Vandalism much more grave than the kind Fay was punished for has become rife in Western countries in recent years. The riots of the summer of 2020 saw widespread defacement and pulling down of statues and other monuments. The riot of January 6, 2021 saw the U.S. Capitol vandalized. Environmentalists frequently deface or glue themselves to works of art, or block traffic by sitting in major roadways and refusing to move. That the physical damage caused by such acts is often worse than the sort of thing Fay was punished for is bad enough. But these acts are worse in another way. Fay’s actions were mere obnoxious hijinks of the kind boys are sometimes prone to. The political vandalism of recent years is much more sinister, being an assault on the social order itself and on works of art that are the heritage of the human race.
If relatively milder vandalism of the kind Fay was caned for can merit corporal punishment – and I would argue that it can – then the political vandalism of recent years can hardly merit less. It might seem an extreme way to deal with the current problem. But the current problem is itself extreme, and calls for a proportionate remedy.
To see why this is a remedy worthy of consideration, let’s consider the natural law moral justification of the use of corporal punishment, and also what the tradition of the Church has to say about it. Before doing so, however, we need to put aside a potential red herring.
Not the same thing as torture
In the decade or so after 9/11, a rather nasty debate arose in Catholic circles about torture. Surprisingly, few seemed able or willing to define it, including those who were extremely confident in their pronouncements about its moral status. My own view is that the most plausible definition is along the lines endorsed at the time by Thomists like James Chastek, who as “the use of physical pain to break the will of another” (though I’d alter this to note that the pain could also be psychological in nature).
The will is also known as the rational appetite – that is to say, the power by which a rational being pursues what its intellect takes to be good or avoids what it takes to be bad. To break someone’s will is essentially to subvert its operation, either by clouding the intellect so thoroughly that the will has no target to aim at, or by preventing the will from locking on the target where it exists. Torturing someone involves inflicting physical or psychological pain severe enough to disrupt the will’s operation in one or both of these ways. It approximates reducing him to an animal by preventing his rationality from functioning.
One advantage of such a definition is that it both captures the paradigm cases of torture – actions that pretty much everyone would agree count as “torture” whatever they go on to say about its moral status – while not including actions that most would not regard as torture even though they involve inflicting physical or psychological pain.
In particular, no one would say that merely hitting another person amounts to torture, even if this is done for a bad reason and even if the blow is severe enough momentarily to distract the mind. For example, we don’t think of two boys engaged in a schoolyard fistfight as torturing each other. For the pain they inflict is not severe or sustained enough utterly to subvert the will’s operation, even if it obviously can distract the intellect from focusing on what is reasonable. Inflicting physical or psychological pain can in some cases even help to restore the will’s proper operation, as when one slaps or yells loudly at a hysterical person in order to make him “snap out of it.”
Another advantage of the definition, from the point of view of Catholic moral theology, is that it indicates why torture is inherently wrong, as the Church has taught in recent decades. For example, in Veritatis Splendor, Pope St. John Paul II characterizes “physical and mental torture and attempts to coerce the spirit” as “intrinsically evil” insofar as they “radically contradict the good of the person made in [God’s] image” (80). It is precisely insofar as we have reason and will that we are made in God’s image. Hence to subvert these faculties is to attempt to destroy what is distinctive about us and God-like in us, and thus inherently contrary to our good.
It does not follow, however, that all infliction of physical or psychological pain is contrary to the good of the person made in God’s image, or otherwise intrinsically wrong. In particular, it does not follow that an infliction of pain that does not break the will or subvert a person’s rational faculties is inherently wrong. And these things cannot be said to be inherently wrong, for such an extreme claim would contradict both natural law and divine revelation, as we’ll see presently. In any event, to defend corporal punishment is not to defend torture (which I most certainly am not doing and would not do).
Corporal punishment and natural law
The natural law justification of corporal punishment is pretty straightforward. Essentially it is just a further application of the same reasoning that justifies the harsher penalty of capital punishment. Adapting the basic argument for capital punishment that I’ve presented in several places, the reasoning goes like this:
1. Wrongdoers deserve punishment as a matter of retributive justice.
2. The more grave the wrongdoing, the more severe is the punishment deserved.
3. Some offenses are so grave that nothing less than corporal punishment would be proportionate in its severity.
4. Therefore, wrongdoers guilty of such offenses deserve corporal punishment.
5. Governing authorities have the right to inflict on wrongdoers the punishments they deserve.
6. Therefore, governing authorities have the right to inflict corporal punishment on those guilty of sufficiently grave offenses.
The conclusions 4 and 6 clearly follow from the premises of this argument. But obviously, a skeptic will demand justification for the premises. I’ve defended premises 1, 2, and 5 in (the book I co-wrote with Joseph Bessette), and in my recent article “The Justice of Capital Punishment” (in Matthew Altman, ed., ). In the same places, I’ve also defended the premise that some crimes are so grave that nothing less than the death penalty would be proportionate in its severity. And if that is true, then it follows a fortiori that premise 3 above is true. So, readers in doubt about any of the premises are directed to those other writings of mine.
Notice that the conclusion of the argument is not that governing authorities must inflict corporal punishment whenever it is deserved. That is not my position (just as it is not my position that the death penalty must always be inflicted where it is deserved). The claim is only that governing authorities have a right to inflict it. But that one has a right to do something does not by itself entail that one ought to exercise that right. And there can be good reasons, including moral reasons, for refraining from exercising a right.
Thomistic natural law theorists who defend the death penalty typically argue for using it only where necessary (even if the question of why and when it would be necessary is itself a matter of controversy). That is my own position. Similarly, I would not argue for actually exercising the right to inflict corporal punishment wherever it is deserved, but only where it is necessary.
When would that be? The most obvious sort of case would be the very mild corporal punishment we inflict on children when we spank them. Parents are in this case the relevant governing authorities (of the small-scale society that is the family). Sometimes spanking is necessary insofar as some children are so unruly that they don’t respond to milder punishments. In my view, while spanking should be used where needed, it is better to avoid it where it is not necessary. And usually, even when it is necessary it needn’t be done very often. Even unrulier children often “get the message” after one or two spankings.
But what about governments? When would it be necessary for them to resort to corporal punishment, as a way of dealing with criminals? I’ll come back to that.
Corporal punishment and Catholic tradition
Since natural law theory has traditionally been central to Catholic moral theology, one would expect that the legitimacy of corporal punishment has been recognized in the Church’s teaching. And that is indeed what we find, from the very beginning.
For starters, the legitimacy of corporal punishment is repeatedly taught in scripture, which the Catholic Church says is divinely inspired and thus cannot teach error (particularly on matters of faith and morals). Here are some relevant passages (all translations from the Revised Standard Version):
If there is a dispute between men, and they come into court, and the judges decide between them, acquitting the innocent and condemning the guilty, then if the guilty man deserves to be beaten, the judge shall cause him to lie down and be beaten in his presence with a number of stripes in proportion to his offense. Forty stripes may be given him, but not more; lest, if one should go on to beat him with more stripes than these, your brother be degraded in your sight. (Deuteronomy 25:1-3)
He who spares the rod hates his son, but he who loves him is diligent to discipline him. (Proverbs 13:24)
Do not withhold discipline from a child; if you beat him with a rod, he will not die. If you beat him with the rod you will save his life from Sheol. (Proverbs 23:13-14)
He who loves his son will whip him often, in order that he may rejoice at the way he turns out. (Sirach 30:1)
Of the following things do not be ashamed, and do not let partiality lead you to sin… of much discipline of children, and of whipping a wicked servant severely. (Sirach 42:1, 5)
In the temple he found those who were selling oxen and sheep and pigeons, and the money-changers at their business. And making a whip of cords, he drove them all, with the sheep and oxen, out of the temple; and he poured out the coins of the money-changers and overturned their tables. (John 2:14-15)
Notice that the corporal punishment countenanced in these passages is in some cases pretty severe (and certainly more severe than anything I think appropriate today). Notice also that it will not do to contrast the Old Testament passages with the purportedly gentler message of Jesus, since we are told that Christ himself inflicted a whipping on the money-changers!
Naturally, the legitimacy of corporal punishment is also upheld by the Church’s moral theologians. For example, here are some relevant passages from Aquinas:
It is licit to inflict harm on someone only in the manner of a punishment for the sake of justice. But no one punishes anyone justly unless that individual is subject to his authority. And so to strike or beat someone is not licit except for an individual who has some sort of power over the one who is being struck or beaten. And since children are subject to the power of their father and servants are subject to the power of their master, a father can licitly strike or beat his child – and a master can strike or beat his servant – for the sake of correction and discipline. (Summa Theologiae II-II.65.2, )
Vengeance is lawful and virtuous so far as it tends to the prevention of evil. Now some who are not influenced by motive of virtue are prevented from committing sin, through fear of losing those things which they love more than those they obtain by sinning, else fear would be no restraint to sin. Consequently vengeance for sin should be taken by depriving a man of what he loves most. Now the things which man loves most… [include] bodily safety… Wherefore, according to Augustine's reckoning (De Civ. Dei xxi), “Tully writes that the laws recognize eight kinds of punishment”… [including] “stripes”… (Summa Theologiae )
The virtuous – who of their own free will comply with what is honorable – should be aroused to good by means of pre-existing customs, by showing the goodness of what is proposed. But the insubordinate and the degenerate are allotted physical punishments like beatings and other chastisements, censure and loss of their possessions… It is this way because the virtuous man, who adjusts his life to the good, heeds the mere counsel by which good is proposed to him. But the evil man who seeks pleasure ought to be punished by pain or sorrow like a beast of burden – the ass is driven by lashes. (Commentary on Aristotle’s Nicomachean Ethics, Book X, Lecture 14, par. 2151-2152)
This teaching was reiterated in manuals of ethics and moral theology in the period prior to Vatican II. For example, Fr. Thomas Higgins’s book tells us:
Correction necessarily implies corporal punishment. For all authority must have the power of coercion, physical as well as moral. The young child in many ways is inclined to act like an animal rather than a rational being. When he persists in acting irrationally by continued disobedience, physical pain is the only effective corrective. Spare the rod and spoil the child is as true today as it was in Solomon’s time. (p. 409)
Similarly, in volume II of their For example, “the father, or those who hold his place (e.g., teachers) may administer corporal chastisements that are not of an irreparable kind to his children (such as beatings, whippings)” (p. 130). Addressing what would count as excess, they say:, Fr. John McHugh and Fr. Charles Callan write that “bodily harms (wounds, blows, restraint)” may be inflicted as punishment if three conditions are met: the one inflicting them must have the authority to do so (e.g. as parents or the state do); there must be sufficient reason for doing so (such as the public good); and there must be “moderation in the harm or pain inflicted” (pp. 129-30).
While children should not be spoiled, nor prisoners pampered, the other extreme of maltreatment or torture must be avoided. It is cruel to box children soundly on the ears, or to push them roughly about, or to tie them up in the dark, as they may suffer permanent injury from such methods. Likewise, it is barbarous to send convicts to a place or prison so horrible that they lose their minds or fall victims to lingering disease, or to inflict excruciating punishments by rack, thumb-screw, prolonged scourgings, etc. (p. 130)
Recent popes too have affirmed the legitimacy of corporal punishment. In a 1957 address to Italian jurists, Pope Pius XII stated:
The penal justice of the past, that of the present to a certain degree, and – if it is true that history often teaches us what to expect in the future – that of tomorrow as well, makes use of punishments involving physical pain. (Quoted in John McDonald, Capital Punishment (London: Catholic Truth Society, 1964), p. 15)
Pope Francis, , affirmed that mild corporal punishment in the form of spanking can sometimes be a legitimate way to discipline children.
This is by no means an exhaustive survey of the tradition, but it indicates how consistent the Church has been in affirming the legitimacy in principle of corporal punishment, and that this legitimacy is grounded in divine revelation no less than in natural law.
Let’s return, then, to the question of whether corporal punishment might be an appropriate response to the current wave of political vandalism. Obviously, existing punishments for such behavior are not a sufficient deterrent. Now, as Aquinas and Higgins note in a couple of the passages quoted above, one reason for resorting to corporal punishment is that the guilty party will not listen to reason, and that the infliction of physical pain is more likely to get his attention. It is hardly implausible to suppose that at least many of those who are willing to topple statues, deface artworks, or block traffic when they think the most they’ll face is some jail time might be deterred if instead they faced the prospect of a caning like the one inflicted on Michael Fay.
The Singaporean statesman Lee Kuan Yew noted that caning has an additional benefit, which is that it is humiliating. It isn’t just physical pain that the offender faces, but public shame. Now, this is an especially appropriate penalty to inflict on political vandals. They evince a haughty contempt for the social order, the symbols that represent its ideals, the decent feelings of their fellow citizens, and in some cases even the ability of those citizens safely to get on with their daily tasks. Such vandals deserve to have contempt shown for them in return. And the prospect of public shame as well as physical pain may be necessary to counter the moralistic delusions that prod them even to consider carrying out their public tantrums. If they act like spoiled children it is fitting to treat them as such.
There is a strong case to be made, then, that corporal punishment for political vandalism of the kind that we have seen in recent years would be deserved and may be necessary. Of course, it is nevertheless unlikely that Western society in its current state would reconsider corporal punishment any time soon. The trend today, at least among the intelligentsia and governing elites, is in the opposite direction, toward ever greater discomfort with the very idea of punishment, let alone corporal punishment. Things will likely become much worse before Western societies are willing to do what is needed to make them better. Refraining from inflicting harsh punishments when they are not necessary is a mark of civilization. But refraining from inflicting them when they are necessary is a mark of decadence.