CORNELL LAW SCHOOL

LEGAL STUDIES RESEARCH PAPER SERIES

Aquinas, Punishment, and the

Common Good
Stephen P. Garvey

Cornell Law School

Myron Taylor Hall
Ithaca, NY 14853-4901

Cornell Law School research paper No. 21-38

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 Please do not cite or circulate.

Aquinas, Punishment, and the Common

Good
Stephen P. Garvey *

INTRODUCTION
If you’re inclined to look to history for insight into what good
reasons (if any) a state has to punish someone subject to its author-
ity, to whom do you look? Kant and Bentham? Usually. Hobbes and
Hegel? Sometimes. Foucault? For some. Thomas Aquinas? Not so
much.
A handful of Aquinas scholars have helpfully pulled together
Aquinas’s ideas on punishment, but as far as I can tell, criminal law
theorists haven’t paid much attention. 1 This neglect is regrettable.
Not only are Aquinas’s thoughts interesting in their own right, but
they anticipate (by several centuries) contemporary (post-1959) ar-
guments in favor of believing that punishment is, or is somehow
necessary to achieve, an intrinsic good. 2 I believe they also provide

* A. Robert Noll Professor of Law, Cornell Law School. I’d like to thank Rus-

sell Hittinger for taking the time, and having the patience, to tutor me, as much as
anyone reasonably could, on Aquinas. I presented this paper at a gathering entitled
“Catholic Perspectives on Criminal Justice Reform: A Scholarly Colloquium,”
sponsored by The Lumen Christi Institute. I’m grateful to all the participants for
their comments. All citations to the Summa Theologica are to the Fathers of the
English Dominican Province edition.
1 One notable exception is John Finnis, Retribution: Punishment’s Formative

Aim, 44 AM. J. JURIS. 91 (1999) (drawing on Aquinas to formulate a version of the

“fairness theory” of punishment).
2 The arguments I have in mind are presented in Herbert Morris, “Persons

and Punishment,” see infra pp. 16‒18, and in Michael Moore, “The Moral Worth
of Retribution.” See infra pp. 21‒24. Moore describes how he believes his argument
relates to Morris’s argument in Michael Moore, “Responses and Appreciations,” in

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a way to re-interpret those arguments, or see them in a different

light, perhaps in a way that will make them more persuasive to
skeptics, though I doubt any minds will be changed.
What did Aquinas have to say about what today would be called
“state punishment”? Having canvassed some of the pertinent liter-
ature, I break that broad question into three smaller ones:
 What, for Aquinas, is the “purpose” of the criminal law?
 Does “retribution” figure into Aquinas’s thoughts on pun-
ishment, and if it does, how does it figure in?
 Do “consequences” figure into Aquinas’s thoughts on pun-
ishment, and if they do, how do they figure in?
The answers I offer draw heavily on secondary sources, 3 with
supporting quotations now and again from Aquinas’s original writ-

Legal, Moral, and Metaphysical Truths 350–51 (Kimberly Kessler Ferzan & Ste-
phen J. Morse eds., 2016). Moore characterizes Morris’s argument as a “deductive,
generalist mode,” and his own effort as a “particularist” mode, of “justifying retrib-
utivism.”
3 Relying exclusively on Aquinas’s own writings is difficult for an amateur, in
no small part because Aquinas’s’ “teaching about punishment . . . is spread
throughout his works.” Stephanie Gregoire, Punishment: Aquinas and the Classic
Debate, 86 ANGELICUM 375, 375 (2009). For the secondary sources on which I most
rely, see JOHN FINNIS, AQUINAS: MORAL, POLITICAL, AND LEGAL THEORY (1998); PETER
KARL KORITANSKY, THOMAS AQUINAS AND THE PHILOSOPHY OF PUNISHMENT (2012);
Gregoire, supra; Peter Karl Koritansky, Christianity, Punishment, and Natural
Law: Thomas Aquinas’ Premodern Retributivism, in THE PHILOSOPHY OF PUNISH-
MENT AND THE HISTORY OF POLITICAL THOUGHT 74 (Peter Karl Koritansky ed., 2011);
Peter Karl Koritansky, Retributive Justice and Natural Law, 83 THE THOMIST 407
(2019) [hereinafter Koritansky, Retributive Justice]; Peter Koritansky, Two Theo-
ries of Retributive Punishment: Immanuel Kant and Thomas Aquinas, 22 HIST.
PHIL. Q. 319 (2005).
I say nothing here about Aquinas’s thoughts on two topics: capital punish-
ment and mercy. The literature on Aquinas on capital punishment, in contrast to
non-capital punishments, is dauntingly large. Having said that, for more on Aqui-
nas on capital punishment, see, for example, Elinor Gardner, O.P., Saint Thomas
Aquinas on the Death Penalty (May 2009) (unpublished Ph.D. dissertation, Boston

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ings. Although I can personally attest to having, on my own, reas-

sembled every piece I discovered, I make no claim to originality in
any more serious sense (as in offering a novel interpretation of
Aquinas). That would be well beyond my competence as a student
and teacher of criminal law, and in any event, not my aim. My only
aim is to introduce Aquinas’s thoughts on punishment as best I can
to today’s criminal-law theorists, with hope that some among them
might find his thoughts, as I have, worth further study and reflec-
tion.

I. CIVIL PEACE
What, for Aquinas, is the purpose of what today we call the
criminal law, 4 where a law is criminal just in case those who culpa-
bly do what it prohibits, or fail to do what it prescribes, thereby be-
come liable to state punishment? What, for Aquinas, is the criminal
law for? What good does it endeavor to realize or sustain? Answers
to those questions are important, since the criminal law’s purpose
will presumably shape (or even determine) its content. What the
criminal law should proscribe or prescribe will depend on what it’s
trying to accomplish in the first place.
For Aquinas, as we’ll see, the criminal law, as law, must be for
the common good, as is all law, as law. Now, talk of the criminal law
being for the “common good”—whatever the “common good”

College). Gardner’s dissertation helpfully discusses, in its opening chapters, Aqui-

nas on punishment generally, before advancing to a discussion of his thoughts on
capital punishment specifically. For more on Aquinas’s thoughts on mercy, the
reader can look, for starters, at Shawn Floyd, Aquinas and the Obligations of
Mercy, 37 J. RELIGIOUS ETHICS 449 (2009).
4 “The distinction between laws we call civil and laws we call criminal is not

more clearly marked by Aquinas than by Aristotle or by Jewish or Roman law. But
Aquinas does identify the basis for the distinction: the difference between one’s
duty to compensate and one’s liability to [state] punishment.” FINNIS, supra note
3, at 210.

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amounts to—isn’t talk one usually hears among criminal law theo-
rists today, or so at least it seems to me. Rather than the common
good, when academic theorists today speak, if at all, about the crim-
inal law’s purpose, they tend to emphasize liberty or justice. Reduc-
ing the contemporary literature, when its authors speak about the
criminal law’s purpose, to liberty and justice is, yes, to reduce too
much. But the over-simplification helps set up a plausible contrast
between Aquinas’s point of departure and the point from which
contemporary writers tend to depart.
Thinkers emphasizing liberty tend to see criminal law as a nec-
essary evil. The criminal law, whatever else it does, limits liberty,
understood simply as the freedom to do as one pleases with impu-
nity. Criminal law places some acts off-limits, on pain of punish-
ment. For liberty’s partisans, these limits are, all else being equal,
cause for regret. Thus, for them, the only good reason to limit liberty
is for the sake of liberty. As such, the criminal law has legitimate
reason to limit your liberty to do as you please only when what you
please is inconsistent with my liberty to do as I please, free from
“harm” from you. This thesis—that the criminal law’s scope should
be limited to harm-causing or -risking acts—is conventionally chris-
tened the “harm principle.” By conforming to the harm principle,
the criminal law conforms to its purpose: to protect liberty (within
reason). 5
Thinkers emphasizing justice tend to see criminal law as that
without which justice would be left undone, and justice ought not
to be left undone. The justice to be done is, specifically, retributive
justice, and retributive justice is done when all moral wrongdoing
is punished, all else being equal. Now, when the state is acting as

5 J.S. Mill, On Liberty 13 (C.V. Shields ed., 1956) (1859), gives the principle

its vintage articulation and defense. Joel Feinberg’s four-volume collection, Moral
Limits of the Criminal Law, gives the principle its most thoroughgoing contempo-
rary articulation and defense. Of course, the harm principle isn’t a very helpful
guide to choice and action unless more is said, among other things, and with some
particularity, about what counts as “harm.” See, e.g., STEVEN D. SMITH, THE DISEN-
CHANTMENT OF SECULAR REASON 70–106 (2010).

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punishment’s agent, all else may not be equal, in which case the
state ought not punish all moral wrongdoing, but only some. 6 This
thesis—that the criminal law’s scope should, all else being equal, en-
compass all moral wrongdoing—is conventionally christened “legal
moralism.” By conforming to legal moralism, the criminal law con-
forms to its purpose: to secure (retributive) justice (within reason).
The harm principle, designed to secure some optimal measure
of negative liberty in the life of a political community, and legal
moralism, designed to secure (retributive) justice in that life, con-
tinue to set the terms or framework for much contemporary debate
about the criminal law’s purpose, or at least that’s how I read the
existing state of debate. Aquinas, I think, offers another, and argu-
ably different and distinctive, way of thinking about the criminal
law’s role in the life of a political community (civitas). A natural
place to begin is with Aquinas’s thesis that human law—all human
law—is “an ordinatio [ordinance or ordering] of reason for the com-
mon good, made by him who has care of the community, and prom-
ulgated.” 7

6 According to one contemporary legal moralist, all else is emphatically not

equal, and packed into the ceteris paribus clause are limits arising in two ways:
first, from an “internal” limit consisting in an account of morality (and thus moral
wrongdoing) from which, for example, “sexual practices” (whatever that includes)
is excluded; and second, from an “external” limit consisting in an elaborate account
of the “goodness of liberty.” See MICHAEL S. MOORE, PLACING BLAME 662 (1997);
Michael S. Moore, Liberty’s Constraints on What Should be Made Criminal, in
CRIMINALIZATION: THE POLITICAL MORALITY OF THE CRIMINAL LAW 182, 186 (Duff et
al. eds., 2014). Moore’s theory, according to Doug Husak, presupposes what Husak
characterizes as a “progressive theory of morality.” DOUGLAS HUSAK, OVERCRIMI-
NALIZATION 197 (2008).
7 ST I-II q. 90, a. 4. Although the usual translation of the Latin speaks of law

as an “ordinance” of reason, it has also been translated as “ordering.” See, e.g.,

Michael Baur, Law and Natural Law, in THE OXFORD HANDBOOK OF AQUINAS 238,
238 (Brian Davies & Eleonore Stump eds., 2012). “Ordering” may be better, since
the word “ordinance” can bring to mind, at least a criminal lawyer’s mind, a crim-
inal prohibition enacted by a municipality, which isn’t what Aquinas meant.

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Setting aside the idea of human law as an “ordinatio of reason,”

I want instead to highlight the idea that human law is “for the com-
mon good.” Because all law, for Aquinas, is “for the common good,”
what we today call the “criminal law” must, as law, also be “for the
common good.” But what “common good,” specifically, is the crim-
inal law for? Aquinas’s answer, I would say, is this: the criminal law
is for the “common good” of “peace” (pax), or what might also be
called “civil peace” or “civil order.” 8 “[I]t is necessary,” Aquinas
says, “for punishment to be inflicted on evil-doers, for the mainte-
nance of peace among men,” 9 a thesis he repeats, for example:
For human law’s purpose is the temporal tranquility of the
state, a purpose which the law attains by coercively pro-
hibiting external acts to the extent that those are evils
which can disturb the state’s peaceful condition. 10

8 According to Finnis, “pax” is the “peaceful condition needed to get the ben-

efits {utilitas} of social life and avoid the burdens of contestation.” FINNIS, supra
note 3, at 227. In this connection, one might bear in mind that, at common law,
“[a]ll offenses [were] either against the King’s peace, or his crown and dignity.” 1
WILLIAM BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *268 (emphasis
added).
9 Summa contra Gentiles (ScG) III-II, 146 (emphasis added).
10 ST I-II, q. 98, a. 1c (emphasis added). When Aquinas refers to “external
acts,” he apparently doesn’t mean to exclude inquiries into an evil-doer’s “inten-
tions.” Instead, what he means to exclude, as Finnis puts it, are the “furthest and
deepest interests and dispositions underlying the actions chosen,” which are
known only God. See FINNIS, supra note 3 at 241. Yet, even if, for Aquinas, judges
are competent to inquiry into a wrongdoer’s “intentions,” one commentator notes:
Aquinas is aware of the fact that human beings can never be sure about
the justice of retributive punishment, since they can never be sure about
the degree of culpability, intentions being internal. God alone is able to
know exactly how much the guilty party ‘exceeded the due quantity
when preferring his own will and thus going against one of the orders
(natural, divine or human).
Gregoire, supra note 3, at 391‒92.

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[T]he governor of a state, in his operations, aims at peace,

which is the ordered harmony of the citizens. 11
“The maintenance of peace among men,” and “coercively pro-
hibiting external acts,” for the purpose of “temporal tranquility,”
implies limits on the criminal law, inasmuch as the criminal law,
which “coercively prohibits external acts,” should prohibit such acts
“to the extent that those are evils which can disturb the state’s
peaceful condition,” and presumably only to that extent. So far as I
know, Aquinas doesn’t spell out in any detail which “external acts”
the criminal law needs to prohibit for the sake of “temporal tran-
quility,” but he does say:
Now human law is framed for the multitude of human be-
ings, the majority of whom are not perfect in virtue. There-
fore human laws do not forbid all vice, from which the vir-
tuous abstain, but only the more grievous vices, from
which it is possible for the majority to abstain; and chiefly
those that are injurious to others, without the prohibition
of which human society could not be maintained. Thus the
law prohibits murder, theft and the like. 12
What crimes come within “the like”? Aquinas doesn’t elabo-
rate, but his references to the “more grievous vices,” “injurious to
others,” and to “murder” and “theft,” suggests a criminal law limited
to what criminal lawyers sometimes refer to as the “common law”
crimes, which are generally crimes against persons and property.
That makes sense. If the criminal law’s purpose is to preserve peace
and temporal tranquility, allowing people to murder, thieve, and
“the like” with impunity would hardly conduce to that end. 13

11 ST I-II, q. 98, a. 1c (emphasis added).

12 ST I-II, q. 96 a. 2.
13 See MARY M. KEYS, AQUINAS, ARISTOTLE AND THE PROMISE OF THE COMMON

GOOD 206 (2006) (“Civil law [for Aquinas] thus contributes far more directly and
efficaciously to the achievement of political peace than the inculcation of moral
virtue.”). For a recent and helpful discussion offered to “establish that ‘civil peace’

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If Aquinas believes the criminal law should, in light of its pur-

pose, be limited to acts like murdering and thieving, one might
fairly wonder how far, if at all, his account of the criminal law’s le-
gitimate scope differs from, say, that of the harm principle, com-
monly offered as the principle to which states wishing to call them-
selves “liberal” should conform. When it comes to the criminal law’s
scope, is Aquinas a pre-modern liberal? 14
Probably not. Although “human laws do not forbid all vices,”
one has to believe human laws do (or should), for Aquinas, prohibit
some vices amounting to what would nowadays be counted “harm-
less immoralities.” 15 Insofar as Aquinas would advise those who
promulgate human law to prohibit such immoralities as crimes, the
criminal law would enter “illiberal” territory, just because it prohib-
its them. 16 Exactly how far Aquinas would allow the criminal law to
trespass in that “illiberal” direction, and just why the common good
called civil peace or civil order would give it license to go there, are
questions I set aside.

is by no means irrelevant to debates about the criminalization or otherwise of spe-

cific acts,” see Anthony Bottoms, Civil Peace and Criminalization, in CRIMINALIZA-
TION: THE POLITICAL MORALITY OF THE CRIMINAL LAW 232, 269 (Duff et al. eds.,
2014).
14 See, e.g., FINNIS, supra note 3, at 228 (“[Aquinas’s] position is not readily

distinguishable from the ‘grand simple principle’ (itself open to interpretations and
diverse applications) of John Stuart Mill’s On Liberty.”).
15 See generally 4 JOEL FEINBERG, HARMLESS WRONGDOING: THE MORAL LIMITS
OF THE CRIMINAL LAW 1988).
16 See generally CHARLES P. NEMETH, AQUINAS ON CRIME (2008).

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Still, for reasons of prudence and principle, 17 Aquinas tells us

that only the most “grievous vices” should, in the main, 18 be crimes.
Of course, that doesn’t mean the state should be indifferent to acts
manifesting non-grievous vices. Among other things, 19 the state
should presumably promulgate laws designed to enlist and support
communities less comprehensive than the state—families, groups of
families, civil and religious associations—to cultivate the virtues
and inhibit the vices. For Aquinas, virtue, one might say, begins at
home, or at least close to home, developed through “parental train-
ing,” not state tutelage; likewise, vice is better corrected through pa-
rental “admonitions,” 20 not through state punishment. If these less
comprehensive communities are working as Aquinas believes they
should, then the state will need to step in to maintain peace,
through the criminal law, only when the pedagogical efforts these
subsidiary communities should have undertaken haven’t suc-
ceeded.

17 See, e.g., FINNIS, supra note 3, at 239 (The state’s use of “law’s coercive

pedagogy . . . to require of all citizens the acts and forbearances which will advance
their fulfillment and complete virtue” would be “wrong in principle, an abuse of
public power, ultra vires because directed to an end which state government and
law do not truly have”); ROBERT P. GEORGE, MAKING MEN MORAL: CIVIL LIBERTIES
AND PUBLIC MORALITY 32 (1993) (Aquinas “judges it morally right to refrain from
legally prohibiting vice where, given the conditions of the people, the prohibition
is likely to be futile or, worse yet, productive of more serious vices or wrongs.”)
(citing ST I-II, q. 96, a. 2); id. at 44 (“[G]overnments have conclusive reasons not
to attempt to enforce certain obligations which are essential to valuable social prac-
tices whose meaningfulness depends on the parties fulfilling their oblgations
freely.”)
18 See, e.g., Robert P. George, Moralistic Liberalism and Legal Moralism, 88

MICH. L. REV. 1415, 1421 (1990) (“Aquinas . . . held in his famous discussion about
whether human law should repress all vices, . . . that the law should be concerned
mainly with those vices that cause harm to others.”) (emphasis in original).
19 For some of the other things the state can do, through law, to “promote

‘acquired’ moral virtue,” beyond establishing and running institutions serving as

“reform schools,” see KEYS, supra note 13, at 208‒16.
20 ST I-II , q. 95, a. 1.

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Civil peace, I take it, is an instrumental good: a good the exist-

ence of which helps or enables people pursue, participate in, or en-
joy other goods, of an intrinsic nature. Having said that, once the
prohibitions in which the criminal law consists have been promul-
gated—once civil authority wills them into existence—something
else, something quite important for Aquinas, comes into being as
well.
For once the state promulgates the rules necessary for peace to
obtain, and once those subject to those rules conform their wills ac-
cordingly, those rules and the conformity of those subject to them
bring into existence another common good, and this time a good
with intrinsic value. Aquinas describes this intrinsic good as an “or-
der” or “unity”: an order or unity of wills conforming to rules nec-
essary to secure the common (but instrumental) good of peace. This
order or unity Aquinas calls the “order of justice.” 21

21 The “order” of justice, which can also be described as the “equality” of jus-

tice, ST I-II, q. 87, a. 6, is one of three orders to which, for Aquinas, human choices
are subject. The other two are the order of reason (self ordered to reason) and the
order of divine justice (self ordered to God).
The proposition that the “order of justice” is an intrinsic good may seem to
implicate or touch upon a controversy in the scholarship interpreting Aquinas. The
controversy, as I understand it, turns on the answer to this question: Did Aquinas
believe that something called the “political common good” was itself an intrinsic
good? The controversy arose when, in an early essay, John Finnis interpreted Aqui-
nas (or was at least read to have interpreted Aquinas) to have said that the “political
common good” was only an instrumental good, not an intrinsic one. Others disa-
greed. Compare John Finnis, Is Natural Law Compatible with Limited Govern-
ment?, in NATURAL LAW, LIBERALISM, AND MORALITY 1 (Robert P. George ed., 1996),
with, e.g., MATTHEW D. WRIGHT, A VINDICATION OF POLITICS: ON THE COMMON GOOD
AND HUMAN FLOURISHING 19–40 (2019); Lawrence Dewan, St. Thomas, John Finnis
and the Political Good, 64 THE THOMIST 337, 339–40 (2000); Michael Pakaluk, Is
the Common Good of Political Society Limited and Instrumental?, 55 REV. META-
PHYSICS 57 (2001).

Finnis has since elaborated and refined what he said in that early essay, but
for present purposes, I believe this controversy can safely be set aside, since even
Finnis tells us that, for Aquinas, the “order of justice,” and specifically, the resto-
ration of the order of justice, is an intrinsic (or, as I believe Finnis would say,

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II. RETRIBUTIO
One way to understand how the “order of justice” fits into Tho-
mistic penology is to start elsewhere, with the concepts of poena
and culpa.
Peona (usually translated as “punishment”), for Aquinas, is
something one person does to another, with the intent to do some-
thing else to that person. What the first person does is to deny to, or
withhold from, the second some good (or authorize the denial, or
withholding, of some good), which means poena is necessarily con-
tra voluntatem (usually translated “against the will”). What the first
person intends, when he denies or withholds this contrary-to-the-
will good, is to “humble” or “repress” the second person’s will. In
sum: poena, for present purposes, is an act, pursuant to civil au-
thority, withdrawing some good from a person, 22 contrary to the
person’s will, with the intent to humble or repress the will. 23

“basic”) good (as an “aspect of societas or philia”), even if “political community” in

some other sense is only an instrumental good. See FINNIS, supra note 3, at 245,
247; John Finnis, Reflections and Responses, in REASON, MORALITY, AND LAW: THE
PHILOSOPHY OF JOHN FINNIS 514 (John Keown & Robert P. George eds., 2013) [here-
inafter Finnis, Reflections].
22 “Relevant goods which punishment takes away (corresponding to bads

which it imposes) are: life, bodily security, liberty, wealth, homeland and honors
{gloria}.” FINNIS, supra note 3, at 213 (citing ST II-II q. 108 a. 3d).
23 This idea, or something very similar to it, can also be found in more recent

literature. See, e.g., Herbert Fingarette, Punishment and Suffering, 50 PROC. AM.
PHIL. ASSOC. 499, 510 (1977) (The “humbling of the will is . . . of the essence of
punishment.”). Gardner, supra note 3, at 10 (emphasis in original), observes that
“[p]unishment may be contrary to the will in three senses.”
Punishment is contrary to the actual will of the wrongdoer when he
knowingly and unwillingly undergoes punishment (this is what most
commonly goes by the name punishment). It is contrary to his habitual
will, when he is unaware of the punishment he suffers. . . . It is contrary
to the natural inclination of the will, when what is lost is not perceived

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Culpa, for Aquinas, is a voluntary actus inordinatus (disor-

dered act), and inasmuch as “voluntary” here means “intentional,”
culpa is an intentional disordered act. 24 The intentional disordered
acts falling within the scope of what would today be called the crim-
inal law are, as we’ve seen, those the performance of which would
risk turning civil order into civil disorder.
Now, inasmuch as punishment is an act withdrawing or remov-
ing a good, performed with the intent to humble or repress the will,
the culpa needed to render someone liable to state punishment is
presumably a culpa arising when a person’s will is in need of, or
worthy of, or merits, being humbled or repressed. What would such
a will be, or how should it be described? For Aquinas, such a will is
one that has willed “excessively.” A will has willed “excessively”
when it has chosen an objectively lesser good in preference to an
objectively greater good, and the person whose will it is knows he’s
chosen the lesser in preference the greater. 25 A will wills “exces-
sively,” in other words, when it “loves more the lesser good.” 26 Such
a will is “out of order,” 27 or “disordered.”

as a loss by the person, even though it deprives him of a good absolutely

speaking (as when punishment is willingly undergone).
24 See Gregoire, supra note 3, at 378 n.13 (citing ST I.II. q. 21 a. 2).
25 See, e.g., REBECCA KONYNDYK DEYOUNG ET AL., AQUINAS’S ETHICS: METAPHYS-

ICAL FOUNDATIONS, MORAL THEORY, AND THEOLOGICAL CONTEXT 104 (2009) (“[S]ins
[of the will] arise when there is disorder in the will—that is, when the will loves a
lesser good at the expense of a greater good and chooses to suffer the loss of the
greater good in order not to be deprived of the lesser.”); COLLEEN MCCLUSKEY,
THOMAS AQUINAS ON MORAL WRONGDOING (2017) (“Deliberate wrongdoing arises
when the agent chooses a lesser good over a greater good and would rather be de-
prived of the greater good than lose the lesser good.”); STEVEN J. JENSEN, SIN: A
THOMISTIC PSYCHOLOGY 159 (2018) (“[T]he will of the person who sins from an evil
will fundamentally desires some disordered good.”).
26 ST I-II q. 78 a. 1.
27 Id.

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Aquinas describes this form of culpa—a sin of the will—as ex

certa malita, 28 which some Aquinas scholars have translated as
“deliberate wrongdoing.” 29 The idea of “willing excessively” associ-
ated with such wrongdoing might prompt a criminal lawyer today
to think of the mental-state word “willful,” a word still found, often
enough, in criminal statutes. Courts today assign no uniform mean-
ing to that word, 30 but whatever today’s courts say it means, it could
mean, taking a cue from Aquinas, just what it says: being “full of
will,” or at least manifesting the “excess will” involved in choosing,
or the “excess will” it takes to choose, an objectively lesser good over
an objectively greater one. In short: culpa, for present purposes, is
“yielding to [one’s] will more than [one] ought,” 31 “following [one’s]
own will excessively,” 32 an “over-indulgence of the sinner’s will in
undue goods,” 33 and so on.
The connection between poena and culpa should now be visi-
ble: poena, as a humbling of the will, removes culpa, as an excess of
the will. Seeing this connection between poena and culpa brings us
back to the “order of justice.” But first, a bit more should be said
about what Aquinas means when he speaks about “justice.”
Aquinas, following Aristotle, is usually said to distinguish be-
tween two kinds, forms, or modes of “justice,” which he calls general
(or public or legal) justice and particular justice. 34 General justice

28 DEYOUNG ET AL., supra note 25, at 104.

29 Id.
30 See, e.g., Sharon L. Davies, The Jurisprudence of Willfulness: An Evolving

Theory of Excusable Ignorance, 48 DUKE L.J. 341 (1998).

31 ST I-II, q. 87, a. 6c.
32 FINNIS, supra note 3, at 213 (citing COMPENDIUM THEOLOGIAE AD FRATREM

REGINALDUM 1 c 121 [237]).

33 GEORGE QUENTIN FRIEL, PUNISHMENT IN THE PHILOSOPHY OF SAINT THOMAS

AQUINAS AND AMONG SOME PRIMITIVE PEOPLES 41 (1939) (citing ScG III-II, 146).
34 Notice that the phrase “retributive justice,” as such, is absent from this way

of conceptualizing the different kinds, forms, or modes of “justice.” See generally

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deals with the relationship between a whole and its parts, specifi-
cally between the civitas and each person within it. Particular jus-
tice is divided into distributive justice and commutative justice. Dis-
tributive justice, like general justice, involves the relationship be-
tween the civitas and each person within it; more specifically, how
the whole ought to distribute common goods to the parts. Commu-
tative justice, unlike general justice, involves the relationship be-
tween two parts; more specifically, transactions of various kinds be-
tween two people. Within this scheme, the “order of justice” is the
order of general justice. 35
As previously mentioned, this order is an order or unity arising
when the state promulgates rules of law prohibiting acts incon-
sistent with civil peace, and when those subject to the state’s juris-
diction conform their wills to those rules, thereby creating a har-
mony of wills acting in concert to achieve the peace those rules were
designed to achieve. In this sense, the order of justice arises from
civil order: an intrinsic good arises from an instrumental one. When
someone culpably (with culpa) chooses to act contrary to a peace-
preserving rule, his choice constitutes an instance of “excessive”
willing. His choice thereby upsets, imbalances, corrupts, or intro-
duces disequilibrium into the pre-existing order of which he’s a
part: his choice renders the order disordered. His choice introduces,
ex nihilo, excessive will into the order, and the worse the crime, the

IZHAK ENGLARD, CORRECTIVE AND DISTRIBUTIVE JUSTICE: FROM ARISTOTLE TO MODERN

TIMES (2009) (tracing the history of corrective and distributive justice).
35 Having said that, commentators disagree on where to locate or situate pun-

ishment (as an act of state officials) within the three domains or modes of justice
Aquinas discusses, and they disagree because Aquinas can be read, in some places,
to allocate state punishment to one domain, and in other places, to allocate it to a
different one. Finnis addresses this controversy at FINNIS, supra note 3, at 215 n.a,
and Gregoire addresses it at Gregoire, supra note 3, at 392. I don’t believe resolving
this interpretive problem is especially important for present purposes.

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more will it takes to commit, which means greater crimes introduce

greater disorder. 36
How is the order of justice to be “restored”? Answer: by and
through punishment. Insofar as an act of deliberate wrongdoing in-
troduces excessive will into the order of justice, an act of punish-
ment, being contra voluntatem, removes or eliminates it from the
order. Punishment returns the excessive will to its source, through
the state’s exercise of its own will, thereby restoring the order of
justice to its prior, balanced state. Poena eliminates culpa, thus red-
integrating the order of justice. 37

36 See FINNIS, supra note 3, at 213 (stating that, insofar as culpable wrongdo-

ing involves an “excess” of will, the “measure of excess [is] the relevant law or moral
norm for preserving the common good”). The idea that more serious crimes re-
quire “more will” to commit, and thus introduce relatively more disorder into the
order of justice would constitute, it would seem, a reply Aquinas might offer to
what’s known as the “false equivalence” objection to Morris-type renditions of the
fairness theory. See RICHARD DAGGER, PLAYING FAIR: POLITICAL OBLIGATION AND THE
PROBLEMS OF PUNISHMENT 189–91 (2018) (discussing this objection).
The thesis that culpable criminal wrongdoing consists in introducing disor-
der—an excess of will—into the “order of justice” is, I’m inclined to believe, very
similar to, if not materially equivalent to, the thesis, found elsewhere in the litera-
ture, that culpable criminal wrongdoing consists in “defiance” of an exercise of le-
gitimate authority.
The reasoning goes like this: A legitimate civil authority promulgates the
rules constituting the criminal law; those rules, together with the fact that most
people are conforming their wills to those rules, constitute the order of justice; and
a culpable wrongdoer throws that order into disorder when he “defiantly” (“will-
fully”) chooses to commit a crime contrary to the rules the legitimate authority has
promulgated. See generally Finnis, supra note 3, at 213 n.150 (“So the criminal’s
offense . . . is an offense against common justice, inasmuch [as] [I am] usurping
[to myself] the judgement on the matter and setting aside due process of law.”)
(emphasis added); JEAN HAMPTON, Mens Rea, in THE INTRINSIC WORTH OF PERSONS
72, 102‒06 (2007) (describing a “conception” of culpability (or mens rea in a broad
sense) in which culpability consists in “defiance” of legal authority); Malcolm
Thorburn, Punishment and Public Authority, in CRIMINAL LAW AND THE AUTHORITY
OF THE STATE 7, 17 (Antje du Bois-Pedain et al. eds., 2017) (citing Aquinas).
37 The online version of the Oxford English Dictionary defines the odd-sound-

ing word “redintegrate,” which I came across in FRIEL, supra note 33, at 50, as “To

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All this will probably sound more than vaguely familiar to those
versed in the contemporary literature on “theories” of punishment.
It sounds, of course, like the “theory” known variously as the “fair-
ness” or “balance of benefits and burdens” theory, usually at-
tributed to Herbert Morris’s famous 1968 essay “Persons and Pun-
ishment.” 38 This theory can be understood as a way of trying to
make sense of the proposition that punishment is, in some way, di-
rectly or indirectly, something good, and not, as consequentialism
would have it, something bad. Punishment, says the fairness theory,
is something good inasmuch as it restores the fair balance of bene-
fits and burdens between those who choose to conform to the law
and those who don’t, and that balance is itself something good,
something worth restoring.
Morris’s theory has rubbed some the wrong way, and not with-
out cause. His theory can fairly be understood to imply that crime
somehow benefits the deliberate wrongdoer—as if crime were
something good, something everyone would want to do, if only the
law and its threat of punishment didn’t get in the way. This impli-
cation, being counter-intuitive, has been a common and long-stand-
ing objection to Morris’s theory. 39 Assuming this objection gives

restore to a state of wholeness, completeness, or unity; to renew or re-establish in

a united or perfect state.” I liked the word inasmuch as it emphasizes the thought
that the “order of justice” is a whole with an existence separate and distinct from
the existence of its parts.
38 Herbert Morris, Persons and Punishment, 52 THE MONIST 475 (1968). For

Finnis’s first essay discussing this way of thinking, see John Finnis, The Restora-
tion of Retribution, 32 ANALYSIS 131 (1972). For Finnis’s latest thoughts, see John
Finnis, supra note 21, at 506―10. According to Koritansky, Finnis “has virtually
identified Aquinas’s view with that of Morris and himself.” KORITANSKY, supra note
3, at 144.
39 DAGGER, supra note 36, at 191. Dagger describes this as the “irrelevance”

objection to Morris-type “fairness” theories. According to this objection (roughly

speaking): The fairness theory tells us that what makes crimes “wrongful” is the
fact that the criminal is a “free-rider.” A crime is a wrong because someone who
commits a crime has done something that’s unfair to others: he “rides” for “free.”
But, so goes the objection, that’s “perverse,” because what makes rape, for exam-
ple, a wrong is that it “attacks another person’s interests and integrity, not that it

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one reason to doubt the persuasiveness of Morris’s theory, does it

likewise give one reason to doubt the persuasiveness of what Aqui-
nas has to say?
On Morris’s theory, the deliberate commission of a crime is like
a taking. 40 Someone who deliberately commits a crime takes some-
thing—and thereby “gains” or “benefits” in and from the taking—

takes unfair advantage of the law-abiding.” The fairness theory implies the “real”
victim is some collective entity known as the “law-abiding” (for which Aquinas
would substitute the “order of justice” qua intrinsic good), and not another flesh-
and-blood human being. That’s what makes the theory “perverse.” See R.A. DUFF,
TRIALS AND PUNISHMENTS 211–14 (1986); Jean Hampton, Correcting Harms versus
Righting Wrongs: The Goal of Retribution, 39 UCLA L. REV. 1659, 1660–61
(1992).
Aquinas’s answer to this worry would, I imagine, emphasize the distinction
between public justice and commutative justice. See II-II q. 62. Although I don’t
have space to elaborate, he might say that punishment can be a “restorative” rem-
edy or response, not only to acts producing or constituting public injustice, but also
to acts producing or constituting commutative injustice. Commutative justice in-
volves transactions between two people (between two parts of a whole). In this re-
gard, some contemporary tort-law theorists believe the law of torts should be (or
is) based on principles of commutative justice, and they observe that tort law in-
cludes punishment as a “restorative” remedy in some cases. That remedy travels
under the doctrinal name of punitive (or vindictive) damages. See, e.g., KORI-
TANSKY, supra note 3, at 153–54.

The idea that punishment (in the form of punitive damages) is and ought to
be a remedy available in the “private” law of torts, because the victim is sometimes
owed something more than material compensation, has some support in contem-
porary tort-law theory. See, e.g., ARTHUR RIPSTEIN, EQUALITY, RESPONSIBILITY, AND
THE LAW 150–51 (1999); Ronen Perry, The Role of Retributive Justice in the Com-
mon Law of Torts: A Descriptive Theory, TENN. L. REV. 177 (2006); Benjamin C.
Zipursky, A Theory of Punitive Damages, 84 TEX. L. REV. 105 (2005). But see R.A.
Duff, Torts, Crimes and Vindication: Whose Wrong Is It?, in UNRAVELLING TORT
AND CRIME 146, 163 (Matthew Dyson ed., 2014) (“[T]his kind of separation between
the private wrongs that properly concern tort law, and the public wrongs that
properly concern criminal law, is problematic, for several reasons.”).
40 Finnis interprets Aquinas to say much the same thing: “Hence the propo-

sition foundational for Aquinas’ entire account of punishment: the order of just
equality in relation to the offender is restored—offenders are brought back into
that equality—precisely by ‘subtraction’ effected in a corresponding, proportionate

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that other people who conform to the criminal law’s prohibitions

don’t take. The thing criminal wrongdoers are said to take is usually
described abstractly as “freedom” or “autonomy.” 41 When someone
chooses not to conform to the criminal law’s prohibitions, he does
something others refrain from doing, and in that sense, he takes, or
indulges in, a freedom others don’t take, in which others don’t in-
dulge. The self-restraint others exercise, and by which they keep
themselves from taking the freedom criminal wrongdoers take, is
counted a “loss” or “burden.”
Aquinas, one can safely say, would see things differently. Some-
one who commits a crime has introduced disorder not only into the
order of justice, but also into the “order of reason.” Justice orders
how the parts of the civitas relate to the civitas. Reason orders how
the parts of the soul relate to the soul. Inasmuch as deliberate
wrongdoing (criminal or not) is choosing a lesser objective good
over a greater one, it disorders the soul, as well as the order of jus-
tice. So, even if the choice to culpably commit a crime can be under-
stood as an appropriation or taking of an “extra” liberty to oneself,
it nonetheless, for Aquinas, disorders the soul, and a disordered
soul is no gain or advantage, not if the words “gain” or “advantage”

suppression of the will which took too much (too much freedom or autonomy, we
might say.)” FINNIS, supra note 3, at 213 & 213 n.149 (emphasis added).
Finnis implies that punishment subtracts something (freedom or autonomy)
from the offender. In contrast, the text suggests that punishment subtracts some-
thing (excessive will) from the order of justice. Also: it may be more precise to say,
not that punishment is a necessary (and the only) means by which to restore the
order of justice, and instead to say, simply, that the “act of punishing is the resto-
ration of order.” Gardner, supra note 3, at 35 (emphasis in original). We ordinarily
don’t say that subtracting two from four is a necessary (and the only) means to get
two; instead, we ordinarily say, simply, that subtracting two from four is two.
41 Morris speaks of “primary rules,” which, he says, “closely resemble the core

rules of our criminal law, rules that prohibit violence and deception and compli-
ance with which provides benefits for all persons.” Morris, supra note 38, at 477.
That sounds like the types of rules Aquinas has in mind as the rules necessary for
civil peace.

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imply something good or worth having. Likewise, preserving the or-

der of one’s soul is no “loss” or “burden.”
Insofar as Morris’s fairness theory implies that crime is a good
for the criminal wrongdoer, and insofar as this implication is a sure
sign that something in the theory has gone awry, Aquinas can be
read to avoid that implication.
How so? By reading him to shift the emphasis or focus from
what a wrongdoer takes when he culpably commits a crime to what
he gives. Rather than take freedom others renounce, a deliberate
wrongdoer introduces into (“gives to”) the order of justice some-
thing not there before: an excess of will. For Aquinas, so under-
stood, deliberate wrongdoing might be better analogized, not to a
wrongful taking, but to an unjust “enrichment.” When a criminal
wrongdoer deliberately chooses to commit a crime he introduces
into (“gives to”) the order of justice an excess of will, thereby “en-
riching” it, albeit with a deformity or imperfection.
This way of looking at things puts new light on an old idea: that
punishment is the “payment of a debt,” an idea typically associated
with “retribution.” That idea contains an ambiguity: it can mean
two different things. It might mean, first, that a wrongdoer owes a
debt, usually to the “state” or the “people,” or something along those
lines, and he pays that debt back if and when he undergoes punish-
ment. So understood, the “debt of punishment” runs from the
wrongdoer to the state. Punishment is thus something the wrong-
doer owes the state.
That’s probably the most common understanding of the
phrase. It’s not, however, the only one.
Instead, the phrase might be understood, second, to mean the
wrongdoer, when he introduces an excess of will into the order of
justice, thereby acquires a debit on his moral ledger. He acquires a
debit because he’s transferred something of his—an excess of will—
to that order. Correspondingly, the order gains, on its books, a
credit. When the order, via punishment, returns the wrongdoer’s
will back to him, through the exercise of its own will, it clears the

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credit on its account, and at the same time, clear the debit on the
wrongdoer’s. Understood in this way, the “debt of punishment”
runs from the state to the wrongdoer, and not the other way around.
Punishment is thus something the state owes to the wrongdoer. 42
Punishment, for Aquinas, is itself an evil (the deprivation of a
good), but an evil brought into being for the sake of restoring an
intrinsic good (the order of justice). Punishment, so the argument
goes, is the only thing with the power to restore (capacity to re-or-
der) the order of justice when deliberate wrongdoing has dis-or-
dered it; and a restored (re-ordered) order of justice is a good worth
having, even if its restoration entails the evil in which punishment
consists.
Why, though, should anyone believe all that? What reason does
anyone have, according to Thomistic thought, to believe in the ex-
istence of this thing he calls the “order of justice;” that this order is
an intrinsic good; and that repairing any disorder it suffers, thereby
restoring it to its previous ordered state, is itself a good worth pur-
suing, especially when repairing entails punishing, a confessed evil?
Where to look for an answer? Start with the (controversial)
proposition that, for Aquinas, we are “by nature” inclined to pursue

42 This proposed reading is consistent with Koritansky, when he writes:

“[P]unishment [, for Aquinas,] is . . . something paid by the political community to

the criminal.” Koritansky, Natural Law, supra note 3, at 424 (emphasis added).
Some support for this interpretation can also be found in the following passages
from Aquinas:
When a man does that which conduces to his own benefit or disad-
vantage, then again retribution is owed to him, in so far as this too af-
fects the community, forasmuch as he is a part of society.
ST I-II, q. 21, a.3 (emphasis added).
[W]hatever evil occurs in human actions must be included in the order
of some good. This is most fittingly done in the punishment of sins. For
thus things that exceed in due quantity are included in the order of jus-
tice, which reduces them to equality.
SCG III-II, 140 (emphasis added).

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that which is intrinsically good, which isn’t, of course, to say we al-

ways manage to succeed in the pursuit. 43 On the contrary. Some-
times, for example, we believe something is good when it isn’t:
sometimes the intellect (reason) mistakes something evil for some-
thing good (under the influence of passion, say), and then proceeds
to instruct the will to act accordingly. But the general point remains:
absent some mistake, our natural inclinations, under the govern-
ance of natural law, incline us act in ways by which to realize that
which we believe or perceive to be some good. We act, always, under
the “guise of the good.”
Enter passion (passio), and specifically, the passion of anger
(ira). 44 Aquinas’s moral psychology, which includes the passions

43 On the generic doctrine according to which we always choose “under the

guise of the good,” see generally Francesco Orsi, The Guise of the Good, 10 PHIL.
COMPASS 714, 714 (2015) (discussing literature and stating that in its “classical for-
mulation,” citing Aquinas, the doctrine proposes that “if we don’t see anything
good in something, we don’t desire it”).
44 The “moral emotions”—anger, resentment, indignation, and so on—figure

prominently in contemporary writing, not only on punishment, see, e.g., JEFFRIE

G. MURPHY, PUNISHMENT AND THE MORAL EMOTIONS 2012), but on moral responsi-
bility as well, see, e.g., Peter Strawon, Freedom and Resentment, 48 PROC. BRITISH
ACAD. 1 (1962), although the many names used to describe these emotions, and the
many distinctions drawn among them, can be bewildering.
Anyway, in the literature on punishment, probably the best known effort, re-
lying on the moral emotions, to defend the thesis that punishment is somehow an
intrinsic good is MOORE, supra note 6, at 132 (“The emotions are thus heuristic
guides for us, an extra source of insight into moral truths beyond the knowledge
we can gain from our sensory and inferential capacities alone.”). Moore focuses on
guilt, see id. at 145, which is self-directed anger, and not, as does Aquinas, on anger
itself, which is directed toward someone other than oneself. Moore’s discussion
reflects his belief (as I would put it) that a “moral order” exists, but not the further
believe that this order is ordained by God. See Michael S. Moore, Good without
God, in NATURAL LAW, LIBERALISM, AND MORALITY, supra note 21, at 271.

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and spells out how they relate to intellect (reason) and will, is ex-
ceptionally complex. 45 My present understanding, in abbreviated
form, comes to this: Anger, as a passion, can be both a cause and an
effect of a belief or judgment that the privation of a good (an evil)
has been done. 46 If one experience anger when one witnesses delib-
erate criminal wrongdoing, either in reality or imagination, the be-
lief or judgment caused by, or producing, that anger is the belief or
judgment that some intrinsic good has been de-prived. One such
good is the good in which the order of justice allegedly consists.47
The intellect (reason) then forms the belief or judgment that resto-

45 The interested reader can start with DIANA FRITZ CATES, AQUINAS ON THE

EMOTIONS (2009); NICHOLAS KAHM, AQUINAS ON EMOTION’S PARTICIPATION IN REA-

SON (2019); NICHOLAS E. LOMBARDO, THE LOGIC OF DESIRE: AQUINAS ON EMOTIONS
(2011); ROBERT MINER, THOMAS AQUINAS ON THE PASSIONS (2009); Peter King, Aqui-
nas on the Passions, in AQUINAS’S MORAL THEORY 101 (Scott MacDonald & Eleonore
Stump eds., 1999); Eleonore Stump, The Non-Aristotelean Character of Aquinas’s
Ethics: Aquinas on the Passions, 28 FAITH & PHIL. 29, 42 (2011).
46 See, e.g., MCCLUSKEY, supra note 25, at 104 (“Both in situations where an

antecedent passion moves the will and where the will actively produces a conse-
quent passion, Aquinas ties the activation of the will to prior judgment of the in-
tellect.”).
47 Why not say the anger (if any) a person experiences toward someone who

culpably commits a crime is experienced, not because the wrongdoer “rose up”
against the good in which the order of justice allegedly consists, but because he
“rose up” against some other basic good belonging to victim? For one response, see
infra note 39. For another, if one experiences anger (even a bit) toward culpable
wrongdoers who commit crimes without natural-person victims, then wouldn’t
any such anger be some evidence that the wrongdoer’s action constituted a depri-
vation of some good other than some good belonging to a natural-person victim?
Does one experience anger when the crime is “victimless”? What about crimes
“against the administration of justice,” like perjury, with no readily identifiable
“victim”?

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ration of the order of justice, through the humbling of the wrong-

doer’s will, would itself be a good. 48 The intellect then so instructs
the will, which proceeds accordingly, under the guise of that good.
This detour into ira started with a question: Why should any-
one believe an order of justice exists; that it’s an intrinsic good; and
that its restoration (by and through punishment qua humbling of
the will) is itself a good worth pursuing? If my understanding of
Aquinas’s analysis of anger is correct, and if one does indeed expe-
rience the passion of anger in the face of deliberate criminal wrong-
doing (something I’ve heard thoughtful people earnestly deny),
then the relevant question, or the more pressing or interesting ques-
tion, is different. The question isn’t why anyone should believe the
order of justice exists, is an intrinsic good, and so forth. The ques-
tion is why someone who experiences anger in the face of deliberate
criminal wrongdoing already believes those things.
None of which is to deny that anger, like any passion, can get
out of hand, exceeding the limits of reason. Anger, like any passion,
needs the discipline or governance of an associated virtue, so reason
doesn’t get led astray. Here, the relevant general virtue is justice, a
“habit whereby man renders to each one his due by a constant and
perpetual will,” 49 and more specifically, a special virtue associated
with justice, which Aquinas calls vindicatio. 50 Vindicatio, as a spe-
cial or sub-virtue of justice, disciplines the natural inclination to

48 See, e.g., KORITANSKY, supra note 3, at 118 (“Anger is a natural result of the

judgment that one deserves punishment.”); Michael Rota, The Moral Status of An-
ger: Thomas Aquinas and John Cassian, 81 AM. CATHOLIC PHIL. Q. 395, 403
(2007).
49 ST II-I, q. 58, a. 1.
50 Aquinas’s analysis of the virtue of justice is complex. Among other things,

justice is a virtue associated with those subject to civil authority, as well as those
who exercise it. For those subject to civil authority, the virtue of justice takes the
form of observantia, which Finnis describes as the “justice of appropriate obedi-
ence and, more generally, the fulfillment of affirmative responsibilities and under-
takings.” FINNIS, supra note 3, at 215 note a. The virtue of obervantia might also,

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humble a wrongdoer’s will. It works, when it works, in two direc-

tions. It moderates anger, lest it slide into the excess of cruelty. It
also fortifies anger, lest it slide into the deficiency of permissiveness
or “remissness.” 51 Being on either side of the mean, cruelty and per-
missiveness are both “disordered” instances of anger. 52
Still, even if the experience of anger in the face of deliberate
wrongdoing presupposes some cognition to the effect that Aqui-
nas’s alleged order of justice exists, is an intrinsic good, and so
forth, why isn’t that cognition nothing more than the cognition of
an illusion? Why, for example, should we believe it to be anything
more than a cognition that once served, but no longer serves, some
“evolutionary” function, as some have said? 53 Why, in other words,
should anyone believe it cognizes something true, or real?
Answering those questions, as far as I can tell, would mean ven-
turing deep into the complex and controversial meta-ethics of nat-
ural law. 54 I’ll take a raincheck on that venture for the time being,
but if meta-ethics is where the questions lead, then meta-ethics is

I should think, be called the virtue of law-abidingness. See also JEAN PORTER, JUS-
TICE AS A VIRTUE: A THOMISTIC PERSPECTIVE 164 (2016) (General justice as a virtue
is “paradigmatically a virtue of political rulers.” In the “lives of private citizens,”
the virtue of general justice “is limited to a disposition to act in accord with the
laws and directives of the community’s rulers.”).
51 Gardner, supra note 3, at 30.
52 KORITANSKY, supra note 3, at 118‒119.
53See, e.g., Michael E. McCollough et al., Cognitive Systems for Revenge and
Forgiveness, 36 BEHAV. & BRAIN SCI. 1 (2013).
54 KORITANSKY, supra note 3, at 121. Thomistic meta-ethics are presently well

above my pay grade. Interested readers might consult STEVEN J. JENSEN, KNOWING
THE NATURAL LAW: FROM PRECEPTS AND INCLINATIONS TO DERIVING OUGHTS (2015);
Bebhinn Donnelly, The Espistemic Connection Between Nature and Value in New
and Traditional Natural Law Theory, 25 LAW & PHIL. 1 (2006). Exploring these
meta-ethical questions would no doubt also lead one into the ongoing debate be-
tween “traditional” or “classic” natural law theory and the “new” natural law the-
ory, on which see, for example, TOM ANGIER, NATURAL LAW THEORY 43‒47 (2021).

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where those who disagree with Aquinas must, at some point, engage
his thought.

III. MEDICINA

Punishment as retributio, imposed and undergone for the sake

of restoring the intrinsic good in which the order of justice allegedly
consists, isn’t, according to Aquinas, the only good state officials can
legitimately intend to bring into being when they authorize punish-
ment. He writes:
Punishment may be considered in two ways. First, under
the aspect of punishment, and in this way punishment is
not due save for sin, because by means of punishment the
equality of justice is restored, in so far as he who by sinning
has exceeded his own will suffers something that is con-
trary to his will. 55
In this passage Aquinas is, of course, referring to punishment
imposed as retributio. But, immediately thereafter, he goes on:
Secondly, punishment may be considered as a medicine,
not only healing the past sin, but also preserving from fu-
ture sin, or conducing to some good. 56
Although Aquinas doesn’t use modern nomenclature, he’s been
interpreted here to be describing what today we’d call reformation

55 ST II.II., q. 108, a. 4.
56 Id. This passage goes on to say, immediately after the language quoted in
the text: “and in this way a person is sometimes punished without any fault of his
own, yet not without cause” (emphasis added). Gregoire discusses this potentially
troubling passage in Gregoire, supra note 3, at 381–83. In the same article, Aqui-
nas distinguishes between “inflictive punishment” and “punishment of forfeiture,”
saying that a “man should never be condemned without fault of his own,” to the
former, but may be “condemned . . . without any fault on his part” to the latter. ST
II-II, a. 4 ad. 2.

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(“healing the past sin”) and deterrence, 57 both specific (“preserving

from future sin”) and general (“conducing to some good”). 58 This
passage can thus be read to say that, when the state punishes, it can
legitimately aim at another common good, in addition to the com-
mon good in which restoring the order of justice consists.
Another way to put it, drawing on language used in the contem-
porary literature, would be to say that Aquinas is a “punishment
pluralist.” 59 Punishment can legitimately—within the scope of the

57 When Aquinas is read to approve “healing the past sin” as a good at which

state punishment can legitimately aim, I assume he means something like what
other writers would characterize as “moral reform,” where that which is done to
the person is intended to “morally improve” them. See Lisa Forsberg & Thomas
Douglas, What is Criminal Rehabilitation? Crim. L. & Phil. (forthcoming). For
more on this type of “reform,” see, for example, Jeffrey W. Howard, Punishment
as Moral Fortification, 36 LAW & PHIL. 45 (2017); Herbert Morris, A Paternalistic
Theory of Punishment, 18 AM. PHIL. Q. 263 (1981); Jean Hampton, The Moral Ed-
ucation Theory of Punishment, 13 PHIL. & PUB. AFFS. 208 (1984).
Query: How did Aquinas suppose that punishment, i.e., an act withdrawing
a good, with an intent to humble the will, could “re-order the soul” or restore it to
a state of good “health” in the sense of “re-ordering” it? I’m not entirely sure, but
insofar as the thought that punishment can in some sense be a “medicine” for the
soul originates with (or can at least be traced back to) Plato, the reader might con-
sult the literature on Plato, including, for example, the following, which I thank
Judge Thomas Donnelly for bringing to my attention: R.F. Stalley, Punishment
and the Physiology of the Timaeus, 46 CLASSICAL Q. 357 (1996); R.F. Stalley, Pun-
ishment in Plato’s Law’s, 16 HIST. POL. PHIL. 469 (1995).
58 Why does Aquinas countenance state punishment in pursuit of peace

(through reformation and deterrence), and not just to restore the order of justice?
Gregoire writes: “[I]t is usual to explain Aquinas’s requirement of future utilities
for human punishment by his teleological approach to ethics.” Gregoire, supra
note 3, at 392. In contrast, Gregoire speculates that, for Aquinas, the “instrumental
aspect of punishment acquires such importance for human punishment” because
“human beings can never be sure about the degree of culpability, intentions being
internal. God alone is able to know exactly how much the guilty party ‘exceeded the
due quantity’ when preferring his own will and thus going against one of the orders
(natural, divine or human).” Id. at 391–92.
59 See, e.g., Douglas Husak, Why Punish the Deserving?, 26 NOUS 447 (1992);

Michael T. Cahill, Punishment Pluralism, in RETRIBUTIVISM: ESSAYS ON THEORY AND

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state’s legitimate authority—be imposed with the intent not only to

restore the order of justice. It can also be imposed with other goods
in mind, and for Aquinas, with one other good in mind. That good,
so far as I can see, is the good for which the criminal law (in the
main) exists in the first place: to secure the (instrumental) common
good of civil peace or civil order. Reformation and deterrence (both
specific and general) are the mechanisms through which that com-
mon good is supposed to be realized. 60
For want of space, I’ll mention only three things about punish-
ment as medicina, each of which relate to the question: How does
punishment qua medicina, imposed to secure the common (instru-
mental) good of peace, relate to punishment qua retributio, im-
posed to secure the common (intrinsic) good in which the order of
justice consists? 61
First, the state can, for Aquinas, legitimately punish no one
without culpa: unless the person punished has, with culpa, commit-
ted a crime. Punishing anyone unless he’s introduced, through his
excess willing, disorder into the order of justice would be ultra

POLICY 25 (Mark D. White ed., 2011); Mitchell N. Berman, Punishment and Justi-
fication, 118 ETHICS 258 (2008).
60 Gardner, supra note 3, at 35 (emphasis added), writes:
Medicinal ends are not accomplished in the act of punishing itself,
but through punishment; they are remote ends. Yet like retribution, the
medicinal ends of punishment are goods of order. In its penal or retrib-
utive quality, a punishment seeks to restore an order that was upset by
the offense, by causing the offender to suffer something contrary to his
will. In its medicinal quality, punishment seeks the restoration of order,
insofar as it aims at reform and the promotion of virtue; it seeks the
prevention of disorder, insofar as it aims at deterrence. Therefore, ret-
ribution, defense, rehabilitation and deterrence all participate in some
way in the good of order.
61 What follows relies heavily on the interpretation offered by Gregoire. See

Gregoire, supra note 3, which I thank Russell Hittinger for bringing to my atten-
tion.

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vires, even if doing so would advance the cause of civil peace. 62 In

some passages Aquinas can also be read to suggest that state offi-
cials should not punish someone unless doing so would, in addition
to restoring the order of justice, also in some way advance the cause
of civil peace (through reformation and deterrence). For example:
[T]he punishments of this life are sought, not for their own
sake, because this is not the final time of retribution, but
in their character as medicine, conducing either to the
amendment of the evil-doer, or to the good of the com-
monwealth whose calm is ensured by the punishment of
evil-doers. 63
Second, different punishments, Aquinas has been read to say, 64
can sometimes suffice to restore the order of justice. One size
doesn’t fit all. More than one punishment can do the job, or at least
mere mortals lack the power to discern which among them is the
“truly” restorative one. When that happens, securing the common
good of peace, through reformation and deterrence, may legiti-
mately be relied upon when selecting among the eligible options.

62 Aquinas might thus be understood as offering a forerunner to what would

today be described as a “forfeiture theory of punishment,” according to which

someone, when he culpably commits a crime, forfeits a pre-existing right not to be
punished, but only if he culpably commits a crime. See CHRISTOPHER HEATH WELL-
MAN, RIGHTS FORFEITURE AND PUNISHMENT 4 (2017); Zachary Hoskins, Fair Play,
Political Obligation, and Punishment, 5 CRIM. L. & PHIL. 53, 63 (2011).
63 ST II.II q. 68, a. 1. Gregoire states: “What is very common is Aquinas justi-
fying not applying a deserved punishment by the fact that one of the [two medici-
nal] effect is missing.” Gregoire, supra note 3, at 386.
64 Gregoire, supra note 3, 391 (“[I]f [Aquinas] thus admits that the consider-

ation of predicted effects of a retributively just punishment can motivate its non
application, one can suppose that Aquinas would also admit that effects should be
taken into consideration in order to choose between equally retributively just pun-
ishments.”) (emphasis in original). Finnis also states: “Other factors can, within
just limits, be counted as justifying more, or less, severe punishment.” FINNIS, su-
pra note 3, at 214 (citation omitted) (emphasis added).

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That sounds like what today is called “limiting retributivism,” 65 at

least if limiting retributivism is the thesis that, among a list of pun-
ishments any and all of which is retributively “just” (i.e., with the
power to restore the order of justice), consequentialist reasons can
be called upon to help select which punishment from among the list
should be imposed.
Third, a punishment, Aquinas has also been read to say, need
not be equal to a punishment otherwise necessary to restore the or-
der of justice, whatever such a punishment might be. Instead, he
says a punishment may be imposed below, or—and this is interest-
ing—above any such order-restoring punishment (which is not
what limiting retributivism would say). 66 He writes, for example:
But punishments that are inflicted in the present life either
by God or by man do not always correspond to the gravity
of the fault [culpa], for sometimes a lesser fault is pun-
ished with a graver punishment temporarily in order that
a greater danger be avoided; for punishments in the pre-
sent life are used as medicines. 67
According to one reading of this passage, though perhaps not
the only one, a civil authority can legitimately impose a punishment
“in the present life” below or above a punishment necessary to re-
store the order of justice. If a punishment necessary to restore the
order of justice sets the standard against which a punishment is
judged proportionate or disproportionate, then Aquinas, as far as

65 “Limiting retributivism,” upon which the recent revision of the Model Pe-
nal Code’s sentencing philosophy is based, is most closely associated with the writ-
ing of Norval Morris.
66 Gregoire, supra note 3, at 388 (“This introduction of the possibility of con-

sidering utility in order to justify punishing more severely than what is deserved is
quite surprising and constitutes probably the most interesting difference between
Aquinas’s position and the strict retributivist one.”); id. at 387–90 (collecting ex-
amples from Aquinas’s works of “punishing more severely than what is deserved”).
67 QUAESTIONES DISPUTATAE DE MALO q. 2, a. 10, ad 4 (emphasis added).

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one can tell, contemplates disproportion in both directions: dispro-

portionately lenient punishment and disproportionately severe
punishment. 68
Which raises a final question. However far below the order-re-
storing punishment a civil authority can legitimately go, how far can
it go above? As far as I can recall, nothing in the literature I’ve con-
sulted speaks directly to this question, so I’m not sure. I can think
of two possible responses one might offer, on Aquinas’s behalf, in
an effort to assuage worries naturally arising from punishments de-
scribed as “disproportionate.”
First, medicinal punishments are imposed in order to secure
the common good of civil peace. That being so, any punishment im-
posed beyond the punishment necessary and sufficient to restore
the order of justice, for the sake of bringing about or restoring civil
peace, should presumably be no greater than is necessary to bring
it about or restore it. If so, then perhaps Aquinas can be understood
to embrace a form of what’s known today as the “parsimony princi-
ple,” according to which any punishment imposed to achieve an in-
strumental good should be no greater than is necessary to bring that
good into being. 69
Second, perhaps Aquinas’s might also offer a reminder. State
officials clothed with authority to promulgate the law governing
how much punishment may or should be imposed (and for what
wrongs it may or should be imposed), together with those clothed

68 Gregoire, citing ST II-II q. 68 a. 1 and ST II-II q. 66 a. 6 ad 2, argues that,

for Aquinas, the state can legitimately inflict no punishment unless some medicinal
good is anticipated to come from it, even if some punishment is otherwise neces-
sary to restore the order of justice. Having said that, Gregoire believes that reform
(“improve[ing] the soul of the guilty party”) is always an end available for the state
to invoke as a medicinal reason. See Gregoire, supra note 3, at 394.
69 The principle is reflected in, for example, AM. LAW. INST., MODEL PENAL

CODE: SENTENCING § 1.02(2)(a)(iii); (Proposed Final Draft Apr. 10, 2107), and in 18
U.S.C. § 3553(a).

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with authority to apply the law to specific cases, should, for Aqui-
nas, discharge their authority consistent with the virtue of (general)
justice, whose object is the common good. 70 If so, then in the end,
the hope that state punishment will indeed serve the common good
depends, for Aquinas, on the virtue of those “who have care of the
community.” If that, with its old-fashioned appeal to virtue, sounds
like a terribly pre-modern note on which to end, so it is.

70 See PORTER, supra note 50, at 163 (citing ST II.II. q. 56 a. 6).

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