Is Penal Substitution Unsatisfactory?

1. Introduction

In my book The Atonement I have argued that any biblically adequate atonement theory must include the notion of propitiation, that is to say, the appeasement of God’s just wrath against sin.[1]  The source of God’s wrath is His retributive justice,[2] and so appeasement of wrath is a matter of the satisfaction of divine justice. Biblically speaking, the satisfaction of God’s justice takes place, not as Anselm thought, through compensation, but through punishment.[3]  In the view of the Protestant Reformers the just desert of those outside of Christ is borne in their proper persons, whereas Christ bears the just desert of those who are united with Christ by faith, a view that has come to be known as penal substitution.[4]

Penal substitution in a theological context may be defined as the doctrine that God inflicted upon Christ the suffering which we deserved as the punishment for our sins, as a result of which we no longer deserve punishment. Notice that this explication leaves open the question whether Christ was punished for our sins.  Some defenders of penal substitution recoil at the thought that God punished His beloved Son for our sins.[5]  Even in their ringing defense of penal substitution, Steve Jeffery, Michael Ovey, and Andrew Sach do not define penal substitution in such a way as to imply that Christ was punished in our place.  Rather they offer the subtler explication: “The doctrine of penal substitution states that God gave himself in the person of his Son to suffer instead of us the death, punishment, and curse due to fallen humanity as the penalty for sin.”[6]  If we take the definite description “the punishment due to fallen humanity” referentially,[7] it refers to the withdrawal of God’s fellowship and blessing.[8]  This Christ suffered on the cross instead of us.

On such an understanding, God afflicted Christ with the suffering which, had it been inflicted upon us, would have been our just desert and, hence, punishment.  In other words, Christ was not punished, but he endured the suffering which would have been our punishment had it been inflicted on us. We should not exclude by definition such accounts as being penal substitutionary theories, since Christ on such accounts suffers as our substitute and bears what would have been our punishment, thereby freeing us from punishment.[9]

An attractive feature of penal substitutionary accounts according to which Christ was not punished for our sins is that they enable the Christian theologian to avert so easily the standard objections against both the coherence and justice of penal substitution.[10] For on such accounts it is false that God punished an innocent person for our sins, an assumption which lies at the root of the standard objections.  Even Socinus recognized that God might inflict non-punitive harsh treatment on an innocent person,[11] Job being the paradigmatic biblical example, and the discussion of such treatment takes us out of the theory of punishment and the philosophy of law and into the familiar concerns of theodicy.

Unfortunately, a penal substitutionary theory which does not affirm that God punished Christ for our sins seems less promising when it comes to a third objection to penal substitutionary theories, namely, that Christ’s penal substitution fails to satisfy the demands of God’s justice.  Penal substitutionary theories hold that the satisfaction of divine justice, whether by a necessity of God’s nature or by a free choice of God’s will, is a pre-condition of God’s pardon and salvation of sinners.  Here the superiority of a theory involving Christ’s punishment emerges over penal substitutionary theories according to which God does not punish Christ.  For it is hard to see how divine justice could be satisfied by Christ’s voluntarily taking suffering upon himself if it were not a punishment meted out for our sins. If the punishment for an offense were, say, deportation, how could justice be satisfied by someone else’s voluntarily going or even being sent into exile unless it were intended to be a punishment for the wrongdoing in question? If the suffering or harsh treatment is not punishment, then the demands of retributive justice seem to go unsatisfied.[12]

Socinus objected, however, that neither could God’s punishing Christ in our place possibly meet the demands of divine retributive justice.[13] For punishing another person for my crimes would not serve to remove my liability to punishment.  How, then, can penal substitution satisfy God’s justice?

2.  The Alleged Unsatisfactoriness of Penal Substitution

I have never seen this objection to penal substitution carefully formulated. But I think that the following formulation neatly captures the objection:[14]

1. Unless the person who committed a wrong is punished for that wrong, divine justice is not satisfied.

2. If God practices penal substitution, then the person who committed a wrong is not punished for that wrong.

3. Therefore, if God practices penal substitution, divine justice is not satisfied.

It follows that penal substitution is thus unsatisfactory.

3. Responses to the Alleged Unsatisfactoriness of Penal Substitution

3.1 Meta-Ethical Contextualization

In order to address the question of the satisfactoriness of penal substitution adequately, we must view it within the context of an over-arching meta-ethical theory about the foundation of moral values and duties. Who or what determines what satisfies the demands of justice?  The classic proponents of penal substitutionary theory all held to a view of God as at once the supreme Legislator, Judge, and Ruler of the moral order. Contrast the U.S. separation of powers, according to which Congress defines crimes and their punishments, the judiciary interprets and applies those laws and punishments, and the executive holds the power of pardon.[15]  In God’s case all these powers are vested in the same individual.  So if He determines that the demands of justice are met by Christ’s punishment, who is to gainsay Him?  He is the source of the moral law, its interpreter, and its executor.  He Himself determines what meets justice’s demands.  So what is the problem?

The above response might seem to imply an unsettling account of satisfaction as so-called acceptation.  John Duns Scotus suggested that God might have accepted any sacrifice He pleased as satisfactory for the demands of His retributive justice (Distinctiones in quatuor libros Sententiarum 3.19.1).  Defenders of penal substitution have not been sympathetic to acceptation accounts.[16]  For then God might have accepted as satisfactory the death of any ordinary human being or even an animal.  But then it is not true, as Scripture affirms, that “it is impossible that the blood of bulls and goats should take away sins” (Heb 10.4).

How might acceptation be avoided?  Retributive theories of justice require not merely that the guilty deserve punishment but also that the punishment be proportionate to the crime if justice is to be satisfied. The objector to substitutionary satisfaction would find a sympathetic ear among penal substitution theorists, if he affirmed that retributive justice, as we know and understand it, is essential to God’s nature and so could not be arbitrarily satisfied by divine fiat. This would preclude God’s justice’s being satisfied by the offering of mere animal sacrifices.  But then the question persists: if retributive justice, as we know and understand it, is essential to God, how can the punishment of Christ satisfy the demands of retributive justice?

3.2  Penal Substitution and our Justice System

Perhaps some progress can be made toward answering this question by considering whether any analogies to penal substitution exist in our secular justice system. If something like penal substitution appears in our justice system, that would lend credibility to the claim that it can be satisfactory of divine justice’s demands. After all, if we are talking about retributive justice as we know and understand it, then divine justice must be significantly analogous to enlightened human justice systems. Otherwise, the defender of penal substitution can just assert that God’s essential retributive justice is quite unlike our understanding of retributive justice, problem solved.

The Anglo-American system of justice, in point of fact, does countenance and even endorse cases which are significantly analogous to substitutionary punishment. David Lewis claims that although we do not think that a criminal offender’s friend can serve his prison sentence or death sentence, we do believe that a friend can pay a criminal’s fine if both agree to the arrangement. “Yet this is just as much a case of penal substitution as the others.”[17] Lewis rejects the view that these penalties are not really punishments.  Some of these fines, Lewis remarks, are just as burdensome as prison sentences and convey the same opprobrium. If we were single-mindedly against penal substitution, Lewis says, then we should conclude that fines are an unsatisfactory form of punishment, that such punishment, in other words, fails to satisfy justice’s demands.  But we do not.[18]  Lewis draws the lesson that both secularists and Christians agree that “penal substitution sometimes makes sense after all, even if none can say how it makes sense. And if both sides agreed to that, that is some evidence that somehow they might both be right.”[19] 

We can press the analogy even further. For in criminal law there are cases involving vicarious liability for criminal acts.  In such cases the principle of respondeat superior (roughly, let the master answer) is invoked in order to impute the liability of an employee to his employer.[20] Both the employer and the employee may be found guilty for crimes which only the employee committed. For example, in Allen v Whitehead (1930) 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.  Cases often involve employers’ being held liable for employees’ illegal sale of items. In Sherras v De Rutzen (1895) a bartender’s criminal liability for selling alcohol to a constable on duty was imputed to the licensed owner of the bar.  Interestingly, a case of vicarious liability is a case of so-called strict liability, where the superior is held to be guilty without being blameworthy, since no mens rea (blameworthy mental state) is required for conviction. 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. 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. 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.”[21] In Sherras v De Rutzen, even though the bartender poured the drinks and collected the money, the actus reus (wrongful act) of the bartender was attributed to the person holding the license to sell alcohol in the bar, since only the licensee can be the seller.

Vicarious liability is strikingly analogous to the Reformers’ doctrine of the imputation of our sins to Christ.[22]  In virtue of the imputation of our sins to him, Christ is legally liable for our sins and so may be justly punished by God for those sins. In the Reformers’ view Christ did not merely suffer the punishment due us for our sins.  Rather, as the Swiss Reformed theologian Francis Turretin explained, our sins themselves were imputed to Christ so that he might be justly punished for them.[23] Turretin emphasizes that such imputation is a purely forensic notion and does not involve an infusion of sin into Christ.[24]  The Reformers insisted that because our sins were merely imputed to Christ and not infused in him, Christ was, as always, personally virtuous, a paradigm of compassion, selflessness, purity, and courage.  Nevertheless, he was reckoned legally guilty before God.  Therefore, he was legally liable to punishment. 

The lesson to be learned from cases of vicarious liability is that what is required for the satisfaction of justice is that only persons who are liable for a wrong are to be punished for that wrong. Accordingly, (1) should be revised to

1*. Unless a person who is liable for a wrong is punished for that wrong, divine justice is not satisfied.

That person might be the wrong-doer himself or someone vicariously liable for that wrong.

Now in affirming that justice is satisfied only if a person who is liable for a crime is punished for that crime we have not yet arrived at an analogy to penal substitution. For in a case involving vicarious liability both parties, the subordinate who did the wrong and the blameless superior to whom the wrong is imputed, may be found guilty and punished for the crime.

Intriguingly, however, it is sometimes the case that only the vicariously liable superior is prosecuted and punished.  In cases involving the illegal sale of items only the licensee may be prosecuted as the principal in the crime. Even in cases of delegated responsibility the state may forgo prosecution of the subordinate or forgo exacting a penalty at his hand in favor of the employer’s satisfying justice’s demands.  In cases where a corporation is held vicariously liable for crimes committed by employees, the corporation alone might be prosecuted. David Ormerod explains, “Corporations have a separate legal identity. They are treated in law as having a legal personality distinct from the natural persons–members, directors, employees, etc–who make up the corporation. That presents the opportunity, in theory, of imposing criminal liability on the corporation separately from any liability which might be imposed on the individual members for any criminal wrongdoing.”[25] In cases in which the demands of justice are too heavy for individuals to bear, the corporation may be held solely responsible for satisfying justice’s demands.  Such a case seems to be as much an instance of penal substitution as Lewis’ example of fines’ being paid by a third party. At the least, we can say that it appears that (1) is false in our Anglo-American justice system.  Sometimes the demands of justice are met not by the wrong-doer himself but by someone held vicariously liable for that wrong.

Emmanuel Mwale disputes the relevance of vicarious liability to Christ’s vicarious atonement on the ground of various disanalogies. He claims that the relationship subsisting between employer and employee “is completely different from that between God and man.”[26] For example, God is not some third party but the Creator of the human being who has offended Him. In civil cases involving vicarious liability three parties are involved: the employer, the employee, and the person who suffers damage as a result of the employee’s act or omission, whereas in the case of the atonement only two parties are involved: God and man. Again, an innocent employer cannot choose, as Christ did, to die in place of an employee who has committed a capital offence. Again, while the employer may be held vicariously liable for the criminal offence or tort of the employee, the employee is not always released from personal liability. Vicarious atonement is different in that “Christ’s death releases the offender from all liability.”[27] 

Disanalogies, however, are always to be expected when an analogy is drawn, so the question is whether they are so significant as to subvert the analogy that does exist between penal substitution and certain cases involving vicarious liability. I think not. The number of parties involved in a case is irrelevant to the fact that a blameless person may be found vicariously liable for another’s wrong and punished instead of him (not mention the fact that in a criminal case only two parties are involved). The divine status of the superior party is again just not relevant to the analogy.[28] The fact that in our justice system an employer cannot choose to die in the place of his employee does not subvert Lewis’ point that cases of penal substitution are to be found in our justice system.  Finally, Mwale recognizes that there are cases involving vicarious liability in which only the employer is prosecuted and punished—and, moreover, that it is up to each jurisdiction to decide.[29]

Mwale seems to assume that in appealing to certain cases involving vicarious liability as analogous to penal substitution, one is trying to construct a doctrine of the atonement based on human justice systems. But one is not engaged in so silly a project. Theological construction of a doctrine of the atonement will be based on the teaching of Scripture. Rather, in appealing to the analogy of vicarious liability, one is merely offering a defeater of the objection raised to penal substitution that it is unsatisfactory because our legal system allows only the wrongdoer to be punished for his wrong. In fact, we do sometimes penalize or punish in place of the wrongdoer blameless persons held vicariously liable for wrongs they did not commit.[30]

Now the objector might reply at this point that in cases of vicarious liability in which only the superior is punished the demands of justice are not really satisfied, but merely waived. When the state declines either to prosecute a subordinate for his wrongdoing or to exact the penalty from him that justice demands, it is not because his superior has met the demands of justice on his behalf. Rather the demands of justice are just overlooked. Hence, (1) remains true.

It seems to me, however, that intuitions can reasonably differ here. It is the state that determines whether justice has been satisfied in a particular case. If the state is satisfied in such cases with the penalty exacted from the superior and requires nothing further from the subordinate, then the demands of justice are met.  Even in cases in which both parties are convicted and sentenced, we can imagine scenarios in which only the superior discharges justice’s demands. Criminal law theorist Antony Duff explains,

In Duff’s view, even in the case in which the state prosecutes both parties, just desert is not absolute but relative to the defendants’ means.  If the employee for some reason had no means, then the demands of justice would be fully met by the employer alone.

We as condemned sinners are, as Anselm saw, utterly bereft of any means of satisfying divine justice apart from enduring the punishment of hell. If God does not want to send His children to hell, then He must alone satisfy the demands of justice instead of us. It is God, as the analogue of the state, who determines whether the demands of divine justice have been met by Christ’s substitutionary punishment. God may be satisfied with the infinite penalty exacted from Christ for my sins. He may therefore issue a pardon to us, freeing us from condemnation.

The objector’s reply, then, is not decisive. We do seem to have some analogy in our justice system to penal substitution.  In any case (1) seems to be defeated.

3.3 Substitution and Representation

Even more can be said. For now consider

2. If God practices penal substitution, then the person who committed a wrong is not punished for that wrong.

In cases of penal substitution is it always the case that the person who did the wrong is not punished for that wrong?

Contemporary theologians have disputed the point by distinguishing between exclusionary place-taking (exkludierende Stellvertretung) and inclusionary place-taking (inkludierende Stellvertretung).[32] This important distinction requires a word of explanation about substitution and representation respectively.  In cases of simple substitution someone takes the place of another person but does not represent that person.  For example, a pinch hitter in baseball enters the lineup to bat in the place of another player.  He is a substitute for that player but in no sense represents that other player.  That is why the batting average of the player whom he replaces is not affected by the pinch hitter’s performance.  On the other hand, a simple representative acts on behalf of another person and serves as his spokesman but is not a substitute for that person.  For example, the baseball player has an agent who represents him in contract negotiations with the team.  The representative does not replace the player but merely advocates for him.[33] 

These roles can be combined, in which case we have neither simple substitution nor simple representation but rather substitutional representation (or representative substitution). A good illustration of this combination of substitution and representation is to be found in the role of a proxy at a shareholders’ meeting.  If we cannot attend the meeting ourselves, we may sign an agreement authorizing someone else to serve as our proxy at the meeting.  He votes for us, and because he has been authorized to do so, his votes are our votes:  we have voted via proxy at the meeting of shareholders.  The proxy is a substitute in that he attends the meeting in our place, but he is also our representative in that he does not vote instead of us but on our behalf, so that we vote. This combination is an inclusionary place-taking.

Turretin believes that Christ, in bearing our punishment, was both our substitute and our representative before God.  He states, “the curse and punishment of sin which he received upon himself in our stead secures to us blessing and righteousness with God in virtue of that most strict union between us and him by which, as our sins are imputed to him, so in turn his obedience and righteousness are imputed to us.”[34]  This relation is not one of simple substitution; there is an inclusive union here which is the basis of the imputation of our sins to Christ and his righteousness to us. According to Turretin, so long as Christ is outside of us and we are out of Christ we can receive no benefit from his righteousness. But God has united us with Christ by means of a twofold bond, one natural (namely, communion of nature by the incarnation), the other mystical (namely, the communion of grace by Christ’s mediation), in virtue of which our sins might be imputed to Christ and his righteousness imputed to us. Christ was punished in our place and bore the suffering we deserved, but he also represented us before God, so that his punishment was our punishment. Christ was not merely punished instead of us, rather we were punished by proxy. [35]  For that reason, divine justice is satisfied.[36]

How does it come to pass that we are so represented by Christ?  As mentioned, Turretin proposed two ways in which we are in union with Christ, first, by way of his incarnation and, second, by way of our mystical union with him.  Although theologians often appeal to this latter union of believers with Christ to explain the efficacy of his atonement, such an account seems to be viciously circular.[37]  Turretin emphasized that it is our union with Christ that is the basis of the imputation of sins to Christ and of our justification.[38]  But the problem is that the mystical union of believers with Christ is the privilege only of persons who are regenerate and justified.  There is here a vicious explanatory circle: in order to be in mystical union with Christ one must first be justified, but in order to be justified one must first be in mystical union with Christ.  What is needed is a union with Christ which is explanatorily prior to (even if chronologically simultaneous with) imputation and justification.

Turretin’s first proposal is therefore to be preferred.[39]  In virtue of Christ’s incarnation (and, I should say, his baptism, whereby Jesus voluntarily identified himself with fallen humanity), Christ is appointed by God to serve as our proxy before Him. The Logos, the second person of the Trinity, has voluntarily consented to be appointed, by means of his incarnation and baptism, to serve as our proxy before God so that by his death he might satisfy the demands of divine justice on our behalf.

Herein we see the organic connection between Christ’s incarnation, death, and resurrection.  God’s raising Jesus from the dead is not only a ratification to us of the efficacy of Christ’s atoning death; it is a necessary consequence of it. For by his substitutionary death Christ fully satisfied divine justice.  The penalty of death having been fully paid, Christ can no more remain dead than a criminal who has fully served his sentence can remain imprisoned. Punishment cannot justly continue; justice demands his release. Thus, Christ’s resurrection is both a necessary consequence and a ratification of his satisfaction of divine justice.

4. Concluding Remarks

In summary, while proponents of penal substitutionary theories which do not feature Christ’s being punished for our sins may have difficulty rebutting the charge that on such theories Christ’s suffering is unsatisfactory, the proponents of penal substitutionary theories which do feature Christ’s being punished for our sins are not so clearly vulnerable to this charge. We need to keep in mind that God, as the supreme Legislator, Judge, and Ruler, Himself determines what satisfies the demands of His justice.  If we say that retributive justice, as we know and understand it, belongs essentially to God, the question will then become why substitutionary punishment cannot satisfy the demands of retributive justice. We saw that in criminal law we find cases that closely resemble penal substitution. We may think of Christ as being vicariously liable for our sins and his punishment as satisfying for us, just as an employer might satisfy justice’s demands rather than his employee. 

Moreover, an inclusionary penal substitutionary theory does not preclude that we are punished for our sins in Christ’s being punished for our sins.  For Christ’s being divinely and voluntarily appointed to act not merely as our substitute but as our representative enables him to serve as our proxy before God, so that when he is punished, we are punished by proxy, to the satisfaction of divine justice.