Article SCE

Studies in Christian Ethics

2014, Vol. 27(3) 274-298
The Ethics of Punishment © The Author(s) 2014
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DOI: 10.1177/0953946814530224
A Critical Analysis sce.sagepub.com
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William J. Danaher, Jr.

Huron University College, Canada

Abstract
Taking its cue from Augustine’s hesitancy to punish, this article develops an account of punishment
as an exercise in Christian subjectivity, understanding by the latter term ‘self-knowledge’ and
‘being subject to another’s control.’ Framed in terms of the sacrament of reconciliation and
mediated through the Late Medieval Ecclesiastical Courts, the explicit contours of this Christian
subjectivity gradually eroded as secular practices and theories (retribution, rehabilitation,
deterrence, and restorative) developed during the nineteenth and twentieth centuries. In the
process, the rehabilitative ethos that this subjectivity upheld was lost also. Retrieving it is essential
for understanding contemporary punishment from a Christian perspective.

Keywords
Penal practices, penal theory, rehabilitation, restorative justice, retribution, subjectivity

Introduction
In 408 AD, Augustine of Hippo wrote a letter to his friends, Paulinus and Therasia, on
punishment. In other writings, he argued that the purpose of punishment is pedagogi­
cal—to reform or rehabilitate the offender. It was the shared duty of all: ‘anyone who
would be blameless includes not only doing no harm to anyone,’ he wrote in Book 19 the
City of God, ‘but also restraining from sin or punishing his sin, so that either the man who is
chastised may be corrected by his experience, or others may be deterred by his example.’1
Punishment, in other words, corrects, reforms, and deters. By such means, God disci­
plines souls until they learn to leave behind what distracts them from the undivided love1

1. St. Augustine, Concerning the City of God Against the Pagans, J. O’Meara, trans. (New York:
Penguin Books, 1984), 19.16, 876. For a comparative study of Augustine on punishment, see
Gerard Watson, The Maynooth Review 8 (1983), pp. 32-42.
Danaher, Jr. 275

of God. Indeed, Augustine cannot imagine the Christian life apart from discipline, cor­
rection, reproof, and rebuke—all of which contribute to Christian formation. In the
Confessions, he prayed, ‘your laws ... constrain us, from the beatings meted out by our
teachers to the ordeals of the martyrs, for in accord with those laws it prescribes for us
bitter draughts of salutary discipline to recall us from the venomous pleasure which led
us away from you.’2
When God is the author of punishment, this teaching is unassailable. But once placed
in human hands, things become murkier. Regarding this responsibility, Augustine con­
fided that he was often at a loss:

These are indeed deep and obscure matters: what limit ought to be set to punishment with
regard to the nature and extent of the guilt, and also the strength of spirit the wrongdoers
possess? What ought each one to suffer? What ought he to avoid, not just in case he doesn’t
progress, but even in case he regresses? Again, I don’t know whether more people are reformed
than slip into worse ways through fear of impending punishment (when they fear it coming
from human beings, that is). What do we do when, as often happens, punishing someone will
lead to his destruction, but leaving him unpunished will lead to someone else being destroyed?
All this I confess my sins and ignorance every day.3

Given these reservations, was Augustine right to believe that humans should punish one
another? That punishment was a reliable means of reformation? That the purpose of
punishment was not merely to express vengeance, to suppress vice, to redress crime and
disorder, or to vindicate the moral sensibilities of the community against its offenders?
For generations, Christians have answered these questions affirmatively, and I argue that
exploring this answer provides insight into the ethics of punishment.
Augustine’s hesitation regarding punishment orients this inquiry. Later in the letter, he
wrote that earthly punishment should aim for ‘our own eternal security and that of our
neighbor,’ which are located by the eschatological ‘peace’ expressed in the ‘praise of
God’ proclaimed ‘not only through the spirit but also through spiritual bodies.’4 Earthly
punishment, then, takes place within a wider interplay between God’s presence and
absence, expressed in the eschatological ‘in between’ of the saeculum and the tension
between spiritual life and embodied existence. When expressed from the desire for jus­
tice and the intent to vindicate and not merely to avenge, human punishment approxi­
mates divine punishment, transforming private evil into public good.5 But to exercise
this judgment properly requires that those in authority remain cognizant of their own sin

2. The Works of Saint Augustine: A Translation for the 21st Century: The Confessions I/I,
J. E. Rotelle, O. S. A. (ed.), M. Boulding, O.S.B., trans. (New York: New City Press, 1997),
1.14.23, 55.
3. E. M. Atkins and R. J. Dodaro (eds.) Augustine: Political Writings (Cambridge: Cambridge
University Press, 2001), Letter 95.3, 23.
4. Augustine, Letter 95.6,8, 26-17.
5. Elere I draw form Karl Shoemaker, ‘Revenge as a “Medium Good” in the Twelfth Century,’
Law, Culture and the Humanities 1.3 (2005), pp. 333-58.
276 Studies in Christian Ethics 27(3)

and ignorance. No punishment, however rightly motivated and well intentioned,

approaches God’s full justice.
For Augustine, then, it is not enough that punishment be reformative. Punishment also
expresses a distinctive Christian subjectivity, meaning by this term ‘self-knowledge,’ as
well as becoming ‘subject’ to ‘someone else’s control.’6 Through punishment, the
offender falls under the reforming gaze and control of the punishing authority, whose aim
is to administer just enough discipline to reform and not ruin. But the punisher is also
under judgment, liable to go astray if the punishment is wrongly motivated or unjustly
inflicted. Christian subjectivity, then, does not simply concern the inner state of the soul,
but the wider moral community within which punishment occurs, the boundaries of
which are ultimately established by God’s justice. Punishment is politically inclusive
rather than exclusive, for both punisher and offender remain subjects of God, the just
judge.
Painting with very broad strokes, this article will draw on recent work in the history
of English law to trace the way this view of punishment evolves in late medieval, mod­
ern, and ‘late modern’ punishment. By doing so, I hope to show how Christian accounts
of punishment shaped both criminal law and the practice of punishment in England and
North America. At the same time, this influence was mutual. Christian accounts of pun­
ishment lost their distinctive subjectivity, becoming one of other variants of the ‘reform­
ative’ theory of punishment. Therefore, from a Christian perspective, it is ethically
imperative to explore ways this lost subjectivity can be reclaimed.
Before starting, it is important to define the term ‘punishment.’ Many follow Hugo
Grotius and preliminarily define punishment as ‘the evil that we suffer for the evil that
we do.’7 But punishment is not an isolatable act that can be assessed in terms of a self-
evident structure or its specific purpose as a response to criminal activity. Rather, it is
a ‘social artifact’ that interacts with its surrounding culture—its contested histories,
social conflicts, diverse systems of belief, institutional structures, frameworks of ideas,
hierarchies, demographics, values, sensibilities, affections, and behaviors.8 It is my
position that, when viewed as a social artifact, punishment is fully intelligible only
when viewed in terms of wider networks of belief formed by Christian doctrine and
practice. Even when these beliefs are implicit, assumed, or unacknowledged, they

6. See Michel Foucault, ‘Subject and Power,’ p. 331.

7. Flugo Grotius, The Rights of War and Peace: Book II, R. Tuck (ed.) (Indianapolis, IN: Liberty
Fund, 2005), 2.20.1, 209. The translation is of the Latin: ‘poena est malum passionis quod
infligitur ob malum actionis,’ which is found in philosophical and theological texts from the
seventeenth century onwards. As Oliver O’Donovan notes, ‘Grotius qualifies this definition
as generali significatu: it is the common reference of the term poena, i.e., the initial datum
about which he will later propound a theory. It is not itself a theory.’ O’Donovan, The Ways of
Judgment (Grand Rapids, MI: Eerdmans, 2005), p. 101.
8. David Garland, Punishment and Modern Society: A Study in Social Theory (Chicago, IL:
University of Chicago Press, 1990), p. 20. Garland’s definition of culture is indebted to the
work of Clifford Geertz, in particular his conception of ‘thick’ descriptions of a culture. See
Garland, Punishment and Modern Society, pp. 193-99. See also Geertz, The Interpretation of
Cultures (New York: Basic Books, 1973), pp. 3-30.
Danaher, Jr. 277

remain central to the punishment by shaping sensibilities and wider frames of

meaning.

Late Medieval and Early Modern Punishment and Penance

Others have connected the contemporary practice of punishment to the church. Michel
Foucault, for example, argues that modernity is in large part a result of the proliferation
of the church’s ‘pastoral power’ into the state’s ‘police power.’9 However, it is possible
to trace a clearer connection between these two networks that supplements and, to an
equal extent, subverts Foucault’s analysis. Through the ecclesiastical court system,
which became formalized around 1300 and continued until the abolition of the episco­
pacy in 1640s, there were mutually interacting and interdependent practices of authority,
judgment, and discipline between, on one hand, the church and its courts and, on the
other, the emerging common law courts.10 11 Together, these institutions shaped the practice
of punishment we currently inherit.
As Peter Goodrich argues, within the church there was a ‘public, iconic, and heavy
symbolic presence and ritualistic utterance of the divinity and law—an apparatus of
appearance’ demanding praise and veneration. To converts, its purpose was to instill the
sense of entering ‘newfound space.’ Its ‘grandeur’ conveyed to believers ‘the necessary
communication, affects, and interior commitments that the church as a collective body
requires.’ Through the sacrament of baptism, the ‘convert enters into the living body of
Christ, becomes a child of God, and precisely as a child’ receives ‘affective tutelage,
guidance, and affirmation in the means of membership.’11
This politics of display was repeated in the architecture, vestiture, and pageantry of
the emerging modern state and its judiciary. ‘Vestments, robes, portraits, bars and
benches, ceremonial openings, solemn oaths, flags, insignia, and sacred, or at least care­
fully guarded, sites of publication and promulgation all serve to bolster legal authority by
means of optical indications of authority.’ Legal proceedings were a secular analogue of
ecclesial proceedings. Like the church, secular legal institutions claimed the body,

9. Thus Foucault argues that the technology of incarceration represented the multiplication of
the ‘pastoral power’ the church originally exercised in its concern for ‘individual salvation’—
the will to look ‘after not only the whole community but each individual in particular,’ and
the determination to know ‘the inside of people’s minds’ and to direct their ‘conscience.’As it
will become clear, my genealogy both extends and undermines his account. Michel Foucault,
‘The Subject and Power’ in Michel Foucault, Power, J. Faubin (ed.), R. Flurley et al., trans.
(New York: TheNewPress, 1994), p. 333.
10. Flere I draw from R. H. Flelmholz, The Oxford History of the Laws ofEngland: Volume I; The
Canon Law and Ecclesiastical Jurisdiction from 597 to the 1640s (New York: Oxford, 2004),
pp. 67-309. See also Peter Goodrich, ‘The Empty Tomb: Post-Critical Legal Flermeneutics’,
Nevada Law Journal 10.3 (2010), pp. 607-29. Although the ‘effective jurisdiction’ of the
courts ended in the seventeenth century, they did consider matters of probate until the late
nineteenth century.
11. Peter Goodrich, ‘The Empty Tomb,’ p. 611.
278 Studies in Christian Ethics 27(3)

making the ‘eyes, hands and mouth’ open to ‘inhale and express the aura of legality.’
Thus, ‘reverence’ circulated ‘according to inherited patterns.’12
A similar relationship of mutual influence existed in the practice of punishment.
Organized around confession, self-abasement, and acknowledgement of weakness, infir­
mity, and sin, the church’s sacraments enacted an economy of grace. Following Anselm’s
theology of the Atonement, penitents offered a gift of remorse. As Trisha Olsen notes,
rather than compensation for the past act committed, this gift ‘manifested a wrongdoer’s
inner anguishat being torn from his proper relations by virtue ofhis conduct.’13 Ecclesiastical
courts frequently assigned public penances in lieu of excommunication or the imposition
of a stiffer sentence. As R. H. Helmholz notes, the ‘classic’ form of public penance ‘was
appearance before the congregation on a Sunday (or several Sundays), dressed in a white
sheet, carrying a candle or a wand, and making an open confession of fault.’14
Emerging common law courts repeated the church’s disciplinary process of inner ref­
ormation and satisfaction within its own ‘institutional structure and symbolic order.’15 As
Goodrich notes, ‘to be judged at law was to submit not simply to providence but also to
participate in procedures of trial and appeal which demanded an absolute exposure and
transparency of the soul.’ The penitent ‘subject coming before the law’ appeared ‘in the
mode of subjection.’ Through the mediation of the secular court officers, ‘the law was to
be approached through a confession which would empty the soul and also display a filial
fear’ that ‘would abrogate the subject and render it in its turn and in its trial a cypher of
the judgment of the absolute.’16
Two laws cut across these ecclesial and secular boundaries: sanctuary and benefit of
clergy. Although violated, manipulated, and contested jurisdictionally, both created
space for penance, authorized ecclesiastical courts to hand down milder sentences, and
permitted church authorities to govern their affairs free from interference. However, with
the decline of ecclesiastical courts and canon law beginning in the sixteenth century, the
gradual loss of legal and political privileges by the established church, and the ascend­
ency of the common law, this history was lost, if not suppressed, leaving behind a legal
tradition with a ‘penitential’ character.17
Tracing this history helps explain why the practice of punishment remained open to
Christian influences in later centuries: it was not merely that the established church per­
sisted as a significant, if declining, institution.18 Nor was it due merely to the fact that the

12. Goodrich, ‘The Empty Tomb,’p. 619.

13. Trisha Olson, ‘Sanctuary and Penitential Rebirth in the Central Middle Ages’ in A. Musson
(ed.) Boundaries of the Law: Geography, Gender and Jurisdiction in Medieval and Early
Modem Europe (Burlington, VT: Ashgate, 2005), p. 42.
14. R. H. Elelmholz, The Oxford History of the Laws ofEngland: Volume I: The Canon Law and
Ecclesiastical Jurisdiction from 597 to the 1640s (New York: Oxford, 2004), p. 622.
15. Goodrich, ‘The Empty Tomb,’ p. 620.
16. Peter Goodrich, Law in the Courts ofLove: Literature and Other Minor Jurisprudences (New
York: Routledge, 1996), p. 125.
17. Goodrich, Law in the Courts ofLove, p. 29.
18. For more on the established church in the nineteenth century, see Keith Smith, ‘Law and
Religion’ and Stuart Anderson, ‘The Church and the State’ in J. Baker (ed.) The Oxford
Danaher, Jr. 279

penitentiary, as an engine of social reform inspired by monastic practices, facilitated the

transition from a feudal to industrial society.19 Rather, secular punishment inherited a
distinctly Christian form of subjectivity.
This subjectivity is perhaps clearest where institutional structures were attenuated,
such as seventeenth-century colonial Massachusetts. There, the rituals of punishment—
and the proclamations, confessions, and sermons accompanying them—were at once
punitive and redemptive: punishment not only shamed, but linked the offender to the
community of believers. The ‘sinner-offender,’ David Garland argues, ‘was not con­
ceived as “Other” but rather as a kind of Protestant Everyman, a living example of the
potential for evil which lies in every heart and against which every soul must be vigi­
lant.’20 Though modified by Enlightenment theories that stressed experience, utilitarian
calculus, and sentiment, these contemporaneous insights from moral psychology affected
the technology of imprisonment rather than its intelligibility.21
However, as it is reiterated in succeeding contexts, this subjectivity also changes.
Within its own institutional purview, the church could connect punishment to its litur­
gies. The sacrificial actions inherent in each performed a gift-economy that destabilized
the roles of penitent and punishers.22 This dislocation is inherent in traditional sacramen­
tal practice. Drawing from Rowan Williams, we might say that penitents, like every
communicant, were ‘dispossessed’ of their former identity in order ‘to become possessed
of a different identity’ whereby a ‘distinctive kind of new belonging can be realized.’23
The echoes of this practice recurred beyond the English context. In eighteenth-century
executions in France, Foucault notes that ‘if the condemned man was shown to be repent­
ant, accepting the verdict, asking both God and man for forgiveness for his crimes, it was
as if he had come through some process of purification: he died, in his own way, like a
saint.’ By patiently enduring the ordeal, the ‘criminal’ could be ‘almost entirely trans­
formed into a positive hero.’24

The Rise of the Modern Rehabilitative Theory

During the eighteenth and nineteenth centuries, the focus on punishment shifted from the
politics of the courtroom to the administrative practice of imprisonment. Evangelicals
promoted the penitentiary as part of their project of social renewal. William Wilberforce

History of the Laws of England: Volume XI, 1820-1914, English Legal System (New York:
Oxford University Press, 2010), pp. 153-57, 385-400.
19. See Michael Ignatieff, A Just Measure ofPain: The Penitentiary in the Industrial Revolution,
1750-1850 (New York: Pantheon Books, 1978).
20. Garland, Punishment and Modern Society, p. 207.
21. Garland, Punishment and Modern Society, p. 269.
22. Here I draw, broadly, from Milbank’s appropriation of anthropological studies of gift-econ­
omies to explore sacramental theologies of sacrifice. See John Milbank, Being Reconciled:
Ontology and Pardon (New York: Routledge, 2003), pp. 138-61.
23. Rowan Williams, On Christian Theology (Malden, MA: Blackwell, 2000), p. 209.
24. Michel Foucault, Discipline and Punish: The Birth of the Prison, A. Sheridan, trans. (New
York: Vintage Books, 1995), p. 67.
280 Studies in Christian Ethics 27(3)

and Thomas Buxton worked with Utilitarians to scale down the number of capital
offenses and to institute ‘humane’ methods of imprisonment accompanied by religious
instruction for prisoners.25 Many criticized these reforms. One prison chaplain wrote in
1861 that inmates often ‘went mad under the combined influences of solitude, malaria,
and Calvinism.’26 Nonetheless, the move from punishing the ‘body’ to punishing the
‘mind’ reinforced the sense that theological ideas and approaches facilitated a ‘larger
strategy of political, social and legal reform designed to reestablish order on a new foun­
dation.’27 Evangelicals developed skills for building broad-based coalitions. Between
Evangelicals and Utilitarians, Keith Smith argues, the ‘commonality of earthly objec­
tives greatly exceeded philosophical differences, famously making possible support and
collaboration between the avowed atheist Jeremy Bentham and the saintly Wilberforce
in respect of the proposed building of the former’s Panopticon penitentiary. ’28 As a result
of this collaboration, theological discourse also changed. Evangelicals like Buxton
became ‘adept in marshaling Utilitarian/rationalist arguments favoring penal law revi­
sions’ while ‘never losing sight of the ultimate determinant of success: redemption.’29
In the process, theological accounts of the rehabilitative theory of punishment devel­
oped. Operating behind it was the mandate to make Christianity relevant to a ‘national­
istic, capitalist, technological and increasingly secular order.’30 Operating within it was
the influence of Comte’s positivism and Hegel’s historical idealism mediated by Herbert
Spencer, T. H. Green, and Henry Sidgwick.31 Operating through it was the attempt to
draw from the Christian tradition to provide a vision of humanity that could ‘prove’ the
‘Faith,’ B. F. Westcott preached in 1890, ‘in the wider fields of social life’ to ‘vindicate
our belief in deed.’32

25. For more recent historiography on the 19th century reform movement, see Smith, ‘Law and
Religion’ in The Oxford History of the Laws of England: Volume XI, pp. 132-57. See also
Keith Smith, ‘Punishment: Death and Transfiguration’ in J. Baker (ed.) The Oxford History of
the Laws of England: Volume XIII, 1820-1914, Fields of Development (New York: Oxford,
2010), pp. 138-79.
26. W. L. Clay, The Prison Chaplain: A Memoir of the Rev. John Clay (1861) from Keith Smith,
Eaw and Religion ’ in J. Baker (ed.) The Oxford History of the Laws ofEngland: Volume XI,
1820-1914, English Legal System (New York: Oxford, 2010), p. 138.
27. Ignatieff, A Just Measure ofPain, pp. 207, 210.
28. Keith Smith, ‘Law and Religion,’ p. 134.
29. Keith Smith, ‘Law and Religion,’ p. 135.
30. Gary Dorrien, Soul in Society: The Making and Renewal ofSocial Christianity (Minneapolis:
Fortress Press, 2006), p. 1. Space does not provide me the chance to cover the role of Christian
Socialism during this same period. For the classic study of Christian Socialism, see Maurice
B. Reckitt, Maurice to Temple: A Century of the Social Movement in the Church ofEngland
(London: Faber & Faber, 1947); for the role of Christian Socialism in the development of
Christian Ethics, particularly emphasizing the role of Ernst Troeltsch, see Dorrien, Soul in
Society, pp. 1-20.
31. See Charles D. Cashdollar, The Transformation of Theology, 1830-1890: Positivism and
Protestant Thought in Britain and America (Princeton, NJ: Princeton University Press, 1989).
32. Cashdollar, The Transformation of Theology, p. 435.
Danaher, Jr. 281

In ‘Punishment in Ethics and Theology,’ published in the Expository Times in 1934,

G. F. Barbour presented a crystallizing statement of the rehabilitative theory. Barbour
asked: ‘What are the penalties which follow wrongdoing, and how can they help towards
its conquest?’ If such questions were ‘too absorbing to our forebears’ in the nineteenth
century, they had ‘suffered undue neglect.’ Belying the optimism of a ‘non-theological
humanism’ was the presence of evil. In addition to spectacular evils like the Great War
and the kidnapping of ‘Colonel Lindbergh’s baby,’ there were mundane evils of the ‘pro­
curer, the drug-trader, and the agent of armament firms’ that required redress. Punishment
was essential to ‘the idea of a moral order of the world.’ Further, it was ‘a living interest
in theology,’ because ‘an honest examination of it’ would help ‘religious teachers’ make
the ‘atonement clear to themselves and authoritative to others.’33
Barbour had treated punishment in a monograph published in 1911 on philosophy and
Christian ethics.34 There, he argued for ‘punishment as reformatory.’ The ‘retributive’
theory relied on the tendency of ‘older theology’ to create an ‘antithesis’ between ‘divine
mercy and justice’ as well as ‘forgiveness’ and ‘punishment.’35 Seeking to bridge these
divides, Barbour argued that retribution must be ‘subordinate’ to rehabilitation: ‘for
while recompense may be a vindication of law, or may even be a conclusive termination
of the legal process, it cannot in the deepest sense be the end of law,’ which is ‘nothing
short of its perfect observance.’36
Bentham had argued something similar as part of his deterrent theory of punishment,
but his materialism had been modified by expositors such as John Austin, who made his
work friendly to theists and idealists.37 Consequently, instead of ‘utility,’ Barbour argued
for a ‘teleological’ theory of rehabilitation buttressed by biblical, theological, and philo­
sophical sources, such as the biblical accounts of the ‘correction’ of Israel, Plato’s
Protagoras, Thomas Erskine’s progressive Calvinism, and Hegel’s Philosophy ofRight
(1820).38 Punishment is less a ‘sufficient end in itself, and more as a means to ends that
are moral in the full sense.’39
In the Expository Times, Barbour utilized two additional accounts of punishment. In
A. C. Ewing’s theory of punishment as ‘moral education,’ Barbour found an approach
congenial to his own, as well as a typology that included the ‘deterrent’ alongside

33. G. F. Barbour, ‘Punishment in Ethics and Theology’ The Expository Times, 46:1 (1934), p. 33.
34. George Freeland Barbour, A Philosophical Study of Christian Ethics (Edinburgh: William
Blackwood and Sons, 1911), p. viii.
35. Barbour, A Philosophical Study of Christian Ethics, p. 409.
36. Barbour, A Philosophical Study of Christian Ethics, p. 409
37. See Michel Lobban, ‘Theories of Law and Government’ in J. Baker (ed.) The Oxford History
of the Laws of England: Volume XI, 1820-1914, English Legal System (New York: Oxford,
2010), pp. 80, 84-102. See also Nicola Lacy, State Punishment: Political Principles and
Community (London: Routledge, 1988), pp. 27-48.
38. Barbour’s citations are: Habbakuk 1.12; Lamentations 3.32ff.; Malachi 3.2ff.; Protagoras,
p. 324; Thomas Erskine, The Spiritual Order and Other Papers (Edinburgh: David Douglas,
1884), p. 240; G. W. F. Elegel, Elements of the Philosophy of Right, A. W. Wood (ed.) and
H. B.Nisbet (trans.) (Cambridge: Cambridge University Press, 1991), §§ 91-102, 124-30.
39. Barbour, A Philosophical Study of Christian Ethics, p. 410.
282 Studies in Christian Ethics 27(3)

‘retributive’ and ‘reformative’ theories.40 More influential, however, was R. C. Moberly’s

Atonement and Personality (1901). Moberly based his account on a moral phenomenol­
ogy: it was possible ‘on the basis of imperfect experience,’ to ‘attain a true conception’
of punishment as well as insight into ‘our true nature.’41 Exemplified in the lex talionis,42
retribution protected fairness and equality before the law.43 But punishment required ‘a
conscious personality.’44 The ‘end’ of punishment must therefore be ‘restorative,’ which
means that ‘punishment has really the disciplinary motive and meaning; it is really a
means so to change personalities which are now potentially righteous but actually sinful
as to make them, in consummated antithesis against sin, actually righteous.’45
In other words, punishment was penitential. Moberly allowed that his account was a
‘rough’ approximation of ‘divine justice.’46 But where retribution analogously repre­
sented divine justice, his showed how punishment actually participated in the justice
Christ performed on the cross, in which Jesus enacted a ‘perfect penance’ on behalf of
humanity. Moberly imagined the ‘ideally penitent’ prisoner in Christological terms:
‘behold! The punishment which he suffers’ is a ‘willing sacrifice within the soul’ that is
‘transfigured, and touched with something of the light of what we may dare call atoning
satisfaction.’ Therefore, punishment is ‘a real approach towards re-identification of self,
in sacrifice, with righteousness.’47
Moberly enabled Barbour to develop his teleology of punishment on a much grander
scale: the penal reforms in the nineteenth century were evidence of a social and psycho­
logical process of human evolution. Just as punishment in civilized society passed from
‘an external to an internal’ form, ‘modem’ offenders progress from experiencing punish­
ment physically to experiencing it internally. Thus, ‘the real penalty is not that which a
judge, however high his authority, may impose, but that which is worked out in the
conscience and life of the now repentant wrong-doer,’ who is now a ‘fully awakened and
self-judging moral being.’48 Punishment is communicative: in ‘wisely ordered punish­
ment, the pain inflicted is less important than the social disapproval which pain is meant
to drive home to the conscience, so the end of punishment is the fashioning of a society
where wrong has no place, and the refashioning of characters which for the time have

40. A. C. Ewing, The Morality of Punishment: With Some Suggestions of a General Theory of
Ethics, foreword by W. D. Ross (London: Kegan Paul, Trench, Troubner, 1929); Barbour,
‘Punishment in Ethics and Theology,’ p. 34. Space does not allow me to explore the ways
that deterrent, and therefore more distinctively utilitarian, approaches to punishment emerge
in the twentieth century, though this is certainly the case. See Lacy, State Punishment, 27-48,
156-60.
41. R. C. Moberly, Atonement and Personality (London: John Murray, 1909), p. 2.
42. An ‘eye for an eye, tooth for a tooth.’
43. Moberly, Atonement and Personality, p. 9.
44. Moberly, Atonement and Personality, pp. 6-7.
45. Moberly, Atonement and Personality, pp. 11, 24.
46. Moberly, Atonement and Personality, p. 9.
47. Moberly, Atonement and Personality, p. 19.
48. Barbour, ‘Punishment in Ethics and Theology,’ p. 35.
Danaher, Jr. 283

come under the dominion of selfishness and evil.’ Such is the view of a ‘teleological eth­
ics’ that ‘measures all things by the part they play in building the City of God.’49
Barbour realized that this view depended on Moberly’s account of the atonement:
Christ performed a ‘vicarious’ or ‘perfect penance, ’ in which, aided by the Spirit, human­
ity participates through our own identification and imitation.50 Unlike traditional atone­
ment theology, this vicariousness was moral rather than metaphysical: through observing
the ‘suffering’ of another, one might see ‘his own sin’ and, with ‘divine help,’ address his
own ‘guilt’ by placing himself in a ‘new relation to God and his fellows.’ Although
doubting that this adequately reflected the ‘mystery of the cross,’ Barbour concluded: ‘it
is surely well for us to emphasize those aspects of the Atonement which harmonize with
what we know of punishment.’51

Later Accounts of the Rehabilitative Theory

Barbour’s account marks the rise of the rehabilitative theory, particularly as justified by
Christian theology and practice. Although overlooked by later commentators, subsequent
writers on punishment reached for the same cultural strands to weave their own accounts
in ways that approximate Barbour’s position. Walter Moberly therefore argues that, ‘if it
is to fulfill its purpose, penal pain must ultimately be transmuted into penitential pain.’52
Stephen Garvey argues for a ‘secular’ version of ‘atonement’ that ‘expects wrongdoers’ to
‘repent and make amends.’53 More recently, Antony Duff argues in his communicative
account that ‘it is penitential pain—that is, repentance and amendment of character, or
conversion—that halts the moral debilitation that accompanies wrongdoing.’54
Even those who favor other theories accommodate the penitential aspects of punish­
ment as if it represented the rehabilitative theory. H. L. A. Hart defends a version of utili­
tarianism, but allows that the ‘ideal of reform,’ as ‘repentance or recognition of moral
guilt,’ is obtainable for ‘offenders’ who capitalize on the ‘opportunities presented by the
conviction or compulsory detention.’55 Jeffrie Murphy defends retributivism, but admits
‘repentance’ as ‘a relevant ground for reduction in criminal sentence’56 John Braithwaite
advocates for restorative justice, but allows that ‘atonement,’ defined as the offender
‘bearing’ a ‘tangible burden,’ plays an integral role in social ‘repair.’57

49. Barbour, ‘Punishment in Ethics and Theology’, pp. 75-76.

50. Moberly, Atonement and Personality, pp. 117, 283, 297.
51. Barbour, ‘Punishment in Ethics and Theology,’ p. 78.
52. Walter Moberly The Ethics ofPunishment (London: Faber & Faber, 1968), p. 221.
53. Stephen P. Garvey ‘Punishment as Atonement’, UCLA Law Review 46 (1999), p. 1857.
54. R. A. Duff, ‘Penance, Punishment and the Limits of Community,’ Punishment & Society 5.3
(2003), pp. 299-300.
55. H. L. A. Hart, ‘Presidential Address: Prolegomenon to the Principles of Punishment,’
Proceedings of the Aristotelian Society, New Series, 60 (1959-1960), 25. For more on Hart,
see Lacy State Punishment, pp. 47-49.
56. Jeffrie G. Murphy Punishment and the Moral Emotions: Essays in Law, Morality, and
Religion (New York: Oxford University Press, 2012), 127. See also Murphy Getting Even:
Forgiveness andLts Limits (New York: Oxford University Press, 2003), pp. 39-56.
57. John Braithwaite, ‘Holism, Justice, and Atonement,’ Utah Law Review 1 (2003), pp. 403-404.
284 Studies in Christian Ethics 27(3)

However, Barbour’s account also marks the point at which Christian subjectivity
becomes further attenuated, if not altogether lost. With the help of R. C. Moberly, Barbour
sought to reassert the distinctive voice Christianity speaks regarding punishment. In the
process, they facilitated its assimilation. The practice of penance and the doctrine of the
atonement had once placed the penitent within separated space where a sacramental gift-
economy witnessed to a larger moral community and justice, against which human com­
munity and justice nonetheless falls short.
In contrast, although retaining the language of atonement and penance, Barbour refined
these doctrines to reinforce a normative position already culturally regnant. As David
Garland notes, from the 1890s to the 1970s the rehabilitative theory became axiomatic
and ‘gave rise to a whole network of interlocking principles and practices’ that made pun­
ishment part of the welfare state.58 These included: early release and parole supervision;
the development of the juvenile justice system; psychiatric assessments and individualiza­
tion of treatment protocols; social work with offenders and their families; and re-integra-
tive support upon release. The prison became widely regarded as counter-productive to
reform. Specialist institutions were developed, such as youth reformatories, training pris­
ons, and correctional facilities. Monitoring these ‘custodial regimes’ was a proliferating
class of ‘professional experts’ ensconced in the administrative branch of government, who
gradually took on the authority of judges and eluded public scrutiny.59
Rehabilitative theory itself also evolved to accommodate additional theoretical mod­
els. As Edgardo Rotman notes, four models were developed within the general rehabili­
tative approach: (i) reform through religious and moral renewal; (ii) therapeutic treatment
to cure criminality; (iii) re-education for the poorly socialized; and (iv) building agency
and responsibility through calibrated incentives and deterrents.60 Consequently, although
there remained an enduring theological residue, Christian subjectivity had become
enmeshed and conditioned by other accounts of the subject as patient, as student, or as
citizen. Although these layers of subjectivity ideally complemented each other, the more
Christian subjectivity became tied to these other accounts, the less it could bear witness
its own theological claims and moral vision.
Finally, by integrating his approach to punishment within larger theoretical and nor­
mative discussions, Barbour’s account becomes trapped within an ‘immanent frame,’
foreclosing access to a larger theatre of divine justice or the wider moral community
represented by the sacraments of the church. His remark about the missing ‘mystery’ of
the cross is haunting, as well as his belief that the ‘City of God’ could be attained by a
properly administered punishment policy. Finally, his sense of his audience can only be
viewed ironically. That is to say, Barbour clearly hoped to address multiple publics.
Despite this open stance, however, the venue for publication—the

58. David Garland, The Culture of Control: Crime and Social Order in Contemporary Society
(Chicago, IL: University of Chicago Press, 2001), p. 34.
59. Garland, The Culture of Control, pp. 35-36.
60. Edgardo Rotman, ‘Beyond Punishment’ in R. A. Duff and D. Garland (eds.) A Reader on
Punishment (New York: Oxford University Press, 1994), pp. 288-90. Rotman and I disagree
that these models ‘succeed’ each other historically like paradigm shifts. My own view is that
each contributes to an increasingly complex and layered discourse.
Danaher, Jr. 285

Expository Times—indicates that his audience was composed of fellow church members.
He therefore exhibits a sensibility that would characterize later discussions of punish­
ment. Barbour assumed the role of civic educator, teaching about social history, events,
concepts, and forces that lay beyond the immediate purview of his audience in order to
enlist their support for his own normative position. In the process, he shared skills of
detachment expected of the elite. Missing was any acknowledgment of the complexities
his audience might face administering punishment themselves, or that his audience might
include some who had been punished. Barbour feared that Christian ideas were being
ignored, which he blamed on the church’s ‘neglect’ and failure to be clear and credible.
Ironically, he tried to teach his audience to ‘see’ punishment as the ‘state’ would, with the
‘collective intelligence of decision makers’ occupying the ‘center’ of government.61

‘Late Modern’ Punishment

Beginning in the 1970s, the rehabilitative approach encountered increasing critique and
opposition. In the United States and the United Kingdom, this language of ‘failure’ was
polemical, and its motivations political. In the United States, David Rothman published an
influential article on the ‘Failure Model.’62 Although remembered as referring to the reha­
bilitative approach, Rothman actually coined this term to describe an approach that consid­
ers punishment ineffective and crime unavoidable. Along with discarding the ‘grandiose’
vision of rehabilitation, he advocated ‘target hardening’ of vulnerable areas—a telling anal­
ogy that indicates, in retrospect, the eventual rise of retributivism and its cultural reso­
nances.63 In the United Kingdom, as Nicola Lacy notes, the rise of neoliberal market
economics, contraction of the welfare state, rising unemployment, and the politicization of
the victim’s rights made defending the rehabilitative approach politically infeasible. As a
result, retributivism has become dominant in political discourse and practice, leading to
rising rates of incarceration in both the United States, and England and Wales.64
Given the many institutions formed by the rehabilitative ethos, this language of ‘fail­
ure’ was perhaps inevitable as a by-product of its earlier success. No deep sociological
analysis is necessary to demonstrate that it is impossible to characterize such a complex
network under broad evaluative categories like ‘success’ or ‘failure.’ Indeed, recent
studies suggest that the merits of rehabilitation remain significant.65 It also seems likely

61. Here I draw, respectively, from J.C. Scott, Seeing Like a State (New Haven, CT: Yale
University Press, 1998), pp. 4-5, and Daniel Yergin and Joseph Stanislaw, The Commanding
Heights: The Battle for the World Economy (New York, NY: Touchstone, 1998), p. xi.
62. David J. Rothman, ‘Prisons: The Failure Model’, The Nation, 21 December 1974, pp. 656-59.
For more on the connection between the ‘Failure Model’ and the ‘nothing works’ critique, see
Garland, The Culture of Control, pp. 61-63.
63. Rothman, ‘The Failure Model,’ p. 658.
64. Nicola Lacy The Prisoner’s Dilemma: Political Economy and Punishment in Contemporary
Democracies (Cambridge: Cambridge University Press, 2008), pp. 173-206.
65. F. McNeill, P. Raynor and C. Trotter (eds.) Offender Supervision: New Directions in
Theory, Research and Practice (New York: Routledge, 2012). See also Fergus McNeill,
‘When Punishment is Rehabilitation,’ in G. Brainsma and D. Weisburd (eds.) The Springer
Encyclopedia of Criminology and Criminal Justice (New York: Springer, 2013).
286 Studies in Christian Ethics 27(3)

that, along with other social forces, the cultural residue from nineteenth century Christian
activism has influenced the ease with which the language of failure is deployed. As
Michael Ignatieff argues, the penal reforms of the nineteenth century established reoc­
curring cycles of ‘good intentions confounded by unintended consequences’ initiated by
activists motivated by religious zeal.66
By and large, reflection on punishment in contemporary Christian ethics has bought
into this ‘failure’ thesis. Remarkably, however, constructive proposals have taken posi­
tions that remain determined by the rehabilitative discourse on punishment. Oliver
O’Donovan, for example, presents a position that inverts the theological version of the
rehabilitative theory: he favors the resurrection over the atonement; retribution over ref­
ormation; and politically conservative policies instead of liberal positions.67 Despite
these differences, his view is from the center of government, albeit through a theologi­
cally ‘re-authorized’ practice of ‘judgment.’68
Similar discursive limits are observable in Christian arguments for restorative justice.
Restorative justice originated in an institution built out of the rehabilitative ethos: in
1977, a probation officer in Kitchener, Ontario, used mediation with two offenders who
pleaded guilty to vandalizing 22 properties.69 As the movement matured in the 1980s and
1990s, different forms of community mediation and customary practices in indigenous
communities were claimed as part of restorative justice. Among others, Christopher
Marshall and Timothy Gorringe argue that its guiding principles resonate with theologi­
cal claims about justice.70 Positioning their accounts against the retributive theory, and as
more effective means to achieve rehabilitation, each argues that restorative justice pro­
vides the opportunity for the church to reclaim its paradigmatic witness to the wider
community.71 However, at its core, restorative justice is a pragmatic project in informal
justice. This means that, at its best, it provides the opportunity to place punishment
within the hands of the community most affected by wrongdoing, and this has often
helped communities grow stronger. At its worst, as Declan Roche notes, the informality
of restorative justice degenerates into ‘a kangaroo court in which the poor, the weak and

66. Ignatieff, A Just Measure ofPain: The Penitentiary in the Industrial Revolution, 1750-1850,
p. 209. Here I augment, despite my debt in other respects, Garland’s treatment of Ignatieff’s
contribution. See Garland, Punishment and Modern Society, pp. 124-30.
67. Oliver O’Donovan, The Ways ofJudgment (Grand Rapids, MI: Eerdmans, 2005), pp. 84-124.
Despite his retributivism, he believes that the communicative aspect of punishment qualifies
its implementation: ‘If punishment addresses the offender with a truth to be grasped, we will
wish to shape our punishment, as far as possible, to facilitate, or at least not to obstruct, the
grasping of it.’ See O’Donovan, Ways ofJudgment, p. 118.
68. O’Donovan, Ways of ludgment, 4. See also O’Donovan, The Desire of the Nations:
Rediscovering the Roots ofPolitical Theology (Cambridge: Cambridge University Press, 1996).
69. Declan Roche, ‘Dimensions ofRestorative lustice, ’Journal ofSocial Issues 62.2 (2006), p. 219.
70. Timothy Gorringe, God’s Just Vengeance: Crime, Violence and the Rhetoric of Salvation
(Cambridge: Cambridge University Press, 1996); Christopher D. Marshall, Beyond Retribution:
A New Testament Vision for Justice, Crime, and Punishment (Grand Rapids, MI: Eerdmans,
2001). These are only two of the burgeoning literature on Christianity and restorative justice.
71. Marshall, Beyond Retribution, pp. 31-33; Gorringe, God’s Just Vengeance, p. 270. See also
T. J. Gorringe, Crime: Changing Society and the Churches (London: SPCK, 2004), pp. 124-27.
Danaher, Jr. 287

the inarticulate are left to the mercy of the wealthy, the strong and the smooth-talkers.’72
Finally, practicing punishment on behalf of the state as a strategy for protecting what is
distinctive about the Christian punishment can be self-defeating, leading the church,
ironically, to greater marginalization.73

Seeking the Risen Lord

What, then, should guide Christian reflection on punishment? John Milbank suggests
re-establishing a version of the ecclesial practice of penance. Combined with ‘forgive­
ness’ and ‘restitution,’ it would communicate the imperative that ‘wrongs must be put
right, either by reconciliation and restoration, or, where this is not possible, by other acts
and signs which sufficiently show that we now will again a harmony with our fellow
beings.’ This complex practice would be ‘atoning’—showing that ‘an individual’s sin is
never his alone, that its endurance harms us all, and therefore its cancellation is also the
responsibility of all.’ It would also communicate the distinctive vision of the identity and
justice the church had once expressed through the laws of sanctuary and benefit of clergy.
In this scenario, the church becomes again a ‘house of refuge’ and ‘social space where a
different, forgiving, and restitutionary practice is pursued.’74
While certainly desirable, however, this revived practice captures only one aspect of
the Christian subjectivity that has been lost. As the performance of Christian subjectivity,
punishment originally expressed two central beliefs about offenders. First, they remained
part of the larger moral community, the corpus mysticum of the church. By being sub­
jected to punishment, they were submitting to a process of reincorporation into the social
body, however painful and humiliating their punishment might appear. Offenders were
therefore not ostracized or made ‘other’ to the community. Second, the punishments
administered did not proportionately match the wrongdoing they had done. Rather, pun­
ishment was meant to enfold the offender into a wider sacrificial gift-economy that
would express actions that went beyond retribution and beyond the rhetorical dichoto­
mies of ‘victim’ and ‘offender.’
Further, subjectivity cannot be reduced to the poiesis of church’s liturgies. Rather, the
ecclesial and political communities both provide the context in which authentic Christian
subjectivity is performed and created. Subjectivity, as Augustine described it, provided
the opportunity for a broader analysis of the justice and injustice connected with each
practice of punishment no matter where it takes place. Therefore its performance involves
more than the church serving as a school of virtue, but it must carry over to consider the
ways each act of earthly judgment and punishment inhabits the saeculum.

72. Roche, ‘Dimensions of Restorative Justice,’ p. 635.

73. For example, in her study of a case of clergy sexual abuse of indigenous women in British
Columbia in 1998, Flamilton argues that the use of restorative justice practices removed the
case from the normal court system, which in turn exacerbated the very injustices it sought to
address, placing indigenous claims and concerns outside of the purview the law as it is nor­
mally practiced. See Jennifer A. Hamilton, Indigeneity in the Courtroom: Law, Culture, and the
Production ofDifference in North American Courts (New York, NY: Routledge, 2009), 24-44.
74. John Milbank, Theology and Social Theory: Beyond Secular Reason (Cambridge, MA:
Blackwell, 1990), pp. 421-22.
288 Studies in Christian Ethics 27(3)

For Goodrich, contemplating the enduring penitential character of the secular law pro­
vides the opportunity to reclaim Christian theology as a critical, spiritual, and legal prac­
tice. Transposed into a practice of reading, theology makes ‘associations’ to find, as
pre-critical hermeneutics once did, the deeper, layered meanings in a text. Finally, like the
encounter between the resurrected Jesus and Mary in the garden in John 20:17, theology
encourages a reading of the law that looks for the truth as it is revealed in absence, as both
Word made flesh and Logos of the Father, as risen Lord and empty tomb. In this way, ‘text
becomes an image, the letter a figure, the body an enigma, and poetry law.’75 A similar
mystery, and sense of wonder and trembling, must attend every practice of punishment.

75. Goodrich, ‘Post-Critical Legal Hermeneutics,’ p. 629.

Probing the Logic of Forgiveness,

Human and Divine1

Cristian Mihut
Bethel College, USA

Abstract
Danaher suggests that doxological justice, grounded in an acute receptivity of the generosity
of God, can decenter our current notions of justice. Instead I focus on what might be called
doxological forgiveness, that is, grace-responsive forgiveness. The first section argues that a
conception of forgiveness which I dub repentance-responsive is compatible with and even requires
holding punitive attitudes. The second section sketches the alternative account of grace-responsive
forgiveness. Those who embody this virtue have epistemic and theological warrant to entirely
disavow punitive emotions. The third section argues that God embodies a grace-responsive
forgiveness that undermines retributivism and eclipses repentance-responsive forgiveness.

Keywords
Divine forgiveness, grace, punitive emotions, restorative justice, retributive justice

1. I am grateful to Professor Sarah Coakley for the invitation to attend this terrific symposium,
to Philip McCosker for all his work in organizing it, and to the McDonald Foundation for
making it possible. The original paper has seen revision in light of helpful conversations with
other participants, especially Sarah Coakley, Susan Parsons, Alison Liebling, Carol Steiker,
and Ruth Armstrong. I am especially grateful to Professor Bill Danaher for a stimulating, rich
and erudite paper, and for many helpful exchanges antecedent and consequent to the work­
shop. Finally, I thank the John Templeton Foundation for a generous grant that secured a year
of thinking and writing on forgiveness.
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