The Demise of Capital Punishment in the Culture of Death and the Relationship between Pain and Punishment

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D. The Analogy of Bodily Pain

A toothache, a headache, a splinter under the nail, a sprained ankle, a broken bone: each of these has its own specific quality, and each is a kind of pain with its own content. And in each case, it is not the cause which determines the kind of pain experienced, but rather the bodily place or "locus" in which one experiences the pain. In this respect, the physical pain is purely and, we can add, merely subjective. It reflects the subject rather than some object which is its cause. In this sense the purely and merely subjective character of the pain reveals to the subject something about the nature of his being: his tooth, his head, his nail, his ankle, or his bones. In each case, he feels the pain in a definite place or location of his body.

In contrast, the pain of the innocent in separation from a value reflects the nature of the object from which one is separated. The pain of losing a beloved child is different from that of losing a friend or a neighbor whom one affirmed. The loss of a beloved spouse is in its specific quality and content different from the pain of losing a parent. In all of these cases of a spiritual pain, determined by an intentional relation to the object, it is the object that determines the kind of spiritual pain one suffers. This is the case even though there is also a relation to a spiritual place or "locus" in the person where the pain is felt. It is, indeed, the soul that hurts. Here also there is a revelation of our subjectivity; we learn something about our own spiritual nature. But we learn this only in relation to the object and its specific intrinsic goodness or value. The soul experiences the pain at different depth levels within itself. The specific depth at which one suffers the loss of a beloved spouse is deeper than the one on which one suffers the loss of a dear friend. The same can be said, as Dietrich von Hildebrand pointed out in his early work, Sittlichkeit und Ethische Werterkenntnis, of the whole hierarchy of values to which there corresponds a depth structure of the soul: the higher the value, the deeper is the "place" within the person from which the person relates to the value. (75)

In the case of the guilty person who goes against a good or value, there is no corresponding spiritual pain. As we have seen, the specific quality of the innocent's suffering at the separation from a value presupposes an affirmation of the good or value. In the case of the guilty person, guilt is constituted precisely by the negation or rejection of the good or value in question. The betrayal or abandonment of a spouse do not, as such, bring as a consequence the kind of suffering that occurs when one is separated from a beloved spouse through no fault of one's own. It is simply not the case that the guilty suffer the same kind of pain as the innocents who are not responsible for the separation from the value. Thus, it cannot be said that the suffering of the damned in Hell is simply the sense of loss of God with no hope of regaining Him. The pain of Hell is not simply a "dark night of the soul" with no hope of seeing the dawn. The qualitative pain of the dark night of the soul intrinsically depends on the continuing affirmation and love of God. But the damned are damned precisely because they rejected God. Their pain is qualitatively different. How, then, are we to understand the pain and suffering of the guilty?

E. The Specific Pain of the Guilty

First, we can speak of it on the analogy of physical pain. It is a "place" or "locus" within the soul that suffers. It is true that the spiritual "place" that would have been "filled" in the affirmation of a specific value remains empty when that value is rejected. This is something like a physical hunger in the soul. More appropriately, one could also use the term restlessness. In this respect, it is similar to the spiritual suffering of the innocent. These too suffer because of the inner sense of emptiness or absence of being "touched" and "filled" by a good or value. But this is a formal or external similarity. For the innocent, as noted, affirm the value from which they have been separated. Their experience is not primarily directed at the sense of loss but at the value, which they continue to affirm. Thus, it is the loss of the beloved which is painful. Because of this, it is a different kind of pain than the pain of the guilty. In the latter, it is the loss of satisfaction that determines it to be a different kind of pain.

We can say that the spiritual direction or orientation is entirely different in each case. In the case of the innocent, the orientation is toward the value. The innocent affirms the value he is separated from, even after the separation. Consequently, the content of his pain directly corresponds to the separation from the value. The very qualitative content of the pain corresponds to the loss and the value in question. In the case of the guilty, the spiritual orientation is away from the value and, indeed, it may even be against the value. Because there is no affirmation of the value, there can be no pain of separation in qualitative correspondence with that specific value. Nevertheless, a real and mysterious affinity exists between the guilty separation from a value and pain as a consequence of that separation, an affinity that is accessible to intuition. It remains to clarify this intuition.

In the case of the innocent separation from value, the resulting pain is qualitatively determined in its kind by the value. Thus, the pain is of this or that kind because it is a separation from this or that value. The very kind of pain at issue necessarily presupposes a continued affirmation of the value. To the extent one is focused on the value and its affirmation, the intention or motive of the one who suffers is not to avoid the pain. It is this continued affirmative relation to the value that allows the value to specify the kind of pain the innocent suffer when separated from it.

In the case of the guilty individual, precisely because a value is not affirmed but in fact rejected in its value-content, the value cannot directly determine the kind of pain suffered in the separation. And in the existential situation of this world, the guilty do not suffer the specific pain determined by the value which is rejected. Yet, we can say of the guilty individual that he deserves pain and suffering; not just suffering in general, but a specific kind of suffering that meaningfully corresponds to the kind of violation at issue. We are faced with a basic intuition into that metaphysical law of personal being discovered in the beatifying relation between an objective and intrinsic value and the filling of an inner spiritual space within the person. Objectively there is no "should" or "ought" in the strict sense of the word. The intrinsic value does engender a filling of the soul when the latter affirms and loves it. (76) And a pain necessarily follows the soul's separation from the good, but only to the extent that the good is still affirmed and loved. In contrast, in the case of the guilty--those who separate themselves from a specific intrinsic value or good by going against it--the corresponding pain does not follow on the level of conscious experience. But it should or ought follow. Justice requires that it should. The absence of pain in the subject that rejects the good would contradict the sovereignty of the good. (77) A consequential property of the sovereignty of the good, namely, something that necessarily follows the sovereignty of the good, is its metaphysical capacity to fill, to perfect, or to beatify (78) the subject who gives the affirmation that is due to the good in its sovereignty.

What specifies this pain and suffering which is intuited as somehow proper and due for the rejection of a good? For the answer one must return to the above-mentioned correlation between a hierarchy of objective values and the inner depth levels in the personal soul. Two things need to be noted. First, the objective value prescribes the place in the inner depth of the person from which the person should relate to the value in question and the depth at which the experience should take place. The relationship to a wife should be deeper than the one with a friend, to say nothing of a drinking buddy. Second, the objective value has a metaphysical capacity of touching and moving the person at a specific depth corresponding to the height of the value in question. Without developing the point, it is enough to say that the value can be beatifying. It can both fill the person and quicken the soul, bringing the soul to life at that specific depth. Here one can use the word "happiness."

In the case of the guilty who reject a specific value, the corresponding depth dimension is not filled. But something more occurs. The depth level from which the value should be engaged is now the place from which it is negated. It is on that depth level and from it that the negation of the value occurs. Although the subject does not feel the emptiness in the same way that the innocent who may be separated from the same kind of level, there is a profound disturbance at the indicated depth level of the soul. Hidden below the surface, it has all the reality of what Kierkegaard described under the various forms of despair. (79) It is the same thing described as existential anguish or angst by Heidegger, (80) the same reality manifesting itself across the wider spectrum of what was called the lost generation after the sixties. This experience is more properly called suffering than pain. This spiritual pain is grounded not simply in the seeking of satisfaction, but in the profound realization that in seeking satisfaction as one's "ownmost" possibility one is pursuing the impossible. The despairing pursuit of the impossible is compounded by the realization that one has yielded to the desire for satisfaction and lost possession of oneself. The specific kind of pain in question can be called a metaphysical pain or suffering. (81)

The metaphysical pain occurs in the interiority of the spiritual soul. It may lack the explicitness of a full blown despair. It has, nevertheless, all the reality of pain or suffering as passivity. In this sense, it manifests an intrinsic connection to the rejection of the value. (82) In this regard, it is externally or formally similar to the suffering of the one innocently separated from a value he affirms. The fundamental difference is that the innocent affirm the value from which they are separated while the guilty reject it. Thus, the qualitative pain is determined by the place or locus within the soul it occurs. But it is also characterized by the inner hostility of the soul to the value in question. In its qualitative content, therefore, it also manifests the specific bitterness of bile and spleen, of anger and hatred that belongs to the act of rejecting the value.

A question arises from this: can the specific nature of this interior spiritual suffering and pain of the guilty qualify as punishment in such a way that it requires no further punishment in the external or public order? If it did, there would be no further need of a punishment that would fit the crime. Indeed, from the metaphysical perspective, punishment as such would have no grounds for its imposition in the public order. Any pain inflicted on the criminal would have to be justified only by its deterrent or medicinal function with regard to the individual's participation in the social or public dimension. Nevertheless, we must also focus on the nature of the act as a crime, not simply as an act against some good or value outside of the one acting.

V. THE PROPER CHARACTERISTICS OF CRIME AND PUNISHMENT

A. The External and Public Dimension of Crime and Punishment

So far we have been talking about the separation of the guilty from a value or a good This involves an inner rejection of the value or good. The fact that we are dealing with a good that transcends the inner act of the individual does not, as such, give the rejection an external or public character.

The current debates about capital punishment would seem to lose all justification if punishment did not involve in some way the external or public dimension that involves the individual's bodily existence. Pope John Paul II and the Catechism's reference to non-lethal means focuses us squarely on the external or public dimension of punishment. (83) This is clear in the treatment of punishment as a defense of society and individuals against criminal acts.

With the term "criminal" we indicate something distinct. It involves the external or public dimension. But within the public sphere, it involves something more than simply the public rejection of a value or a good. At stake is not the value or good that may be involved, but the right of an individual that is violated by this act of rejection. What makes an act a crime rather than simply the rejection of a value or a good is the fact that it appropriates or refuses to give what belongs to another. The punishment due to such an act is not simply the pain that follows the separation of the guilty from a value or a good. The consequences of such a separation automatically occur in the inner dimension of the guilty.

The task at hand is to show that punishment can and should be understood first and foremost as the imposition of pain in the external dimension of the criminal's bodily existence. Even if we recognize that there is a certain fittingness in the inner pain a criminal feels in his separation from the good he rejects and violates, one can still claim that punishment is a matter left to the final judgment of God. Consequently, we can hold that the criminal "ought" to be punished in a way that addresses his inner being and still that this "vengeance" is the Lord's, not man's. What needs to be grounded is the more difficult oughtness of an external pain invoking the bodily dimension as fitting the inner spiritual disproportion between the criminal act and the good rejected and violated. This disorder exists objectively as guilt after the crime even if the criminal has repented and is no longer a threat to others.

Crime will always imply an inner rejection of the response due to a value or a good. The criminal situation is always not simply interpersonal, but it is also antipersonal. It involves the violation of the victim's sovereignty over his own being and what belongs to him. The punishment in question might involve aspects other than pain. It calls for a restoration to the victim, when possible, of what was unjustly taken. But this is not sufficient to constitute the inner essence of punishment for a crime. Such restoration returns to the victim of the crime what legitimately belongs to the victim and can be done without punishing the criminal. A just punishment [or a crime is a response to the criminal's guilt. (84) Guilt is the state of owing a unique debt. Restoration or restitution involves giving back what still belongs to the victim. If this is not possible, restitution may involve depriving the criminal of something equivalent that originally belonged to the criminal, not to the victim. This belongs to but is not equivalent to punishment.

Punishment involves depriving the criminal, in some appropriate measure, of sovereignty over his own being "in the world." As a response to guilt, punishment addresses the criminal in and deprives him of his self-possession in some appropriate measure. The moment of guilt is constituted not simply in the "crime" of taking what belongs to another, but rather in refusing to "hear" the "Mine"--not of the victim--but of the original Sovereign. The "mine" spoken by the victim to the aggressor is the expression of a just claim; it is neither a command nor a law. Prior to or at the moment of aggression, the victim cannot demand of the aggressor a submission, much less a self-donation to himself. He can only defend himself or call for help. The "yours" spoken to the victim by the original Sovereign with regard to what is given him is not addressed to the aggressor. Logically equivalent to a "his," it becomes a sovereign address to the aggressor only when the latter initiates his aggression. It is a "you will not take what is his" that claims the self-donation of obedience due to the Sovereign. In its violation, this claim becomes a debt due to the Sovereign and is the "substance" of guilt as juridical guilt. (85) This is the negative account of the case. In positive terms, punishment restores over the aggressor the sovereignty of the one who grounds and justifies the victim's right to what is his own. It enforces the Sovereign's claim to "ownership" of the aggressor--and his obedience--by an act of power that effectively deprives him of exercise of self-possession with regard to what is his own in the external dimension of his being. All this is distinct from the restoration of what belongs to the victim.

Without going into a more extensive consideration of the foundation of rights, it is enough to note that man's genuine ownership or sovereignty over his being and what belongs to him can be grounded only in God, and this not simply in His power but primarily in His goodness. It is the sovereignty of the good that is the ground for what is given to man as "his own." Thus, while this sovereignty of God can be rejected in the inner sphere of the individual without ever violating the rights of others, the violation of the right and therefore the sovereignty of another individual over what is his own is always interpersonal and antipersonal; it is a public act. And as a public act it also violates the sovereignty of God as guarantor of what belongs to others as "their

own." The specific nature of criminal punishment is the restoration of divine sovereignty in the public sphere as a guarantee and "sanction" of ownership against dispossession by another. In this sense, the restoration of just order is not and cannot be simply a restoration of what belongs to the victim. It must include a restoration of the sovereignty of God as a public measure for the scope and limits in the exercise of individual self-possession in the external dimension of human existence, a measure that is of particular significance since the public use and external effects of this power can impede, hinder, or destroy the "externalization" of self-possession on the part of other persons. In this regard, the public presence, as it were, of God's sovereignty, is a negative measure for the "You shall not steal." (86) It is grounded in the positive "law" of the gift of each human being to all those who constitute his neighbor. The direct end of punishment is to render impotent in the public sphere the criminal's act of wrongful claim to absolute sovereignty in that sphere. The restoration of the sovereignty of God in the public order calls for the separation of the criminal from what was originally his own only because it was given to him by God. It should be emphasized that this involves the criminal's "ownership" over his being and goods as this manifests itself in the external order, not the internal order. Such a separation of what belonged to the criminal--to what he has attached himself (87)--is intrinsically painful since it involves a detachment from what has become, on the level of experience, an identifying "part" of his self-experience, namely, the exercise of his self-possession in taking possession of what belongs to others as if he were the legitimate sovereign.

With the above considerations in mind we can aim at a new and deeper perspective on criminal punishment inasmuch as it involves a restoration of just public order (88) by reaffirming the sovereignty of God over the criminal who rejects it by unjustly appropriating what belongs to others.

B. The Meaning of "an Eye for an Eye"

First, it must be noted that the punishment cannot be understood properly if it is taken as a lex talionis in the literal sense, that is, requiring a hand for a hand or an eye for an eye. The objective principle of lex talionis is simply that he who commits a crime will be punished by the deprivation of something that was his. The principle presupposes a personalist understanding of the situation. As an act of injustice, the crime is the taking of what legitimately belongs to another person. It violates the requirement, by a lawful word of the higher Sovereign, that one respect the sovereignty of the other person over what is his own. As such, the violation creates a disorder. The restoration of order requires two things. First, if possible, is a restitution to the victim of what was taken or its equivalent. Second is the restoration of the sovereignty that validates legitimate ownership over against the criminal in his interpersonal and public act. This requires an act of public authority against the rejection of the other in the violation of the other's rights. This second aspect, therefore, involves the external or public dimension of interpersonal relations. The requirement becomes actual after the crime, and it no longer involves legitimate defense of self or of others. Recall that this requirement is a response to the guilt, not to the criminal act and its external damage to others. In its public aspect, however, the punishment is the reaffirmation and restoration of a state of affairs grounded in the fact that human persons not only receive their own existence as a gift, but that of each of their neighbors as well. In this regard, each human person is not only obliged to receive the gift of the other, but also to confirm the intention of the Giver, by which he is given to his neighbor, through a "sincere gift of himself" to the other. (89) Such receiving and giving has as its metaphysical presupposition the power of self-possession introduced above as an essential aspect of sovereignty. The obligation of mutual receiving and self-giving has a law-like character--as a law of reciprocity (90)--because it is demanded by the absolute Sovereign, who can alone demand self-donation on the part of a created person.

The restoration of the just order in the public sphere must involve an external or public act against the criminal's illegitimate arrogation of sovereignty over other human beings. In this context, note that this "against" cannot be undertaken by individuals in self-defense, but only by public authority. Defense of what belongs to the intended victim before the crime is completed does not touch the fact that the criminal has also taken and publicly affirmed his illegitimate arrogation of his own and others' being. In terms of the preceding analysis, the criminal has kept his own being for himself and acted against God's sovereignty as the source and guarantor of the sovereignty of others over what has been given to them. Punishment in the public order has as its …