Ted Grimsrud

3. The Logic of Retribution and Its Consequences

By Ted Grimsrud

In calling this book, I make a play on the word “healing.”  I use it in two senses—as a call to heal our understanding of “justice” and its underlying theology, and as a description of how authentic justice (and theology) might be sources for healing brokenness in our world.

To think of healing our understandings of justice and theology, we must first begin with a diagnosis of the problem.  This chapter will address that concern.  Then, we will rethink justice and theology in ways that makes them resources for healing.

Retribution and Theology

Almost all violence emerges with some kind of rationale that justifies its use.  Warfare, capital punishment, and corporal punishment all follow a self-conscious logic.  At the core of this “logic” usually rests a commitment to the necessity of retribution, justifying violence as the appropriate response to wrongdoing.  When wrongdoing violates the moral order, “justice” requires retribution or punishment, repaying wrongdoing with pain.

The legitimacy of retribution seems to be a cultural universal in the United States.  Where does valuing retribution come from?  We find deeply ingrained in our religious consciousness the belief that retribution is God’s will.  As Timothy Gorringe shows in God’s Just Vengeance, we cannot deny the close link between Western Christianity and strong support for retribution.

“The logic of retribution” underlies many rationales for the use of violence.  In “the logic of retribution” God is understood most fundamentally in terms of impersonal, inflexible holiness.  God’s law provides the unchanging standard by which we measure sin.  According to this framework, human beings are inherently sinful.  God’s response to sin is punitive.  Jesus’ death on the cross is necessary as a sacrifice to provide the only basis for sinful humans to escape deserved punishment.   Most violence is justified as in some sense being an expression of this deserved punishment (“punishment” defined as inflicting pain in response to wrong-doing).

The theological rationale for punishment rests on the view that appropriate punishment reflects God’s character.  The first, and most basic, attribute of God is holiness—God inability to countenance any kind of sin.  If God has contact with sin, God must destroy it immediately.

Theologian Millard Erickson presents it this way: “The nature of God is perfect and complete holiness.  This is…the way God is by nature.  He has always been absolutely holy….Being contrary to God’s nature, sin is repulsive to him.  He is allergic to sin, so to speak.  He cannot look upon it” (Christian Theology, 802).  Human beings have been told what we must avoid doing in order to keep from violating God’s holiness.  When humans sin, we diverge from God’s laws and sin directly against God (Christian Theology, 803).  When human beings violate God’s holiness, our sin makes God angry.  God must (due to God’s holiness) punish sin.  Violated holiness must be satisfied.

According to the logic of retribution, God’s inflexible holiness is basic, and human beings invariably violate that holiness.  Because of this holiness, God may not freely act with unconditional mercy and compassion toward rebellious human beings.  Simply to forgive would violate God’s holiness.  Compassion without satisfaction is not possible for God.  Erickson asserts: “For God to remove or ignore the guilt of sin without requiring a payment would in effect destroy the very moral fiber of the universe” (Christian Theology, 816).

Justice, in this framework, works to sustain the moral balance of the universe.  If we upset the balance, justice requires payment to restore the balance.  This payment is made through punishment, pain for wrongdoing.  The doctrine of the atonement enters here.  Due to the extremity of our offenses, the only way God can relate to us is if there is death on the human side to restore the balance.  The only way this can happen is through the enormity of the death of God’s own son, Jesus, whose own powerful holiness balances the unholiness of all of humanity.

Human beings, when they confess their own helpless sinfulness, may claim Jesus as their savior from God’s righteous anger.  Jesus satisfies God’s retributive justice (pain for wrongdoing) on our behalf.

Within the logic of retribution, salvation (defined as the restoration of harmony with God) results through violence.  The basic nature of the moral universe as founded on impersonal holiness requires such violence.  Salvation happens because God’s holiness is satisfied through the ultimate act of violence—the sacrificial death of Jesus Christ.  In this view, God is no pacifist.  In fact, God’s plan requires that God’s own Son be violently put to death.

In light of this understanding of the nature of God and of the fundamental nature of the moral universe, the logic of retribution indeed leads to acceptance of “justifiable violence.”

Retributive Responses to Crime

Punishment involves, by definition, the intentional infliction of pain and is a form of violence.  Punishment by the state requires justification as it involves violence.  We normally consider violence to be morally and socially unacceptable; hence, violence requires a rationale.

In the criminal justice tradition of the Western world, justifications given for punishment have been tied to an understanding of ultimate reality that believes the moral universe requires retributive justice when natural or divine laws are violated.  Such “retributive justice” restores the moral balance.  Given its religious roots, Western culture applies a particular understanding of God as ultimate reality: retribution is needed to “satisfy” the need God has that violations be paid for with pain.  When someone commits a wrong, it is assumed, the central question of justice is “What does she or he deserve?”  And we assume the answer will be pain.

So, the issue of punishment (authorized human beings inflicting pain on other human beings) is theological as well as philosophical and political.  Punishment has to do with how human beings understand the world we live in, the values by which we shape our lives.  The concept of punishment as justice follows from beliefs about God and God’s character.

The close connection between Western political philosophy and Christian theology dates back to early in the fourth century with the first “Christian” emperor, Constantine.  The work of Augustine at the end of that century gave it powerful theological grounding.  Western concepts of justice were decisively shaped during the Middle Ages through an interaction between Christian theology and newly emerging concepts of law.   The theology/law interaction deeply influenced Western culture as a whole and helped to reinforce a retributive view of justice (see Ted Grimsrud and Howard Zehr, “Rethinking God, Justice, and the Treatment of Offenders”).

Part of the theology underlying retributive justice speaks of how God was (and is) understood.  There are some key aspects of the view of God generally characteristic of medieval Europe that shaped (and were also shaped by) the emerging punitive practices of criminal justice.  They continue to be foundational in present-day practices of retributive justice.

This view of God provides the basis for understanding God to will violent punishment.  God’s will for violent punishment provides a crucial impetus for the overriding of our need to justify killing or in other acts of violence toward human beings.

Timothy Gorringe makes a strong case for the atonement theology of Anselm of Canterbury (c.1033-1109) providing a crucial link in applying this view of God to the practice of punitive criminal justice. However, surely the roots of such an application of these theological themes go to Augustine.  The key impact Greek philosophy had on theology may be seen in emerging notions of God’s impassivity, the growing abstraction of concepts of justice, and the objectifying or “othering” of offenders (in Augustine’s case—and in the following generations—especially the objectification of “heretics” providing the basis for their severe punishment).

In the early Middle Ages, the church, as it struggled with the state for dominance of European society, utilized the law of the later Roman Empire as its instrument for solidifying its authority.  It merged its theology with this newly rediscovered legal system to create canon law.  Secular authorities, in their turn, followed suit (see Zehr, Changing).

The Greek-influenced theology provided a notion of God’s impersonal holiness and retributive response to violations of that holiness.  This theology merged with Roman legal philosophy, which was also centered on impersonal principles.  Instead of being based on custom and history, law in this perspective stood alone.  From the base of Roman law, the church built an elaborate structure of canon law, the first modern legal system.

By providing for prosecution by a central authority, the church established a basis for attacking both heresy and clerical abuse within the church.  The extreme expression of this new approach was the Inquisition in which representatives of the Pope ferreted out heretics and tortured them in order both to obtain evidence and to settle accounts.

No longer was the individual the primary victim of crime.  An entire moral order was the victim, and the central authority was its guardian.  Wrongs, no longer simple harms regarding redress, became sins requiring retribution. The punitive practices that followed from such retributive logic diverged greatly from the approach of the earliest Christians.  In the early church, wrongs were seen as wrongs against persons.  In Matthew 18, for instance, wrongdoers are to make it right to the victim, then the obligation is loosened in heaven.

However, in the medieval understanding, wrongs came to be seen as against God’s moral order and against the sovereign, who was a legalistic, punishing figure.  God took the place of the victim, and salvation became a matter of appeasing an angry God.

God’s punishment was portrayed as so awful that all our attention needs to be on saving the sinner from punishment, leading to ignoring the needs of the victim.  This theology—as did the emerging legal system—focused on dealing with the offender.

Justice became a matter of applying rules, establishing guilt, and fixing penalties—without reference to finding healing for the victim or the relationship between victim and offender.  Canon law and the parallel theology began to identify crime as wrong against a moral or metaphysical order.  Crime was a sin, not just against a person but against God.  The church has the role purging the world of this transgression.  It was a short step to see the social order as willed by God and crime as sin against this social order.  Increasingly, focus centered on punishment by established authorities as a way of doing justice.

By the end of the sixteenth century, the cornerstones of state justice were in place in Europe.  They drew deeply from the underpinnings of retributive theology.  New legal codes enlarged the public dimensions of certain offenses and gave to the state a larger role.  Criminal codes began to specify wrongs and to emphasize punishment.  Some of these punishments were overwhelmingly severe, including torture and death.  Such understandings of state justice readily crossed the Atlantic with the colonizing of North America.

Enlightenment thought and post-Enlightenment practice increased the tendency to define offenses in terms of lawbreaking rather than actual harms.  If the state represented the will and interests of the public, it was easier to justify defining the state as a victim and giving up to the state a monopoly on intervention.  Most importantly, the Enlightenment provided new objectivity in the practice of punishment.

Enlightenment thinkers did not question the idea that when wrong things occur, pain should be administered by the state.  Instead, they offered new justifications for state-initiated punishment.  They instituted more rational guidelines for administering pain.  And they introduced new mechanisms for applying punishment.

The primary instrument for applying pain came to be the prison.  The reasons for the introduction of imprisonment as a criminal sanction during this era are many.  However, part of the attraction of prison was that one could grade terms according to the offense.  Prisons made it possible to calibrate punishments in units of time, providing an appearance of rationality and even science in the application of pain.

The retributive model of justice reflects a movement that transformed Western culture between the eleventh century and the present.  Through this process, crime came to be defined as against the state, justice became a monopoly of the state, punishment became normative, and victims were disregarded.  But it was not a simple matter of theology shaping emerging criminal law or vice versa.  The influence went both ways, with law and theology shaping each other.

Developing penal theory, based partly on Roman law, helped reinforce the punitive theme in theology—e.g., a satisfaction theory of atonement—that emphasized the idea of payment or suffering to make satisfaction for sins.  Biblical interpretation was biased in that the Latin translation of the New Testament caused it to be read through the lens of Latin law. According to the New Testament, Christ’s death was intended to end retribution.  However, the later reinterpretation, including “satisfaction theology,” worked toward the opposite—desensitizing westerners to, and even justifying, judicial violence.

Retributive theology, which emphasized legalism and punishment, deeply influenced Western culture through rituals, hymns, symbols.  Timothy Gorringe, in God’s Just Vengeance, suggests that an image “of judicial murder, the cross, bestrode Western culture from the 11th to the 18th century,” with huge impact on the Western psyche.  It entered the “structures of affect” of Western Europe and “in doing so, …pumped retributivism into the legal bloodstream, reinforcing the retributive tendencies of the law”(224).  The result, at minimum, was an obsession with retributive themes in the Bible.

A kind of historical short-circuit occurred in which certain concepts were taken from their biblical context, interpreted through the lens of Roman law, then used to interpret the biblical text.  The result was an obsession with the retributive themes of the Bible and a neglect of the restorative ones—a basic theology of a retributive God who desires violence.  As we saw above in chapter two, the consequence of this theology and the criminal justice practices it encourages, have been disastrous.  Hence, we have need for healing justice and theology.

Against Retribution

A crucial step in breaking free from the destructive dynamics of violence responding to violence is to recognize that the notion of ultimate reality that underlies the retributive justice paradigm, drawn from a particular notion of God, is a human construct.  These ideas about God are ideas human beings have drawn from human investigations of the world and, especially in the West, of the Bible and Christian tradition.

Timothy Gorringe’s “archaeology” of the impact of Anselm’s theology on penal practices in the West in God’s Just Vengeance provides a good example of such recognition.  Gorringe helps bring to the surface the interplay between human culture and humanly constructed theology in formulating a rationale for punitive criminal justice practices.

All theology, in the broad sense of our views of ultimate reality, is a human construct.  To quote Gordon Kaufman from In Face of Mystery: “All understandings of the world and of human existence are human imaginative constructions, grown up in a particular historical stream to provide orientation in life for those living in that history.  But at any given time it is always an open question whether the conceptions and values and perspectives inherited from the past remain suitable for orienting human existence in the new present; this is a question to be investigated, never a position which can simply be taken for granted” (43).

The notions of God and ultimate reality that underlie the retributive paradigm outlined above are not set in concrete.  The ever-deepening and destructive spiral that results from responding to wrongdoing with violence need not be inevitable.  The spiral may be resisted, even broken, in part because its ideological basis has no ontological standing.  Retributive theology is simply based on human ideas—ideas that may be challenged and refuted.

Retributive notions are the result of human reflection and human application.  If these constructs contribute to brokenness instead of healing, furthering the spiral of violence instead of fostering genuine peace, they need to be deconstructed and replaced.

For Christians, recognizing the humanness of all theology does not leave us without criteria for ascertaining better and worse theological constructions.  We need not fatalistically sink into moral relativism.  Our confession of Jesus as the definitive revelation of God gives us, in the biblical story that culminates with Jesus, a clear sense of direction concerning which theologies contain truth and which do not.

Ironically, given the roots of our predicament in “Christian” theology, if we would return to Christianity’s founding documents, the writings of the Bible, we may find healing.  Should we try to read them afresh, free from the filters of the later retributive paradigm of Christendom, we might well discover the bases for a very different understanding of justice, ultimate reality, and God.  This alternative reading of the Bible provides the basis for constructing a new understanding of justice.  We may call this new understanding “restorative” justice rather than retributive justice.  Restorative justice offers us a different perspective on how we may respond to violence.  Perhaps with a new perspective, we may be able to imagine responses to violence that break the cycle, striving for the healing rather than the punishment of wrongdoers.

To put it another way, the source of our problem might actually provide a way to overcome the problem.  Dutch law professor Herman Bianchi has suggested in his book, Justice as Sanctuary, that we should apply “homeopathic theory” to our situation.  He states that maybe it will take a dose of what made us sick to cure us.  Since an interpretation of theology got us into this “illness” (as we have outlined above), Bianchi suggests that it may well take a dose of theology to heal us (2).

In what follows, I will be trying to provide some resources for the work Bianchi suggests may be necessary—a biblical and theological rationale for rejecting the logic of retribution in favor of a logic of restorative justice.

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