Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, May 23, 2022

"Punishment among Friends"

Some people think that punishment of criminals is justified by what Jeffrie Murphy called "retributive hatred," where that hatred, as Murphy underscored, is hatred of criminal persons, not just of their crimes.  Christians, however, can never rightly hate persons, and eventually Murphy, who was a Christian, disowned retributive hatred and defended instead a justification of punishment on the basis of agape or charity.  Murphy's account of punishment on the basis of Christian love provides the starting point in my new paper, "Punishment among Friends," defending legal punishment of persons except when mercy, properly understood, precludes it.  The thrust of my argument in the paper is that because, as Aquinas contends, "all law aims at establishing friendship," sometimes law must redress violations of commutative justice by punishing justly convicted malefactors.  Sometimes what the love of friendship requires is punishment for the good of the malefactor and his or her restoration to a rightful place in the community.  Friendship can easily seem irrelevant as a norm for our common life in the civil order as we know it especially today, but Aquinas teaches us that friendship is always to be the governing norm where people live together because charity itself, from the reach of which no one is excluded, is itself a certain kind of friendship.  Bringing together law, love, friendship, mercy, and punishment, this paper aims to show how criminal justice reform animated and disciplined by Christian love would be neither squishy nor vengeful.  A Christian regime of criminal punishment would punish, proportionately, out of the love of friendship except where the judge judged that mercy should instead be employed to restore malefactors to the order of the virtuous.  John Noonan long ago ventured that "the central problem of the legal enterprise is the relation of love to power," and the love of friendship is precisely what Christians can bring to the public square today as the right ultimate criterion for necessary reform of the criminal justice system with its mighty power.  In all of this, Christians but especially Catholics need not be shy about the need for the supernatural to correct and transform the natural, for this is precisely what charity does (cf. Rom. 5:5).    


| Permalink