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ENCOUNTERS
from issue no. 12 - 2007

The heart and grace in Saint Augustine. Distinction and correspondence



by Pietro Calogero


Pietro Calogero

Pietro Calogero

The invitation to speak about Saint Augustine in the presence and along with His Eminence Cardinal Scola, Patriarch of Venice, with the Rector of our University, Professor Vincenzo Milanesi, and with Monsignor Giacomo Tantardini – by now the irreplaceable Virgilian guide on every voyage into the Augustinian universe – is for me an acknowledgment of esteem, for which I thank the well-deserving organizers and, first among them, the many young people who trust that from encounters like these they will draw idealistic urges and reasons for commitment, the better to build their own future.

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The argument that I shall strive to develop stands in thematic continuity with those, developed in this hall on two previous occasions, concerning the analysis of the constituent elements of Augustine’s conception of earthly justice.
On the second occasion, in March last year, I reached the conclusion of the extraordinary modernity of the conception mentioned, based on the acknowledgment of the “ius suum unicuique tribuendum”, that is of the subjective right to attribute to everyone, not through a unilateral act of will (voluntas or auctoritas) of the State – as was the case in the classic Roman conception of justice handed down to us by the jurist Ulpian – but by pact or agreement on right (iuris consensus) that binds individuals and the State and the strength of which imposes on the latter that it recognize and respect the former.
Not only the pact element of law, expressed by the phrase iuris consensus, is – according to Augustine – constituent of the notion of justice, but it is also so of the notion of people and of that of State. From which two important corollaries derive: that, lacking the founding pact of rights, not only is justice not given but also the people as plurality of persons linked by the same interests recognized and guaranteed by the State loses substance; and the latter also fades because it does not exist if it is not founded on the recognition of individual rights and hence on justice.
The fundamental idea that holds together, like a powerful conceptual glue, these three entities is of amazing fertility, so much so as to have been an object of study and theoretical systemization in the centuries that followed, especially in Enlightenment thinking and modern constitutionalism.
To say, in fact, that the State falls if the rights of the person are not recognized by politics, if, that is, the iuris consensus is excluded from it, means one thing only: that those rights are untouchable and inviolable and the State cannot deny them without causing that break in the system that, for the constitutional charters of the European liberal regimes of the 19th and 20th centuries (our Italian Constitution included), would occur when the norms that proclaim the rights and the fundamental freedoms of the person were to be subject to revision.

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Coming to today’s topic, I observe that Augustine’s modernity emerges sharply also when, in several places in his works, he faces problems particular to the justice of his time such as those relating to the making of judgments, to the moral and cultural requirement of judges, to the application of punishment and the treatment of culprits, to capital punishment and to torture: problems at the center of which he always and invariably sets the person, with the dignity that comes to him/her from being imago Dei, even if guilty of wrongdoing and crimes, and with the insuppressible necessity of its amendment already in the City of the World and therefore before the temporal span of its existence closes.
Reflecting on the uneliminable perversity of human society, Augustine begins realistically by noting that trials, judges and punishment are necessary both so as to assure order and peace in society and to render the reformation of the culprit possible.
Under this latter aspect, leaving the guilty unpunished is, for him, a cruelty (“disciplinam qui negat crudelis est”) because it deprives the wrongdoer of the possibility of reforming himself. Analogously, to privilege a culprit because of his poverty is not a true act of mercy, in that impunity leaves the poor man prisoner of his iniquity.
Under the first aspect, the aim of social conservation appears so fundamental to him that judicial errors and abuses of the law cannot remove validity from the action of the judge and justify a devaluation of the legal organization of human society.
Coming to today’s topic, I observe that Augustine’s modernity emerges sharply also when, in several places in his works, he faces problems particular to the justice of his time such as those relating to the making of judgments, to the moral and cultural requirement of judges, to the application of punishment and the treatment of culprits, to capital punishment and to torture
It is of the ineluctable order of reality that human judgment be relative and at times mistaken: but that does not justify any resistance to the judge nor the delegitimation of his workings, of which mankind and society have need for its own emendation (the former) and for its own conservation (the latter). It is only a matter, when these cases occur, of applying remedies that, by improving the qualities of the judge and guarantees of the trial, restrict the room for abuses and mistakes.
Dwelling on the characteristics of punishment, Augustine states that, even if it is a necessary remedy, it must be proportionate to the guilt of the culprit. Consequently, it must not have the character of revenge nor of an uncontrolled and exorbitant emotional outburst, but of an action of reason commensurate with the twofold aim of social conservation and reformation of the guilty. The justice of punishment lies in proportionality.
Addressing the judge who is called upon to judge his like, Augustine exhorts him never to lose sight of justice in applying the law: “Non reprehenderes iniquitatem nisi videndo iustitiam/You should not chastise iniquity without concern for justice”. And he adds: “Reprehensor iniquitatis esse non potest qui non cernit iustitiam, cui comparatam reprehendat iniquitatem/The chastiser of iniquity cannot be one who does not discern justice and does not shape the chastisement of iniquity according to it”.
To judge with justice and humanity is a duty of the judge, the implementation of which demands certain requisites:
• that the judge be capable of judging himself before judging others, professing humility, and of maintaining a solid link with his own conscience: indeed, according to Augustine, the capacity of self-judgement and that of remaining faithful to one’s own conscience are conditions of the rectitude of every human judgment;
• that he be gifted with good sense (ratio);
• that he possess legal knowledge (eruditio);
• that he be gifted with independence (libertas);
• finally, that he be alert to the task that society entrusts to him, that Augustine sets out in the warning: “Peccata persequatur, non peccantem/let [the judge] pursue the sins, not the sinner”.
We thus come to the nodal point in Augustine’s conception of judgment and of punishment that, with unprecedented force, not only opens up to mankind but subordinates all to the need for mankind’s redemption in life, which does not exclude but indeed entails – as we have seen – the absolute necessity of its just punishment.
The humanization of punishment and judgment is, in my opinion, one of the most grandiose messages that the Christianized ancient world passed on through the centuries – with its decisive reworking in the Enlightenment thinking of the 18th century – to the conscience and culture of contemporary society, and this message has become the untouchable legacy of the doctrine of civil rights and foundation of the solemn declarations in international conventions and constitutional charters of a liberal sort, among them the Italian Republican Constitution now in force.
Augustine gives a rational explanation of why, according to him, the sentence must extirpate the sin and not destroy the sinner. The former, in fact, is the work of man; the latter is the work of God. It follows that the sentence must aim to ensure that “pereat quod fecit homo, liberetur quod fecit Deus/ what man made die, what God made be freed – or saved”.
He even goes further when, sublimating the spirit of Christian charity, he exhorts that “the guilt must be cancelled and the man loved/diligite homines, interficite errores”. “Non est igitur”, he explains, “iniquitatis sed potius humanitatis societate devinctus, qui propterea est criminis persecutor, ut sit hominis liberator/He has no tie with iniquity but is rather an example of humanity who is persecutor of the sin in order to free [to save] the man”.

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From the preceding formulation – that Augustine made his own and publicly backed, thereby earning himself bitter criticism, mistrust and even hostility – two most important consequences follow.
The first consequence is condemnation of the death sentence, judged incompatible with the goal at which human justice aims.
If the goal of the latter is to prosecute the crime so that the culprit may reform and if only in this life is it possible to reform, capital punishment deprives the culprit of such possibility and ineluctably consigns him to the eternal condemnation. It is therefore illegitimate, as well as unjust, because it erases the reformative role that the punishment should always possess.
As well as in Epistola 153, the stance against capital punishment is reiterated by Augustine in chapter 8 of Sermo XIII, in this impassioned peroration: “Noli ergo usque ad mortem, ne cum persequeris peccatum, perdas hominem/Ensure that the sentence of the man does not go as far as death, lest it happen that to punish his sin you lose the man”; “Noli usque ad mortem, ut sit quem poeniteat: homo non necetur, ut sit qui emendetur/Not punishment unto death [...] : the man is not to be killed, so that he may emend himself”.
The second consequence of the humanitarian and re-educational vision of punishment in Augustine is the steadfast and heartfelt disapproval of torture, that is of all those acts of manipulation of the body and the mind of a person through which strong physical or mental suffering is intentionally inflicted “ad eruendam veritatem”, that is to obtain information or confession of the real or presumed crimes that are the object of investigation
The death of the sinner – Augustine clarifies again in the place last cited – renders vain the reformation of the culprit and cancels the goal at which human justice must aim.
It would be as if a doctor, in order to cure a sick man, decided to kill him. But the purpose of medical skill is the health of the sick, not death, and therefore the purpose of human courts is not the end of the man but of the sin.
The second consequence of the humanitarian and re-educational vision of punishment in Augustine is the steadfast and heartfelt disapproval of torture, that is of all those acts of manipulation of the body and the mind of a person through which strong physical or mental suffering is intentionally inflicted “ad eruendam veritatem”, that is to obtain information or confession of the real or presumed crimes that are the object of investigation. These acts that, in violating the dignity of the person and the presumption of innocence of the accused, were dominant in the legislation and penal justice of the ancient world and not rarely reached such levels of cruelty “as to bathe the face of the spectator in a river of tears/rigandum... fontibus lacrimarum”, are branded by Augustine as inhuman and inconsistent with justice.
Quoted by Pietro Verri in his Osservazioni sulla tortura of 1777 and by another famous spokesman of Enlightenment culture, the German philosopher and jurist Christian Thomasius, in his Dissertatio de tortura of 1705, Augustine denounces in book XIX, chapter 6, of the De civitate Dei, with the anguished affliction of the man and Christian, the legal and human aberration of “torquere... accusatum/of twisting [the limbs and mind] of the accused”, in a context in which, while doubt remains whether he be guilty or innocent, he is submitted to a “most certain spasm” for an “uncertain crime” because of the difficulty of plugging with proof the gap of doubt that renders the sentence of condemnation impossible. “Cum quaeritur utrum sit innocens cruciatur, et innocens luit pro incerto scelere certissimas poenas, non quia illud commisisse detegitur, sed quia commisisse nescitur, ac per hoc ignorantia iudicis plerumque est calamitas innocentis”.
How necessary Augustine’s ideas are to the conscience and efforts of our contemporaries is attested by the debate that has recently developed in the international arena – and of which only a fleeting mention can be made here – on the one hand for a moratorium in executions in expectation of their definitive abolition in the 192 member countries of the UN, approved by a large majority two weeks ago by the Human Rights Commission of that organization after a laudable proposal from Italy and the other countries of the European Union; on the other, for the legalization of torture, formally banned in nearly all the countries of the international community since the last decades of the 18th century yet reproposed in the United States after the events of 11 September in the framework of the no-holds-barred defense against the asymmetric war triggered by terrorism.

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I come to my conclusion.
All the elements of modernity that have so far been brought out in the theoretical conception and in the practical application of earthly justice in Saint Augustine have as their center of gravity the person understood as inwardness, self-conscience, image of God, point of encounter of finite and infinite, immanence and transcendence, dwelling-place of truth conceived as synthesis of all the positive values that the will and the intellect are capable of uncovering there.
In contemporary society, whose fundamental problem in every latitude is the crisis in human values in almost every sphere (of morals, law, politics, the economy, etc), the call of Saint Augustine to abandon the outward and ephemeral, to return into ourselves to find again the truth that dwells there, to reclaim all the good, genuine and non-transient things that we have largely misplaced and that nevertheless continue to exist in the depth of our conscience, in other words the appeal engraved in the famous phrase of chapter 39 of the De vera religione: “Noli foras ire/do not go outside,/in te ipsum redi,/return into yourself,/in interiore homine habitat veritas/the truth dwells within man”, constitutes perhaps the surest and most effective anchor of salvation of which mankind today is truly in need.
Should the appeal be received at least in its essential points and should everyone commit themselves straight away, and then day by day, even struggling and suffering, to a dialogue without pretence with the deepest part of themselves in the discovery of the founding values that are rooted there, that are no different – take note – from those that live in the conscience of one’s fellow men (from respect for freedom, for the life and dignity of the person – of any person – to the acknowledgment of the needs of the humble, of the marginalised and of the defenseless, to the practice of solidarity, of charity, of tolerance and of acceptance), not only the life of every one of us but that of the whole of society cannot help but be better and will be assured of peace, and of a future.


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