Retributive Justice–further thoughts

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.


Reactions to the Assassination: An Attempt at Some Elucidations

(I posted a version of this on Facebook, as a follow-up to a flurry of discussion there yesterday; but here it is without all the links and references to comments from my Facebook interlocutors that I had interspersed.)

My initial reaction to the bin Laden news yesterday, justly perceived as somewhat flippant (“So we managed to assassinate an old man on dialysis sitting at home, along with a few of his family members. The Greatest Nation on Earth never ceases to impress me”), was, more than anything, an expression that I really just didn’t think this deserved the status of obsessive headline news and discussion, that we all ought to chill and get back to our daily lives.  However, I found myself quickly entangled in half-a-dozen threads of discussion about it, and attempting to field all manner of objections to my patriotism, sense of justice, and theological competence.  As everyone and their grandma has now weighed in on the news from their blog and/or Facebook/Twitter soapboxes, and as the discussion doesn’t appear likely to die down any time soon, I figured I might as well try to sort through the tangle a bit for those who, like me, feel that the discussion is in danger of degenerating into chaos.   

At first it appear that there are roughly three positions–(1) “MWUHAHAHA!  We killed him!  Rock on USA!”; (2) “Settle down, let’s rejoice in the execution of justice, but without undue pride, giddiness, or vindictiveness”; (3) “Um, shouldn’t we be like God and not rejoice in the death of a sinner, but wish rather that he should turn from his ways and live?”  (Most Christians I’ve seen in the discussion, for the record, seem to be happily in some version of (2), though there are certainly some who sound disturbingly like (1), and a few others, including myself, who have said something like (3).) However, on reflection, it appears to be a bit more complicated than that, and I’m realizing that it’s somewhat sterile to carry out the debate simply in terms of “Should we be happy or not?”  So I’m trying to parse out more carefully the issues at stake, and it seems that there are at least eight different points that are being made by various people who want to qualify in some way our exuberance.  

  1. First, are simple concerns over due process.  Did we violate international law?  Were we appropriate in our violation of Pakistan’s sovereignty?  If we were in fact intending to kill rather than capture him, as appears to be the case (I have read at least one article purporting to directly quote an administration official that it was), was this appropriate?  Shouldn’t we instead have gotten him tried before the World Court or whatever?  
  2. Second, some are calling for sobriety in view of the cost of getting us to this point–we should see this as a Pyrrhic victory.  Ten years of war, a million killed, more than a trillion dollars spent.  Not to mention (and this relates somewhat to point 1) the fact that we only obtained the information to kill bin Laden by wickedly torturing dozens of people.  In view of all these matters, many have suggested, our celebration should be tempered at best.  (Matheson called attention to this angle in his comment on my previous post.)
  3. Likewise, some are calling for sobriety in view of the future cost of this action.  If this action offered little direct military or security gains (as appears to be the case), won’t it be, in practical terms, a net loss for us, inviting a further violent backlash among bin Laden’s followers?  (This has been the most frequent concern stated in mainstream media sources.)
  4. Among Christians in particular, one is likely to hear concern that we not put an overly Americanist spin on this accomplishment.  Let’s have none of these “USA! USA! USA!” chants, or act like this is somehow vindication that we are the greatest nation on earth and God’s gift to the world.  We’re still a corrupt nation, and inasmuch as this is a victory, we should see it as a victory for peace and humankind, not for us merely, the great US of A.  (A helpful instance of this perspective is provided by my friend Robin Harris, and to an extent, by Doug Wilson.)
  5. On a related note, some have called for us to use this as an opportunity to be mindful of our own sins, realizing that we as a nation deserve divine judgment every bit as much as bin Laden.  In such circumstances, crowing too triumphantly about bin Laden’s death–whether as our triumph or as God’s triumph, is a bit like dancing around with a golf club in a lightning storm.  (Robin’s post is particularly helpful in this regard, though for some reason, it appears to be the point of Doug Wilson’s post to dampen such sentiments, suggesting that this leads to an unhealthy moral equivalence.  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.)
  6. Again, related to the two previous points, some will point out that, while we may justly give thanks for the punishment of bin Laden as God’s enemy, we should not take pleasure in a personal revenge–“Well, we sure gave him what was coming to him!”  Needless to say, the revenge mindset is the norm for natural man, and it is not surprising that a great number of reactions to the news have used that revenge rhetoric.  

Thus far, all six of these are more calls for sobriety and temperance amid celebration, than they are claims that any kind of celebration is unjustified.  The final two, while still allowing that there may well be some form thankfulness or rejoicing that is appropriate, seek to go considerably deeper in theologically attenuating that rejoicing.

7. First, the weaker claim is that while retributive justice (and that is precisely what the assassination was) is ultimately necessary and appropriate, it is not something to be gloried in, it is not, in any sense, a sign of “greatness.”  Oscar Wilde’s “The Ballad of Reading Gaol” puts it well: “For man’s grim Justice goes its way, / And will not swerve aside: / It slays the weak, it slays the strong, / It has a deadly stride: / With iron heel it slays the strong, / The monstrous parricide!”  In other words, perhaps it was necessary and just that we killed bin Laden, but such justice is a rather grim business, and not something that calles for dancing in the streets. (This was one of the initial points I made in the Facebook discussion that developed.)

8. The stronger claim goes further and suggests that in principle, retributive justice is not something that humans ought to pursue.  Since Christ has taught us to pray for the forgiveness and redemption of our enemies, we ought to seek that at all costs, not just as individuals, but in our public and political life as well.  This is not pacifism–it acknowledges that if an enemy is actively threatening the lives of innocents and there is no other option but to fight and kill him, then that is appropriate.  But it refuses to engage in purely punitive action–killing someone merely because he has done something wrong, when either immediate protection of innocents is not in view, or could be accomplished by means other than killing, is not an option after Christ, who has taken the full burden of retributive justice on himself.  Gandalf is worth quoting here: “Many that live deserve death.  And many that die deserve life.  Can you give it to them?  Do not be too eager to deal out death in judgment” (though this could be taken as a statement of the softer point (7) above).  (This was what one friend on Facebook accused me of saying, what another friend defended me as saying, and which I subsequently admitted to holding, to the consternation of many.)  

 

I hope this helps elucidate–the exercise, at any rate, certainly elucidated things for me.

 

On Facebook, some asked for further clarification about my own view on retributive justice.   So I add a couple remarks, which should be taken as somewhat provisional.  (By the way, for those interested, a discussion last year on this blog, about similar issues, and also arising originally out of a Facebook spat, can be found here.)  

I am concerned on all eight of the counts listed above, which seems to put me beyond most people I have interacted with, most of whom are unwilling to go beyond (7) at most. Of course, this is perhaps simply a symptom of the circles from which most of my friends and interlocutors hail.  It is certainly my impression that in many other sectors of the church, especially outside of the US, (8) would be non-controversial.  And of course, the line between (7) and (8) is not all that clear-cut, after all.  One might well say (at any rate, I might well say–whether this is coherent or not is another matter), that Christians are to seek to overcome and oppose expressions of retributive justice, without thereby saying that any expression thereof is wrong in the sense of sinful.  It is rather immature, regrettable (though still affirmed as an indirect expression of God’s righteous judgment), something we should try to leave behind, rather than confidently affirming.  This position does not, of course, rule out just war–it simply confines just war to acts of ongoing defence, rather than as a “redress of a wrong suffered,” which many forms of just war theory affirm.  In short, if you come upon someone in the act of killing your mama, you can stop them, even if that means killing them.  But if you come upon someone who did kill your mama three years ago, you love them and forgive them (which isn’t entirely passive, mind you–perhaps they’re seriously messed up, and need to be institutionalized; perhaps even restrained for a time).  

This, I think we will all grant, is how we should act as Christian individuals.  The question is whether it also applies to states.  Most are inclined to say it does not.  I continue to ask “Why the double standard?” and as yet, still feel that any satisfactory answer is lacking.  90% of the answer appears to consist in a citation of Romans 13, which I have been convinced after thorough study does not in fact make the claim that people say it does–viz., that the civil authority is supposed to act as God’s direct instrument of retributive justice, such that any failure of it to do so is a dereliction of duty.  On the contrary, Romans 13, in context, appears to teach that the civil authority, outside of Christ, functions as an indirect instrument which God uses to exercise retribution, but which he does not command to do so (e.g., note how Assyria is used as such a tool, but then actually punished for it), and which, when in the hands of Christians, he does not want to do so.  And inasmuch as Romans 13 might be read in the traditional way, it is sufficiently ambiguous that it is irresponsible to rest so much weight on it, in contravention of other Scriptures.   

 

But, the point here is not to open up a lengthy discussion or debate about that passage–for those interested, a smattering of thoughts relevant to my studies on the passage can be found here, and if I ever have time to finish the book, a great deal more will be forthcoming.  


Bin Laden is Dead: The Speech Obama Could Have Given

Obama’s speech last night about the assassination of bin Laden offered, on the whole, much to be appreciated.  Certainly, it avoided the excessive martyrology and jingoistic Americanism that has characterized other Presidential speeches.  And certainly, it was far better than many of the lamentably vengeful and nationalistic sentiments that it seems to have called forth from so many citizens.  But, if I may be so bold, what would Jesus say?  What might Obama’s speech have looked like if he’d really had courage and conviction?  I can’t really claim to know the right answer to that.  But here, at any rate, is what I might have wished for: 

My fellow Americans, after ten years and a million lives lost, I can announce to you today the death of Osama bin Laden, the man our country has long pursued as its arch-enemy.  It is not my purpose here to rejoice in this death or any death, but rather to recall with sadness all the deaths on that September day and on the bloody trail we have since pursued.  For all the harm he has done us, we did not, for our part, wish death on bin Laden; even our enemies deserve our sympathy.  Vengeance should not be sweet; the path of vengeance is the road to perdition.  Today, our forces closed in on bin Laden with the intention of capturing him and bringing him to due justice*; unfortunately, he was killed in the resulting firefight, as were members of his family around us.  

Nonetheless, we will not fail to thank God for bringing to an end the life of this man who was an enemy to both God and man, whose death, perhaps, can help make the world a more peaceful place.  Justice is not sweet, but it is better than injustice.  Today, we renew our commitment to pursue peace, to pledge to the world that we desire neither power nor vengeance, but freedom and peace.  We hope that the death of bin Laden will mark, in many ways, the end of this long and bloody path we have trodden for the past ten years, that his followers will see the vanity and tragedy of wickedness, and may be reconciled to us, and we to them. 

I exhort you, my fellow Americans, to renounce hate this day, rather than indulging in it, to thank God for his justice, and pray for his peace.  Rather than getting caught up in the triumph of this day, I ask you to express your patriotism in a more practical way, to remember today the plight of your fellow citizens who suffer this day–the tens of thousands whose lives have been shattered by tornadoes this past week, and the tens of thousands whose lives are about to be shattered by floods in the coming weeks–and the tens of millions who suffer each day in loneliness and poverty.  Let us seek to show the world by our actions that life is stronger than death, that love is stronger than hate, that light is stronger than darkness.  

 

*Unfortunately, I doubt whether this was true.  It should’ve been true, but perhaps was not.