Alex Tuckness and John M. Parrish: The Decline of Mercy in Public Life. New York: Cambridge University Press, 2014.
Contemporary politicians commend their compassion to voters’ attention, but mercy has disappeared from the public vocabulary. Tuckness and Parrish summon considerable learning to describe the changing status and, indeed definitions of mercy in philosophic and theological thought. The moral and political philosophers of Western antiquity found no inherent tension between justice and mercy; they subsumed both under the rule of reason, which required the prudential exercise of equality in the application of law and restraint to such passions as anger and pity. However, Christian thinkers (particularly in the West) have attended to the revelations of a Creator-God separated from and radically superior to the nature God made, doing so in the political context of human monarchs charged with imitating that God without enjoying God’s all-encompassing wisdom. For Christians, justice and mercy, both esteemed, rested uneasily together. Discounting God, modern philosophers (idealist and utilitarian alike) have endorsed the impersonal, egalitarian, and legalistic rule of the modern state. This leaves room for justice, now conceived of as equal individual rights, but makes acts of mercy seem arbitrary, perhaps unjust.
The authors begin with Jesus’ words in Matthew’s Gospel, “I desire mercy, and not sacrifice.” ‘We moderns’ no longer do, so much; as the authors (somewhat unmercifully) remark, presidents and governors typically issue pardons just before leaving office, lest they themselves suffer revenge at the polls. We regard mercy and justice as contradictory. “The lenient judge, the forgiving creditor, the merciful benefactor, or the loving parent”: These are our models of mercy, all implying a quality “more lenient than the external standard of justice dictates.” This opens it to the unsparing criticisms of Nietzsche—that mercy amounts to softness, weakness, to nothing more than the timid resentment of the weak as they look at the strong, the leveling urge of the democrat, himself only a secularized Christian. Earlier, more measured, but still stinging objections to mercy may be found in both Kant and Bentham, ordinarily viewed as philosophic opposites; however, both register the moral underpinnings of the modern state, with an “increasing emphasis on equality, impartiality, and the legal constraint of discretion,” which “made it significantly harder for public officials to view their role as analogous to that of a judge, father, creditor, or benefactor.”
“Modern objections to mercy take the particular shape they do because of contingent aspects of the development of these concepts in the Christian West.” Illustrating this contrast, the book’s first section addresses “moral and religious traditions that developed separately from those of the modern West,” traditions that “show the breadth of possible understandings of justice and mercy.” The traditions selected are Buddhism, Islam, and Eastern Orthodox Christianity.
Buddhists define mercy as a form of benevolence or compassion, but not in contradistinction to justice. Theravada Buddhism posits no god who chooses between justice and mercy; more, “in Theravada Buddhism there is no obligation on anyone, including human beings, to make sure people get their just deserts,” since “Karma can take care of itself.” The Buddhist practitioner aims not at meting out justice but to escape the cycle of karma and rebirth altogether; he pities the evildoer because such a person has already punished himself by doing wrong, foolishly opening himself to karmic retribution in this life and/or his next life. This is why rulers, whose allotted role in life, effectively as agents of karma, includes punishing wrongdoers, find themselves in a position inferior to that of monks. “Buddhism directs kings to use political power appropriately while also questioning the validity of the political enterprise as a whole.”
Mahayana Buddhism changes Theravada doctrines respecting mercy in two ways. First, Mayahana Buddhism commends actions aiming at the good of others more than actions aimed at improving one’s own future reincarnation. “People who show compassion to others as a means to achieving their own enlightenment are less praiseworthy than those who are willing to put off Nirvana for themselves so that they can help others enter into that state.” Second, Mayahana Buddhism directs its adherents’ attention to the particular character and needs of the person so helped. Rulers should direct punishment at “restraining evil,” preferably “without actually having to use violence.” Murderers might be banished, not killed or tortured; thus “the kingdom is safe” but without the exercise of cruelty and bloodshed. This integrates mercy into the operation of justice; in no way does mercy “deviat[e] from the demands of justice.” “Helping people avoid the consequences of their actions in the next life is consistently regarded as praiseworthy rather than unjust.”
Although Islam sharply differs from Buddhism in positing a single, personal god—”the supremacy of Allah’s will is the starting point”—it concurs with Buddhism in denying any distinction between justice and mercy. The first Sura of the Qu’aran refers to Allah as “Most Merciful,” by which it means foremost of all forgiving. The founder of the now-dominant Ash’arite school of Islam, Abū al-Hasan al-Ash’arī, “claimed that God’s will becomes obligatory only through revelation and denied that reason stipulates anything as rationally necessary.” This being so, God’s Will or Plan—known to us only insofar as God reveals it, but no more than that—must prevail, and God’s Will manifests full justice in both punishment and forgiveness. According to Qu’aranic revelation, offenses against God must be punished as prescribed, lest the punisher defy God’s Will; offenses against a human being may be forgiven by the injured party, who will be rewarded for his mercy by Allah. If I show mercy, I am following Allah’s example; Allah is pleased. “By contrast, in most Western legal systems the decision to prosecute lies in the hands of the state for both types of offenses”; “those most harmed are not those who make the decision to grant mercy.” In contemporary Iran, however, the state doesn’t pardon offenses because it is not the injured party, but the family of (for example) a murder victim may grant a pardon and spare the murderer from the death penalty the state otherwise would have inflicted.
Orthodox Christianity puts mercy very near the center of God’s character, but mercy encompasses “God’s kindness and blessing”—God’s agapic love for His creatures. Jesus’ death on the Cross signifies not so much “that a debt is paid or that a punishment due another is endured, but simply that death and the devil have been defeated.” Forgiveness of sin manifests agape; Jesus’ suffered as our companion in suffering, not as our Savior. Similarly, when a Christian acts mercifully he imitates Jesus, “a loving and compassionate benefactor.” Orthodox Christianity associates mercy “as much with a good done to the righteous as with mitigation of punishment to the wicked.” It “frame[s] the exercise of political mercy in terms of Christian love rather than a setting aside of justice,” which belongs “to God and God alone.” Punishment “aim[s] at the good of others, both the criminal and the victim.” In contrast with this, and with Buddhism and Islam, “Western-influenced philosophical and political traditions draw on a strain of Christianity that includes… the sense that the moral universe is constituted by absolute and independent requirements of justice, which are at least partly retributive in character and which in some sense even God cannot simply supersede or suspend.” Thus “the decline of public mercy tracks more with the decline of Christianity in public life in the west than with its ascendancy.”
What is more, the West itself did not always dichotomize justice and mercy. “The ancients generally understood retribution as ‘paying back’ and thus as a necessary means of vindicating honor,” “not by reference to an independent standard of justice.” Merciful treatment meant “treating an offender more leniently than one otherwise would have, rather than as one should have.” In the Iliad, for example, the Argives make war on Troy to avenge the honor of Patroclus, whose wife the Trojans stole, and the honor of the Argive dead, killed by Trojan hands. Achilles’ rages at the dishonor suffered by his friend and his city. Similarly, the antagonists in the debate over punishing the inhabitants of Melos, recounted by Thucydides, turns on the question not of mercy and justice, but mercy and empire. Cleon argues that mercy must not apply to offenders who act deliberate, and that pity, sentiment, and indulgence are “fatal to empire”; in his counterargument Diodotus doesn’t appeal to justice but to the same requirements of imperial rule, maintaining that harsh punishment of the Mitylenians would alienate other poleis within the Athenian empire.
Plato, who assuredly does have Socrates uphold a standard of justice as distinct from personal vengeance, uses that standard to limit the passion of anger, elevating reason over all emotion, including pity. Here, however, equity supplements justice when circumstances mitigate the offense. Similarly, for Aristotle “virtue is not an emotion, and thus neither pity nor anger is a virtue in and of itself.” Pity comes in when considering the work of rhetoricians and poets, where its deployment serves to persuade, not truly to justify. As for benefaction, Aristotle associates it with the virtues of liberality and magnanimity, not with pity, compassion, or mercy. The great-souled man does not forgive injuries but overlooks them, out of the unshakable strength of his character. As in Plato, in courts of justice equity replaces or at least moderates anger and pity. As Aristotle puts it, “forgiveness is judgment which discriminates what is equitable an does so correctly,” that is, in light of mitigating circumstances. Practical reasoning, prudence, rules.
In Rome as in Athens, “the rationales for showing mercy… were primarily instrumental.” To spare the conquered enemy made sense as part of imperial policy. What is more, when Roman imperialism came under the regime of monarchy, clemency seemed a brake on such unshared power, a bulwark against “a return of the terrors of abused power that haunted Rome’s history through the story of the Tarquins and their monarchical excesses.” Julius Caesar valorized clemency—so much so that Cicero criticized him sparing his future assassins, Brutus and Cassius: “His clemency was his undoing, but for which nothing of the sort could have happened to him.” Cicero nonetheless praised clemency in a monarch, while dispraising it in republics, where we act “not on our own behalf but rather on behalf of the republic.” Even Seneca, no Platonist, concurred with Plato in giving “the only reasons for punishing crimes committed by one subject against another [as] the forward-looking reasons of rehabilitation, deterrence, and public safety,” not vengeance. For him, mercy has nothing to do with pity but serves rather as a means of limiting the rage for a justice defined as requital. What’s “surprising to the contemporary reader is that Seneca’s criterion for mercy is not pity or compassion but equity and the good.” In general, “most of the classical debate concerns the proper place within politics of two emotions, anger and pity, compared with the proper role of reason.”
“With the introduction of Christianity, by contrast, mercy takes on a central role moral importance,” and with the conversion of the emperor Constantine some four centuries after Jesus lived, it took on political importance, too. Tuckness and Parrish recall that Christians translated the Hebrew word hesed as agape in Greek, clementia (leniency) and misericordia (pity) in Latin, mercy in King James English. For early Christians, “Christ’s crucifixion, death, and resurrection functioned mainly as an example of the nature and extent of God’s love and the response required to overcome sin”—the response being understood as a ransom payment. Beginning with Cyril, however, Christians questioned whether God could be said to owe anything at all to Satan; Augustine firmly rejected such a notion, understanding the crucifixion as Christ’s triumph over the devil (as would Orthodox Christians continue to do, after the Great Schism). Only Jesus could do this because, being sinless, “Christ alone among human being did not owe his death as a punishment.” After the Fall, human beings deserved to suffer Satan’s rule but Satan “did not himself have any claim of right or desert over human beings,” having plotted their ruin against God’s intention. In describing God as angry with man, Augustine explained, His Scripture means “nothing but just retribution” for our own injustice toward Him.
But why then does God supply mercy to some of us but not to others? To some extent Augustine anticipates Muhammad’s answer, that God’s “judgments are not arbitrary but they are impenetrable to human reason and will be made plain only in eternity.” Meanwhile, we must content ourselves with thinking that God permits evil “to help display goodness, by showing it, as it were, in relief.” If God were to universalize compassion, “then God would save Satan as well”; “eternal punishment is not excessive because we underestimate the gravity of sin.” Put otherwise, ‘reality’ is ‘about’ God, not us. Indeed, the ultimate reality is God, Who originated all else and rules it. “The good, for Augustine, is not about feelings of pleasure or pain”; it is “the achievement of God’s purposes.” The grief of the damned “is the one way remaining open to them to honor what is truly good.” This teaching differs from Muhammad’s teaching in offering a reason for God’s will, while avoiding the assumption that God Himself refers to some standard of justice ‘prior to’ Himself, either in precedence or in time.
In terms of the rule of humans over humans, “the motive of love is the crucial factor for deciding when to punish and when to show mercy.” Augustine “begins to blur the distinction between clementia and misericordia, “mercy as leniency and mercy as compassionate benefaction.” Depending on the circumstances, a ruler might inflict punishment lovingly, or mercy—mercy being “the proper balance of concern for the offender and concern for the larger public.” Mercy as compassionate benefaction, however, is always good. Further, and again unlike classical philosophers, Augustine distinguishes the role of the Church from the role of the government. The Church properly pleads for leniency whereas “the government’s task is to determine whether leniency is in the best interest of all.” Such a moderating influence proves helpful because although rulers may have the same motive as God—justice—they won’t have God’s knowledge of human motives, “including their own.” Rulers therefore should concentrate their minds on “maintaining order.” For its part, the clergy may go beyond pleading for leniency and ask for mitigation of or even forbearance from punishment, keeping (in Augustine’s words) “Christian gentleness in view” even while acknowledging that if punishment prevents future crimes it is merciful. As with karma in Hinduism, God eventually will exact retribution; mercy may move the guilty to repent; and mercy demonstrates the relative insignificance of the temporal realm as compared with the eternal. Agapic love extends to the guilty as well as the innocent, and in this way distinguishes itself from anything seen in the classical philosophers. This is why “for most of the subsequent Christian tradition, mercy came to be seen as praiseworthy by definition,” a virtue instead of a sentiment.
Augustine’s thought comports with empire and monarchy. “The various metaphors for mercy fit together much more coherently in public life if one assumes the existence of a king, prince, or magistrate who stands, so to speak, in the place of God as the ultimate judge, creditor, benefactor, and father of the people.” It is Anselm who brings out a tension between justice and mercy. “Whereas early Christianity had emphasized the cross as the place where God defeated Satan, Anselm transformed it into the crucible where a wrathful God would be satisfied with nothing less than payment in full from humanity,” a debt paid by Jesus as “humanity incarnate” in accordance with what theologians now call the doctrine of “mandatory satisfaction.” According to it, “the wrong done to God’s honor through human sin was so great that it would be unjust for God to simply forgive it”—an argument reminiscent of the Homeric heroes respecting themselves. “God to act rightly must uphold his own honor,” “because the order of the universe is harmed if God’s honor is not upheld.” In his book Why God Became Man Anselm asks why God acted through the incarnation and atonement of Jesus Christ, instead of (for example) simply forgiving us. Earlier theologians’ ‘ransom’ hypothesis won’t do, as it implies Satan had rights God needed to respect.
Anselm begins by observing that human beings owe honor to God as their Creator, either voluntarily “through an obedient will” or involuntarily “through punishment.” For obedience to be perfect “it must proceed from right motives,” not merely because we expect rewards and/or fear punishments. “Any departure from this [perfect] moral standard incurs an infinite debt, which human beings cannot repay because even perfect future obedience is not more than is owed and, therefore does not generate any surplus merit” which might cover the original debt. Yet God also “wills that human beings be saved,” an intention that sets up a difficult paradox. “The heart of the paradox is that one of Adam’s race must somehow make the payment for Adam’s race, yet none of Adam’s race can possibly accrue merit as a mere creature, and a sinful creature at that. Christ, however, because he never sinned, and yet was tempted to sin and so accrued merit for his obedience, could through his divine nature offer something to God on behalf of humanity that was not already owed, namely a willingness to die innocently to restore God’s honor.” On the Cross, “something miraculous happened apart from which God’s mercy could not have been justly extended to human beings.”
Peter Abelard objected to Anselm’s argument as follows: “If Jesus had to die to make satisfaction for sins… what satisfaction is left for the evil of the crucifixion itself, the worst sin of all?” To demand the blood of an innocent person is “cruel and wicked.” Abelard explains mercy not in terms of mandatory satisfaction or of ransom, but (recurring to the early Fathers) in terms of agape. By becoming human and dying “in our place,” Jesus “more fully bound us to Himself by love,” making Himself the supreme example of how we ourselves should act in loving gratitude to Him. “This love Christ inspires in us is what ultimately saves us”; Paul’s teaching that Christians are saved by faith means, in Abelard’s words, “the love which comes from our faith in our salvation through Jesus Christ” induces us to repent our sins and atone for them, thus making us deserving of God’s mercy.
The greatest of the Christian theologians, Thomas Aquinas, does not claim that we can deserve God’s mercy. He recurs to Anselm’s understanding, but with a nuance that relieves it of Abelard’s objection and at the same time alleviates Anselm’s paradox. Aquinas defines mercy as misericordia or sympathetic aid to those in need. He extends this to the realm of divine judgment and forgiveness of sins by observing that God the Father gave his Son to pay the debt humanity incurred, and will continue to incur. The evil of the crucifixion was God’s willed self-sacrifice. Thus, and contra Anselm, “mercy does not contradict justice but instead goes beyond it.” Some other means of forgiveness would be equally just, but “less fitting” because “less merciful.” Only those who “continue to turn away from God incur a debt of eternal punishment.” As did Anselm, Aquinas understood God “to be both creditor and benefactor.”
When it comes to this understanding of mercy, the Protestants did not protest, either in theological or political terms. Regarding the latter, Martin Luther retained the Augustinian distinction between the functions of the political authority and those of the Church, even as he redefined that body itself. As with Anselm, “divine justice and divine mercy are inherently in tension with one another and can be reconciled by divine provision alone.” Calvin, who leans toward the Muslim view of God respecting the “voluntarist” notion that “God’s will is wholly unfettered” by any standard beyond itself, nonetheless concurs with Aquinas in maintaining (as he writes) that God “might have redeemed us by a single word, or by a mere act of his will, if He had not thought it better to do otherwise for our own benefit, that, by not sparing his own well-beloved Son, he might testify in his person how much he cares for our salvation.” As for human rulers, for both Luther and Calvin they are agents of God’s righteous anger but (as in the earlier theologians) only in the general sense of hating the sin while loving the sinner.
Modern political philosophy took over the Anselmian distinction between justice and mercy. Initially, modern (that is, ‘Machiavellian’) philosophers attempted to adapt natural right to a doctrine that asserted a human right and capacity to conquer nature. That is, one element of nature, man, would work to master its the rest of nature, bring it under its control. Tuckness and Parrish begin their account with the theologian Socinus, who denied the doctrine of original sin on the grounds that the sins of the father could be should not be ‘inherited’ by his child; in addition, Socinians usually rejected the existence of eternal punishment as unreasonable. On the proverbial other side of the coin, mercy also became equally suspect—seeming too arbitrary to conform to any rational standard of conduct; Socinus insists on a reasonable Christianity. The modern natural right philosophers added to this individualism and rationalism a right to self-preservation, which entitled a starving person to demand assistance or to seize the food he needed. “To the extent that justice could replace mercy as the basis for meeting the needs of the poor, it became even easier for mercy and justice to be seen as alternatives.”
Hugo Grotius eschewed reasonable Christianity by placing God above any and all laws. God in the universe occupies the same position as a father in a family and a king in a state, distributing punishment and pardon as a matter of prerogative. Being transcendent, God has no reason to require payment of a debt or to forgive one because He “cannot be harmed by human beings and thus cannot be a victim.” God judges and punishes and pardons in this supreme, sovereign authority. As for human rulers, Grotius distinguishes between debts and crimes. “Forgiving debts… remains fundamentally distinct from forgiving punishments, because a creditor ‘has the freest power of decision’ with respect to whether or not his debt is collected”; liberality is not leniency or clemency. A creditor and a debtor have a private relationship, and the creditor may demand or forgive repayment at his discretion. Not so, a criminal offense, which involves a threat to the good order of the community in addition to personal injury. Further still, Grotius understands the good order of the community to require rulers to attend understand justice and mercy in “a purely forward-looking” manner: Will their actions correct, restore, restrain, and deter those break the law and those who might think of breaking the law? He rules out revenge, except for God. This shifts human choices regarding mercy into a rational, non-arbitrary framework. And even God rules on “forward-looking ground in order to save human beings,” as “Jesus dies on the cross not because retributive justice demands it but because the future preservation of (eternal) law and order does.”
Muhammad-like, the resolutely materialist Thomas Hobbes considers God’s mercy as determined solely by His will—”the utterly unconstrained freedom of God to exact whatever punishment he wishes”—not by considerations of honor or justice. Hobbes quickly begins to undermine belief in the existence of God itself, denying that “Hell” could mean anything other than everlasting death, not torment, and thus weakening his reader’s fear of God, which is assuredly not the beginning of wisdom in an atheist’s estimation. Punishment by the human rulers makes sense as an incentive to their subjects’ obedience; fear of the monarch replaces fear of God as the beginning of Hobbesian wisdom. Revenge is wrong because “it contributes to the unraveling of a fragile peace” in civil society, the violation of which threatens the fundamental natural right of self-preservation. Revenge is mere vainglory. “Punishment is the essence of sovereignty for Hobbes”; concurring with Machiavelli’s valorization of lo stato, Hobbes “participates in the gradual shift across early modern Europe toward viewing crime primarily not as a conflict between two private parties, but rather between the criminal and the state.” The spirited, ‘aristocratic’ jealousy for one’s honor erodes, given this “radically egalitarian undercurrent.” The state, with its monarchic regime, respects “impartiality of judgment” not respect of high-born persons, all in pursuit of its purpose of guarding the right of self-preservation for each individual person within it. This limits mercy, inasmuch as crimes against an individual must not be “remitted at the discretion of the victim,” anymore, only at the discretion of the sovereign, who, as in Grotius, bears responsibility for the good order of the commonwealth. “The crime is really against the commonwealth, not the victim.” The sovereign’s discretion rests “not on anger or just desert, but instead on the desire to procure peace for the people.”
Locke affirms the need for the modern state and for a strong executive while recognizing that a centralized ruling apparatus controlled by one man might easily endanger the rights it aims to secure. In the law of nature as well as the law in a rightly-ordered civil society, executive power punishes crime to restrain those who violate natural rights, prevent such offenses in the first place, and imposing reparations upon offenders. As in Grotius and Hobbes, punishment ‘looks forward,’ not backward, eschewing retribution. As in Hobbes, Lockean prerogative enables executives to set the written law aside “in cases where the public good demands it,” thus permitting but also restricting mercy to such cases. A misuse of the prerogative power justifies the right of the people to revolution—another restriction on it. Arbitrary action is “a core violation of natural right.” As the author of a treatise opposing the model of patriarchy for human rulers outside the family, Locke denies the ruler any “claim that crimes create debts owed primarily to the king as creditor.” As in Hobbes, the offense is against the sovereign—in Locke’s view, the people.
Generally, the early modern political philosophers begin “a transition away from virtues and toward rights as the paramount ethical category, particularly in the realm of law and politics.” This begins to push mercy as misericordia in the direction of public provision for the poor instead of private charity. Consistent with Machiavelli’s doctrine, mercy becomes a “tool, alongside punishment, that could be used to procure the public good.” Mercy becomes instrumental, not intrinsically good. This tracks “growing controversy and skepticism about traditional Christian doctrines,” with a concurrent tendency (again Machiavellian) to argue “from politics back to theology rather than vice versa,” with politics “defined through natural reason,” said to be “much more securely known than the justice of God.” Finally, “by the end of the seventeenth century… the rising importance of equality as an organizing principle for public life had led the modern natural rights theorists to begin looking for alternatives to mercy that could be formulated in terms of right and clear rules enforceable by the state, rather than voluntary acts of individual virtue”—a clear instance of moving from personal rule of God and monarchs to the impersonal rule of lo stato.
Natural right itself came under attack by philosophers who denied that right could be derived from nature at all, that ‘ought’ can issue from ‘is.’ This denial, seen explicitly in the writings of David Hume, inclined many philosophers toward deriving right from utility. In endorsing mercy, Hume himself justified it as useful. Unlike the subsequent utilitarians, however, Hume leavens utility with moral sentiment, particularly benevolence and sympathy, influencing Adam Smith most immediately but also Kant and other ‘deontological’ or ‘idealist’ philosophers. He also insists on an equality principle, namely, equal treatment under the law, which will have substantial ramifications for the status of mercy in public life. All of these themes enter into both of those main lines of subsequent jurisprudential thought, for “while it is tempting to understand utilitarianism by contrasting it with a nonconsequentialist theory like Kant’s, such a move obscures what these theories have in common,” namely, “a shared commitment to equality and impartiality that manifests itself when the topic turns to punishment.”
Cesare Bonesana-Beccaria follows Hume’s utilitarian line. He formulated the phrase which translates into English as “the greatest happiness of the greatest number,” which Jeremy Bentham would popularize. To achieve this end, Beccaria insists on equal punishments for equal crimes—”a major departure from past penal practices,” wherein the several social classes were treated as meriting unequal treatment by right of their very inequality. This raises problems for the practice of mercy in such legal cases, inasmuch as the just and prudent exercise of mercy, or even its trans-just exercise in some theories, requires attention to the particular details of the case at hand; all cases are not created equal. Crucially, Beccaria does not dispense with mercy altogether but calls for its integration into the legal code itself. In a Beccarian legal regime, the judge will apply the law with egalitarian severity, but the laws themselves will be mild, lenient. “Beccaria wants leniency through law rather than through executive or judicial discretion”—laws, for example, against torture and the death penalty. Whereas “mercy is local and specific and therefore seemingly arbitrary… leniency can be achieved by rewriting universally applicable laws with less severe penalties. A judge might well exercise mercy, but only if burdened by a code that is insufficiently Beccarian.
Such impartiality and universalizability enters into the ‘deontological’ moral theories leading up to and culminating in the writings of Immanuel Kant. That is, both utilitarianism and deontology or idealism partake of the egalitarianism formalized in Hobbes’s philosophy. Such British theorists as Samuel Clarke and Richard Price follow up on Hume’s lead but attempt to make it compatible with Christianity, intending “to harmonize traditional Christian ethical precepts with arguments that could be supported by reason alone,” especially reasoning based upon the egalitarian foundation of impartiality—as in the Christian description of God as no respecter of persons, that is, of social status. Impartiality, as we have seen, militates against mercy in judging, as does the age-old commitment to retributive punishment. Price combines both.
The much more influential and impressive philosopher, Jean-Jacques Rousseau, gives equal treatment under the law a natural foundation with his idea of the general will, which “links the impartiality of the law with the equality of citizens,” a thought that suggests both Adam Smith’s “impartial spectator” and Kant’s “categorical imperative.” While Rousseau emphasizes the moral centrality of compassion, but denies that compassion ought to be applied to a guilty man. However, in the state of nature man’s innate compassion makes him “a complete stranger to any form of sadism or cruelty,” vices of civil society not of human nature as such. With Machiavelli, Rousseau cautions that compassion in civil society must be limited, lest it degenerate into weakness. And because the egalitarian general will ought to pervade civil society, political mercy becomes dubious.
Smith, “like Hume, affirmed sentiment as the basis for moral judgments, yet he rejected the idea that our moral judgments do no more than track social usefulness”; what is more, Smith is no subjectivist, arguing that “our sentiments are moral if they correspond the sentiments of an impartial spectator,” who “serv[es] the same function that God served in more voluntarist divine command theories.” In a court of law, the judge “stands in for the impartial spectator,” “retain[ing] the capacity to pass judgment on specific acts, taking account of all contextual features, rather than simply selecting rules that must be applied regardless of context.” (Although the authors don’t mention it, this conforms with Smith’s skepticism about the impersonal, modern state, which he famously wants to as small as possible, in order to discourage it from curtailing market freedom.) He anticipates Kant insofar as his impartial spectator looks like a ‘personal’ version of the categorical imperative, but his very personalism also separates him from Kant and from statist German thinkers generally; also unlike Kant, he shares with Bentham an interest in the “forward-looking” understanding of justice and mercy, aiming at balancing them for the good of civil society.
Without God “to ensure that offenders received their just deserts through temporal punishments,” retributive justice falls “on human shoulders, bringing human mercy into decisive tension with the demands of human retributive justice.” Bentham and Kant see this as clearly as any Enlightenment philosophe. Bentham secularizes the universalism of agape, recasting it as benevolence. In so doing, utilitarians “tended to leave the language of mercy behind,” rejecting it as too particularistic, too much a matter of discretion. As in Christianity, the poor must be succored, but “mercy and charity envision an uncertain dependence of the poor on the rich.” Better far to avoid such arbitrary exercise of power; the atheist Bentham condemns God as “at best capricious and at worst mad,” a tyrant exercising terrifying, unlimited power. Punishment must not be eternal but swift, sure, unrelenting, but brief—except for ‘sure,’ many of the things divine punishment is not. In effect, Bentham generalizes Beccaria’s theory of crime and punishment, making of it “a method applicable to all moral questions whatsoever”; all moral reasoning should aim at “promot[ing] positive future consequences” by prevention and deterrence. “Positive” means maximizing happiness and minimizing pain for the greatest number of persons. Mercy must be systematically ruled out of public judgment because it makes justice uncertain. “Whereas for Machiavelli a few acts of spectacular cruelty could restore order, for Bentham only a clear and consistently applies rule avoids the cruel results mercy might unintentionally engender.” Of course, as the authors note, if empirical results showed that this proved ineffective, that “severe but uncertain punishment” deterred crime more effectively, “the utilitarian calculus would come out the other way.” That notwithstanding, Bentham (followed in recent years by Ronald Dworkin) regards strict impartiality as the indispensable fixed rule of justice. Private charity and mercy must therefore be replaced by legislating support for the poor. At most, private mercy can only find a place if it can be shown to “promote temporal well-being.”
The universalizing egalitarianism of modern thought generally pervades not only utilitarianism but Kantianism. Kant puts retribution squarely at the center of his moral practice, even as he puts the categorical imperative at the center of his moral theory. While utterly rejecting Benthamite regard for happiness as the end of human activity and thought, he therefore arrives at the same conclusion respecting punishment and mercy. If anything, he is more severe than Bentham. In Kant’s words, “The law of punishment is a categorical imperative, and woe to him who crawls through the windings of eudemonism in order to discover something that releases the criminal from punishment or even reduces its amount by the advantages it promises.” The categorical imperative strictly requires equal treatment under itself.
Because “his central ethical commitment is that freedom, not happiness, must be the orienting value for human society,” Kant “requires us to treat others as agents with the capacity to choose their own ends rather than merely as means to our ends”; “punishment is justified because it promotes freedom, not happiness.” The whole system of rewards and punishment, whether theistic as in Christianity or atheistic as in Bentham, “engender[s] a low habit of mind,” and amount to immorality. So much so that for Kant the use of incentives as determinants of moral thought is the original sin, as “the fall of humanity consisted in looking for incentives to do what is right and thus changing their maxim to one where right is done only for the sake of some other purpose.” God Himself must never be conceived as demanding honor or glory.
Specifically, Kant’s insistence on strictly equal treatment comes to sight in his demand that the punishment fit the crime (e.g., the death penalty for all murderers) and that persons who commit the same crime, whatever it may be, receive the same punishment. Private individuals may forgive, but public officials must not precisely because “pity leads the magistrate to protect the rights of some citizens less vigorously than those of others”; “the law [is] an equalizers of individuals who have been made unequal by the perpetrator’s crime.” As the authors observe, Kant secularizes Anselm: “the principles of justice are the same for all rational beings,” divine and human alike; neither Jesus nor anyone else can atone for the sins of another; divine and human justice alike (in Kant’s words)”must be unexceptionable and unrelenting.” Using Christian language, Kant calls the thoroughgoing adoption of a human soul to the standard of the categorical imperative a conversion entailing “the death of the old man” (the eudaemonic man) by “the crucifying of the flesh”; the “new human being” then suffers “simply for the sake of the good.” But “instead of Jesus making satisfaction for the sinner, in Kant’s theory the sinner makes satisfaction for himself by becoming a new being with a disposition like that of Jesus, punishing the self as a means of converting to the sought-after new disposition.”
“Kantian retributivism and Benthamite utilitarianism emerge as parallel, albeit partial, attempts to answer the question: How can the administration of punishment be made rational rather than arbitrary?… For both thinkers, the rational is the opposite of the arbitrary, and to avoid arbitrariness, punishment needs to constitute a kind of science”—for Kant, an a priori or ‘idealist’ science, for Bentham and empirical one. “In both cases they see their theory as a rational advance over arbitrary rule” and a “foundational commitment to equality understood as impartiality.”
Tuckness and Parrish largely skip over the historicist revolution in philosophy, devoting only a few pages to Hegel, satisfied that he doesn’t depart from the utilitarian and ‘idealist’ moral framework of his immediate predecessors to any very significant extent. They turn instead to the philosophic situation today, identifying three “main characteristics of mercy” shared by nearly all serious writers on mercy. These are the unequal status of the parties involved; the bestowal of benefit or mitigation of harm; and discretionary power. Discretionary power has proven the most controversial one, although inequality troubles democratically-inclined thinkers.
Christianity fully and readily integrates all these characteristics because it understands God as a father, benefactor, creditor, and judge. Absent the perfect and personal God, both inequality and discretionary power become troublesome. Thus Locke seeks to moderate the monarch’s absolute power by subjecting prerogative to legislative review. Beginning with Anselm, Christianity also introduced its own difficulty by distinguishing mercy from justice; in abandoning Christianity, modern political philosophy then needed to wrestle with the esteem for mercy Christian culture left behind. Rousseauian compassion and other agape-substitutes proliferate.
Where does this leave us now? The authors argue that “mercy can still be regarded as a plausible virtue in contemporary public life.” They examine four contemporary objections to mercy. The first is the complaint that mercy implies subjection to the arbitrary will of him who grants it. An arbitrary action might be random, inscrutable, uncontestable (i.e., one has no right to contest it), irrevocable, discretionary (i.e., without reference to some standing rule) and/or unjustifiable. Locke answers this objection by proposing the rule of law but recognizing that law needs to be interpreted and applied, and this must involve discretion. Further, lawmaking itself as well as its executive and judicial application can be constrained by institutional safeguards, as the American Founders, following Locke, demonstrated. Too-rigid application of a legal standard might itself become arbitrary, and no less so than the “particularistic decisions” of the old patriarchs. “The claim that mercy permits discretion and is therefore arbitrary rests on a truncated notion of both arbitrariness and mercy. It takes discretion to be the whole of the arbitrary, and thus fails to recognize ways in which laws can sometimes be more arbitrary than particularistic decisions are.”
For example, a rigid adherence to contemporary standards of human rights would have prevented South Africans from implementing their Truth and Reconciliation Committee in the aftermath of the abolition of apartheid. The “hard choices at stake in moments of great national harm requiring great national healing… may well depend on cultivating a willingness to forgive by those whose forgiveness we have no right to demand, toward those who have no right to expect it.” This will offend Kantian sensibilities, a distinction must be drawn between particular justice in every case and the overall conditions necessary to establish a just political regime.
The opposite danger, recognized by such otherwise antithetical thinkers as Augustine and Rousseau, is that “the indulgence of wrongdoing by a few may constitute cruelty to the rest.” This problem of “moral hazard” requires the exercise of still another moral virtue, prudence. For this reason, Plato and Aristotle, those adepts of phronesis, tug at the shirtsleeves of all subsequent moralists.
Finally, the retributivist theories (of which Kant’s system serves as the most influential contemporary example) oppose mercy because it treats people better than impartially applied justice would allow. The authors meet this “mercy paradox”—essentially the contradiction between two goods—by commending “epistemic humility,” a philosophy professor’s way of saying we don’t know all we need to know every single time, and we may not know all we need to know at any time. “Our moral intuitions about desert should not always be taken as decisive, and that consequently acting against those intuitions will not necessarily prove unjust.” The exercise of discretion remains an ineluctable fact of moral choice, public and private; freedom is a necessity, whether we are comfortable with it or not. “Disentangling our conceptions of mercy” by describing them in the manner Tuckness and Parrish have done “should at least drive us to admit the limits of our knowledge about what each person truly deserves, such that our guesses about desert need not always be fully determinative in our political and legal decisions.” They take one final deep breath and add, “This will not be easy.” Not only the classical philosophers but God Himself acknowledged this, as seen on the Cross. It is time the moderns saw it, too, and this just and merciful book should help.
Recent Comments