Friday, September 18, 2020
Jeffrie Murphy, a wonderful philosopher of criminal law and ethics, has died. One of the many things about which he wrote insightfully and with penetration concerned the relationship of retributivism and Christianity, as in his excellent book, Getting Even: Forgiveness and Its Limits (see the final Chapter 9) (2003).
Here is a little something from his book chapter, "Some Second Thoughts on Retributivism," in the collected volume of essays, Retributivism: Essays on Theory and Policy (Mark D. White, ed. 2011), which shows both the power and the danger of Murphy's distinctive (and, to my mind, highly persuasive) account of retributivism:
I moved away from regarding desert merely as legal guilt and also from regarding it as merely owing a debt. But I still had very strong retributivist intuitions--and was even prepared to defend some degree of vengeance and, in the book Forgiveness and Mercy that I joint authored with Jean Hampton, to defend an emotion that I called "retributive hatred." Gradually I began to realize that what had always really drawn me to retributivism was some version of Kant's idea of punishing not just wrongdoing, but human evil--vile deeds performed by people of "inner viciousness." I learned that such a notion had even found its way into American homicide law where phrases such as "cruel, heinous, and depraved" and "flowing from a hardened, abandoned, and malignant heart" occurred in statutes and in sentencing guidelines. This appealed to me.
Such a strong notion of just deserts is, of course, in some ways a secular analogue to traditional notions of divine justice--the judgment that God will administer in the Last Assizes. Indeed, Michael S. Moore (the legal philosopher, not the maker of propaganda films) defends a robust version of retributivism very like the one that I am sketching here but claims that if he believed in God, he would not be so concerned to organize secular systems of criminal law around retributive values. As an atheist, however, he sees no other way to target moral desert in punishment and regards this value as too important to leave unrealized. This analogy with divine punishment is interesting; but it should, I now believe, alert us to some dangers in thinking of secular punishment along these lines. It is not for nothing that we often find ourselves condemning people who--as we put it--"play God," and even Scripture famously teaches, "Judge not that ye be not judged."
The Living Bible, that wonderful source of unintended theological humor, once rendered (if I recall correctly) that biblical recommendation as, "Don't criticize, and then you won't be criticized." But the true point of the passage is surely not a prohibition against making any critical moral judgments at all, but is rather a caution against making final judgments of deep character to declare any fellow human being as simply vermin or disposable garbage--evil all the way down--and a legitimate object of our hatred.