From the December, 2001 issue of Touchstone

The Sword of Justice by J. Daryl Charles

The Sword of Justice

J. Daryl Charles on Revenge & Retribution

The recent terrorist bombings, unprecedented in their magnitude, radically altered the way most Americans communicate. In the weeks since the attacks, even people of no particular religious conviction have tended to speak of mass murder in terms of “evil.” Before September 11, the term “evil” was not a part of the vocabulary of most Americans.

This shift is noteworthy, given the moral evasiveness that characterizes contemporary American culture. When we have not denied that evil exists, we have typically minimized it, whitewashed it, medicalized it, or defined it downward. At the same time, we have grown accustomed to accusing people of “judgmentalism” who insist on fixed standards of right and wrong.

But this moral state of affairs did not appear overnight, nor did it occur in a vacuum. Among behavioral theorists, the concept of retribution—indeed, the idea of punishment of any sort—has been called into question for decades. Current penology emphasizes neither deterrence nor retribution but prevention, psychiatric treatment, and, more recently, biomedical intervention.

When in 1993 social scientist James Q. Wilson, in his important book The Moral Sense, criticized anthropologists for their inability to condemn the practice of cannibalism on moral grounds, one criminologist was incensed. Prof. Gilbert Geis—a former president of the American Society of Criminology—retorted that in some cultures, cannibalism is a “valued, even sacred activity.”

“The consumption of human flesh,” he went on to argue, can also be “a physical channel for communicating social value” since it “ties together one generation to the other by virtue of sharing certain substances.” In the end, the criminologist could only huff and fume—with the head-hunting chieftain—that “Christianity spoils our feasts.” For the criminologist, the greater outrage was that Wilson had dared to affirm a universal “moral sense,” with its implicit proscription of murder.

But let us hope and pray that the events of September 11—and those that are sure to follow, for they will follow—will purge our society of its uninhibited excuse-making, of which people like Lorena Bobbitt (“Let the healing begin”), Tanya Harding (“I know I’ve let you down, but I’ve also let myself down”), the Menendez Brothers (“It was only a preemptive strike”), O. J. Simpson (“At times I’ve felt like a battered husband”), and Bill Clinton (“It all depends on what the word ‘is’ means”) are merely representative. Tragically, nowhere is the American tendency toward obfuscation and denial greater than in the case of violent heinous crime.

Murder? Well, blame it on the knife. At some point, Americans will need to acknowledge the reality of moral evil as well as the fact that moral evil, which ruptures the social order, incurs a public debt that must be paid.

Retributive Justice

Although there is much talk in contemporary therapeutic culture about “social justice,” the concept of justice has largely lost its meaning. Justice—that cardinal virtue and moral tissue by which and in which a moral society coheres—requires that crimes be punished and that criminals suffer temporal consequences proportionate in their magnitude to their crimes. Evil incurs a public debt that is only addressed adequately by retributive justice.

The moral outrage that is expressed through retributive justice is first and foremost rooted in moral principle, not mere emotional outrage or hatred. Its outrage is the expression of abiding moral markers—for example, “Thou shalt not murder.”

The nature and extent of retribution are lodged in two unbending ethical realities: the degree of wrongness of the criminal act and the degree of the party’s criminal responsibility in committing such acts. Retributive justice, then, requires that wrongdoers get no more but no less than what is proportionate—or just—to their crimes.

But someone is likely to object: Isn’t retribution merely a pretext for vengeance and the retaliatory impulse? Isn’t the United States at the present time guilty of blood-thirst, in the final analysis only wanting to exact vengeance? And isn’t it impossible, in practice, to distinguish between vengeance and retribution? No. The retributive act distinguishes itself from revenge or vengeance in four important and unmistakable ways.

Whereas revenge strikes out at real or perceived injury, retribution speaks to an objective wrong. Whereas revenge is wild and “insatiable,” not subject to limitations, retribution has both upper and lower limits, acknowledging the moral repugnance of assigning draconian punishment to petty crime, as well as assigning light punishment to violent, heinous crime.

Whereas vengeance has a thirst for injury and delights in bringing evil upon the offending party—the avenger will not only kill but rape, torture, plunder, and burn what is left, deriving satisfaction from its victim’s suffering—retribution has as its goal a greater social good and takes no pleasure in punishment. And finally, whereas revenge will operate out of the retaliatory mode due to something done to the avenger or his group, retribution is impersonal and therefore demands impartiality, and is not subject to personal bias (for this reason Lady Justice is often depicted as blindfolded).

Retributive justice, when properly understood, serves a civilized culture in several important ways. It isolates individuals who endanger the community; it expresses social outrage at morally perverse acts; it controls the extent to which the citizenry is victimized by criminal acts; it rewards the perpetrator proportionately with consequences befitting the crime; and it rehabilitates the offender by forcing him to reflect on the grievous nature of the crime. Each of these elements is critical in preserving the social order.

Moral Intuitions

When we express social outrage at morally heinous acts, we are responding to moral intuitions; it is virtuous, not vicious, to feel anger at moral evil. In truth, if we do not express anger and moral outrage at evil, something is very wrong with us. To affirm retribution, which is integral to the history of Judeo-Christian moral thinking and foundational to any self-governing society, is not to abandon one’s belief in mercy or forgiveness. Rather, it is to acknowledge the difference between private and public spheres and to recognize that mercy does not release the public demands that justice imposes.

The moral philosopher Oliver O’Donovan has wisely cautioned against driving a wedge between “justice” and “retribution,” in the end reducing “justice” itself to incoherence. He prefers to distinguish between retribution and “retributivism.” His affirmation of the moral underpinnings of retributive justice is important in light of the widespread and mistaken notion of forgiveness that exists among both religious and non-religious pacifists. In the name of “forgiveness,” they conflate the demands of justice with the release of criminals from the consequences and public debt of their crimes.

In Judeo-Christian ethics, forgiveness is predicated on the offender’s contrition and repentance. Moreover, the biblical teaching on forgiveness occurs in the context of personal relationships, not duties of the state or magistrate. Where social evil occurs, a public debt is incurred, and judgment—which is to say, the execution of justice—ensues, regardless of whether it applies to individuals or to nations.

In his provocative essay “Payback: Thinking about Retribution” in Books & Culture, O’Donovan describes the necessary tension between justice and mercy that must be preserved and not loosened:

In Christian thought retribution is one pole of a dialectic with forgiveness. One reason, indeed, that Christians have insisted on retributive justice (when they have insisted on it) is that if one pole is lost, the opposite pole will be lost, too. The theological doctrines of forgiven sin, redemption from punishment, reconciliation of the offender with the offended God, those and nothing else are what have held the philosophical notions of desert and retribution firmly in place.

What we have labeled “retributive justice” O’Donovan calls “corrective justice” or adjudicative justice,” i.e., justice that expresses itself in the correcting of ruptures or imbalances in society or between nations. And while individuals or groups can work for “social justice,” only governments can practice “corrective justice,” which is to say, justice as judgment. It is the latter that undergirds just war theory, which as a form of “retributive justice” is also guided by upper and lower limits, just cause and intention, proportionality, and exercise by legitimate political authority.

The distinction between vengeance and retribution, between the spheres of personal relationships and governing authority, is precisely the rationale behind St. Paul’s argument in the Epistle to the Romans. Whereas Romans 12 passionately proscribes private vengeance (“Do not repay anyone evil for evil”; “Do not take revenge, my friends, but leave room for the wrath of God”; “Vengeance is mine, says the Lord; I will repay”), Romans 13 clearly and unambiguously prescribes government’s ordained role to execute wrath on evildoers.

St. Paul condemns revenge in the private sphere, delegitimized by the absence of legitimate political-legal authority (Romans 13:1–2,5), while condoning and authorizing retribution, symbolized by the sword of vengeance (Romans 13:4). Contextually, the one follows on the heels of the other. Taken together, Romans 12 and Romans 13 illustrate the distinction we are making: Intention and legitimate authority distinguish revenge from retributive justice.

A Civilized Response

Retributive justice, in other words, is a necessity for a civilized society. In responding retributively to moral evil, we channel our energies in several directions. We respond to the victim(s) being wronged, to the wider society that is “scandalized” by the wrong done in its midst, to future offenders who might be tempted to do the same wrong, and not least, to the actual offending party. Understood rightly, retributive justice performs a multifaceted moral good.

Yes, there will always be the cry of the retaliationists who, in the name of “justice,” demand that torture be meted out to the torturer. But that outcry in itself does not cancel the fact that retributive justice performs a necessary social good.

Pacifists will frequently argue that retribution constitutes an “uncivilized” or “barbaric” response by society to crime and moral evil. But is this the case? The answer to this question depends fundamentally on how a society perceives the moral difference between the criminal act and the punitive act.

Those who contend that retribution is unsuited to “civilized” society, whether in criminal justice or military engagement, are mistaken on two fronts. They conflate the punitive and the criminal acts on the basis of a moral equivalence, and they fail to understand the rupture in society caused by moral evil that must be redressed in the temporal order. Both errors are catastrophic to any society that conceives of itself as “free” and “just.”

To distinguish between the criminal act and the punitive act is to be guided by (and held accountable to) the cardinal virtue of justice. If the standard of justice is not abiding and universally upheld through deliberate action, then it is impossible to denounce moral evil—anywhere, in any form, at any time.

Thus seen, the Nuremberg trials were wrongheaded, since Nazi war crimes by definition cannot be denounced; much less can mass murderers be put on trial and sentenced. In the end, one man’s torture is another man’s good time. Might, as it were, makes right (with a little help from stealth), and the Nazis merely came out on the wrong end of the war. In such a moral vacuum, retribution is indistinguishable from revenge, and moral chaos follows.

American society’s deeply entrenched moral evasiveness begins with its indifference to the moral marker “Thou shalt not murder.” The Torah, it must be remembered, does not forbid taking the life of a human being; rather, it forbids premeditated murder. Indeed, Jewish and Christian moral traditions concur in acknowledging justifiable forms of homicide such as self-defense, protecting civilians, and resisting insurrection. In a morally courageous society, this list would be extended to include waging a just war, which represents a middle way between “holy war” and pacifism, and executing those who murder innocent human beings.

An Obligation

When murder occurs, whether in a single life or the perishing of thousands of innocents, society is obliged, regardless of how unpleasant the business at hand, to clear its throat as it were and declare a communal response. Yale professor of computer science David Gelernter, who was letter-bombed in June 1993 by Theodore Kaczynski and nearly lost his life, has put the matter rather succinctly.

He wrote in an essay in Commentary, “What Do Murderers Deserve?”, that murder requires a social proclamation: It is an evil so terrible and so utterly defiling to society that it is intolerable. Murder forces us to assume forever the burden of moral certainty; our response must allow no waffling, no equivocating, no negotiating. The murder of innocents, a civilized society announces, is absolutely evil and absolutely intolerable, period.

The impulse toward retribution is innate in humanity, but it is by no means a “lower” impulse; rather, it sets us apart as moral agents. To treat men or nations, however severely, because they in fact should have known better—and they do know better—is to treat them as human beings, endowed with dignity and moral agency. A society unwilling to direct retributive justice toward those who murder in cold blood is a society that has deserted its responsibility to uphold the unique value of human life.

In the end, civilized culture will not tolerate murder—at any level; an uncivilized one, however, will.

J. Daryl Charles —a contributing editor of Touchstone—teaches in the Chattanooga Fellows Program and is an affiliated scholar of the John Jay Institute. He is author, most recently, of Natural Law and Religious Freedom (forthcoming, Routledge) and co-editor (with Mark David Hall) of America's Wars: A Just War Perspective (University of Notre Dame Press, forthcoming). He contributed "Regensburg Left Behind: Christians Responding to Muslim Invitations Haven't Been Listening to Benedict XVI" to the September-October 2009 issue of Touchstone.

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