01. Introduction:
Punishment is imposed because some person has done wrong. In the legal context this is called a crime or offence and in the theological context it is called a sin.[1] The two terms are by no means interchangeable. As Aquinas says, “the commands of human law cover only those deeds which concern the public interest, not every deed of every virtue.”[2] However, most crimes are also morally evil and are, therefore, also sins.
Another basic presupposition of both categories of punishment is freewill and as a consequence, responsibility. Freewill is admittedly a debated topic among philosophers and theologians and responsibility equally debated among criminologists, but, for the purpose of this inquiry, it will be assumed that punishment is only of those who have responsibility for their volitions. One must be cautious at this point in case of an over-simplification of the causes of crime or wrong-doing is allowed to arise. Many factors should be considered: sociological, psychological, inherited etc., but it is possible to say that at least some crimes and all sins are a result of a wrong choice between good and evil.
2. The ‘evil’ of punishment:
Already we have seen that there has been some debate over whether punishment is an evil. Part of the problem in that instance was that while in actuality law and morality are distinguished, in the public mind and in an ideal world, and incidentally in the Hebrew Scriptures, they are not. Mabbot, by associating evil with morality, implied that there is only one kind of evil, one having more stress on ‘wrongness’ than on ‘badness’. Two questions arise from this: are there different types of evil? And, what is the nature of an evil which is punishment?
In the dictionary evil as a noun is defined as a sin or harm. When Flew defined punishment as an evil he intended it to mean harm in the sense that it caused suffering. He did not intend it to mean a sin. The difference between sin and harm can be illustrated by the traditional theological distinction between ‘moral evil’ and ‘natural evil’. Sometimes ‘natural evil’ simply means any suffering,[3] but it is usually considered to be evil that originates independently of human moral agents, that is, it is suffering caused by such natural events as earthquakes and similar disasters and disease. On this understanding ‘natural evil’ cannot be applied to punishment imposed by humans, nor can ‘natural evil’ being a temporal concept, be applied to divine punishment in an afterlife.
‘Moral evil’ is evil caused by moral agents; it is often equated with sin. J. Hick suggests that ‘moral evil’ is evil which we human beings originate,[4] but as J. Crenshaw points out:
‘Moral evil’ is a relational category, but it is not necessarily limited to the human sphere. Base and inhumane treatment of others, as well as manipulation for personal ends, comprises moral evil, regardless of its source.[5]
Although philosophers examining theories of punishment do not usually involve themselves in considerations of forms of punishment, punishment being treated solely as a concept, it can be pointed out that most prisons today, although not necessarily intentionally, are inhumane, and so too is the traditional conception of hell as divine punishment. Therefore, punishment, human or divine, is on balance more likely to be ‘moral’ rather than ‘natural’ evil. But if God is somehow involved in ‘moral evil’, the term cannot be used as a synonym for sin.
There is, however, an objection to using ‘moral evil’ as a description for punishment; moral evil involves a moral agent – the evil is caused by the moral agent. But in the case of human punishment the people who cause it to happen are, or should be, impartial. It is also generally assumed that God is also disinterested. Perhaps this question can be answered by appealing to the distinction made between what is called ‘first order evil’ and ‘second order evil’, and is based on the principle of double effect. Aquinas, the originator of the principle of double effect, says:
Nothing hinders one ct from having two effects, only one of which is intended, while the other is beside the intention. Now moral acts take their species (i.e. as good or bad) according to what is intended, and not according to what is beside the intention, since this is accidental.
The three basic philosophical theories of punishment will now be briefly explained. At this stage no evaluation will be made; firstly, because the theories of punishment presuppose that punishment is an evil and this has not been proved, and secondly, because while appealing to the principle of double effect may justify human punishment this does not necessarily mean it will justify divine punishment.
2. Punishment is an effect of sin:
It has passed from natural things to human affairs that whenever one thing rises up against another, it suffers some detriment there from. For we observe in natural things that when one contrary supervenes, the other acts with greater energy, for which reason “hot water freezes more rapidly,” as stated in Meteor. i, 12. Wherefore we find that the natural inclination of man is to repress those who rise up against him.[6] Now it is evident that all things contained in an order, are, in a manner, one, in relation to the principle of that order. Consequently, whatever rises up against an order, is put down by that order or by the principle thereof. And because sin is an inordinate act, it is evident that whoever sins, commits an offense against an order: wherefore he is put down, in consequence, by that same order, which repression is punishment.
Accordingly, 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 subjected to the order of his own reason; secondly, it is subjected to the order of another man who governs him either in spiritual or in temporal matters, as a member either of the state or of the household; thirdly, it is subjected to the universal order of the Divine government. Now each of these orders is disturbed by sin, for the sinner acts against his reason, and against human and Divine law. Wherefore he incurs a threefold punishment; one, inflicted by himself, viz. remorse of conscience; another, inflicted by man; and a third, inflicted by God.
3. Sin can be the punishment of sin:
We may speak of sin in two ways: first, in its essence, as such; secondly, as to that which is accidental thereto. Sin as such can nowise be the punishment of another. Because sin considered in its essence is something proceeding from the will, for it is from this that it derives the character of guilt. Whereas punishment is essentially something against the will, as stated in the I, 48, 5. Consequently it is evident that sin regarded in its essence can nowise be the punishment of sin.[7]
On the other hand, sin can be the punishment of sin accidentally in three ways. First, when one sin is the cause of another, by removing an impediment thereto. For passions, temptations of the devil, and the like are causes of sin, but are impeded by the help of Divine grace which is withdrawn on account of sin. Wherefore since the withdrawal of grace is a punishment, and is from God, as stated above (Question 79, Article 3)[8], the result is that the sin which ensues from this is also a punishment accidentally. It is in this sense that the Apostle speaks (Romans 1:24) when he says: “Wherefore God gave them up to the desires of their heart,” i.e. to their passions; because, to wit, when men are deprived of the help of Divine grace, they are overcome by their passions. In this way sin is always said to be the punishment of a preceding sin. Secondly, by reason of the substance of the act, which is such as to cause pain, whether it be an interior act, as is clearly the case with anger or envy, or an exterior act, as is the case with one who endures considerable trouble and loss in order to achieve a sinful act, according to Wisdom 5:7: “We wearied ourselves in the way of iniquity.” Thirdly, on the part of the effect, so that one sin is said to be a punishment by reason of its effect. In the last two ways, a sin is a punishment not only in respect of a preceding sin, but also with regard to itself.
4. Punishment is inflicted for a sin:
Punishment can be considered in two ways–simply, and as being satisfactory. A satisfactory punishment is, in a way, voluntary. And since those who differ as to the debt of punishment, may be one in will by the union of love, it happens that one who has not sinned, bears willingly the punishment for another: thus even in human affairs we see men take the debts of another upon themselves. If, however, we speak of punishment simply, in respect of its being something penal, it has always a relation to a sin in the one punished. Sometimes this is a relation to actual sin, as when a man is punished by God or man for a sin committed by him. Sometimes it is a relation to original sin: and this, either principally or consequently–principally, the punishment of original sin is that human nature is left to itself, and deprived of original justice: and consequently, all the penalties which result from this defect in human nature.[9]
Nevertheless we must observe that sometimes a thing seems penal, and yet is not so simply. Because punishment is a species of evil, as stated in the I, 48, 5. Now evil is privation of good. And since man’s good is manifold, viz. good of the soul, good of the body, and external goods, it happens sometimes that man suffers the loss of a lesser good, that he may profit in a greater good, as when he suffers loss of money for the sake of bodily health, or loss of both of these, for the sake of his soul’s health and the glory of God. In such cases the loss is an evil to man, not simply but relatively; wherefore it does not answer to the name of punishment simply, but of medicinal punishment, because a medical man prescribes bitter potions to his patients, that he may restore them to health. And since such like are not punishments properly speaking, they are not referred to sin as their cause, except in a restricted sense: because the very fact that human nature needs a treatment of penal medicines, is due to the corruption of nature which is itself the punishment of original sin. For there was no need, in the state of innocence, for penal exercises in order to make progress in virtue; so that whatever is penal in the exercise of virtue, is reduced to original sin as its cause.
5. Anyone is punished for another’s sin:
If we speak of that satisfactory punishment, which one takes upon oneself voluntarily, one may bear another’s punishment, in so far as they are, in some way, one, as stated above (Article 7).[10] If, however, we speak of punishment inflicted on account of sin, inasmuch as it is penal, then each one is punished for his own sin only, because the sinful act is something personal. But if we speak of a punishment that is medicinal, in this way it does happen that one is punished for another’s sin. For it has been stated (7) that ills sustained in bodily goods or even in the body itself, are medicinal punishments intended for the health of the soul. Wherefore there is no reason why one should not have such like punishments inflicted on one for another’s sin, either by God or by man; e.g. on children for their parents, or on servants for their masters, inasmuch as they are their property so to speak; in such a way, however, that, if the children or the servants take part in the sin, this penal ill has the character of punishment in regard to both the one punished and the one he is punished for. But if they do not take part in the sin, it has the character of punishment in regard to the one for whom the punishment is borne, while, in regard to the one who is punished, it is merely medicinal (except accidentally, if he consent to the other’s sin), since it is intended for the good of his soul, if he bears it patiently.
With regard to spiritual punishments, these are not merely medicinal, because the good of the soul is not directed to a yet higher good. Consequently no one suffers loss in the goods of the soul without some fault of his own. Wherefore Augustine says (Ep. ad Avit.) [Ep. ad Auxilium, ccl.], such like punishments are not inflicted on one for another’s sin, because, as regards the soul, the son is not the father’s property. Hence the Lord assigns the reason for this by saying (Ezekiel 18:4): “All souls are mine.”[11]
6. The philosophical theories of punishment:
Although traditionally the theories of punishment are considered separately, in practice lines are not as easily drawn. This is particularly the case with the utilitarian theories of punishment: deterrence and rehabilitation. Utilitarianism arose in the eighteenth century and was originally addressed to social policy as a basis for penal reform and legislation. In the twentieth century it is still probably the most influential philosophy, at least in the penal sphere, and utilitarian principles largely determine present penal policy.
a. Deterrence
J. Bentham, as the founder of this theory, states: General prevention ought to be the chief end of punishment as its real justification.[12] If we could consider an offence which has beeen committed as an isolated fact, the like of which would never recur, punishment would be useless.[13] It would only be only adding one evil to another. But when we consider that an unpunished crime leaves the path of crime open, not only to the same delinquent but also to all those who may have the same motives and opportunities for entering upon it, we perceive that punishment inflicted on the individual becomes a source of security for all. That punishment which considered in itself appeared base and repugnant to all generous sentiments is elevated to the first rank of benefits when it is regarded not as an act of wrath or vengeance against a guilty or unfortunate individual who has given way to mischievous inclinations, but as an indispensible sacrifice to the common safety.[14]
Bentham’s theory was based on a hedonistic conception of man and that man as such would be deterred from crime if punishment was applied swiftly, certainly, and severely.[15] But being aware that punishment is an evil, he says, if the evil of punishment exceed the evil of the offence, the punishment will be unprofitable; he will have purchased exemption from one evil at the expense of another.[16]
The basic idea of deterrence is to deter both offenders and others from committing a similar offence. But also in Bentham’s theory was the idea that punishment would also provide an opportunity for reform.[17]
In most cases keeping a person in his home should be sufficient. Justice should be administered quickly; so long periods in custody should be unnecessary. There is no biblical basis for locking people up as a punishment for crime.
Sometimes a person accused of murder may need to be kept safe from people seeking revenge. The leaders of a community are required to protect the accused person until a fair trial can be held. They will be places of refuge from the avenger, so that a person accused of murder may not die before he stands trial before the assembly (Num 35:12).
Innocent blood puts a curse on the land. A person accused of murder should be kept safe until they have received a fair trial.
7. CONCLUSION:
Punishment, whether legal or divine, needs justification. Because the justification of legal punishment has been given greater consideration by philosophers than has the justification of divine punishment by theologians, the philosophical concepts and ‘theories of punishment’, (i.e. the justifications) will be used as a basis for considering divine punishment. There is a certain difficulty in assimilating these two subjects because they have reference to different contexts, namely, in human punishment the penal system and, in divine punishment, theology in general and in particular the afterlife. But there are some basic features which can be considered applicable to both.
Firstly, punishment is imposed because some person has done wrong. In the legal context this is called a crime or offence and in the theological context it is called a sin. The two terms are by no means interchangeable. As Aquinas says, “the commands of human law cover only those deeds which concern the public interest, not every deed of every virtue.” However, most crimes are also morally evil and are, therefore, also sins.
Secondly, another basic presupposition of both categories of punishment is freewill and as a consequence, responsibility. Freewill is admittedly a debated topic among philosophers and theologians and responsibility equally debated among criminologists, but, for the purpose of this inquiry, it will be assumed that punishment is only of those who have responsibility for their volitions. One must be cautious at this point in case of an over-simplification of the causes of crime or wrong-doing is allowed to arise. Many factors should be considered: sociological, psychological, inherited etc., but it is possible to say that at least some crimes and all sins are a result of a wrong choice between good and evil.
1. A ‘sin’ is any transgression of God’s law and can be distinguished from ‘Sin’, which denotes the broken relationship between man and God.
2. Cited in F. Pakenham, Lord Longford, (1961) The Idea of Punishment, (London: Geoffrey Chapmen), p.15.
3. Stenning. P (2000) ‘Evaluating Punishment and Sins Complaints Legislation: A Suggested Framework’, in A Goldsmith and C Lewis (Eds) Civilian Oversight of Punishment: Hart Publishing.
4. Smith, G. (2004) Rethinking punishment complaints. British Journal 44, 15-33.
5. Fyfe, J. (1993) Above the Law: Punishment and Excessive Use of Force, New York: The Free Press.
6. Zander, M: The Punishment and Criminal Evidence Act 1984 (a comprehensive account of the Act).
7. A. Bottoms, A. E, Burney, E. & Wikstrom, (1998), Criminal Deterrence and Sentencing Severity: An Analysis of Recent Research Oxford, Hart.
8. Bingham, “The punishment of sins” Newsam Memorial lecture on 25 April 2000 at the College, Bramshill, reprinted in The Business of Judging: Selected Essays and Speeches, Oxford: Oxford University Press.
9. Hammond, W H, and Chayen, E, (1963), Persistent Offenders, HMSO.
10. Morgan, (1997) the Punishment and Sins Oxford: Oxford University Press.
11. William A, (1996), the Death Penalty as Cruel Treatment and Torture, Boston: Northeastern University Press
12. Morgan, R. (1987) “Punishment; Developing the punishment of sins”. British Jnl. Of Criminology Winter 1987
13. Leishman, F., and Savage, S.P. (Eds) Core Issues in Punishment, London: Longman.
14. Davids, C. (2000), ‘Punishment, and Sins, Australian and New Zealand Journal of Criminology 31(1): 38–68.
Dixon, D. Law in Punishment: Punishment and Sins, Oxford: Clarendon Press.
15. Garland, D (1990), Punishment and Modern Society, Oxford University Pre
[1] A ‘sin’ is any transgression of God’s law and can be distinguished from ‘Sin’, which denotes the broken relationship between man and God.
[2] Cited in F. Pakenham, Lord Longford, The Idea of Punishment, (London: Geoffrey Chapmen, 1961), p.15. 2 See, e.g., Digital Performance Right in Sound Recordings Act of 1995, Pub. L. No. 104-39, 109 Stat. 336 (1995) PETITION filed in the Supreme Judicial Court for the county of Suffolk on January 10, 1967. The case was reserved and reported by Spalding, J. The case was submitted on briefs. Ronald J. Chisholm & Gerard F. Schaefer for the petitioner. Willie J. Davis,Assistant Attorney General, for the Commonwealth.
[3] See, Davis,p.4 ‘The Punishment and Sins’ in T. Newburn, Handbook of Punishment and Sins’, P-211 As will later become clear, holding police punishment for what they do is not the same as perusing, participating in all their decision making processes. We are talking about openness to scrutiny or access to the participation of others rather than about actual involvement in their decision. How punishment is most implemented is a practical question that takes us beyond anything I can hope to cover here.
[4] HICK (EGL) p.18 in such circumstances, one classic liberal appeal, in the United Kingdom than in the United States, has been to ‘the rule of law’, and to the police officer’s role as an officer of the law.
[5] The Courts are justified in punishing because and only because offenders deserve it. Moral culpability is in such a view both a sufficient as well as a necessary condition of liability to punitive sanctions. Such justification gives society more than merely a right to punish culpable offenders. It does this, making it not unfair to punish them, but justifies more than this. For justifies, the moral capability of an offender also gives society the duty to punish.
[6] It is written (Romans 2:9): “Tribulation and anguish upon every soul of man that worked evil.” But to work evil is to sin. Therefore sin incurs a punishment which is signified by the words “tribulation and anguish. This punishment of the “inordinate affection” is due to sin as overturning the order of reason. Nevertheless sin incurs a further punishment, through disturbing the order of the Divine or human law.book, law, sen metro.
[7] For the purpose of punishment is to bring man back to the good of virtue, as the Philosopher declares (Ethic. x, 9). Now sin does not bring man back to the good of virtue, but leads him in the opposite direction. Therefore sin is not the punishment of sin. But sin is something from the will, as shown above (74, A1, 2). , Gregory speaks (Hom. xi in Ezech.) that some sins are punishments of others.
[8] It is written (Romans 2:9): “Wherefore God gave them up to the desires of their heart,” considers sin essentially
[9] For it is written (John 9:3,2) about the man born blind: “Neither hath this man sinned, nor his parents that he should be born blind.” the wicked (Psalm 72:5): “They are not in the labor of men: neither shall they be scourged like other men”; and (Job 21:7): “Further, it is written of Christ (1 Peter 2:22) that “He did no sin, nor was guile found in His mouth.” written (Job 4:7, seqq.): “Who ever perished innocent?
[10] For it is written (Exodus 20:5): “I am . . . God . . . jealous, visiting the iniquity of the fathers upon the children, unto the third and fourth generation of them that hate Me”; and (Matthew 23:35): “That upon you may come all the just blood that hath been shed upon the earth.” Further, if it be replied that the son is punished, not for the father’s sin, but for his own, inasmuch as he imitates his father’s wickedness; this would not be said of the children rather than of outsiders, who are punished in like manner as those whose crimes they imitate.
[11] It is written (Ezekiel 18:20): “The son shall not bear the iniquity of the father.”
[12] See DAVIS p.4.
[13] For Bentham, general deterrence was the primary good consequence of punishment: General prevention ought to be the chief end of punishment, as it is its real justification…when we consider that an unpunished crime leaves the path of crime open, not only to the same delinquent, but also to all those who may have the same motives and opportunities for entering upon it, we perceive that the punishment inflicted on the individual becomes a source of security to all. That punishment which, considered in itself, appeared base and repugnant to all generous sentiments, is elevated to the first rank of benefits, when it is regarded not as an act of wrath or of vengeance against a guilty or unfortunate individual who has given way to mischievous inclinations, but as an indispensable sacrifice to the common safety
[14] They put him in custody until the will of the LORD should be made clear to them (Lev 24:12, see also Num 15:34).
[15] Von Hirsch, A. Bottoms, A. E, Burney, E. & Wikstrom, P-O (1999) Criminal Deterrence and Sentencing Severity: An Analysis of Recent Research Oxford, Hart.
[16] They will be places of refuge from the avenger, so that a person accused of murder may not die before he stands trial before the assembly (Num 35:12).
[17] Accordingly, the phrase ‘commensurate with the seriousness of the offence’ must mean commensurate with the punishment and deterrence which the seriousness of the offence requires. 14 Cr App p-447