Punishment——God and government
God’s law as expressed in scripture is vast and complex. The bulk of the laws we read in the Old Testament are to enable Israel to live in covenant relationship with God. They have nothing to do with what we today would call criminal
(penal) law. The rules and regulations are to shape the believing
society and be the glue that holds it together. (Disputes could arise
where no crime was involved and the disputants went to the judge or
elder who settled the issue and everyone went back to life.) Glad
allegiance to Yahweh included worship as well as proper social
relationships so there are laws about how worship was to be shaped and
practiced (large sections in Exodus, Numbers, Deuteronomy and the whole
book of Leviticus make the point). These laws were not given so that
Israelites would have an opportunity to offend. God’s instruction about
the kind of fire to be used in worship by the priests was not given so
Nadab and Abihu would have something to break and so sin (see Leviticus
10).
And laws governing social behavior such as "Honor your father and
mother" were not laid down so that children could have a commandment to
break. "Honor your father and mother" is not criminal law but
the laws that laid out sanctions against law-breakers come under that
heading. Penal laws exist not because there are other laws but because
people break the other laws.
Aside from the primary directives, God’s laws changed with the
changing face and situation of the Israelite society. For example, many
of the laws in the Pentateuch became redundant when the temple replaced
the Tabernacle. Laws governing the collection of manna and how Israel
was to camp in the wilderness reflected current situations and were set
aside when the situation changed. Nothing became redundant that was
essential to Israel’s self-understanding as God’s elect servant, working
with him to gain larger ends.
When God punishes the sinner personal and relational factors are
always present. The righteous God sees us as moral beings with whom he
wants a personal relationship and in pursuing that he uses punishment as
one of his instruments. The ultimate aim is always to produce in
sinners a moral state (repentance) that expresses itself in
righteousness and in the pursuit of "the good" as envisioned by God.
Whatever a secular society’s vision of "the good" is, it makes laws
to promote that vision. Again, law is a complex and changing reality of
course because human society is a complex and changing reality and it
need laws to take that into account. At the simple level we have traffic
lights, pedestrian crossings, stop signs and the like so that accidents
and traffic gridlock can be avoided and to enable us to take advantage
of these aids there are laws that govern their use. The lights and
crossings and the rules connected with them are not introduced so that
people can have an occasion to offend. The rules governing the flow of
traffic are laws true enough but criminal law and the question of punishment only enters when someone ignores or chooses to ignore them but in and of themselves they have nothing to do with crime. These
laws govern a series of societal needs and are intended to see that a
society gets what it needs so that while the laws introduce restrictions
they restrict in order to enable. (In the OT the choice of a
special priesthood excluded all but the family of Aaron but one reason
for the restriction was to enable the whole nation to worship, something
they couldn’t do if they all had to crowd into the little Tabernacle.
(See The Blessing of representation.) It’s true, of course,
that along with the rules to govern the use of traffic lights society
brings in sanctions against those who pay no attention to the rules but
the whole mass of criminal law exists because there are criminals. Law
is indispensable if humans are to live in a functioning society (rather than in anarchy) and criminal law is inevitable because we will continue to be law-breakers.
Because all people in society don’t want and can’t have a personal
relationship with one another they settle for less. Since they don’t
care much for the inner moral state of others except where it affects
their freedom and rights they settle for the process that makes their
fellow-citizens law-abiding and initiate criminal proceedings were they
must. Clearly there are those for whom moral states and behavior are
vitally important and those who care little for such questions as long
as their human rights are permitted (this itself is a moral issue of
great magnitude). Society can’t stand still until these serious moral
questions are exhaustively studied, debated and infallible guidance
given on them so they express their majority opinions through elected
officials. The laws laid down express the current opinion of the
majority and the courts render judgements in light of those laws
irrespective of the moral state or arguments of individual citizens. So
what society via government with the support of armed forces is after is
law-abiding-ness whether or not the individual or society at large has
any moral convictions. For this reason we often hear statesmen and
stateswomen definitively separate legal questions and moral questions. A
former Prime Minister here in the UK said, "If you want morals go to
your clergyman." At one level this makes perfect sense; nevertheless
even people who are so definitely convicted lean on "natural law" as the
basis for the human rights which they think should be enshrined in a
free society. Whatever we say when pressed, we would insist that human
rights and the things that are necessary to achieve those for people are
moral rights and a society is "righteous" when it moves to see that
they’re gained for the people at large.
This leads to the point of a just society’s punishment of criminals.
The capacity and power to punish like every other capacity and power can
be abused but we need not take the abuse of it as the only face it has.
As Aristotle reminds us, we’re not to take a diseased and stunted tree
as the norm for trees. Giving punishment its best face and leaving
society’s "the good" to be defined only in general terms, it’s clear
that punishment by society needs to be seen as moral and righteous.
It would be immoral for society to knowingly punish a known innocent
person. It would be immoral for a society to knowingly punish a person
known not to be accountable by reason of mental disability or some other
pronounced condition that renders a free choice out of the question. So
when a society punishes via government and court structures it wishes to have the approval of "universal moral law" (natural law) even when the crimes are lower level infringements.
It is never right to knowingly punish the innocent or knowingly
over-punish the guilty no matter how insignificant the offense or
punishment attached to the offense. (See Deuteronomy 25:1-3 on
over-punishing.) Finding a place for "morals" in governing may be
difficult but in the end everyone without exception—either
openly or by smuggling them in—appeals to right and wrong. We hear
gang-members or police in some parts of the world talk about "a
righteous" shooting, by which they mean that it was justified, it wasn’t
a mistake and, more to the point, it wasn’t unwarranted.
Societal "righteousness" is shaped and indicated by the values it
upholds and seeks to nurture, and society punishes to express that
righteousness against the offender’s unrighteousness. Society’s
righteousness exists prior to the crime and it is expressed as
laws that promote the well-being and moral rights (there’s that phrase
again) of the citizens. When it deals with a criminal, society’s
righteousness takes the form of punishment, which is society’s
homage to the righteousness it stands for. So whatever the criminal
thinks or feels, society insists that there is a righteousness to which
it is committed and will work to uphold. Once more, punishment is a form that society’s righteousness takes when dealing with a criminal.
In punishing a murderer or rapist society describes itself as valuing the person murdered and acts out that value. But
in punishing them it also says to all would-be murderers that it values
the lives of all who might be murdered. So that the judgement of one
murderer or rapist is a word about murder and rape as potential acts as
well as deeds done. Here we’d have specific and general deterrence. That murderer or rapist has been deterred by imprisonment and other would-be murderers or rapists are warned and society at large is better pleased with and therefore more committed to the rule of law so there is a further deterrent effect.
Imagine that the penitent transgressor now sees his crime as
unrighteous, deplores it and genuinely commits to promoting the
righteousness of the society that just recently acted against him. In
such a case the murderer now stands outside his crime, he now rejects
the mind-set of a murderer and rejects the justification he offered
himself. His state of mind is an anti-murder state of mind. That is, while there is no way to undo the act, he has comprehensively and genuinely condemned the heart that produced the act and is only able to do it because his heart is a changed heart.
Punishment may not be able to achieve such a change of heart in which case the righteousness of the society in the form of punishment
failed to gain something it aimed for but it did accomplish some of
what it meant to do. But if society did gain a change of heart in the
criminal by its dealing with him that would be more than
righteousness making itself present in the form of distress inflicted,
it would be righteousness echoed in the offender’s heart. It would be
righteousness triumphing over the unrighteousness that the offender had
championioned. (In the religious and theological realm in such a case we
would see Christ truly and fully defeating sin in the person of the
sinner—Christians would call it the repentance of faith..)
©2004 Jim McGuiggan. All materials are free to be copied and used as long as money is not being made.
Many thanks to brother Ed Healy, for allowing me to post from his website, the abiding word.com.
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