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Published online by Cambridge University Press: 13 January 2009
Internal and External Questions. The most profound questions in ethics, social philosophy, and the philosophy of law are foundational; i.e., they are questions that call the entire framework of our ordinary evaluations into doubt in order to determine to what degree, if at all, that framework can be rationally defended. Such questions, called “external” by Rudolf Carnap, are currently dominating my own philosophical reflections and are forcing me to rethink a variety of positions I have in the past defended.
1 See Murphy, Jeffrie G. and Coleman, Jules L., The Philosophy of Law (Totowa: Rowman and Allenheld, 1984)Google Scholar and Murphy, Jeffrie G., “Retributivism, Moral Education, and The Liberal State,” Criminal Justice Ethics, vol. 4 (Winter/Spring 1985)CrossRefGoogle Scholar
2 Rawls, John, A Theory of Justice (Cambridge: Harvard University Press, 1971), pp. 48–51.Google Scholar
3 See my “Rationality and Constraints on Democratic Rule,” Pennock, J. Roland and Chapman, John W., eds., Nomos XXVIII: Justification (New York: New York University Press, 1986), pp. 141–164.Google Scholar
4 See, for example, Feinberg, Joel, Harm to Others (Oxford: Oxford University Press, 1984).Google Scholar Feinberg explicitly refuses to address foundational issues (taking a kind of “liberalism” as a given) and still manages to enrich our thinking about morality and the criminal law to a profound degree.
5 “Even God prays. What is His prayer? ‘May it be My will that My love of compassion overwhelm My demand for strict justice.’” Mahzhor for Yom Kippur, The Rabbinical Assembly of New York, 439 (from Berakhot 7a).
6 Note that this is a list of commonly held views about mercy and its relation to justice. I shall later argue that some of these views – (5) in particular — are distorted or mistaken.
7 “Forgiveness and Resentment,” French, Peter A., et al., eds. Midwest Studies In Philosophy, VII: Social and Political Philosophy (Minneapolis: University of Minnesota Press, 1982) pp. 503–516.Google Scholar
8 Note that I describe the judge's job to be that of upholding the rule of law. I mean by this the upholding of legal rules that meet certain standards of justice, not the mechanical upholding of any legal rules at all no matter how unjust they may be. Of course, I do not believe that judges should enforce legal rules in the absence of any reflection on the merits of those rules from the point of view of justice. If the rules are unjust, then if the judge has discretion, he should use that discretion to seek to do justice. (If the judge has no discretion and if the rules are terribly unjust, then such drastic acts as resignation or civil disobedience may be in order.) These complexities, however, do not show a need for a special virtue of mercy; and only a highly impoverished view of justice (i.e., that it is simply mechanical rule following) would make one think that these complexities could not be dealt with in terms of a sophisticated theory of justice.
9 The point here, I take it, is that the judge who is influenced by the plight of the offender before him may lose sight of the fact that his job is to uphold an entire system of justice that protects the rights and security of all citizens.
10 A critic has suggested that I am here confusing the unjust with the non-just – that I fail to notice that some acts (perhaps some acts of mercy) are non-just (neutral from the point of view of justice) in that they are neither unjust nor required by justice. What bearing might this observation have, even if correct, on the issue of mercy in a criminal law context? None that I can see. To be morally acceptable, a non-just act would at least have to be permitted by the rules of justice; but, on standard versions of retributive justice (e.g., Kant's), it is not permitted from the moral point of view that persons receive less punishment than, in justice, they deserve. To give them less punishment would be to do an injustice.
11 Smart, Alwynne, “Mercy,” Acton, H. B., ed., The Philosophy Of Punishment (New York: St. Martin's Press, 1969), pp. 212–227.Google Scholar (Smart's article originally appeared in Philosophy, October 1968). Card, Claudia, “Mercy,” Philosophical Review, vol. XLIII (April 1972), pp. 182–207.CrossRefGoogle Scholar Since Smart's essay provides me with a useful starting point from which to develop what I want to say about mercy, I will focus my discussion primarily around her piece and will thus not give Card's rich essay the detailed discussion it deserves. I will comment on it only in passing. Card, like Smart, operates within what I will later call the Criminal Law Paradigm for mercy (a paradigm I will reject) and, also like Smart, she seems to offer a view of mercy that makes it a part of justice (on a sophisticated theory of justice) and not an autonomous moral virtue.
12 The idea that natural suffering can serve as a substitute for legally imposed suffering is complex and perhaps incoherent; see my “Forgiveness and Resentment,” p. 509 and note 17.
13 Perhaps we also think that prison will be harder on them and thus that they may suffer more than they deserve. Perhaps we might also think that young people are more likely to be influenced by the bad environment that prison represents.
The idea that it is immoral to impose a level of suffering out of proper proportion to a person's character is also central to Card's view of mercy. She writes: “Mercy ought to be shown to an offender when it is evident that otherwise (1) he would be made to suffer unusually more on the whole, owing to his peculiar misfortunes, than he deserves in view of his basic character and (2) he would be worse off in this respect than those who stand to benefit from the exercise of their right to punish him (or to have him punished). When the conditions of this principle are met, the offender deserves mercy.” (“Mercy,” p. 184) Card thus seems explicitly to classify merciful acts as a subcategory of just acts, and not as acts autonomous from justice. But then I fail to understand how she can say (also on p. 184) that “desert of mercy does not give rise to an obligation.”
14 In commenting on an earlier draft of this paper, Lewis Beck raised the question of how the demand for individuation (which I suggest is a demand of justice) can be squared with the common and intuitively compelling metaphor that “justice is blind.” The short answer, I think, is this: justice is not to be totally blind but is, rather, to be blind to all aspects of an individual that do not have a bearing on the question of what his just treatment or just deserts really are, e.g., race, sexual attractiveness and willingness, ability to bribe, etc.
15 Those who desire to talk about mercy in this context probably do so because they have an overly restricted and simplistic conception of justice and thus fail to appreciate all that would be involved in a sophisticated theory of retributive justice and the role of the judiciary in implementing such a theory. It might be worth nothing, in this regard, that in our particular legal system most visible law-reforming judicial activism in the cause of greater individuation will take place at the level of a court of appeals. Trial judges (in giving instructions, for example) and trial juries (in refusing to convict, for example) may move toward greater justice in particular cases, but what they do does not become a public and permanent part of the law in the obvious way provided by written opinions of a court of appeals (particularly the Supreme Court).
16 Recall that by this claim I do not mean that judges are always obligated to enforce any rule no matter how unjust that rule may be. My point is rather this: the focus of a judge, either in enforcing a rule or in seeking a way to modify or get around it, is to be on the question of what is required by justice – not on what he may be prompted out of compassion to do.
17 Special problems may arise for a chief executive or head of state in his exercise of the power of pardon. The “job description” for such an office may, to borrow some language from Aquinas, involve a concern for the common good or common welfare of the community in the executive's care. This might mean that, in deciding whether or not to pardon an individual, the chief executive (unlike a judge) might legitimately draw upon values other than the requirements of justice and thus might legimately ignore the just deserts of an individual and pardon that individual if the good of the community requires it. This whole account, of course, presupposes a political theory of the various offices and roles required by society and a theory of the proper values and decision-making criteria proper to (and perhaps unique to) each of the offices and roles. Space does not allow the articulation, much less the defense, of such a theory here.
18 This section draws heavily on Twambley's, P. important article “Mercy and Forgiveness,” Analysis, vol. 36 (January 1976), pp. 84–90.CrossRefGoogle Scholar
19 Portia serves a complex role in the play. She does not simply represent the virtue of mercy but also stands as a representative of hypocrisy, unjust manipulation, and anti-Semitism.
20 There may be special problems in cases (defamation?) where tort suits aid in upholding certain socially important rules and protections. In this sense they are not purely private legal matters even though they are handled in the private law rather than in the criminal law. Thus, there may be cases where an individual might feel a public responsiblity to proceed with a private lawsuit.
21 I say “not necessarily” because there are cases where a refusal to stand on one's rights and demand just treatment would reveal a lack of self-respect and a lack of respect for oneself as a morally relevant object (and thus a lack of respect for the rules of morality themselves). Of course, not every case of standing on one's rights (no matter how trivial) is of this nature.
22 Sterling Harwood has suggested to me in correspondence that the tempering metaphor might illuminate if applied to persons and their dispositions rather than to the rules of justice themselves. A person, on this view, should temper his just personality (a dominant disposition to see that justice is done) by developing (if possible) a disposition to be merciful (an openness to being moved by the plight of others to the degree that one will not always demand one's just rights from them). This suggestion seems correct to me. Bishop Butler, in his classic sermons “Upon Resentment” and “Upon the Forgiveness of Injuries” is, of course, brilliant on such topics.
23 Should judges in civil cases follow Portia's lead and encourage litigants in some cases to show mercy? Perhaps; but there are problems here. The desire to settle cases and avoid the human and financial costs of litigation is certainly a reasonable one; but, as Jules Coleman and Charles Silver have argued elsewhere in this volume, there are serious social costs involved in settlement as well, e.g., the cost of not having the law clarified in the way that actual litigation makes possible.
24 For a discussion of the Principle of Sufficient Reason (a rational being will not prefer one thing over another without basing that preference upon some relevant difference between the things) and equal protection, see my “Justifying Departures from Equal Treatment,” Journal Of Philosophy (October 1984), pp. 587–593.
25 This section of the paper was greatly improved by some comments and suggestions of Ray Elugardo.
26 Harman, Gilbert, “Justice and Moral Bargaining,” Social Philosophy And Policy, vol. 1 (Autumn 1983), pp. 114–131.CrossRefGoogle Scholar Similar views may also be found in such otherwise diverse thinkers as Hume, Marx, and Nietzsche.
27 For a stimulating argument that Kantian conclusions can be generated from egoistic premises and that central Kantian doctrines can be rationally reconstructed on the basis of models that initially seem anti-Kantian, see Gauthier, David, “The Unity of Reason: A Subversive Reinterpretation of Kant,” Ethics, vol. 96 (October 1985), pp. 74–88.CrossRefGoogle Scholar As Lisa Isaacson has pointed out to me, the analysis presented in this final section of the paper will probably not help with the paradoxes of divine mercy, for it is probably not reasonable to view God's morality as a result of a bargain He strikes with humanity in order to advance His interests.
