Let’s Ask Aquinas Some Questions On Punishment

By JUDE DOUGHERTY

One can find discussions of punishment and its rationale in ancient Greek and Roman sources and in numerous biblical texts. Contemporary discussions of punishment take their lead from the British utilitarian Jeremy Bentham (1748-1832) and the French sociologist Emil Durkheim (1858-1917).
Bentham thought all punishment to be a mischief. The only justification for punishment, he maintained, is the plausible belief that greater evils would thereby be avoided by incarceration.
In the nineteenth century when the theist context for punishment began to fade and even the deterrent effect was challenged, Emil Durkheim formulated a purely secular rationale for the infliction of punishment. For Durkheim crime is essentially an affront to the “collective conscience,” namely, the commonly accepted morality of the people. The collective conscience need not be correct or dictated by any natural order. It is sufficient that the values it promotes be held strongly by the community.
Since the mid-decades of the last century, the rationale for punishment has been a subject of dispute among legal scholars and jurists as they propose model penal codes in both Europe and North America. The perceived need to punish is often equated with a desire for revenge, and revenge is depicted by some to be a passion in need of control. The moral authority of those who would punish is thereby challenged; they become the guilty ones, or the ones in need of reformation. From that perspective the criminal is regarded as unfortunate and is often defended as a victim of a social order on which he has a claim.
Some legal scholars have suggested that the received rationale for punishing is not philosophical but religious. Others have suggested that there may be a deep natural strain in human propensities to punish, of which the religious outlook with its sanctions of Heaven and Hell is but a manifestation. Not much study is needed to realize that societies untouched by biblical religion have employed sanctions parallel to those traditionally employed in the West.
Given current debates within the Catholic Church about the morality of capital punishment and even the existence of hell, it may be useful to put a few questions to St. Thomas, given that he stands midway between ancient and modern conceptions of punishment. Thomas addresses the subject principally in the Summa Theologiae and in the Summa Contra Gentiles and his thoughts there may serve as a standard against which the current ecclesial debate may be measured.
Among the important questions which may be put to him are these. Does the notion of punishment presuppose a theistic context? If not, what is the natural law rationale for punishment? Under what conditions is it to be used? When is it to be avoided?
First, a definition. For Thomas punishment consists in the infliction of some pain, suffering, loss, or social disability as a result of some action or omission on the part of the person being punished. Punishment may consist of death, physical assault, detention, fines, loss of civil and political rights, or banishment. There must be a statutory, contractual, or familial relationship between the punisher and the punished. The legitimacy of the action of the punisher is the primary condition between punishment and other forms of coercion and constraint. Unless the agent who inflicts pain or constraint has the authority to do so, his action constitutes a form of assault.
Punishment is usually personalized in the sense that it is applied to individuals. Collective punishment, for Thomas, is of dubious moral standing.
Punishment may be inflicted in a variety of social contexts; family, church, guild or civil or military society. Thomas took Roman law as a model. Roman law acknowledged the authority of the pater familias, whose authority extended over all members of the household, including those who had married into it, slaves, and free servants. In Thomas’ day, the master craftsman had similar authority over his apprentices, and masters at a university over the behavior of students. That authority was subject to the rule of civil law, but more important to the rule of reason.
Within Christianity appeals could be made for the modification of punitive sanctions in the name of mercy. Taken for granted was a theology that recognized the elements of sin, guilt, absolution, and penance. Throughout the Middle Ages, one can find extended theological treatises devoted to the relationship between guilt and punishment.
Brian Tierney, in his acclaimed study, Religion, Law, and the Growth of Constitutional Thought, has shown that notions of sin, guilt and absolution were incorporated into legal doctrine in British common law of mens rea which holds that there can be no crime without intent. For centuries, Tierney notes, the doctrine of mens rea has enabled English common law to protect those whose actions, although intrinsically unlawful, were committed without malice.
Another characteristic of medieval theology is the doctrine that punishment must be related to the offender’s responsibility. Roman law established the age of seven as the age of culpability. Carried over into the Church, Confession was not required until that age. Penance following Confession was construed to fit the degree of responsibility of the penitent. A condition of penance or expiation was an honest resolve to sin no more. As with Confession, the “penance” became an important part of sentencing in common law.
Absent the unity of Christendom, punishment required a new rationale. By the middle of the eighteenth century a fundamental re-examination was well under way, as we can see in the writings of Bentham and Durkheim, among others.
It should be noted that the word “sin” for Thomas does not have a distinctively religious connotation, although it implies a moral infraction. “Sin,” Thomas says, “means any infraction, any deviation from a prescribed order, be it familial, civil, or order of nature. To work evil is to sin. Because sin is an inordinate act, it is evident that whoever sins, commits an offense against order, wherefore he is put down in consequence by that same order, which repression is punishment.”
Accordingly, continues Thomas, “a man can be punished with a threefold punishment corresponding to the three orders to which the human will is subject. In the first place a man’s nature is subject to the order of his own reason, secondly it is subject to the order of another man who governs him in temporal or spiritual matters, as a member of either the State or of the household; thirdly it is subject to the universal order of Divine government. Wherefore, he incurs a threefold punishment; one inflicted by himself, viz., remorse of conscience, another inflicted by man, and a third inflicted by God.”
Obviously, punishment for Aquinas is not an evil. “He who sins incurs the debt of punishment.” Some punishment is what we today call “psychological punishment.” Thomas uses the words “tribulation,” and “anguish” to describe those interior effects of sin. Some sin punishes, so to speak, by getting the person in deeper, one deception leading to another, so that the habitual sinner becomes hardened.
This, says Thomas, is an accidental effect of the initial deviant act. While nature punishes in the foregoing way, it is evident that infractions against the social order have to be dealt with by that order. The head of the household has the obligation to punish for the good of the household; so, too, does the State. Justice requires punishment and a society which does not appropriately punish is itself unjust.
Thomas discusses another aspect of the good of punishment. “God has destined every human bring for eternal happiness with Him. But when the creature is held back from this end by his own failure, God nevertheless fulfills in him that amount of goodness of which he is capable. He is said to will the salvation of all…but because some work against their own salvation, the order of His wisdom does not admit their attaining salvation in view of their failure. He fulfills in them in another way the demands of His goodness, damning them out of justice.”
On the topic of capital punishment, Thomas considers two kinds of objections to the use of the death penalty; first those based on biblical texts, and second, those based on social considerations. Both he finds unconvincing. In the light of his understanding of the requirements of justice, and given his views on punishment, it would be difficult to argue that Catholic social thought requires an abolitionist mindset.
(Professor Dougherty’s latest book is Interpretations: Reading the Present in the Light of the Past [CUA Press, 2018].)