On Mercy and When Should Law Forgive?

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From The Wall Street Journal:

American public life is full of disputes about justice and forgiveness. Take the Dreamers—the nearly 700,000 young adults who came from Mexico and elsewhere as children, did not obtain citizenship or permanent resident status, and have been in legal limbo since President Obama signed an executive order giving them temporary legal status in 2012. Depending on whom you talk to, these immigrants should either be deported immediately or given full citizenship.

When the brother of Botham Jean, the unarmed black man shot in his Dallas apartment by Amber Guyger, a white off-duty police officer, asked the judge if he could hug Guyger and offer forgiveness at the end of her trial, reactions were similarly divided. Many found the brother’s gesture of mercy profoundly moving; for others, it was only a distraction from justice.

Two types of forgiveness are intertwined in these instances. The first is legal forgiveness. Our legal system is committed to justice, and to honoring the rule of law. But sometimes we make exceptions, declining to punish a defendant who has violated the law or providing partial amnesty for tax evaders. This is legal forgiveness. (Mercy, which Shakespeare’s Portia famously praises as “twice blest” in “The Merchant of Venice,” is slightly different: It is leniency in applying the law rather than forgiveness.)

The second type of forgiveness, interpersonal, is often described as a “release of resentments.” When Brandt Jean offered to forgive Amber Guyger, he was letting go of his anger against his brother’s killer and so extending interpersonal forgiveness. How can legal forgiveness be reconciled with the rule of law? What do legal and interpersonal forgiveness have to do with one another? These questions are implicit in the current controversies about justice and mercy or forgiveness, and they are the focus of two thoughtful but idiosyncratic new books.

In “On Mercy,” Malcolm Bull conducts a clever thought experiment on the question of whether mercy might not only be reconciled with justice but could displace it at the center of our political life. Although Mr. Bull is not a professional philosopher—he’s an Oxford professor of art and the history of ideas—he plays one in this book. In 163 readable pages of text, he cycles through Seneca, Niccolò Machiavelli, Thomas Hobbes, David Hume, Judith Shklar, Bernard Williams and more. Mr. Bull begins with a very capacious definition of mercy, encompassing both mercy and legal forgiveness. “An act of mercy,” he writes, “is an action that is both intended to be and turns out to be less harmful than it might have been.” Even a torturer may be acting mercifully, Mr. Bull says, if he tortures his victim less than he might have done. If there is an ordinary level of harm—say, an ordinary criminal sentence, to use a less extreme example—it is merciful to inflict less than that expected, ordinary level.

Link to the rest at The Wall Street Journal (sorry if you run into a paywall)


Justice and Mercy are most famously discussed in The Bible, but are recurring themes throughout literature – “The quality of mercy is not strained” in The Merchant of Venice and Crime and Punishment come immediately to mind.