10. Penal Substitution: Its Justification

Although some persons have objected to the coherence of the doctrine of penal substitution, by far and away the most prevalent and powerful objection to the doctrine is the Socinian claim that penal substitution is unjust and therefore immoral. For example, Eleonore Stump complains:

Notice how carefully Stump characterizes the so-called Anselmian position on divine retributive justice: it would be a violation of divine justice not to punish the sins of a guilty person. It does not follow from this that that very person must be punished for his sins; someone else might be punished in his place. The objection, then, is the familiar Socinian objection that it would be unjust of God to punish Christ, an innocent person, in our place. Detractors of penal substitution who press this objection almost never develop it in any depth, and Stump is no exception to the rule. There is nothing here to interact with apart from the single question: How is justice served by punishing a completely innocent person? We need to go deeper.

Critics of penal substitution frequently assert that God’s punishing Christ in our place would be an injustice on God’s part. For it is an axiom of retributive justice that it is unjust to punish an innocent person. But Christ was an innocent person. Since God is perfectly just, He cannot therefore have punished Christ. It does no good to say that Christ willingly undertook this self-sacrifice on our behalf, for the nobility of his selfless act does not annul the injustice of punishing an innocent person for deeds he did not do.

The crucial premises and inferences of this objection appear to be the following:

One quick and easy way to deal with this objection would be to adopt a consequentialist theory of justice. Theories of justice may be classified as broadly retributive or consequentialist. Retributive theories of justice hold that punishment is justified because the guilty deserve to be punished. Consequentialist theories of justice hold that punishment is justified because of the extrinsic goods that may be realized thereby, such as deterrence of crime, sequestration of dangerous persons, and reformation of wrongdoers. Retributive theories are often said to be retrospective, imposing punishment for crimes committed, whereas consequentialist theories are prospective, aiming to prevent crimes from being committed. It is common coin that on consequentialist theories of justice punishment of the innocent may be justified, in view, for example, of its deterrence value. In fact, one of the main criticisms of consequentialist theories of justice is precisely the fact that on such theories it may be just to punish the innocent. A consequentialist penal substitution theorist could fairly easily provide justification for God’s punishing Christ for our sins, namely, so doing prevents the loss of the entire human race. So given a consequentialist understanding of (1), we have no reason to think that (2) is true.

But consequentialism seems ill suited to serve as a basis for divine punishment because God’s judgment is described in the Bible as ultimately eschatological. The ungodly are “storing up wrath” for themselves for God’s final day of judgment (Rom 2:5). Punishment imposed at that point could seemingly serve no other purpose than retribution. The Christian consequentialist could say that punishment in hell does have a consequentialist justification, namely, the sequestration of the wicked from the community of the redeemed, just as hardened criminals are removed from society. But since God could achieve this end by simply annihilating the damned, the consequentialist will need to find some non-retributive reason for God’s preserving them in existence. In any case, the biblical view is that the wicked deserve punishment (Rom 1:32; Heb 10:29), and it ascribes to God retribution (ekdikēsis; avtapodoma) for sins (Rom 11:9; 12:19), so that God’s justice must be in some significant measure retributive.

During the first half of the twentieth century, under the influence of social scientists, retributive theories of justice were frowned upon in favor of consequentialist theories. Fortunately, there has been over the past half century or so a renaissance of theories of retributive justice, accompanied by a fading of consequentialist theories, so that we, working within the mainstream position, need not be diverted by justifying a retributive theory of justice. This change is due in no small part to the unwelcome implication of pure consequentialism that there are circumstances under which it is just to punish innocent people. Unfortunately, it is precisely the conviction that the innocent ought not to be punished that lies behind the claim that penal substitutionary atonement theories are unjust and immoral.

Now if such a metaethical theory is even coherent, not to say true, as able proponents like Robert Adams, William Alston, and Philip Quinn have argued it is, then the present objection will have difficulty even getting off the ground. As Hugo Grotius observed, even if God has established a system of justice among human beings that forbids the punishment of the innocent (and, hence, substitutionary punishment), He Himself is not so forbidden. He refused Moses’ offer of himself as a substitutionary sacrifice (Exod 32:30-34), just as He refused the sacrificing of Isaac; but if He wills to take on human nature in the form of Jesus of Nazareth and give His own life as a sacrificial offering for sin, who is to forbid Him? He is free to do so as long as it is consistent with His nature. And what could be more consistent with our God’s gracious nature than that He should condescend to take on our frail and fallen humanity and give His life to satisfy the demands of His own justice? The self-giving sacrifice of Christ exalts the nature of God by displaying His holy love.

But that raises the question, What is retributive justice? The present objection does not sufficiently differentiate various accounts of retributivism. While a so-called negative retributivism holds that the innocent should not be punished because they do not deserve it, the essence of retributive justice lies in so-called positive retributivism, which holds that the guilty should be punished because they deserve it. What distinguishes retributivism as a theory of justice is the positive thesis that punishment of the guilty is an intrinsic good because the guilty deserve it. God is a positive retributivist “who will by no means clear the guilty” (Exod 34:7). But the penal theorist may maintain that God is only qualifiedly a negative retributivist, since even if He has prohibited human beings from punishing innocent persons (Deut 24:16), and even if He is too good to Himself punish innocent human persons (Gen 18:25), still He reserves the prerogative to punish an innocent divine person, namely, Christ, in the place of the guilty. This extraordinary exception is a result of His goodness, not a defect in His justice. Hence, (2) is false.

Lest positive retributivism be thought to be too thin a theory of retributive justice to ascribe to God, it should be noted how extraordinarily strong such a thesis is, so strong in fact that it has been criticized as utterly unrealistic on a human level. Leo Zaibert indicts Michael Moore’s claim that just desert constitutes a sufficient condition of punishment (i.e., the guilty should be punished because they deserve it) as entailing legal moralism, which would require the state to punish every moral wrong. Legal moralism would require “an impossibly large criminal justice apparatus” which would be “utterly unmanageable and unrealistic.” Even outside the context of the state the implausibility of punishing every immorality is so high that even the staunchest unbridled retributivist has to admit that such a suggestion must be rejected. It is arguably impossible to try to punish every wrong, Zaibert exclaims, without going crazy. The theist can only smile at this secular theorist’s huffing and puffing about a task for which God alone is qualified and capable of carrying out. But at least we see therein how robust is a positive retributive theory of justice, which can then be further augmented by taking God to be a qualified negative retributivist as well.

This response alone suffices to dispense with the objection, but even more can be said.

So Feinberg and Gross observe that there are occasions in which a person can be fully justified in voluntarily producing an unjust effect upon another person. Person A may be justified in violating person B’s rights when there is no third alternative open to him; but that justification does not cancel the injustice done to B. Drawing upon Aristotle’s distinction between the just/unjust quality of an act and the just/unjust effect of an act upon others, they state, “In that case, we can say that B was unjustly treated although A’s act resulting in that effect was not an instance of unjust behavior. For an act to have an unjust quality (whatever its effects) it must be, objectively speaking, the wrong thing to do in the circumstances, unexcused and unjustified, voluntarily undertaken, and deliberately chosen by an unrushed actor who is well aware of the alternatives open to him.”

Cases of strict liability, in which a person having no mens rea (blameworthy mental state) is nonetheless found guilty and punished because of overriding moral concerns pertinent to public welfare, are good examples of instances in which the prima facie demands of negative retributive justice are waived. In fact, in cases of vicarious liability (see below), a person may be held criminally liable and punished even though he has neither an actus reus nor a mens rea! Such punishment seems prima facie unjustified but is justified ultima facie by overriding considerations.

Similarly, even if God’s essential justice includes unqualified negative retributivism, the prima facie demands of negative retributive justice may be overridden in the case of Christ. In the case of the death of Christ, the penal theorist might claim that God is fully justified in waiving the demands of negative retributive justice for the sake of the salvation of mankind. Biblical scholar Donald Carson reminds us, “It is the unjust punishment of the Servant in Isaiah 53 that is so remarkable. Forgiveness, restoration, salvation, reconciliation—all are possible, not because sins have somehow been canceled as if they never were, but because another bore them unjustly. But by this adverb ‘unjustly’ I mean that the person who bore them was just and did not deserve the punishment, not that some moral ‘system’ that God was administering was thereby distorted.” The penal substitution theorist might maintain that in the specific case of Christ’s death, the demands of negative retributive justice were overridden by weightier moral considerations.

Even the staunchest of contemporary retributivists, Michael Moore, recognizes that the demands of retributive justice are prima facie demands that can be and are overridden in specific cases. That is why Moore is not committed, as Zaibert imagines, to legal moralism. Moore says that we must not confuse the intrinsic goodness of retribution with the categorical duty to carry out retributive justice on every possible occasion. He calls himself a “threshold deontologist,” that is to say, he abides by the categorical norm of morality until doing so produces sufficiently bad consequences as to pass some threshold. So in the extreme case where one must punish an innocent person or else the world will be totally destroyed, one should punish the person. The penal substitution theorist could similarly claim that God, by waiving the prima facie demands of negative retributive justice and punishing Christ for our sins, has mercifully saved the world from total destruction and was therefore acting compatibly with moral goodness.

Now it might be asked why, if there are weightier considerations prompting God to waive the demands of negative retributive justice in Christ’s case, He did not instead waive the demands of positive retributive justice and offer everyone a general pardon for sin. In fact, many of the Church Fathers freely embraced this possibility, as did Aquinas and Grotius after them. But these thinkers also held that God had good reasons for achieving atonement through Christ’s passion. As Abelard and Grotius saw, so doing was a powerful display of both God’s love of people and His hatred of sin, which has proved powerfully attractive throughout history in drawing people to faith in Christ, especially as they themselves face innocent suffering.

God’s pardoning sin without satisfaction does not, despite first appearances, imply universal salvation, for God’s pardon may still require its free acceptance by people, and it is not at all implausible that a world in which the great demonstration of God’s love and holiness in the vicarious suffering and death of Christ occurs is a world in which a more optimal number of people come freely to embrace salvation than a world in which free pardon without cost or consequence is offered men. The counterfactuals involved are too speculative to permit us to claim that a general pardon would have been more effective in accomplishing God’s ends. Besides, substitutionary punishment of Christ permits God to relax far less His essential retributive justice for the sake of mercy than would be the case with a general pardon, thereby expressing more fully His essential character of holy love.

Of course, critics of penal substitution are apt to be unsympathetic to the claim that our sins were imputed to Christ. Mark Murphy, for example, distinguishes two possible imputation doctrines, both of which he deems unacceptable: the first holds that our sins, that is to say, our wrongful acts, were imputed to Christ, and the second holds that our guilt for our wrongful acts was imputed to Christ. Murphy’s complaint in both cases is the same: we have no experience of the transfer either of moral responsibility for actions or of guilt in isolation from actions from one person to another.

The force of Murphy’s objection depends on the probability that if the doctrine of imputation is true, then we should have some experience of such a transfer in human affairs. But why think that? The proponent of penal substitution might plausibly respond that our want of such experience is hardly surprising, since imputation of sins or guilt is a uniquely divine prerogative. In contrast to Western systems of justice, God embodies in one individual the legislative, judicial, and executive functions. Arguably, God as supreme Lawgiver, Judge, and Ruler is in a unique position to impute the sins and guilt of one person to another. So it would be hardly surprising if imputation of sin, though a divine prerogative, failed to find an analogy in our system of justice.

But are we so utterly bereft of analogies to imputation as Murphy alleges? I think not.

Penal substitution theorists have typically been understandably leery of talk of legal fictions in connection with their views, lest our redemption be thought to be something unreal, a mere pretense. But such a fear is misplaced. The claim is not that penal substitution is a fiction, for Christ was really and truly punished on such a view. Nor is his expiation of sin or propitiation of God’s wrath a fiction, for his being punished for our sins removed our liability to punishment and satisfied God’s justice. All these things are real. What is fictitious is that Christ himself did the wrongful acts for which he was punished. Every orthodox Christian believes that Christ did not and could not commit sins, but on the present view God adopts for the administration of justice the legal fiction that Christ did such deeds.

Penal substitution theorists will sometimes object to the employment of legal fictions in the doctrine of the atonement because God’s legally justifying us has real, objective results. Someone whose debt has been legally remitted, for example, really becomes free of the burden of financial obligation to his former creditor. But such an objection is based upon a misunderstanding of the role of legal fictions in the achievement of justice. A legal fiction is a device that is adopted precisely in order to bring about real and objective differences in the world.

Take, for example, the classic case of a legal fiction employed in Mostyn v. Fabrigas (1774) 1 Cowp. 161. Mr. Fabrigas sued the governor of the Mediterranean island of Minorca, then under British control, for trespass and false imprisonment. Since such a suit could not proceed in Minorca without the approval of the governor himself, Mr. Fabrigas filed suit in the Court of Common Pleas in London. Unfortunately, that court had jurisdiction only in cases brought by residents of London. Lord Mansfield, recognizing that a denial of jurisdiction in this case would leave someone who was plainly wronged without a legal remedy, declared that for the purposes of the action Minorca was part of London! Frederick Schauer observes, “That conclusion was plainly false and equally plainly produced a just result, and thus Mostyn v. Fabrigas represents the paradigmatic example of using a fiction to achieve what might in earlier days have been done through the vehicle of equity.”

Or consider the legal fiction that a ship is a person. The adoption of this fiction by U.S. federal courts in the early nineteenth century came about because of the efforts of ship owners to evade responsibility for violating embargo laws and carrying unlawful cargo, including slaves. When the ships were seized, the captains and crews passed on legal responsibility to the ship owners, who in turn produced innocent manifests while denying any knowledge of the illegal activity of the captains and crews. The courts responded by making the ship itself (herself?) the person against whom charges were brought. By the end of the century this fiction became the settled view of ships in maritime law, so that the “offending ship is considered as herself the wrongdoer, and as herself bound to make compensation for the wrong done.” According to Lind, the “ontologically wild” fiction of ship personification had profound and beneficial results, facilitating the condemnation and forfeiture of offending vessels and producing a more just, coherent, and workable admiralty jurisprudence.

Holding that God, in His role as supreme Judge, adopts for the purposes of our redemption the legal fiction that Christ himself had done the deeds in question in no way implies that our forensic justification before His bar is unreal. Thus, through the device of legal fictions we do, indeed, have some experience of how legal responsibility for acts can be imputed to another person who did not really do the actions, thereby producing real differences in the world outside the fiction.

What is at issue, then, is whether we have any experience of the replication of guilt in a person different from the person who did the act. The question is not the removal of the primary actor’s guilt but the imputation of guilt for his wrongdoing to another as well. So understood, we are not wholly without analogies in our justice system.

In civil law there are cases involving what is called vicarious liability. In such cases the principle of respondeat superior (roughly, the master is answerable) is invoked to impute the liability of a subordinate to his superior, for example, a master’s being held liable for acts done by his servant. On the contemporary scene this principle has given rise to a widespread and largely uncontroversial principle of vicarious liability of employers. An employer may be held liable for acts done by his employee in his role as employee or in close connection with his employment, even though the employer did not do these acts himself. Cases typically involve employers’ being held liable for the illegal sale of items by employees but may also include torts like assault and battery, fraud, manslaughter, and so on. It needs to be emphasized that the employer is not in such cases being held liable for other acts, such as complicity or negligence in, for instance, failing to supervise the employee. Indeed, he may be utterly blameless in the matter. Rather, the liability incurred by his employee for certain acts is imputed to him in virtue of his relationship with the employee, even though he did not himself do the acts in question. The liability is not thereby transferred from the employee to the employer; rather the liability of the employee is replicated in the employer. In cases of vicarious liability, then, we have the responsibility for an act imputed to a person other than the actor.

It might be said that in such civil cases it is not guilt that is imputed to another person but mere liability. This claim may be left moot, for vicarious liability also makes an appearance in criminal law as well as civil law. There are criminal as well as civil applications of respondeat superior. The liability for crimes committed by a subordinate in the discharge of his duties can also be imputed to his superior. Both the employer and the employee may be found guilty for crimes that only the employee committed. For example, in Allen v. Whitehead (1930) 1 K.B. 211, the owner of a café was found to be guilty because his employee, to whom management of the café had been delegated, allowed prostitutes to congregate there in violation of the law. In Sherras v. De Rutzen (1895) 1 Q.B. 918, a bartender’s criminal liability for selling alcohol to a constable on duty was imputed to the licensed owner of the bar. In such cases, we have the guilt of one person imputed to another person who did not do the act. Interestingly, vicarious liability is another case of strict liability, where the superior is held to be guilty without being found blameworthy, since no mens rea is required. He is thus guilty and liable to punishment even though he is not culpable.

The two cases above illustrate two principles governing the determination of vicarious liability: the delegation principle and the attribution principle. According to the delegation principle a person may be held liable for the criminal acts of another person to whom he has delegated the performance of certain duties required of him by law. According to the attribution principle a person, typically an employer, may be held liable for criminal acts physically done by another because in the eye of the law they are regarded as the employer’s acts. The delegation principle was operative in Allen v. Whitehead: “The acts of the manager and his mens rea (knowing that the women present were prostitutes) were both to be imputed to his employer, not simply because he was an employee, but because the management of the house had been delegated to him.” In Sherras v. De Rutzen, the actus reus of the bartender was attributed to the person holding the license to sell alcohol in the bar. Only the licensee can be the seller, and therefore even though the bartender poured the drinks and collected the money, it was the licensee who illegally sold the alcohol.

In cases of vicarious liability we thus have clear instances, wholly apart from the use of legal fictions, for the imputation of criminal wrongdoing and guilt to a blameless third party. We thus have a decisive defeater of the objection that there is nothing in our experience involving the imputation of sin and guilt to an innocent person.

Emmanuel Mwale disputes the relevance of vicarious liability to Christ’s vicarious atonement on the ground of various obvious disanalogies. We shall examine Mwale’s disanalogies in the sequel (chapter 11). For now it suffices to observe that Mwale conflates vicarious liability with what he calls “vicarious atonement” (= penal substitution). That is a fundamental mistake, which vitiates his objection. Vicarious liability is offered as an analogy to the imputation of sins, not to penal substitution. (Later we shall consider whether the analogy can be extended to approximate penal substitution.) Disanalogies between vicarious liability and penal substitution do not undermine its analogy to imputation of sins.

Thus, the vicarious liability that exists in the law suffices to show that the imputation of our sins to Christ is not wholly without parallel in our experience. In the law’s imputation of guilt to another person than the actor, we actually have a very close analogy to the doctrine of the imputation of our sins to Christ.

Imputation of wrongdoing or guilt to a blameless party is thus a widely accepted feature of our justice system. Now sometimes the ascription of vicarious liability is denounced as unjust, though tolerated as a sort of necessary evil because of practical considerations arising from the human impossibility of administering a system of pure justice. That serves only to reinforce the point made above, that the prima facie demands of retributive justice can be outweighed by greater goods. But when would the imposition of vicarious liability be even prima facie unjust? Arguably, it could be only in cases in which it is nonvoluntary. Consider a case of voluntary corporate vicarious liability. Ormerod and Laird note that in cases of corporate vicarious liability it is unclear whether it is necessary for a conviction that an individual controlling mind be identifiable. This leads them to ask, “Can a company waive the need to establish that fact by pleading guilty on the basis that, although no controller was identifiable, the corporation is prepared to accept liability? There would seem no reason in principle why not.” Similarly, if an employer knows that the exaction of justice’s demands from his employee would ruin him and out of compassion for his employee and his family wishes to act mercifully by voluntarily being held vicariously liable for his employee’s wrongdoing, how is that unjust or immoral? In the same way, if Christ voluntarily invites our sins to be imputed to him for the sake of our salvation, what injustice is there in this? Who is to gainsay him?

Whether we think of imputation as God’s adopting the legal fiction that Christ committed the sins for which we are condemned or as God’s holding Christ vicariously liable for our wrongdoing, Christ is as a result of imputation legally guilty before God, that is, legally liable to punishment. In this light we can see how confused is Reformed theologian Oliver Crisp’s characterization of penal substitution as a forensic fiction:

Crisp’s first sentence misrepresents the majority tradition among penal substitution theorists, who do not take a fictionalist view of imputation, much less of penal substitution. On the view that Christ is vicariously liable for our sins, Christ’s being declared legally guilty is no more fictitious than an employer’s being held legally guilty by the court for wrongful acts done by his subordinate. Even if we take the view that the imputation of our sinful deeds to Christ is a legal fiction adopted by God, it does not follow that God treats Christ as if he were guilty of our sins. Rather, in virtue of the adoption of the legal fiction that Christ had done those deeds, Christ is legally guilty of those sins before God’s bar, just as a ship is legally guilty of violating embargo laws in virtue of the court’s adopting the fiction of ship personification. Similarly, pace Crisp, the redeemed sinner is not treated merely as if he were righteous; rather, in virtue of the imputation of Christ’s obedience to him, he is legally righteous.

The view that Crisp describes in his last two sentences is, in fact, more akin to the Augustinian/Grotian non-imputative view of penal substitution than to the Reformers’ view, which involves imputation of sin or righteousness. But even on the Augustinian/Grotian perspective, there is nothing fictitious about Christ’s suffering the punishment we deserved or God’s pardon of us on such grounds, and so the appellation “forensic fiction” is misleading.

Part of the difficulty here, I think, is that Crisp takes guilt to be the property of having committed a crime, a property that Christ did not exemplify, since he committed no crimes. While this understanding of guilt is in line with the opinions of many courts, it is problematic, as I shall argue in chapter 12, for on such an understanding our guilt could never be removed, in contradiction to Scripture (Ps 51:1, 9).

In sum, the objection to penal substitution based on the justification of punishment is insufficiently nuanced. (1) It applies only to theories that affirm that Christ was punished for our sins. (2) It makes unwarranted assumptions about the ontological foundations of moral duty independent of God’s commands. (3) It presupposes without warrant that God is by nature an unqualified negative retributivist. (4) It overlooks the possibility that the prima facie demands of negative retributive justice might be overridden in Christ’s case. (5) And it takes it for granted that Christ was legally innocent, in opposition to the doctrine of imputation. Its failure in any one of these respects is sufficient for the argument’s defeat. It thus fails to show any injustice in God’s punishing Christ in our place.