Vandalism
much more grave than the kind Fay was punished for has become rife in Western
countries in recent years. The riots of
the summer of 2020 saw widespread defacement and pulling down of statues and
other monuments. The riot of January 6,
2021 saw the U.S. Capitol vandalized. Environmentalists
frequently deface or glue themselves to works of art, or block traffic by
sitting in major roadways and refusing to move.
That the physical damage caused by such acts is often worse than the
sort of thing Fay was punished for is bad enough. But these acts are worse in another way. Fay’s actions were mere obnoxious hijinks of
the kind boys are sometimes prone to.
The political vandalism of recent years is much more sinister, being an
assault on the social order itself and on works of art that are the heritage of
the human race.
If relatively
milder vandalism of the kind Fay was caned for can merit corporal punishment –
and I would argue that it can – then the political vandalism of recent years
can hardly merit less. It might seem an
extreme way to deal with the current problem.
But the current problem is itself extreme, and calls for a proportionate
remedy.
To see why
this is a remedy worthy of consideration, let’s consider the natural law moral
justification of the use of corporal punishment, and also what the tradition of
the Church has to say about it. Before
doing so, however, we need to put aside a potential red herring.
Not the same thing as torture
In the
decade or so after 9/11, a rather nasty debate arose in Catholic circles about
torture. Surprisingly, few seemed able
or willing to define it, including those who were extremely confident in their
pronouncements about its moral status.
My own view is that the most plausible definition is along the lines
endorsed at the time by Thomists like James Chastek, who defined
torture as “the use of physical pain to break the will of another”
(though I’d alter this to note that the pain could also be psychological in
nature).
The will is
also known as the rational appetite–
that is to say, the power by which a rational being pursues what its intellect
takes to be good or avoids what it takes to be bad. To break someone’s will is essentially to
subvert its operation, either by clouding the intellect so thoroughly that the
will has no target to aim at, or by preventing the will from locking on the
target where it exists. Torturing
someone involves inflicting physical or psychological pain severe enough to disrupt
the will’s operation in one or both of these ways. It approximates reducing him to an animal by
preventing his rationality from functioning.
One
advantage of such a definition is that it both captures the paradigm cases of
torture – actions that pretty much everyone would agree count as “torture”
whatever they go on to say about its moral status – while not including actions
that most would not regard as torture
even though they involve inflicting physical or psychological pain.
In
particular, no one would say that merely
hitting another person amounts to torture, even if this is done for a bad
reason and even if the blow is severe enough momentarily to distract the
mind. For example, we don’t think of two
boys engaged in a schoolyard fistfight as torturing
each other. For the pain they inflict is
not severe or sustained enough utterly to subvert
the will’s operation, even if it obviously can distract the intellect from
focusing on what is reasonable.
Inflicting physical or psychological pain can in some cases even help to
restore the will’s proper operation,
as when one slaps or yells loudly at a hysterical person in order to make him
“snap out of it.”
Another
advantage of the definition, from the point of view of Catholic moral theology,
is that it indicates why torture is
inherently wrong, as the Church has taught in recent decades. For example, in Veritatis Splendor, Pope St. John Paul II characterizes “physical
and mental torture and attempts to coerce the spirit” as “intrinsically evil” insofar
as they “radically contradict the good of the person made in [God’s] image”
(80). It is precisely insofar as we have
reason and will that we are made in God’s image. Hence to subvert these faculties is to
attempt to destroy what is distinctive about us and God-like in us, and thus
inherently contrary to our good.
It does not
follow, however, that all infliction
of physical or psychological pain is contrary to the good of the person made in
God’s image, or otherwise intrinsically wrong.
In particular, it does not follow that an infliction of pain that does not break the will or subvert a person’s
rational faculties is inherently wrong.
And these things cannot be
said to be inherently wrong, for such an extreme claim would contradict both
natural law and divine revelation, as we’ll see presently. In any event, to defend corporal punishment
is not to defend torture (which I most certainly am not doing and would not
do).
Corporal punishment and natural law
The natural
law justification of corporal punishment is pretty straightforward. Essentially it is just a further application
of the same reasoning that justifies the harsher penalty of capital
punishment. Adapting the basic argument
for capital punishment that I’ve presented in several places, the reasoning
goes like this:
1.
Wrongdoers deserve punishment as a matter of retributive justice.
2. The more
grave the wrongdoing, the more severe is the punishment deserved.
3. Some
offenses are so grave that nothing less than corporal punishment would be
proportionate in its severity.
4.
Therefore, wrongdoers guilty of such offenses deserve corporal punishment.
5. Governing
authorities have the right to inflict on wrongdoers the punishments they
deserve.
6. Therefore,
governing authorities have the right to inflict corporal punishment on those
guilty of sufficiently grave offenses.
The
conclusions 4 and 6 clearly follow from the premises of this argument. But obviously, a skeptic will demand justification
for the premises. I’ve defended premises
1, 2, and 5 in By
Man Shall His Blood Be Shed: A Catholic Defense of Capital Punishment
(the book I co-wrote with Joseph Bessette), and in my recent article “The
Justice of Capital Punishment” (in Matthew Altman, ed., The
Palgrave Handbook on the Philosophy of Punishment). In the same places, I’ve also defended the
premise that some crimes are so grave that nothing less than the death penalty
would be proportionate in its severity.
And if that is true, then it follows a
fortiori that premise 3 above is true.
So, readers in doubt about any of the premises are directed to those
other writings of mine.
Notice that
the conclusion of the argument is not
that governing authorities must
inflict corporal punishment whenever it is deserved. That is not my position (just as it is not my
position that the death penalty must
always be inflicted where it is deserved).
The claim is only that governing authorities have a right to inflict
it. But that one has a right to do
something does not by itself entail that one ought to exercise that right. And there can be good reasons, including
moral reasons, for refraining from exercising a right.
Thomistic
natural law theorists who defend the death penalty typically argue for using it
only where necessary (even if the
question of why and when it would be necessary is itself a matter of
controversy). That is my own
position. Similarly, I would not argue
for actually exercising the right to inflict corporal punishment wherever it is
deserved, but only where it is necessary.
When would
that be? The most obvious sort of case
would be the very mild corporal punishment we inflict on children when we spank
them. Parents are in this case the
relevant governing authorities (of the small-scale society that is the
family). Sometimes spanking is necessary
insofar as some children are so unruly that they don’t respond to milder
punishments. In my view, while spanking
should be used where needed, it is better to avoid it where it is not necessary. And usually, even when it is necessary it
needn’t be done very often. Even
unrulier children often “get the message” after one or two spankings.
But what
about governments? When would it be
necessary for them to resort to corporal punishment, as a way of dealing with criminals? I’ll come back to that.
Corporal punishment and Catholic
tradition
Since
natural law theory has traditionally been central to Catholic moral theology,
one would expect that the legitimacy of corporal punishment has been recognized
in the Church’s teaching. And that is
indeed what we find, from the very beginning.
For
starters, the legitimacy of corporal punishment is repeatedly taught in
scripture, which the Catholic Church says is divinely inspired and thus cannot
teach error (particularly on matters of faith and morals). Here are some relevant passages (all
translations from the Revised Standard Version):
If there is a dispute between men,
and they come into court, and the judges decide between them, acquitting the
innocent and condemning the guilty, then if
the guilty man deserves to be beaten, the judge shall cause him to lie down and
be beaten in his presence with a number of stripes in proportion to his offense. Forty stripes may be given him, but not more;
lest, if one should go on to beat him with more stripes than these, your
brother be degraded in your sight. (Deuteronomy 25:1-3)
He who spares the rod
hates his son, but he who loves him is diligent to
discipline him.
(Proverbs 13:24)
Do not withhold discipline from a
child; if you beat him with a rod, he will not die. If you
beat him with the rod you will save his life from Sheol. (Proverbs 23:13-14)
He who loves his son
will whip him often, in order that he may rejoice at the
way he turns out.
(Sirach 30:1)
Of the following things do not be
ashamed, and do not let partiality lead you to sin… of much discipline of
children, and of whipping a wicked
servant severely.
(Sirach 42:1, 5)
In the temple he found those who were
selling oxen and sheep and pigeons, and the money-changers at their
business. And making a whip of cords, he drove them all, with the sheep and oxen,
out of the temple; and he poured out the coins of the money-changers and
overturned their tables. (John 2:14-15)
Notice that
the corporal punishment countenanced in these passages is in some cases pretty
severe (and certainly more severe than anything I think appropriate
today). Notice also that it will not do
to contrast the Old Testament passages with the purportedly gentler message of
Jesus, since we are told that Christ
himself inflicted a whipping on the money-changers!
Naturally,
the legitimacy of corporal punishment is also upheld by the Church’s moral
theologians. For example, here are some
relevant passages from Aquinas:
It is licit to inflict harm on
someone only in the manner of a punishment for the sake of justice. But no one punishes anyone justly unless that
individual is subject to his authority. And
so to strike or beat someone is not licit except for an individual who has some
sort of power over the one who is being struck or beaten. And since children are subject to the power of
their father and servants are subject to the power of their master, a father can licitly strike or beat his
child – and a master can strike or beat his servant – for the sake of
correction and discipline. (Summa Theologiae
II-II.65.2, Freddoso
translation)
Vengeance is lawful and virtuous so
far as it tends to the prevention of evil.
Now some who are not influenced by motive of virtue are prevented from
committing sin, through fear of losing those things which they love more than
those they obtain by sinning, else fear would be no restraint to sin. Consequently
vengeance for sin should be taken by depriving a man of what he loves
most. Now the things which man loves
most… [include] bodily safety… Wherefore, according to Augustine's
reckoning (De Civ. Dei xxi), “Tully writes that the laws recognize eight kinds of punishment”… [including] “stripes”… (Summa TheologiaeII-II.108.3)
The virtuous – who of their own free
will comply with what is honorable – should be aroused to good by means of
pre-existing customs, by showing the goodness of what is proposed. But the
insubordinate and the degenerate are allotted physical punishments like
beatings and other chastisements, censure and loss of their possessions… It
is this way because the virtuous man, who adjusts his life to the good, heeds
the mere counsel by which good is proposed to him. But the
evil man who seeks pleasure ought to be punished by pain or sorrow like a beast
of burden – the ass is driven by lashes. (Commentary on Aristotle’s Nicomachean Ethics,
Book X, Lecture 14, par. 2151-2152)
This
teaching was reiterated in manuals of ethics and moral theology in the period
prior to Vatican II. For example, Fr.
Thomas Higgins’s book Man
as Man: The Science and Art of Ethics tells us:
Correction necessarily implies
corporal punishment. For all authority
must have the power of coercion, physical as well as moral. The young child in many ways is inclined to
act like an animal rather than a rational being. When he persists in acting irrationally by
continued disobedience, physical pain is the only effective corrective. Spare the rod and spoil the child is as true
today as it was in Solomon’s time. (p. 409)
Similarly,
in volume II of their Moral
Theology: A Complete Course, Fr. John McHugh and Fr. Charles
Callan write that “bodily harms (wounds, blows, restraint)” may be inflicted as
punishment if three conditions are met: the one inflicting them must have the
authority to do so (e.g. as parents or the state do); there must be sufficient
reason for doing so (such as the public good); and there must be “moderation in
the harm or pain inflicted” (pp. 129-30).
For example, “the father, or those who hold his place (e.g., teachers)
may administer corporal chastisements that are not of an irreparable kind to
his children (such as beatings, whippings)” (p. 130). Addressing what would count as excess, they
say:
While children should not be spoiled,
nor prisoners pampered, the other extreme of maltreatment or torture must be
avoided. It is cruel to box children
soundly on the ears, or to push them roughly about, or to tie them up in the
dark, as they may suffer permanent injury from such methods. Likewise, it is barbarous to send convicts to
a place or prison so horrible that they lose their minds or fall victims to
lingering disease, or to inflict excruciating punishments by rack, thumb-screw,
prolonged scourgings, etc. (p. 130)
Recent popes
too have affirmed the legitimacy of corporal punishment. In a 1957 address to Italian jurists, Pope
Pius XII stated:
The penal justice of the past, that
of the present to a certain degree, and – if it is true that history often
teaches us what to expect in the future – that of tomorrow as well, makes use of punishments involving physical
pain. (Quoted in John McDonald, Capital Punishment (London: Catholic
Truth Society, 1964), p. 15)
Pope
Francis, in 2015,
affirmed that mild corporal punishment in the form of spanking can sometimes be
a legitimate way to discipline children.
This is by
no means an exhaustive survey of the tradition, but it indicates how consistent
the Church has been in affirming the legitimacy in principle of corporal
punishment, and that this legitimacy is grounded in divine revelation no less
than in natural law.
Caning vandals?
Let’s return,
then, to the question of whether corporal punishment might be an appropriate
response to the current wave of political vandalism. Obviously, existing punishments for such
behavior are not a sufficient deterrent.
Now, as Aquinas and Higgins note in a couple of the passages quoted
above, one reason for resorting to corporal punishment is that the guilty party
will not listen to reason, and that the infliction of physical pain is more
likely to get his attention. It is
hardly implausible to suppose that at least many of those who are willing to
topple statues, deface artworks, or block traffic when they think the most they’ll
face is some jail time might be deterred if instead they faced the prospect of
a caning like the one inflicted on Michael Fay.
The
Singaporean statesman Lee Kuan Yew noted that caning
has an additional benefit, which is that it is humiliating. It isn’t just
physical pain that the offender faces, but public shame. Now, this is an especially appropriate
penalty to inflict on political vandals.
They evince a haughty contempt for the social order, the symbols that
represent its ideals, the decent feelings of their fellow citizens, and in some
cases even the ability of those citizens safely to get on with their daily tasks. Such vandals deserve to have contempt shown
for them in return. And the prospect of public shame as well as physical pain
may be necessary to counter the moralistic delusions that prod them even to
consider carrying out their public tantrums.
If they act like spoiled children it is fitting to treat them as such.
There is a strong case to be made, then, that corporal punishment for political vandalism of the kind that we have seen in recent years would be deserved and may be necessary. Of course, it is nevertheless unlikely that Western society in its current state would reconsider corporal punishment any time soon. The trend today, at least among the intelligentsia and governing elites, is in the opposite direction, toward ever greater discomfort with the very idea of punishment, let alone corporal punishment. Things will likely become much worse before Western societies are willing to do what is needed to make them better. Refraining from inflicting harsh punishments when they are not necessary is a mark of civilization. But refraining from inflicting them when they are necessary is a mark of decadence.