Retributive justice and the social contract

Joseph Bottum reflects on the forthcoming execution in Utah of double murderer Ronnie Lee Gardner, and wonders whether there is justification for this punishment. These paragraphs — especially the sections I have put in boldface — stand out for me:

A government has two legitimate goals in its justice system: the protection of the state’s existence, and the maintenance of ordinary, common justice for its people. And sometimes these may require the death of criminals—as in treason, for example, or when citizens cannot be protected from someone except by that person’s death.

But where comes the other kind of justice, the particular kind of justice that would justify the execution of Ronnie Lee Gardner—not the ordinary justice of the social contract but high justice, the justice of God, the balancing of the cosmic scales? We want to see good people find good ends and bad people find bad ends. And God, and God’s agents, could carry out this justice.

Of course, the foundation of a modern democratic state, born of a social contract, is exactly that the state is not God’s agent. The early modern thrones got around the problem with a theory of the Divine Right of Kings, but we rejected all that. The ancient pagan cities held the sword of punishment because, in however confused a way, they believed in the supernatural foundation for the earthly city, but that, too, we dismissed. Ancient Israel had direct revelation, but modern nations refused to hold revelations for themselves.

Without some form of the divine, who has the right to pay blood with blood? Who has the authority to undertake high justice? Not us.

I myself am not necessarily a proponent of capital punishment, due primarily to its irrevocability in the not unlikely case of a miscarriage of justice. However, I strongly disagree with Bottum’s reasoning above. True, we may live in democratic states claiming to be based on a social contract, but there is ample reason — both biblical and otherwise — to question this claim. St. Paul writes to the believers in Rome:

Let every person be subject to the governing authorities. For there is no authority except from God, and those that exist have been instituted by God. Therefore he who resists the authorities resists what God has appointed, and those who resist will incur judgment. For rulers are not a terror to good conduct, but to bad. Would you have no fear of him who is in authority? Then do what is good, and you will receive his approval, for he is God’s servant for your good. But if you do wrong, be afraid, for he does not bear the sword in vain; he is the servant of God to execute his wrath on the wrongdoer. Therefore one must be subject, not only to avoid God’s wrath but also for the sake of conscience. For the same reason you also pay taxes, for the authorities are ministers of God, attending to this very thing. Pay all of them their dues, taxes to whom taxes are due, revenue to whom revenue is due, respect to whom respect is due, honor to whom honor is due (Romans 13:1-7, emphases mine).

With all due respect to Mr. Bottum, those who believe, with the church of the ages, that our world belongs to God cannot simply accept at face value the foundational claims of democratic theories of governance. We may very well agree that democracy as a mere form of government is the best currently on offer, yet this need not entail a rejection of the Pauline understanding of government as servant of God, which it continues to be irrespective of the changed procedures for attaining public office. Nor does it call for acceptance of a contractarian understanding of government, which I would argue is an inadequate account of its origins. (See my 10 March post: Unlocking Locke.)

Forms of government come and go, but the divine mandate that government do public justice is a perennial one that is part of the very created nature of government and thus does not change with the times. This mandate on occasion may call for the shedding of blood, e.g., in cases of justified warfare and of the restraining and punishment of criminals. Again there may be good reason not to shed blood, and one hopes it will not be done too often. Nevertheless, one ought not to deny government the legitimate power of the sword based on a highly disputable contractarian account of democratic government.