Lecture: Dr. Peter Koritansky on Criminal Punishment

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The Moral Basis of Criminal Punishment: Thomistic and Platonic Reflections

 

by Dr. Peter Karl Koritansky
Professor of Religious Studies
University of Prince Edward Island
St. Vincent de Paul Lecture & Concert Series
Thomas Aquinas College, New England
October 27, 2023

 

 

The Plight of Retributive Justice

In 1949 C.S. Lewis first published an essay¹ entitled “The Humanitarian Theory of Punishment,” in which he argued for what he called a more “traditional” retributive theory over one that is solely directed to the rehabilitation of criminals and/or the deterrence of potential criminals. As Lewis argued, whereas many have dismissed the concept of retribution as nothing more than a veil for vengeance and barbarism, it turns out upon analysis that removing retribution from our notion of criminal justice is what truly has a perverse and dehumanizing effect. Especially striking is Lewis’ claim that retribution is important, not just from the point of view of the law, but from that of the criminal. Once the concept of retribution is removed and we’re left only with the “humanitarian” goals of deterrence and rehabilitation, he says, “each one of us, from the moment he breaks the law, is deprived of the rights of a human being.”²

How is this so? According to Lewis, the problem with the humanitarian theory is that it “removes from Punishment the concept of Desert”, a concept that is “the only connecting link between punishment and justice.”³ As he continues,

It is only as deserved or undeserved that a sentence can be just or unjust...There is no sense in talking about a ‘just deterrent’ or a ‘just cure’. We demand of a deterrent not whether it is just but whether it will deter. We demand of a cure not whether it is just but whether it succeeds. Thus when we cease to consider what the criminal deserves and consider only what will cure him or deter others, we have tacitly removed him from the sphere of justice altogether; instead of a person, a subject of rights, we now have a mere object, a patient, a ‘case’.⁴

A criminal, therefore, at the mercy of a humanitarian system of punishment will have his fate decided by experts in psychotherapy or sociology rather than by judges trained in jurisprudence. Instead of a definite sentence imposed by such a judge, the criminal will receive an indefinite sentence that is only lifted when the so-called “expert” considers him cured. Followed consistently, the humanitarian theory might impose a much more severe penalty upon a harmless but difficult-to-cure criminal than upon a murderer that is cured relatively quickly. The fact that such disparity of punishments strikes decent human beings as alarmingly unfair is beside the point. To the experts, fairness is another word for justice, a notion inseparable from the belief that criminals should be punished no less and no more than they deserve, and it’s precisely this understanding of desert that the humanitarian theory’s apologists consider meaningless and aim to replace.⁵

Lewis goes on to argue that the problems with eliminating retribution are even worse if we consider deterrence. Here, the eclipse of justice is even more evident. As Lewis puts it, when deterrence becomes the sole or even the primary goal of punishment, “it is not absolutely necessary that the man we punish should even have committed the crime…The punishment of a man actually guilty whom the public think innocent will not have the desired effect; the punishment of a man actually innocent will, provided the public think him guilty.”⁶ To be sure, supporters of the humanitarian theory of punishment have argued⁷ that punishing an innocent person to achieve a deterrent effect would never be worth the risk of the general public finding out the truth.⁸ Lewis, for his part, insists that “every modern State has powers which make it easy to fake a trial” and that “when a victim is urgently needed for exemplary purposes of deterrence will be equally served by the punishment…of an innocent victim.”⁹ In the end, it may not matter so much to Lewis how likely the above scenario is to occur in the real world. The mere fact that something as startlingly wrong as the punishment of the innocent could be justified even in principle by the humanitarian theory is enough, in his mind, to discredit it. Whether we consider rehabilitation or deterrence, therefore, letting go of the idea that criminals should be punished because they deserve it easily opens the door to punishing people far greater than what justice requires. “Which one of us, if he stood in the dock,” Lewis provocatively asks, “would not prefer to be tried by the old [that is, retributive] system?”¹⁰

To be sure, some aspects of Lewis’ essay are reminiscent of Immanuel Kant’s argument for retributivism, such as Lewis’ complaint that the humanitarian theory of punishment uses the criminal “as a means to an end; someone else’s end.”¹¹ Much more prominent, however, are his frequent references or allusions to natural law, a much older tradition and one that Lewis clearly intends to represent.¹² This explains Lewis’ criticism of the humanitarian theory of punishment on the grounds that it turns the responsibility of sentencing criminals over to psychologists and social scientists rather than leaving it with judges trained in jurisprudence who take their guidance from the “law of nature.”¹³ The position he lays out stands in stark contrast to the prevailing belief in modern political philosophy that the very notion of retributive justice is incoherent, the first signs of which we observe in Hobbes’ Leviathan, in which we read that “in revenges, men look not at the greatness of the evil past, but the greatness of the good to follow. Whereby we are forbidden to inflict punishment with any other design than for correction of the offender, or direction of others.”¹⁴ Likewise in chapter thirteen of his Introduction to the Principles of Morals and Legislation, Jeremy Bentham carefully applies the principles of utilitarianism (developed in the earlier chapters) to the institution of punishment. In order to have any moral justification whatsoever, he argues, punishment must look forward to some identifiable good for society obtained in the future, which limits us to pursuing rehabilitation, deterrence, and the physical sequestering of dangerous criminals from society (Bentham calls this third goal “disablement”). Retribution, as he sees it, looks backwards as it attempts to pay back the criminal for his crime. It is essentially, for Bentham, the outgrowth of anger and other sub-rational urges and must, therefore, be supressed rather than indulged by the law. In a very revealing footnote, Bentham identifies natural law theory as at least partially responsible for the bogus notion of retribution because, in his mind, the natural feelings of resentment and hatred we feel as a response to injustice is legitimized by any theory, like natural law, that sees nature as morally normative. As he mockingly describes the natural law defense of retribution: “If you hate much, punish much: if you hate little, punish little: punish as you hate.”¹⁵

The Role of Retribution in Platonic Political Thought

The attempt by modern political theory to eradicate retributive justice from our political institutions has led some to argue that modern liberal states are, in fact, incapable of truly punishing criminals because they have transformed punishment into restitution or reduced it to a kind of social hygiene.¹⁶ It would be well to recall, however, that removing retribution from one’s philosophical theory of punishment vastly predates the advent of liberal or even modern political thought. In fact, we may observe the emphatically illiberal Plato doing just this as he formulated his own penology in his Laws, his last and most extensive political dialogue that deals with the question of punishment.¹⁷

The Laws of Plato has long been recognized, in contrast to the Republic which sets forth Plato’s idea of the simply best regime, to advance Plato’s understanding of the best possible regime, that is, the best regime we may reasonably hope could come to exist among actual human beings. It is the only dialogue from which Socrates is entirely absent, although the role of primary interlocutor usually assumed by Socrates is filled by an emphatically Socrates-like “Athenian Stranger,” who engages in an extremely long and detailed discussion of law with a Cretan named Kleinias and a Spartan named Megillos. All three interlocutors are in their old age. It appears as though Plato’s wish is to underscore the realism of the Laws (as opposed to the Republic in which philosophers rule as kings) when he has Kleinias reveal at the end of book three that he’s been appointed to a commission assigned with the task of drafting a legal code for a new Cretan colony. This revelation motivates the three interlocutors all the more to devise laws that will work in real life and among men we may not assume display an excellent (or even a very good) character. In fact, one might even suggest that the Laws’ very emphasis upon the rule of law is already a concession to the real life challenges of statecraft, challenges that are largely ignored in the Republic on account of a much younger Socrates’ attempt to reveal only the very zenith of human potential. Even if it is simply better to be ruled by wise philosophers, it is more realistic to establish wise laws that will be respected even when good rulers are in short supply.

The political realism of the Laws also explains the Athenian Stranger’s extended discussion of punishment, which has no counterpart in the Republic. Beginning in book nine, the Stranger recognizes, albeit reluctantly, that political regimes comprised of humans will always deal with unjust souls who violate the laws. As the Stranger explains,

It is indeed in a certain way shameful even to legislate all the things we are now about to lay down, in a city such as this, which we claim will be well administered and correctly equipped in every way for the practice of virtue. Even to assume that in such a city someone may grow up who shares in the wickedness of the greatest other places, so that it’s necessary to have legislation that anticipates and threatens such a man, if he comes into being—to lay down laws to deter these men and punish them when they do arise, as if they are going to arise—is, as I said in a certain way shameful. But we aren’t in the same position as were the ancient lawgivers who gave their laws to heroes, the children of gods…we’re humans and legislating now for the seed of humans.¹⁸

Given that the Athenian Stranger will have to stoop so low as to make laws for those who defy justice, however, we are given to understand that his will not be just any ordinary criminal code. In fact, he even asserts that the establishment of punitive laws “has never been worked out correctly in any way.”¹⁹ These remarks come, of course, during the well-known “preludes” to the criminal code. Throughout the entire dialogue, all of the city’s laws have been prefaced by these preludes on the grounds that free human beings should not simply be commanded to behave in this way or that as slaves, but should have the wisdom of the laws explained to them, using (the Stranger conspicuously adds) “arguments that come close to philosophizing.” As a result, the Stranger must provide a theory of punishment prior to providing a criminal code. He must explain to Kleinias and Megillos the ultimate purpose of punishment in light of city’s highest aspirations and a true understanding of the human soul.

On this score, the Stranger does not disappoint. Punishment, he asserts, must always be forward-facing. “No judicial punishment that takes place according to law” he says, “aims at what is bad, but for the most part accomplishes one of two aims: it makes the one who receives the judicial punishment either better or less wicked.”²⁰ Thus he reveals what we might call his enlightened theory of punishment because it is exclusively devoted to curing the criminal of the moral disease that cause him to commit the crime in the first place. Retribution, therefore, has no place. The Stranger’s penology is thoroughly therapeutic with the moral reform of the criminal as the primary objective.

The Stranger’s remarks here cannot be fully appreciated without understanding the psychological basis upon which they rest, namely, the well-known Socratic teaching that no one does injustice willingly or voluntarily, or that all moral wrongdoing is ultimately reducible to ignorance (just as all virtue is reducible to knowledge). This principle had already been set forth in book five of the Laws²¹ (not to mention numerous other Platonic dialogues), but it’s now applied to that part of the city whereupon it stands to have the greatest legislative impact, the criminal code. As a result, the Stranger’s prelude consistently replaces the distinction between more or less voluntary crimes with crimes in which the criminal is more or less curable. As Socrates had insisted to Polemarchus in the Republic, true justice would never seek to inflict harm in any way, and in the same way the Stanger’s approach to punishment is thoroughly benevolent. Because all crime, inasmuch as it’s truly unjust, flows from an ignorance as to that in which the criminal’s true good consists, the only reasonable punishment is the eradication of that ignorance through instruction, i.e., enlightenment. The more difficult to cure the ignorance, presumably, the more instruction is necessary. This line of reasoning reaches its logical conclusion, then, when the Stranger insists that, for those judged to be thoroughly incurable or unteachable, the only possible recourse is the death penalty, not of course as a penalty in the traditional sense, but as (as one commentator puts it), “the response of the city to one who simply cannot live in it.”²²

The Stanger’s theory of punishment, one might say, is one in which we observe the complete dominance of logos. It is entirely rooted in what logos reveals to be the true source of crime and injustice, namely, ignorance of the true good for man. Additionally, the Stranger insists that if a criminal is deficient in justice that can only be explained by the fact that he is equally deficient in logos, and so instruction, even with arguments that “come close to philosophizing,” is the only reasonable response. If logos is what the Stranger’s theory of punishment highlights, however, we may find it equally remarkable that his discussion abstracts from, even eclipses, another part of the soul equally relevant to the punishing of criminals, namely, thumos. This is a part of the soul mentioned frequently in book 9 of the Laws, often as something, when combined with ignorance, plays a role in causing criminal behavior. But students of Plato will also remember that thumos is a critical dimension of all human souls and is discussed in greater detail in the Republic. Translating thumos as “spiritedness” and identifying it as the psychological basis of human anger or righteous indignation, Allan Bloom describes it in the following terms:

[Thumos] is very much connected with the defense of one’s own…if we take Achilles as the model of the spirited [or thumotic] man, we see that anger is particularly directed toward punishment of those who take away one’s own. Although anger causes men to be willing to sacrifice life, it is somehow connected with preserving those things that make life possible. Now it is the nature of human anger to seek for justification. It is difficult for a man to be angry when he is convinced that what is taken from him does not belong to him or that his losses or sufferings are his own fault. Anger requires someone or something to blame; it attributes responsibility to what injures, and is closely allied with the sense of justice and injustice.²³

Perhaps the most important observations here are the fact that thumos is (a) deeply present in our pre-reflective sense of justice and (b) strongly inclined to attribute responsibility or blame to its object. Given that, not only criminals, but the majority of law-abiding citizens in the city of the Laws are given to thumos and its effects, the Stranger’s theory of punishment begins to appear in some sense hostile to the deeply held moral sentiments of most people. Most blatantly, the belief that no injustice is committed voluntarily is one that very few people even remotely victimized by injustice can accept. That those who seriously harm our fellow citizens (or even us) are merely cured with education is rejected by thumos as an affront to justice, and the Stranger’s penology appears as much a cruel mockery of a criminal’s victims as it is an undeserved gift to the criminal himself. Is it really wise, even assuming the philosophic truth contained in the Stranger’s prelude to the criminal law, to establish an actual penal code that contains a suppression of such a fundamental part of the human soul?

The Stranger’s answer to this question seems to be no. In fact, the penal code that follows his prelude appears in many ways to constitute a significant retraction of the criminological theory he provides. This is not to say that the Stranger doubts whether his theory of punishment and the psychological basis of crime is true. It is to suggest, rather, however much that theory accords with reason, that it’s likely, if implemented, to be quite harmful to a city inhabited by citizens subject to powerful sub-rational forces. For temple robbery, a crime that would certainly provoke the righteous indignation of patriotic citizens more than many others, the Stranger interestingly asserts that perpetrators are to be automatically declared incurable and put to death, which is also the fate of those convicted of treason. Following this, the Stranger puts forward fairly conventional punishments for theft, a fine that is twice the value of the item stolen or imprisonment if the thief is unable to pay. Interestingly, and in spite of the earlier claim that all crime is involuntary, the Stranger now sharply distinguishes between voluntary and involuntary killing. Less severe penalties are given for sudden crimes of passion than for premeditated murder. Presumably, the difference in penalties may still be defended under the standard of reforming the criminal (where possible), but it becomes increasingly difficult to see how the punishments assigned reflect the enlightened theory of punishment articulated earlier. In fact, many of the punishments appear to serve the purpose, not of enlightenment or education, but of a kind of ritual purification or even atonement for the crime committed. In short, the penal code is far less offensive to the demands of thumos than was the Stranger’s prelude. We can observe this most clearly by recalling the strong tendency of thumos to attribute moral responsibility to that which harms us, which coheres well with the Stranger’s suggestion that the city should punish beasts and even inanimate objects (presumably stones or large tiles) that “murder” citizens by attacking or falling upon them. With these and other punishments that could have no possible rehabilitative or educative effect, it seems that the Stranger has all but abandoned the principles he established at the outset, and has done so precisely as a concession to thumos and thomotic men who will inhabit the city whose laws they now construct.

Again, none of this is to suggest a flaw in the Stanger’s or Plato’s theory of punishment. The glaring inconsistency between the theory and practice of book 9 of the Laws is, no doubt, intended to be instructive. Most of all, it reveals Plato’s crucial insight into the notion of retribution. As contemporary Plato scholar Bradley Lewis summarizes, “retribution…is a kind of natural human impulse in reaction to damage done to oneself or things one cares about. The desire to return like for like is related to the fundamental impulses of justice, and even if the higher aims of reform are given precedence, one must be content to channel rather than simply eliminate the need for retributive punishment. The Athenian [Stranger of Plato’s Laws] recognizes this when his theoretical discussion of punishment is based on the priority of reform, but the actual punishments that follow recognize without comment the inescapable force of retributive justice.”²⁴

Retributive Justice and Natural Law

In moving from Plato’s nuanced view of criminal justice to that of Thomas Aquinas, we move from what we may call a classical political rationalism (and a healthy dose of realism) to a theologically grounded understanding of natural law. As I argued in my book, Thomas Aquinas and the Philosophy of Punishment, nearly everything that Aquinas says about punishment must be understood through the lens of natural law, which is grounded by an understanding of God as a creator of the world ex nihilo, who providently and benevolently sustains that world in being. Natural law is, in fact, defined as nothing other than the human participation in the eternal law, which is understood by Aquinas as God’s providence over creation that endows each thing with the particular nature it has.²⁵ So just as plants and irrational animals may either flourish or become stifled in fulfilling their natures, so also may human beings, with the enormously important caveat that our own choices ultimately determine whether we follow, or deviate from, the eternal law in which we participate.²⁶ Hence, the natural law is also a moral law and the standard determining the goodness of badness of all human actions and institutions.²⁷

These fundamentals of Aquinas’ natural law teaching, of course, leave open the question as to how we human beings come to know what the natural law actually requires. The requirements of morality are, presumably, knowable quite apart from divine commandments however much those commandments may reinforce the natural law. Aquinas is fond of quoting St. Paul’s Letter to the Romans: “when Gentiles who have not the law do by nature what the law requires, they are a law to themselves, [and] they show that what the law requires is written on their hearts.”²⁸ In one of the most disputed passages in his entire corpus, Aquinas famously argues that the precepts of the natural law may be derived from the natural inclinations of human beings, inclinations that include the human tendency to preserve human life and to ward off obstacles to that preservation, to procreate and protect offspring, to pursue knowledge, shun ignorance and to avoid harming those with whom we live.²⁹

To be sure, just exactly how following our natural inclinations could lead us to morally instructive precepts has been the subject of decades of debate among Thomists,³⁰ and even to begin down that road would waste precious time. It is noteworthy, however, that Aquinas raises an objection to his position in which the objector points out a potential problem with looking to the numerous inclinations of human nature to derive moral precepts because that would mean that “even things relating to the inclination of the concupiscible faculty [would then] belong to the natural law.”³¹ In his reply, Aquinas interestingly does not deny that the inclinations of concupiscence belong to the natural law, but adds that they do so only “in so far as they are ruled by reason.” This makes good sense of Aquinas’ references to concupiscence in other places outside the Treatise on Law, for example in his explanation as to the sinfulness of gluttony, which consists in “inordinate concupiscence”³² as when we eat or drink in a way that is disproportionate with the “due end” for which eating and drinking are naturally established, namely, the sustaining of our physical life and health.³³ Hence, we are given to understand that precepts of the natural law are derived from natural inclinations by reason’s ability to discern a kind of inner logic in the natural inclinations themselves. In the case of gluttony, this inner logic is fairly straightforward. We have a strong inclination to eat and drink because doing so is necessary for our survival and physical health, and so to eat or drink is a way that is disproportionate to that natural end is a contravention of the natural law. Aquinas argues along very similar lines in his discussion of sexual morality and other virtues and vices having to do with concupiscence and moderation.

Given, therefore, the central role of natural law and natural inclination in Aquinas’ moral thought, we should expect any discussion of the moral basis of punishment to be explained in similar terms. In Aquinas’ discussion of natural law, there is no explicit mention of a natural inclination to punish wrongdoers. In his discussion of punishment, however, we find just this. The text is, admittedly, a strange one and in need of careful analysis:

It has passed from natural things to human affairs that whenever one thing rises up against another, it suffers some detriment therefrom. For we observe in natural things that when one contrary supervenes, the other acts with greater energy, for which reason “hot water freezes more rapidly,” as stated in Meteor. i, 12. Wherefore we find that the natural inclination of man is to repress those who rise up against him. Now it is evident that all things contained in an order, are, in a manner, one, in relation to the principle of that order. Consequently, whatever rises up against an order, is put down by that order or by the principle thereof. And because sin is an inordinate act, it is evident that whoever sins, commits an offense against an order: wherefore he is put down, in consequence, by that same order, which repression is punishment.³⁴

It is crucial to note here that the question Aquinas is addressing here is “whether there exists a debt of punishment” (reatus poenae). In other words, he is addressing the fundamental question as to whether it’s true to say that certain actions bring about a deservingness of punishment upon agent. His answer for why they do shows us the basis of Aquinas’s retributivism, and appeals to what we’ve already seen is the basis for natural law precepts, namely, natural inclinations, and in this case, a natural inclination to “repress” those who rise up against us. This is an inclination, moreover, that Aquinas says “has passed” from natural things…from things, we are given to understand, that have no share in reason. And, although we must order these inclinations in accordance with reason, they are profoundly connected to the sub-rational life of the human person.

If we investigate what Aquinas says here in relation to his broader philosophical anthropology, it becomes quite clear that what he refers to as the “natural inclination to repress those who rise up against us” is, in fact, the irascible appetite of the human soul, a faculty that just so happens to correspond to what Plato called thumos. If I may be permitted to paraphrase my own summary (in Thomas Aquinas and the Philosophy of Punishment), the irascible faculty offers “resistance against corruptive and contrary agencies” that “are a hindrance to the acquisition of what is suitable, and productive of harm.” Thus understood, the irascible faculty follows upon the concupiscible and could not exist without it, since the “obstacles” it “fights against” are precisely those which stand to prevent us from attaining our concupiscible desires. This is why Aquinas argues that the irascible faculty is the “champion and defender” of the concupiscible, and is expressed primarily in passions such as hatred and anger, the latter of which naturally seeks to inflict a punitive evil upon its object. The irascible faculty exists in all animals possessing a sensitive appetite, and even a semblance of it is found in inanimate things such as fire, which “resists whatever destroys or hinders its action,” an example that bears a striking similarity to the one used in Aquinas’s explanation of the debt of punishment according to which hot water “freezes more rapidly.”³⁵

Without question, such an appeal to the natural inclinations, and particularly those emerging from the sub-rational, appears to play straight into the hands of Bentham’s mockery of natural law justifications of punishment: “If you hate much, punish much: if you hate little, punish little: punish as you hate.” Of course, the argument behind Bentham’s mockery is that natural law theory is hostile to reason because it prefers to pursue the objects of our sub-rational urges and desires. But if we recall Aquinas’s account of concupiscence, we can see that, Bentham’s criticism notwithstanding, reason holds a place of prominence. Our desires for food, drink, and sex, for instance, are guided by what reason can discern is the due end of these desires in the first place. Reason is able, therefore, set limits on how a moral agent should pursue his natural inclinations by ordering his own ends to those of nature itself.

Now, in the case of concupiscible inclinations, these ends are fairly easy to discern: life and health in the case of food and drink, procreation in the case of sex. But what about the natural irascible inclination to repress those who rise up against the political order? This is not so straightforward. On one hand we might say that such inclinations are given by God simply to motivate us to protect the political community from harm. But this, I think would be too simplistic. Punishment, on Aquinas’s view, is not justified merely inasmuch as it incapacitates or renders harmless an otherwise harmful criminal. Besides this, Aquinas repeatedly contrasts the vindication of justice by means of punishment with punishment’s “medicinal” aspects, such as rehabilitation and deterrence. Unfortunately, Aquinas does not leave us with a very full account of what actual good for society the punitive inclinations serve, and so we’re left to speculate. I would like to entertain briefly two possible answers to this question.

One answer is to say that punishment simply serves the good of re-establishing the equality of justice. And, to be sure, Aquinas himself speaks of punishment in precisely these terms on many occasions. To leave it just at this, however, strikes me as question-begging. What I mean is this: How does the performance of a criminal act create an inequality that requires removal by inflicting harm upon the criminal himself? Certainly, if we accept the goodness of private property for society we can derive how theft would require that the property, or something of equal value, be returned as might be ordered in a civil court. But even if that court awarded further damages to be paid for additional losses, this would still not be punishment on Aquinas’s account.³⁶ Punishment is something altogether different. To put the question differently, what can we say society has gained by inflicting harm (in the form of punishment) upon assailants within its own ranks? To say that justice requires such an infliction merely brings us back to the claim that crime produces a debt of punishment, Aquinas’s argument for which referred us to the natural irascible inclinations for which we still lack an ostensible object comparable with the due ends of the concupiscible faculty.

For a more fully developed answer to this question, I believe we need to move beyond the text of Aquinas and enlist the help of a few contemporary scholars, who come at this question from a broad perspective of natural law. For instance, the late Walter Berns has argued that, at the core of punishment’s moral justification, is the righteous indignation so much a part of what Aquinas calls irascibility and what Plato called thumos. Those who lack such indignation in the sub-rational parts of their souls, such as the antihero Meursault in Camus’ The Stranger, are morally defective because they are incapable of committing themselves to the common good as human beings. Berns conveys this point by focusing on the irascible appetite’s most punitive passion, namely, anger. “Anger,” he says “is expressed or manifested on those occasions when someone has acted in a manner that is thought to be unjust, and one of its bases is the opinion that men are responsible for their actions, and should be held responsible, for what they do. Thus, anger is accompanied by the pain caused by him who is the object of anger, but by the pleasure arising from the expectation of exacting revenge on someone who is thought to deserve it…Anger is a very human passion not only because only a human can be angry, but also because it acknowledges the humanity of its objects: it holds them accountable for what they do…Criminals” he continues “are properly the objects of anger. They have done more than inflict an injury on an isolated individual; they have violated the foundations of trust and friendship, the necessary elements of a moral community…A moral community, unlike a hive of bees or a hill of ants, are one whose members are expected freely to obey the laws and, unlike a tyranny, are trusted to obey the laws. The criminal has violated that trust, and in doing so has injured not only his immediate victim but the community as such…If, then, [people] are not angry when someone else is robbed, raped, or murdered, the implication is that there is no moral community because those [people] do not care for anyone other than themselves. Anger is an expression of that caring, and society needs [people] who care for each other, who share their pleasures and pains, and do so for the sake of others.”³⁷

The same opinion was expressed more recently by Jeffrie Murphy, a philosopher who spent much of his early career defending retributivism against the utilitarian theory of punishment, and who seems to have arrived at the conclusion that the value of retribution cannot be fully defended or explained without reference to what he calls resentment. In a chapter fittingly entitled “Two Cheers for Vindictiveness” he says, “It important to stress…that resentment does not stand simply as emotional testimony to self-respect. This passion…also stands as testimony to our allegiance to the moral order itself. We all have a duty to support—both intellectually and emotionally—the moral order, an order represented by clear understandings of what constitutes unacceptable treatment of one human being by another. If we do not show some resentment to those who…flout those understandings, then we run the risk…of being ‘complicitous in evil.’”³⁸ Thus understood, retributive punishment is not, as Bentham had dismissed it, a legitimized form of organized vengeance or hatred. It is actually a rebuke or repudiation of the criminal’s crime and a reinforcement of our own commitment to the common good. Granted, God could have designed our souls in such a way as to reinforce our commitment to the common good in the wake of crime in some other way, just as he could have designed us to procreate our nourish out bodies in some other way, but the logic of natural law leads us to follow the human nature that we have and the natural inclinations as we can best discern them.

These words, if they resonate, may give us an answer as to the purpose of the natural inclination to punish criminals that Aquinas believes lies at the heart of retribution’s moral basis. However much he believed in the Socratic teaching that no one willingly commits injustice, Plato’s Athenian Stranger appears willing to concede that thumos or irascibility must be given its due, if not in theory at least in practice. What Aquinas’ natural law teaching seems to affirm is that we might do more than simply put up with or allow concessions to this part of the soul. We might even embrace it upon understanding that, if properly channeled by reason and within a legal or political order, it plays a crucial role in safeguarding the common good, not only by deterring crime or sequestering dangerous people, but by giving expression to and reinforcing that common good itself.

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