The Subject of Substitution
De satisfactione appears to have a three-part structure, each section circling closer and closer to the problem of sacrifice. The first part, chapters 1 through 3, deals primarily with the governmental theory of the Atonement: God, acting as rector , relaxes the penalty due to sin but wills the death of Christ as an exemplary deterrent. But this fairly clear-cut application of jurisprudence to theology is followed by a more problematic section on substitution—that is, the ethical and legal grounds for punishing an innocent person for someone else's crime. Socinus found the whole business of vicarious punishment morally revolting, to which Grotius responds that "it belongs to the essence of punishment that it be inflicted on account of sin; but it is not likewise essential that it be inflicted on the one who sinned" (313). His arguments for this rather startling proposition fall into two main classes. He first maintains that when a "mystical conjunction" exists between persons, one may bear the punishments due to the other; hence, children may be punished for the sins of their parents, and the people for those of their prince (312).
On account of the deed of Cham, Canaan was accursed (Gen. 9:25). On account of the deed of Saul, his sons and grandsons were hung with God's approval (2 Sam. 21:8, 14). On account of the deed of David, seventy thousand perished, and David exclaims "I have sinned and committed iniquity; but these lambs, what have they done?" (2 Sam. 24:15, 17).... In the Greek cities it was customary to kill the children of tyrants along with the tyrants themselves.... It can be seen from these examples that the conjunction of persons alone, without any consent, sufficed for punishment. (312–14)
The second argument rests on legal precedent: namely, that the Greeks and Roman generally allowed substitution. In Roman law, sureties could be mulcted for debtors and thieves (313); all ancient peoples justified the killing of hostages; both Greeks and Romans required the life of the surety (vas ) if he failed to produce the guilty party in court (314); and the Roman legions practiced decimation, where soldiers could be executed not only for their own wrongdoing but for a crime committed by their fellow soldiers as well (315). Hence, Grotius concludes, neither God, nature, nor the consensus gentium consider substitute punishment unjust (315).
There is, however, as Grotius admits, a problem with this argument: the Corpus juris civilis explicitly forbids the substitution of corporal punishments, the only case directly relevant to the Crucifixion.[44] According to
Justinian's text, although a surety could be forced to pay another's debts or restore the value of stolen property, he could not be physically punished for someone else's crime (313). Likewise, Roman law also denied that children could inherit their parents' punishments (314).
Grotius attempts to mitigate the force of these counterexamples by relocating the moral basis of substitution in the individual's willingness to be sacrificed for another rather than in the mystical unity of the group. He thus points out that all ancient law, including Roman law, allowed the substitution of corporal punishments if the victim consented, even if the consent were only implicit; the Romans, for example, had no problem with killing hostages.[45] But the biblical examples of substitution do not involve the victim's consent; rather, as Grotius himself observes, they presuppose only the notion of a mystical conjunction between the members of a family or community.
More difficulties arise from the fact that Christian jurisprudence also prohibits one person from assuming another's corporal punishment. Grotius does not specify his legal sources here, apparently considering the prohibition too well known to require documentation. He simply remarks that, unlike ancient peoples, Christians cannot legally or morally volunteer to lay down their lives for another (314 15).[46] If the biblical examples tend to pull Grotius's rationalized account of legal, consensual substitution back toward murkier notions of mystical bodies, this prohibition only deepens the rift between substitution and moral rationality by eliminating even consensual substitution from Christian (and therefore culturally accepted) practice. The arguments in these chapters seem finally to expose what they were intended to eliminate: the incommensurability between the logic of substitution and normative legal principles.
Taken in isolation and at this historical distance, Grotius's arguments for penal substitution seem merely dubious. The text does not inform the reader whether its claims are simply an ad hoc response to Socinus (the typical Renaissance rhetorical strategy of attacking with whatever ammunition comes to hand and hoping something hits the target) or whether they have a historical context, whether they belong to a broader discussion, which might illuminate their implications and point. Like most Renaissance writers, Grotius rarely notes his debts to contemporary authors. The chapters on substitution in De satisfactione mention a variety of Classical sources, principally Plutarch's "On the Delays of the Divine Vengeance," which gives Grotius's arguments for the mystical ties of kin and community that justify punishing one member of a family or state for
the crimes committed by another. But since an ancient source is still not a context, these borrowings do not explain very much.
The search for context takes us back to Roman law—and, interestingly, to England. Grotius's most important predecessor in the field of international relations was the Oxford regius professor of civil law Alberico Gentili, an Italian Protestant, whose major work, De jure belli , appeared in three parts between 1588 and 1589 and then in a single-volume revised version in 1598. Grotius knew Gentili's work prior to writing De satisfactione since he cites him in De jure praedae , composed around 1604. And De jure belli contains a defense of penal substitution. Almost all of Grotius's arguments, including the references to Plutarch, appear in Gentili, who is, of course, not discussing the Atonement but the rules of warfare. Gentili maintains that Roman law and the laws of nature allow children to be punished for the sins of their parents because the family forms a mystical body in which the child is a part of the parent. Likewise, a nation may be punished for wrongs committed centuries earlier since states "are in a certain sense immortal."[47] Furthermore, Gentili claims, it is permissible to kill hostages, even if they are innocent, which, he notes, "seems even to me cruel" but is nevertheless "both just and expedient.... Every great principle has some element of injustice, in which the loss of the individual is compensated by the public advantage."[48]
In 1604 Gentili took up the problem of penal substitution again in a commentary on the lex Julia maiestatis (title 48.4 of the Digest ), which deals with the penalties for treason. Chapter 7 of this work covers the permissibility of punishing children for their father's crimes, chapter 9 the legal and moral grounds for transferring penalties from the responsible party to someone else. The arguments, although more technical, follow those found in De jure belli . In particular, Gentili emphasizes that substitution presupposes a "conjunctio" between the offender and the victim, since "one person cannot be held for another ... if he is wholly other." But children, who are "inseparable parts of their parents"—as well as spouses, kin, friends, and fellow citizens—participate in a corporate identity that, in turn, sanctions punishing one member of the conjunctio for the offenses committed by another member.[49] In crimes involving treason, civil revolt, and warfare, corporal as well as monetary penalties become transferable.[50]
Gentili was not the only Renaissance thinker concerned with the legality of vicarious punishment; the killing of hostages and the heritability of delict seem to have been standard topics in international law. What distinguishes Gentili is that he was apparently the only Renaissance jurist to
sanction penal substitution. The great Spanish theological jurists Domingo de Soto and Francisco de Vitoria, whose works Grotius also knew, state unequivocally that neither hostages nor the children of an enemy can be killed, even if the welfare of the state depends on it.[51] Gentili himself makes it perfectly clear that most Classical authorities disallowed substitution. The 1589 version of the third book of De jure belli presents the issue in utramque partem , citing the opinions of Arrian, Cicero, Josephus, and Seneca against any form of vicarious punishment.[52] And in De jure belli ac pacis (1625), Grotius himself argues emphatically that "it is impossible that an innocent person should suffer for another's crime."[53]
But Grotius then has to reconcile this theorem with the Old Testament passages where God threatens to punish children for the sins of their fathers; De jure belli ac pacis sidesteps the apparent contradiction by conceding that God "has full sovereign dominion over both our lives and possessions, as being his gift, which he may take away from any one without giving any reason and whenever he pleases.... But such acts of God should not be imitated by men."[54] That is, by 1625 the project of De satisfactione has collapsed: divine justice is not the same as human justice; God is no longer viewed as the rector of the universe, entrusted with enforcing or mitigating intelligible laws, but as its dominus , the owner of human property which He may dispose of at his pleasure. One catches a glimpse here of one of the issues threading through Renaissance discourses of substitution and sacrifice. They grapple with Protestant voluntarism, with the problematic fissure between the dictates of right reason and divine will. Sacrificial narrative, as will become evident when we turn to Buchanan's Jephthah , broods on the heteronomous God of Scotus and Calvin.
The problem of divine heteronomy belongs to a later chapter. At this point, what has become clear is that the analysis of substitution in De satisfactione incorporates contemporary debates in international law. As in its opening chapters on the rector and relaxation of punishment, this juridic context profoundly affects traditional theological language by locating the structures of redemption in a discursive field composed of decimations, the obligations of hostages and sureties, treason laws, and related social facts. It thus represents penal substitution not as a unique and mysterious divine act but as a rather common ancient practice—but not necessarily a morally defensible practice. Most theologians and jurists considered it unjust. The arguments that Grotius takes from Gentili thus provide a rather fragile and contested peg on which to hang one's theology.
Moreover, the fact that penal substitution was not generally practiced or permitted in the Renaissance alters the logical function of Roman law in
De satisfactione . Inasmuch as Roman law allows substitution under certain conditions, it ceases to function as a universally valid theoretical structure. Instead, Grotius seems to imply that both ancient history and Roman law serve less as normative paradigms than as evidence for an archaic code: the Atonement becomes historically intelligible insofar as one grasps that the New Testament presupposes a cultural milieu where penal substitution was in fact normal legal practice. Ancient customs and codes thus explicate theology because they supply documentary evidence for the moral logic of premodern societies and not because they state universally valid principles. Grotius's argument, that is, hinges on the duplex sensus of law.
In the chapters on substitution one thus finds for the first time the listing of alien customs that reappears in the final discussion of blood sacrifice:
I am particularly astonished by the fact that Socinus says that the laws and customs of all peoples and ages proves that the corporal punishments owing to one person cannot be paid by another. For, according to Marcellinus, the ancient Persians held that if one person committed a crime his whole kin were to be put to death. The Macedonians condemned the blood-relatives of traitors, as Curtius relates. Dionysius of Halicarnassus and Cicero report that in the Greek cities it was customary to kill the children of tyrants together with the tyrants themselves. These practices, indeed, ought not be approved, but they nevertheless demonstrate that [Socinus's claim] concerning the consensus of all peoples is not everywhere true.... Plutarch writes that the Thessalians once killed 250 hostages. According to Livy, the Romans, although not in any immediate danger, slew three hundred Volscians and hurled the Tarentines from the Tarpeian rock. (314)
The argument is rather ambiguous; it apparently sets out to show that penal substitution is not impermissible since it was allowed by the ancient consensus gentium . But the acts described in this passage are horrific rather than exemplary, and Grotius's explicit disapproval of them blocks the inference from practice to principle. The ancient laws do not constitute a normative theoretical framework but instead give access to earlier notions of persons and ideologies. They imply a historicization of theory, in which the legal structures underlying substitution suggest a model for the Atonement, but now a historical model, a theory of archaic jurisprudence.
The intuition of the archaic reciprocally implies the consciousness of modernity. "Archaic" does not simply mean old, since some beliefs and practices—democracy, the nuclear family—existed both in the past and currently; rather, the archaic is the not-modern: hurling hostages off of
rocks, wiping out the family of the condemned, and so on. This distinction between modern culture and archaic civilizations rarely occurs during the Renaissance, which tended to venerate the remote past as the fons et origo of its own culture. But the distinction can be felt in Grotius. The legal and historical instances of substitution he records trace the outlines of an earlier era possessing fundamentally different laws and moral intuitions.[55]
Different in what sense? Grotius does not shrink from penal substitution on humanitarian grounds; he does not object to its cruelty. Instead, he observes that modern Western societies no longer practice penal substitution because they do not accept that a person has the right to control his or her own body (jus sibi in corpus suum [315]):
Because [the ancients] believed that a person had no less power over his own life than over other things (as the oft rehearsed right to commit suicide, found among Greek, Romans, and other peoples, teaches) ... it plainly follows that they believed they could validly offer their lives as ransom no less than other things. (314)[56]
Substitution and suicide—assertions of one's dominium over the body—mark the break between archaic and modern cultures. The sacrifice of Christ is inimitable because it is now illegal.[57] This seems peculiar. If the claim to have power over one's body defines the archaic, it also looks at first glance like the kind of assertion typically associated with post-Lockean theories of individual rights. Locke, like Grotius, understands selfhood as a "forensick term," specifying "in what circumstances societies or civil combinations of men have in fact agreed to inflict evil upon individuals, in order to prevent evils to the whole body from any irregular member."[58] But the sort of jus over one's own body that Grotius ascribes to archaic societies has very little to do with possessive individualism. Locke's forensic personality resides in the private recesses of individual memory; for him, punishment presupposes continuity of consciousness over time—Locke's definition of personal identity—since punishment is just only when the accused can remember his offense.[59] For Grotius, however, the liability to punishment in sacrificial cultures derives not from self-awareness but from the subordination of the individual to the group; substitution depends on "a certain conjunctio between the one who sinned and the one punished" (313). Hence, according to Grotius, the archaic jus granting the individual a right to punish his or her body, even by death, does not presuppose private ownership of one's body, but the opposite. Grotius's sacrificial victim belongs to the suprapersonal compactness of the conjunctio .
Grotius's Spanish sources make the correlative point. De Soto argues against substitution on the ground that while "a part (membrum ) does not have an existence distinct from that of the whole ... a person, although he may be part of a republic, is nevertheless a subject (suppositum ) existing for himself."[60] Hence, Molina and Vitoria both maintain that everyone has the right to prevent an innocent person from being killed, even if he does not wish to be saved.[61] Sacrifice, even voluntary sacrifice, becomes impermissible because it violates the inalienable right of the individual: the right to exist as an autonomous subject rather than merely part of a communal body.[62] Conversely, as Grotius acknowledges, substitution entails corporate identity—a collective selfhood that, in Renaissance jurisprudence as in late Roman law, normally survives only in economic transactions, so that one may ransom another's debts but not his life (313). The joint stock company replaces the mystical conjunctio .
But Grotius's argument requires corporate identity as the ethical ground for penal substitution. He thus searches outside the law for Classical precedent, reinterpreting the story of Damon and Pythias, for instance, not as an exemplum of true friendship—the standard Renaissance reading—but as evidence for the ancient practice of executing sureties if they failed to produce the accused in court (314). For Grotius, the story witnesses to the archaic solidarity of the group—the conjunctio —in which one member can substitute for another. To the extent that persons are regarded as parts of a whole, they may offer their lives for that whole, whereas insofar as a person is viewed as an autonomous moral subject coram Deo , he has an obligation to preserve his life, to stand sentry where God has placed him, as Spenser would say. Expelled from the mystical bodies of the family and state, one no longer possesses the right to be a victim. Hence, Grotius's own treatises on international law make individual self-preservation the foundational imperative of rational ethics—and this postulate, adopted by Selden, Hobbes, and Pufendorf, becomes the basis of seventeenth-century moral philosophy.[63] The modern individual, as we shall see in more detail later, is thus defined in terms of alienation from sacrifice.