Philosophical Issues in the Atonement

PHILOSOPHICAL ISSUES IN THE ATONEMENT

Introduction

Many Christian philosophers have taken up the task of helping systematic theologians to formulate and defend coherent statements of Christian doctrine. So philosophers have been actively engaged in discussion of the doctrines of the Trinity, Incarnation, and Atonement, which might be called “the big three” of peculiarly Christian doctrines.[1] The activity of Anglo-American Christian philosophers in the field of systematic theology has even come to the attention of German theologians. In the standard German reference work in theology, the Theologische Realenzyklopädie (TRE), Christoph Gestrich draws attention to the contribution of Anglo-American analytic philosophy to the subject of the incarnation and its possible relevance for the subject of the atonement:

In Great Britain there was already during the 19^th century a widespread and growing atonement–literature spanning theological lines and confessions and a nearly general consensus concerning Christ’s substitutionary atonement. It was extensively debated, for example, whether one should speak of the ‘objective’ validity of this atonement or the necessity of a ‘subjective’ realization in faith and morals. By the 20^th century this topic had for the most part been exhausted in the English-speaking realm—until during the ’70s a lively discussion about the historicity of the incarnation of the Son of God, stimulated by analytic philosophy, was kindled. Is the atoning descent of the heavenly Son of God to earthly flesh ‘only’ a metaphor—and thus by no means a part of objective history? Chiefly related to this question there was once more in the ’80s and ’90s of the 20^th century a whole series of English-language theological investigations concerning the ‘problem’ of the atonement. The predominant result: the admittedly metaphorical talk of the incarnation of the Son of God in the Christian confession remains now as always indispensable and refers to an actual event. Nevertheless, one must consider anew in what way it leads to the divine atonement. (Gestrich 2001, s.v.)[2]

It is the purpose of this chapter to advance the discussion by looking more closely at certain philosophical problems involved in the classic doctrine of Christ’s substitutionary atonement.

Although a bewildering variety of atonement theories have been proposed over the centuries,[3] at the heart of any biblical theory of the atonement lies the notion of penal substitution. Penal substitution is rooted biblically in the vicarious suffering of the Servant of the Lord described in Isaiah 53 and in its New Testament application to Jesus. The suffering of the Servant is agreed on all hands to be punitive. What is remarkable, even startling, about the Servant is that he suffers substitutionally for the sins of others. The substitutionary as well as punitive nature of the Servant’s suffering is expressed in phrases like “he was wounded for our transgressions,” “crushed for our iniquities,” “upon him was the punishment that made us whole,” “the Lord has laid on him the iniquity of us all,” and “stricken for the transgression of my people” (vv. 5, 6, 8). According to Otfried Hofius ([1996] 2004), substitutionary punishment “is expressed several times in the passage and should undoubtedly be seen as its dominant and central theme” (164). New Testament authors took Jesus to be the sin-bearing Servant of Isaiah 53. For example, I Pet. 2:24-25 states, “He himself bore our sins in his body on the tree, that we might die to sin and live to righteousness. By his wounds you have been healed.”

Ever since the time of Faustus Socinus (1539-1604), the doctrine of penal substitution has faced formidable, and some would say insuperable, philosophical challenges. A discussion of such challenges takes us into lively debates over questions in the philosophy of law, the field of philosophy where the theory of punishment is most thoroughly discussed.

A theory of punishment should offer both a definition of punishment and a justification of punishment. Challenges to penal substitution arise with respect to both. Thus philosophical objections to penal substitution have been lodged concerning both the coherence of penal substitution and the justice of penal substitution. In addition there are objections to the satisfactoriness of penal substitution.

Coherence of Penal Substitution

With respect to the coherence of penal substitution, some critics have claimed, on the basis of an expressivist theory of punishment, that it is conceptually impossible that God punish Christ for our sins. For according to an expressivist theory of punishment, for an act to count as punishment, it must send “a message of condemnation or censure for what is believed to be a wrongful act or omission” (Walen 2014). Some critics have argued that God could not condemn or censure Christ, since he was sinless (e.g., Murphy 2009: 255–9). Therefore, God could not have punished Christ for our sins.

The crucial premises of this argument seem to be the following:

1. If Christ was sinless, God could not have condemned Christ.

2. If God could not have condemned Christ, God could not have punished Christ.

3. If God could not have punished Christ, penal substitution is false.

Thus, it follows from the sinlessness of Christ that penal substitution is false.

To mention but one of the many shortcomings of this argument, it seems to be based upon a fundamental misunderstanding of the expressivist theory of punishment. An expressivist theory does not require that the person punished is condemned or censured for the act or omission believed to be wrong. Censure could be either of the person who did the act or of the act itself. It is no part of expressivism that the censure expressed by punishment target a particular person. Expressivist theories of punishment, as typically formulated, are thus perfectly consistent with penal substitution. Thus, premise (2) of the argument is undercut.

Justice of Penal Substitution

Although a few critics have objected to the coherence of penal substitution, by far and away the most common objection is to the justice of penal substitution. Critics of penal substitution frequently assert that God’s punishing Christ in our place would be an injustice on God’s part Yes, Faustus Socinus, De Jesu Christo Servatore 3; Eleonore Stump, Atonement (Oxford: Oxford University Press, 2018), p. 124. 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.

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

1. God is perfectly just.

2. If God is perfectly just, He cannot punish an innocent person.

3. Therefore, God cannot punish an innocent person.

4. Christ was an innocent person.

5. Therefore, God cannot punish Christ.

6. If God cannot punish Christ, penal substitution is false.

It follows that if God is perfectly just, then penal substitution is false.

Retributive Justice: Positive and Negative

Despite the popularity of this objection, it is far from insuperable: first, the objection does not sufficiently differentiate various versions of a retributivism. Premise (2) presupposes a retributive theory of justice, since, on consequentialist theories, punishment of the innocent may be just. But 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 substitution theorist may maintain that God is only qualifiedly a negative retributivist, since even if He has prohibited human beings from punishing innocent persons, and even if He is too good to Himself punish innocent human persons, 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. Premise (2) is therefore undercut.

Imputation of Sins

Second, suppose that the prima facie demands of negative retributive justice are essential to God and could not be overridden. Would God be unjust to punish Christ? Not necessarily. For consider premise

4. Christ was an innocent person.

For penal substitution theorists like the Protestant Reformers, who affirm the imputation of our sins to Christ, there is no question in Christ’s case of God’s punishing the innocent and so violating even the prima facie demands of negative retributive justice. For Christ, in virtue of the imputation of our sins to him, was legally guilty before God. Of course, 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; but he was declared legally guilty before God. Therefore, he was legally liable to punishment. Thus, given the doctrine of the imputation of sins, the moral objection to penal substitutionary theories is a non-starter, being based on the false assumption of (4).

Of course, critics of penal substitution are apt to be unsympathetic to the claim that our sins were imputed to Christ. Whether one holds that our sins, that is to say, our wrongful acts, were imputed to Christ, or one that holds that our guilt for our wrongful acts was imputed to Christ, the 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 (Murphy 2009: 259).[4]

But are we so utterly bereft of analogies to imputation as critics allege? It seems not.

Legal Fictions

Consider first the idea that our wrongful acts were imputed to Christ. On this view, although Christ did not himself commit the sins in question, God chooses to treat Christ as if he had done those acts. Such language is formulaic for the expression of legal fictions.[5] The nearly universal understanding of a legal fiction is that it is something that the court consciously knows to be false but treats as if it were true for sake of a particular action. The use of legal fictions is a long established, widespread, and indispensable feature of systems of law.

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.[6] 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. Most orthodox Christian believe 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 which 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). 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” (2015: 122).[7]

Or consider the legal fiction that a ship is a person.[8] The adoption of this fiction by U.S. federal courts in the early 19^th 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” (Lind 2015: 95).[9] According to Douglas 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 (2015: 96).

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.

Vicarious Liability

Consider now the second alternative, that God imputes to Christ the guilt of our wrongdoing.[10] It is worth noting that the question does not concern the transfer of guilt from one person to another, in the sense that guilt is removed from one person and placed on another. For the defender of the doctrine of imputation does not hold that when my guilt is imputed to Christ, it is thereby removed from me. Guilt is merely replicated in Christ, just as, according to the doctrine of original sin, Adam’s guilt was replicated in me, not transferred from Adam to me. Adam remains guilty, as do I when my guilt is imputed to Christ. The entire rationale of penal substitution is, after all, the removal of guilt by punishment.

What is at issue, then, is whether we have any experience of the replication of guilt in a person different than 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 wrong-doing 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 in order 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, 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 in such cases the employer is not 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 another person than the actor.

It might be said that in such civil cases guilt is not 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 (Leigh 1982). 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 which only the employee committed.[11] 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. 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. In such cases, we have the guilt of one person imputed to another person, who did not do the act. Interestingly, vicarious liability is a case of strict liability, where the superior is held to be guilty without being blameworthy.[12] He is thus guilty and liable to punishment even though he is not culpable.

Thus, the vicarious liability that exists in the law suffices to show that the imputation of our guilt to Christ is not wholly without parallel in our experience.[13] 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 guilt to Christ. [14]

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 due to practical considerations arising from the human impossibility of administering a system of pure justice. But when would the imposition of vicarious liability be even prima facie unjust? Arguably, it could be only in cases in which it is non-voluntary. Ormerod notes that in cases of corporate vicarious liability it is unclear whether it is necessary for a conviction that an individual controlling mind of the company be identifiable. This leads him 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” (Omerod 2018: 255). 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?

In sum, the objection to penal substitution based on the justification of punishment is no more successful than the objection to penal substitution based on the definition of punishment.

Satisfactoriness of Penal Substitution

A third sort of objection to penal substitution concerns what we might call its satisfactoriness. Some critics have objected that punishing Christ in our place could not possibly meet the demands of divine retributive justice (Gomes 1990: III.3).[15] For punishing another person for my crimes would not serve to remove my liability to punishment. So how can penal substitution satisfy God’s justice? We can formulate this objection as follows:

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.

Legal Analogies to Penal Substitution

Now perhaps some progress can be made toward answering this question by considering how penal substitution is regarded in our secular justice system. 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. 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.

David Lewis claims our Anglo-American system of justice, in point of fact, does countenance cases which are significantly analogous to penal substitution. For 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” (Lewis 1997: 207). 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.[16] 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” (Lewis 1997: 209).

We can press the analogy even further. For consider cases involving vicarious liability for criminal acts. 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” (Omerod 2018: 270). 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.

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. 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. Sometimes the demands of justice are met not by the wrong-doer himself but by someone held vicariously liable for that wrong. We do seem to have some analogy in our justice system to penal substitution.

We can think of the imputation of our sins to Christ on the analogy of the vicarious liability of a superior for his subordinate. Just as in civil and criminal law a superior can be held vicariously liable for the wrongdoing of his subordinate, so God held Christ vicariously liable for our sins. As in cases in which only the vicariously liable superior is convicted and punished, so God may be satisfied with the infinite penalty paid by Christ for our sins.

Inclusionary Place-Taking

But now consider as well:

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).[17] 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.

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.

Swiss Reformed theologian Francis 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” (Turretin 1992: 2.16.3). 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.[18] For that reason, divine justice is satisfied.

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.

Conclusion

There remains vastly more to be said about the rich and variegated doctrine of the atonement. But so far forth we have encountered nothing that would rationally undermine the doctrine of penal substitution as a central facet of a biblically adequate theory of the atonement.

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Ripstein, A. (2002), ‘Philosophy of Tort Law’, in J. Coleman and S. Shapiro (eds) The Oxford Handbook of Jurisprudence and Philosophy of Law, 656-86, Oxford: Oxford University Press.

Rivière, J. (1909), The Doctrine of the Atonement: A Historical Essay, Vol. 1, trans. Luigi Cappadelta, London: Kegan Paul, Trench, Trübner & Co.

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• [1]

  See, for example, Murray and Rea (2012) which singles out for discussion the doctrines of the Trinity, Incarnation, and Atonement. It is surprising that this article includes no discussion of penal substitutionary theories in distinction from satisfaction theories.

  See, for example, Murray and Rea (2012) which singles out for discussion the doctrines of the Trinity, Incarnation, and Atonement. It is surprising that this article includes no discussion of penal substitutionary theories in distinction from satisfaction theories.

• [2]

  A list of references to English language resources by Christian philosophers and theologians then follows. The 19^th century British literature alluded to by Gestrich is still worth reading and is, sadly, largely overlooked by Christian philosophers today. Standouts include Smeaton ([1870] 1957), Dale (1884), and a bit later Denney (1907).

  A list of references to English language resources by Christian philosophers and theologians then follows. The 19^th century British literature alluded to by Gestrich is still worth reading and is, sadly, largely overlooked by Christian philosophers today. Standouts include Smeaton ([1870] 1957), Dale (1884), and a bit later Denney (1907).

• [3]

  For a good survey see Rivière (1909).

  For a good survey see Rivière (1909).

• [4]

  This complaint is very common, both among philosophers (e.g., Quinn 1986: 445, 456; Purtill 1990: 38; Stump 2003: 432) and theologians (Hofius [1996] 2004: 168),

  This complaint is very common, both among philosophers (e.g., Quinn 1986: 445, 456; Purtill 1990: 38; Stump 2003: 432) and theologians (Hofius [1996] 2004: 168),

• [5]

  The seminal treatment of contemporary discussions is (Fuller 1930: 363-99; Fuller 1931: 513-46; Fuller 1931: 877-910). The more distant progenitor is Vaihinger ([1911] n.d.).

  The seminal treatment of contemporary discussions is (Fuller 1930: 363-99; Fuller 1931: 513-46; Fuller 1931: 877-910). The more distant progenitor is Vaihinger ([1911] n.d.).

• [6]

  As charged by Borg and Crossan, (2009: 165). By contrast see O’Collins (2012: 127).

  As charged by Borg and Crossan, (2009: 165). By contrast see O’Collins (2012: 127).

• [7]

  By “equity,” Schauer has reference to recourse to “an elaborate series of Chancellor’s courts known as courts of equity, in order to gain equitable relief from the rigidity of law.”

  By “equity,” Schauer has reference to recourse to “an elaborate series of Chancellor’s courts known as courts of equity, in order to gain equitable relief from the rigidity of law.”

• [8]

  Described colorfully by Douglas Lind (2015: 95-6).

  Described colorfully by Douglas Lind (2015: 95-6).

• [9]

  Citing The John G. Stevens 170 U.S. 113 (1898: 122).

  Citing The John G. Stevens 170 U.S. 113 (1898: 122).

• [10]

  What follows could have also been said with respect to the vicarious liability of corporations as persons in the eyes of the law. 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” (2018: 245). But because corporate persons might be thought by some to be legal fictions, I leave them aside to focus on the vicarious liability of human beings. It is also worth noting that vicarious liability may also, via the so-called delegation principle and the attribution principle, involve the imputation of acts and not just guilt to innocent persons (Ibid., 269-73). In that case appeal to legal fictions as an analogy to imputation of sins becomes superfluous.

  What follows could have also been said with respect to the vicarious liability of corporations as persons in the eyes of the law. 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” (2018: 245). But because corporate persons might be thought by some to be legal fictions, I leave them aside to focus on the vicarious liability of human beings. It is also worth noting that vicarious liability may also, via the so-called delegation principle and the attribution principle, involve the imputation of acts and not just guilt to innocent persons (Ibid., 269-73). In that case appeal to legal fictions as an analogy to imputation of sins becomes superfluous.

• [11]

  Leigh (1982:1) notes that vicarious liability takes two forms. In one, a person is held liable for the acts of another who has a mens rea, while in the other, more typical case, a person is held liable for the act of another where the act of the other person amounts to an offense of strict liability.

  Leigh (1982:1) notes that vicarious liability takes two forms. In one, a person is held liable for the acts of another who has a mens rea, while in the other, more typical case, a person is held liable for the act of another where the act of the other person amounts to an offense of strict liability.

• [12]

  Indeed, the superior is entirely innocent, having neither an actus reus nor a mens rea, but is declared guilty by imputation.

  Indeed, the superior is entirely innocent, having neither an actus reus nor a mens rea, but is declared guilty by imputation.

• [13]

  Mark Murphy might complain that our experiences of imputation involve only a legal and not a moral transaction. But it is characteristic of the Reformation doctrine of salvation that “justification” and “condemnation” are precisely forensic terms and that imputation is a legal transaction. Indeed, the forensic nature of justification is Pauline. Michael Horton (2011a 93) reports that there is now a “considerable” and “settled” “scholarly consensus,” including advocates of the new perspective on Paul and Roman Catholic exegetes such as Joseph Fitzmeyer, Raymond Brown, and Karl Rahner, that “Justification is a declarative, judicial verdict” (see also Horton 2011b: 293. Cf. the verdicts of Dunn (2011: 118); Bird (2011: 296); . [These sources do not appear in the bibliography See add’l bibliog at the end of this article]

  Mark Murphy might complain that our experiences of imputation involve only a legal and not a moral transaction. But it is characteristic of the Reformation doctrine of salvation that “justification” and “condemnation” are precisely forensic terms and that imputation is a legal transaction. Indeed, the forensic nature of justification is Pauline. Michael Horton (2011a 93) reports that there is now a “considerable” and “settled” “scholarly consensus,” including advocates of the new perspective on Paul and Roman Catholic exegetes such as Joseph Fitzmeyer, Raymond Brown, and Karl Rahner, that “Justification is a declarative, judicial verdict” (see also Horton 2011b: 293. Cf. the verdicts of Dunn (2011: 118); Bird (2011: 296); . [These sources do not appear in the bibliography See add’l bibliog at the end of this article]

• [14]

  Intriguingly, a necessary condition of a finding of vicarious liability is that the superior be so related to the subordinate as to have either the right, the power, or the duty to prevent the subordinate’s wrongdoing. Christ, of course, stands in such a relationship to us, since he possesses both the power and the right to prevent our sinning, even if he has no duty to do so. Equally intriguing is the fact that a delegation of authority by the superior to the subordinate can be crucial. In Vane v Yiannopoullos (1965), the licensed owner of a restaurant was initially found vicariously liable for a sale in breach of license by a waitress. The House of Lords reversed the decision on the grounds that the waitress had not been left in charge of the premises and all the effective management handed over to her. A striking feature of the Genesis creation story is that God gives to the man and woman authority over creation to act on His behalf and delegates to them the responsibility of managing creation (Gen 1:27-28).

  Intriguingly, a necessary condition of a finding of vicarious liability is that the superior be so related to the subordinate as to have either the right, the power, or the duty to prevent the subordinate’s wrongdoing. Christ, of course, stands in such a relationship to us, since he possesses both the power and the right to prevent our sinning, even if he has no duty to do so. Equally intriguing is the fact that a delegation of authority by the superior to the subordinate can be crucial. In Vane v Yiannopoullos (1965), the licensed owner of a restaurant was initially found vicariously liable for a sale in breach of license by a waitress. The House of Lords reversed the decision on the grounds that the waitress had not been left in charge of the premises and all the effective management handed over to her. A striking feature of the Genesis creation story is that God gives to the man and woman authority over creation to act on His behalf and delegates to them the responsibility of managing creation (Gen 1:27-28).

• [15]

  For contemporary statements of the objection, see, e.g., Quinn (1986: 440-52); Stump (2003: 436). Socinus presses other objections as well to Christ’s satisfaction of divine justice, especially that satisfaction is logically incompatible with God’s remitting our sins (Gomes 1990: III.2) an objection that is still repeated today (e.g., by Stump 2018: chap. 3). Hugo Grotius responded ably to Socinus on this score in his (1617: VI).

  For contemporary statements of the objection, see, e.g., Quinn (1986: 440-52); Stump (2003: 436). Socinus presses other objections as well to Christ’s satisfaction of divine justice, especially that satisfaction is logically incompatible with God’s remitting our sins (Gomes 1990: III.2) an objection that is still repeated today (e.g., by Stump 2018: chap. 3). Hugo Grotius responded ably to Socinus on this score in his (1617: VI).

• [16]

  In response to Lewis, Quinn (2004: 722-30) makes the interesting observation that courts have sometimes expressed diffidence about allowing companies to purchase insurance policies to cover possible penalties. For in such cases the insurance company pays the penalty demanded by the law rather than the guilty party. But such cases do not show that penal substitution is unsatisfactory; quite the contrary, in fact. Rather such cases furnish a good example of the way in which ultima facie considerations can justify penal substitution, thereby meeting justice’s demands in a specific action.

  In response to Lewis, Quinn (2004: 722-30) makes the interesting observation that courts have sometimes expressed diffidence about allowing companies to purchase insurance policies to cover possible penalties. For in such cases the insurance company pays the penalty demanded by the law rather than the guilty party. But such cases do not show that penal substitution is unsatisfactory; quite the contrary, in fact. Rather such cases furnish a good example of the way in which ultima facie considerations can justify penal substitution, thereby meeting justice’s demands in a specific action.

• [17]

  Alternatively, ausschliesschende vs. einschliessende Stellvertretung. See, e.g., the influential work of Gese (1981: 106); Hofius (1994: 41).

  Alternatively, ausschliesschende vs. einschliessende Stellvertretung. See, e.g., the influential work of Gese (1981: 106); Hofius (1994: 41).

• [18]

  Atonement theorists have identified examples of such punishment by proxy even in human affairs, such as a team captain’s being punished for his team’s failings or a squad leader’s being punished for his troops’ failings (Porter 2004: 236-7). Of course, Christ has been uniquely appointed by God to be our proxy, which may make his case sui generis.

  Atonement theorists have identified examples of such punishment by proxy even in human affairs, such as a team captain’s being punished for his team’s failings or a squad leader’s being punished for his troops’ failings (Porter 2004: 236-7). Of course, Christ has been uniquely appointed by God to be our proxy, which may make his case sui generis.