Divine Punishment as a Problem in Theodicy
by Roberta Allen
Part One: Concepts and theories relating to punishment
Punishment, whether legal or divine, needs justification. Because the justification of legal punishment has been given greater consideration by philosophers than has the justification of divine punishment by theologians, the philosophical concepts and 'theories of punishment', (i.e. the justifications) will be used as a basis for considering divine punishment.
There is a certain difficulty in assimilating these two subjects because they have reference to different contexts, namely, in human punishment the penal system and, in divine punishment, theology in general and in particular the afterlife. But there are some basic features which can be considered applicable to both.
Firstly, punishment is imposed because some person has done wrong. In the legal context this is called a crime or offence and in the theological context it is called a sin.(1) The two terms are by no means interchangeable. As Aquinas says, "the commands of human law cover only those deeds which concern the public interest, not every deed of every virtue."(2) However, most crimes are also morally evil and are, therefore, also sins.
Secondly, another basic presupposition of both categories of punishment is freewill and as a consequence, responsibility. Freewill is admittedly a debated topic among philosophers and theologians and responsibility equally debated among criminologists, but, for the purpose of this inquiry, it will be assumed that punishment is only of those who have responsibility for their volitions. One must be cautious at this point in case of an over-simplification of the causes of crime or wrong-doing is allowed to arise. Many factors should be considered: sociological, psychological, inherited etc., but it is possible to say that at least some crimes and all sins are a result of a wrong choice between good and evil.
A definition of punishment
A complete definition will now be made in such a way as to include both legal and divine punishment. The basis of this definition is A. Flew's,(3) but contributions will be included from other theorists who add points of interest.
Flew, in the tradition of Grotius, first suggests that punishment must be an evil, an unpleasantness to the victim. J. Mabbot objects to the use of the word 'evil' in connection with punishment. He maintains that 'evil' carries too much moral flavour and also that it suggests positive suffering.(4) Mabbot states:
The world is a worse place the more evil there is in it and perhaps the more suffering. But it does not seem to me necessarily a worse place whenever men are deprived of something they would like to retain; and this is the essence of modern punishment.(5)
While deprivation may be a more appropriate description of modern punishment this does not necessarily exempt it from being an evil. Nor does the suggestion that 'evil' carries a moral flavour, for in fact the word punishment itself carries a moral flavour. (Like 'evil', punishment is not in itself a moral term but it is suggested that it usually occurs in an ethical context.) While we must eventually come to some conclusion as to whether punishment is an evil, it would be preferable at present to use, as does W. Moberly, the slightly more neutral term 'ill'. (6)
Secondly, Flew says punishment must be for an offence. As seen above. This for our purpose, needs to be extended to include sins.
Thirdly, Flew points out that punishment must be of the offender. Moberly adds, or at least upon someone who is supposed to be answerable for him and for his doings. (7)
Fourthly, punishment must be the work of personal agencies. This does allow for divine punishment although Flew himself is sceptical on this matter. Flew also maintains here that a distinction must be made between punishment and penalties, which are, he says, evils occurring to people as a result of misbehaviour but not of human agency. (8) (E.g. cancer as a result of smoking; this distinction will be explored later in the discussion of whether evil is intrinsically self-destructive).
Finally, flew says that in a standard case punishment has to be imposed by virtue of some authority - if it is an action by an aggrieved person it is revenge.
While the above five points may be an acceptable definition of punishment as an act, K. Baier has pointed out that in fact punishment is the name of only a part-activity belonging to a complex procedure involving several stages. Punishment also implies law-making, penalisation, finding guilty, pronouncing a sentence. (9) In a legal context law-making is a necessary condition, but it is possible to commit a wrongdoing intentionally although no law has been made, in fact it is because certain acts are considered wrong that laws are made in the first place. What is important to note is that punishment is a conditional act and cannot be isolated from its total context.
One last consideration might also be that fundamentally punishment is coercive power and it is optional, in the sense that it is imposed by decision. (10)
The 'evil' of punishment
Already we have seen that there has been some debate over whether punishment is an evil. Part of the problem in that instance was that while in actuality law and morality are distinguished, in the public mind and in an ideal world, and incidentally in the Hebrew Scriptures, they are not. Mabbot, by associating evil with morality, implied that there is only one kind of evil, one having more stress on 'wrongness' than on 'badness'. Two questions arise from this: are there different types of evil? And, what is the nature of an evil which is punishment?
In the dictionary evil as a noun is defined as a sin or a harm. When Flew defined punishment as an evil he intended it to mean a harm in the sense that it caused suffering. He did not intend it to mean a sin. The difference between sin and harm can be illustrated by the traditional theological distinction between 'moral evil' and 'natural evil'. Sometimes 'natural evil' simply means any suffering,(11) but it is usually considered to be evil that originates independently of human moral agents, that is, it is suffering caused by such natural events as earthquakes and similar disasters and disease. On this understanding 'natural evil' cannot be applied to punishment imposed by humans, nor can 'natural evil' being a temporal concept, be applied to divine punishment in an afterlife.
'Moral evil' is evil caused by moral agents; it is often equated with sin. J. Hick suggests that 'moral evil' is evil which we human beings originate, (12) but as J. Crenshaw points out:
'Moral evil' is a relational category, but it is not necessarily limited to the human sphere ..... Base and inhumane treatment of others, as well as manipulation for personal ends, comprises moral evil, regardless of its source.(13)
Although philosophers examining theories of punishment do not usually involve themselves in considerations of forms of punishment, punishment being treated solely as a concept, it can be pointed out that most prisons today, although not necessarily intentionally, are inhumane, and so too is the traditional conception of hell as divine punishment. Therefore, punishment, human or divine, is on balance more likely to be 'moral' rather than 'natural' evil. But if God is somehow involved in 'moral evil', the term cannot be used as a synonym for sin.
There is, however, an objection to using 'moral evil' as a description for punishment; moral evil involves a moral agent - the evil is caused by the moral agent. But in the case of human punishment the people who cause it to happen are, or should be, impartial. It is also generally assumed that God is also disinterested. Can an impartial agent inflict evil? If not, where does the evil come from and what is its nature?
Perhaps this question can be answered by appealing to the distinction made between what is called 'first order evil' and 'second order evil', and is based on the principle of double effect. Aquinas, the originator of the principle of double effect, says:
Nothing hinders one ct from having two effects, only one of which is intended, while the other is beside the intention. Now moral acts take their species (i.e. as good or bad) according to what is intended, and not according to what is beside the intention, since this is accidental ..... (14)
Of crucial importance to the principle of double effect is intention. If the intention is good then the action and its consequences are justified. This is fundamentally the reason why there are theories of punishment.
The three basic philosophical theories of punishment will now be briefly explained. At this stage no evaluation will be made; firstly, because the theories of punishment presuppose that punishment is an evil, and this has not been proved, and secondly, because while appealing to the principle of double effect may justify human punishment this does not necessarily mean it will justify divine punishment.
The philosophical theories of punishment
Although traditionally the theories of punishment are considered separately, in practice lines are not as easily drawn. This is particularly the case with the utilitarian theories of punishment: deterrence and rehabilitation. Utilitarianism arose in the eighteenth century and was originally addressed to social policy as a basis for penal reform and legislation. In the twentieth century it is still probably the most influential philosophy, at least in the penal sphere, and utilitarian principles largely determine present penal policy.
J. Bentham, as the founder of this theory, states:
General prevention ought to be the chief end of punishment as its real justification. If we could consider an offence which has beeen committed as an isolated fact, the like of which would never recur, punishment would be useless. It would only be only adding one evil to another. But when we consider that an unpunished crime leaves the path of crime open, not only to the same delinquent but also to all those who may have the same motives and opportunities for entering upon it, we perceive that punishment inflicted on the individual becomes a source of security for all. That punishment which considered in itself appeared base and repugnant to all generous sentiments is elevated to the first rank of benefits when it is regarded not as an act of wrath or vengeance against a guilty or unfortunate individual who has given way to mischievous inclinations, but as an indespensible sacrifice to the common safety. (15)
Bentham's theory was based on a hedonistic conception of man and that man as such would be deterred from crime if punishment was applied swiftly, certainly, and severely. But being aware that punishment is an evil, he says,
If the evil of punishment exceed the evil of the offence, the punishment will be unprofitable; he will have purchased exemption from one evil at the expense of another. (16)
The basic idea of deterrence is to deter both offenders and others from committing a similar offence. But also in Bentham's theory was the idea that punishment would also provide an opportunity for reform.
Reform in the deterrent sense implied that through being punished the offender recognised his guilt and wished to change. The formal and impressive condemnation by society involved in punishment was thought to be an important means of bring about that recognition. Similarly, others may be brought to awareness that crime is wrong through another's punishment and, as it were, 'reform' before they actually commit a crime.
But, although this is indeed one aspect of rehabilitation, as a theory rehabilitation is more usually associated with treatment of the offender. A few think that all offenders are 'ill' and need to be 'cured' but the majority of criminologists see punishment as a means of educating the offender. This has been the ideal and therefore the most popular theory in recent years. However, there is reason to believe this theory is in decline and Lord Windlesham has noted that if public opinion affects penal policy, as he thinks it does,(17) then there will be more interest shown in retribution in the future.
The utilitarian theories are forward looking; they are concerned with the consequences of punishment rather than the wrong done, which, being in the past, cannot be altered. A retributive theory, on the other hand, sees the primary justification in the fact that an offence has been committed which deserves the punishment of the offender. As Kant argues in a famous passage:
Judicial punishment can never be used merely as a means to promote some other good for the criminal himself or civil society, but instead it must in all cases be imposed on him only on the ground that he has committed a crime; for a human being can never be manipulated merely as a means to the purposes of someone else ..... He must first of all be found to be deserving of punishment before any consideration is given of the utility of this punishment for himself or his fellow citizens. (18)
Kant argues that retribution is not just a necessary condition for punishment but also a sufficient one. Punishment is an end in itself. Retribution could also be said to be the 'natural' justification, in the sense that man thinks it quite natural and just that a bad person ought to be punished and a good person rewarded.
However 'natural' retribution might seem, it can also be seen as Bentham saw it, that is as adding one evil to another, base and repugnant, or as an act of wrath or vengeance. Therefore as we consider divine punishment we must bear in mind, as Rowell says,
The doctrine of hell was framed in terms of a retributive theory of punishment, the wicked receiving their just deserts, with no thought of the possible reformation of the offender. In so far as there was a deterrent element, it related to the sanction hell provided for ensuring moral conduct during a man's earthly life .... (19)
And ask whether God does punish.
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