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The heart and grace in Saint Augustine. Distinction and correspondence
by Pietro Calogero
District Attorney of the Civil and Criminal Court of Padua
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.
***
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.
***
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.
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”.
***
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 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.
***
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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