Punishment Among Friends: Charity-love and Redress of Violations of the Common Good

28 Pages Posted: 19 May 2022

Date Written: May 17, 2022

Abstract

Retributive hatred of criminals has long been a contested part of the Anglo-American package of general justifying rationales of punishment. This Chapter proposes an account of punishment justified instead by Christian love. Taking as its starting point Jeffrie Murphy’s late work, “Christian Love and Criminal Punishment” (2008), this Chapter develops an account of love as friendship as understood in the theology of Thomas Aquinas. Where love as friendship is allowed to drive the analysis, punishment is ordinarily what the civil authority is obligated to administer to the justly convicted criminal, on condition that the intentions of the punisher be, precisely, the good of criminal and the restoration of the common good. This analysis organized around friendship-love and intention of the good crosscuts the usual dialectics among deterrence, retribution, rehabilitation, and incapacitation, and it rules out hatred of criminals (and opposed to their crimes) as any part of the justification of punishment. Mercy, too, will have a place in a system of criminal justice that takes friendship as the exemplary relationship wherever people dwell together, but here the exercise of mercy, like the imposition of punishment, will have as its aim the restoration of the malefactor to the order of the virtuous. The virtue-theoretic account of punishment developed in this Chapter understands friendship-love as a natural virtue but also a supernatural virtue. Building on the work of Judge John T. Noonan Jr, especially his disagreement in the Harvard Law Review with Judge Richard Posner, the Chapter contends that even amid rank, systemic injustice currently done to criminals in the name of the state, judges sentencing criminals can, at least to a point, witness to the power of the supernatural to correct and transform the natural. Criminal justice reform, if it is to succeed, must make friendship-love the norm and proceed from the conviction that the love God commands he also makes possible. If the central problem of the legal enterprise is the relation of love to power, as Noonan contended, the solution is to hate the crime but love the criminal, doing good to him or her on the model of friendship.

Keywords: Hatred, retribution, love, charity, friendship, mercy, common good, redress, criminal justice, sentencing, death penalty, virtue, supernatural, Thomas Aquinas, Jeffrie Murphy

Suggested Citation

Brennan, Patrick McKinley, Punishment Among Friends: Charity-love and Redress of Violations of the Common Good (May 17, 2022). Available at SSRN: https://ssrn.com/abstract=4112466 or http://dx.doi.org/10.2139/ssrn.4112466

Patrick McKinley Brennan (Contact Author)

Villanova University School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

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