Justice v. Mercy

Justice is our theme of the month for October. So what is it? What is justice?

We are a hodge-podge of concepts bouncing off each other in patterns that grow into habits of thought. We are also bodies, and bodily needs, and emotions, and emotional triggers, and reactivity, and ego defense mechanisms elaborate and complex. We are all of that. But if your body is, for a moment, reasonably well taken care of – it is fed and rested, reasonably healthy and pain free – and if conditions are such as to be conducive to being calm and reflective, not consumed by any particular desire, safe, without threat to your well-being or reputation, THEN what’s left of you is a hodge podge of concepts bouncing off each other in patterns that have formed into habits of thought.

And those concepts that we carry around – those concepts that constitute us when we we’re healthy, safe, and calmly reflective – those concepts aren’t always all that consistent, and when this is exposed, we experience cognitive dissonance. Still, we might spend a lifetime happily bouncing around among our concepts along greased grooves oblivious to tensions between them unless some moral dilemma arises. We might not notice, for instance, that mercy is unjust.

Mercy seems so benevolent, so kind – and justice seems like a good thing, too. Could two good things be at odds with each other? These concepts that we carry around – that make up our thought patterns – become part of us bringing with them a history, and those associations are still with them. Justice, going back to classical times, has to do with people getting what they are due. On the one hand, you are a just person if you give to others what they are due. On the other hand, you have a basis to ask for justice from others if you don’t believe you are getting what you are due.

How do we determine what is due? There’s been a lot of variability in that through history, from culture to culture, and even from one individual to another within the same time and culture, or, for that matter within the same individual from one day to the next. The guideline we have, also going back to classical times, is “treat like cases alike.” Nothing can happen among people that doesn’t have some similarities to something previous that happened. If you can describe an incident with words, those words have meaning because of prior experience with them. Those meanings come with feelings, however vague, and the feelings are either good or bad, however slightly – and that is the ground from which our moral reasoning begins and our moral attitudes take shape.

We look for the principles that were followed in other cases, and we try to apply those principles to the case at hand. Treat like cases alike. In fact, this basic principle of fairness is common to humans through every culture and time. We find this sense of fairness not only in homo sapiens, but in hominids – which includes humans, chimpanzees, bonobos, gorillas, and orangutans – and not only hominids, but simians, which includes all of the above plus gibbons and monkeys. (Good to know our place in the family of things.)

Simians have been around 60 million years, while the particular simian, homo sapiens, has been on this planet less than 300,000 years. In one study, two capuchin monkeys were in adjacent plexiglass containers. They could see each other. They’d been trained to perform a simple task for which they get a bit of food as reward. They reach through a hole, hand the human a rock – that’s the task -- and the human will take it, and hand them back a bit of food. At first, the food is a piece of cucumber. Cucumber is OK. The monkeys will take the cucumber and eat it. Monkeys will keep performing the task and happily enjoying their cucumber 30 or more times -- it’s hard to get full on cucumber.

But remember, the monkeys can see each other. If, after a couple rounds of doing the task, and getting cucumber, monkey A sees monkey B get a grape in exchange for performing the task, monkey A notices. Monkey A apparently thinks, “Great, now we’re getting grapes.” For a capuchin monkey, a bit of cucumber is OK, but a grape is delicioso. So if monkey A hands the human a rock and gets back only another bit of cucumber, there’s going to be some protest about that. They don't speak English, but it's clear what the content of the protest is: "That’s not fair! He got a grape! Where’s my grape?" The slighted monkey will become agitated and howl. You can watch this on Youtube.

You’ll see that the monkey takes that bit of cucumber and throws it back at the human. The cucumber which a minute before had been perfectly acceptable is now despised. Similar experiments have been tried with dogs and some bird species, and they found similar results.

Treat like cases alike – a very deep principle. If I do the same task as someone else, and there’s payment for it, I want the same payment. The need to be treated fairly is a deep need. We can calmly accept deprivation if others are, too.

So: justice. Giving people what they are due and treating like cases alike. “What is due” might be a better shake. When we talk about justice to racial groups, or women, or to workers, or to the poor, we’re talking about treating them better. But “what is due” might be punishment. If someone has done wrong, we want them punished.

I’ve noticed some shift in recent years toward avoiding the word punishment. When people object to police abuse, for instance, they rarely say, “Abusive officers should be punished.” The preferred language seems to be, “Abusive officers should be held accountable.” Accountability could take the form of punishment – and that’s the form that usually seems to be implied -- but I do appreciate leaving the door open for a nonpunitive form of accountability. The movement for restorative justice is all about accountability and restoring relationships but without jail or prison or heavy fines.

Still, some cases arise that reveal that a felt need to punish goes deep in, at least, us humans. The case of George Tyndall was a reminder of that this week. George Tyndall was a former gynecologist at USC, accused of sexual misconduct toward a generation of women students at USC. The University paid a $1.1 billion dollar settlement – the largest in higher education history, and Tyndall was set to stand trial “on sex crimes stemming from his treatment of 16 former patients, a subset of hundreds of women who had accused him of inappropriate touching, harassment and other misconduct during a tenure at the campus health clinic that stretched from the late 1980s to 2016.” Then George Tyndall – out on bail – died in his home of natural causes on Oct 4, a little more than a week ago.

This was profoundly unsatisfying for some of his victims. Many of his accusers felt that his death allowed him to avoid justice. They didn’t want Tyndall dead, they wanted him punished. Even if some of them might have wanted the death penalty for him – and I don’t know that any of them did, but if they had – what they would be wanting would be death as punishment, not death from natural causes, which is what the coroner reported, and which felt like cheating his way out of the punishment that would have represented justice. The felt need for punishment runs deep.

What makes punishment punishment and not simply a mishap, or natural causes, is that it’s deliberately inflicted by the agents of social order for the sake of social order. In the family, those agents are the parents, who might punish a child for the sake of family social order and mores. In the state, those agents are called our justice system. In practice, of course, our penal system today does more damage to social order than it does good, but the ideal, that wrongdoing should be punished – that is, that the perpetrator should endure unpleasant consequences inflicted by an authority. The authority, whether human or divine, must be seen as having responsibility for protecting our collective well-being. That idea of punishment from an authority is deeply a part of us.

Determining what punishment is due involves an evolving system trying to treat like cases alike. Relevantly similar crimes, we feel, should get relevantly similar punishment. Of course, there’s slippage around the notion of “relevantly similar” – if two men, in two separate incidents, have each stolen a loaf of bread, and one of them is starving and trying to feed a family that is starving, while the other is reasonably well-fed and had the money to buy the bread, but just didn’t want to, many of us would call that a morally relevant difference. Javert, in Victor Hugo’s Les Miserables, didn’t think it was morally relevant, and Javert pursues Jean Valjean accordingly.

So that’s a sketch of some of the ways our concept of justice bounces around in our thought patterns. What, then, about mercy? Do we say that Jean Valjean should get mercy, even though he did steal that bread? Or do we say, forget mercy, our principles of justice themselves should be adjusted? We should understand that justice itself takes into account extenuating circumstances. Do we need a concept of mercy at all?

Justice may call for punishment, but mercy would let you off the hook. That’s the situation that Shakespeare presents to us in “The Merchant of Venice.” Antonio borrows money from Shylock, and offers a pound of his flesh closest his heart as guarantee of a loan. OK, that's very weird, and probably wouldn't be found legally binding even in a renaissance court, but let us allow Shakespeare his conceit. When the loan is not repaid, Shylock claims his pound of flesh. Portia then tells Shylock he must be merciful. Shylock retorts, “On what compulsion must I? Tell me that.” Portia famously replies:
“The quality of mercy is not strained;
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest;
It blesseth him that gives and him that takes:
'T is mightiest in the mightiest; it becomes
The throned monarch better than his crown:
His sceptre shows the force of temporal power,
The attribute to awe and majesty,
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptred sway;
It is enthron├Ęd in the hearts of kings,
It is an attribute to God himself;
And earthly power doth then show likest God's
When mercy seasons justice. Therefore, Jew,
Though justice be thy plea, consider this,
That, in the course of justice, none of us
Should see salvation: we do pray for mercy;
And that same prayer doth teach us all to render
The deeds of mercy. I have spoke thus much
To mitigate the justice of thy plea;
Which if thou follow, this strict court of Venice
Must needs give sentence 'gainst the merchant there.”
Portia says the quality of mercy is “not strained” -- meaning that it is “not constrained,” that is, we cannot be constrained to be merciful. Mercy can’t be compelled. If it’s compelled, it isn’t mercy. Shylock's question was, “On what compulsion must I be merciful?” Portia's answer is that there's no compulsion. It's not about compulsion. Justice is about compulsion: there are principles of fairness that rightfully do constrain our behavior, but mercy doesn’t work that way. Mercy just happens, the way gentle rain falls on the ground. And when it does, it blesses both giver and receiver.

So: Mercy is what we call it when we are spared from what we deserve. A few lines later, Portia makes the point: “in the course of justice none of us should see salvation.” Wait. What? None? OK, I think I see our problem here.

If justice is understood as that which, strictly adhered to, condemns us all, then we need a new idea of justice. Alas, the idea that we all deserve damnation is our Western heritage. Theologians and priests for centuries emphasized what sinners we are. They gave us a picture of ourselves as fundamentally corrupt at our core. Every one of us is so profoundly, inherently sinful, that if we got what we deserved, we’d all be thrown to the worst punishment we can imagine. So mercy enters the picture. No one is good enough to deserve going to heaven on their own merits, but some people get in just because of God’s benevolent mercy.

The Church has generally avoided stating precisely how many would receive this grace. (The Jehovah’s Witnesses are an exception. They teach that exactly 144,000 faithful Christians will go to heaven to rule with Christ in the Kingdom of God.) Mostly, only a rough sense of the proportions was indicated. In John Calvin’s theology, for instance, it seems like very few. I get the impression from Calvin that he imagines maybe something around 2 percent of all Christian believers (and no one who isn't a Christian believer) will get to heaven. Our forebears, the Universalists, taught that God’s benevolent mercy extends to all -- every person will go to heaven. We get our name, Universalists, from this doctrine of universal salvation. But even the Universalists, for the most part, didn’t think people deserved it, or had earned it. Justice would condemn, but God’s mercy saves. On that point, the Calvinists and the Universalists agreed -- they merely disagreed on how many of us God’s mercy saves.

Through the 20th century, Unitarians and Universalists slowly shed the sense that sin – inner corruption – was humanity’s essential and most salient feature. Instead, we began to see human suffering in terms of disconnection: the deprivation (in the lower classes) and alienation (in any class) that accompanies uprootedness from healthy community of care, respect, meaning, and opportunity.

We stand, as ever, in need of justice – but not justice in the course of which none of us should see salvation, but justice as the construction of fairness in the face of oppressions that undermine community, justice as healing the wounds of separation, justice as the restoration of belonging. If we have real justice in this way – then we could do without mercy.

Mercy, like justice, has historically had a variety of meanings. Sometimes mercy is used to mean compassion and kindness – and we can certainly use that. Our hearts long for compassion, kindness, caring – but to give it and receive it. But Mercy, taken as a decision to deviate from the requirements of justice, perhaps we could do without.

Justice is principled: it follows principles. If there are rules governing the case at hand, justice follows the rules, and if there are no clear rules, justice weighs the principles. Mercy, however, flouts all rules and principles. Mercy is necessarily unprincipled. Principles define justice, and mercy is deviation from justice and its principles.

We might, indeed, think that our principles of justice need to be more compassionate, less draconian, but as long as they are principles – that is, they apply to all like cases – then they are matters of deciding what justice is, not matters of deciding when to forego justice for the sake of something called mercy. If a judge is merciful to one convicted defendant but not others, that’s not fair. And if the judge is “merciful” to all of them, then that’s not mercy – it’s just that judge’s rules of procedure.

Too much mercy and there’s no enforcement of justice at all. If contracts are never enforced, no one will enter into contracts – including ultimately, the social contract – and society falls apart. If our children – or we ourselves -- were always spared any unpleasant consequences of their actions, they won’t learn – or we won’t maintain -- the skills and habits of responsibility.

In a lesser known Shakespeare play, Timon of Athens, a character makes a direct rebuttal of Portia. “Nothing emboldens sin so much as mercy,” the character says.

Mercy is utterly capricious – and we should be suspicious of it not just because it is abstractly unjust but because caprice tends to favor the already privileged. In our schools, for instance, black students are more likely than white students to be referred for disciplinary action for subjective infractions such as disruption or defiance. Across the board, black students tend to experience harsher disciplinary measures at higher rates than their peers in public schools in the United States. Black students are 4 times more likely to experience suspension than their White peers.As mercy overrides the principles that would apply to everyone, what determines when mercy is extended? When the principles which constitute justice are overthrown, what’s left are our implicit, unspoken biases, including implicit racial biases.

Now, before I conclude that we ought to just dispense with the very idea of mercy, that what we need is greater clarity on principles of justice, and that we should then simply live by those principles, I want to acknowledge what I find to be a fairly compelling case for sometimes, indeed, tossing out rules and principles and reasons. Back in 1985, California writer Anne Herbert, wrote an article for The Whole Earth Review titled, “Random Kindness and Senseless Acts of Beauty.” The phrase caught on. You have probably heard it. Herbert's phrase cleverly turned on its head a phrase we had all heard too much in the news: random violence and senseless acts of brutality. What a lovely thing to instead practice random kindness and senseless acts of beauty! Herbert writes in her original 1985 article:
“Anything you think there should be more of, do it randomly. Don’t await a reason. It will make itself be more, senselessly. Scrawl it on the wall: RANDOM KINDNESS AND SENSELESS ACTS OF BEAUTY. I used to have fantasies of positive vandalism. Breaking into the school and painting a dirty room bright colors overnight. Fixing broken glass in people’s houses while they’re gone. Leaving full meals on tables in the struggling part of town.”
That really does sound lovely. What makes that kind of random kindness different from mercy’s capriciousness is that mercy is something bestowed by someone in a position of power – whether divine or human: school authorities deciding whether to suspend a student; the criminal court judge pronouncing sentence upon the convicted; a soldier victorious in battle might or might not show mercy to the vanquished; a person of wealth who controls resources that can make or break another’s livelihood may choose to be merciful.

Another way of saying that mercy is uncompelled and unconstrained is to say the option of mercy arises from being in a position of power over someone else. Take away the power relation and instead of mercy, it’s a random kindness – and possibly also a senseless act of beauty.

So that’s the conclusion I leave you with today. My argument is that compassion and kindness – caring and love – are the greatest forces and the highest achievements humanity can strive for. But if we get justice right, then we will have no need for a concept of mercy that is in any way distinct from compassion and kindness.

And: if you’re not in a position of exercising power over, then some randomness, some caprice, just following the whims of impulses to kindness, can also be a beautiful thing – blessing indeed the one that gives and the one receives.

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