Angilbert (fl. ca. 840/50), On the Battle Which was Fought at Fontenoy

The Law of Christians is broken,
Blood by the hands of hell profusely shed like rain,
And the throat of Cerberus bellows songs of joy.

Angelbertus, Versus de Bella que fuit acta Fontaneto

Fracta est lex christianorum
Sanguinis proluvio, unde manus inferorum,
gaudet gula Cerberi.

Wednesday, February 15, 2012

On Crime and Punishment

ALL PUNISHMENT SAYS THE TRADITIONALIST JOSEPH DE MAISTRE is painful, but it is inflicted as much for love as it is for justice.* Shocking to modern sensibilities, de Maistre insisted that the scaffold was a kind of altar, and there is no civilization unless there is an altar, suggesting, of course, that civilization requires a scaffold.** Jeremy Bentham, on the other hand, insisted that all punishment is mischief, and that all punishment in itself is evil, having ultimately no justification in either justice, much less in love, but only in utility.***

The Compendium of the Social Doctrine of the Church has a brief excursus on punishment. (Compendium, Nos. 402-405) The Compendium ties punishment down with two ropes: the common good and law. Nulla poena sine lege: no punishment without law goes an old Roman legal principle. This principle is clearly adopted by the Compendium. And since it is a fundamental principle that all law is ordered to the common good of the community, if follows that punishment under the rule of law is justified only with reference to the common good.

In the Compendium's tying punishment to the the rule of law and the common good, we must remember the Church's unique vision of the common good--which is neither a collective concept nor an aggregate concept, but a personalistic and teleological, even theistic one. "The common good of society is not an end in itself; it has value only in reference to attaining the ultimate ends of the person and the universal common good of the whole of creation. God is the ultimate end of his creatures and for no reason may the common good be deprived of its transcendent dimension, which moves beyond the historical dimension while at the same time fulfilling it." (Compendium, No. 170)

Ultimately, the Church seems to be telling us, punishment is justified only in reference to the person, to the good of a political community, and, ultimately, only in reference to God, who is both justice and love. (cf. 2 Thess. 1:6; 1 John 4:8)

In order to protect the common good, the lawful public authority must exercise the right and the duty to inflict punishments according to the seriousness of the crimes committed.
(Compendium, No. 402)

In this succinct statement, we find a number of principles. First, punishment is referable to the common good. It is a means of protecting the common good. Second, it is only lawful public authority that has the monopoly on the use of violence or physical coercion, what Max Weber called das Gewaltmonopol or das Monopol legitimen physischen Zwanges.† Where there is law, there is no such thing as vigilantism. Third, the public authority has not only the right, but a duty to inflict punishment. Fourth, there must be a relationship, a fit, a proportionality between crime and punishment.

Vincent Van Gogh, "Prisoners Exercising" (After Doré) (1890)

There are four traditional justifications for punishment: retribution, deterrence, rehabilitation, and incapacitation. The Compendium appears to embrace all four as justifications for punishment. For example, the Compendium states that punishment arises out of the State's duty to "discourage behavior that is harmful to human rights and the fundamental norms of civil life." (Compendium, No. 402). This is a clear reference to deterrence. The Compendium also states that public authority has the duty to see that "the disorder created by criminal activity" be repaired "through the penal system." (Compendium, No. 402) This a clear reference to retribution. The Compendium further recognizes that punishment has the purpose of "guaranteeing the safety of persons," and this suggests that punishment serves to incapacitate the criminal from harming others. (Compendium, No. 403) Finally, the Compendium adverts that punishment may well be "an instrument for the correction of the offender, a correction that also takes on the moral value of expiation when the guilty party voluntarily accepts his punishment." This is a reference to rehabilitation.

The role of the judicial system--as independent from the legislative and executive branches of government--is emphasized by the Compendium as part of the modern rule of law. There needs to be a division between the law maker, the prosecutor, and the judge.
In a State ruled by law the power to inflict punishment is correctly entrusted to the Courts: "In defining the proper relationships between the legislative, executive, and judicial powers, the Constitutions of modern States guarantee the judicial power the necessary independence in the real of law.
(Compendium, No. 402)

In investigating crimes, prosecuting alleged criminals, sentencing criminals and punishing them, public authority and its officials are to remember two things: truth and the dignity and rights of the accused and convicted, for they enjoy the full dignity and rights of the human person.††

The activity of offices charged with establishing criminal responsibility, which is always personal in character, must strive to be a meticulous search for truth and must be conducted in full respect for the dignity and rights of the human person; this means guaranteeing the rights of the guilty as well as those of the innocent. The juridical principle by which punishment cannot be inflicted if a crime has not first been proven must be borne in mind.

(Compendium, No. 404)

In pursuing their investigations, officials of the public authority "are especially called to exercise due discretion in their investigations so as not to violate the rights of the accused to confidentiality and in order not to undermine the principle of the presumption of innocence." (Compendium, No. 404)

The Compendium prohibits the use of torture, though it does not define the term other than through vague reference to "international juridical instruments concerning human rights." (We leave the subject of what is "torture" for another day.)
In carrying out investigations, the regulation against the use of torture, even in the case of serious crimes, must be strictly observed: "Christ's disciple refuses every recourse to such methods, which nothing could justify and in which the dignity of man is as much debased in his torturer as in the torturer's victim."††† International juridical instruments concerning human rights correctly indicate a prohibition against torture as a principle which cannot be contravened under any circumstances.

(Compendium, No. 404)

Not only is torture prohibited, but so is improper detention or incarceration: "Likewise ruled out is “the use of detention for the sole purpose of trying to obtain significant information for the trial." (Compendium, No. 404)

Finally, trials are to be had expeditiously in a manner in keeping with truth and justice: "excessive length" of trials "intolerable for citizens and results in a real injustice."‡ (Compendium, No. 404)

Finally, no judicial system manned by humans is perfect, and errors in investigation, trial, judgment, and punishment can occur. When public authority becomes aware of these, it must rectify the wrong. Part of this righting of wrongs demands "that the law provide for suitable compensation for victims of judicial errors." (Compendium, No. 404)

*Joseph de Maistre, Les Soirées de Saint-Pétersbourg, "Fifth Dialogue."
**Ibid., "Second Dialogue" and "Tenth Dialogue." The connection between punishment and belief in God is more intimate than one might first suppose. Even Albert Camus divined it when he observed in his famous essay against capital punishment, "Reflections on the Guillotine," that capital punishment has always been religious punishment, and that justification for capital punishment can only be found in grounded in a religious belief that life on earth is not all there is.
***Jeremy Bentham, Principles of Morals and Legislation, Chp. XVI, § 1.
†Max Weber, Wirtschaft und Gesellschaft, Chp. 1, § 17 (Politics as a Vocation). It should be noted that Weber's concept seems skewed in favor of the State. In fact, punishment is legitimately pursued by the public authority in any perfect society, which would include the Church.
††A person guilty of a heinous offense maintains what we may call his ontological dignity, one based upon the fact that he is a person. He may have lost what I call the agathological dignity which a man or woman obtains by conforming his or her life to the good. Though both sinner and saint retain their ontological dignity by virtue of being persons, the saint has a much higher agathological dignity than the criminal, who has marred his dignity by his rejection of the good (in Greek: agathos) for evil (in Greek: kakos).
†††Quoting John Paul II, Address to the International Committee of the Red Cross, Geneva (15 June 1982), 5.
‡John Paul II, Address to the Italian Association of Judges (31 March 2000), 4

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