Law and Religion: Law, Religion, and Punishment
LAW AND RELIGION: LAW, RELIGION, AND PUNISHMENT
Punishment represents a crucial intersection between law and religion. As many scholars have noted, in its origins law was closely connected with and often indistinguishable from religion, and much of this early law was penal. The areas of private law and contract developed more gradually, although the relationships and transactions that these areas of law formalized were always present in society. This primacy of penal law is hardly surprising, if we consider that the first obligation of the law, even before the advent of a concept of the state, was to preserve the security and well-being of individuals. Prior to modernity, law was often reinforced by an explicitly religious cosmology. Violations of the law were interpreted as transgressions against the cosmic order, and were punished accordingly. As the French sociologist Émile Durkheim (1858–1917) argued, offenses against our "collective representations" were treated with special severity in early society.
Modern, secular law no longer invokes an explicitly religious cosmology. The term law is now applied almost exclusively to positive law, meaning discrete rules promulgated by the state or its agents, and enforced by their sanctions. The state now has a monopoly on punishment. Compliance with religious rules or norms, which are often called "morals" to distinguish them from positive law, is voluntary rather than coercive. The process by which religion lost its ability to enforce its provisions, and by which, at the same time, a secular legal order developed that no longer required the explicit sanction of religion, is one of the key transformations in the history of law. The present article focuses primarily on describing this transformation in Western law and conceptions of punishment, although examples from other cultures are occasionally provided.
Punishment and Asceticism in Religious Law
In the vast majority of premodern traditions, religion played an important role in reinforcing a moral order. Ancient punishment was often a ritual of purification that, once completed, discharged fully the guilt of the offense. Although this may run counter to the modern understanding of punishment as designed to prevent further harm, it did contribute to the maximization of certainty within the legal system. Punishments enforced by authorities in this world were supplemented, and occasionally replaced, by threatened punishments in the afterlife or next life, which the English Utilitarian legal reformer Jeremy Bentham (1748–1832), the foremost philosopher of punishment in the common law tradition, referred to as "religious sanctions." Christian representations of Hell are paralleled by Hindu and Buddhist depictions of the suffering caused in hells or other realms, or in subsequent reincarnations in this world, through the consequences of one's actions (karma ) in this life. The social function of such devices is to enhance obedience to the law by augmenting the severity and/or certainty of punishment, especially in the absence of other effective mechanisms of legal enforcement. As Bentham argued, when such threats are no longer taken seriously, they are mere fictions that do not serve the purposes of law.
One of the difficult questions, from a modern perspective, is how far to extend the definition of "punishment" to religious law. If this term is restricted to the type of punishment associated with positive law, namely a sanction enforced by authorities in this world for violation of a command, then it excludes many types of religious law. Some religious laws prescribe no specific punishment for their violation. An example is the Ten Commandments (Ex. 20), which express commands ("Thou shalt [not]") without specifying sanctions. (However, sanctions for many of its commands were specified elsewhere in the Pentateuch.) Threatened retributions in the afterlife or next life lack, from a modern perspective, the certainty of state-enforced sanctions. Many expiations and penances prescribed by religion are self-imposed, rather than being imposed by the state. Ascetic practices are prospective and prophylactic rather than retributive: they seek to bring about a condition of religious purity, rather than to compensate for some offense already committed. Trials by ordeal and judicial torture, on the other hand, are regarded as processes of truth-finding, rather than substantive punishments for crimes for which guilt has already been determined. Despite these differences, there are also profound similarities among these religious phenomena. They are all types of violence, often employing the same techniques, and they serve moral or spiritual ends, or what we may in a broader sense call "justice."
The German philosopher Friedrich Nietzsche (1844–1900), in On the Genealogy of Morals (1887), emphasized the continuities among punishments, religious ideas of retribution, and asceticism. He argued that all of these phenomena were manifestations of a fundamental "will to power." In asceticism, the human organism turned this will against both the world and its own nature. The ultimate expression of this cruelty was the idea of God as both sacrifice and executioner. The greater physical cruelty of pre-modern punishments was a means of impressing moral obligations upon the memory.
Among the aspects of religious law most alien to modern law is its association of moral purity or innocence with physical or ritual purity, as evidenced by restrictions on diet, dress, and sexual behavior, which we may broadly term "rules of asceticism." Leviticus and the Laws of Manu provide numerous examples within the Jewish and Hindu traditions, respectively. More severe forms of asceticism included the self-infliction of bodily pain. Although similar restrictions, and voluntary practices such as vegetarianism, tattooing, and body-piercing, are prevalent in modernity, they are, with few exceptions, no longer part of positive law. Rules of asceticism often appear to conflate law with punishment. In other words, the command that constitutes the law in many cases also itself entails physical suffering or deprivation. Although any law is in some sense a restriction, modern, positive law clearly separates a command from a sanction attendant upon its violation.
In his Introduction to the Principles of Morals and Legislation (1781), Bentham argued that the sole rational basis for law was utility, meaning the principle of the greatest good for the greatest number. He understood "good" and "pleasure" as synonyms. Pain of any sort, including punishment, was an evil that could be justified only in the interest of avoiding greater pain. Consequently, he opposed the principle of utility to that of "asceticism" associated with religion. From his view, asceticism maximized pain for its own sake. He also argued that deriving the idea of moral purity from that of physical purity was a pernicious fiction. (In her analysis of the dietary provisions of Leviticus, the anthropologist Mary Douglas presented a more sympathetic analysis of the contribution of such ascetic regulations in contributing to a symbolic moral order.) From the religious perspective, the purpose of asceticism, as a kind of prophylactic punishment, is often precisely the avoidance of greater pain in the future, such as an eternity in Hell. Therefore, even from the perspective of a utilitarian calculus, asceticism can be rational. What explains Bentham's rejection of asceticism is not its application of pain, but rather his disbelief in such future punishments, and in the ability of asceticism to prevent them.
Suffering is, of course, universal, even when we do not impose it on others as punishment, or on ourselves as asceticism. The problem of accounting for suffering or evil is perennial, and it shows the close connection of punishment with theodicy, or the vindication of God's justice. People look for meaning even, and perhaps especially, where there is none apparent. This explains the tendency to interpret suffering as a punishment for wrongs previously committed. The Hindu and Buddhist doctrine of karma is often invoked not only to threaten future punishment, but also to explain present suffering as the result of actions in a past life. Among biblical texts, the Book of Job grapples most explicitly with this problem of suffering, but ultimately preserves the inscrutability of God's interventions. More common among religious groups is the tendency to view prosperity as a sign of Providence, and misery as a sign of God's wrath. One response to these "divine punishments" is the attempt to ward them off by means of sacrifices and self-imposed punishments. An example is the Massachusetts Bay Colony during the seventeenth century, which progressively added rules against frivolous and irreligious conduct such as gambling, idling, and sabbath-breaking. These were in part extensions of religious law, and in part responses to the hardships and depredations of colonial life viewed as retribution for moral backsliding. Such legal developments culminated, infamously, in the Salem witch trials at the end of the century, which Mary Beth Norton (In the Devil's Snare, 2002) interprets as an internal response to attacks from forces outside, including native Americans. Speaking more generally and from a sociobiological perspective, Walter Burkert explains sacrifice, scapegoating, and atonement as measures for alleviating anxiety (Creation of the Sacred, 1996). Although such attitudes and practices may appear to be quite distant from modern legal punishment, they remain deeply entrenched in human psychology.
Similar ideas served within the Christian tradition to structure a grand narrative of history, both communal and individual. Adam's sin of disobeying God was inherited by all humans as "original sin." Christ redeemed this sin through the Passion, which combined the ideas of sacrifice and punishment. However, individuals still needed to give their voluntary assent and belief to this salvation, or they would be subjected to the terrors of Hell. While threatening future punishment, this system emphasized moral and spiritual reform, in marked contrast with the modern emphasis on the deterrence and isolation of offenders. The Christian system of punishment may have reached its fullest development with the proliferation of penitential manuals in the Middle Ages. These manuals elaborated different rules for different social groups, extending to the populace at large a system of discipline that had previously been confined to the monastery. The anthropologist Talal Asad argues that the goal of penance was to produce disciplined social bodies; the quest for individual spiritual perfection was pursued within communities and manifested in social relations. He emphasizes the connection of such penitential practices with the rise of the inquisitorial system, which used judicial torture as its basic method of truth-finding.
Retribution: From Religion to Modern Law
Another feature of pre-modern religious law that presents problems of interpretation from a modern perspective is its emphasis on retribution or retaliation. The so-called "law of talion" (lex talionis ) provided a strict equivalence between the punishment imposed on the criminal and the original injury imposed on his or her victim. Perhaps the most famous example is the formula that occurs in several places in the Hebrew Bible: "a life for a life, an eye for an eye, a tooth for a tooth" (Exodus 21:23–24; Deuteronomy 19:21; cf. Leviticus 24:20). Variations of talion are also found in many other, especially pre-modern cultures.
Modern theorists frequently have characterized retribution as "barbaric" or "primitive." Durkheim emphasized the connection of retribution with primitive forms of social organization. For him, retribution represented a kind of blind passion striking out against any potential target. The English legal historians Frederick Pollock (1845–1937) and Frederic William Maitland (1850–1906) condemned the adoption in medieval England of the law of talion as a throwback to Judaism. Part of the modern attitude toward retribution can be traced to the secular Enlightenment, as exemplified by the Italian philosopher Cesare Beccaria's (1738–1794) influential treatise Of Crimes and Punishments (1764), which argued against the use of torture and other cruel and unnecessary punishments. Another part of the modern attitude toward retribution, however, echoes Christian sources. Jesus said: "You have heard it said, 'An eye for an eye and a tooth for a tooth.' But I say to you, … if any one strikes you on the right cheek, turn to him the other also.…" (Mt 5:38–39). Of course, no actual legal system can operate without the use of sanctions. Christian antinomianism is more an ideal than a reality.
A primary reason for the modern ambivalence toward retribution is a transformation in the understanding of the purpose served by punishment. Modern legal theory generally recognizes several legitimate reasons for punishment: deterrence of prospective crimes; the separation of offenders from society ("isolation"), especially through incarceration; and the reform and rehabilitation of offenders. Each of these serves the basic goal of preventing further or future harm. Retribution, except to the extent that it coordinates with one of these other purposes, does not prevent future harm. For this reason, it has a somewhat disreputable status in modern law. However, the continuing use of capital punishment and the introduction of a concept of victim's rights in the United States show that the concept of retribution still has some popular appeal.
For Bentham, as noted above, punishment was a further evil that could be justified only by its deterrent effects. On these grounds, punishment for the sake of retribution alone was no more justified than asceticism. Threats of retribution at the hand of the deity might be justified as deterrents. However, if actually imposed, an eternal punishment in the afterlife for offenses already committed would be grotesquely disproportional and devoid of deterrent justification. Despite his rejection of retribution for its own sake, Bentham embraced retribution as a device for enhancing the deterrent effect of punishments. Following an older English philosophical tradition that regarded mental operations as the result of the association of ideas, he argued that the function of the law was to create an ideal association between crime and punishment, so that when the criminal thought of committing a crime, the idea of the punishment would immediately come to mind and deter the commission of the offense. Some of the means of reinforcing the mental association between crime and punishment were to increase the speed and certainty of punishment. Another means was to employ punishments that were "characteristic" of the offense, namely that bore some analogy to it. For example, arsonists might be burned, and forgers might have their hands pierced with iron pens. Bentham explicitly approved talion, or strict equivalence of injury, among the means of making punishments characteristic. Such punishments were not only more memorable, but more popular among the public. Bentham's concept of punishment as a form of rhetoric, combined with his principle of minimizing (real) suffering, led him to endorse the use of illusory punishments, such as hangings in effigy, if these could serve the same deterrent effect as real punishments.
Bentham's modern philosophy of punishment as a form of communication or rhetoric suggests a new interpretation of retribution in pre-modern law. In many cases, retribution may have been used to reinforce the association between crime and punishment. The primary devices used to promote this association were metaphor (similarity) and metonymy (contiguity), although, as described below, sometimes rhyme or other verbal associations were also used. Talion itself prescribed one form of similarity, namely equivalence of injury. Other punishments based on similarity are found, for example, in Manu 11:104, according to which a student who sleeps with his teacher's wife is supposed to embrace a red-hot iron statue of a woman. An example of a punishment based on contiguity is Manu 8:334, which prescribes that whatever limb a thief uses to commit a crime should be cut off. Retribution, far from being primitive, was in many cases a carefully orchestrated ritual practice designed to deliver the "message" of a connection between crime and punishment. As James G. Frazer (1854–1941) pointed out in his classic The Golden Bough, magical rituals also often depend on relations of similarity and contiguity. To harm an opponent, a magician may stick a pin into a voodoo doll resembling the intended victim, or burn an article of their hair or clothing. These relations of similarity and contiguity are interpreted as both causes and signals of the goal the ritual seeks to bring about. Although punishment looks backward to an offense already committed, it depends on similar associations.
The communication function of punishment may be clearest in those cases where the association with the crime is verbal and rhythmic. Manu 5:55 prescribes vegetarianism with a pun: "The being whose flesh (maṃsa ) I eat in this world, that creature (sa ) will eat me (mam ) in the next world." Probably the most elaborate "poetic punishment" occurs in Dante's Divine Comedy, which used the new verse form of rhymed tercets to make everything in the poem reflect the Holy Trinity: even the three-headed Satan, who appears at the end of the Inferno as the upside-down, mirror-image of the Holy Trinity revealed at the end of the Paradise. Another example, discussed by Bernard Jackson, is Leviticus 24:13–23, which encompasses the talionic formula ("an eye for an eye") at its center in an elaborate chiasmus or quasi-palindrome, where the first sentence parallels the last, the second the second-to-last, and continuing along in that vein. The entire passage imitates, on a larger scale, the reciprocity of the talionic formula. The passage narrates God's command to punish a blasphemer, and the community's obedience to this command. It therefore depicts a successful act of communication, in which God's message has been heard. Palindromes, or inversions of word order, are used in many languages to promote communication, for example in greetings and questions. Talion may have used similar devices to reinforce the "message" of punishment.
Religion in Modern Punishment
The concept of retribution, if not its more elaborate symbolic formulations, has been difficult to exorcise from modern law. In other respects, however, modern punishment appears quite different from its pre-modern ancestors. One of these differences is its greater emphasis on incarceration. Michel Foucault's (1926–1984) classic Discipline and Punish identified several stages in the development of punishment, beginning with the "symbolic tortures" of the ancien régime in pre-Enlightenment France. In a fashion closer to the older practices of penance and torture, these punishments operated directly upon the body of the offender, producing visible signs of the law's power. Such punishments gave way to the "analogical penalties" of the Enlightenment reformers, in which the goal was instead to construct a sign-relation or association between the ideas of crime and punishment, so as to deter the prospective criminal. Torture was now viewed as an evil connected with the cruelest and most superstitious aspects of religion. As we have seen, Bentham belongs mainly to this stage of punishment.
Foucault, however, took another aspect of Bentham's system of punishment, the circular prison called the Panopticon, as the prime illustration of the modern stage of punishment based on incarceration, regimentation, and constant surveillance. The Panopticon consisted of a ring of prison cells surrounding a guard tower at the center. The cells were lighted from behind and their occupants were visible to the guards, who were shuttered and invisible from the standpoint of the prisoners. As no one knew when she was under surveillance, the structure itself was supposed to promote good behavior. As Foucault convincingly demonstrated, the Panopticon was a paradigmatic, if extreme, example of certain modern institutions, such as the factory and the school, which also promote surveillance and self-policing.
Although Foucault did not address the religious dimensions of Bentham's philosophy of punishment and of modern practices of incarceration, several considerations suggest the continuity of such ideas and practices with older religious models. The first is that the modern prison bears numerous structural and functional parallels to cenobitic monasticism, which gave us the original meaning of the terms cell and penitent(iary). Asad has drawn on Foucault's work to illuminate aspects of this older tradition. In each case regimentation, including confinement, served the goal of producing a subjection that was internal as well as external. Bentham often grappled with the question of how to replace the religious sanction, or threat of punishment from the deity, given the decline in religious belief. One response was the "Pannomion," a comprehensive legal code that supplied the lack of clear and effective sanctions. The Panopticon, as the architectural counterpart of this code, similarly replaced the policing function of an omniscient deity, and reintroduced the fear of retribution from an invisible guardian. Bentham may even have had such religious parallels in mind: the Panopticon incorporated, within its inner circles, space for a chapel; its inmates were supposed to be occupied in religious devotion; and, perhaps most revealingly, Bentham acknowledged the religious connotations of the "apparent omnipresence" he attributed to its guards (Bentham, vol. 4, p. 45).
Furthermore, religion, including especially evangelical movements for social reform, played an important role in the rise and development of the modern penitentiary system. Specifically, the ideas of reform and rehabilitation owed much to evolving Christian models. The influence of such ideas continues, especially in the form of voluntary programs of religious instruction offered in prisons. As previously noted, the modern law of punishment minimizes—in actual practice if not in rhetoric—the goals of reform and rehabilitation, and maximizes deterrence and, increasingly, the isolation of offenders through incarceration. Religious programs in prisons, although extra-legal, fill for some prisoners the important function of rehabilitation, especially through the well-known phenomenon of "jail-house conversions." In this way, older religious models of punishment as spiritual reform make a significant contribution to prisoners' constructions of narratives of redemption. Famous examples are The Autobiography of Malcolm X (1965) and the film Dead Man Walking (1995).
In the sentencing of offenders in the modern United States, there are further intersections between law and religion. Religious arguments play an important role on both sides of the debate over capital punishment. A less sensational but more widespread aspect of modern punishment is the statutory prescription of mandatory, fixed sentences for particular offenses, to the exclusion of judicial discretion. Critics of mandatory sentences usually point to the unduly harsh punishments that may result when individual circumstances are not taken into account. On the other hand, allowing judicial discretion can lead to the inequitable result that different punishments are awarded to different defendants for the same offense. This debate echoes the Christian dichotomy between strict justice and mercy, and potentially places the latter in opposition to modern egalitarianism, which also has religious roots.
The separation of religion from positive law poses a potential problem for law, in that it represents the decline of the belief in a moral cosmos, and the loss of an earlier consensus regarding the purposes of punishment. Modern law has provided its own replacements for the religious sanction, but the difficulties of promoting deterrence, the absence of effective mechanisms of reform, and, above all, the reliance on mass incarceration illustrate the nature of the challenge. Tim Murphy (The Oldest Social Science?, 1997) argues that the older system of religious law constituted a "penetrative scheme" in which outer practices shaped the interior being, or "juridical soul." By contrast, the modern, social scientific view of punishment emphasizes the constraint of external conduct, and may weaken the hold of law on the subject. Bentham struggled to preserve a penetrative scheme of punishment by borrowing elements from religion: the principle of retribution, ritual displays including illusionism, the fiction of an omnipresent prison guard. Apart from the proliferation of techniques of surveillance, these recommendations have, by and large, not been followed in modern punishment. In response to the arguments by some communitarian theorists in favor of the use of symbolic "shaming" punishments, Martha Nussbaum argues against the appropriateness, and indeed the humanity, of such practices and the emotions they produce (Hiding from Humanity: Disgust, Shame, and the Law, 2004). As the debate over how to constitute a system of punishment that is both moral and effective continues, questions of religion are never far from view.
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