Version: v1, Published online: 1998
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3. Mercy and justice
Mercy is also a concept that is capable of generating tension and paradox; this is particularly so in the context of punishment, where it initially seems most at home. If a certain punishment is required by justice, representing what the wrongdoer in justice deserves, then it would seem to be an injustice to depart from that punishment. We are fond of using the slogan that ‘justice should be tempered with mercy’, yet it is unclear that such a slogan represents morally wise counsel. If it is simply a somewhat misleading way of demanding proper individuation to guarantee that justice is finely tuned and thus truly done, then one can hardly have any deep quarrels with it. If it counsels an actual departure from justice (an injustice), however, then what it counsels seems manifestly unvirtuous. It is for this reason that Kant feared the role of compassion in the criminal law and argued that the sovereign’s power of pardon (a dramatic kind of legal mercy) is one of the most dangerous of all sovereign powers because it might tempt the sovereign, out of compassion, to avoid a genuine duty: namely, the doing of justice. It is manifestly illegitimate, Kant argues, for the sovereign or judge to pursue personal and private commitments to compassion when such individuals have explicitly taken on the public responsibility of administering justice.
The tension – perhaps even contradiction – between justice and mercy produces paradoxes even with respect to the idea of divine mercy. Anselm, for example, found it paradoxical that God, who is committed to justice, could through his mercy spare the wicked from the eternal punishment that they deserved.
Perhaps the way out of this paradox, at both the human and the divine level, is to distinguish between two different models of mercy: the criminal law model and the private law model. On the criminal law model, a judge has an obligation (a role responsibility) to enforce just laws by imposing the just sanctions specified. The responsibility of the office precludes appeals to personal compassion, since the very essence of the job is defined in terms of certain specified duties. This criminal law model would, of course, have serious problems as a model for divine justice. God is presumably not like a judge in a criminal case, having the duty to enforce rules that are independent of his will, but is in some sense the author of the rules that are enforced. God is thus not accountable to a constituency in the way a human judge is, and thus does not experience anything that might plausibly be regarded as role responsibility or role conflict. Anselm, however, may have been tempted to see God occupying such a role; his paradox seems to depend upon seeing God caught in the very kind of dilemma that might plague a human judge in a criminal case.
A private law model of mercy, however, might allow us to avoid some of the tensions between mercy and justice at both the human and the divine level. According to this model, mercy is best illustrated not by a judge in a criminal case, but by a private party in a private lawsuit. Shakespeare’s The Merchant of Venice nicely illustrates this private law model in its portrayal of Portia pleading with Shylock to show mercy to Antonio, a man who has defaulted on a contract and who now, according to the terms of the contract, owes Shylock ‘a pound of flesh’. Unlike a judge, Shylock has no duty to enforce any legal rules. Rather, the legal rules of contract give him certain rights, rights that he is free to waive if he chooses. And it is such a waiver, motivated by compassion, that Portia is asking him to consider – a waiver that, since he has only rights and no duties in this situation, could not open him up to a valid charge of injustice or dereliction of duty.
So too, one might say, for God. If God is properly conceived as a being who mainly has rights over his creatures rather than external (non-self-imposed) duties to them, then perhaps he may show mercy – waiving his right to consign a person to eternal damnation – without being validly charged with injustice. We may now begin to see our way out of at least one paradox about mercy. Others, however, may still be present – for example, what might be called the ‘equal protection’ paradox raised by Anselm when he wondered how God, a rational being, can consistently show mercy to some who are unworthy while punishing others who are equally unworthy.
Both forgiveness and mercy, because of the tensions they generate, will no doubt remain problematic concepts that will continue to generate rich philosophical and theological discussion. It is an obvious truth, of course, that the virtuous person is one lacking in neither charity (the primary foundation of mercy and forgiveness) nor justice (the primary foundation for resentment and punishment). What is by no means obvious, however, is how these virtues are to be brought into harmony in all the actual complex cases that arise in the moral lives of individuals and communities.
Murphy, Jeffrie G.. Mercy and justice. Forgiveness and mercy, 1998, doi:10.4324/9780415249126-K024-1. Routledge Encyclopedia of Philosophy, Taylor and Francis, https://www.rep.routledge.com/articles/thematic/forgiveness-and-mercy/v-1/sections/mercy-and-justice.
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