Did St. Paul have a theory of punishment? In The Mighty and the Almighty, Professor Nicholas Wolterstorff argues that he did. In this post, I'll lay out Prof. Wolterstorff's claims. In the next, I'll consider them and ask some questions about his interpretation and also about the merits of the punishment theory he ascribes to Paul.
Here's the context. In Chapter 8 of the book, Wolterstorff has in mind only one of the two dualities of authority that make up his core thesis--the issue of state authority mediating divine authority. In discussing that issue, he explores the extremely difficult and dense Epistle of Paul to the Romans, and specifically Romans 12 and 13. Here Paul is giving some advice to members of the Church about how they should behave toward and within the various institutions that formed civil society: the family, business relationships, and the Roman empire, for example. In Chapter 12, Paul instructs Church members never to "avenge" themselves, but to "leave room for the wrath of God; for it is written, 'Vengeance is mine, I will repay, says the Lord.'" Here is the text of the first seven verses of Chapter 13:
1. Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God.
2 Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation.
3 For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same:
4 For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.
5 Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.
6 For for this cause pay ye tribute also: for they are God's ministers, attending continually upon this very thing.
7 Render therefore to all their dues: tribute to whom tribute is due; custom to whom custom; fear to whom fear; honour to whom honour.
Wolterstorff says that one standard interpretation of these two Chapters is that 12 contains instructions as to individual conduct, while 13 describes official state action. On that interpretation, the individual is not to "avenge" himself against wrongdoing, but the state may "avenge" that same wrongdoing. Wolterstorff equates "vengeance" with retribution, and so possibly with retributivist reasons for punishment. "The core idea of retribution," he writes, "is paying back evil with evil, redressing the harm done to the victim with an equivalent harm done to the wrongdoer." And in rejecting the standard interpretation of Romans 12 and 13, Wolterstorff claims that retributivism understood in this fashion is completely at odds with Jesus's rejection of this sort of code of reciprocity, a rejection that Paul (at earlier points in Chapter 12 of the Epistle) repeats. From this, Wolterstorff ascribes to Jesus, and so also to Paul, a consequentialist understanding of punishment: "If hard treatment is to be imposed on the wrongdoer, let it be for the sake of achieving some good in his life and/or the lives of others."
But there is a problem with this interpretation. For in Chapter 13, verse 4 of the Epistle, Paul speaks of the government "execut[ing] wrath upon him that doeth evil." How does a minister of justice, who is himself also a minister of God in the Christian understanding advanced by Wolterstorff, execute wrath (God's wrath?) upon the wicked without imposing punishment for retributivist reasons?
Wolterstorff offers the following solution. What this passage means is that the state is empowered to reprove and punish the evil-doer in the way that a parent reproves and punishes his or her children. Government, as the servant of God, has a "God-assigned task": its function is not retribution but the expression of wrath in response to evil-doing, and the concomitant expression of support for the doing of good. Here is Wolterstorff:
As to what God authorizes the state to do, I am reminded of a way of understanding punishment that has recently entered the lists and that I find compelling, the so-called expressive theory....The expressive theory says that punishment of a wrongdoer should not be understood as retribution--redressing harm with harm--but as a way of reproving what he did and of expressing anger at him for having done it. Speaking anachronistically, Paul was employing the expressive theory of punishment rather than the retributive theory in stating what God assigns government to do. (88-89)
Yet Wolterstorff does not believe that Paul is urging the state to express God's wrath; precisely whose wrath the state is empowered to express is left unclear. In fact, in light of the "social benefits that Paul cites of government carrying out its assignment," it seems that the expression of (somebody's) wrath is only one sort of consequentialist justification for state-imposed punishment. Wolterstorff interprets Paul as advocating a more broadly liberal, consequentialist theory of punishment, to include deterring wrongful conduct: "The God-assigned task of government is to exercise governance over the public for the curbing of wrongdoing." (90)
These are the broad outlines of Wolterstorff's interpretation of St. Paul's theory of punishment. In my next post, I will raise some questions both about the interpretation and about expressivist theories more broadly.
Lots of action from the New York Times in the past couple of days. Kevin and Rick have already described Linda Greenhouse's column about the Hobby Lobby and Little Sisters of the Poor cases and her comments about McCullen v. Coakley. The column says what it says, but at least it contains reasons that one can evaluate and then accept or reject.
This editorial, on the other hand, doesn't even give the reader that. The Times finds meritorious Marci Hamilton's argument that the Court should strike down the Religious Freedom Restoration Act as a violation of the Establishment Clause. Though it does not predict that "the Court will go that far," it does seem to believe that the Court ought to. And it further seems to think that the amicus brief authored by Fred Gedicks arguing that the Establishment Clause forbids any accommodation that imposes "signficant burdens" on identifiable third parties makes plausible claims. Even more than that, however, it asserts that these Establishment Clause claims are "the strongest single argument" against the plaintiffs in these cases.
Now, I think the argument is mistaken, and have given reasons in places that the Times neither cites nor acknowledges. But even if I agreed with the argument, I would not believe that it represents "the strongest single argument" against the plaintiffs. That honor quite obviously goes to the government's evaluation of the RFRA claim itself. And the government has devoted nearly all of its briefing to developing that argument--an argument that depends on interest balancing under RFRA, not on a creative, aggressive, maximalist approach to constitutional interpretation. "The strongest single argument" from the government's side is the narrowest argument it needs to win, not the broadest. It is the argument that RFRA does not require these accommodations. That argument may not win, or it may, but it should come as no surprise that the actual litigants are focusing on it.
This is the second in a series of posts on Professor Nicholas Wolterstorff's book, The Mighty and the Almighty: An Essay in Political Theology. In the first post, I described what might be meant, and what Wolterstorff means, by "political theology," and Wolterstorff's project to arrive at a distinctly Christian political theology. Here I want to lay out the core thesis of that political theology.
That thesis can be summed up in the phrase, "dual authorities." Christians, Wolterstorff writes, are subject to the dual authority of Christ and the civil power. And these dual authorities mediate one another.
These are deep waters and Wolterstorff explains and helps the reader by considering an ancient example--that of Polycarp, Bishop of Smyrna, who was martyred in 156 A.D. Polycarp is sought out, arrested, and haled into a stadium filled with people where he is urged by the Roman proconsul to renounce Christ and swear by the genius of Caesar in order to save himself from execution. Polycarp refuses in these words: "For eighty and six years have I been his servant, and he has done me no wrong; how can I blaspheme my King, who has saved me?" Later in the exchange, Polycarp tells the proconsul: "[W]e [Christians] have been taught to render honour, as is meet, if it hurts us not, to princes and authorities appointed by God."
Wolterstorff's thesis depends on a close reading and interpretation of these statements. Unlike those who resist government's coercive power as having no authority at all over them, "Polycarp's resistance was different":
He did not declare that obeying his own interior conscience had higher priority for him than obeying the proconsul. He did not declare that loyalty to his group had higher priority for him than whatever loyalty he might feel toward Caesar, the proconsul, and the people in the stadium....[T]he explicit ground of his resistance was heteronomous. He had a sovereign distinct from Caesar, namely, Christ. The proconsul was demanding that he renounce that sovereign. That he would not do, for his sovereign had saved him. (13)
But Polycarp is not implying that the civil power is not his sovereign, or that Christ is his sovereign instead of the civil power. "No," says Wolterstorff, "he was a citizen of Smyrna; and the proconsul had political jurisdiction over Smyrna. Polycarp was under dual authority. In his person, the authority of Christ and the authority of the emperor intersected. Given the command of Caesar's proconsul to renounce Christ, these two authorities had now collided." (14-15)
What makes the conflict even more complex and more difficult is the existence of other conflicting dualities beneath the surface. For one, Polycarp believed that the princes of the civil authority are appointed by God; yet now those self-same civil authorities demanded that he renounce God (that is, Christ). And for another, there was an institutional conflict at work: Polycarp was a bishop of the church, exercising Christ's authority over the church. His exchange with the proconsul was not merely a personal conflict but represented a collision of institutional authorities. He was one person with dual membership in two authority structures that intersected in him. The key to Wolterstorff's political theology is in understanding the nature of these dual authorities and the depth of their conflicts--dualities which affect everyone (political authority mediating divine authority and yet also being limited and judged by divine authority) and Christians in particular (being citizens of some state and under its authority, while that state is always under God's authority; being members of the church and under the authority of Christ, who in turn is divine).
Finally, it is interesting to read Wolterstorff's comments about the alien quality of all of this to American sensibilities, in which the language of religious liberty has the effect of effacing the problem of dual authority:
Some will find it strange to think of the church in terms of authority. They think of the church as a voluntary organization devoted to sponsoring religious activities. A group of us find ourselves interested in religion, in particular the Christian religion; so we get together and set up an organization for holding worship services and for engaging in a bit of social action. We put in place some organizational structure, call a minister, place ads in the local press, welcome neighbors. We are off and running.
Everything about religion in America conspires to make one think of the church along these lines. Christ as king and the church as an authority structure are nowhere in view. The local government may decide to clamp down on our group for one reason or another--it doesn't like the architectural plans, doesn't like the fact that wine is served to minors, doesn't like the traffic jams. We may resist. But if we do, our resistance will be in the name of religious freedom. We will not declare that Christ is our king and that loyalty to our king requires that we not concede to the government's demands. No Polycarps among us. (16-17)
This semester, the Center for Law and Religion at St. John’s Law School and Villanova Law School are teaming up to host the Joint Colloquium in Law and Religion. The course invites leading law and religion scholars to make presentations to an audience of students, faculty, and other interested members of the community. The schools will be connected in real time by video link so that students and faculty at both schools can participate in a virtual classroom experience.
My colleague, Mark Movsesian, and I are delighted to be hosting the seminar with Michael Moreland. I have listed the presenters, dates, and most of the paper topics below. Please write me a note if you wish to attend.
January 27, 2014 (at St. John’s) Michael Walzer, Institute for Advanced Study The Ethics of Warfare in the Jewish Tradition
February 10, 2014 (at Villanova) Sarah Barringer Gordon, University of Pennsylvania Law School The African Supplement: Religion, Race, and Corporate Law in the Early Republic
February 24, 2014 (at St. John’s) Kent Greenawalt, Columbia Law School Original Understanding: What is Relevant and How Much Does It Matter?
March 17, 2014 (at St. John’s) Donald L. Drakeman, Cambridge University Which Original Meaning of the Establishment Clause is the Right One?
March 31, 2014 (at St. John’s) Kristine Kalanges, Notre Dame Law School Transcendence and the Just Order
April 14, 2014 (at Villanova) Steven D. Smith, University of San Diego Law School Topic TBD
I have a column over at Commonweal discussing the historical practice of legislative prayer, which I claim is part of a broader set of American traditions involving providential benediction. The occasion for the column is the legislative prayer case now under consideration by the Supreme Court, Town of Greece v. Galloway.
It seems an iron law that the more I read my own writing, the more clumsy infelicities of phrasing I find. This piece contains this statement, for example:
At one point in the oral argument, Justice Kagan rightly observed that “when we relate to our government, we all do so as Americans,” not as religious or non-religious individuals. That is true, and legislative prayer is part of that American heritage. It is a mechanism for citizens to acknowledge these limitations—personal and systemic—before they make law and set policy.
Is it true that when people relate to their government, they do not do so as religious believers or nonbelievers, but as "Americans"? If it were true, it might well mean that one could not be both an American and a religious believer or unbeliever. But more than that, the statement implies that there is some sort of Americanism from which our other deepest commitments can and should be peeled off when citizen and state interact.
It would have been better to say: "When we relate to our government as Americans, we do so graced and adorned with all of our commitments, not stripped naked of them. And legislative prayer is part of that American heritage."
But that would have been today's column. Tomorrow's would amend other unpleasing expressions.
Professor Markus Dubber has posted his introduction to a forthcoming volume called Foundational Texts in Modern Criminal Law. The book contains a series of essays on important figures in the intellectual history of criminal law--spanning Hobbes, Beccaria, Blackstone, Bentham, Kant, Feuerbach, Hegel, JMF Birnbaum, Mill, Stephen, Pashukanis, Gustav Radbruch, Wechsler, Glanville Williams, HLA Hart, Becker, Foucault, Nils Christie, and Günther Jakobs. You can find some of the primary texts considered on this very helpful page. In the cases of Birnbaum, Radbruch, Jakobs (and I think also Feuerbach), there are first-time English translations from the German of the works considered. There are also very interesting lesser known works of some of the better known authors. For example, do check out Beccaria's little algebraic gem, "An Attempt at an Analysis of Smuggling." The first paragraph alone is wonderful. I was delighted to contribute to this project with an essay on JF Stephen (my essay focuses on his History of the Criminal Law of England), an early draft of which is here.
Markus uses the introduction to discuss certain thematic threads in a massive work like this. Here are some of his interesting reflections (after the fold) with respect to the organizing perspective of the book. I particularly appreciated his comments about developing a canon of texts in the field, "if not of principles":
It was only a matter of time before this sort of thing was bound to appear, though perhaps it is somewhat disappointing to see it in the pages of US News and World Report. The specific claim seems to be that by granting an emergency stay in the Little Sisters of the Poor case, Justice Sotomayor is waging a "war on women" because she is imposing her Catholic views on the rest of the nation in violation of the law. But that claim is buried within lots of other mud, and I'm afraid I can't do justice to it without letting much of the rest hatch out:
The lady from the Bronx just dropped the ball on American women and girls as surely as she did the sparkling ball at midnight on New Year's Eve in Times Square. Or maybe she's just a good Catholic girl.
The Supreme Court is now best understood as the Extreme Court. One big reason why is that six out of nine Justices are Catholic. Let's be forthright about that. (The other three are Jewish.) Sotomayor, appointed by President Obama, is a Catholic who put her religion ahead of her jurisprudence. What a surprise, but that is no small thing….
Sotomayor's blow brings us to confront an uncomfortable reality. More than WASPS, Methodists, Jews, Quakers or Baptists, Catholics often try to impose their beliefs on you, me, public discourse and institutions. Especially if "you" are female. This is not true of all Catholics – just look at House Democratic Leader Nancy Pelosi. But right now, the climate is so cold when it comes to defending our settled legal ground that Sotomayor's stay is tantamount to selling out the sisterhood. And sisterhood is not as powerful as it used to be, ladies.
Catholics in high places of power have the most trouble, I've noticed, practicing the separation of church and state. The pugnacious Catholic Justice, Antonin Scalia, is the most aggressive offender on the Court, but not the only one. Of course, we can't know for sure what Sotomayor was thinking, but it seems she has joined the ranks of the five Republican Catholic men on the John Roberts Court in showing a clear religious bias when it comes to women's rights and liberties. We can no longer be silent about this. Thomas Jefferson, the principal champion of the separation between state and church, was thinking particularly of pernicious Rome in his writings. He deeply distrusted the narrowness of Vatican hegemony.
Now, as it happens, I am Catholic. And, as it also happens, on the legal merits, I am persuaded that the statutory argument in favor of the Little Sisters of the Poor as to the issue of accommodation of non-exempted nonprofits is strong--stronger than the arguments the government advances. I also believe that a strong free exercise clause claim can be made in light of the individualized exemptions that have been meted out, though to date this argument is generally not being made. These are all legal claims, and so to the extent that any judge agrees with these claims, it would seem to me that they are putting the law first in ruling as they do. Others disagree with my legal views, and they, too, are putting the law first. They are acting and speaking appropriately about their views of the law--in good faith and by their best lights. I think it is a terrible error to believe that anytime a person disagrees with one's legal views, the reason must be that they are acting in bad faith.
I will say that outside of the legal fight, and as to larger political questions, I do not see why exempting the members of "a nunnery" (as the author so tenderly puts it) from the compulsion to be provided with free access to contraception would constitute a Catholic war on women. I am informed that the members of the Little Sisters of the Poor are women. They seem not to want these products. I don't believe anybody is waging a war on anybody else; it degrades the horror of war to speak in these terms. And yet, if anyone is conducting a hostile campaign against women in this particular case, it is those seeking to compel these women to do what they don't want to do.
Furthermore, if the author were even marginally more serious about providing evidence for her claims, she might have investigated how many of the other judges who have granted injunctions in these cases--18 other such courts, by my current count, and more judges than that--are Catholic. If they are all Catholic, is it also her view that they are all imposing Catholicism on the nation in violation of the law? If they are not all Catholic, what explains their legal findings? Are they all imposing their non-Catholic religious views notwithstanding the law? What if some of the judges who granted injunctions have no religious affiliation? Are they also imposing their non-religious views in finding for the Little Sisters? Or is it only when a judge is Catholic that it can be assumed that she is imposing her views? And what about the judges who denied injunctions? Are any of them Catholic? If they are not, are they imposing their views on the rest of us too? If they are Catholic, I suppose one could claim that they are the good sort of Catholic—Catholics like Nancy Pelosi, as the author puts it--judges who don't impose their views at all. Still, it would be useful to have this information in order to assess the cogency of the claims.
I recognize that for people who write columns like this one, arguments of this sort are not likely to be persuasive. Indeed, once Ms. Stiehm identifies the source (me), she will surely dismiss out of hand anything that follows without bothering to read it. That is regrettable, but it follows directly from the reality that Ms. Stiehm is not really interested in law or argument at all. She's interested in rhetoric; unfortunately the rhetoric that interests her is sloppy and misinformed.
Here is a different uncomfortable reality that columns like this should compel us to face. The long history of American hatred of Catholics is alive, and well, and flourishing. It is kept in fine and proud form by people like this, and given space to breathe in all kinds of prominent venues. It will intensify in the months and years ahead. Dark times are coming.
One last post to urge you to register for the Lumen Christi conference tomorrow in Manhattan, to be held at the University Club from 12:00-5:00, and which will honor the thought of the late Jean Bethke Elshtain and consider journalistic perspectives on law and religion. I hope to see you there for fellowship and discussion on a proper winter's day in the city.
For an upcoming conference, I am reading Nicholas Wolterstorff's excellent and eminently readable book, The Mighty and the Almighty: An Essay in Political Theology. In some future posts, I will get into his argument concerning the dual authority of the church and the state, as well as some important counterpoints to his view (he takes Augustine to be one such counterpoint, and this will also allow me to resume my Augustinian posting).
For this first post, though, I thought to explain a little bit about the subject itself (many of our readers will know already, but a sketch may still be helpful). Political theology may be misinterpreted by those who are imbued with the spirit of post-20th-century American constitutionalism to be tantamount to ecclesiastical or clerical rule (or, perhaps, rule by theologians). But it is actually an account of the relationship of divine and human authority in matters of politics and governance. As Wolterstorff puts it: "[A]t the core of traditional political theology was the question of how God's authority is related to the authority of the state." (2) Political theology treats the question, for example, of how a person or a people can reconcile these different authorities and demands in their own lives. And it is Wolterstorff's aim to articulate a distinctly Christian political theology in the book.
Even so, putting the problem of political theology in this fashion may sound unusual to modern ears. Even if God's authority was once a political problem, have we not gotten past all of that? Mark Lilla, whom Wolterstorff cites early in the book, recently explained in his intellectual history of the subject that the God of political theology is actually a "stillborn God"--a God that ought not enter into the political calculations of modernity. Though I wonder whether Wolterstorff is exactly right that Lilla was offering a requiem for political theology (more like an admonition to be mindful of the dangerous endurance of political theology), Wolterstorff presents two cogent reasons for the salience of political theology today.
First, believers in God have reason to attend to political theology because the relationship of God's law to the civil law is a perennial problem for them. And, indeed, there is a long Christian tradition stretching for more than 1000 years (from roughly 500 to 1600) that offered a compelling answer to the problem of political theology--what Wolterstorff calls the "two rules doctrine," which he contests (more on this in future posts).
Second, political theology is not dead; rather, says Wolterstorff, it has been "flying under the radar." (3) Wolterstorff's primary focus here is on some of the writing of Augustine, Calvin, and John Howard Yoder (a twentieth century Christian ethicist), but I might put the point more broadly. Many accounts of political thought have buried within them a collection of assumptions--often not explicitly laid out--of the relationship between the state's power and other powers (perhaps greater powers) that lie outside the state. Attending directly to the ways in which a political system conceives of the authority and power of different realms (including its own) helps to excavate and shine a light on its deepest commitments.
In response to my post on the Eastern District of New York's decision striking down the contraception mandate, and specifically my statement and questions about the third party administrator issue noted at the end of that post, reader Matt Bowman (with Alliance Defending Freedom, which represents Conestoga Wood) wrote me with the following helpful explanation (posted with his permission). If others have more information about the "church plan" issue, I'd welcome it, as it has been insufficiently considered.
As background, self-insured plans by religious non-profit entities have to fill out a different kind of “certification” under the final regulation’s “accommodation.” Their certification doesn’t merely declare a religious objection. It doesn’t even merely mean that upon that certification, as you say, the TPA “assumes the obligation of providing the objected-to products to the employees.” The self-insured certification contains language that specifically designates the TPA to provide the objectionable coverage (also described as promised “payments”). The final regulation even points out that this added language is legally operative: the designation words themselves are what cause the TPA’s obligation to go get the coverage. Without the designation telling the TPA to go get that coverage, the TPA wouldn’t have any duty to be involved. The designation has legally operative power because of preexisting rules in ERISA. So it’s important to observe that for self-insured religious non-profits, there’s a “certification,” but there’s also a “designation”....This designation requirement also gives lie to the government’s mantra that religious non-profits don’t need to “contract or arrange for” objectionable coverage. The designation is, by definition, an act of contracting and arranging for the coverage....Because the designation constitutes legal “magic words,” the regulation goes on to specifically censor self-insured religious groups, by banning them from engaging in additional speech towards their TPAs to persuade them not to provide the objectionable coverage, for fear that such evangelical speech might negate the designation’s magic words. Finally, the regulation tells TPAs that if they get a self-insured certification+designation, and if they provide the birth control coverage, they will get reimbursed plus 10%.
In this context, the government has recently dropped somewhat of a bombshell into the non-profit lawsuits. It has declared that [it] didn’t realize until now that [its] penalty on TPAs does not apply in a “church plan,” because church plans are exempt from ERISA. (It’s important to note that “church plans” are not the same as a church’s plan. A church, which is exempt from the mandate, might have an insurance plan. But “church plans” are a defined category that enroll thousands of non-exempt non-churches, like universities, hospitals, charities, etc., who merely share a religious affiliation.) The government’s revelation has led to bizarre results. The government insists that entities enrolled in self-insured church plans must still file their designations, which contract and arrange for their TPA to obtain the exact coverage the organization objects to. But the government admits that the designation is false: it does not, as claimed on the face of the language, actually trigger ERISA duties on a church plan’s TPA, because these plans are exempt from ERISA.The designation does, however, trigger the TPA’s reimbursement plus 10% if they choose to cover the items. And the government vaguely says it will consider “fixing” this oversight (three years, six regulations, and 1 million public comments later). Of course all of this could have been “fixed” and avoided if religious objectors were exempt at the outset.
The impact of this revelation was on grand display in the EDNY case.
argues that he did. In this post, I'll lay out Prof. Wolterstorff's claims. In the next, I'll consider them and ask some questions about his interpretation and also about the merits of the punishment theory he ascribes to Paul.
