Chronic Murmuring

hmm, good thoughts, definately put a new spin on it that I hadn't thought of before. You econonmists...

personally, and I mean personally, I'd just like it so the family of the raped girl were given the freedom to beat the piss out of the guy who did the raping.

But I've got really less-than-idealistic (nearly narcissistic) views of the government and justice so...I mean, I just have a hard time in my gut (not head mind you) why I shouldn't be able to do that.

I'd like to see that option, too, Josiah.

How much logical thinking about costs and benefits of killing or not killing the victim does someone who is capable of raping a person do? Seriously, I'm asking. I guess if the act was premeditated; but far more rapes occur in the "date rape" or "acquaintance rape" domain than in the stranger domain.

It's like my Adult Psychopathology professor told us time and again, "You are all asking questions about where the imaginary head is, what it's saying, and how the schizophrenic man would try to shoot it to kill it -- would he shoot beside his own head or would he shoot himself in the head -- without realizing that the schizophrenic man is not concerned with logic at all because his entire worldview is illogical."

Something like that anyway...

I haven't seen any studies on rapist's responding to incentives like what I'm talking about. But, you can imagine that after they have committed the crime, the "passion" that had motivated the crime in the first place has subsided, and they may be thinking more rationally at that point. For instance, after a rape is concluded, it's not uncommon for the perpetrator to take steps to conceal the crime - one example being when he tells the victim not to reveal it, or else he'll kill them. They would appear to at the least be motivated by self-preservation. If they knew that merely the act of rape would command the death penalty, then wouldn't it make more sense to kill the victim? I mean, they're going to get the death penalty either way, so they might as well get rid of the witness.

But you're question is the right question. To what degree are people rational when committing crimes? There's actually a fairly developed literature on this question in economics. I've mentioned it a few times when I talk about about Gary Becker's seminal article, "Crime and Punishment: An Economic Approach" from the Journal of Political Economy late 60s. Again and again empirical tests of Becker's theories have shown that criminals do respond to incentives and take into consideration the expected punishments (ie, costs) and weigh them against the expected payoffs (ie, benefits) from their crimes. David Mustard and John Lott studied whether "shall issue laws" (laws allowing law-abiding citizens to carry weapons on their bodies in public places) reduced crime or not. The theory was essentially Beckerian - the more people who are carrying weapons, the less likely a criminal can successfully complete his melee. One, because there's a higher probability that someone in the crowd has a weapon, and therefore that he'll get killed (cost). Two, because there's a lower probability that he'll be successful (benefit). So empirically, we should see crime rates of various types declining in those states that have shall-issue laws compared against those that do not. And empirically, that was what they found, and the findings were statistically significant.

Sam Peltzman did a similar study back in the early 1970s on the effects of seatbelt laws on automobile deaths. He theorized that seatbelt laws, making the automobile safer, lowers the risks associated with driving more recklessly. Therefore, we should see people driving more recklessly after the laws than before, and that this might actually increase the number of deaths, despite cars being safer (or rather, due to the cars being safer). He found that deaths within the car dropped, but pedestrian deaths outside the car increased. In other words, the law affected the cost and benefit balance slightly, which changed people's behavior slightly.

Another famous study was by Isaac Ehrlich back in the early 1970s, which was later revisited a few years ago by Emory economist Paul Rubin. It was the question of whether capital punishment did, in fact, reduce homicides or not. This more or less gets to the question of what you're asking. How likely is it that criminals really do think about the costs and benefits of their actions before they do them? Or to put it differently, at the moments leading up to the crime, how rational are criminals? Different theories exist. One theory is that criminals are by nature irrational; that they are inclined to commit the crime regardless of the consequences, and no amount of increasing the penalty is going to affect them. This is especially the case, arguably, for crimes of passion like certain types of non-premeditated murder or rape. Another theory, the economic one, is that criminals are themselves rational and that the future expected penalties are weighed against the present expected payoffs. Both Ehrlich and Rubin found that capital punishment did reduce the number of homicides. I think Rubin found something like - for every one person executed, 9-15 people's lived were saved.

And there are other studies, too, that seemed to support the economic theory about rationality. One experimental study went into an insane asylum in upstate New England to test one of the more basic axioms of economic theory - the law of demand. The law of demand says that if the relative price of a good increases, then quantity demanded at that price will decrease, even when taking into consideration a compensated increase in the income of the individual. So to test this, the scientists went to some kind of trading shop in the asylum where patients bought cigerrettes, chocolate and other commodities daily. They began to gradually increase the relative prices of cigerrettes to see whether these people - who are clinically considered irrational on some level - would respond the way economic theory predicts. And they did; as the relative price of cigerettes increased, the number of cigerettes bought declined as theory predicted.

At the aggregate level, the way I think about it is that it is likely that there do exist a certain number of criminals who will commit the crime regardless of the consequences. But there seem to be enough people at the margin who do take those consequences into consideration. Ultimately, though, it's an empirical question - we can debate the theories all day. Empirically, it appears that the economic theory of crime has a lot of support. People do heavily weight the expected penalties against the expected payoffs.

I haven't seen any studies on rapist's responding to incentives like what I'm talking about. But, you can imagine that after they have committed the crime, the "passion" that had motivated the crime in the first place has subsided, and they may be thinking more rationally at that point. For instance, after a rape is concluded, it's not uncommon for the perpetrator to take steps to conceal the crime - one example being when he tells the victim not to reveal it, or else he'll kill them. They would appear to at the least be motivated by self-preservation. If they knew that merely the act of rape would command the death penalty, then wouldn't it make more sense to kill the victim? I mean, they're going to get the death penalty either way, so they might as well get rid of the witness.

But you're question is the right question. To what degree are people rational when committing crimes? There's actually a fairly developed literature on this question in economics. I've mentioned it a few times when I talk about about Gary Becker's seminal article, "Crime and Punishment: An Economic Approach" from the Journal of Political Economy late 60s. Again and again empirical tests of Becker's theories have shown that criminals do respond to incentives and take into consideration the expected punishments (ie, costs) and weigh them against the expected payoffs (ie, benefits) from their crimes. David Mustard and John Lott studied whether "shall issue laws" (laws allowing law-abiding citizens to carry weapons on their bodies in public places) reduced crime or not. The theory was essentially Beckerian - the more people who are carrying weapons, the less likely a criminal can successfully complete his melee. One, because there's a higher probability that someone in the crowd has a weapon, and therefore that he'll get killed (cost). Two, because there's a lower probability that he'll be successful (benefit). So empirically, we should see crime rates of various types declining in those states that have shall-issue laws compared against those that do not. And empirically, that was what they found, and the findings were statistically significant.

Sam Peltzman did a similar study back in the early 1970s on the effects of seatbelt laws on automobile deaths. He theorized that seatbelt laws, making the automobile safer, lowers the risks associated with driving more recklessly. Therefore, we should see people driving more recklessly after the laws than before, and that this might actually increase the number of deaths, despite cars being safer (or rather, due to the cars being safer). He found that deaths within the car dropped, but pedestrian deaths outside the car increased. In other words, the law affected the cost and benefit balance slightly, which changed people's behavior slightly.

Another famous study was by Isaac Ehrlich back in the early 1970s, which was later revisited a few years ago by Emory economist Paul Rubin. It was the question of whether capital punishment did, in fact, reduce homicides or not. This more or less gets to the question of what you're asking. How likely is it that criminals really do think about the costs and benefits of their actions before they do them? Or to put it differently, at the moments leading up to the crime, how rational are criminals? Different theories exist. One theory is that criminals are by nature irrational; that they are inclined to commit the crime regardless of the consequences, and no amount of increasing the penalty is going to affect them. This is especially the case, arguably, for crimes of passion like certain types of non-premeditated murder or rape. Another theory, the economic one, is that criminals are themselves rational and that the future expected penalties are weighed against the present expected payoffs. Both Ehrlich and Rubin found that capital punishment did reduce the number of homicides. I think Rubin found something like - for every one person executed, 9-15 people's lived were saved.

And there are other studies, too, that seemed to support the economic theory about rationality. One experimental study went into an insane asylum in upstate New England to test one of the more basic axioms of economic theory - the law of demand. The law of demand says that if the relative price of a good increases, then quantity demanded at that price will decrease, even when taking into consideration a compensated increase in the income of the individual. So to test this, the scientists went to some kind of trading shop in the asylum where patients bought cigerrettes, chocolate and other commodities daily. They began to gradually increase the relative prices of cigerrettes to see whether these people - who are clinically considered irrational on some level - would respond the way economic theory predicts. And they did; as the relative price of cigerettes increased, the number of cigerettes bought declined as theory predicted.

At the aggregate level, the way I think about it is that it is likely that there do exist a certain number of criminals who will commit the crime regardless of the consequences. But there seem to be enough people at the margin who do take those consequences into consideration. Ultimately, though, it's an empirical question - we can debate the theories all day. Empirically, it appears that the economic theory of crime has a lot of support. People do heavily weight the expected penalties against the expected payoffs.

If I had known economics was so dang cool, I would have paid more attention in my Macro class during my freshman year. I thought it was all about the Benjamins -- I didn't realize that your peers were basically psychologists and sociologists with different jargon in some cases.

What I have found interesting recently is that many criminals completely believe that their criminal behavior is completely out of their control, at least as they think about it after the fact. Nonetheless, when put into a different type of environment with different witnesses, different incentives, more direct observation etc. they seem to be very much in control of themselves. This is something discussed at length in the Dalrymple book I keep talking about. BTW, Hauerwas agreed to read this book upon my recommendation. I think the most fascinating part of it was the fact that the urban poor have fully accepted the liberal notion that "society" is responsible for their behavior. They ofetn see their behaviors (such as stealing cars) as an illness, and are thus not responsible. They put the responsibility onto social workers and doctors who have to "cure" them.

Scott,

You might keep in mind that the OT imposed death for non-homicide offenses (e.g., rape of a married or betrothed woman).

It seems as though you've implicitly assumed that penalties exist only to protect victims. If there are other purposes for punishment, however, then it's possible that we might want to retain death as a penalty even if it increases the marginal incidence of homicide.

Jim, I had those exceptions in mind. In fact, those exceptions were part of my original belief that rapists should be punished with death. But I didn't mention them in my post because there's still a lot I don't understand about the function of the law in the OT, and to what degree societies are free to pursue social policies without adopting the penal sanctions of the OT.

My sense is that deterrence is one of the principal reasons for assigning capital punishment in OT times - one passage in Deuteronomy states that the community should stone a person so that others would see it and not do it (or something to that effect). So for that, I get the sense that the general approach of my post is correct. Secondly, rape is not given the death penalty in the OT normally. It's only when the victim is married or betrothed that capital punishment becomes an option. This has me wondering whether death penalty is supported because of the societal function of marriage and the role of women in premodern society. I can't really figure out why, though, death penalties would only be applied in those situations when the victim is bound to someone else. It obviously has something to do with the repercussions of the crime as it traces to the husband, but I can't figure out what that is.

But yes - insofar as there are other functions to the law besides deterrence and efficiency, then my argument can still be correct in a positive sense, but to be ignored on a normative level. But I would be quite surprised to discover God enforcing laws which had such unintended consequences, to be honest. Like I said, deterrence is spelled out explicitly is one justification for capital punishment in Deutoronomy. Other reasons are given elsewhere - like equity ("eye for an eye") - but I implicitly tend to believe that God's law is efficient, as well as wise and just.

A couple of comments. First, the OT death penalty for specified sex crimes does not have to to with "the repercussions of the crime as it traces to the husband." Sex crimes are an attack upon the image of God and church as Bridegroom and Bride. (All of the OT death penalties are imposed for attacking some aspect of God.)

That being said, there is absolutly no obligation for governments in the New Covenant to impose OT penalties (including death). It's clear that the OT penalties -- particularly the death penalty -- were part of Israel's "ceremonial" law. Hence, to insist on their application is to partake of the sin of Galatianism.

Secondly, of course there are deterrent effects etc., but you seem to think that there is a unique optimum. In a second-best world, there may be tradeoffs between efficiency, wisdom, and justice. The solution is to recognize the tradeoffs and make them explicit, not to deny that tradeoffs exist (not that you're doing that).

Another important reason for punishing people is because they deserve it. It's possible that punishing sinful behavior will entice some folks to sin more. That's too bad. But that possibility doesn't, perforce, mitigate the penalty that the person merits.

I'm not in the least convinced that Galatians has anything directly to say about civil law. Galatians is about entrance into and behavior within the new covenant community.

This type of question is one I have been thinking about since my undergrad days, and at ths point I am quite sure that I don't have a clear understanding of the "right" answer, meaning the one answer that should be applied in all places at all times.

The church of Paul's day was under Roman law. The issue of what the law "should" be was not a live issue. The church in medieval times, following Constantine and the ultimate destruction of Rome, played a very active role in shaping law (in Europe), since the relationship between church and state was pretty close. This remained true, in terms of church affecting legal development, until roughly the 18th century enlightenment. This pre-enlightenment mentality lives on within the church in the US where we continue to think about what good law should be if we had our way. However, since the 18C, the state has had less and less regard for the bible as a source and so we are getting back to the situation of Jesus and Paul's day.

In any event, I have a hard time seeing the penal codes as "ceremonial". Is stoning to be considered primarily a religious ritual? The Westminster divines did not see it that way, though they also felt that the judicial/political parts of the law were no longer in effect as they were meant to apply to Israel as a political entity.

I also am sure that it is proper for a Chistian ruler to study the law as David did, and proper for the church to preach to the rulers as Natahn did. Beyond this, though, I have plenty of doubts in this area.

Hey Paul,

I didn't say that Galatians had anything "directly" to say about the civil law. Rather, Galatians condemns New Covenant obedience to the "ceremonial" law as binding ceremonial law (Gal 4.1-3,9-11,21).

As for the death penalty being a "ceremonial" law (as well as a "penal" law -- all modern categories, by the way), consider the rite in Dt 21.1-9. God commands a sacrifice to remove the guilt of innocent blood from the community because the blood of the murderer has not been shed (Gn 9.6).

So the penalty for murder in the OT required the sacrifice of the murderer. Without the sacrifice of the murderer, the substitute sacrifice of an animal was required in order to "atone for" the blood guilt of the murder (Dt 21.8-9).

If the animal sacrifice is no longer required (or if it is even forbidden) as a result of Jesus' sacrifice, then the obligation that we sacrifice the murderer is necessarily changed as well as a a result of Jesus' death. (That doesn't mean we can't put murderers to death. Only that we can't do it for OT reasons, b/c they are inherently "sacrificial" or "ceremonial.")

I'll post a couple more examples below.

"Sex crimes are an attack upon the image of God and church as Bridegroom and Bride."

All crimes are an attack on the image of God. The rape of a married woman, or the rape of a single woman, is the same thing. I don't see how you're deducing this theological point. Besides, if the penalty is typological in that sense, then it definitely seems to me to be void in the new covenant. (Which I guess is your point, anyway).

If the penal laws and the type of justice dictated in the OT isn't normative for modern societies, then I guess I'm more inclined to return to my consequentialist approach. If theoretically capital punishment for rapists should lead to a net increase increase in homicides, and empirically we have some proof that this is so, then I would have a hard time supporting such a law. If the Bible had OT laws allowing for isolated cases where rape could be punished by death, but which are no longer normative, then what's the point?

Along the same lines as the post above, consider the flat prohibition on ransoming a murderer in Nm 35.31. Yet Ex 21.30 permits the life of a specific type of murderer to be ransomed. What's the difference?

Ex 21.29-30 considers the case of an ox known to be in the habit of goring who kills someone. Both owner and ox are subject to the death penalty. Yet, unlike other types of murder, the ox is stoned to death, thereby atoning for the bloodguiltiness of the murder. Hence, in this case, the owner doesn't HAVE to be put to death -- the ceremonial or sacrificial aspect of the murder being taken care of by the death of the ox.

Given that the ox atones for the bloodguiltiness of the murder, the owner may ransom his life in spite of the Nm 35.31 prohibition.

Finally, consider the whole city of refuge thing (Nm 35.9-15, 22-28).

A person who "unintentionally" kills a person may flee there (v.15). If the "manslayer" does not flee there, then the blood avenger may kill the "manslayer" without incurring bloodguiltiness (v. 27).

But manslayers need stay in the cities of refuge only until the death of the high priest, at which point they can return home protected from the blood avenger (v. 28).

Additional examples could be provided. The point, however, is that the OT death penalty is intimately tied up with the ceremonial/sacrificial system of the OT.

Hence, to teach subjection to OT penalities -- at least to the OT death penalties -- is to teach subjection to Mosaic ceremonial law, which is the sin of Galatianism.

A final, final remark on the WCF's teaching here.

Theonomists argue that there is a moral dimension to the OT penalties. Since God's morality never changes, they conclude that the penalties are binding in the New as well as the Old Covenant.

They neglect, however, the ceremonial/sacrificial dimension of the OT law in the conclusions they draw. Further, they neglect that the WCF teaches that "ceremonial laws . . . partly holding forth divers instructions of MORAL duties" (emphasis added).

In spite of there being a moral dimension to the ceremonial laws, however, the Confession goes on flatly to affirm that "all . . . ceremonails laws are now abrogated under the new testament."

To be sure, there is a lot to learn from all of the Scriptures, including the OT civil law and its penalties. It always and everywhere points us to Christ. But the civil law is no more binding on us as the binding revelation of God than is the revelation of animal sacrifice for the atonement of sin (e.g., in Lev 16).

Hey Scott,

I don't "think" that ALL crimes are attack's upon God's image. Gn 9.6 seems to motivate the death penalty as a response for homicide because man is God's image.

I take Gn 9.6 to give us the reason for the rule in the case of murder. In the other cases where the death penalty is imposed, it seems to me fair to say that there's some special aspect of God's image that is present. Hence, committing those special crimes place them in the special category of attacking God directly in a way that other crimes, such as mere theft, do not.

To be sure, every sin merits spiritual death. But if every crime were an attack upon God's image then, presumably, every crime would be punishable by death.

At least that's as good as I've come up with so far.

Scott,

Let me underscore that I have absolutely no problem with consequentialist reasoning in regards to penalties (at least consequentialist in terms of minimizing net aggression). None whatsoever. My initial observation only aimed to underscore that there are other "consequences" that we can consider along with minimizing aggression. Things like the intrinsic merit of the criminal.

As far as your initial substantive point, I'd have no problem agreeing to no death for rape if the rape deterred from the death penalty seems to be overmatched by the victims raped then murdered by their attackers. I'm willing to go with whatever the evidence suggests.

Jim,

I think our perspectives here are somewhat at odds. The issue of penal codes is, almost by definition, a political one. It involves a ruler making and enforcing a law. In actual practice very few christians have ever been in the position to create such laws. And in any event, the issue of arguments for or against particular penal codes is very far from the reasoning of Galatians. The issue in Galatians is the church and its composition. No one in Galatia was under any illusion that they got to decide what the penalty "should" be for rape or murder or anything else. I tend to think that we have such illusions ourselves only as part of the legacy of our supposed democracy.

Or to put it another way, I may spend many hours of my life devoted to the question of the best way to breed dogs in Mozambique, but if I do not live there, do not plan on traveling there, and in fact have no influence there at all, I think you would be perfectly justified in calling me crazy, or at least suggesting that those hours should have been spent better elsewhere (if you chose to be polite about it).

An integral part of the gospel message, as I see it, is the renunciation of power. Paul says as much in Phil ch 2. Jesus makes the point continually. Both Paul and Peter are shown in the NT as moving from violence to suffering as a result of their participation in the new covenant. I'm not myself perfectly comfortable with all the implicaions of this, but I've become convinced that the american church is largely decived on this issue.

Paul,

The view I articulated is perfectly consistent with what you just wrote, and I agree with the perspective a la the "theology of the cross. I'm not entirely sure you understand the context of my remarks.

On consistency: The Old Testament is always and only about Christ. While there may or may not be "political" implications from this or that, the Old Testament is about revealing Christ. So people, such as theonomist, who seek to draw relevant political lessons directly from the OT seem to me to begin with it completely backwards.

On context: Theonomists claim -- specifically, Greg Bahnsen (although I believe he articulates the consensus view) -- that OT penalties in particular are part of God's moral law. As such they (not I) claim that those penalties are binding on New Covenant magistrates. That is THE distinctive claim of theonomists, as I understand the perspective.

The argument I sketched above is that the OT penalties are also part of the ceremonial law of OT Israel. Both theonomists and orthodox Christians agree that OT ceremonial laws are fulfilled in Christ. Granting my argument, then, either theonomists give up their distinctive claim OR they advocate the continuing applicability of OT ceremonial law in the New Covenant.

The latter position is known as "Galatianism."

Now, to be sure, you don't need to be a theonomist engage in that error. E.g., advocating religious circumcision, or obedience to the OT calendar, or the need to continue to sacrifice animals, all are versions of Galatianism. It's just that theonomists engage in the error, like the others, because they advocate the bindingness of OT ceremonial laws.

I hope that clarifies things a bit. In any event, my position is entirely consistent with the "theology of the cross" approach you mentioned in your last paragraph.

A couple of things (well three to be more precise) occurred to me as I thought over this this evening. One, as you mentioned, is that I didn't actually argue agaist your point. Made me wonder what I was thinking. Two was that you seem to have made the argument, Jim, that it's ok to discuss capital punishment/criminal law as long as we don't drag the OT into it (I'm exaggerating your point and misrepresenting it, so just forgive me for a sec), and third that I've come to argue the way I am now, a way that would have struck me as incomprehensible/irresponsible if I had heard it about 10 years ago.

Life is odd.