Andrei Poama 22nd IPSA World Congress of Political Science, July 2012 CERI-CNRS RC 43, Religion and Politics Sciences Po, Paris Panel: Theological Reflections on Political Questions

DRAFT: PLEASE, DO NOT CITE WITHOUT THE AUTHOR’S PERMISSION!

PUNISHING ONESELF? GENEALOGICAL REFLECTIONS ON REASON, REPENTANCE

AND PENAL AUTONOMY

ABSTRACT

The text tries to deal with the claim according to which liberal theory cannot, in principle, accommodate repentance as a justificatory reason for the existence and enforcement of legal punishment. I firstly start by showing why neither a political theology (denunciatory) nor a secularizing liberal (sanitizing) strategy for dealing with the relationship between repentance and punishment is normatively suitable. I then propose an alternative to the denunciatory and the sanitizing strategies. This is a justification that relies on what Colin Koopman calls genealogical pragmatism. I try to put genealogical pragmatism to work by analyzing repentance within the context of the reorganization of the practice of penance from the 13th to the 16th century, as penance became both a theologically recognized sacrament and part of the ‘secular’ penal justice system. Seen from the perspective of genealogical pragmatism, repentance is neither part of a metaphysical view, like political theologians might consider it; nor is it a concept the history of which should be inhibited, like in the liberal discourse. Rather, repentance is to be seen as the answer to a particular problem that was concurrently raised in theological and in secular, legal terms. The problem repentance was meant to solve within this specific historical context was that of finding a compelling justification for putting an end to punishment. The question was: how can one make punishment finite? The answer lied in fostering repentant behaviour as a mechanism for ensuring what I call penal autonomy. Finally, I come to suggest that a genealogical pragmatism reading of repentance as penal autonomy might offer an interesting clue to tackling with one of the most nagging conundrums of contemporary liberal theory: how can one justify the imposition of rational rules against rational persons? Liberalism has difficulties in accommodating repentance among the justifications for the existence of state penal practices.1 Repentance – and this comes only as a provisional definition – is to be understood as a specific type of conduct whereby an offender finds herself submitted to the experience of intense and sincere remorse for having committed a particular, legally sanctioned transgression. Moreover, one of the tests for marking out repentance is its manifesting through a series of actions whereby the offender tries to offer some kind of reparation for her deed, be it material – say, financial compensation – or moral, like assisting the victim throughout the recovery process. Liberal theorists find it hard to normatively incorporate repentant behaviour for reasons that have to do both with the normative morphology of liberalism and the underlying characteristics of repentance per se. The first difficulty derives from the liberal theorist’s attachment to a purely proceduralist strategy of justification. This means that, following the dominant Rawlsian orientation, the liberal understanding of politics in general – and of punishment in particular – is not based on a substantialist defense of specific moral values, but rather on a strong justificatory case for rights and procedures. Seen from this perspective, liberalism is more concerned with providing a generally valid argument in favour of the rules of the punitive game than with holding up to the specific results and dynamics of 1 A more general difficulty for liberalism to justify punishment in general; add references and outline the debate here. Add here the definitional features of punishment as well. To be developed (TBD).

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the penal practice. In particular, repentance is perceived as going against such essential procedural safeguards as the right against self-incrimination (Murphy 2007) or the standard of proportionality (von Hirsch 1993). Moreover, repentance is about expressing one’s remorse for having committed a specific offense; it implies – and indeed feeds on – an open avowal of one’s feeling of regret for having wronged the victim. Repentance speaks of the guilt of the offender, whereas the right against self-incrimination is meant to ensure that the facts only will point toward guilt or not. In other words, advocating in favour of repentant behaviour exposes the accused to a normatively excessive requirement that cannot be sustained within a framework that is based on the rule of law.2 Repentance, on the other hand, poses a potential threat to upholding the standard of proportionality in sentencing. If repentance is construed as one of the main ends of punishment, then there are reasons for morally and legally discriminating between a repentant and an unrepentant offender. This is because, in the case of the repentant offender, the penal sanction has less to accomplish than in the case of the unrepentant one. Given that repentance is already a form of punishment, it offers at least a pro tanto reason for mitigating the sentence. The claim is that the repentant offender is already undergoing a self-inflicted punitive experience that can be, as it were, deducted from the normally, that is, legally, incurred sentence. This is problematic, since it might lead to a situation where two different offenders – a repentant and an unrepentant one – might be punished differently for the same offence.

If, furthermore, repentance is the kind of outcome one hopes to obtain throughout the infliction of punishment, then judges are justified in choosing, within the legally available sentencing range, the sentence that improves the prospect of resulting in repentant behaviour. But, the argument goes, less severe penal sanctions are more likely to lead to repentance, since rigid severity in sentencing risks alienating the offender from the legal authority. Once again, this becomes an issue in terms of sentencing proportionality. As Andrew von Hirsch (1993) puts it, ‘restrictions on severity would make it more difficult to suit the penalty to the actor’s expected responsiveness; on the other hand, easing those restrictions in order to facilitate the achievement of penitence sacrifices proportionality’ (75-76). There is no one general sentencing schema that can guarantee a repentant behaviour as a result of the enforcement of the penal sanction. Repentance as a judicial desideratum is, therefore, sentence-dispersive. The second difficulty relates to and partly derives from the first one. The issue here is that, given its somewhat obsessive attachment to constitutionally stipulated procedural safeguards, liberalism is not at ease when dealing with the actual practice of punishment. Liberals qua constitutionalists ignore or deny the importance of real penal practice. As Benjamin Berger (2011) has recently put it, liberals are reluctant to theorize the presence of exceptions and the intervention of the judge’s or the penal administrator’s conscience within the punitive institution. Modern criminal justice systems, however, are marked by exceptions and the exercise of individual conscience, whether one is considering cases of jury nullification, executive clemency or prosecutorial discretion. These seem to be features that are not merely contingently, but somehow critically linked to the penal institution. Thus, the ‘lived realities of the criminal law’ point to the justificatory shortcomings of constitutionalist liberalism ‘as a full account of our prevailing sense of the relationship between the rule of law and the just state’ (idem: 5). The meta-language of liberal theory, in other words, fails to match the object language of

2 The more moral version: goes against the privacy of the individual, etc. Why this is not convincing (the cases where we already – and acceptably go against the privacy of the individual from a liberal standpoint). TBD.

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penal practice. Thus, to the extent that repentance involves recognition of both the value of exceptions and individually exercised conscience as parts of the punitive process, it can be considered as an additional illustration of the typically liberal inability at acknowledging the realities of actual penal practice. To these two limitations of procedural/constitutionalist liberal theory, one should further add the problematic nature of the very concept of repentance. There are at least two different ways of stating what is at stake here. One way is to insist on the fact that repentance can be seen as an archaic survival of pre-modern modes of administering punishment. To put it in Jeffrie Murphy’s terms,

‘Gone (…) are the days in which we could comfortably refer to prisons as

penitentiaries – as places to which we would send responsible wrongdoers in order to encourage their repentance. (…). Perhaps we view the concept as some vestigial relic of a religious worldview to which many people now, at most, pay only lip service. Or perhaps, even if we accept the value of repentance in certain contexts, we do not see an important place for the concept in a system of criminal and punishment organized around secular values. It is even possible – given the realities of crime and punishment in America – that we cannot in honesty see prisons as anything more than fortresses in which we warehouse an alienated underclass that is perceived, often quite accurately, as highly dangerous to the stability of ordinary life.’ (in Etzioni 1997: 146; emphasis added)

From this point of view, the problem with repentance is twofold. On the one

hand, repentance is problematic on account of its historical anachronicity as such: it is part of a past we are no longer able to understand or reason with. To this extent, repentant behaviour might be part of some sort of penal museum, alongside torture mechanisms – like hanging, whipping or the wooden horse3 – or trials by oath. Thus if the history of punishment is considered as the history of moral progress, chronological distance is directly proportional to a moral one. Repentance, then, is no longer acceptable on account of its being passée.

Repentance, on the other hand, is problematic because of its strong connection with substantial religious values. Repentance, penitence, atonement – these are all terms that carry a heavy theological weight. The issue here is not to be considered within the temporally-based framework of moral progress, but rather in terms of the structural separation between religious practice and state institutions. Repentance as a religiously formulated type of behaviour and punishment as a legally defined institution cannot justifiably mix from a liberal perspective. Given the privatization of religion in modern times, the state cannot rightly impose a religious value through the means of political institutions. This would go against the liberal requirement of the neutrality of publicly available conceptions of justice (Rawls 1993). The liberal cannot condone a situation where state punishment is simply religion by other means.

The other way of presenting the same structural problem with accommodating repentance within the liberal discourse consists in seeing repentance not so much as an irretrievably anachronistic value, but rather as a value and practice that are irrelevant as far as the justification of penal practice goes. More precisely, the idea is that the individual offender can individually entertain a repentant attitude in relation to her crime. This might be important within the context of the offender’s particular cultural background or from a psychological or even an aesthetic point of view. The individual experience of repentance, however, carries no justificatory weight in matters of justifying the imposition of penal sanctions. The offender has a quasi-private space within which she 3 Explain what it is. TBD.

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can deal with and organize the experience of punishment: the way the offender does this personally is to no avail when it comes to the general justification of punishment.

The difficulty, then, is double. Liberals are not ready to give up on proceduralism and constitutionalism in order to make place for repentance; repentance, on the other hand, seems to indelibly bear a deep religious imprint that renders it inadequate for fully secularized penal practice. On the face of it, there are two possible strategies for dealing with this conundrum. The first option is to abandon liberalism and to embrace repentance as a value that inescapably carries a religious pedigree. This is what I call the denunciatory strategy, in that it denunciates liberalism as unable to provide an accurate description of politics in general and of punishment in particular. The second option is to keep liberalism in place and propose a secularized version of repentance that does away with its anachronistic and religious dimensions and thus makes it normatively fit for a liberal justification of punishment. This is what I call the sanitizing strategy, in that it tries to save liberal theory by stripping the concept of repentance of its historical and religious underpinnings.

My argument is structured as follows. Firstly, in Part I, I outline the main points of the denunciatory strategy, as it has been articulated from the perspective of political theology, formulated by Carl Schmitt (1922; 1934; 1970) and, more recently, by Raymond Plant (2001) and Paul Kahn (2011). I then sketch out the sanitizing strategy consisting in the secularization of repentance (Duff 2001; Tasioulas 2007). I also insist on some of the quandaries consequential to a tentative political theology, on the one hand and liberal/proceduralist assessment of repentance, on the other hand. In Part II, I propose an alternative to the denunciatory and the sanitizing strategies, that I take to be audible to contemporary liberal ears and that manages to accommodate repentance as a strong justification of punishment. This is what Colin Koopman (2007; 2011) has called genealogical pragmatism. In Part III, I try to put genealogical pragmatism to work by analyzing repentance within the context of the reorganization of the practice of penance from the 13th to the 16th century, as penance became both a theologically recognized sacrament and part of the ‘secular’ penal justice system. Seen from the perspective of genealogical pragmatism, repentance is neither part of a metaphysical view, like political theologians might consider it; nor is it a concept the history of which should be inhibited, like in the liberal discourse. Rather, repentance is to be seen as the answer to a particular problem that was concurrently raised in theological and in secular, legal terms. The problem repentance was meant to solve within this specific historical context was that of finding a compelling justification for putting an end to punishment. The question was: how can one make punishment finite? The answer lied in fostering repentant behaviour as a mechanism for ensuring what I call penal autonomy. Finally, I come to suggest that a genealogical pragmatism reading of repentance as penal autonomy might offer an interesting clue to tackling with one of the most nagging conundrums of contemporary liberal theory: how can one justify the imposition of rational rules against rational persons? (Dubber 1998). I. REPENTANCE: BETWEEN POLITICAL THEOLOGY AND LIBERAL SECULARIZATION The fact that liberals are unable to accommodate repentance on account of its religious background might firstly be interpreted as a limit of liberal theory itself. The problem is liberalism, not repentance. This is, in short, what a political theologian might argue when asked to integrate repentance among the normative goals of modern penal practice. More broadly, the idea that one can offer an account of politics in general and of punishment in particular without relying on a religious or theological reference is mistaken right from the start. Political theology has been built precisely against the claim

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that politics can be described or justified in the absence of a theological infrastructure. To put in Carl Schmitt’s (1922) terms,

‘All significant concepts of the modern theory of the state are secularized

theological concepts not only because of their historical development – in which they were transferred from theology to the theory of the state, whereby, for example, the omnipotent God became the omnipotent lawgiver – but also because of their systematic structure, the recognition of which is necessary for a sociological consideration of these concepts. The exception in jurisprudence is analogous to the miracle in theology. Only by being aware of this analogy can we appreciate the manner in which the philosophical ideas of the state developed in the last centuries.’ (36; emphasis added)

Schmitt’s assertion is twofold. To start with, he indicates that there is a

historically contingent connection between the discipline of theology, on the one hand, and that of law or political science, on the other hand. The first theorists of the state were theologians or at least closely concerned with theological matters. The theological underpinnings of legal and political theory are then explained by some kind of intellectual filiation between the political/legal theorist and the theologian. To put it analogically, the relationship between the theologian and the political/legal theorist is like the relationship between father and son, whereby the son borrows some of the gestures and habits of the father – say, a particular way of walking or frowning. There is something like a family resemblance between theology and legal/political theory. Schmitt’s claim, however, goes further than mere family resemblance. He explicitly states that the link between theology and political theory is not a simple coincidence or historical contingency. Rather, their connection is quasi-functional: political theory does to the social and political world what theology does to the natural world. Like theology, political theory is in search of a domain of sacred invariances. Going back to the father and son analogy, this would be like saying that the tie between the theologian and the legal/political theorist is not simply one consisting of habits, but one amounting to a matter of genetic inheritance. The upshot of this second, stronger claim is that a sound political theory is not possible in the absence of theological considerations on what constitutes the sacred infrastructure of the social and political world.

The common ‘systematic structure’ of theology and legal/political theory leads to an unequivocal rejection of the liberal claim that there should be a separation between the domain of religion and theology, on the one hand, and that of law and politics, on the other hand. Political theology is, as its very name indicates, a ‘compositum’ (Schmitt 1970: 66) that permeates the boundaries between the political and the theological. More precisely, political theology – unlike liberal theory – is a way of acknowledging the breakdown of the separation between religion and politics. Political theology thus places itself where ‘the walls collapse and the spaces which were once distinct intermingle and penetrate each other, as in a labyrinthine architecture of light. The façade of the absolute purity of the theological is then no longer convincing.’ (idem: 95). Nor is the absolute purity of politics any longer relevant, the political theologian might consistently add.

The political theologian’s claim thesis is not that there is no separation between the state and the church qua institutions, but that there is no essential difference between the political and the theological as domains of reality. Put differently, there is a juridical distinction between our definition and construal of the functions of the state and those of different churches; there is not, nonetheless, a strong ontological difference at the level of the domain of reality that these two institutions are built on. More precisely, the basic contention of the political theologian is that the political and the theological are homologous, if distinct, expressions of the sacred and of an experience grounded in faith

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and sacrifice. Politics is not, like the liberal likes to think, an extension of the rational or a field open to the enforcement of neutral procedures. Nor is politics unproblematically submitted to the regulative hold of moral principles. Rather, it is closely connected to violence and to the irrational. There is a dimension of politics – and especially the one that has to do with coercing or being coerced, with killing or being killed, with sacrificing or being sacrificed – that escapes any rational construal. This is precisely the point where liberal theory breaks down and political theology takes over.

Political theology, then, lives on a research agenda that tries to uncover the irrational elements that constitute politics; it relies, at the same time, on a theory of the unmasking and on what might be called a metaphysics of remanence. Political theology is a theory of the unmasking to the extent that it concentrates on pointing to the irrational basis of what we normally to take to be rationally justifiable. Take, for example, the case of capital punishment: a Kantian liberal might argue that capital punishment is not only reasonable, but straightforwardly rational, insofar as capital punishment comes as the coherent conclusion of the offender’s criminal action. The offender wanted to kill: death penalty simply generalizes the application of her will to her own case. If rationalizing is about universalizing, then universalizing the offender’s will by extending it to her own case is the rational course of action to take.4 Alternatively, one might justify capital punishment on account of its deterrent effects at the social level: executing the offender is rational to the extent that it prevents the offender herself and other offenders from committing the same crime. Wanting to reduce the criminality rate is the rational thing to do; hence, capital punishment is rational, to the extent that it significantly contributes to this reduction/prevention enterprise.

Seen from a political theology perspective, these two justificatory strategies fail to see that capital punishment is not simply an expression of rational principles or of rational calculus, but rather a symptom of the sacrificial nature of human societies. Capital punishment is a way of speaking of our need for human sacrifice. It is precisely this vocabulary of irrational sacrifice that the political theologian tries to unearth by resorting to a ‘sociology of concepts’ (Schmitt 1922). The need for sacrifice can only make sense when replaced within a broader metaphysical framework; it becomes understandable when we start to see it not as some kind of discourse articulated by our rational selves, but as a part of a more encompassing metaphysical worldview. Capital punishment becomes meaningful only when we begin to consider it from a macro-perspective: it is, among other things, one of the possible consequences of the existence of sovereign power construed as a right over life and death. Sovereign power, in turn, is to be considered as part of a broader metaphysics, whereby the sovereign plays the same role in politics as that played by God in Christian religion. Punishing the guilty is ultimately a political decision: there is an irreducible dimension to punishing that escapes any rational assessment.5 The punitive decision simply exists as a manifestation of sovereign power. Any rational add-on, at this level, is superfluous.

If punishment can be considered as part of a sovereign-based politics that structurally corresponds to a Christian theology, then the presence of repentance within modern penal practice can easily be explained from a political theology angle. It is at this point that the metaphysics of remanence component of political theology steps in. For the political theologian,

‘Ideas are not liquid assets to be put to any use one chooses. Rather, they bring

with them remnants of their former meanings. It is as if one were building a cathedral

4 For problems with this course of argument, see Merle (2000). TBD. 5 See situations of prosecutorial discretion and executive clemency. TBD.

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with the remnants of a former church. The pieces one incorporates into the new structure will continue to reflect their former character. (…). Concepts have a kind of penumbra about them, carrying forward former resonances. We continue to hear in and through them an entire history of Western thought. (…). Concepts don’t carry these remnants in an by themselves, as if it were only a matter of being aware of etymology or of reading of the lesser definitions in a dictionary entry. The carry these resonances as part of the larger system of thought and practice in which they have been embedded. Because a concept draws its strength from the entire social imaginary, the resonances it carries are felt before they are understood.’ (Kahn idem: 104)

Repentance becomes understandable as part of the punitive process when it is

replaced within the history of a series of constructions the materials of which are broadly identical. Modern punishment, like modern politics, is made out of the same stuff as medieval religion was made of, that is, of an experience of the sacred that found its most systematic expression in Christian metaphysics. The difference is only an architectural one: the building blocks remain unchanged. The religious mark of repentance, then, ceases to be an issue; it merely becomes a supplementary indication of the fact that politics, like religion, is ultimately a theological matter. The archaism or anachronicity of repentance is no longer problematic, to the extent that the very infrastructure of political activity in general and of punishment in particular is made up of archaic elements. There is no historical or ontological breaking point between religion and politics; there are only transformations that furtively connect one to the other. Punishment, like the state on a broader level, is not the ‘secular arrangement that it purports to be’ (Kahn id.: 18). The upshot of the political theology thesis is that repentance is the thing one might expect within the penal domain. Repentance is a form of sacrifice that one imposes on oneself under the guidance of the sovereign instance.

The political theology strategy based on a denunciation of the ultimately archaic and irrational nature of politics and punishment, however, is not an option if what we are after is a justification of repentance in relation to our modern practices. There are at least two reasons why this is so. Firstly, political theology is not, as such, concerned with justification. Rather, political theology is an attempt at describing the veiled structure of politics; it is an enterprise that consists in describing politics, not in justifying it. Political theology is, first of all,

‘an effort to describe the social imaginary of the political. It proceeds at the

intersection of constitutional law, cultural anthropology, theology, and philosophy. The inquiry is not to take us back to premodern forms of religious influence on political order, but to the discovery of the persistence of forms of the sacred in a world that no longer relies upon God. Political theology argues that secularization, as the displacement of the sacred from the world of experience, never won, even though the church may have lost.’ (Kahn id.: 26; emphasis add)

This argument builds on the Schmittian project of a sociology of concepts,

understood as the discipline that tries to pin down the metaphysical outlook consistent ‘with the conceptually represented social structure of an epoch’ (Schmitt 1922: 45). Political theology is the search for a metaphysics that explains the articulation of our social and political concepts. However, if this is the main rationale of political theology, then political theology fails as a purely descriptive enterprise. This is because there is more than one metaphysical system available to us in post-modernity: there is no purely descriptive argument that can oblige us to choose Christian metaphysics over alternative metaphysical systems – say, string theory. If, as Kahn contends, the heuristic advantage

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of political theology is that it comes as a theory that ‘must express that which we already know’ (id: 120), then Christian metaphysics risks losing its descriptive familiarity in a context of metaphysical plurality and competition between different metaphysical systems. Consequently, choosing Christian metaphysics over other, rival metaphysical schemes cannot be presented as an exclusively descriptive gesture; it becomes a decision of preferring Christian theology to the other alternative options. Political theology, then, substitutes itself to the decision it purports to describe.

Choosing the political theology strategy is not only descriptively arbitrary. The second reason for giving up on political theology is that it seems to bind us to a level of analysis that seems far too general to grasp the specificity of repentance as a coherent type of behaviour. Political theology is primarily interested in metaphysics, that is, on a broad reflection on the structure of reality and the types of entities that qualify as real. But metaphysics is simply too general to allow for a suitable comprehension of the role played by repentance within the particular context of the influence exerted by Christian theology on Western systems of punishment. Political theology might offer a far-off indication of why repentance is not an outlandish concept and practice within modern penal practices; it does not, however, provide us with a specific account of why repentance might be preferred over harsher alternatives – say, a more sacrificial understanding of punishment. Put differently, Christian theology is capacious enough to encompass descriptions of punishment that are different from, and sometimes opposite to, a descriptions based on repentance.6 Political theology lacks descriptive specificity. What we need to find out, however, is why repentance in particular is to be preferred to other penal objectives.

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This is precisely what the liberal secularization option tries to do. The purpose here is not descriptive, like in the case of political theology. Rather, the objective is justificatory: the liberal tries to secularize repentance in order to render it appropriate for a justificatory role in relation to penal practice. This is the explicit argument presented by R.A. Duff when he argues in favour of punishment as a ‘species of secular penance that aims not just to communicate censure but thereby to persuade offenders to repentance, self-reform and reconciliation’ (2001: XIX; emphasis added). The argument of the secular liberal is that repentance is comprehensible from an exclusively modern, liberal point of view, that is, in the absence of any anachronistic, religious reference. Resorting to theology and religion – whether historically or metaphysically – is not a necessary condition for understanding what repentance is about. The experience of repentance, in other words, goes beyond its theological formulation. Theology does not hold a conceptual monopoly on repentance. As a consequence, repentance can be separated from its religious context and theological underpinnings if one wants to integrate it within a liberal account of modern penal practice. When, for example, Steven Tudor (2001) tries to present remorse as a justification for punishment, he insists on the fact that he intends ‘no religious import by such terminology; the terms can readily be given secular readings; despite a long and continuing religious currency.’ (588; emphasis added).

Similarly, when John Tasioulas (2007) argues in favour of a justificatory compatibility between repentance and the liberal state, he goes against what he takes to be the ‘religiously-inspired conceptions of repentance’ (490), and contends that repentance is not an ‘ineliminably religious notion’ (487). In particular, Tasioulas holds that there is a possible, liberal-compatible account of repentance that ‘makes no appeal to the religious concept of sin or to one’s standing in relation to a supreme being’ (506). 6 Kant is a case in point. TBD.

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Liberalism can thus more easily accommodate such a religious-free version of repentance. Severed from its Christian past, repentance is described as an exclusively moral type of conduct. More precisely, repentance refers to a five-staged process whereby the offender, after being submitted to an emotional experience of guilt (stage 1), goes on to judging the wrongfulness of her act (stage 2), expresses an apology to the wronged one(s) (stage 3), performs some kind of moral reparation that inevitably implies a penal sanction (stage 4) and, finally, resolves not to commit the offence again (stage five).

Such a general narrative is apparently sufficient if what the liberal is after consists in a justification, as opposed to a historically accurate depiction of repentance. Tasioulas repeatedly insists on the fact that the ‘genealogy of any particular concept is a matter distinct from whether that concept may be properly affirmed by us, here and now, as eligible to play an important role in our political and legal thought’ (ibidem). More explicitly, Tasioulas’s argument in particular – and that of the liberal secularist in general – is that the history of the idea of repentance is normatively irrelevant or at least indecisive when it comes to justifying a particular idea from a moral perspective. The order of moral, political and legal justification is different from, although possibly parallel to the order of historical explanation. The upshot of the liberal secularization option is that repentance can be considered from a perspective that definitively does away with any religious impurity. I find the secularizing option problematic for at least two reasons.

The background of the sanitizing justificatory strategy rests, I think, on the old Reichenbachian distinction between the context of discovery and the context of justification of any given theoretical concept. The context of discovery, says Hans Reichenbach (1938), refers to the way we subjectively, that is, contingently, come to identify scientific hypotheses. The context of justification, on the other hand, has to do with the way in which we objectively, that is, deductively, assess the necessary conceptual relations between scientific premises and conclusions. How we come to discover a certain scientific truth is irrelevant to the manner in which we should theoretically ground that particular truth. The Reichenbachian distinction, however, was specifically devised in order to describe the difference between the context of discovery and the context of justification in regard to the field of mathematics. Indeed, when it comes to mathematics, justification is a deductive process. Reichenbach, however, is less affirmative about the possibility of a strict separation between discovery and justification when it comes to the inductive sciences. Induction is, after all, at the same time a process of discovery and one of justification. Thus, it seems that when justification is not strictly synonymous to deduction, the boundary between the context of discovery and the context of justification becomes more porous. Consequently, there is at least a prima facie case for considering the justificatory relevance of the context of discovery in cases where justification is not reducible to a deductive process.

The upshot of this epistemological digression is to show that the distinction the liberal secularist so easily makes between the genealogy of a concept, i.e. the way that concept has come to be historically discovered and the way in which one might try to morally justify that particular concept is not so obvious and unproblematic as it might initially seem. If the manner in which we go about justifying our moral, political and legal practices is distinct from a purely deductive procedure, then we should at least consider, if only to eventually reject, the relevance of the history of that practice in order to find out if it has to say anything in favour of or against its justification. In other words, given the porous character of the boundary between discovery and justification in non-deductive domains such as morality, law and politics, one cannot escape the historical enquiry in such cases through a simple definitional fiat. Saying that religion has nothing relevant to say for us today as far as the justification of repentance goes is, as such, a theoretically unjustified decision.

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The second reason why I find the liberal secularization strategy problematic is less epistemological and more sociological. The problem here concerns the empirical account of secularization that the liberal tries to rely on. When the liberal attempts to justify repentance in relation to punishment by insisting that repentance is an exclusively secular practice, she takes secularization to mean a process whereby the connection with any religious reference has been completely and definitively severed. This is not, however, a very accurate description of secularization, if the latter wants to be a reliable theory about the place of religion within a particular society. When liberals like Duff, Tudor or Tasioulas talk about punishment as a secular form of penance, they appear to rely on what Charles Taylor (2007) has recently called a ‘subtraction story’. The basic contention of subtractive accounts of secularization is

‘that once religious and metaphysical beliefs fall away, we are left with basic

human desires, and these are the basis of our modern humanism. This is the residuum, once the false mythologies are subtracted.’ (253)

There are two potential problems with trying to liberally justify repentance while

resorting to a subtractive story. The first has to do with the description of the process of secularization itself: secularization is not so much, as Taylor indicates, a complete elimination of the religious referential, but rather a process that ‘takes us from a society in which it was virtually impossible not to believe in God, to one in which faith, even for the staunchest believer, is one human possibility among others’ (idem: 3). Living in a secular age or engaging with a secular practice, then, is not synonymous with living in an areligious age or engaging in an areligious practice. Secularity is rather about experiencing the uneasiness of any belief, and of religious beliefs in particular. Secularity is not about the absence of religion; it is about religion having lost its structural role and having become subject to individual and institutional doubt. Even if the liberal might reject Taylor’s account of secularization, she will still face some serious difficulties in justifying repentance as a secular type of practice. This is because repentant offenders relatively frequently choose to express their remorse and perform reparative actions by resorting a typically religious language (Murphy 2007). The problem, then, is that cases where repentant offenders choose to articulate their remorse using a religious vocabulary will not be audible to a liberal/secular theory that construes secularization as a subtractive story. The account of secularity as a subtractive process will therefore potentially alienate liberal theory from an important number of instantiations of a practice that it attempts to justify.

The second problem with understanding secularity alongside a subtraction or a sanitizing dynamic is that liberals will not be able to justify why repentance embraces the particular forms that it does. The contention here is broader. It is not the same as saying that the liberal secularist will find it difficult to recognize the specifically religious versions of repentance. The idea is that the liberal will lack the resources to explain why particular ways of expressing a repentant attitude are morally and institutionally efficacious and why others are not. All that the liberal can provide is a general moral backbone of repentance: this does not explain why repentance is justificatorily successful in particular contexts. The liberal will, in short, be wanting when she will try to assess the justificatory specificity of the practical realization conditions of repentance.

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II. GENEALOGICAL PRAGMATISM: TOWARD A HISTORICAL PROBLEMATIZATION OF REPENTANCE

This latter point brings me back to the importance of genealogy as far as the moral and political justification of repentance is concerned. The problem with political theology is that, while pertinently insisting on the historical nature of our political concepts and practices, it unjustifiably and exorbitantly requires us to embrace a particular metaphysical position. History is important to political theologians, but it implies excessive metaphysical costs. Conversely, the problem with liberal secularization is that it uncritically abandons history and genealogy possible justificatory devices in its attempt to discard any strong metaphysical engagement. The aim, then, is to find a way out of a situation where political theology and liberal secularization appear as the mutually exclusive and collectively exhaustive options for assessing repentance in relation to punishment.

I think that the possibility of such a ‘third way’ lies in what Colin Koopman (2007; 2011) has recently called genealogical pragmatism. Thus, in this section, I shall go over the broad methodological features of genealogical pragmatism and try to indicate how it can help us in accommodating repentance within a liberally compatible justification of punishment. Genealogical pragmatism comes as an attempt to combine the historical sensitivity of genealogy with the problem-solving gusto of pragmatism. Genealogical pragmatism is a hybrid that works mid-way between the work of Michel Foucault, on the one hand, and John Dewey or Hilary Putnam, on the other hand. The reason for such a synthesis lies in providing moral and political theory with the tools necessary for assessing the way in which moral and political problems actually come to be raised and are gradually constituted, while at the same time indicating ways of morally and politically coming to terms with these particular problems.

Both genealogy and pragmatism share a view of justification that is different from the one offered by the proceduralist version of liberalism. For the procedurally and constitutionally minded liberal, justification is construed as an attempt to offer sufficient moral and political reasons for the existence or reform of a particular practice. Justification is a way of ultimately settling a moral or political matter in a principled way, that is, in a definitive manner. The way liberals typically go about justifying the existing social and political institutions relies on an ex ante strategy: the idea is to pin down the generally valid principles that will be able to conveniently solve in advance any political or moral problem that might arise later on. Justification is offered in relation to a given practice or institution; it does not arise within them. This probably explains why justification is understood as an ahistorical pursuit. If justification is purely a question of principles and if principles are essentially entities that do not have a temporal nature, then historical considerations carry no decisive weight as far as justification goes. Consider, for example, the (philosophically dominant) Rawlsian account of moral and political justification, that is, the one based on an original position-like scenario. Placed in the original position and hidden behind the veil of ignorance, the representative parties

‘cannot enter into agreements that might have consequences they cannot accept.

They will avoid those that they can adhere to only with great difficulty. Since the original agreement is final and made in perpetuity, there is no second chance. (…). A person is choosing once and for all the standards which are to govern his life prospects. Moreover, when we enter an agreement we must be able to honour it even should the worst possibilities prove to be the case. Otherwise we have not acted in good faith. Thus the parties might weigh with care whether they will be able to stick by their commitment in all circumstances. (Rawls 1971: 153)

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Contrary to procedural liberalism, genealogy and pragmatism see justification in

historical terms. Foucaultian genealogy insists on the fact that any justification that purports to escape the strictures of historical contingency is actually and ultimately the product of a particular historical context and power arrangement. Similarly, Deweyan pragmatism emphasizes the idea that there is no initially or definitively given moral or political problems. It is the refusal of any such ‘givenism’: no moral, political or epistemic problem is simply and perpetually given to us. Rather, any such problem is the consequence of a particular historical configuration. The historicity of problems, then, calls for the historicity of justification. This is the common epistemological ground where genealogy and pragmatism meet. To wit, in acknowledging the temporal nature of any justificatory activity.

‘The strong claim that logic and justification are fully distinct from history and

evolution makes sense only if one denies that justification itself is a temporal process that takes place both within and through time. This latter denial in turn makes sense only if one strongly affirms synchronic and therefore extremely rationalistic accounts of justification, knowledge, and truth. (…). But perhaps (…) justification is temporal (…): perhaps justification must not only look backwards into history, but forwards into the future as well. Justification, in this broader sense, shuttles back and forth between past and future.’ (Koopman 2011: 4-6; emphasis added)

It is this broadly considered kind of justification that genealogical pragmatism

attempts to administer. On the side of genealogy, genealogical pragmatism is about retrieving the specific historical context within which a specific problem has come to be raised. On the pragmatic side, genealogical pragmatism tries to justify – that is, to provide reasons for – a particular solution that tries to tackle with a particular problem. Genealogy is a particular – and quite selective – use one makes of historical in order to point to the way specific practices have generated particular problems that might be still pertinent for us today. Seen from such an angle, genealogy is an exercise in what Foucault had gradually come to call problematization, that is, a study of the way in which particular problems have been historically articulated within and shaped actual moral practices and political institutions. The main point is that, by insisting on the problematic character of such practices and institutions, genealogy prepares the field for their normative critique.

‘Foucault’, writes Koopman, ‘held that genealogy must be part of any normative

critique, but he did not make the stronger claim that genealogy by itself constitutes such a critical project. Genealogy is internal to justification, (…) just insofar as genealogy helps illuminate the incoherence of some of our practices. But Foucault would never had held that a philosopher can take incoherence in a practice as a demonstration of the worthlessness of that practice (…). What he more plausibly suggested is that genealogy is internal to the justification of practices only to the extent that genealogy reveals tensions which future thought must work on if it is not to lose a sense of the value of the practice in question.’ (idem: 12-13)

Genealogy, in other words, sets the historical ground on which pragmatism is

then supposed to perform its reconstructive, justificatory work. Genealogical pragmatism relies on a division of theoretical labour, where genealogy is in charge with revealing the problematic nature of the historical matter an institution is composed of, and

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pragmatism deals with offering rational, if provisional, solutions, to these particular problems.

Two preliminary remarks are in order, before seeing how genealogical pragmatism can contribute to accommodating repentance in relation to our penal practices. Firstly, genealogical pragmatism is preferable to political theology insofar as it does not carry any excessive metaphysical requirement, other than recognizing the historical plausibility of a series of practices and events. Genealogy and pragmatism are both metaphysically deflationist, in that they imply no particularly fixed metaphysical system, whether Christian or otherwise. More precisely, genealogical pragmatism carries out its work at the micro-level of the emergence, dislocation and reformulation of specific practical problems without bothering to offer a substantial account of what might constitute the underlying metaphysical structure of these problems. The idea, in short, is that these practical problems can still make sense to us today, even if only in a relatively remote comparative manner, without thereby compelling us to retrace or commit to a particular metaphysics.

Secondly, genealogical pragmatism is heuristically more rewarding than political theology or secularizing liberal theory, in that it arguably allows us to get in touch with the specifics of repentance as articulated within a more or less precise historical context having marked Western punishment. It addresses, in other words, the problem of justificatory specificity.

III. MAKING PUNISHMENT FINITE: THE FORMULATION OF THE SACRAMENT OF PENANCE AND THE DISCOVERY OF PENAL AUTONOMY In what follows, I am firstly going to offer a brief genealogical sketch of a certain number of particular practical problems that were raised either in relation to or within Western punishment systems and that eventually lead to an association and concurrent articulation of penal and penitential practice. The ‘putting together’ of these otherwise ontologically disparate problems broadly began with the 12th and 13th centuries and stabilized around the turn of the 16th and the 17th centuries.7 Secondly, and conclusively, I am going to indicate how repentance can be simultaneously interpreted as a way of giving meaning to and justifying penal practice. In particular, repentance comes as a type of conduct throughout which the idea of imposing rational rules against rational persons makes sense. Repentance is not an intrinsic characteristic of the Western legal practice of punishment. It does not, for example, have any particular theoretical or practical importance in the penal practice of the ancient Greeks or in that of the Romans. This is mainly because repentance is unthinkable as a non-subjective process. Subjectivity, however – as Michel Villey (1977) and especially Yan Thomas (1977) have scrupulously shown – holds a very limited practical and conceptual place in the enforcement and administration of ancient penal law. Crime and culpa are not so much perceived as an independently given subjective instance, but rather as a result (crime) or characteristic (culpa) of an objective state of affairs. Crime is not exactly – or at least not primarily – something that an offender has autonomously brought about through one’s own doing; to this extent, crime does not carry a discourse about the subjectivity of its agent. Rather, crime is defined, understood and treated as an objective disruption of an objective state of affairs. This does not mean, however, that the notions of intention, will and fault are

7 The conceptual model for this is the genealogy of pastoral power by Foucault. The normative implications of the genealogical method. Explain how this text is part of a larger genealogical project: the genealogy of the power to remit. Compare with Bernard Williams. TBD.

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totally absent from the way the practice of punishment has been theoretically construed and practically dealt with in ancient penal law. That ancient punishment is a pre-eminently objectivist kind of practice does not mean that it rejects any idea of subjectivity. The claim, instead, is that subjectivist notions occupy a different relative place in the overall theoretical model that maps onto ancient punitive practice. As Yan Thomas (idem) puts it,

‘the categories of intention, will, fault do not authorize, on their own account,

any peremptory conclusions. It is their relationship to action that matters, their qualifying presence as far as realized action is concerned, and not their existence as such.’ (65; emphasis added)

This means that penal responsibility is not to be construed as a previously given

type of reality, but rather as part of a more encompassing phenomenon. Penal offences, in other words, are not the exclusive results of a penally responsible agent, but rather the resultants of the way in which otherwise disparate elements have come to be disruptively combined. Thus, the concept of delictum in ancient Roman law does not refer so much to the act performed by a particular individual agent, but rather to the state of affairs where something is perceived as lacking. The literal meaning of the term delinquere denotes the objective lack of a certain element or series of elements, and not the individually caused course of action we take it to have today. Similarly, furtum does not stand for the action of stealing; it rather indicates the fact that something has been stolen. The emphasis, then, is on the state of affairs and not on its subjectively defined initiator (Thomas id.). Put differently, the grammar of crime and punishment is to be thought of as pertaining not to the active, but to the passive diathesis. More precisely, the psychological dimension and modulation of the offender’s responsibility or guilt is totally absent from the considerations that structure a criminal trial. This is because the individual offender is not defined as a separate instance within the offending process, but rather as the intersection point between already given elements. The penal persona is to be construed as an effect of the interplay between factors that are derived from a citizen’s name (the name carries some information about the character of a citizen), his fortune (i.e. his social and political status), his normal or daily occupation, the things he has already done or experienced (these are divided between facta and casus) and the speeches he has already delivered. The persona is not a distinct, subjective instance, but the way in which different, non-subjective phenomena come to be articulated. The citizen becomes a penal object to the extent that he is not diligens, that is, insofar as he disrupts the proper ordering of the elements that are caught in a state of equilibrium (diligentia). The penal persona is construed as a point of objective disorder.

More generally, this means that, if Western law is philosophically and practically ordered around Roman law, repentance has, at best, only a secondary and incidental role to play in the understanding and justification of legally sanctioned punishment. Nor does repentance have an important word to say in the other dominant legal tradition that has shaped Western legal culture, that is, Germanic law. In this latter model, punishment was construed as weregild: a technique by means of which a monetary price is set on the value of a human being in order to ensure compensation to the victim. Punishment is the expression of the material value of the victim and it is something the offender has to pay either to the victim herself or to her living relatives. There is a common characteristic of the Roman and the Germanic models of punishment, in that both legal traditions reduce the act of punishment to an objective and material act: the paying of a fine in Germanic law; the reestablishment of a point of equilibrium in Roman law.

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These two legal models of punishment begin losing their theoretical credibility and their practical ascendancy beginning with the 13th century. There are a series of reasons that could pertinently, if only partially, explain the waning of the Roman/German models of penal practice. Firstly, both the Roman and the Germanic model had increasingly come to be considered as too objectivistic and, as a consequence, as burdensome from a practical viewpoint. Given that crime and punishment were about objective states of affairs or previously fixed prices, there was no conceptually available way in which one could account for the modification of a penal sanction that was perceived as being too hard or straightforwardly absurd. Secondly, punishing alongside the Germanic model was an option that was open mostly to those who could pay the required sums. The others had to use their bodies as means of paying, that is, they had to undergo mutilation. One of the consequences of this was that the penal gradually came to be criticized as unfair, to the extent that it arbitrarily discriminated between the materially well-off and those who were less so. Thirdly, the enforcement of the penal sanction was often left to the individuals themselves, i.e. it remained a private matter: there was no particular political instance that was in charge with the actual administration and enforcement of the penal sanction. Fourthly, both the Roman and the German model construed the punished as a pure object of the penal intervention: no particular effort was taken to make punishment understandable or acceptable to the one who was being punished. This increased the prospects of the punished not accepting a sanction that could in all likelihood appear as incomprehensible from her particular perspective.

*

Interestingly enough, the problems that marked the lay system of punishment were similar to those that disturbed the Christian practice of penance. The history of penance is conventionally divided into three distinct periods (Vogel 1969; Tentler 1977; Merle 1985; Vacant 1993). The first period roughly corresponds to the age of the early church, going from the 2nd to the 6th century. The characteristic of this first organization of penance could be summed up as follows: penance was primarily a public ritual, the imposed penitential exercises were quite strenuous and physically demanding, and the reconciliation with the body of the faithful was allowed only once in a lifetime. Starting with the 6th century, a second, Irish-imported system of penance had come to be gradually articulated. It introduced private penance alongside the public ritual: the former was performed for mortal sins that had not been publicly committed; conversely, the latter was meant to address mortal sins that had an ‘occult’ character (Vogel idem). Penance, in addition, was enforced following a somewhat proliferating industry of penitential handbooks that instituted and regulated the enforcement of codes of satisfaction, enumerated sins and fixed their matching penalties. What is more, penance could now be performed more than one time, which meant that the absolution of (mortal) sins was no longer a once in a lifetime opportunity.

The reforms introduced by the second penitential system did not, however, solve all the practical problems that were raised by the practice of penance. Firstly, and similarly to the first penitential system, the second one was experienced as both too rigid and too harsh. The priests in charge of penance were supposed to rather mechanically follow the letter of the book and refrain from exercising their own judgment in a specific penitential matter.

Secondly, given the great number of penitential handbooks, there were important disparities in the way penance was actually enforced in different jurisdictions. The priest in charge of the administration of penance was simultaneously bound by what eventually appeared to be an arbitrary penitential code and impeded from exerting his own judgment (discretio) on a particular penitential matter. As Eboon, bishop of Reims,

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typically phrased the issue in a letter to Halitgaire, archbishop of Cambrai, at the beginning of the 9th century:

‘what troubles me in this matter is the fact that the penitential taxes contained in

the booklets of our priests are so confused, different, reciprocally contradictory and devoid of all authority that it is no longer possible to apply them. It ensues that one cannot any longer provide for the needs of the faithful resorting to the remedy of penance, at the same time because of the anarchy that rules over penance and because of their low discernment (discretio).’ (quoted in Vogel idem: 193-194; emphasis added)

Thirdly, both the first and the second penitential systems presented a

considerable degree of uncertainty. This is mainly because of the fact that the priest actually had no precise power in remitting the sins of the faithful. The function of the priest was, for the most part, a semiological one: he was supposed to help the penitent in accessing the manifestation of remission, without really exerting any control on the effective character of the remissive practice. This meant that the faithful could not be certain of his absolution until after death. The limited power of the priest in the remission of mortal sins is clearly testified by the presence of a deprecatory formula of absolution. To wit, the modality of remission is a conditional one: the priest prays that God may pardon the sinners for their mortal transgressions; he does not actually effect the remission himself. To this extent, penance does not really manage to provide a definitive answer to one of the central questions of penitential practice, that is, the question concerning the certainty of the remission of one’s sins (Tentler idem: 12-14). The faithful does not, strictly speaking, know if her sins have been remitted or not.

These four penitential issues – uncertainty, disparity, rigidity and harshness – were concurrently addressed by the reform of the practice of penance that timidly started toward the 9th century and was systematically pursued as of the end of the 12th and beginning of the 13th century. The problem of uncertainty was addressed in two ways. Firstly, the deprecatory formula of absolution was replaced by an indicative one. This did not come as a sudden change, but rather as a gradual transformation. Thus, the deprecatory formula was initially diluted at the council of Nîmes (1284): absolution was no longer declared only in God’s name, but both in the name of God and that of the priest. The formula was indicative, but its subject was, as it were, double, that is, both human and divine. It is Saint Thomas Aquinas who, in the 13th century, probably contributed the most to the adoption of an indicative form of the absolution formula. Aquinas asks, in Question 84, article 3, if the formula of the sacrament of penance is ‘Ego te absolvo’ or not. Though he starts with an apparent concession to the previous conditional formula, his answer goes against the precedent canons of the church.

‘God alone’, grants Aquinas, ‘absolves from sins and forgives sins authoritatively;

yet priests do both ministerially, because the words of the priest in this sacrament work as instruments of the Divine power; as in the other sacraments: because it is the Divine power that works inwardly in all the sacramental signs, be they things or words (…). Wherefore our Lord expressed both: for He said to Peter (Mat. 16:19): “Whatsoever thou shalt loose on earth”, etc., and to His disciples (Jn. 20:23): “Whose sins you shall forgive, they are forgiven them”. Yet the priests says: “I absolve thee”, rather than: “I forgive thee thy sins”, because it is more keeping in with the words of our Lord, by expressing the power of the keys whereby priests absolve. Nevertheless, since the priest absolves ministerially, something is suitably added to the supreme authority of God, by the priest saying: “I absolve thee in the name of the Father, and of the Son, and of the Holy Ghost”, or by the power of Christ’s passion, or by the authority of God. However, as this is not defined by

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the words of Christ, as it is for Baptism, this is left to the discretion of the priest.’ (ST I, 3a, Q. 84, art. 3; emphasis added)

The primacy of the indicative formula advocated by Aquinas in the 13th century

eventually won dogmatic ground in the 16th century, when, at the Council of Trent (1551), the manifestation theory of the power of the priest is declared heretical and the indicative formula, Ego te absolvo, was commonly admitted to be sufficient for remissive purposes.

To the imposition of the sufficiency of the indicative formula, the reform of the penitential system – as marked, once again, by the thought of Aquinas and his close followers – added a central distinction between two dimensions of the sacrament of penance. The first referred to what was called ex opera operantis: this meant that penance was effective insofar as the penitent was properly disposed, i.e. truly contrite regarding his sins — and, more generally, avoiding to be drunk, asleep or joking throughout the penitential process. The second dimension of the sacrament of penance referred to what was called ex opera operato: although this requires the proper, non-dissimulating disposition of the penitent, the idea was that the sacrament by itself had an automatic remissive power. The implication of this second – ex opera operato – thesis was twofold. Firstly, it meant that the penitent did not have to be contrite and that the penitential sacrament had enough power to change attrition into contrition.8 This partially solved the problem of the harshness characteristic of previous penitential systems, in that the efficacy of remission no longer depended on the efforts of the penitent alone, but were supported by a practical structure that provided him with remissive certainty: the sacrament. Secondly, the ex opera operato thesis detached the success of the absolution from the character of the priest. In particular, this meant that remission continued to be effective even if the priest was a sinner.

The answer the problem of remissive uncertainty was, therefore, twofold. It consisted, on the one hand, in an affirmation of the priest’s sacerdotium or absolute sovereignty as far as the remission of sins was concerned. It instituted, on the other hand, an institutional framework that was meant to authoritatively guarantee that the remission of mortal sins was authoritatively effectual beyond – and sometimes despite – any moral contingency.

This does not mean that the moral characteristics of the priest and of the sinner were completely discarded. Morality still mattered, but on a different level. The indicative formula and the power of the sacrament offered what might be called the political structure for the absolution of sins: the real certainty of remission was no longer possible in the absence of the sacerdotium and outside the sacramental space. This meant that remission was no longer a personal affair between the penitent and God. Effective penance – i.e. the remission of sins – became possible only within the institution of the Church, that is, as a relation that had to be mediated by the sovereign presence of the priest within the practical structure of the sacrament.

That this political structure of penance was instituted does not mean that the penitent and the priest were allowed to do whatever they pleased with it. Rather, the idea was to design the practice of penance in such a way as to be able to give both the priest and the penitent a space within which they could be able to modulate penance within a morally admitted range, while at the same ensuring that their conduct had the desired effects, i.e. absolution. The problem with the two previous penitential systems was that they gave the penitent either a too wide a penitential role (the early Church) or almost

8 The difference between the two, cf. Delumeau (1990). The difficulty of attrition in the late Middle Ages, cf. Lea (1896/1968), vol. 2: 6.

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none at all (the second penitential system). The challenge was now to find an intermediate solution between these two extremes.

The way to do this – and the theological solution, once again, was systematized by Thomas Aquinas – was to limit the repentant behaviour of the punished and the punitive intervention of the punisher to an action driven by the faculty of intentio. The idea was that repentant behaviour and penitential impositions were morally valuable only to the extent they were intentional, that is, only to the extent that they were rationally willed by both the penitent and the priest. More precisely, repentance could not be morally beneficial unless it was eventually intended by the repentant. Similarly, the work of the priest carried no moral weight if it was not intended up to the very last detail. The practice of penance thus supposed the interplay of a double intentio: that of the penitent that recognizes and wills his own repentant behaviour, on the one hand; that of the priest that recognizes and wills the repentance of the penitent, on the other hand.

Limiting penance to the domain where intentio could be properly exercised was a late contribution in the theological history of sin. As Jean Delumeau (1983; 1990) has shown, as long as Christian doctrine of remission remained strictly Augustinian, intentio could not play an important part either in the understanding of what constitutes sin or in what might constitute absolution from sin. This is because the morality of intentio has only a secondary role to play for Augustine: ignorance, for example, is a sin that can be as mortal as murder in the Augustinian universe. Ignoring the existence of God, for example, constitutes a peccatum the possible consequence of which can be eternal damnation. Beginning with the 12th century, and for a series of heterogeneous reasons – such as the development of markets or the attempts to explain the causes of a certain number of devastating earthquakes –, the Augustinian conception of the sinful nature of non-intentional acts gradually became to be considered as too exacting. Intentio was a way of limiting the definition of sin and, consequently, the domain of penance to a particularly circumscribed area. The problem with a non-intentional account of morality was, as Peter Abelard repeatedly insisted, the fact that it was not able to adequately discriminate between acts that prima facie appeared to be equally immoral. A non-intentional understanding of morality is not able to explain why, in some cases, imposing making someone suffer does not amount to a sin. Making someone die, for example, does not represent a sin in itself: Judas pushed Jesus to death; but so did God the father. What accounts for the substantial difference between these two acts is the intention with which they where committed. ‘Nec in opere, sed in intentione meritum operantis vel alus consistit’, writes Abelard (in Lottin 1954: 311-312). Intention is taken to mean not simply the willingness to attain an end by following a particular means, but the very determination to perform a certain act that derives from a rational conviction and a conscious judgment. Intention stands for the judicatory and individually autonomous exercise of reason. An act has to be autonomously willed – i.e. not imposed from the outside in one way or another – in order to qualify as moral. The Abelardian emphasis on intentio was soon – and quite rapidly – taken on and diffused by theologians such as influential and diverse as Hugh of Saint Victor, Peter Lombard, Alain de Lille, Odon de Soissons or Simon de Tournai (Lottin id.).

One of the consequences of the intentionalist account of morality was that repentance could qualify as moral only to the extent that it too was an effect of intentio. Thomas Aquinas elaborated the corollary of this Abelardian position approximately one century later, when he pointed out the fact that penance and repentance could not actually exist in the absence of an intentional element.

‘to repent is to deplore something one has done. (…) sadness or sorrow is

twofold. First, it denotes a passion of the sensitive appetite, and in this penance is not a

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virtue, but a passion. Secondly, it denotes an act of the will, and in this way it implies choice, and if this be right, it must, of necessity, be an act of virtue. For it is stated in Ethic II, 6 that virtue is a habit of choosing according to right reason. Now it belongs to right reason that one should grieve for a proper object of grief as one ought to grieve, and for an end for which one ought to grieve. And this is observed in the penance of which we are speaking now; since the penitent is assuming a moderate grief for his past sins, with the intention of removing them (cum intentione removendi ea). Hence it is evident that the virtue of which we are speaking now, is either the virtue or the act of virtue.’ (ST I, 3a, Q. 85, art. 1; emphasis added)

The logical consequence of such a position is that repentance has no moral value

if it is not intended by the repentant herself. This is what, in theoretical jargon, might be called penal autonomy. The idea is that penance and repentance do not mark a domain where human autonomy – understood as the non-coerced exercise of human reason – is absent. On the contrary, repentance can be qualified as a rational moral virtue, as long as it remains moderate and is performed for the right reasons. It is repentance as a passion that irrationally exacerbates the experience of punishment: flagellants, for example, miss the value of repentance by turning it into a passionate challenge. They cultivate repentance instead of using it moderately and for the right reasons. What lies at the basis of the heretical repentant movements is not intentional, but passionate self-punishment. The value of virtuous, i.e. intentionally autonomous repentance, however, lies elsewhere. The idea behind virtuous repentance is not to indefinitely and passionately cultivate repentant behaviour, but to intentionally appropriate it for the right reasons.

By following a rational sequencing – contrition-confession-satisfaction – repentance and penance are practiced and intended not for themselves, but only to the extent that they can potentially put an end to culpa, which is eternal punishment. Repentance is intended only to the extent that it is construed as the unique means for dealing with and trying to solve the problem of the culpa. The penal framework within which repentance is supposed to function has a tiered structure. Aquinas, once again:

‘man can be punished with a with a threefold punishment corresponding to the

three orders of to which the human will is subject. In the first place a man’s nature is subjected to the order of his own reason; secondly, it is subjected to the order of another man who governs him either in spiritual or in temporal matters, as a member either of the state or of the household; thirdly, it is subjected to the universal order of the Divine government. Now each of these orders is disturbed by sin, for the sinner acts against his reason, and against human and Divine law. Wherefore he incurs a threefold punishment; one, inflicted by himself, viz. remorse of conscience; another, inflicted by man; and a third, inflicted by God.’ (ST I-II, Q. 87, art. 1; emphasis added)

The function of repentance as an intentional, self-inflicted punishment is double.

Firstly, it is a way of recognizing the legitimacy of the external (human and divine) penal interventions on account of a sin having been committed. Repenting is a way of prolonging these outside punishments. Secondly, repentance and penance amount to a series of procedures the effect of which is that of bringing down to earth the eternal damnation deriving from the guilt of having committed a sin. Performing penance and engaging with repentant behaviour is a means of making the invisible punishment of guilt visible and thus potentially finite. As Aquinas puts it,

‘in mortal sin there are two things, namely, a turning from the immutable Good,

and an inordinate turning to mutable good. Accordingly, insofar as sin turns away from

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the immutable Good, it induces a debt of eternal punishment, so that whosoever sins against the eternal Good should be punished eternally. Again, insofar as moral sin turns inordinately to a mutable good, it gives rise to the debt of some punishment, because the disorder of guilt is not brought back to the order of justice, except by punishment: since it is just he that he has been too indulgent to his will, should suffer something against his will, for thus will equality be restored.’ (ST I-II, Q. 86, art. 4; emphasis added)

The penitential organization of punishment thus points to a moral and political

division of penal work. On the side of divine punishment, the sacrament of penance and the sacerdotium of the priest are in charge with the annulling of eternal culpa.9 The sacrament of penance makes punishment finite insofar as it gives it an end in time. On the side of earthly punishment, however, repentance as repentant intentio is pre-eminent: putting an end to the penal sanction is not justified as long as the sinner has not intentionally, that is willingly engaged in the restoration of the breached equality herself. Repentance is a way of transforming punishment – through confession and satisfaction – into a work of justice. The intentional appropriation of external punishment renders the latter meaningless: punishing oneself is the justification for reducing and eventually concluding the enforcement of the penal sanction. Intentional repentance is a way of showing that the sinner has understood that there is something wrong about committing a sin and is ready to engage in reparatory work. To put it briefly, the sacrament of penance covers the distance from infinite to finite punishment, while intentional repentance annuls the space that separates punishment from penal justice.

This conceptual and practical reorganization of penitential practice was full of consequences as far as the organization of lay punishment goes. This is most probably because, as already indicated, the problems of ‘secular’ punishment were roughly similar to those of the penitential system. Firstly, secular punishers faced a situation were punishment was administered haphazardly and inconsistently, given the absence of a unique enforcing instance. The doctrine of the sacerdotium and of the sacrament of penance offered them a primary source of inspiration for the affirmation of the sovereign as the sole legitimate source of punishing power. Moreover, a sacerdotium-like instance was exclusively justified in remitting the penal sanction.10 Sovereignty, from this perspective, is not so much the direct, political translation of a metaphysical reality (God). Rather, sovereignty is the practical answer to a historically articulated problem: how does one go about ensuring the consistent enforcement of punitive power and control the proliferation of possibly unending vindictive reactions.

Secondly, the idea of penance as putting an end to eternal punishment proved useful for justifying the remission of what was, without a doubt, an infinite form of punishment, that is, the death penalty. Punishment by death was infinite insofar as it was performed through a sanction the severity of which could not be surpassed, especially given the particularly cruel execution techniques. Moreover, death qua punishment could be considered infinite in that it was a penal sanction that was, by definition, imposed forever, that is, beyond any temporal limit. It should probably be no wonder, then, that the vocabulary of penance was for the first time used in a non-ecclesiastical context for the purpose of remitting capital punishment. Starting with the 14th century, the letters of remission, grace and absolution from punishment granted by the sovereign testify as to the gradual grafting of the penitential procedures onto the techniques of lay punishment (Gauvard 1991; Texier 1992; Hoareau-Dodineau 2001; 2002). This happened in a period

9 Explain the difference between culpa and poena, cf. Lea (1896/1968), vol. I; difference between poena dampni and poena sensus, cf. Lottin (1954): 440. TBD. 10 On the early connection between rex and sacerdos, see Hoareau-Dodineau 2002. TBD.

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where the penal norms were either constantly changing or were considered too rigid or inadequate to properly deal with a criminal case. Thus, the penitential procedures, as expressed through the remission ceremonies, represented a sort of compromise solution in those ‘areas of normative conflicts generated by the evolution of penal rules’ (Texier 1999). Penance, in other words, entered the penal scene at the point where lay criminal appeared as unbending. If the offender wanted to escape the strictures of the punishment, she had to comply with the requirements of penitential techniques. These included works of satisfaction and compensation, pilgrimages, fasting, testifying as to one’s true regret for having committed a particular crime, and so on. Penance, in short, provided the practical language in which one could either avoid or put an end to a penal sanction considered as too rigid or excessive.11

Punishment as the intentional imposition of suffering for an intentionally committed crime – an idea which is exemplarily absent from the ancient Roman or medieval Germanic legal traditions – is one of the historiographically identifiable effects of the osmosis, as of the 13th and the 14th centuries, between the practice of Christian penance and that of lay punishment. The exact moment of the penitential recomposition of lay punishment is, of course, impossible to date with chronological precision.12 Even so, if one had to indicate a date for the high point of such a shift, I think that 1370 – the approximate date of the publication of Nicolas Oresme’s Les éthiques d’Aristote – would be a nice candidate. In the Oresmian manuscript, a miniature illustrates the Aristotelian division of the concept of justice operated in the Book V of the Ethics. The miniature is composed of two parts. In the upper side, there is an illustration of legal or universal justice, which Aristotle understood as ‘complete virtue in its fullest sense because it is the actual exercise of complete virtue’ (1129b).13 This explains why the crowned figure of universal/legal justice shelters under her mantle six daughter-like smaller figures. Four of these virtue-representing figures are named: fortitude, justice particulière, mansuétude (gentleness/mercy) and entrepesie (conciliation).

The lower side of the miniature – and this is the part that particularly interests me here – represents the concrete functions of the two forms of Aristotelian particular justice. On the left side, there is the figure of distributive justice standing behind a table that is covered with a number of documents, vessels and golden coins. These objects clearly stand for the ‘honour or money or the other things that fall to be divided among those who have a share in the constitution’ (Aristotle 1130b). The right hand of distributive justice is held upright in a somewhat meditative – if not outrightly calculating – gesture; her left hand is placed upon a pile of coins lying on the table and probably waiting to be distributed. Her head is turned in the direction of four rectangular measuring rods representing the proportional equality of 6:3 = 4:2. To the right of distributive justice, there are four men, two of whom are entirely visible. One of them holds a heap of coins and the other one a golden chalice. It seems that the task of distribution is still unfinished, as the two other men behind are waiting their turn and there are still items on the table that have not been allocated to anyone in particular.

On the right side of the lower quadrilobe, the Oresmian manuscript contains a scene depicting corrective justice. The female figure here, morphologically similar to the one picturing distributive justice, seems to be acting as a judge between two litigants. The man placed on her left looks like a tonsured cleric, the one on her right like a well-off, richly dressed secular character. Partly hidden behind the two litigants, one can see a

11 It is the period were the idea of iremissible sins and crimes starts to lose ground. TBD. 12 Oakeley’s (1932) thesis of the penitential transformation of criminal law. TBD. 13 Precise reference needed.

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couple of bystanders or witnesses. Corrective justice holds her hands crossed in a position that symbolizes the fact that she is taking something away from one of the two men and giving it to the other. On a closer look, however, it is obvious that she holds nothing in her hands: there is no material object of exchange, like in the case of distributive justice. The instruments of corrective justice have replaced the objects of distribution: a stock and a scourge are suspended above and an axe is lying below this second scene.

The symbolic message contained in this latter representation is, I think, double. Firstly, the idea is that, as far as punishment and corrective justice go, there is nothing – that is no thing – to be distributed between the contending parties. Penal justice is not about material allocation or the ordering of objectively disrupted elements, like in the Germanic and ancient Roman model. Rather, it is, as its name indicates, about correction: it is about doing and undoing as such, not about administering titles, functions and material objects. This does not mean that material objects are totally absent from what happens in corrective justice. These objects, however, are not given to the contending parties; they are used in relation to them in order to generate a particular corrective action. To put it in contemporary theoretical jargon, this suggests that – at least historically – the kind of normativity that is implied in corrective justice is categorically different from the one characteristic of distributive justice. Correction has to do with rectification, i.e. with straightening something that has been twisted in one way or another.

Secondly, the significance of this scene points to the relation between repression and penance. The axe, on the one hand, stands as the symbol of utter retribution. The scourge and the stocks, on the other hand, are instruments typical of penitential rituals. Repression and penance are therefore understood as parts of the same (corrective) process. The fact that the two types of corrective instruments do not occupy the same dimension of the miniature, however, probably indicates that the penitential instruments constitute an alternative to repression. In particular, penance might be interpreted as a way of transforming, adjusting and turning what is simply an act of punishment into an act of penal justice. The distance that separates the scourge and the stocks from the axe is indicative of the distance that separates mere punishment from ‘complete’ corrective justice. Penance is now a constitutive part of penal justice. This is what Thomas Aquinas – an author Oresme’s illustrator was most familiar with – had explicitly affirmed approximately one century earlier. Penance, Aquinas suggests, is a way of pursuing and perfecting the work of penal justice. Aquinas asks whether satisfaction (satisfactio) – which could have consisted in prayers or different good works that the priest might have required from the penitent – is a form of justice or not. Noting, in typically Aristotelian manner, that justice is about ensuring or restoring a particular type of equality, Aquinas further adds that:

‘(…) equalization concerns only such things as are unequal, wherefore

satisfaction presupposes inequality among actions, which inequality constitutes an offence; so that satisfaction regards a previous offence. But no part of justice regards a previous offence, except vindictive justice, which establishes equality indifferently, whether the patient be the same subject as the agent, as when anyone punishes himself, or whether they be distinct, as when a judge punishes another man, since vindictive justice deals with both cases. The same applies to penance, which implies equality in the agent only, since it is the penitent who holds to the penance (poenam tenet), so that penance is in a way a species of vindictive justice. This proves that satisfaction, which implies equality in the agent with respect to a previous offence, is a work of justice, as to that part which is called penance.’ (ST I, Q. 12, art. 2; emphasis added)

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Penance – and the actions through which one undertakes to punish oneself – can, then, be interpreted as ways of completing the work of punitive justice. Moreover, the idea intrinsic in the penitential act is the opportunity, on the side of the offender, to ‘hold to’ her own punishment. The offender can have the scourge if she prefers avoiding the axe. This means, in other terms, that penance qua satisfaction is the practice whereby the punished becomes the subject of her own punishment. By undertaking satisfactio, the offender makes sure that rectification is not merely heteronomously imposed from the outside, but autonomously undertaken from the inside. Penance could thus be construed as the series of procedures by means of which punishment ceases to be a simple act of coercion and becomes an autonomously initiated act of correction. Penance, in short, is a way of transforming coercion into correction, thus perfecting and eventually putting an end to the penal justice process.

The difference between coercion and correction might be explained in the following way. If penal justice is essentially about restoring a twisted equality, then coercion as such cannot justify – i.e. provide the right reasons for – performing punishment as an act of justice. Coercion is normatively distinct from correction in that the former can be exerted outside the sphere of justice, that is, without providing reasons for rectifying some kind of lost equality. These might refer to cases dealing with defense (like the internment of enemies), treatment (like in the case of quarantine) or outrightly irrational episodes of violence. All of these cases can be adequately construed in the absence of the concept of equality between individuals. The reasons behind coercive acts are, therefore, substantially different from those characteristic of corrective actions. Coercion is a notion larger than and distinct from the notion of justice, while correction seems to be normatively intrinsic to it.

Furthermore, coercion can be – and is typically – imposed from the outside without providing any particular reason to the one who is being coerced. Correction, on the other hand, seems impossible in cases where the one who is being corrected fails to understand and eventually acknowledge the justified nature of the corrective process. An offender who constantly refuses the reasons provided for her punishment is an offender that is being coerced and not one who is being corrected. Correction, therefore, implies a double agency: first, that of the one who initiates the process from the outside; second, that of the one coming to terms with it from the inside. To put it analogically, there are two ways of dealing with someone misspelling a particular word or failing to construct a coherent phrase. The first one is to grab her hand and make her write the word in the desired way. This is a case of coercion. The second one is to explain why spelling the word or constructing the phrase in that specific manner constitutes a mistake, thus providing a reason – say, the rules of grammar – for the word and the phrase to be written differently. This is a case of correction. In the first case, it is the outside agent that actually does the writing; in the second case, it is the formerly mistaken agent who correctly writes the word because she understood why and how this is done. The difference between coercion and correction, then, lies in autonomy: the first one does not – or, more precisely, does not have to – take human autonomy into account, while the second one is conceptually impossible without it. IV. CONCLUSION

I am now coming to the conceptual corollary of this historically relatively late

practical and intellectual phenomenon. The penitential recomposition of punishment at the end of the Middle Ages at least tentatively indicates that the concepts of intention, culpability, responsibility and autonomy did not appear within the practice of punishment understood as

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repression or retribution, but within a penal practice as ultimately oriented toward remission by means of penance. Nor should one forget that testimony is a procedure that was born within the practice of punishment understood as penance and not as sheer repression (Hoareau-Dodineau 2001). If modern punishment, therefore, is unthinkable without these notions and procedures, then it is probably unthinkable without the penitential practices and repentant lines of conduct that are historically attached to them.14

The theoretical upshot of this genealogical detour is fourfold as far as the normative relation between repentance and liberalism goes. Firstly, and rather generally, it indicates the importance of historically based inquiries into the possible justifications of penal practice. The two main justifications – the deontological/retributive one and the consequentialist/utilitarian one – that are currently presented as versions of liberal theorizing are rarely sensitive to the temporal nature of the moral and political justification of punishment. Thus, they seem to either rest upon or derive from a historical ex nihilo. One of the main problems raised in relation to contemporary liberal theorizing of punishment – and, to a certain extent, to liberalism in general – lies in the liberal’s lack of historical culture. This is normatively inaccurate, insofar as the structure of moral and political justification is at least partially overlapping with the historical context of the discovery of a particular practice. The problem, however, is not only with missing out on the logic of moral and political justification.

Secondly, as Joseph Raz (1994) suggested, when history is taken out of the justificatory picture, our theories of justice risk becoming complacent. This means that, if we follow Rawls’s lead and decide to ground our theories of justice on shallow, i.e. historically and practically thin foundations, then we deprive our theory of a potentially valuable critical resource. Furthermore, a historically and practically thin account of justification will arguably prove all the more vexing for a theory of penal justice, as compared to a theory of distributive justice. This is because penal justice cannot raise a valid claim as to the neutrality of its moral content. For this reason, any theory of penal justice will have to come up with a story of what and how the common morality in the name of which we punish was constituted. Telling this story in an ahistorical manner does not only expose us to descriptive incoherence; it can also overlook potential valuable justifications stacked in our historical archives.

Thirdly, if liberal theory admits the normative importance of concepts such as guilt, intention, desert and responsibility, then it will have to at least seriously consider repentance among the terms that justificatory vocabulary of punishment. As my genealogical assessment tried to show, the concepts of guilt, intention, penance and punishment are all part of the same normative web. Trying to have some (guilt, desert and intention) while hastily discarding others (repentance) is, as such, an option that will be difficultly arguable. Stuart Hampshire’s (1989) no shopping thesis aptly explains, I think, why this might be so.

‘Ways of life’, notes Hampshire, ‘are sharply coherent and have their own unity in

the trained dispositions that support them, and in the manners and observances and prescriptions which as children we are taught to see as normal. We learn to recognize normal conduct in the same way that we learn our native language, and not principally in the way we learn mathematics (…), that is by methodical instruction, but rather by imitation. At some stage, we may be introduced to a museum of normalcies which have accumulate in history. But still we cannot pick and choose bits of one picture to put besides bits of

14 For a recent attempt to think modern punishment without the Christian-based notion of responsibility, see Fletcher (2007). TBD.

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another; the coherence of the pictures comes from their distinct histories: this may be called the no-shopping principle.’ (143; emphasis added)

Practicing punishment is part of the contemporary Western way of life, writ

largely. Punishing is something that we, as social actors, actually do to others. We do this directly, like in the case of police officers, judges and prison administrators, or indirectly, like in the case of the condoning, common citizen. What is more, our current procedures of punishment – interrogation, witnessing, imprisonment, and so on – are part of a common history that cannot be simply ignored by theoretical fiat. This means that our moral and political theories cannot simply turn a blind eye to how these procedures have historically and practically emerged and been justified. Penal procedures do not make sense outside of the history that contributed to their formation. On a more specific level, the no shopping thesis implies that, if guilt counts among the reasons for punishing, repentance will, in all likelihood, wait for us around the justificatory bend.

Fourthly, and finally, repentance as a reason for penal practice answers, at least in part, one of the questions that have been troubling liberal theories of punishment. To put it in Markus Dubber’s (1998) terms, that question is: how can one justify the imposition of rational rules against rational persons? The answer to this question can, based on my earlier genealogical considerations, be briefly stated as follows. One can – and probably should – justify the imposition of rational rules against rational persons, to the extent that one manages to put forward these rules as reasons for self-correction in cases where a moral and legally sanctioned mistake has been committed. Self-correction should be, in principle, compatible with the liberal requirements of a theory of penal justice. More generally, elaborating on the premisses and implications of this answer is, I would argue, the task that any theory of penal justice should try to fulfil.

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ANNEX I. VISUAL REPRESENTATION OF UNIVERSAL JUSTICE AND OF PARTICULAR

(DISTRIBUTIVE AND CORRECTIVE) JUSTICE IN NICOLAS ORESME’S LES ÉTHIQUES D’ARISTOTE (1370-1375), BRUSSELS, BIBLIOTHÈQUE ROYALE ALBERT 1ER, MS 9505-6 (FORMERLY MS 2902),

FOLIO 89R.