Punishment and Pain

Catholic University philosophy prof Bradley Lewis offers the following response to my query regarding a Catholic take on Eugene Volokh's embrace of Iran's approach to executions:

[I]t may be worth noting that barbaric criminal punishment is certainly not unknown in Christendom. Consider the following passage from Blackstone's Commentaries (bk. 4, ch. 6: one can now read Blackstone on-line here)

THE punishment of high treason in general is very solemn and terrible. 1. That the offender be drawn to the gallows, and not be carried or walk; though usually a fledge or hurdle is allowed, to preserve the offender from the extreme torment of being dragged on the ground or pavement. 2. That he be hanged by the neck, and then cut down alive. 3. That his entrails be taken out, and burned, while he is yet alive. 4. That his head be cut off. 5. That his body be divided into four parts. 6. That his head and quarters be at the king's disposal.

One should also observe that there is a note appended to this passage in the text that says the following: "This punishment for treason Sir Edward Coke tells us, is warranted by diverse examples in scripture; for Joab was drawn, Bithan was hanged, Judas was embowelled, and so of the rest. (3 Inst. 211.)." Thus, there is certainly a historical warrant for such punishments within the ambit of Christian jurisprudence.

Be that as it may, I think the Catholic tradition offers ample resources for opposing such practices. Particularly important here is the view of Aquinas, helpfully expounded by John Finnis in "Retribution: Punishment's Formative Aim," American Journal of Jurisprudence 44 (1999): 91-103. The crucial passage in Finnis's paper is this:

The essence of punishments, as Aquinas clearly and often explains, is that they subject offenders to something contrary to their wills--something contra voluntatem (citing Sentences, d. 42, q. 1, a. 2c; Summa theologiae 1a2ae, q.46, a. 6, ad2, and 1a, q. 48, a. 5c, and 1a2ae, q. 87, aa. 2c & 6c). This, not papin, is of the essence. Why? Because the essence of offenses is that in their wrongful acts offenders "yielded to their will more than they ought" (citing Summa theologiae, 1a2ae, q. 87, a. 6c), "followed their own will excessively," "ascribed too much to their own preferences"--the measure of excess being the relevant law or moral norm for preserving and promoting the common good. Hence the proposition foundational for Aquinas' entire account of punishment: the order of just equality in relation to the offender is restored--offenders are brought back into equality--precisely by the "subtraction" effected in a corresponding, proportionate suppression of the will which took for itself too much." (pp. 98-99; I've ommitted most notes)

It's worth noting that in the essay Finnis is opposing Aquinas's view especially to that of Nietzsche as stated in On the Genalogy of Morality (2d treatise). Finnis' point, then, is that pain (if there be pain in some punishment) is an accidental feature and certainly not something inflicted for its own sake. Considerations about just what constitutes a proportionate suppression of an offending will in the context of the overall common good are decisive. At a minimum, it seems to me that the effect of torture not on the one tortured but on the torturer and on the whole community is enough to abolish punishments that involve torture. Of course, it should also be noted that Finnis's points here are not theological, but simply philosophical so far as I can tell. I should think that explicitly theological considerations would only add to the weight of the argument.