Murphy's critique

Murphy sets the familiar moral objections to penal substitution to one side in order to argue that ‘The problem is not that penal substitution is immoral, but that it is conceptually defective.’Footnote ⁴ The problem arises because punishment, in Murphy's view, is not merely an authoritative imposition of hard treatment upon a person for the failure to adhere to some binding standard. Murphy thinks that hard treatment authoritatively imposed for violations of private-law norms, like compensatory awards in tort, or for infringement of various rules in sports, are not punishments. He holds, following the suggestion of philosopher of law Joel Feinberg, that a necessary condition of punishment is that ‘punishment expresses condemnation of the wrongdoer, of the wrongdoer as performer of the wrong’.Footnote ⁵

Murphy lists two virtues of Feinberg's suggestion. (1) It carves the cases properly. In contrast to criminal cases, sports penalties and tort awards do not typically involve expression of condemnation. Only in criminal cases are defendants found guilty. (2) It makes intelligible the fact that crimes have guilty mind (mens rea) conditions as essential elements. In criminal law one is not found guilty simply for wrongdoing (actus reus) if one performed the act unknowingly or without a blameworthy volitional state (e.g. intentionally, recklessly, or negligently) and so lacked a mens rea. It also explains the defence strategies of showing that the accused had some excuse or justification for the wrongdoing and so is not to blame.

If this necessary condition of punishment is correctly formulated, Murphy concludes, then punishment expresses condemnation of the person punished. If that is right, then one cannot punish a person whom one does not take to be worthy of condemnation. And one cannot regard a person as worthy of condemnation unless he has actually done the act for which he is condemned.

Murphy concludes flatly, ‘The classic penal substitution view of the Atonement is incoherent.’Footnote ⁷

Assessment

I think that Murphy's critique of penal substitution is multiply flawed, its principal merit lying in the host of fascinating questions it raises. To begin with, we need to get clear on what exactly the doctrine of penal substitution asserts. According to Murphy, ‘The penal substitution theory of the Atonement holds that human beings, on account of their sins, deserve to be punished, but that Jesus Christ was punished in our place, so that we no longer bear ill desert.’Footnote ⁸ While this is certainly one popular articulation of the theory, it is far from universal. Some defenders of penal substitution recoil at the thought that God punished His beloved Son for our sins. For example, John Stott advises, ‘We must never make Christ the object of God's punishment.’Footnote ⁹ Even in their ringing defence of penal substitution, Steve Jeffery, Michael Ovey, and Andrew Sach do not define penal substitution in such a way as to imply that Christ was punished in our place. Rather they offer the more subtle explication: ‘The doctrine of penal substitution states that God gave himself in the person of his Son to suffer instead of us the death, punishment, and curse due to fallen humanity as the penalty for sin.’Footnote ¹⁰ If we take the definite description ‘the punishment due to fallen humanity’ referentially,Footnote ¹¹ it refers to the withdrawal of God's fellowship and blessing.Footnote ¹² This Christ suffered on the cross instead of us.

On such an understanding, God afflicted Christ with the suffering which, had it been inflicted upon us, would have been our just desert and, hence, punishment. In other words, Christ was not punished, but he endured the suffering which would have been our punishment had it been inflicted on us. We should not exclude by definition such accounts as being penal substitutionary theories, since Christ on such accounts suffers as our substitute and bears what would have been our punishment, thereby freeing us from punishment.Footnote ¹³ Accordingly, penal substitution in a theological context ought to be understood as the doctrine that God inflicted upon Christ the suffering which we deserved as the punishment for our sins, as a result of which we no longer deserve punishment. This explication leaves open the question whether Christ was punished for our sins.

Penal substitution without punishment

A penal substitution theorist who holds that God did not punish Christ will be unfazed by and perhaps even welcome Murphy's objection. The debate will then move on to the familiar question of the morality of afflicting an innocent person with the suffering which we deserved as the punishment for our sins.

Feinberg thinks that we should not apply the term ‘punishment’ to parking tickets, offside penalties in sports, firings at work, flunkings in school, disqualifications from competitions, and so on, which he calls ‘penalties’ to distinguish them from punishments technically so-called, which always express condemnation. In that case, the defender of penal substitution may borrow Feinberg's distinction between punishments and penalties and say that God penalized Christ for our sins, that Christ paid the penalty for our sins. If God's harsh treatment of Christ did not express condemnation, then God did not punish Christ for our sins, but He may still be said to have penalized him for our sins. Feinberg himself says that inflicting penalties on an innocent person may be even worse than inflicting punishments on an innocent person, in which case the alleged coherence problem collapses to the moral problem.Footnote ¹⁴ Accordingly, if one's theory of punishment rules out substitutionary punishment by definition, the advocate of penal substitution may simply use a different word than ‘punishment’.

Seen in this light, Murphy is employing what the eminent legal theorist H. L. A. Hart famously called ‘a definitional stop’ to short-circuit debate.Footnote ¹⁵ Anthony Quinton had argued that in order for harsh treatment to be punishment the person afflicted with harsh treatment had to deserve that treatment.Footnote ¹⁶ The problem with Quinton's definition was that it made it logically impossible to punish the innocent. Yet it is indisputable that innocent people are often found guilty and subjected to harsh treatment for crimes they did not commit. Quinton was forced to say that such persons, though sentenced and treated harshly, were not really punished, technically speaking. Hart's complaint was that ruling out their treatment as punishment by mere definition was just a semantic manoeuvre that masked important questions about punishment. Murphy employs a similar definitional stop regarding substitutionary punishment. Historically, substitutionary punishment, like punishment of the innocent, apparently does take place.Footnote ¹⁷ Debate over the justifiability of penal substitution should not be brought to a halt by a definitional stop.

Murphy rejects the comparison with Quinton, claiming that his objection is not that substitutionary punishment is logically impossible but that it is conceptually incoherent. For the person who is punishing the substitute is committed to holding that the substitute is innocent but worthy of condemnation.Footnote ¹⁸ I take this to mean that the punisher must regard the substitute as both worthy of condemnation and not worthy of condemnation, which he cannot do. Whether this aporia involves a logical impossibility or a conceptual incoherence, it seems to me that the manoeuvre is still the same: one has just put a definitional stop to substitutionary punishment by defining ‘punishment’ in such a way that the harsh treatment authoritatively inflicted for the violation of a norm on a substitute will not count as punishment. If we simply replace the term ‘punishment’ with ‘penalty’ with respect to God's harsh treatment of Christ, then the alleged incoherence vanishes.

David Lewis responds to the definitional stop as an attempt to short-circuit debate over penal substitution by acquiescing in the objector's definition of ‘punishment’ but insisting, ‘I trust that the reader will understand: I mean that the volunteer undergoes something that would have constituted punishment if it had happened instead to the guilty offender.’Footnote ¹⁹ Discussion of the justice of such treatment may then proceed. Lewis's counterfactual characterization is, in fact, in accord with penal substitution as we have defined it.

This serves to dispatch Murphy's coherence objection; but because his critique raises some important and interesting questions, it would be premature to end the discussion here. Accordingly, let us ask how a theorist who holds that God did punish Christ for our sins might respond to Murphy's objection.

Punishment without expressivism

In order to avoid the definitional stop, Hart maintained that we must recognize certain secondary forms of punishment, such as punishment of persons who neither are in fact nor supposed to be offenders.Footnote ²⁰ Accordingly, on Hart's view, substitutionary punishment is one kind of punishment. On this view an expression of condemnation of the person punished is not a necessary condition of punishment.

Murphy's objection to substitutionary punishment is based on what Feinberg called an expressivist theory of punishment, according to which the harsh treatment imposed on a person must express condemnation in order to count as punishment. Murphy does not consider the possibility that the penal substitution theorist might reasonably reject an expressivist theory of punishment. Though popular, it is not as though the expressivist theory has overwhelming arguments in support.

Consider, first, Murphy's claim that the theory carves the cases properly. This is, in fact, not true. One of the problems with the theory is that the line between punishments and mere penalties in the law does not coincide with the line between condemnatory and non-condemnatory harsh treatment.

Penalties can be very harsh, indeed, and plausibly often express society's ‘resentment’ and ‘stern judgement of disapproval’ for the wrong done.Footnote ²¹ This seems undeniable in cases involving torts such as assault and battery, defamation, fraud, and wrongful death. Arthur Ripstein explains that tort law articulates certain norms of acceptable conduct, and if the plaintiff is to recover damages from the defendant, he must show that the defendant has violated those norms.

The judgement of the unacceptability of the plaintiff's conduct may often be so severe as to express condemnation. Ironically, Murphy himself gives an illustration of the indignation felt by citizens when rich people were permitted to pay strikers’ fines, since ‘a fine is imposed as punishment’.Footnote ²³ Indeed, some torts are also crimes, in which case the act for which compensatory damages are awarded is also the object of condemnation in a criminal verdict. And even for torts that are not crimes, sometimes the damages awarded are actually punitive damages, which exceed the aims of merely corrective justice. Very large awards, in particular, plausibly often express society's strong disapproval of the wrong done to the plaintiff. Even in sports, penalties imposed for fouls like unsportsmanlike conduct and taunting seem to carry censure with them. While these infractions are not crimes, since they are not violations of criminal law, still the penalties imposed for such infractions plausibly express condemnation.

By the same token there are crimes which are punishable, even though such punishments do not seem to express condemnation. For example, crimes involving so-called mala prohibita are punishable, even though such punishments may no longer express resentment or stern disapproval, such as punishment for violation of US federal laws against marijuana possession.Footnote ²⁴ Moreover, there are in the criminal law cases of so-called ‘strict liability’ in which crimes are committed without fault and yet are punishable. To his credit Murphy acknowledges these, but insists that ‘these are unusual, severe outliers in the criminal law’.Footnote ²⁵ These cases are, in fact, far from unusual, there being many thousands of statutory offences involving elements of strict liability, including crimes like possession of narcotics or firearms and the selling of mislabeled foods or of prescription drugs without a prescription.Footnote ²⁶ Punishments for crimes of strict liability often seem to involve no condemnation of the person involved and yet are still punishments in our criminal justice system. The fact that such crimes are often punished by fines rather than imprisonment is just as plausibly explained by the fact that imprisonment is seen as more severe than fines, rather than seen as carrying condemnation that fines do not.

Crimes of strict liability also go to undermine Murphy's second alleged virtue of the expressivist theory, for no mens rea of any sort is required for conviction. Mere wrongdoing suffices, and the law permits no excuses or justification. Indeed, David Ormerod points out that ‘Where an offence is held to be one of strict liability, not only is it unnecessary for the prosecution to tender evidence of mens rea as to the matter of strict liability . . . , they must not adduce evidence of D's mens rea as to that aspect of the offence’, lest D be found to be at fault.Footnote ²⁷ Consider, for example, the case of Pharmaceutical Society of Great Britain v Storkwain Ltd. A certain pharmacist D sold some prescription drugs on the basis of what, unbeknownst to him at the time, turned out to be a forged prescription. He was convicted of violating the Medicines Act 1968, which prohibits the retail sale of certain drugs without a prescription by an appropriate medical practitioner. This was a strict liability offence, which involved no mens rea. Ormerod reports, ‘There was no finding that D acted dishonestly, improperly or even negligently in acting on that prescription and providing X with the medicines.’Footnote ²⁸ Summarizing a number of similar cases, Ormerod reflects,

Thus, it is simply not true, as Murphy claims, that the line between condemnatory and non-condemnatory harsh treatment coincides with the line between punishments and mere penalties in the law.

In fact, penal substitution in a secular context furnishes itself a powerful counterexample to the claim that punishment inherently expresses an attitude of condemnation towards the person punished. As Hugo Grotius (1583–1645) documents in his classic defence of penal substitution A Defence of the Catholic Faith, the punishment of a substitute was well-understood and widely accepted in the ancient world.Footnote ³⁰ Not only so, but those who voluntarily stepped forward to die as a substitute for someone else were universally admired as paradigms of nobility. We moderns may regard such a practice as immoral and ourselves as more enlightened for renouncing it, but it would be an example of cultural imperialism to claim that these ancient societies did not really endorse and even practise substitutionary punishment. To think that because it was unjust, it was not punishment is to confuse the definition of punishment with the justification of punishment, an error made by theorists who similarly held that punishment of the innocent is not really punishment. Just as most theorists today recognize that it is coherent to punish the innocent, so we should acknowledge the coherence of punishing a substitute.

An expressivist theory of punishment is thus by no means incumbent upon the penal substitution theorist. In fact, Leo Zaibert considers Feinberg's expressivist theory actually to be dangerous for a democratic society because what are clearly punitive measures can be rationalized by the state as mere penalties. Zaibert warns, ‘Pragmatically speaking, the most problematic aspect of Feinberg's view is that it opens up the possibility for the State to inflict painful treatment upon its citizens, a treatment which is ‘much worse than punishment’, but for which the citizens have fewer defences than they would if they had been ‘merely’ punished. ‘Even floggings and imposed fastings’, Feinberg continues, ‘do not constitute punishments, then, where social conventions are such that they do not express public censure’.Footnote ³¹ The US Supreme Court, Zaibert notes, has had considerable difficulty in interpreting the eighth amendment's prohibition of cruel and unusual punishment because it is unclear what actions count as punishment. One notorious example is the Court's decision in Fleming v. Nestor (1960) that deportation is merely an administrative matter and not punishment, despite the fact that deportation in that (and other cases) seems to be punitive.Footnote ³²

A defender of penal substitution could avoid the coherence objection, then, by denying Murphy's claim that the expressive function of punishment is part of the definition of punishment.

Expressivism without condemnation of Christ

But does an expressivist theory of punishment in fact rule out substitutionary punishment, as we have thus far taken for granted? Not at all, for expressivism as typically formulated is wholly consistent with penal substitution. Consider, for example, Alec Walen's characterization of some of the necessary conditions of punishment in a standard philosophical encyclopedia:

Notice that Walen's fourth condition does not require that the person punished is condemned or censured for the act or omission believed to be wrong. Censure could be either of the person who did the act or of the act itself. Similarly, on Feinberg's account ‘punishment expresses the community's strong disapproval of what the criminal did. Indeed it can be said that punishment expresses the judgment of the community that what the criminal did was wrong.’Footnote ³⁵

Even Murphy's own formulation, intended to show the incoherence of penal substitution, namely, that punishment expresses condemnation of the wrongdoer as the performer of the wrong, does not rule out penal substitution, for it does not require that condemnation be directed towards the person bearing the punishment. Hence, Murphy's inference ‘if this . . . condition is correctly formulated, then punishment expresses condemnation of the person punished’ is a non sequitur.Footnote ³⁶

In fact, it needs to be asked whether Murphy has not fundamentally misunderstood expressivism with regard to punishment. Expressivism holds that there is a certain stigma attached to punishment, in the absence of which the harsh treatment is not punishment.Footnote ³⁷ It is no part of expressivism that the censure or condemnation expressed by punishment be directed towards a particular person. Expressivist theories of punishment, as typically formulated, are perfectly consistent with penal substitution – which is just as it should be, given the attitudes of those in societies endorsing or practicing penal substitution.

Condemnation of Christ without personal sin and guilt

Now Murphy might insist at this point that his inference, ‘if this . . . condition is correctly formulated, then punishment expresses condemnation of the person punished’, still holds but claim that he did not correctly formulate his necessary condition of punishment. A correct formulation of the expressivist theory of punishment, he might say, would require that condemnation be directed towards the person punished. In view of the typical formulations of expressivist definitions of punishment, however, this move might well look like an ad hoc attempt to rule out penal substitution. But never mind. Would even such a theory rule out Christ's being punished for our sins?

Not necessarily, for one might espouse a theory of penal substitution which includes the imputation of our sin to Christ, such as the Protestant Reformers articulated.Footnote ³⁸ On such a theory, Christ, though personally without moral fault, is legally guilty and so condemned by God for our sins. Of course, because our sin was merely imputed to Christ and not infused in him, Christ was, as always, personally virtuous, a paradigm of compassion, selflessness, purity, and courage, but he was declared legally guilty before God. Therefore, he was legally liable to punishment. Thus, given the doctrine of the imputation of sin, Murphy's objection to the coherence of penal substitution is a non-starter, being based on a false assumption, namely, that one cannot regard a person as worthy of condemnation unless he has actually done the act for which he is condemned.

Murphy admits that given the doctrine of the imputation of sin, his objections to the coherence of penal substitution no longer apply.Footnote ³⁹ So Murphy's allegation that ‘the classic penal substitution view’ is conceptually incoherent is a self-confessed failure. His rejection of that view must now be based on other, independent objections to the doctrine of imputation, objections that Murphy merely states but does not develop.

Murphy distinguishes two possible imputation doctrines: one that holds that our sins, that is to say, our wrongful acts, were imputed to Christ, and one that holds that our guilt for our wrongful acts was imputed to Christ. Murphy's complaint in both cases is the same: we have no experience of the transfer either of moral responsibility for actions or of guilt in isolation from actions from one person to another.Footnote ⁴⁰

The force of Murphy's objection depends on the probability that if the doctrine of imputation is true, then we should have some experience of such a transfer in human affairs. But why think that? The proponent of penal substitution might plausibly respond that our want of such experience is hardly surprising, since imputation of sins or guilt is a uniquely divine prerogative.Footnote ⁴¹ In contrast to Western systems of justice, God embodies in one individual the legislative, judicial, and executive functions.Footnote ⁴² Arguably, God as supreme Lawgiver, Judge, and Ruler is in a unique position to impute the sins and guilt of one person to another. So it would be hardly surprising if imputation of sin, though a divine prerogative, failed to find an analogy in our system of justice.

But are we so utterly bereft of analogies to imputation as Murphy alleges? I think not. Consider first the idea that our wrongful acts were imputed to Christ. On this view, although Christ did not himself commit the sins in question, God chooses to treat Christ as if he had done those acts. Such language is formulaic for the expression of legal fictions.Footnote ⁴³ The nearly universal understanding of a legal fiction is that it is something that the court consciously knows to be false but treats as if it were true for the sake of a particular action. The use of legal fictions is a long-established, widespread, and indispensable feature of systems of law.

Penal substitution theorists have typically been understandably wary of talk of legal fictions in connection with their views, lest our redemption be thought to be something unreal, a mere pretence. But such a fear is misplaced. The claim is not that penal substitution is a fiction, for Christ was really and truly punished on such a view. Nor is his expiation of sin or propitiation of God's wrath a fiction, for his being punished for our sins removed our liability to punishment and satisfied God's justice. All these things are real. What is fictitious is that Christ himself did the wrongful acts for which he was punished. Every orthodox Christian believes that Christ did not and could not commit sins, but on the present view God adopts for the administration of justice the legal fiction that Christ did such deeds.

Penal substitution theorists will sometimes object to the employment of legal fictions in the doctrine of the atonement because God's legally justifying us has real, objective results. Someone whose debt has been legally remitted, for example, really becomes free of the burden of financial obligation to his former creditor. But such an objection is based upon a misunderstanding of the role of legal fictions in the achievement of justice. A legal fiction is a device which is adopted precisely in order to bring about real and objective differences in the world.

Take, for example, the classic example of a legal fiction employed in Mostyn v. Fabrigas (1774). Mr Fabrigas sued the governor of the Mediterranean island of Minorca, then under British control, for trespass and false imprisonment. Since such a suit could not proceed in Minorca without the approval of the governor himself, Mr Fabrigas filed suit in the Court of Common Pleas in London. Unfortunately, that court had jurisdiction only in cases brought by residents of London. Lord Mansfield, recognizing that a denial of jurisdiction in this case would leave someone who was plainly wronged without a legal remedy, declared that for the purposes of the action Minorca was part of London! Frederick Schauer observes, ‘That conclusion was plainly false and equally plainly produced a just result, and thus Mostyn v. Fabrigas represents the paradigmatic example of using a fiction to achieve what might in earlier days have been done through the vehicle of equity.’Footnote ⁴⁴

Or consider the legal fiction that a ship is a person.Footnote ⁴⁵ The adoption of this fiction by US federal courts in the early nineteenth century came about because of the efforts of shipowners to evade responsibility for violating embargo laws and carrying unlawful cargo, including slaves. When the ships were seized, the captains and crews passed on legal responsibility to the shipowners, who in turn produced innocent manifests while denying any knowledge of the illegal activity of the captains and crews. The courts responded by making the ship itself (herself?) the person against whom charges were brought. By the end of the century this fiction became the settled view of ships in maritime law, so that the ‘offending ship is considered as herself the wrongdoer, and as herself bound to make compensation for the wrong done’.Footnote ⁴⁶ According to Lind, the ‘ontologically wild’ fiction of ship personification had profound and beneficial results, facilitating the condemnation and forfeiture of offending vessels and producing a more just, coherent, and workable admiralty jurisprudence.Footnote ⁴⁷

Holding that God, in His role as supreme Judge, adopts for the purposes of our redemption the legal fiction that Christ himself had done the deeds in question in no way implies that our forensic justification before His bar is unreal. Thus, through the device of legal fictions we do, indeed, have some experience of how legal responsibility for acts can be imputed to another person who did not really do the actions, thereby producing real differences in the world outside the fiction.

Consider now the second alternative, that God imputes to Christ, not the wrongdoing itself, but the guilt of our wrongdoing.Footnote ⁴⁸ It is worth noting that the question does not, pace Murphy, concern the transfer of guilt from one person to another, in the sense that guilt is removed from one person and placed on another. For the defender of the doctrine of imputation does not hold that when my guilt is imputed to Christ, it is thereby removed from me. Guilt is merely replicated in Christ, just as, according to the doctrine of original sin, Adam's guilt was replicated in me, not transferred from Adam to me. Adam remains guilty, as do I when my guilt is imputed to Christ. The entire rationale of penal substitution is, rather, the removal of guilt by punishment.

What is at issue, then, is whether we have any experience of the replication of guilt in a person different from the person who did the act. The question is not the removal of the primary actor's guilt but the imputation of guilt for his wrongdoing to another as well. So understood, we are not wholly without analogies in our justice system.

In civil law there are cases involving what is called vicarious liability. In such cases the principle of respondeat superior is invoked in order to impute the liability of a subordinate to his superior, for example, a master's being held liable for acts done by his servant. On the contemporary scene this principle has given rise to a widespread and largely uncontroversial principle of vicarious liability of employers. An employer may be held liable for acts done by his employee in his role as employee, even though the employer did not do these acts himself. Cases typically involve employers’ being held liable for the illegal sale of items by employees but may also include torts like assault and battery, fraud, manslaughter, and so on. It needs to be emphasized that the employer is not in such cases being held liable for other acts, such as complicity or negligence in, for instance, failing to supervise the employee. Indeed, he may be utterly blameless in the matter. Rather the liability incurred by his employee for certain acts is imputed to him in virtue of his relationship with the employee, even though he did not himself do the acts in question. The liability is not thereby transferred from the employee to the employer; rather the liability of the employee is replicated in the employer. In cases of vicarious liability, then, we have the responsibility for an act imputed to another person than the actor.

It might be said that in such civil cases guilt is not imputed to another person but mere liability. This claim may be left moot, for vicarious liability also makes an appearance in criminal law as well as civil law.Footnote ⁴⁹ There are criminal as well as civil applications of respondeat superior. The liability for crimes committed by a subordinate in the discharge of his duties can also be imputed to his superior. Both the employer and the employee may be found guilty for crimes which only the employee committed.Footnote ⁵⁰ For example, in Allen v Whitehead the owner of a café was found to be guilty because his employee, to whom management of the café had been delegated, allowed prostitutes to congregate there in violation of the law. In Sherras v De Rutzen a bartender's criminal liability for selling alcohol to a constable on duty was imputed to the licenced owner of the bar. In such cases, we have the guilt of one person imputed to another person, who did not do the act. Interestingly, vicarious liability is another case of strict liability, where the superior is held to be guilty without being found blameworthy, since no mens rea is required.Footnote ⁵¹ He is thus guilty and liable to punishment even though he is not culpable.

Thus, the vicarious liability that exists in the law suffices to show that the imputation of our guilt to Christ is not wholly without parallel in our experience. In the law's imputation of guilt to another person than the actor, we actually have a very close analogy to the doctrine of the imputation of our guilt to Christ.Footnote ⁵²

Now obviously much more deserves to be said about the doctrine of imputation, principally about the justification for imputing one person's wrongdoing or guilt to another. Vicarious liability is not infrequently complained to be unjust. But that is a different question from the question whether we find analogies to imputation in western systems of justice, which we do. It should be evident that Murphy's cursory dismissal of the doctrine of imputation of sin is thus far too quick. Given that it belongs to the classic Reformation theory of the atonement and invalidates by Murphy's own admission his objection to the coherence of penal substitution, we have good reason not to dismiss the doctrine of imputation pre-emptorily but to explore it further.