Chapter 11
Principles of Justice for the Modern State

All of God's justice finds its climax and fulfillment in Jesus Christ and his work. All the treasures of God's wisdom are hidden in him (Col. 2:3). Christ's sacrifice does not abolish justice or replace justice with mercy, but shows the way in which God's justice and mercy come together (see Ps. 85:10-13). What implications does God's justice have for the modern state?

The nature of state responsibilities

Since the beginning of time, God has always been Lord and ruler of the world and everything in it. Christ was the Word of God, the Second Person of the Trinity, from the beginning (John 1:1). He came into the world as the One who had always been its lawful ruler (John 1:10-11). But he came also as the Messiah, the God-man who would redeem the world and fulfill the purposes of God's rule. Christ's death and resurrection established him as Messianic, saving Lord and ruler over all authorities, including state authorities (Matt. 28:18; Eph. 1:21-22). "God placed all things under his feet" (Eph. 1:22). He is "head over every power and authority" (Col. 2:10). State authorities in the New Testament as in the Old derive their authority from God (Rom. 13:1-7) and perform legitimate functions in bringing "punishment on the wrongdoer" (Rom. 13:4). The Old Testament also requires kings and judges to rule according to God's standards of justice, both Israelite rulers (Deut. 25:2; 2 Chr. 9:8; Isa. 10:1; Jer. 22:2-3; 1 Kings 2:3) and others (Prov. 16:12; 29:4; 31:4-5; Ps. 82). Since all authority derives from Christ, all authorities are answerable to him. All actions of the state ought to conform to God's standards of justice revealed in Christ.

To this much nearly all Christians assent. But disagreements arise among Christians over the details. Christians disagree first of all over the question of whether Christians should actively participate in the exercise of state power. Christians in the Anabaptist tradition argue that the state's authority to punish wrongdoers is incompatible with the Christian's responsibility to show mercy. Most Anabaptists recognize that for the good of society some people must serve as officers of the state, but they prefer to leave the responsibility to others besides themselves. By contrast, Christians in Roman Catholic, Reformed, Lutheran, and modern Baptist traditions have usually affirmed the legitimacy of Christian service in the state, but they have sometimes understood the state's role in different ways.

We must avoid being overly dogmatic on questions about which Christians have disagreed for centuries. Problems arise over these matters partly because the New Testament does not give a great deal of specific, direct teaching concerning the relationship of the state to God's authority. The Old Testament contains considerable teaching of this type, but Christians have not always agreed on the manner in which the Old Testament is relevant to us. We must recognize our own fallibility. We must recognize that our own understanding of Scripture is imperfect. We must realize that sinful tendencies in our own hearts and in the culture around us may push us into biases. A false kind of mercy in us wishes to avoid any thought of punishment. Or a false kind of justice wishes to use the state harshly to eliminate all evil from the world immediately.

Even though the path is difficult, we have a responsibility for the sake of Christ's glory and for the sake of more consistently obeying him to think through the implications of his justice for our lives. So let us proceed.

The modern state derives its authority from God and from Christ (Rom. 13:1-7). Yet it does not have all the prerogatives of Christ or even the prerogatives of the church. For example, it cannot pronounce pardon for sins. Pardon and forgiveness before God come only through Christ. Only God himself can forgive sins. Though the church cannot pronounce pardon on its own authority, it nevertheless has a real judicial power of "binding and loosing" (Matt. 18:18; John 20:23) through the presence of the gospel and the power of the Holy Spirit. The church acts with Christ's own authority and as his representative when it pronounces judgments in accord with his teaching. In a fundamental sense the pardon of God is a judicial pronouncement from heaven, and can be received only from God's heavenly presence. Christ's death on the cross on earth satisfied the divine penalty for sin. We appropriate his pardon when by faith we are united to Christ in heaven. Both individually and corporately we are seated with Christ in the heavenly realms (Eph. 2:6). The state, by contrast, is firmly confined to earth. Even though it has divine authority, it does not give us access to heaven.

Thus in a sense the Anabaptists are quite right in seeing a pronounced distinction between the task of the state and the task of Christians. Christians who are united to Christ have a heavenly citizenship (Phil. 3:20). They have access to the assembly of saints on the heavenly Mount Zion (Heb. 12:22-24). They practice mercy on the basis that the Lord has been merciful to them (Matt. 6:14-15; 18:21-35). By contrast, Christ has not been merciful to the state, united it to himself, or exalted it to heaven. It is an earthly institution that ought to reflect God's justice.

Nevertheless, I would argue that Christians can properly serve as officers of the state. They must simply recognize that the obligations of the state are not identical with the obligations of the individual Christian or of the church. Jesus' instructions about forgiving and showing mercy set forth a pattern of justice that fits the situation of Christians united to Christ, but does not fit the situation of state obligations. State authorities are "God's servant" according to Rom. 13:4. Christians who are officers of the state obey Christ and function as genuine servants of God when they supervise the punishment of a criminal. But state action is limited to an earthly sphere of governmental authority. The same Christian who as a judge pronounces judgment may as a Christian pray for the criminal, exhort him to repent, and perhaps even give him some gift to bring happiness into his life.

There is no inconsistency or even psychological tension between these two sides to Christian behavior. For the criminal's own good the criminal must feel the weight of God's preliminary punishment. He must be reminded of the more ultimate consequences of crime when God's last judgment comes. He must see a little earthly picture of God's justice in order that he may perhaps realize the seriousness of God's justice in its more ultimate forms. To withhold punishment from him is like withholding a legitimate discipline from a child. Reluctance to punish manifests not love but false sentimentality and escape from responsibility. At the same time, Christians want to present to the criminal a positive message of hope and new life based on the gospel. Only Christians, not the state institution as such, have the equipment to bring such a message, for only they are united to Christ in the heavenly realms. Only they are clothed with Jesus Christ (Rom. 14:14) and so have the spiritual armor of Eph. 6:10-20 to do battle for the souls of human beings.

Thus we may say that state-supervised punishments present a kind of shadow of God's judgment, while Christians through the gospel present the reality to which that shadow points. That is, Christians present the reality of Christ's penal death and the reality of hell awaiting those who do not put their trust in Christ. When human beings have injured other human beings, both the shadow and the reality need to be presented. The shadow punishment rectifies an immediate human wrong on an earthly plane. When coupled with gospel proclamation of the reality of ultimate judgment, the shadow itself is filled with meaning as a pointer to Christ. But by itself it is only a shadow and does not bring deliverance from spiritual death.

Thus I think that Anabaptists have a genuine insight into the distinction between Christian obligations and state obligations. But they have stopped short of the fullest exercise of love and mercy. Punishment does have a role in genuine mercy. It is a reminder of the consequences of sin. People who sin need such a reminder, and if we really love them we will give them what they need. We are not to shrink from punishment when God enjoins it, as he does in Rom. 13:1-7. Moreover, our neighbors need the state and its punishments for their good. The basic principles of loving God and loving our neighbor as ourselves push us into a positive commitment to supporting the state in its proper God-given functions. In short, a fuller view of love and mercy recognizes not only the need but the appropriateness of state-supervised punishments as a shadow along side of the Christians' responsibility to show forth the glory of Christ.

Principles for just state punishments

What penalties are just for the state? In this area also we meet much disagreement. Christians have agreed in large measure over what things are sins, but over the ages there has been much diversity of opinion over what sins warranted official punishments and over what the punishments should be. Again we must be cautious.

Our best course is to start with the principles of justice that we have already derived from the Old Testament, and to supplement our insights by delving into both the Old Testament and the New Testament in greater detail. We must also keep before us two complementary principles with respect to the state. First, the state derives its authority from God, is answerable to God for its actions, and must endeavor to embody in its laws and its punishments the standards of God's justice. Second, the state has a limited authority, an authority over a limited territory on earth. It cannot release criminals or pardon them on the basis of Christ's sacrifice, because access to Christ is by way of faith in Christ and spiritual union with him.

Third, the state deals with injuries against other human beings, not injuries against God.¹ Such a limitation arises from the differences between the role of God and the role of human beings in executing punishment. As we have seen in chapter 9, distinct punishments correspond to the two types of offense. Injuries against God are redressed by God, both in a final form in hell and in a preliminary form through disasters brought by God. Injuries against human beings are redressed by the victim or a representative of the victim. Typically redress takes place by repayment to the injured party. The state can never be responsible to make sure that people give redress to God, either by compelling them to faith, or by consigning them to hell. It does have responsibility to see that human injuries are redressed, but such redress is often imperfect.

The state must not insist on attaining divine perfection. It cannot wait until all the facts are in before judgment is pronounced; it must rely on a looser principle like "guilty beyond reasonable doubt." Moreover, it cannot hope to redress all wrongs. It must be content with partial redress in many cases. The very imperfections of human justice are one way, as we have observed, that such justice continues to provide a pointer to the ultimacy of God's justice.

In particular, the limitations of state require that due legal process must be used. No penalty ought to be executed until guilt has been established. Evidence given against accused persons must be adequate to convince human judges of their guilt. Moses indicates that two witnesses are necessary for conviction (Num. 35:30; Deut. 17:6; 19:15). This provision appears to be a matter of general principle, so general in fact that it can be invoked even in the case of divine testimony (John 8:17-19; 1 John 5:8-9). But this provision also embodies common sense. Human judges would be unable to render a confident decision if they have only the witness of one person against the witness of the offender. In practice, this provision also protects people against malicious witnesses (Deut. 19:16-21).

If I am correct in thinking that independent corroborating evidence is the important issue, material evidence such as fingerprints might also be used as a substitute at times for a human witness (such appears to be the case in 1 John 5:8-9; Deut. 22:13-17). On a more general level, the practice of weighing evidence and counting a person innocent until proven guilty is so clearly wise that it has deeply embedded itself in Western justice. Such practice fully conforms to God's justice and the principles of state responsibility.²

Next, the state has an obligation to act only when disputes and injuries are not settled privately. For example, if a thief repents and restores to the owner what he has stolen, as in Lev. 6:1-7, the case would never come to court. Similarly, if one man hits another and knocks out a tooth, the offender and the injured person can negotiate a monetary payment. Only if the injured person was not satisfied with what the offender offered would he bring the case to court, and then the judges would inflict the specified reciprocal penalty (Lev. 24:19-20). Thus in many cases the penalties in the Old Testament represent not a penalty used every time, but a maximum penalty.³ They fix a limit on the requirements of restitution and a limit on the demands for vengeance. In the case of some serious violations, however, the penalty must be enforced as is and cannot be diminished (Num. 35:31; Deut. 13:5, 8-9; possibly 19:21).⁴

In my judgment, the same principles apply now. Generally speaking, the state should take a hand in actual punishment only when the offender and victim are unable to negotiate a suitable solution more privately. Sometimes the privately negotiated solution might include the offender's apology and spiritual reconciliation as well as monetary restitution. Because of its potential spiritual dimensions such a path is clearly superior. Judges or other official mediators would of course aid the negotiation and take care to protect the victim.⁵ However, murder and crimes involving usurpation of state authority cannot be dealt with privately, because of their extreme seriousness (cf. Num. 35:31) and the lack of the authority on the part of the state to pronounce pardon.

The earthly character of the state and the imperfect, shadowy character of its justice resemble the situation of Israel in many ways. There is something to be learned from Israelite law about ways in which God's justice can be concretely embodied and practiced by imperfect agents in an imperfect world. But as we examine the Old Testament we must constantly be aware as well of the way in which Israel and its institutions foreshadow the great work of Christ. Only in such a way will we learn deeply about God's justice. Only so will we also avoid certain mistakes in interpreting the implications of Mosaic law. As we have seen from chapter 10, the passage in Deut. 13 about false worship, when properly understood, points forward to Christ's victory over demons and the church's activity in excommunication, not to a holy war conducted by a modern state. Generalizing from this example, we may say that we need special circumspection when we deal with Old Testament penalties that express the special holiness of Israel and punish profanation of her holiness.

In all the cases that we undertake to analyze, we will focus on the twin features of restoration and punishment, sometimes called "retribution." Each crime deserves a penalty that justly fits it, a penalty that restores damage and brings balanced punishment on the offender. When cases come before the state, the state is responsible before God to ensure that just retribution takes place. In some cases fit punishment may also achieve subsidiary results in terms of deterrence and rehabilitation. That is, the threat of punishment for a particular crime may motivate some people not to engage in the crime--it may deter them. The type of punishment may also on occasion prove to be a means of reintegrating the offender into society in a positive way. The thief who is forced to repay may learn the value of honest work in the process (cf. Eph. 4:28). Deterrence and rehabilitation are thus extra secondary benefits flowing from just practices on the part of the state.

But now we must introduce a caution. The present atmosphere of humanism tempts us to formulate punishments exclusively on the basis of factors of deterrence and rehabilitation. According to modern humanism, retribution is barbarous. Kindness should motivate us to seek the other people's good by encouraging them not to commit crime in the first place (deterrence) or helping them out of a pattern of crime (rehabilitation). Humanism understands nothing of restoration and punishment because it does not acknowledge a divine order and the reality of divine wrath against sin.

Despite its plausibility, basing punishment exclusively on deterrence and rehabilitation is ultimately inhumane. As C. S. Lewis eloquently argues, the elimination of restitution and retribution convert the offender into an object to be manipulated rather than a person responsible for wrong-doing.⁶ Moreover, no boundary remains between crime and personality problems. Why not deter people beforehand by shutting them up or operating on their brains before they have the temptation to commit a crime? In addition, rehabilitation becomes a code-word for unlimited bondage. The criminal is restored to society not when he has paid his debt but whenever the therapist is satisfied that his personality has been sufficiently readjusted. No form of torture is excluded if the effect promises to be suitable to the rehabilitator. For these reasons we must resist the plausible attractions of current humanism and continue to maintain the appropriateness of reasoning in terms of retribution and fit recompense.

Modern culture has infected and corrupted even Christian thinking more deeply than we may realize. We must train ourselves to exercise unusual self-control, patience, sobriety, and wisdom in considering issues of punishment. Partly because of modern culture, we are tempted at times to operate wholly in terms of deterrence. We feel uncontrolled indignation against crime and then advocate unjustly harsh measures to deter it. At other times, we are tempted to operate wholly in terms of rehabilitation. We feel uncontrolled sympathy for offenders and then advocate unjustly lenient measures in hopes of rehabilitating offenders through kindness. We are not used to conforming our thinking and our sentiments to standards of justice. We must be prepared to make adjustments.

In the arguments to follow I do not claim to have infallible answers. But I would ask you to be open minded and to consider not only my arguments in favor of certain punishments but arguments in chapter 14 against the present-day preference for punishment in the form of imprisonment ("doing time").