Can the State Punish Thoughtcrime?

A Melanchthonian Analysis

E. J. Hutchinson

There have been a slew of comments in recent months suggesting that ideological woke progressivism is a new religion manqué (the reference to the left hand is intentional), a bottomless reservoir both of false fulfillment for the spiritually empty and resentful as well as of satisfying and punitive censoriousness toward heretical recalcitrants.

As such, it has its own orthodoxy; its own speech codes (consider, for example, the proposed new Rules package for the 117th Congress, which removes “gendered” words such as “father, mother, son, daughter” as offensive against “inclusivity”; or the ridiculous farce in that same body in which a prayer was ended with “Amen and Awomen”); and its own blasphemy laws and vindictive sanctions for their violation. I have no wish to belabor this short piece with a bevy of examples; poke around on Google and you will find plenty.

In close relation to the above, one should expect to see an uptick in outrage over impure thought as well, for the regulation of thought is always the terminus of ideological imposition, as Nikolai Salmanovich Rubashov learned in Darkness at Noon. If, for the ideologue, language is symptomatic of thought, and if the state must bring heterodox language to heel in its effort to purify and purge the people, it ineluctably follows that it must discipline and punish heterodox thinking as well.

It goes without saying that this is poisonous for the prospect of a free and virtuous society. This makes sense, as its purveyors are not interested in genuine freedom or virtue, concepts inimical to the foregrounding of oppressive victimhood.

There are many, I take it, who instinctively feel that such cognitive policing is not just tacky but, to use an outmoded category, wrong. But it is worth thinking through why it is wrong.

Here, we can get some help from a surprising source that is actually religious, little read outside of Lutheran circles and the guild of early modern historians: the Apology of the Augsburg Confession (1531). The document remains important for Lutheran and Roman Catholic theological debates, but that is not my interest at present. My interest is in the light it can shed on our current political confusion.

For buried in a lengthy section on original sin, Philip Melanchthon, the author of the Apology,[1] makes an observation that is directly relevant to what has been said above about the blurring of “righteousness” in a civic or political sense with “righteousness” in the theological sense, that is, what constitutes righteousness before the judgment seat of man with righteousness before the judgment seat of God. While God can judge (and punish) the thoughts of one’s heart, civil society cannot.

Near the end of his analysis of original sin, Melanchthon dilates upon the consequences of fallen man’s corruption, and as he does so he notes a muddling in his own day—for there is nothing new under the sun—of theological and philosophical righteousness.[2] He writes:

[W]e daily experience a feeling of dissatisfaction with the prosperity of the ungodly in this world—a feeling which David also, and all the saints lamented in themselves.

Besides, all men know, how easily their hearts are inflamed—now with ambition—now with anger and hatred—and again, with impurity and unchastity.…

But the sophists in the schools have … devised dreams and sayings taken from systems of philosophy, declaring, that we are neither good nor bad—blamable or praiseworthy on account of these evil desires. Again they say, that the evil desires and thoughts in our hearts are not sins, if we do not fully consent to them. This language in the books of the philosophers is applicable to external honesty before the world, and to external punishment before the world. For there it is true, as the jurists say, L. Cogitationis, thoughts are free, and exempt from punishment. But God searches into the heart; his judgments and his decisions are different.

Give attention to that phrase “L(ex) Cogitationis” (“the law of thought”). It is a reference to a “brocard,” or Latin legal maxim, that represents a basic legal principle. This particular brocard reads as follows: Cogitationis poenam nemo patitur, “No one suffers punishment for thought.” Wikipedia’s gloss is useful: “A crime is only committed through some act, not through a mere thought.” What the maxim means to exclude from the civil sphere is the possibility of thoughtcrime, a pet of ideologues but foreign to the Western legal tradition.

This is, as the Apology states, quite different from how God deals with man, for God “searches into the heart,” and rules over what John Calvin within a couple of decades of the Apology would call the forum conscientiae, the “forum of conscience.”

But what must be recognized above all is that this is God’s prerogative, not man’s. God has this prerogative because he is man’s creator and governor, absolutely just and absolutely omniscient, whereas for those who are merely men the heart—even one’s own heart—is often a dark mystery, not directly observable in the way one’s deeds are. As the prophet says, “The heart is deceitful above all things, and desperately wicked: who can know it?” Thus when the distinction between God and man is collapsed, together with the distinction between civic righteousness and divine righteousness, the situation is perilous; the state is divinized, and the divinized state attempts God’s actions without God’s wisdom and power, leading to a parody of divine judgment, divine justification, and divine punishment. We see it in the current craze of “cancellation.”

Now, what the authors of the Apology complain about in the passage cited above runs in the opposite direction, but it is worth noting that it nevertheless trades on the same treacherous confounding of the divine and the human with which we are now confronted everywhere around us: Melanchthon and his associates were worried about civic and temporal standards being used to illuminate how God judges—that is, where only one’s actions, not one’s internal thoughts, are taken into account—whereas what we are witnessing is the importation into the civil sphere of the standard proper to divine judgment, whereby not only one’s actions but one’s thoughts are brought before the bar. Melanchthon thought the confusion in his day was disastrous for the church. Likewise, the confusion today is disastrous for civil society.

Because the new orthodoxy tries to enforce a theological conception of justice and rectitude—leaving aside entirely the question of whether progressivist “righteousness” is truly just—in a non-theological realm, we are left with only malicious caricatures of theological virtues, manifested most clearly in the constant demands for repentance from those who have offended against the new sensibility, but without forgiveness. Despite apology tours and public self-abasement, it is easy to observe, on social media and elsewhere, that repentance is never quite enough. This should come as no surprise. For when man usurps the place of God, he becomes a demon. Satan has always been an accuser, and he has never been interested in forgiveness.

The state can never grant divine forgiveness and absolution. The pretense that it can yields only an unceasing state of war. If we would have civic forgiveness, on the other hand, as well as civic peace and civic mercy, the stakes must be lowered and we must have a sharper understanding of where and what we are.

We must have, in other words, an understanding of what constitutes civic righteousness, with due acknowledgement of what it can and cannot regulate. Cogitationis poenam nemo patitur. 

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Eric Hutchinson is associate professor of classics and chairman of the Collegiate Scholars Program at Hillsdale College.

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