Sexual Misconduct and the Church Book

My response from an 800 level course on Political Theology:
Witte and Alexander, who alphabetically encompass their contributors, set out in this volume to examine the influence of the Western Christian tradition on the development of the Western system of jurisprudence. They also wish to demonstrate the positive influence of this development, and to suggest that a fuller understanding of and appreciation for this relationship would be profitable for the future of Western jurisprudence. In addition to this, they also suggest that more explicit mining of the Western Christian tradition may provide valuable insights for new and creative answers to contemporary problems in Western jurisprudence.
While the explicitly Christian bias of this goal may seem suspect from a secular perspective, the fact that the contributors as all eminent legal and historical scholars at leading institutions mitigates against ant suggestion that this enterprise is a move by a fringe group that is out-of-touch with the concerns of the legal discipline in general. Since the overall thesis of the book is necessarily vague'uniting as it does the specific theses of some seventeen authors'and since interacting with each of these individual theses is beyond the scope of a response like this, I will focus on and interact with Jeffrie Murphy's "Christian love and criminal punishment."
In this chapter, Murphy proposes to examine the idea of law organized around love of neighbor rather than justice, as the basis of criminal punishment.1 He notes that this does not necessarily presume justice and love to be at odds with each other; in fact, love demands justice. Love, however, may press juridical thinking to broader considerations and more creative responses than a concern for justice alone. Murphy explicitly rejects the idea, put forward by Thomas Shaffer, that forgiveness and love necessarily reject punishment.2 In defining what he means by "love," Murphy accepts the classic'though linguistically erroneous'distinction between the Greek words philia (friendship love), eros (erotic love), and agape which is, "universal (that is, non-particular)... love of neighbor."3 While sharp distinction between philia, and agape may be linguistically problematic, it does no violence to Murphy's argument to use the distinction for the sake of definition.
Murphy uses Jesus' commandment of love in Luke 10:25-37 to explain what such a refocusing would mean for a reorganization of law. First, a love-based law sees the human soul as the primary concern; simply concerning itself with the body is not sufficient. Second, in defining what action love demands, we must understand that the parable of the Good Samaritan defines who the neighbor is, not what action love necessarily requires. The neighbor is defined in universal terms by this parable: the person least connected to the victim's own tribe is the neighbor in the parable. Murphy does not interact with the fact that it is the man who demonstrates love who is defined as the neighbor; if the Samaritan is a neighbor, while the Pharisee and the Levite are not, then perhaps the term "universal" is too strong. Most technically, Jesus is demonstrating that neighbor is not defined by geography or tribal connection, but by action. Implicit in the fact that they are discussing a command, however, is the call to such action, so Murphy's application still works. It does seem that the parable does also have something to say about what love is; a point which Murphy dismisses. I do not think, however, that this obviates Murphy's later statements about love: in the context of the parable, the Samaritan's actions to the robbery victim are love. What love would demand of the Samaritan's actions toward the robbers, given the opportunity, are not discussed, and need not be assumed to be the same thing. Love mandates forgiveness, but forgiveness does not forbid punishment.
Murphy proceeds to a very helpful discussion of the relationship between forgiveness and punishment. He defines forgiveness in distinction to justification, excuse, mercy and reconciliation. In justice one excuses the offensive conduct as being permissible due to circumstances; in excuse the conduct is excused because the perpetrator is not viewed as a fully responsible agent; in mercy one primarily makes the punishment less harsh than one could'but Murphy also notes that mercy is less personal in character than forgiveness because it is more institutional, usually granted by one who is not themselves a victim of the conduct, but in charge of the institution harmed (a judge acting for the legal system for example). Reconciliation is closely related to forgiveness but not always united (an abused spouse may forgive the abusive spouse without moving back in). What is significant in love-centered forgiveness is not that punishment is forbidden, but that punishment cannot be born of hatred or vindictive passion. As such, in discussing the death penalty as something of an ultimate text-case, Murphy points out that capital punishment is not inconsistent with love-centered legal theory. However, the frequent appeals to Augustine to justify the death sentence among those who are enthusiastic for its application are grossly overstated: Augustine asserts "the right of the state to execute but also [argues] that it is almost always wrong for the state to exercise that right."4
I believe Murphy lays out a very useful exercise in this chapter. I believe in its current form it is probably more applicable as a critique of many Christian attitudes toward criminal justice than as an apologetic for using Christian ideals in secular jurisprudence. To apply such a suggestion in the latter context the central definition of love-centered law as concern for what happens to the soul may present a problem. What happens to the soul is expressly a matter of theology or metaphysics, and thus is not a necessarily agreed upon standard. In order to strengthen this discussion outside the Christian context Murphy would be aided by developing the idea of basic norms in all religious and atheistic thinking concerning the value of the individual human as the basis for thinking about how punishment may be applied with a focus toward benefiting the soul.