Gideon's Blog

In direct contravention of my wife's explicit instructions, herewith I inaugurate my first blog. Long may it prosper.

For some reason, I think I have something to say to you. You think you have something to say to me? Email me at: gideonsblogger -at- yahoo -dot- com

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Friday, December 06, 2002
My apologies for being so out of it lately. Very busy at work.

Just got around to reading last month's First Things. Two interesting bits therein:

First, an article about the nature and history of marriage, by John Witte Jr. It was very clarifying to me. One thing it clarified is: my attitudes towards the nature of marriage are very congruent with Protestant attitudes historically (even though - or perhaps because - I'm Jewish). As Witte outlines, the big difference between Protestant and Catholic understandings of marriage is that Catholicism privileges celibacy over marriage whereas Protestantism (excluding Anglicanism, which, in my view, is really a rather different animal), like Judaism, frowns upon celibacy and privileges marriage. In any event, the Protestant model is convenant-based; the parties to a marriage are the groom and bride but also the community, G-d, and the family stretching forward and backward in time. That sounds right to me, far more right than pure contractarianism, which posits that the bride and groom are the only parties to the marriage. Witte does a very good job of explaining how contractarian ideas about marriage were important in correcting abuses of the older Protestant and Catholic models of marriage, as well as how the excesses of the contractarian approach have resulted in much of the mess that marriage is in today. The emphasis he places on no-fault divorce as the "reform" that destroyed the public institution of marriage is entirely proper, in my view, but he adds a number of nuances that I would never have thought of (particularly his discussion about the difference between divorce and annulment, and their collapse in the contractarian understanding of marriage). It's a very good article, strongly recommended, and I expect I'll be returning to its themes as I return, repeatedly, to the topic of marriage and how it can be regenerated.

Second, an "exchange" about Justice Scalia's famous comments on the death penalty, Catholic teaching, and judges, which were published in First Things some months ago. Scalia's original point can by summarized as follows: (a) the death penalty is affirming of life because some crimes can only be justly compensated for by the execution of the guilty; (b) this has, historically, been Church teaching; (c) if the Church teaches that retribution is not a justification for the death-penalty, then it is being false to its own history; (d) if the Church were to forbid Catholics from being involved in "the machinery of death" then Catholic judges (at least in the United States) would be morally bound to resign their positions. The critical responses come in various flavors; the most interesting is the argument, Stephen Long at the University of St. Thomas, that retribution - the restoration of the moral order through punishment - is a plausible justification for punishment only if the society manifests moral values at the core of its public institutions. Long specifically argues that the legal status of abortion means that our public order is fundamentally immoral; therefore, the death-penalty cannot restore the moral order that our public institutions are obliged to defend, and therefore, in our society specifically, retribution is not a justification for the death-penalty, and we fall back on the prudential debate which is the heart of the Church's recent teachings on the topic.

This is an interesting argument. Scalia's rejoinder - that the public order is never all moral or all immoral; retribution therefore is legitimate in all societies or in none - is problematic on its face. Long raises the example of Nero. One might have as easily raised the problem of Hitler, or, for that matter, 1920s Mississippi. If the death penalty is applied most vigorously against religious dissidents, does it still uphold the moral order in any one? When it is applied to innocent Jews and not to their murderers? When it is applied to suspected black rapists but not the white mobs who murder them? Where one draws the line is an interesting and difficult question, but surely the line is somewhere. Surely a state may be thoroughly corrupted by evil and yet legitimate; and surely, in that case, its application of penalties, capital or not, does not uphold any kind of moral order. Whether legalized abortion is such a corruption is a matter for debate - but, plausibly, for debate between the Church and non-Catholics, not within the Church, because the Church has settled on the position that abortion is a profound evil comparable to murder, from which perspective our state must be deeply and profoundly corrupt indeed.

But Long exposes subtler problems with Scalia's argument which apply even if the public order is not profoundly corrupted. Perhaps if we back up a bit, and ask what retribution means, we'll see why. Retribution can be understood as either expiation or satisfaction. Expiation can be either for the community or the criminal. Either the criminal is cleansed of the consequences of his act upon his soul by suffering punishment, or the community makes expiation for its failure to prevent the crime by punishing the criminal. In either case, the focus is on the guilty and on washing away the guilt. If the basis of retribution is satisfaction, then the focus is on the wronged. Again, the wronged can be either the community - the criminal violated the peace - or the victim of the crime - the criminal violated his rights. Rather than expiating guilt, retribution satisfied the wronged party that "justice has been done" and the moral order restored.

There is more than a bit of tension between these two perspectives. Let's ignore the criminal and the victim for a moment and focus entirely on the community. A community that did not understand itself to be morally responsible for protecting its members from harm could nonetheless have a concept of retributive justice, but only on the satisfaction, not the expiation model. Indeed, this is the pagan or secular model of retribution, which cannot have had a concept of divine sanction underpinning its understanding of justice. It is also, arguably, the understanding of most contemporaries who favor the death penalty. They do not feel guilty for having (collectively) allowed the crime to happen (nor are they concerned for the soul of the criminal). Rather, they are offended at the violation of the victim's rights and/or public order, and demand satisfaction. This understanding of retribution is, pragmatically, the civilized alternative to a culture of vengeance. In a vengeance culture, justice is privatized. Every individual, if his sense of justice is offended, pursues the offender to punish him. In a secular account of retribution, this vengeance is foregone in exchange for an agreement to rely upon the community (and the state it authors) to provide satisfaction - not according to the feelings of individual victims but according to universally accepted norms of justice. One pragmatic argument in favor of the death penalty is that, in fact, if satisfaction is not generally provided, then society will degenerate into privatizing justice, and return to a culture of vengeance - a vigilante culture.

I think that's all fairly reasonable, but it's not particularly congruent with the concept of expiation, nor does is it particularly congruent with Christian ethics as I understand them (and again, I'm not a Christian). G-d, presumably, does not need satisfaction, though He may demand expiation of the guilty. (Indeed, He may demand that expiation in blood.) If the state stands in for G-d in executing justice (which is basically Scalia's understanding of the traditional Church perspective on secular justice), then the state cannot be demanding satisfaction. But if the state is standing in for G-d, then the state cannot be making expiation, but must be demanding it of the offender. It's a subtle distinction I'm making, between society saying "the only way we can be satisfied is if you die for what you did" and "the only way you can atone for what you did is by your death." But I suspect that the former, and not the latter, is the primary psychology behind the contemporary supporters of the death penalty.

Scalia doesn't particularly reckon with the following sentense from Cardinal Dulles: "In our society, moreover, the death penalty is often seen as an instrument of popular vindictiveness and retaliation rather than of divine justice, since the transcendent order of justice is not generally recognized." One could rephrase that to be more kind to the public while making the same point: the public expresses an entirely moral but entirely earthly understanding of retributive justice, one based on satisfaction rather than expiation and on the substitution of public retribution for private vengeance rather than the transcending of an ethic of vengeance by an ethic of love. There is an entirely valid G-d-centered notion of retribution, in this view, but it is not available to a society that rejects its ethical basis. The Church could legitimately argue that even a noble pagan ethos must be restrained when it lays claim to the power over life and death. That would suit more with the radicalism of the Christian witness than with the conservative political ends to which it is sometimes yoked.