Barth’s thoughts on the three theories of the institution; from CD III/4, pp. 440–46
From § 55. Freedom for Life; 2. The Protection of Life
Note: I did not include Barth’s small-type, I have emphasized text that I believe is particularly relevant, and I included sub-headings to facilitate reading.
Outlining the Three Theories of Capital Punishment
According to the first theory [of capital punishment], which is not only the oldest and most primitive but also the most obvious and impressive, the purpose of punishment is to protect society and the individuals pitied in it against the criminal and possible imitators of his action by effectively removing the former in some gentler or more drastic fashion, by thus preventing him from further wrong doing, and at the same time by setting a dreadful example before the latter in order to teach them that such acts are not worth while.
According to the second and more profound theory, punishment is meted out because the committed violation of the law objectively demands a retribution or expiration which must fall on the criminal himself, and this is in such a way that he himself is more or less severely restricted in the enjoyment of his rights according to the measure in which he has offended against the rights of others or of society. Punishment is, as it were, a representation and proclamation in human and earthly terms of the retributive justice of God.
According to the third theory, originated and first held in modern Europe and America, the criminal is punished in order to bring him to an acknowledgment of his error, and to incite him to future amendment, by drastically confronting him with the nature of what he has done in the form of what is now done to him. Punishment thus has a moral, pedagogic and even pastoral purpose.
Analysis of the Third Theory
We may begin by considering the third theory. In relation to the other two, it has the advantage that punishment with this intention, though it may well include the safeguarding of society and objective retribution, is primarily and decisively meaningful for the offender himself. On this view, it is he who deserves the greatest interest. Nor can there be any denying that he does merit particular interest, and certainly much more than he was formerly granted. After all, it is he who has done wrong. It is he who constitutes the threat to the security of all others. It is he who is the offender against justice. It is he who is the wound in the body politic. What is to become of him when the state metes out just to him? What can society desire in punishing him except to rescue him from the position of transgression and disorder as energetically as possible? In the death penalty, however, this urgent need is completely set aside. The death penalty obviously assumes the very different verdict that improvement, education and rehabilitation are out of the question for him, and therefore the proposition that the responsibility of others towards him is at an end. His punishment can no longer have any positive character for him. Among others who offend daily, this person has done something which his so evil as to make life with him intolerable. And since he fortunately has no power to remove us from the world, we remove him from the world. In default of any other possibility this must be the meaning and form of his punishment. […] All that it can do is to confront him with outward superiority, to decide to put him to death and therefore to live without him.
Is it right to decide thus? May it legitimately show such lack of solidarity with him? Ought it to declare itself inwardly powerless towards him only the more recklessly to assert its outward superiority? Can it really pronounce theprior verdict that he is too wicked and therefore beyond hope? What does this imply? What decision is presumed?
From this standpoint already the death penalty incontestably means that society arbitrarily renounces the obligation which it has towards the criminal too. And what if the most genuine step it can take towards its own security and objective retribution is not to give up home of reclaiming him? What if the seriousness of the punishment which he deserves, not to speak of its probable success, must be oriented by the need to see the obligation towards him, to try to live with him, and therefore, so far as possible, to uphold and even uplift him even in his punishment? What right has society to let one if its members fall, to declare itself incapable of having further contact with him, and thus to maintain that it is justified in breaking off this contact once and for all and irrevocably?
Analysis of the Second Theory
The second theory of punishment, much favoured by Christians who approve of the death penalty, is naturally quite right in the sense that all human punishment should be an earthly representation of the retributive justice of God both to the transgressor himself and to the rest of society. But the question remains whether the death penalty can really be a reflection of the divine retribution, of the expiration which God requires. Is not the capacity of the death penalty to represent and attest the divine justice threatened by the fact that between the certainty of the human verdict which underlies it and the infallibility of the divine judgement there must be taken into account the whole difference between the thoughts of the holy Creator and the opinions of the sinful creature? How can we expect a human capital sentence to reflect the majesty of the eternal decision of God merely because it possess the terrible character of the ultimate and irrevocable? Other sentences which are not ultimate can and may do this because with their refusal to speak the final word, though less severe, they plainly reveal the limitation of all human understanding and therefore the humility required of man in relation both to God and to the fellow-man who is to be punished. The death sentence is lacking in this humility, although it, too, is only a human verdict on the facts to be judged and the standards to be applied in this judgement, i.e., on the question whether this or that act is really worthy of death even though established indisputably.
Barth Invokes his Theory of Election as Expounded in CD II/2 to Discredit the Christian’s use of the Second Theory
More important however, because more central, is the further point that on the Christian view the retributive justice of God has already found full and final expression, the expiration demanded by him for all human transgression has already been made, the death sentence imposed on human criminals has already been executed. God gave His only Son for this very purpose. In His death He exercised judgement according to His wonderful righteousness, and He did so once and for all for the sins of all men. Is not the result of this just judgement mercy and forgiveness for all? Who, then, is not included? Which category of particularly great sinners is exempted from the pardon effected on the basis of the death penalty carried out at Calvary?
Now that Jesus Christ has been nailed to thecross for the sins of the world, how can we still use the thought of expiration to establish the death penalty?
It might be demure that the pagan or atheistic or at least agnostic world cannot relaise this. To count on it, it must first hear and believe the Gospel, and it obviously shows little desire or capacity to do so. This may well be. But the fact remains that there seems to have been a reversal of roles in the matter. In spite of its unbelief, the unbelieving world seems generally to ascent the fact that the death penalty can no longer be based on the thought of expiation, whereas the Church, from which one might really expect faith and therefore understanding of the decision made at Golgatha, still speaks as if that stripping of evil of all its rights, and therefore the killing of certain wicked men, were commanded and necessary in confession of God’s retributive justice. On which side is faith really to be found and on which unbelief, on which side the obedience corresponding to faith and on which the disobedience corresponding to unbelief, in confrontation with the message of the truth divine judgement revealed in the Word of God?
If what we are to attest in the sphere of human punishment is not a self-conceived, imaginary, and lifeless justice, but the righteousness of the true God who has acted and revealed Himself in Jesus Christ, capital punishment will surely be the very last thing to enter our heads.
If this righteousness is what we are really to attest, the punishment of the criminal must take a form in which the forgiveness won for him in Jesus Christ is revealed to him and to the less wicked by being concretely offered to the more wicked. His punishment should not shorten the allotted time which still remains to him but afford him the opportunity of filling it better than he has done in the past. It must restrain tim from further lapses, but also stimulate him positively to take his place in orderly human society. He must not go unpunished, but be punished in such a way that his life is affirmed and not denied as in capital punishment. Only thus can his punishment be a human reflection of the righteous action of God in his conflict with chaos.
Analysis of the First Theory
Finally, the first theory, which his the simplest and most obvious, establishes the right of punishment on the necessity of defend the state and therefore all its members against arbitrary crime and disorder. Punishment is a safeguard and deterrent. And it may well appear, and has often been felt, that in face of certain kinds of crime only the surest safeguard and supreme deterrent is adequate, namely, capital punishment. It has even been said that in fact of crime generally there would be no serious safeguard and deterrent if the penal system did not have this ultimate climate?
Why should we not accept this position? Surely self-defense on the part of established society. And surely a first prerequisite is to render the criminal harmless.
A point to be considered at the very outset in this defense and explanation of punishment is that the criminal to be punishment is an internal rather than an external enemy of society. He has become a criminal even as and although he belongs to it. He is a member of it.
He is its child.
In large part, indeed, he is its product, a result of the conditions obtaining in it. He has enjoyed the benefits of its order, but he has also suffered form its imperfections and contradictions, from the manifest or concealed injustice prevalent within it. We may well ask, therefore, whether society is justified in wanting to be ride of him in the most effective manner. Ought it not to have the magnanimity, and above all the humility, not to renounce its solidarity with him, but even in its punishment to act from within this solidarity?
It has to realise that when it defines itself against him it is really defending itself against itself namely, against its own system of justice to the extent that this is very largely a system of injustice.
It has to realise that in wanting to render the criminal harmless it constantly summoned to render itself more harmless than it obviously is.
From the standpoint of the self-defense of society more cannot be said at root than that capital punishment is an infallibly effective means of preventing the criminal from continuing or repeating his outrages and thus of rendering him completely harmless. But surely society is very frightened of this individual if it thinks it must take the infallible precaution of putting him to death. Could it not achieve its ends by a less radical means? May it not be that this infallibly effective measure has the terrible disadvantage of committing it in a way which actually spells far greater danger to its justice, property and stability than even the continued existence of this individual, questionable though this may be in some sense. But in punishing by death it does something unlimited, irrevocable and irreparable. Again, it belongs to its nature as an orderly society that is actions sit be designed to secure and maintain the life of its people.
But to punish by death is to destroy life.
Again, it belongs to its nature as an orderly society that it should affirm and protect the right of all its members along with its own right. But when it punishes by death, it does not merely limit the right of a culpable member, which is the essence of all punishment, but it takes away this right altogether. […] Punishing by death, it attacks the very thing which it prefers to defend. It renounces its very being as an orderly society. […] But all this means that it throws far more serious doubt upon its own position than it could ever do by allowing the criminal to live and rendering him innocuous in some other way.
In so doing, however, it also compromises its other goal from the standpoint of its own security, namely, the deterring of others from imitating the criminal. Punishment ought certainly to have this deterrent effect. But in capital punishment the state leaves the human level and acts with usurped divinity. It destroys life instead of mainlining it. It deprives of right instead of upholding it. And therefore capital punishment cannot have this effect.
If the command to protect life is accepted and asserted in some sense in a national community, then it is impossible to maintain capital punishment as an element in its normal and continuing order. It is an astonishing and disturbing fact that for nineteen hundred years there has been a Christian Church, and for four hundred a Protestant, which has not only failed to champion this insight but has continually opposed it. And it is one of the disconcerting blessings of the divine overruling of history that nevertheless it has been very widely accepted, being adopted far more readily and energetically by the children of the world than by the children of the light. But the dreadful abuse of capital punishment which has become rampant again during the last decades in the very heart of Europe, and in a form far exceeding the atrocities of the 16th and 17th centuries, is a clear indication that even the children of the world have not renounced this weapon quite so completely as might have appeared at the height of the 19th century. It is not too late, therefore, for the Christian Church, to espouse this renunciation on a worldwide scale. It had every reason to do so from the very first on the basis of its central message, and if it is really true that Liberal opposition to the death sentence was too superficial to be finally adequate and effective, there is no reason why the Church should continue to hide its light under a bushel in this respect. For from the point of view of the Gospel there is nothing to be said for its institution, and everything against it.
Source: T&T Clark Ltd, 1961.