The Ethics of Punishment and the Ethics of Restoration: A Critical Analysis

Introduction

In 408 AD, Augustine of Hippo wrote a letter to his friends, Paulinus and Therasia, on punishment. In other writings, he argued that the purpose of punishment is pedagogical—to reform or rehabilitate the offender. It was the shared duty of all: ‘anyone who would be blameless includes not only doing no harm to anyone,’ he wrote in Book 19 the City of God, ‘but also restraining from sin or punishing his sin, so that either the man who is chastised may be corrected by his experience, or others may be deterred by his example.’ ¹ Punishment, in other words, corrects, reforms, and deters. By such means, God disciplines souls until they learn to leave behind what distracts them from the undivided love of God. Indeed, Augustine cannot imagine the Christian life apart from discipline, correction, reproof, and rebuke—all of which contribute to Christian formation. In the Confessions, he prayed, ‘your laws … constrain us, from the beatings meted out by our teachers to the ordeals of the martyrs, for in accord with those laws it prescribes for us bitter draughts of salutary discipline to recall us from the venomous pleasure which led us away from you.’ ²

When God is the author of punishment, this teaching is unassailable. But once placed in human hands, things become murkier. Regarding this responsibility, Augustine confided that he was often at a loss:

These are indeed deep and obscure matters: what limit ought to be set to punishment with regard to the nature and extent of the guilt, and also the strength of spirit the wrongdoers possess? What ought each one to suffer? What ought he to avoid, not just in case he doesn’t progress, but even in case he regresses? Again, I don’t know whether more people are reformed than slip into worse ways through fear of impending punishment (when they fear it coming from human beings, that is). What do we do when, as often happens, punishing someone will lead to his destruction, but leaving him unpunished will lead to someone else being destroyed? All this I confess my sins and ignorance every day. ³

Given these reservations, was Augustine right to believe that humans should punish one another? That punishment was a reliable means of reformation? That the purpose of punishment was not merely to express vengeance, to suppress vice, to redress crime and disorder, or to vindicate the moral sensibilities of the community against its offenders? For generations, Christians have answered these questions affirmatively, and I argue that exploring this answer provides insight into the ethics of punishment.

Augustine’s hesitation regarding punishment orients this inquiry. Later in the letter, he wrote that earthly punishment should aim for ‘our own eternal security and that of our neighbor,’ which are located by the eschatological ‘peace’ expressed in the ‘praise of God’ proclaimed ‘not only through the spirit but also through spiritual bodies.’ ⁴ Earthly punishment, then, takes place within a wider interplay between God’s presence and absence, expressed in the eschatological ‘in between’ of the saeculum and the tension between spiritual life and embodied existence. When expressed from the desire for justice and the intent to vindicate and not merely to avenge, human punishment approximates divine punishment, transforming private evil into public good. ⁵ But to exercise this judgment properly requires that those in authority remain cognizant of their own sin and ignorance. No punishment, however rightly motivated and well intentioned, approaches God’s full justice.

For Augustine, then, it is not enough that punishment be reformative. Punishment also expresses a distinctive Christian subjectivity, meaning by this term ‘self-knowledge,’ as well as becoming ‘subject’ to ‘someone else’s control.’ ⁶ Through punishment, the offender falls under the reforming gaze and control of the punishing authority, whose aim is to administer just enough discipline to reform and not ruin. But the punisher is also under judgment, liable to go astray if the punishment is wrongly motivated or unjustly inflicted. Christian subjectivity, then, does not simply concern the inner state of the soul, but the wider moral community within which punishment occurs, the boundaries of which are ultimately established by God’s justice. Punishment is politically inclusive rather than exclusive, for both punisher and offender remain subjects of God, the just judge.

Painting with very broad strokes, this article will draw on recent work in the history of English law to trace the way this view of punishment evolves in late medieval, modern, and ‘late modern’ punishment. By doing so, I hope to show how Christian accounts of punishment shaped both criminal law and the practice of punishment in England and North America. At the same time, this influence was mutual. Christian accounts of punishment lost their distinctive subjectivity, becoming one of other variants of the ‘reformative’ theory of punishment. Therefore, from a Christian perspective, it is ethically imperative to explore ways this lost subjectivity can be reclaimed.

Before starting, it is important to define the term ‘punishment.’ Many follow Hugo Grotius and preliminarily define punishment as ‘the evil that we suffer for the evil that we do.’ ⁷ But punishment is not an isolatable act that can be assessed in terms of a self-evident structure or its specific purpose as a response to criminal activity. Rather, it is a ‘social artifact’ that interacts with its surrounding culture—its contested histories, social conflicts, diverse systems of belief, institutional structures, frameworks of ideas, hierarchies, demographics, values, sensibilities, affections, and behaviors. ⁸ It is my position that, when viewed as a social artifact, punishment is fully intelligible only when viewed in terms of wider networks of belief formed by Christian doctrine and practice. Even when these beliefs are implicit, assumed, or unacknowledged, they remain central to the punishment by shaping sensibilities and wider frames of meaning.

Late Medieval and Early Modern Punishment and Penance

Others have connected the contemporary practice of punishment to the church. Michel Foucault, for example, argues that modernity is in large part a result of the proliferation of the church’s ‘pastoral power’ into the state’s ‘police power.’ ⁹ However, it is possible to trace a clearer connection between these two networks that supplements and, to an equal extent, subverts Foucault’s analysis. Through the ecclesiastical court system, which became formalized around 1300 and continued until the abolition of the episcopacy in 1640s, there were mutually interacting and interdependent practices of authority, judgment, and discipline between, on one hand, the church and its courts and, on the other, the emerging common law courts. ¹⁰ Together, these institutions shaped the practice of punishment we currently inherit.

As Peter Goodrich argues, within the church there was a ‘public, iconic, and heavy symbolic presence and ritualistic utterance of the divinity and law—an apparatus of appearance’ demanding praise and veneration. To converts, its purpose was to instill the sense of entering ‘newfound space.’ Its ‘grandeur’ conveyed to believers ‘the necessary communication, affects, and interior commitments that the church as a collective body requires.’ Through the sacrament of baptism, the ‘convert enters into the living body of Christ, becomes a child of God, and precisely as a child’ receives ‘affective tutelage, guidance, and affirmation in the means of membership.’ ¹¹

This politics of display was repeated in the architecture, vestiture, and pageantry of the emerging modern state and its judiciary. ‘Vestments, robes, portraits, bars and benches, ceremonial openings, solemn oaths, flags, insignia, and sacred, or at least carefully guarded, sites of publication and promulgation all serve to bolster legal authority by means of optical indications of authority.’ Legal proceedings were a secular analogue of ecclesial proceedings. Like the church, secular legal institutions claimed the body, making the ‘eyes, hands and mouth’ open to ‘inhale and express the aura of legality.’ Thus, ‘reverence’ circulated ‘according to inherited patterns.’ ¹²

A similar relationship of mutual influence existed in the practice of punishment. Organized around confession, self-abasement, and acknowledgement of weakness, infirmity, and sin, the church’s sacraments enacted an economy of grace. Following Anselm’s theology of the Atonement, penitents offered a gift of remorse. As Trisha Olsen notes, rather than compensation for the past act committed, this gift ‘manifested a wrongdoer’s inner anguish at being torn from his proper relations by virtue of his conduct.’ ¹³ Ecclesiastical courts frequently assigned public penances in lieu of excommunication or the imposition of a stiffer sentence. As R. H. Helmholz notes, the ‘classic’ form of public penance ‘was appearance before the congregation on a Sunday (or several Sundays), dressed in a white sheet, carrying a candle or a wand, and making an open confession of fault.’ ¹⁴

Emerging common law courts repeated the church’s disciplinary process of inner reformation and satisfaction within its own ‘institutional structure and symbolic order.’ ¹⁵ As Goodrich notes, ‘to be judged at law was to submit not simply to providence but also to participate in procedures of trial and appeal which demanded an absolute exposure and transparency of the soul.’ The penitent ‘subject coming before the law’ appeared ‘in the mode of subjection.’ Through the mediation of the secular court officers, ‘the law was to be approached through a confession which would empty the soul and also display a filial fear’ that ‘would abrogate the subject and render it in its turn and in its trial a cypher of the judgment of the absolute.’ ¹⁶

Two laws cut across these ecclesial and secular boundaries: sanctuary and benefit of clergy. Although violated, manipulated, and contested jurisdictionally, both created space for penance, authorized ecclesiastical courts to hand down milder sentences, and permitted church authorities to govern their affairs free from interference. However, with the decline of ecclesiastical courts and canon law beginning in the sixteenth century, the gradual loss of legal and political privileges by the established church, and the ascendency of the common law, this history was lost, if not suppressed, leaving behind a legal tradition with a ‘penitential’ character. ¹⁷

Tracing this history helps explain why the practice of punishment remained open to Christian influences in later centuries: it was not merely that the established church persisted as a significant, if declining, institution. ¹⁸ Nor was it due merely to the fact that the penitentiary, as an engine of social reform inspired by monastic practices, facilitated the transition from a feudal to industrial society. ¹⁹ Rather, secular punishment inherited a distinctly Christian form of subjectivity.

This subjectivity is perhaps clearest where institutional structures were attenuated, such as seventeenth-century colonial Massachusetts. There, the rituals of punishment—and the proclamations, confessions, and sermons accompanying them—were at once punitive and redemptive: punishment not only shamed, but linked the offender to the community of believers. The ‘sinner-offender,’ David Garland argues, ‘was not conceived as “Other” but rather as a kind of Protestant Everyman, a living example of the potential for evil which lies in every heart and against which every soul must be vigilant.’ ²⁰ Though modified by Enlightenment theories that stressed experience, utilitarian calculus, and sentiment, these contemporaneous insights from moral psychology affected the technology of imprisonment rather than its intelligibility. ²¹

However, as it is reiterated in succeeding contexts, this subjectivity also changes. Within its own institutional purview, the church could connect punishment to its liturgies. The sacrificial actions inherent in each performed a gift-economy that destabilized the roles of penitent and punishers. ²² This dislocation is inherent in traditional sacramental practice. Drawing from Rowan Williams, we might say that penitents, like every communicant, were ‘dispossessed’ of their former identity in order ‘to become possessed of a different identity’ whereby a ‘distinctive kind of new belonging can be realized.’ ²³ The echoes of this practice recurred beyond the English context. In eighteenth-century executions in France, Foucault notes that ‘if the condemned man was shown to be repentant, accepting the verdict, asking both God and man for forgiveness for his crimes, it was as if he had come through some process of purification: he died, in his own way, like a saint.’ By patiently enduring the ordeal, the ‘criminal’ could be ‘almost entirely transformed into a positive hero.’ ²⁴

The Rise of the Modern Rehabilitative Theory

During the eighteenth and nineteenth centuries, the focus on punishment shifted from the politics of the courtroom to the administrative practice of imprisonment. Evangelicals promoted the penitentiary as part of their project of social renewal. William Wilberforce and Thomas Buxton worked with Utilitarians to scale down the number of capital offenses and to institute ‘humane’ methods of imprisonment accompanied by religious instruction for prisoners. ²⁵ Many criticized these reforms. One prison chaplain wrote in 1861 that inmates often ‘went mad under the combined influences of solitude, malaria, and Calvinism.’ ²⁶ Nonetheless, the move from punishing the ‘body’ to punishing the ‘mind’ reinforced the sense that theological ideas and approaches facilitated a ‘larger strategy of political, social and legal reform designed to reestablish order on a new foundation.’ ²⁷ Evangelicals developed skills for building broad-based coalitions. Between Evangelicals and Utilitarians, Keith Smith argues, the ‘commonality of earthly objectives greatly exceeded philosophical differences, famously making possible support and collaboration between the avowed atheist Jeremy Bentham and the saintly Wilberforce in respect of the proposed building of the former’s Panopticon penitentiary.’ ²⁸ As a result of this collaboration, theological discourse also changed. Evangelicals like Buxton became ‘adept in marshaling Utilitarian/rationalist arguments favoring penal law revisions’ while ‘never losing sight of the ultimate determinant of success: redemption.’ ²⁹

In the process, theological accounts of the rehabilitative theory of punishment developed. Operating behind it was the mandate to make Christianity relevant to a ‘nationalistic, capitalist, technological and increasingly secular order.’ ³⁰ Operating within it was the influence of Comte’s positivism and Hegel’s historical idealism mediated by Herbert Spencer, T. H. Green, and Henry Sidgwick. ³¹ Operating through it was the attempt to draw from the Christian tradition to provide a vision of humanity that could ‘prove’ the ‘Faith,’ B. F. Westcott preached in 1890, ‘in the wider fields of social life’ to ‘vindicate our belief in deed.’ ³²

In ‘Punishment in Ethics and Theology,’ published in the Expository Times in 1934, G. F. Barbour presented a crystallizing statement of the rehabilitative theory. Barbour asked: ‘What are the penalties which follow wrongdoing, and how can they help towards its conquest?’ If such questions were ‘too absorbing to our forebears’ in the nineteenth century, they had ‘suffered undue neglect.’ Belying the optimism of a ‘non-theological humanism’ was the presence of evil. In addition to spectacular evils like the Great War and the kidnapping of ‘Colonel Lindbergh’s baby,’ there were mundane evils of the ‘procurer, the drug-trader, and the agent of armament firms’ that required redress. Punishment was essential to ‘the idea of a moral order of the world.’ Further, it was ‘a living interest in theology,’ because ‘an honest examination of it’ would help ‘religious teachers’ make the ‘atonement clear to themselves and authoritative to others.’ ³³

Barbour had treated punishment in a monograph published in 1911 on philosophy and Christian ethics. ³⁴ There, he argued for ‘punishment as reformatory.’ The ‘retributive’ theory relied on the tendency of ‘older theology’ to create an ‘antithesis’ between ‘divine mercy and justice’ as well as ‘forgiveness’ and ‘punishment.’ ³⁵ Seeking to bridge these divides, Barbour argued that retribution must be ‘subordinate’ to rehabilitation: ‘for while recompense may be a vindication of law, or may even be a conclusive termination of the legal process, it cannot in the deepest sense be the end of law,’ which is ‘nothing short of its perfect observance.’ ³⁶

Bentham had argued something similar as part of his deterrent theory of punishment, but his materialism had been modified by expositors such as John Austin, who made his work friendly to theists and idealists. ³⁷ Consequently, instead of ‘utility,’ Barbour argued for a ‘teleological’ theory of rehabilitation buttressed by biblical, theological, and philosophical sources, such as the biblical accounts of the ‘correction’ of Israel, Plato’s Protagoras, Thomas Erskine’s progressive Calvinism, and Hegel’s Philosophy of Right (1820). ³⁸ Punishment is less a ‘sufficient end in itself, and more as a means to ends that are moral in the full sense.’ ³⁹

In the Expository Times, Barbour utilized two additional accounts of punishment. In A. C. Ewing’s theory of punishment as ‘moral education,’ Barbour found an approach congenial to his own, as well as a typology that included the ‘deterrent’ alongside ‘retributive’ and ‘reformative’ theories. ⁴⁰ More influential, however, was R. C. Moberly’s Atonement and Personality (1901). Moberly based his account on a moral phenomenology: it was possible ‘on the basis of imperfect experience,’ to ‘attain a true conception’ of punishment as well as insight into ‘our true nature.’ ⁴¹ Exemplified in the lex talionis, ⁴² retribution protected fairness and equality before the law. ⁴³ But punishment required ‘a conscious personality.’ ⁴⁴ The ‘end’ of punishment must therefore be ‘restorative,’ which means that ‘punishment has really the disciplinary motive and meaning; it is really a means so to change personalities which are now potentially righteous but actually sinful as to make them, in consummated antithesis against sin, actually righteous.’ ⁴⁵

In other words, punishment was penitential. Moberly allowed that his account was a ‘rough’ approximation of ‘divine justice.’ ⁴⁶ But where retribution analogously represented divine justice, his showed how punishment actually participated in the justice Christ performed on the cross, in which Jesus enacted a ‘perfect penance’ on behalf of humanity. Moberly imagined the ‘ideally penitent’ prisoner in Christological terms: ‘behold! The punishment which he suffers’ is a ‘willing sacrifice within the soul’ that is ‘transfigured, and touched with something of the light of what we may dare call atoning satisfaction.’ Therefore, punishment is ‘a real approach towards re-identification of self, in sacrifice, with righteousness.’ ⁴⁷

Moberly enabled Barbour to develop his teleology of punishment on a much grander scale: the penal reforms in the nineteenth century were evidence of a social and psychological process of human evolution. Just as punishment in civilized society passed from ‘an external to an internal’ form, ‘modern’ offenders progress from experiencing punishment physically to experiencing it internally. Thus, ‘the real penalty is not that which a judge, however high his authority, may impose, but that which is worked out in the conscience and life of the now repentant wrong-doer,’ who is now a ‘fully awakened and self-judging moral being.’ ⁴⁸ Punishment is communicative: in ‘wisely ordered punishment, the pain inflicted is less important than the social disapproval which pain is meant to drive home to the conscience, so the end of punishment is the fashioning of a society where wrong has no place, and the refashioning of characters which for the time have come under the dominion of selfishness and evil.’ Such is the view of a ‘teleological ethics’ that ‘measures all things by the part they play in building the City of God.’ ⁴⁹

Barbour realized that this view depended on Moberly’s account of the atonement: Christ performed a ‘vicarious’ or ‘perfect penance,’ in which, aided by the Spirit, humanity participates through our own identification and imitation. ⁵⁰ Unlike traditional atonement theology, this vicariousness was moral rather than metaphysical: through observing the ‘suffering’ of another, one might see ‘his own sin’ and, with ‘divine help,’ address his own ‘guilt’ by placing himself in a ‘new relation to God and his fellows.’ Although doubting that this adequately reflected the ‘mystery of the cross,’ Barbour concluded: ‘it is surely well for us to emphasize those aspects of the Atonement which harmonize with what we know of punishment.’ ⁵¹

Later Accounts of the Rehabilitative Theory

Barbour’s account marks the rise of the rehabilitative theory, particularly as justified by Christian theology and practice. Although overlooked by later commentators, subsequent writers on punishment reached for the same cultural strands to weave their own accounts in ways that approximate Barbour’s position. Walter Moberly therefore argues that, ‘if it is to fulfill its purpose, penal pain must ultimately be transmuted into penitential pain.’ ⁵² Stephen Garvey argues for a ‘secular’ version of ‘atonement’ that ‘expects wrongdoers’ to ‘repent and make amends.’ ⁵³ More recently, Antony Duff argues in his communicative account that ‘it is penitential pain—that is, repentance and amendment of character, or conversion—that halts the moral debilitation that accompanies wrongdoing.’ ⁵⁴

Even those who favor other theories accommodate the penitential aspects of punishment as if it represented the rehabilitative theory. H. L. A. Hart defends a version of utilitarianism, but allows that the ‘ideal of reform,’ as ‘repentance or recognition of moral guilt,’ is obtainable for ‘offenders’ who capitalize on the ‘opportunities presented by the conviction or compulsory detention.’ ⁵⁵ Jeffrie Murphy defends retributivism, but admits ‘repentance’ as ‘a relevant ground for reduction in criminal sentence’ ⁵⁶ John Braithwaite advocates for restorative justice, but allows that ‘atonement,’ defined as the offender ‘bearing’ a ‘tangible burden,’ plays an integral role in social ‘repair.’ ⁵⁷

However, Barbour’s account also marks the point at which Christian subjectivity becomes further attenuated, if not altogether lost. With the help of R. C. Moberly, Barbour sought to reassert the distinctive voice Christianity speaks regarding punishment. In the process, they facilitated its assimilation. The practice of penance and the doctrine of the atonement had once placed the penitent within separated space where a sacramental gift-economy witnessed to a larger moral community and justice, against which human community and justice nonetheless falls short.

In contrast, although retaining the language of atonement and penance, Barbour refined these doctrines to reinforce a normative position already culturally regnant. As David Garland notes, from the 1890s to the 1970s the rehabilitative theory became axiomatic and ‘gave rise to a whole network of interlocking principles and practices’ that made punishment part of the welfare state. ⁵⁸ These included: early release and parole supervision; the development of the juvenile justice system; psychiatric assessments and individualization of treatment protocols; social work with offenders and their families; and re-integrative support upon release. The prison became widely regarded as counter-productive to reform. Specialist institutions were developed, such as youth reformatories, training prisons, and correctional facilities. Monitoring these ‘custodial regimes’ was a proliferating class of ‘professional experts’ ensconced in the administrative branch of government, who gradually took on the authority of judges and eluded public scrutiny. ⁵⁹

Rehabilitative theory itself also evolved to accommodate additional theoretical models. As Edgardo Rotman notes, four models were developed within the general rehabilitative approach: (i) reform through religious and moral renewal; (ii) therapeutic treatment to cure criminality; (iii) re-education for the poorly socialized; and (iv) building agency and responsibility through calibrated incentives and deterrents. ⁶⁰ Consequently, although there remained an enduring theological residue, Christian subjectivity had become enmeshed and conditioned by other accounts of the subject as patient, as student, or as citizen. Although these layers of subjectivity ideally complemented each other, the more Christian subjectivity became tied to these other accounts, the less it could bear witness its own theological claims and moral vision.

Finally, by integrating his approach to punishment within larger theoretical and normative discussions, Barbour’s account becomes trapped within an ‘immanent frame,’ foreclosing access to a larger theatre of divine justice or the wider moral community represented by the sacraments of the church. His remark about the missing ‘mystery’ of the cross is haunting, as well as his belief that the ‘City of God’ could be attained by a properly administered punishment policy. Finally, his sense of his audience can only be viewed ironically. That is to say, Barbour clearly hoped to address multiple publics. Despite this open stance, however, the venue for publication—the Expository Times—indicates that his audience was composed of fellow church members. He therefore exhibits a sensibility that would characterize later discussions of punishment. Barbour assumed the role of civic educator, teaching about social history, events, concepts, and forces that lay beyond the immediate purview of his audience in order to enlist their support for his own normative position. In the process, he shared skills of detachment expected of the elite. Missing was any acknowledgment of the complexities his audience might face administering punishment themselves, or that his audience might include some who had been punished. Barbour feared that Christian ideas were being ignored, which he blamed on the church’s ‘neglect’ and failure to be clear and credible. Ironically, he tried to teach his audience to ‘see’ punishment as the ‘state’ would, with the ‘collective intelligence of decision makers’ occupying the ‘center’ of government. ⁶¹

‘Late Modern’ Punishment

Beginning in the 1970s, the rehabilitative approach encountered increasing critique and opposition. In the United States and the United Kingdom, this language of ‘failure’ was polemical, and its motivations political. In the United States, David Rothman published an influential article on the ‘Failure Model.’ ⁶² Although remembered as referring to the rehabilitative approach, Rothman actually coined this term to describe an approach that considers punishment ineffective and crime unavoidable. Along with discarding the ‘grandiose’ vision of rehabilitation, he advocated ‘target hardening’ of vulnerable areas—a telling analogy that indicates, in retrospect, the eventual rise of retributivism and its cultural resonances. ⁶³ In the United Kingdom, as Nicola Lacy notes, the rise of neoliberal market economics, contraction of the welfare state, rising unemployment, and the politicization of the victim’s rights made defending the rehabilitative approach politically infeasible. As a result, retributivism has become dominant in political discourse and practice, leading to rising rates of incarceration in both the United States, and England and Wales. ⁶⁴

Given the many institutions formed by the rehabilitative ethos, this language of ‘failure’ was perhaps inevitable as a by-product of its earlier success. No deep sociological analysis is necessary to demonstrate that it is impossible to characterize such a complex network under broad evaluative categories like ‘success’ or ‘failure.’ Indeed, recent studies suggest that the merits of rehabilitation remain significant. ⁶⁵ It also seems likely that, along with other social forces, the cultural residue from nineteenth century Christian activism has influenced the ease with which the language of failure is deployed. As Michael Ignatieff argues, the penal reforms of the nineteenth century established reoccurring cycles of ‘good intentions confounded by unintended consequences’ initiated by activists motivated by religious zeal. ⁶⁶

By and large, reflection on punishment in contemporary Christian ethics has bought into this ‘failure’ thesis. Remarkably, however, constructive proposals have taken positions that remain determined by the rehabilitative discourse on punishment. Oliver O’Donovan, for example, presents a position that inverts the theological version of the rehabilitative theory: he favors the resurrection over the atonement; retribution over reformation; and politically conservative policies instead of liberal positions. ⁶⁷ Despite these differences, his view is from the center of government, albeit through a theologically ‘re-authorized’ practice of ‘judgment.’ ⁶⁸

Similar discursive limits are observable in Christian arguments for restorative justice. Restorative justice originated in an institution built out of the rehabilitative ethos: in 1977, a probation officer in Kitchener, Ontario, used mediation with two offenders who pleaded guilty to vandalizing 22 properties. ⁶⁹ As the movement matured in the 1980s and 1990s, different forms of community mediation and customary practices in indigenous communities were claimed as part of restorative justice. Among others, Christopher Marshall and Timothy Gorringe argue that its guiding principles resonate with theological claims about justice. ⁷⁰ Positioning their accounts against the retributive theory, and as more effective means to achieve rehabilitation, each argues that restorative justice provides the opportunity for the church to reclaim its paradigmatic witness to the wider community. ⁷¹ However, at its core, restorative justice is a pragmatic project in informal justice. This means that, at its best, it provides the opportunity to place punishment within the hands of the community most affected by wrongdoing, and this has often helped communities grow stronger. At its worst, as Declan Roche notes, the informality of restorative justice degenerates into ‘a kangaroo court in which the poor, the weak and the inarticulate are left to the mercy of the wealthy, the strong and the smooth-talkers.’ ⁷² Finally, practicing punishment on behalf of the state as a strategy for protecting what is distinctive about the Christian punishment can be self-defeating, leading the church, ironically, to greater marginalization. ⁷³

Seeking the Risen Lord

What, then, should guide Christian reflection on punishment? John Milbank suggests re-establishing a version of the ecclesial practice of penance. Combined with ‘forgiveness’ and ‘restitution,’ it would communicate the imperative that ‘wrongs must be put right, either by reconciliation and restoration, or, where this is not possible, by other acts and signs which sufficiently show that we now will again a harmony with our fellow beings.’ This complex practice would be ‘atoning’—showing that ‘an individual’s sin is never his alone, that its endurance harms us all, and therefore its cancellation is also the responsibility of all.’ It would also communicate the distinctive vision of the identity and justice the church had once expressed through the laws of sanctuary and benefit of clergy. In this scenario, the church becomes again a ‘house of refuge’ and ‘social space where a different, forgiving, and restitutionary practice is pursued.’ ⁷⁴

While certainly desirable, however, this revived practice captures only one aspect of the Christian subjectivity that has been lost. As the performance of Christian subjectivity, punishment originally expressed two central beliefs about offenders. First, they remained part of the larger moral community, the corpus mysticum of the church. By being subjected to punishment, they were submitting to a process of reincorporation into the social body, however painful and humiliating their punishment might appear. Offenders were therefore not ostracized or made ‘other’ to the community. Second, the punishments administered did not proportionately match the wrongdoing they had done. Rather, punishment was meant to enfold the offender into a wider sacrificial gift-economy that would express actions that went beyond retribution and beyond the rhetorical dichotomies of ‘victim’ and ‘offender.’

Further, subjectivity cannot be reduced to the poiesis of church’s liturgies. Rather, the ecclesial and political communities both provide the context in which authentic Christian subjectivity is performed and created. Subjectivity, as Augustine described it, provided the opportunity for a broader analysis of the justice and injustice connected with each practice of punishment no matter where it takes place. Therefore its performance involves more than the church serving as a school of virtue, but it must carry over to consider the ways each act of earthly judgment and punishment inhabits the saeculum.

For Goodrich, contemplating the enduring penitential character of the secular law provides the opportunity to reclaim Christian theology as a critical, spiritual, and legal practice. Transposed into a practice of reading, theology makes ‘associations’ to find, as pre-critical hermeneutics once did, the deeper, layered meanings in a text. Finally, like the encounter between the resurrected Jesus and Mary in the garden in John 20:17, theology encourages a reading of the law that looks for the truth as it is revealed in absence, as both Word made flesh and Logos of the Father, as risen Lord and empty tomb. In this way, ‘text becomes an image, the letter a figure, the body an enigma, and poetry law.’ ⁷⁵ A similar mystery, and sense of wonder and trembling, must attend every practice of punishment.