about “redress of a wrong suffered” as well as innocents who are in ongoing-but-perhaps-not-immediately-clear danger? That is, what happens when you come upon the someone who killed your mama three years ago, and you know that same someone is, or really appears to be, planning to kill all of the other mamas in your neighborhood? I just wonder about the frequency of situations, particularly regarding state actions, where “redress of a wrong suffered” isn’t bound up in all sorts of connected concerns over the protection of innocents and tranquillitas ordinis.”
Somewhat bizarrely, the ensuing discussion of my post over there has centered merely on the question of whether in my sentence “However, I’m with Paul on this one, who had no hesitation in calling himself “the chief of sinners” even when he clearly was not” I am “explaining away Scripture” Be that as it may, Auten’s question is a very good one, and one that I half-hoped someone would raise.
Essentially, what he’s saying is that, in political practice, the distinction between retributive justice and what we might call “protective justice” (presumably there is a proper term for this, but not knowing it, I shall coin this one) tends to break down. This objection requires some very careful thinking through, and here’s a first attempt.
For clarity, I’d like to distinguish here between foreign policy and domestic policy. In foreign policy, the argument would run something like this: the Japanese bomb Pearl Harbor. Ok, there’s nothing we can do about that now–we can’t protect Pearl Harbor after the fact. So would taking the war to them thus count as retributive justice? On my account, would I have to say that we could only legitimately fight the Japanese *while* they were bombing Pearl Harbor, and then would have to wait until they attacked again somewhere else before we could legitimately resist again? No, I would not want to say that, not as a general principle at any rate. That would be to artificially break down a “war” into a series of isolated engagements, pretending that one could not speak of a “state of war” existing between those engagements. If someone has opened hostilities, and certainly appears to be planning to continue hostilities, to continue to attack innocent people unjustly, then one can certainly take action against them as an act of “protective justice” to the extent necessary to prevent their further attacks (note that this does not mean that “preemptive strike” in which one claims license to act based on the mere assumption that they will attack, is justified). This would be the only basis, in my mind, upon which you could seek to justify our war in Afghanistan (although I am highly skeptical that in this particular case, that justification ends up working; and in any case, the war has often rhetorically been justified in terms of retribution). On the other hand, if it appeared that the enemy, having stricken their wicked blow, was ready for their part to go on their way and leave you alone, then I think Christian political ethics would require that you let them do that–to take the war to them at this point would be motivated by retribution. Now, one will say, “Yeah, but if you do that, you’ll simply encourage them (or other bad guys) to attack again another time, or to attack someone else, convinced that they can get away with it.” Let’s hold that thought, and return to it, since the following point relates to it.
Now, what about in the domestic sphere? A criminal kills your mama. Three years later, he’s found. Should he be executed, now, upon principles of retributive justice? If we say no, then what about the fact that, as Auten says, he might go around killing other people’s mamas? Does retributive justice equal protective justice, in this case? Well, I suppose it depends. If he is in fact in a mad rampage around the neighborhood, systematically killing people’s mamas, then he needs to be stopped, no doubt about it; hopefully this need not involve killing him, but perhaps it might. But put this way, it is clearly an example of protective justice–nothing retributive about it. And more often than not, incarceration will do the trick, offering protection without retribution (not that I think incarceration should be our first choice, far from it; but it may serve as a last resort). So this is not, I think, Auten’s point. Rather, I expect he has in mind the principle of “deterrence.” Someone does something wicked and violent, and unless they are punished somehow, others will be tempted to do the same thing. It is quite interesting, actually, that this is the primary basis upon which the death penalty is now justified–it is a utilitarian argument. Historically, this argument did play some role, but people were often comfortable to speak in terms of the duty of the state to exact justice in a quite abstract sense. Nowadays, people shy away from that, and argue from deterrence. Now, my problem is that in fact, when the Old Testament talks of retributive punishment, it does not seem to have any interest in deterrence. The death penalty is a matter of purging the land of the one who has dishonored God. It is indeed a cultic matter as much as it is a merely judicial matter. Other penalties often have similar logics. So I am quite hesitant to resort to the principle of deterrence. My sense is that deterrence (and here is my pacifistic side speaking) represents too much of an attempt to take matters into our own hands, rather than trusting in God; represents too much of a sense that the most obvious and most forceful gesture is necessarily the most effective. Here, I want to embrace the counter-logic of Christ, who seeks to show that a non-violent response can often bring the enemy to his knees much more effectively than a violent one. I suspect that, with a little imagination, we could find much more effective ways of preventing people from murdering people than the death penalty.
Of course, there’s certainly other kinds of “retribution” besides the death penalty. No doubt part of what Auten had in mind was the need for punishments of infractions of all sorts of laws, as deterrents to maintain order in society (say, imprisonment for assault or theft). Of course, I have far less reservations about what we might call “non-violent retribution,” but I would still like to ask whether we could not confine ourselves to a penal code that was restitutive and therapeutic rather than retributive. “Restitutive” would mean the requirement that any harm done to another’s person or property would require repayment or service (with the goal of reconciliation), as opposed to fines or imprisonment. “Therapeutic” would mean penalties aiming to induce discipline and overcome vice in the offending individual, rather than simply to make him suffer “because he deserved it.” Obviously, it is the inability of the death penalty to restore anything to an offended party, or to be of any benefit to the guilty party, that makes it a pure example of retributive justice, and hence so objectionable.
Now, to come back briefly to the sphere of foreign policy. The remarks I made above about trusting God instead of taking matters into our own hands and about non-violent responses often being more effective in the long run than violent ones certainly apply here. However, this doesn’t mean being stupid, and it doesn’t mean mere “appeasement.” A bad guy attacks someone, and gets away with it. Does that mean we go and punish him to teach him a lesson, and to deter him and others from attacking anyone else? No, I don’t think so. However, we can diplomatically isolate him. We can prepare strong defenses or make an alliance to dissuade him from attacking again. So what I am saying does not mean an abdication of government or a suicidal foreign policy. It does mean, however, that we work to end the cycle of provocations and paybacks that fuel so many of the world’s conflicts by showing a willingness to renounce vengeance and offer reconciliation, thus depriving our enemies of martyrs and recruits.
Anyway, there’s a stab at it. Clearly, this raises at least as many questions as it answers, but that seems to always be the nature of ethics.