Mirror of Justice

St. Paul's Punishment Theory, Part I

Did St. Paul have a theory of punishment? In The Mighty and the Almighty, Professor Nicholas Wolterstorff argues that he did. In this post, I'll lay out Prof. Wolterstorff's claims. In the next, I'll consider them and ask some questions about his interpretation and also about the merits of the punishment theory he ascribes to Paul.

Here's the context. In Chapter 8 of the book, Wolterstorff has in mind only one of the two dualities of authority that make up his core thesis--the issue of state authority mediating divine authority. In discussing that issue, he explores the extremely difficult and dense Epistle of Paul to the Romans, and specifically Romans 12 and 13. Here Paul is giving some advice to members of the Church about how they should behave toward and within the various institutions that formed civil society: the family, business relationships, and the Roman empire, for example. In Chapter 12, Paul instructs Church members never to "avenge" themselves, but to "leave room for the wrath of God; for it is written, 'Vengeance is mine, I will repay, says the Lord.'" Here is the text of the first seven verses of Chapter 13:

1. Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God.

2 Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation.

3 For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same:

4 For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.

5 Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.

6 For for this cause pay ye tribute also: for they are God's ministers, attending continually upon this very thing.

7 Render therefore to all their dues: tribute to whom tribute is due; custom to whom custom; fear to whom fear; honour to whom honour.

Wolterstorff says that one standard interpretation of these two Chapters is that 12 contains instructions as to individual conduct, while 13 describes official state action. On that interpretation, the individual is not to "avenge" himself against wrongdoing, but the state may "avenge" that same wrongdoing. Wolterstorff equates "vengeance" with retribution, and so possibly with retributivist reasons for punishment. "The core idea of retribution," he writes, "is paying back evil with evil, redressing the harm done to the victim with an equivalent harm done to the wrongdoer." And in rejecting the standard interpretation of Romans 12 and 13, Wolterstorff claims that retributivism understood in this fashion is completely at odds with Jesus's rejection of this sort of code of reciprocity, a rejection that Paul (at earlier points in Chapter 12 of the Epistle) repeats. From this, Wolterstorff ascribes to Jesus, and so also to Paul, a consequentialist understanding of punishment: "If hard treatment is to be imposed on the wrongdoer, let it be for the sake of achieving some good in his life and/or the lives of others."

But there is a problem with this interpretation. For in Chapter 13, verse 4 of the Epistle, Paul speaks of the government "execut[ing] wrath upon him that doeth evil." How does a minister of justice, who is himself also a minister of God in the Christian understanding advanced by Wolterstorff, execute wrath (God's wrath?) upon the wicked without imposing punishment for retributivist reasons?

Wolterstorff offers the following solution. What this passage means is that the state is empowered to reprove and punish the evil-doer in the way that a parent reproves and punishes his or her children. Government, as the servant of God, has a "God-assigned task": its function is not retribution but the expression of wrath in response to evil-doing, and the concomitant expression of support for the doing of good. Here is Wolterstorff:

As to what God authorizes the state to do, I am reminded of a way of understanding punishment that has recently entered the lists and that I find compelling, the so-called expressive theory....The expressive theory says that punishment of a wrongdoer should not be understood as retribution--redressing harm with harm--but as a way of reproving what he did and of expressing anger at him for having done it. Speaking anachronistically, Paul was employing the expressive theory of punishment rather than the retributive theory in stating what God assigns government to do. (88-89)

Yet Wolterstorff does not believe that Paul is urging the state to express God's wrath; precisely whose wrath the state is empowered to express is left unclear. In fact, in light of the "social benefits that Paul cites of government carrying out its assignment," it seems that the expression of (somebody's) wrath is only one sort of consequentialist justification for state-imposed punishment. Wolterstorff interprets Paul as advocating a more broadly liberal, consequentialist theory of punishment, to include deterring wrongful conduct: "The God-assigned task of government is to exercise governance over the public for the curbing of wrongdoing." (90)

These are the broad outlines of Wolterstorff's interpretation of St. Paul's theory of punishment. In my next post, I will raise some questions both about the interpretation and about expressivist theories more broadly.

"Solidarity, Not a Scolding"

I have a post at National Review -- which was occasioned by my disappointment in some of the reactions to Pope Francis's remarks at his recent meeting with leaders of the University of Notre Dame -- called "Solidarity, not a Scolding."  I wrote (among other things):

. . . It seems clear that this was a happy and uplifting occasion, at which the Holy Father generously expressed sincere gratitude and support for the University of Notre Dame’s work and mission. What’s more, he indicated his clear-eyed appreciation for the fact that the university confronts challenges, in the form of “efforts . . . to dilute [its] indispensable witness.” Surfing around the more “conservative” sectors of the Catholic blogosphere, though, one might get the impression that Pope Francis had called the university on the carpet for a Petrine scolding, or for a finger-wagging session dedicated to chastising Notre Dame for its various failings, or for marching orders regarding the handling of the university’s lawsuit challenging the HHS contraception-coverage mandate. It appears that many who have already concluded — because of Land O’ Lakes, or President Obama’s honorary degree, or the edgy statements of a particular faculty member, or the ups and downs of the football team’s fortunes — that Notre Dame is a “Catholic in name only” sell-out were quick to imagine that the pope was endorsing all the particulars of their indictments of the Irish.

I realize that the “oh, snap!” interpretation of the pope’s address to Notre Dame’s president and trustees is useful to some fundraising efforts and provides some an opportunity for catharsis and venting. But, it is not a plausible interpretation. The pope expressed (appropriate and warranted) gratitude and praise and also (appropriate and warranted) caution. To the extent he was being critical, the object of his criticism is not the university for its alleged half-stepping but those “quarter[s]” — such as the United States Department of Health and Human Services — that are trying to undermine and dilute Catholic universities’ and institutions’ “uncompromising witness” and commitment to “missionary discipleship.”

More from the President's Prayer Breakfast remarks

Michael noted the President's remarks at the Prayer Breakfast.  Here's more from those remarks, which were not (hmmm) mentioned in the New York Times piece to which Michael linked:

Yet even as our faith sustains us, it’s also clear that around the world freedom of religion is under threat.  And that is what I want to reflect on this morning.  We see governments engaging in discrimination and violence against the faithful.  We sometimes see religion twisted in an attempt to justify hatred and persecution against other people just because of who they are, or how they pray or who they love.  Old tensions are stoked, fueling conflicts along religious lines, as we’ve seen in the Central African Republic recently, even though to harm anyone in the name of faith is to diminish our own relationship with God.  Extremists succumb to an ignorant nihilism that shows they don’t understand the faiths they claim to profess -- for the killing of the innocent is never fulfilling God’s will; in fact, it’s the ultimate betrayal of God’s will.

Today, we profess the principles we know to be true.  We believe that each of us is “wonderfully made” in the image of God.  We, therefore, believe in the inherent dignity of every human being -- dignity that no earthly power can take away.  And central to that dignity is freedom of religion -- the right of every person to practice their faith how they choose, to change their faith if they choose, or to practice no faith at all, and to do this free from persecution and fear.

This is, of course, great stuff:  "Each of us is 'wonderfully made' in the image of God" . . . the "inherent dignity of every human being."  As Michael Sean Winters points out (here), actions and policies that better reflect these wonderful statements would be welcome.

Upcoming Murphy Institute Conferences: "Feminism, Law and Religion"

The Murphy Institute is going to be busy this spring semester.  Please join us in March for this one:

 

with keynote address by Rev. Elizabeth A. Eaton presiding bishop, Evangelical Lutheran Church in America

 

March 20-21, 2014, University of St. Thomas, St. Paul, Minnesota, Register here.

 

This two-day conference continues a conversation begun by feminist legal scholars and theologians, marked by the recent publication of Feminism, Law and Religion (Ashgate Press 2013, Failinger, Schiltz, and Stabile, eds), about the role that theology and religious law from diverse religions can play in the construction and critique of just law throughout the world. PANELS AND WORKSHOP TOPICS: Feminist Legal Theory- Religious and Secular Encounters Emily Albrink Hartigan, St. Mary's University School of Law, Texas Cheryl B. Preston, Brigham Young University School of Law, Utah Elizabeth Schiltz, University of St. Thomas School of Law, Minnesota Susan Stabile, University of St. Thomas School of Law, Minnesota Domestic Violence, Religion and Law Deborah Cantrell, University of Colorado Law School Naomi Graetz, Ben Gurion University of the Negev, Israel Juliane Hammer, University of North Carolina at Chapel Hill Feminist Readings of Theological Texts on Women's Concerns Hina Azam, University of Texas Marie Failinger, Hamline University School of Law, Minnesota Asifa Quraishi-Landes, University of Wisconsin Law School Frances Raday, Hebrew University of Jerusalem Faculty of Law Reinterpreting Women's Roles and Women's Human Rights Nimat Hafez Barazangi, Cornell University, New York M. Christian Green, Emory University School of Law, Atlanta Ayelet Shachar, University of Toronto Faculty of Law Women's Leadership Within Religious Communities Sr. Sara Butler, University of St. Mary of the Lake Seminary in Mundelein, Illinois Rebecca Redwood French, State University of New York at Buffalo School of Law Mary Szto, Hamline University School of Law, Minnesota Workshops on Emerging Scholarship in Feminism, Law, and Religion These informal sessions provide an opportunity for scholars from varied disciplines to present their works-in-progress and are organized around these topics: Women's Leadership; Women and Human Rights Issues; Women, Religion, and U.S. politics; and Women in the Catholic Church: Emerging Issues. Abigail Bartels, University of Notre Dame Adena Berkowitz, Yeshivat Chovevei Torah Rabbinical School Naomi Cahn, The George Washington University Law School Shlomo Chaim Pill, Emory University School of Law Julia Ernst, University of North Dakota School of Law Rev. Joseph Hurtuk, S.M., S.T.D., University of St. Thomas Roberta Kwall, DePaul University College of Law Center for Jewish Law and Judaic Studies Sandra Laguerta, First Things Dana Lloyd, Syracuse University Katie Mollen, Minnesota Catholic Council Charles Reid, University of St. Thomas School of Law Amy Ziettlow, Institute of American Values in New York City

KEYNOTE ADDRESS Rev. Elizabeth Eaton Presiding Bishop, Evangelical Lutheran Church in America Thursday, March 20, 7:00 p.m. Woulfe Auditorium, Anderson Student Center University of St. Thomas, St. Paul campus The Rev. Elizabeth A. Eaton was elected as the ELCA's fourth presiding bishop at the 2013 ELCA Churchwide Assembly. She is the denomination's first female presiding bishop. Eaton holds a Master of Divinity degree from Harvard Divinity School in Cambridge, Mass., and a Bachelor of Arts degree in music education from the College of Wooster in Wooster, Ohio. CO-SPONSORED BY:  College of Arts and Sciences Jay Philips Center for Interfaith Learning Luann Dummer Center for Women Muslim-Christian Dialogue Center Siena Symposium for Women, Family, and Culture Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy   Free and open to the public. "Conversations in Feminism, Law, and Religion" has been approved for 9.75 Continuing- Legal- Education credits.

A case to watch: Holt v. Hobbs

A religious-freedom case that is not getting much notice, but should, is Holt v. Hobbs, which involves a Muslim inmate's challenge to a prison's grooming policies.  (Learn more here.  For the Court filings -- courtesy of the prisoner's lawyer, Prof. Doug Laycock -- are here.)  To get a good sense of how . . . flimsy the justifications are for the challenged policy, check out Prof. Laycock's reply brief.

Stay tuned!

"The Strongest Single Argument" is the Narrowest Argument Needed to Win, not the Broadest

Lots of action from the New York Times in the past couple of days. Kevin and Rick have already described Linda Greenhouse's column about the Hobby Lobby and Little Sisters of the Poor cases and her comments about McCullen v. Coakley. The column says what it says, but at least it contains reasons that one can evaluate and then accept or reject.

This editorial, on the other hand, doesn't even give the reader that. The Times finds meritorious Marci Hamilton's argument that the Court should strike down the Religious Freedom Restoration Act as a violation of the Establishment Clause. Though it does not predict that "the Court will go that far," it does seem to believe that the Court ought to. And it further seems to think that the amicus brief authored by Fred Gedicks arguing that the Establishment Clause forbids any accommodation that imposes "signficant burdens" on identifiable third parties makes plausible claims. Even more than that, however, it asserts that these Establishment Clause claims are "the strongest single argument" against the plaintiffs in these cases.

Now, I think the argument is mistaken, and have given reasons in places that the Times neither cites nor acknowledges. But even if I agreed with the argument, I would not believe that it represents "the strongest single argument" against the plaintiffs. That honor quite obviously goes to the government's evaluation of the RFRA claim itself. And the government has devoted nearly all of its briefing to developing that argument--an argument that depends on interest balancing under RFRA, not on a creative, aggressive, maximalist approach to constitutional interpretation. "The strongest single argument" from the government's side is the narrowest argument it needs to win, not the broadest. It is the argument that RFRA does not require these accommodations. That argument may not win, or it may, but it should come as no surprise that the actual litigants are focusing on it.

Two misleading claims in yesterday's Linda Greenhouse op-ed

Rick has already posted about the Linda Greenhouse op-ed on McCullen v. Coakley (the pending free speech challenge to Massachusetts special speech restrictions around abortion clinics) and Little Sisters of the Poor v. Sebelius (the RFRA/First Amendment/APA challenge to the contraceptives coverage requirements for nonexempt religious nonprofits). In thinking about these cases, Greenhouse discerns  "sustained aggressiveness by religious groups that sense weakness in the executive branch and welcoming arms at the Roberts court." I tend to see more aggressiveness in the government actions being challenged--the state shutting down free speech and the Obama Administration forcing religious sisters to violate their religious conscience--than in the attempts by Eleanor McCullen and the Little Sisters of the Poor to defend themselves legally. But these are matters of opinion about which people differ. There are a couple of misleading claims in the op-ed, though, about which people should not differ and which I hope Greenhouse or the New York Times will clarify or correct. 

The first misleading claim is factual. It is the answer to this seemingly simple question: How many pages is the form that a nonexempt religious nonprofit must sign to be eligible for the accommodated mode of complying with the contraceptives coverage mandate? Greenhouse says it is a "standard one-page form." But if the piece had included a link to the form itself, interested readers would have discovered that it is a two-page form. And if Greenhouse had looked at the second page of the form, she would have seen language that a nonexempt religious employer with objections to the mandate would find problematic. Consider, for instance, the language stating that "[t]his certification is an instrument under which the plan is operated." That language ensures that any contraceptives coverage arranged by the third-party administrator is part of the benefits package offered through the nonexempt employer's health benefits plan. Making the coverage part of that plan is one aspect of the government's scheme to provide comprehensive contraceptives coverage for employees of nonexempt employers. Greenhouse also would have seen reference to the obligations imposed by various federal regulations upon third-party administrators who receive executed copies of the government's form. These regulations obligate the recipient third-party administrator to arrange for coverage of all-FDA approved contraceptives. Greenhouse does not address these aspects of the form in her piece. The most charitable reading of her characterization of the form may be that she was thinking that employers would print out and submit the two-page form using the double-side setting on their printers. But that is not the most natural reading, and the piece is misleading as written.

The second misleading claim is legal rather than factual. This is Greenhouse's claim that the form at issue "sets the exemption machinery in motion." The form has nothing to do with the exemption from the contraceptives coverage mandate. "Religious employers" who are actually "exempt" do not need to fill out this form. The form at issue in Little Sisters of the Poor v. Sebelius is part of the machinery for the government's arrangement for nonexempt religious nonprofits.

Both of these should be non-controversial points. But they are not trivial. To miss the second page of the form is to miss legally operative language that causes the "accommodation" to be significantly different from (and in some ways the opposite of) an "exemption." And to describe as an "exemption" the path that applies only to nonexempt religious nonprofits is to get a key legal feature wrong. 

President Obama on Religious Freedom

Here.  An excerpt:

WASHINGTON — President Obama on Thursday scolded China, Iran, North Korea and other countries known for repressing religious minorities and declared that promoting freedom of faith around the world was a central goal of American foreign policy.

Speaking at the annual National Prayer Breakfast, Mr. Obama singled out the government in Beijing and urged it to do more to allow Christians and others to worship. He also called on North Korea to release a Christian missionary held for the last 15 months and insisted that Iran release a Christian pastor held for more than 18 months.

“History shows that nations that uphold the rights of their people, including the freedom of religion, are ultimately more just and more peaceful and more successful,” Mr. Obama told a hotel ballroom audience of 3,500 people. “Nations that do not uphold these rights sow the bitter seeds of instability and violence and extremism. So freedom of religion matters to our national security.”

The president used the breakfast to lavish praise on Pope Francis, whom he plans to visit at the Vatican next month and whose messages on economic injustice around the world have coincided with Mr. Obama’s focus on income inequality in the United States.

“Like Matthew, he has answered the call of Jesus, who said, ‘Follow me,’ ” Mr. Obama said, “and he inspires us with his words and deeds, his humility, his mercy and his missionary impulse to serve the cause of social justice.”

"The Stories [Linda Greenhouse] Tell[s]"

So far as I can tell from this NYT piece by Linda Greenhouse, she is (a) upset that the plaintiff in the case challenging the (unconstitutional) Massachusetts law limiting speech around abortion clinics is genial and appealing and (b) upset that some of the plaintiffs challenging the HHS contraceptive-coverage mandate have the genial and appealing name "Little Sisters of the Poor."  These facts are resulting, she fears, in the wrong "story" being told about these cases.  The right story, in her view, is that "the church" and others are engaged in a "deadly serious and sophisticated campaign, a claim by religion for primacy in the public square. . . .  The church plays a long game."  The right story is that a case brought by a nice little old lady in Massachusetts is a "vehicle in a nationally designed effort to get the Roberts court to reopen settled questions concerning abortion." 

The former is, I'm afraid, Blanshardian nonsense and the latter wrongly suggests that there's something "settled" about Hill v. Colorado case, which most free-speech scholars (left, right, and center) regard as an outlier and incorrect.  

She concludes with this:

Next month, the justices will hear the Hobby Lobby case, the challenge to the contraception mandate by a for-profit corporation that engages in commerce and employs thousands of people. Hobby Lobby has received a good deal of attention, the Little Sisters less so. The next few months will tell us whether the Supreme Court, captivated by the nuns’ narrative, merely stumbled into the role of enabling a school-yard bully, or whether its puzzling behavior signifies a new chapter in a perennial story, the struggle over the role of religion in the country’s public life.

I'm not sure who is the "school-yard bully" -- Hobby Lobby?  Surely not the Little Sisters?  As I see it, the only pushing around that is involved in this case is coming from the Administration, and the only "bully" around to be "enabled" by the Court, is the HHS.  I guess I am reading a different "story."

UPDATE:  From a reader:

“'Sin.' Now there’s a scary word -- or it might be if it bore any relation to reality. But as the government explained, it doesn’t."

  - Linda Greenhouse, "The Stories We Tell," New York Times, 2/5/14

 "The deadliest sin, I say, were that same supercilious consciousness of no sin;—that is death; the heart so conscious is divorced from sincerity, humility and fact; is dead: it is 'pure' as dead dry sand is pure."

  - Thomas Carlyle, On Heroes, Hero Worship and the Heroic in History (1841)

UPDATE:  This from a friend and reader, Prof. Kurt Lash (Illinois):

Linda Greenhouse’s latest effort deserves more notice—and condemnation. Greenhouse begins her editorial “The Stories We Tell” with the perfectly appropriate warning not to let the attractiveness of the party before the court influence the analysis and application of the law.  This is why lady Justice is portrayed as blindfolded—so as not to be swayed by personalities before the court.

But then Greenhouse calls upon her readers (who she hopes includes the Justices) to judge the case according to the real party Greenhouse sees standing in the shadows—The Church.  Don’t think about the parties before the Court, she warns.  Their claims “are not popping up randomly or by accident.”  No, these cases are part of “a nationally designed effort,” by a “school yard bully,” who, with “sustained aggressiveness” “sense[s] weakness in the executive branch and welcoming arms at the Roberts court.”

And why would there be welcoming arms at the Supreme Court?  Greenhouse feigns being “baffled” at the Court’s injunction protecting the Little Sisters while their case is on appeal.  After all, there is no reasonable legal explanation for this “puzzling behavior.”  What, oh what, Greenhouse poisonously wonders, might possibly explain why a majority of the Robert’s Court would protect these Roman Catholic nuns? She’s “stumped.” Her mind’s a blank.

Except her mind is not blank at all.  Her noxious essay is an attempt to paint these cases as driven by the “aggressive" Roman Catholic Church, and warn the Roman Catholic members of the Supreme Court that any ruling in favor of religious liberty will be rightly viewed as imposing their beliefs on the rest of the country.  After all, there is no other reasonable explanation.

Greenhouse is right to see the arguments in these cases as part of “perennial story.”  But the foul smelling perennial in this case is religious bigotry.  “The Church plays a long game,” Greenhouse tells us.  Which Church is that, Linda?  One could ridicule her paranoid fantasy that Rome has somehow arranged to have these cases arrive at the Supreme Court at just the right time when Rome has also managed to place on the Supreme Court a sufficient number of Pope-controlled justice-bots. 

But there is nothing here to laugh at.  Greenhouse has abandoned one of the critical pillars of justice and called upon the Court and the public to judge the application of law according to Greenhouse’s vision of the real party before the Court: The Roman Catholic Church.  It’s a shameful if transparent effort to pressure the Catholic members of the Court and inflame anti-Catholic sentiment in the country. It’s an old story.  A “long game” indeed.

 

Philosophy: Why we can't get along without it

There are Christians, including some Catholics, who imagine that with minds illumined by Christian faith we can get along perfectly well without philosophy. It's not much use, they suggest, especially when it comes to defending ideas about morality and morally-charged issues of law and public policy. Arguments don't cause people to change their minds. And we don't believe what we believe based on arguments anyhow, do we? Sherif Girgis explains the errors of this way thinking in three installments at Public Discourse. The third appeared today. Here are links to all three:

http://www.thepublicdiscourse.com/2014/02/11978/

http://www.thepublicdiscourse.com/2014/02/11980/

http://www.thepublicdiscourse.com/2014/02/11982/