Some Remarks On Punishment And Freewill In Legal Theory & Classical Christian Theology -- By: John Warwick Montgomery

Journal: Global Journal of Classical Theology
Volume: GJCT 08:2 (Sep 2010)
Article: Some Remarks On Punishment And Freewill In Legal Theory & Classical Christian Theology
Author: John Warwick Montgomery


Some Remarks On Punishment And Freewill In Legal Theory & Classical Christian Theology

John Warwick Montgomery

Distinguished Research Professor of Philosophy and Christian Thought

Patrick Henry College

An invitational essay presented at the 24th World Congress of Philosophy of Law and Social Philosophy (IVR Congress), Beijing, China, 15-20 September 2009.

Abstract: This paper contends that both theological and jurisprudential considerations support the claim that criminals ought to be treated as free agents who are responsible for their actions. The essay is conducted in the spirit of C. S. Lewis and Kant, among others, who shared non-utilitarian views on punishment for the criminal--that this is truly the most ‘humanitarian’ approach society can possibly take.

Can—and should—societal punishment operate in the absence of freewill on the criminal’s part? Should punishment exist only if rehabilitation can be achieved? In this paper, we contend (1) that Christian theology answers these questions in the negative, and (2) that a proper jurisprudence does likewise.

The Criminological Scene

Utilitarian theories of punishment, so popular in the latter half of the 20th century, do not rely for their justification on the freewill of the criminal. Just as social philosophies such as Marxism and Environmentalism believe that altering the physical or natural climate will change human behaviour, rehabilitative theories of punishment maintain that an enlightened punitive system can per se lead to positive change in the criminal.

Retributive theories, however, are based squarely on the reality of freewill. Classically, Immanuel Kant argued:

Juridical punishment (poena forensis) . . . can never be administered merely as a means for promoting another Good either with regard to the Criminal himself or to Civil Society, but must in all cases be imposed only because the individual has committed a Crime. . . . The Penal Law is a Categorical Imperative; and woe to him who creeps through the serpent-windings of Utilitarianism to discover some advantage that may discharge him from the Justice of Punishment, or even from the due measure of it, according to the Pharisaic maxim: ‘It is better that one man should die than that the whole people should perish.’1

Fleischacker comments:

Retributive punishment serves a moral function for Kant by making the criminal live under the law he implicitly sets up in his criminal act. The criminal acts on a maxim that he would not will as a universal law; we apply the law of that maxim to him, as thought he had willed it universally. ...

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