The Common Good and the Law: Catholic Social Doctrine on Crime and Punishment
The Church has specific and insightful words on crime and punishment which need to be heard in this critical hour
Jeremy Bentham, on the other hand, insisted that all punishment is mischief, and that all punishment in itself is evil, having ultimately no justification in either justice, much less in love, but only in utility.
The Compendium of the Social Doctrine of the Church has a brief excursus on punishment, and it rejects the extremism of de Maistre and the utilitarianism of Bentham. (Compendium, Nos. 402-405) The Compendium ties punishment to justice with two ropes: the common good and law.
Nulla poena sine lege: no punishment without law states an old Roman legal principle. This principle is clearly adopted by the Compendium. And since it is a fundamental principle that all law is ordered to the common good of the community, it follows that punishment under the rule of law is justified only with reference to the common good.
In the Compendium's tying punishment to the rule of law and the common good, we must remember the Church's unique vision of the common good--which is neither a collective concept nor an aggregate concept, but a personalistic and teleological, even theistic one.
"The common good of society is not an end in itself; it has value only in reference to attaining the ultimate ends of the person and the universal common good of the whole of creation. God is the ultimate end of his creatures and for no reason may the common good be deprived of its transcendent dimension, which moves beyond the historical dimension while at the same time fulfilling it." (Compendium, No. 170)
Ultimately, the Church seems to be telling us, punishment is justified only in reference to the person, to the good of a political community, and, ultimately, only in reference to God, who is both justice and love. (cf. 2 Thess. 1:6; 1 John 4:8)
"In order to protect the common good, the lawful public authority must exercise the right and the duty to inflict punishments according to the seriousness of the crimes committed." (Compendium, No. 402)
In this succinct statement, we find a number of principles. First, punishment is referable to the common good. It is a means of protecting the common good. Second, it is only lawful public authority that has the monopoly on the use of violence or physical coercion, what Max Weber called das Gewaltmonopol or das Monopol legitimen physischen Zwanges. Where there is law, there is no such thing as vigilantism. Third, the public authority has not only the right, but a duty to inflict punishment. Fourth, there must be a relationship, a fit, a proportionality between crime and punishment.
There are four traditional justifications for punishment: retribution, deterrence, rehabilitation, and incapacitation. The Compendium appears to embrace all four as justifications for punishment.
For example, the Compendium states that punishment arises out of the State's duty to "discourage behavior that is harmful to human rights and the fundamental norms of civil life." (Compendium, No. 402). This is a clear reference to deterrence.
The Compendium also states that public authority has the duty to see that "the disorder created by criminal activity" be repaired "through the penal system." (Compendium, No. 402) This is a clear reference to retribution or vindication.
The Compendium further recognizes that punishment has the purpose of "guaranteeing the safety of persons," and this suggests that punishment serves to incapacitate the criminal from harming others. (Compendium, No. 403)
Finally, the Compendium adverts to the fact that punishment may well be "an instrument for the correction of the offender, a correction that also takes on the moral value of expiation when the guilty party voluntarily accepts his punishment." This is a reference to rehabilitation, albeit one with a spiritual understanding of man.
The role of the judicial system--as independent from the legislative and executive branches of government--is emphasized by the Compendium as part of the modern rule of law. There needs to be a division between the law maker, the prosecutor, and the judge. There ought therefore to be a separation of powers as a means to curb the potential for abuse.
In a State ruled by law the power to ...
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