Reflections on Augustine's Spirituality

by
 
Donald X. Burt, OSA


Friendship and Society:
Introduction to Augustine's Practical Philosophy

 


Chapter 10
A. 
Introduction
B.   Augustine's Views on Punishment
C.   The Morality of Capital Punishment


CHAPTER 10

CRIME AND PUNISHMENT

A. Introduction1

In our present human condition wherever there are laws there is the possibility of crime and wherever there is crime there is the possibility of punishment. The terms "crime" and "punishment" warrant some clarification. For our purposes here a crime may be described as an action which violates any moral law or any valid human law. The response to crime, punishment, is an act which, in response to the commission of crimes, inflicts on the criminals a condition that is displeasing to them. Such displeasing conditions include everything that could cause pain or stress such as execution, whipping, imprisonment, fines, loss of reputation. Punishment is thus a form of violence as defined in the previous chapter. It takes away a right of the criminal (for example, prison limiting the natural right to freedom) and/or does them injury in some way (for example, by forcing them to pay a fine, by taking away their life, etc).

Punishment differs from other sorts of violence in two ways. First, the person who is punished knowingly and willingly acted contrary to a just law and is thus guilty of a criminal act. Insane persons who perform the same physical act and are then imprisoned in a mental hospital are not strictly speaking suffering punishment. They are undergoing therapy for their disruptive mental condition. Secondly, punishment occurs after the criminal act is finished. It thus cannot be interpreted as an act of self-defense. The particular action which merited punishment is now finished and the "attack" has ceased to be. Punishment, if it is to be justified, cannot be justified on the principles regulating moral defense against an unjust aggressor.

Historically four reasons that justify punishment have been suggested:

1. Prevention: The punishment is aimed at preventing this criminal from committing the crime again. It is not necessarily aimed at changing the criminal's perverse tendencies. Its sole concern is to prevent the criminal from ever again exercising those perverse tendencies.

2. Rehabilitation: The punishment here is aimed specifically at curing this particular criminal, changing them so that they will never again want to do this crime. Its aim is not only to protect society but also to return the criminal to society as a productive member.

3. Deterrence: This purpose of punishment is directed towards others, influencing them by the example made of the criminal so that they will never commit the crime themselves.

4. Retribution: This purpose of punishment has as its focus restoring the balance of justice that was disrupted by the crime. When justice exists among members of a society it is something like a perfectly balanced seesaw. Neither end is lower or higher than the other. When a crime is committed, the criminal's end gets an advantage. It has greater weight in that it has taken to its itself a right that properly belongs to another individual or to society itself. The criminal has gotten an unfair advantage over others. Something has been gained that should not have been gained. The only way to restore the balance of justice is to take from the criminal something equivalent to what was taken from society. If the criminal has attacked the rights of others, this injustice can be remedied only by an equal limitation on the rights of the criminal.

The first three purposes of punishment in some way or other have the effect of protecting society. Even though the rehabilitative purpose is primarily focused on the cure of the criminal, it also indirectly benefits society since, if the criminal is truly cured, society will not be attacked again. The retributive purpose of punishment is aimed at something greater than society, justice itself, and thus is independent of the good (or, for that matter, the evil) that is brought to others by the execution of the punishment. If it is assumed that the only requirement for a moral punishment is that it fulfills one of these four purposes (an assumption I would be unwilling to grant), it would follow that in the case of the first three purposes, any punishment that works is moral. There is no need to "have the punishment fit the crime." It need only prevent the crime from occurring again. Only when punishment is justified as retribution must the punishment be no more or less severe than the crime done.

Since punishment is a form of violence, it needs to be justified. It is not a morally neutral action such as brushing your teeth or going to the store, actions which in and of themselves carry no moral character. As was the case with war, there are three questions that must be considered in evaluating the state's punishment of criminals:

1. Is there present jus ad poenam, a reason that would justify the imposition of this particular punishment in this particular case? Is this particular punishment necessary or at least useful in achieving the legitimate purposes of punishment? Could these purposes be achieved in other less intrusive ways, ways which minimize the violence imposed upon the criminal?.

2. Does the state have the authority to impose this punishment on this person? For example, it may be granted that the state can punish in general, but does this include the authority to use capital punishment? Has the state been given the authority to kill in order to punish a criminal? Again, granted that the state can punish those who commit crimes against the civil society, can it (and indeed must it) also punish crimes against God? Does the state have the authority to punish those who act against or simply disagree with the established religion? Granted that the state can punish violent acts; can it also punish religious beliefs, demanding not only that one not practice divergent religions but also that one be converted to the state-sanctioned religion?

3. Finally is there present jus in poena? Is the method used in punishing the criminal a moral method? For example, a reasonable moral law is that the punishment imposed must respect their humanity. A so-called "cruel and unusual" punishment would be immoral since the implication of the words suggests that the punishment no longer sees the criminal as a human being. A punishment could also fail this requirement of being just in its implementation if it is not or cannot be imposed fairly. Thus, in our day one of the arguments against the use of capital punishment is that it is more likely to be imposed on the poor or minorities than on the more affluent members of the society.

In examining Augustine's views on punishment two questions will be addressed. The first of these is "What if any limits are there on the way in which the state punishes criminals?" The second question is "Does the state ever have the right to take a criminal's life? Is capital punishment ever justified?" The further question of the state's right and obligation to make divergent belief a criminal act will be considered in the chapter that follows.

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B. Augustine's Views on Punishment2

Augustine firmly believed that punishment is sometimes necessary in this life. Indeed, in certain circumstances it would be a denial of love not to punish, as when a too kind parent neglects to punish a disobedient and destructive child. Certainly it is not unchristian to punish a disobedient child who has put himself in danger. Augustine makes this point in a comment on Christ's command to Peter to forgive "seventy times seven" (Luke 17:3-4). He says:

There must be a spirit where law and order keep wide awake and where large-hearted kindness does not go to sleep. Do you suppose that you are doing evil to repay evil when you discipline the sinner? In fact sometimes you are giving good for evil and you would not be doing good if you did not punish. Certainly a deserved punishment should always be imposed as gently as possible, but it still should be imposed. In order to explain my point, consider these two adults. Here is a careless little boy who insists on sitting in a place where it is known that snakes lurk. If the boy sits there he would certainly be bitten and die. The two adults know this, but they act differently. One says "Don't sit there!" But the boy ignores the command. He sits there and perishes. The other adult says, "The boy will not listen to us. We must speak severely to him, drag him away and give him a good smack if this is necessary to save his life!" The first adult says, "No! Leave him alone! Don't hit him! Don't harm him!" Which of these two is really kind? The one who spares him to die of snake-bite or the one who is stern with him in order to save his life? If you can see the obvious answer, you will not hesitate to correct those under your care for their welfare.3

Even though Augustine would agree that the ideal punishment should be in the form of a friendly persuasion, it still must sometimes include a kind harshness against the present evil inclinations of unwilling souls. To refuse to limit the freedom of the criminal by some useful form of restraint allows a greater evil to occur as they become bold and their evil will is strengthened in its self-destructive resolve.4 Even though Augustine frequently pleaded with civil authority to mitigate their punishments (especially if the death penalty was to be imposed), he never asked that every criminal be pardoned. He had too much respect for a human's capacity for evil to believe that every pardoned criminal would suddenly become a paragon of virtue. There was always the danger that the one pardoned would not only be ungrateful but would even go on with unchecked boldness to commit greater crimes. Having been saved himself from death once, he would go on to cause a multitude of deaths. And, even if this does not happen, his pardon could tempt others to commit even worse crimes. The paradox is that there is both a good that comes from severe punishment and a good that comes from trying to restrain such severity as much as possible.5

Augustine recognized that determining a proportionate punishment for a particular crime is always a difficult task. It is even more difficult to decide how much punishment is effective in having a truly positive effect on the rehabilitation of the criminal. Augustine had some doubts whether many were saved from doing a crime simply because of fear of punishment. Sometimes a criminal can be hardened in viciousness by punishment. If the punishment is death, it could bring about the worst of all punishments: eternal condemnation of one who in bitterness has rejected God. How much to punish and whether to pardon are questions never easily answered and Augustine frankly admits that as a bishop he made mistakes every day in passing judgment on those subject to his authority. The only advice that Augustine gives to those in authority is to try to maintain a humble and kindly spirit:

In correcting others you should not come to think too highly of yourself. Even though externally you may seem harsh, inside you must maintain a spirit of love and gentleness.6

Granted that punishment is sometimes necessary, various questions still need to be answered. Certainly God as the Lord of all has the right to punish humans who sin, but through what authority can the state punish? I as an individual may not like what you have done, but to "punish" you for it is not my right. To attempt to do so without the authority to do so is tantamount to revenge. How is it, then, that when I gather together with others in civil society, that state which we form gains the right to punish in our behalf? Logically the answer to this question depends on factors analogous to those justifying war. There must be proper authority, a jus ad poena (a just cause for punishing), and jus in poena (justice in the method of punishing).

It is clear that Augustine had no doubts about the state's authority to punish criminals, even execute them, for just cause. Thus he says:

There is no violation of the commandment "You shall not kill!" for a state to wage war at God's bidding or for authorized representatives of the state to put criminals to death for a reason justified under God's law.7

It is also clear that he believed that individual persons do not have this right. The difference between the state punishing and citizens "taking the law into their own hands" is stated with vigor in his sermon to the people in his parish who participated in the lynching of an unpopular public official. He said to them, no doubt with some passion:

My people I will say this as clearly as I can. Only evil people do violence against evil people. But this is quite different from those who must act because of their position in society. A judge must often condemn some to be executed even though he is not pleased with the necessity. As far as he can he avoids the shedding of blood, but at the same time he must protect the public order. To use violence in such instances is part of the duties of his profession.8

The source of this authority to punish is the same as the authority to rule. It comes directly from God, the source of all authority of human over human. As we have argued in the previous chapters on the nature of the state and on war and peace, the state like the family is a natural society, a society that is necessary and useful for the development of the human race. God's will to create humans as free social beings must also logically include those elements required for multitude of individuals to live with one another in organized communities. In the state this implies someone "in charge" who has the responsibility for overseeing the pursuit of the common good. Unfortunately, in the present condition of humanity, this must include the right to make laws and to punish those who attack society by disobeying those laws.

It is clear from the passages quoted above that Augustine believed that the state sometimes has a justifying reason for punishing some of its citizens even to the point of execution, if this was necessary to protect the community. Though he himself does not make the distinction in the passages cited, this reason would seem to embrace both prevention (preventing this criminal from repeating the crime) and deterrence of others through fear of like punishment. In other places Augustine also defends the legitimacy of punishment for pure retribution, that is aiming at balancing the scales of justice independent of any desire to stop others from doing the same crime, at least when God is the one punishing.

Thus he argues in his debate with Faustus about the morality of some of the violent acts reported in the Old Testament, that there was nothing untoward in the incident where Moses executed those who had worshipped idols while he was on the mountain conversing with the one true God (Exodus, 32). The reason for the execution was retribution pure and simple but it was justified because it was explicitly commanded by God to make amends for the terrible insult offered to him.9 Although there is some suggestion that the punishment was also aimed at deterring others from the same blasphemy, the main reason was to punish the insult. Of course, Moses was on firm ground here because he was acting under the direct command of God who has the authority to balance the scales of justice. There is a truth in the harsh statement "Revenge is mine, says the Lord" (Romans, 12.19) and for him what we call "revenge" is clearly retribution. The problem for human individuals and human societies is to determine with certainty when (if ever) that retributive power is communicated to human beings. Augustine's frequent warnings against revenge are a sign that he did not think it happened too often and when the claim is made the authorization must be beyond doubt. For example, in the debate about the use of civil authority against the Donatists there was a two-fold question. Even if the state has the authority to pass laws regulating religious belief, does it also have the right to punish by execution the heretics and schismatics as retribution for the "injury" they have done, not against the state nor even against the church, but rather the injury done against God himself? Where and when did God call earthly kings "up the mountain" as he did with Moses to give explicit authorization to kill the "idol-worshippers?"

The state thus has the authority to punish for cause and there are situations where there is just cause (jus ad poenam) for punishment. But for the imposition of punishment to be moral there must also be justice in the process (jus in poena) and this depends in part on the attitude of the one who punishes. As with all other human actions, punishment must be exercised in a spirit of love. The crime must be hated and not the criminal. The punishment must not be imposed with a revengeful spirit. This internal attitude must be present even in those cases where the punishment is imposed for reasons of deterrence and retribution. Augustine admits that it is legitimate to punish to deter further crime and even (on rare occasions) simply for the sake of retribution, but he clearly believed that the main purpose for any punishment whether done by a parent in the family or a bishop in the church, or a king in the state, is medicinal and rehabilitative. The primary intent must be to cure the one punished of the evil tendencies which prompted the crime. The overriding concern must be to get the malefactor to repent, and any form of punishment that stands in the way of the possible repentance must be suspect. Augustine's attitude towards punishment is that it is, or at least should be, another expression of friendship done out of love and with the aim of "curing" the criminal and potential criminals from the tendency towards a behavior that could stand in the way of their eternal happiness. Put simply, punishment is a good thing if it is a form of "friendly persuasion" a gentle (and sometimes not so gentle) effort to bring a loved one back to the straight and narrow path to eternal happiness. And even when (because of the madness and "evil that sometimes rests in the hearts of men") cure and rehabilitation is impossible, when all that can be done is to prevent the criminal from doing harm to others, even then the punishment should be imposed in a spirit of love, not out of anger or revenge.

In this life the model for such loving action is found in the parent who punishes a wayward child. The following lengthy passage well expresses what seems to me to be Augustine's view on the conditions for a moral use of punishment when there is a just cause for punishing, that is when there is present one of the four reasons for punishing anyone:

Any punishment which aims at correcting the one who does wrong is in fact a form of mercy. The only person who is fit to punish anyone is the one whose love has overcome the hatred which often rages in us when we desire revenge. For instance it is unlikely that parents hate their young son when he does wrong and they "box his ears" to prevent him from doing it again. When it comes to punishing someone, two things must be considered. First, does the one who imposes the punishment have a right to do so? Second, does the one punishing impose the punishment with the same kind of feelings that a father has toward a son who is still so young that he cannot possibly be hated. This example is a good illustration of how one can love and punish another at the same time rather than let the object of love go undisciplined. The goal in such ideal cases is not to make the wrongdoers miserable through punishment but to bring them happiness through correction.10

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C. The Morality of Capital Punishment

In The practical order can capital punishment ever meet these conditions? In one his earliest works Augustine expresses a sentiment which is a fair statement of his attitude towards capital punishment through the rest of his long life. In trying to make the point that the divine order expresses itself even in the most foul aspects of life, he writes:

What is more hideous than a hangman? What is more cruel and ferocious than his character? And yet he holds a necessary post in the very midst of laws, and he is incorporated into the order of a well-regulated state; himself criminal in character, he is nevertheless, by others' arrangement, the penalty of evildoers.11

The analogy that follows comparing the necessary functions in an imperfect world of the hangman who punishes criminals and the pimp and prostitute who channel otherwise destructive lusts away from injury to the innocent suggests that Augustine considered capital punishment at its best to be the lesser of two evils. Punishment in general and perhaps even capital punishment, if required at all, is required only because we live in a fallen world, a world in which peace will be disturbed by humans acting maliciously against the rights of others. Crime exists: this is the reason for punishment. The question remains whether there are any circumstances where execution should be the punishment of choice, and if so why.

One clear example where execution is the only alternative is when God specifically commands it as retribution for a crime. Augustine cites the example of the holy men in the Old Testament who, acting under God's direct inspiration, used execution as a means of medicinal therapy, either for the criminal himself by preventing him from further sins or for those who were witnesses and were filled with a "salutary fear" lest they suffer the same fate for doing the same thing. Thus, Elias killed the priests of Baal by his own hand acting under direction from God (1 Kings, 18.40) and later killed over 100 men by calling down on them fire from heavens (2 Kings, 1.10). In both cases he did not act rashly but acted to demonstrate to humans that the God of Israel was the a one true God. Other prophets who did similar things also acted in individual cases with clear authority from God when it served the best interests of human beings. Augustine notes that such violent incidents where wrongdoers were punished with death were not uncommon during Old Testament times when humans were ruled mostly by fear. He believed that they should be less common now under the New Testament Law where humans are ruled by love. But this does not mean that they could not happen, that the spirit of love excludes even the possibility of execution for crime. The case of Ananias and Sapphira (see note 9) proves this. Though this happened in the age of love, they were not returned to earthly life immediately after and forgiven on appeal. They were buried.12

Augustine does admit the authority of the state to execute the criminal if this is necessary to preserve public order but he emphasizes that this must truly be the last and only resort to achieve that purpose and seems to have doubts that this is ever the case. An example of this attitude can be found in his letter to Marcellinus the special delegate of the Emperor Honorious designated as the civil authority to settle the dispute between Catholics and Donatists. The occasion for Augustine's letter was an incident where members of the radical Donatist faction (the Circumcellions) were convicted of having murdered one Catholic priest and seriously mutilating another. Although their actions were prompted by a religious dispute the actions themselves were obviously civil crimes where, if the "eye for an eye" doctrine of retribution were applied, the punishment should have been execution. Despite this horrendous crime, Augustine pleads for mercy. He writes:

I have been a prey to the deepest anxiety for fear your Highness might perhaps decree that they be sentenced to the utmost penalty of the law, by suffering a punishment in proportion to their deeds. Therefore, in this letter, I beg you by the faith which you have in Christ and by the mercy of the same Lord Christ, not to do this, not to let it be done under any circumstance. For although we (bishops) can refuse to be held responsible for the death of men who were not manifestly presented for trial on charge of ours, but on the indictment of officers whose duty it is to safeguard the public peace, we yet do not wish that the martyrdom of the servants of God should be avenged by similar suffering, as if by way of retaliation.

Augustine continues emphasizing that he is not adverse to punishment per se, only capital punishment:

However, we do not object to wicked men being deprived of their freedom to do wrong, but we wish it to go just that far, so that, without losing their life or being maimed in any part of their body, they may be restrained by the law from their mad frenzy, guided into the way of peace and sanity, and assigned to some useful work to replace their criminal activities. It is true, this is called a penalty, but who can fail to see that it should be called a benefit rather than a chastisement when violence and cruelty are held in check, but the remedy of repentance is not withheld? (Emphasis added)13

Augustine goes on to tell Marcellinus that, as a Christian judge he must play the part of a loving father, showing anger against the crime but making allowance for the human weakness of the criminal. He applauds Marcellinus in that during the interrogation he did not use extreme torture but only "beat them with rods," a corporal punishment which in the day seems to have been accepted as being a form of friendly persuasion used by schoolmasters, parents and even bishops in the correction of those they cared about. Augustine (continuing his instructions to Marcellinus) notes that

It is generally necessary to carry out an inquiry ruthlessly, so that, when the guilt has been uncovered, there may be scope for moderation.

Perhaps his reason for making this distinction between "ruthless inquiry" and "moderation in punishment" is that for purposes of correction and "curing" the criminal of the crime, the first step is admission of guilt. Punishment as therapy is useless if the person will not even admit the sickness, and the infliction of modest pain of the body is certainly better than the eternal pain resulting from unrepentant crimes. Therefore, his final advice to Marcellinus is:

Do not seek out the executioner now that you have established the guilt when you refuse the services of the torturer in order to discover the guilt."14

Augustine writes in similar vein in an earlier letter (408-409) to Donatus, the then proconsul of Africa:

I should prefer that the Church of Africa, beset as it is with trials, should not have to depend on the help of any temporal power (even though the help that does come from christian authorities is given in the name of the Lord). However, there is one thing only about which I have grave misgivings in your administration of justice: namely that you decide to apply the penalty with more regard for the gravity of the crime than for the exercise of christian clemency, for it is certainly true that of all crimes committed by impious men, devoid of all feeling, those against a christian commonwealth are more monstrous and more revolting than acts committed against any other group. But even so, we beg you by Christ Himself not to act too rigidly. We are not looking for vengeance on earth over our enemies and our suffering should not reduce us to such anguish of soul that we forget the teachings of Him for whose name and truth we suffer. We do love our enemies, and we do pray for them. Hence, in applying the deterring effect of judges and laws, we wish them to be restrained, but not put to death; otherwise, they might incur the punishment of everlasting judgment. At the same time we do want public authority to act against them, but not to make use of the extreme punishment which they deserve. In hearing these Church cases, then, even when you discover that the Church has been outrageously attacked and injured, we ask you to forget that you have the power of life and death, but not to forget our request. Do not consider what we ask as something of little importance, my honorable and beloved son. What we ask is that those whose conversions we pray for should not be put to death. Passing over the fact that we ought never to depart from the rule of overcoming evil by good, let your Prudence also consider that only churchmen have the duty of bringing these Church cases before you. Consequently, if you think the death penalty should be inflicted on these men, you will frighten us off, and no such cases would come to your court by our agency. (emphasis added) 15

In a follow-up letter on the same case, written to Apringius the proconsul of Africa in 412, Augustine repeats his plea for mercy. He appeals to Apringius specifically as a christian but notes that if the civil authority were non-christian he would make the same argument against the death penalty even though he could no longer argue from christian love. He also admits that if there were no other punishment decreed for curbing the wickedness of desperate men, extreme necessity might require that such men be put to death. But even here Augustine remarks that if the crime in question was the killing of two christians because of their faith (thereby making them martyrs) and the execution of the murderers was considered to be the creation of two new martyrs, he would prefer that the guilty be let go free rather than besmirch the blood of their martyred victims with their own criminal blood. Instead of execution and thus maiming their bodies as they had maimed their victims, he advises that their bodies be used for useful work so that they could use their bodies for the good. Finally, he pleads, even though these criminals have cut short the life-span of a minister of the church, their span of years should be lengthened so that they might possibly repent of their crimes.16

Augustine's conclusions about punishment in general and capital punishment in particular can be summarized as follows:

1. punishment is sometimes necessary;

2. the state has the authority to punish for cause;

3. the primary (but not only) purpose of punishment is cure the criminal and others from the tendency to repeat the crime;

4. punishment must be imposed in a spirit of love;

5. capital punishment may be justified in rare cases when God directly commands it or when it is the only way to preserve the peace and order of the society;

6. apart from such rare situations, it should not be used because it takes away the criminal's chance to repent.

Whether capital punishment or any punishment should be imposed upon heretics and others who differ in belief and practice from the established church protected and fostered by the state, is the question to be addressed in the chapter that follows.

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NOTES

1. Helpful discussions of punishment in general can be found in Mortimer Adler, The Great Ideas (formerly volumes 1-2 of the Great Books Series) and the article on "Punishment" in the Encyclopedia of Philosophy, vol. 7.

2. For an examination of Augustine's views on capital punishment see Gustave CombPs, La Doctrine Politique De Saint Augustin (Paris: Librairie Plon: 1927), pp. 188 ff. See also, Fernández Blázquez, La pena de muerte según San Agustin (Madrid: Ediciones Augustinus Revista, 1975).

3. Sermon 114A, 5-6. See Sermon 13, 9.

4. Letter 138, 2.14.

5. Letter 153, 6, 16-19. "For us to be truly virtuous, we must not only do no harm to any person but we must also restrain them from wrongdoing and punish the evil that they in fact do. We must do this in order that the person punished may profit from the experience or at least others will be warned not to do the same thing themselves."(The City of God, 19.16). Augustine outlines the dilemma whether to punish or pardon in a letter to Paulinus and Therasia, two of his friends. He writes: "In setting the limit of punishment, are we to proportion it to the kind and degree of the offenses as well as the endurance of the individual soul? It is a deep and difficult matter to estimate what each one can endure and what his limit of endurance is, so as to help him without doing any harm. I personally doubt that many are saved from worse conduct by fear of impending punishment, at least of such penalties as are inflicted by men. And here is a dilemma which often occurs: If you punish a man, you may ruin him; if you leave him unpunished, you may ruin another. I admit that I make mistakes in this matter every day, and that I do not know when and how to follow what is written: `Them that sin, reprove before all, that the rest may also have fear.'"(Letter 95, 3). The passage also brings out Augustine's view that the primary purpose of punishment is to help the criminal and to prevent others from making the same mistake. See Herbert Deane, Political and Social Ideas of St. Augustine (New York: Columbia University Press, 1963), pp. 134-43.

6. Sermon 88, 19-20; Letter 95, 3. See Deane, op. cit., pp. 134-43.

7. The City of God, 1.21.

8. Sermon 302, 16.

9. Against Faustus the Manichean, 22.79. Another example of God using death as a means of punishing those who broke his laws is the sad case of Ananias and Saphira in the New Testament (Acts 5.4) who lied about the extent of their goods available to the Christian community and who died on the spot. Augustine reads into the execution an aspect of rehabilitation, suggesting that God may have called for their physical death in order to save them for eternity. In his discussion of the incident in this light, he said to his listeners: "We should not think of physical death as being a severe punishment. If only, indeed, punishment stopped there! After all, did anything very dreadful happen by calling for the death of mortal creatures who were going to die anyway at sometime or other?"(Sermon 148, 1) This approach to death explains why it seems that Augustine would approve of the use of capital punishment if it could be proven in a particular case that it was a means of saving the criminal's soul. I believe that he thought it unlikely that this ever happened, especially in those cases where the criminality involved heresy or schism. For another suggestion of the retributive use of punishment see Letter 185, # 8, where Augustine speaks (against the Donatists) about laws (and consequently punishments) imposed primarily to defend the truth, a reason which does not imply preventing humans or curing humans from doing the criminal act again.

10. Commentary on the Lord's Sermon on the Mount, 1.20.63. Augustine describes how the ideal ruler will impose punishment in the following words: "We call those Christian emperors happy when they are slow to punish, quick to forgive; when they punish, not out of private revenge, but only when forced by the order and security of the republic, and when they pardon, not to encourage impunity, but with the hope of reform; when they temper with mercy and generosity the inevitable harshness of their decrees. (The City of God, 5.24). It is admittedly difficult to administer justice in this wise way. Augustine believed that only God can rule without arrogance; humans have a constant temptation to rule others simply for the joy of ruling (Confessions, 10.36), a temptation which he believed manifests itself even in infancy. (Confessions, 1.6.8). See John M. Rist, Augustine: Ancient Thought Baptized (Cambridge: Cambridge University Press, 1994), p. 230.

11. On Order, 2.4.12. Herbert Deane comments (op. cit., fn 133, p. 329) that it is incorrect to maintain that Augustine was absolutely against all uses of capital punishment. He did believe that it is sometimes necessary, certainly when commanded by God, and also when it is truly necessary to insure the peace and order in society. The righteous judge might prefer not to pass a sentence of execution but at times it seems to him necessary to prevent law and order from being undermined (Sermon 302, 16). But in this latter case Augustine insists that there be no other way of preserving the order in society.

12. Commentary on the Lord's Sermon on the Mount, 1.20.64. Augustine clearly justifies execution as retributive punishment when the injustice is against God, that is when the human being does not give God what is due. It is not clear to me that Augustine ever justifies in practice the use of execution as retribution for crimes against the state or against other individuals. In the latter case retribution comes close to being revenge; in the former case the civil society, though sometimes it is justified in balancing the scales of justice for crimes against God, has no clear authority to execute as retribution for crimes against itself. Of course it may punish to protect itself from further crime and even more it may punish to "cure" its citizens of their tendency to commit crimes but its right to punish simply because injury has been done to society or to individual humans (not taking into consideration the supposed "injury" done to God by every willful sin) is not clear in Augustine's writings.

13. Letter 133, 1.

14. Ibid., 2.

15. Letter 100, 1-2. Augustine repeats the same theme in an emotional outburst (obviously aimed at public officials) in one of his sermons: "So do not condemn people to death, or while you are attacking the sin you will destroy the man. Do not condemn to death, and there will be someone there who can repent. Do not have a person put to death and you will have someone who can be reformed. As a man having this kind of love for men in your heart, be a judge of the earth. Love terrifying them if you like, but still go on loving. I don't deny that penalties must be applied. I don't forbid it. But let it be done in a spirit of love a spirit of caring, a spirit of reforming."(Sermon 13, 8-9).

16. Letter 134, 3-4. In a letter sent in 414, Augustine says to Macedonius: "We do not in any way approve the faults which we wish to see corrected, nor do we wish wrongdoing to go unpunished because we take pleasure in it. We pity the man while detesting the deed or crime, and the more the vice displeases us, the less do we want the culprit to die unrepentant. We are forced by our love for humanity to intercede for the guilty lest they end this life by punishment only to find that punishment does not end with this life." Letter 153, 1.3.


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