The Quality of Mercy is Not Strained…

PORTIA: The quality of mercy is not strain'd,
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:
'Tis 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 enthroned 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.
— The Merchant of Venice

Without being qualified, I recently sneaked into a Yahoo discussion group for biblical scholars and have occasionally posted a comment or question. Most recently I asked about ancient Hebrew teachings on the preferability of forgiveness versus justice . Someone named Liz immediately challenged me to say why forgiveness is preferable to punishment. She argues that no society can exist without rules and a system that exacts obedience to those rules. Someone else on the list said that the prevailing preference for forgiveness or punishment varies according to whether people believe themselves to be in a regular historical period or in the last moments before the end of time. If the world is supposedly coming to an end, people may consider forgiveness a more appropriate way of living. Be that as it may, I feel obliged to reply to Liz, and I’ll collect my thoughts here on the matter.

Shakespeare answers her best. I myself think forgiveness is superior to punishment because it just feels better. Considered from the perspective of the victimized person, the psychological damage of a criminal act is the rage that it provokes. Without suppressing the rage, the challenge is to transcend it — overcome it by holding it in a more generous, compassionate perspective. Whether or not that helps the perpetrator, it certainly helps the victim if she can surmount the trauma and resume a fulfilling life.

Some victims, of course, prefer vengeance. It is natural to want to get even. Everyone feels that way at times. But in the long term, vengeance does not satisfy unless we go beyond it and restore feelings of harmony with the world and with society.

How should we judge whether to prefer forgiveness or punishment when a wrong has been done? I think that we need only be concerned about the perpetrator and the victim . (Admittedly, any distinction between the two is sometimes simplistic, but we need not address that issue here.) Ideally, the response to the wrongdoing will restore both the victim and the perpetrator to optimum functioning.

Liz rightly implies that it’s a bad idea just to ignore the wrongdoing and let the perpetrator get away with the misdeed. Indeed, in every society, normal adults are held accountable for their own actions. However, systems of justice differ. In modern jurisprudence, guilt is judged in the light of mitigating circumstances and the moral rehabilitation of the offender. For example, recently Governor Arnold Schwarzenegger was deemed cruel in his Austrian hometown for executing a murderer who had undergone a character transformation on death row. No doubt Schwarzenegger the politician was held accountable to the voters, who admire the justice of implacable punishment and view mercy as weakness.

Justice and punishment may be, as Liz suggests, functionally necessary for every society. But nevertheless, cultures vary. Many of them have managed very well without any notion of law. Howard Zehr has offered a revealing history of these changes in European civilization. (See his Changing Lenses: A New Focus for Crime and Justice (Scottsdale, Pa.: Herald, 1995). For example, in medieval Europe the formal legal system of Rome had been abandoned in favor of a system of community justice. When someone harmed another person, there were countless different forms of mediation, aiming to force the culprit to acknowledge the damage he had done. An offence consisted, not in the violation of a law, but rather the harming of another person.

During the eleventh and twelfth centuries, the church re-discovered Roman law and applied it in developing canon law . Crime became a matter of sinning against God, and the church took over the business of making formal laws, establishing guilt, and imposing penalties. Even torture was used. When gradually the states recovered more power relative to that of the church, the criminal justice system again became the domain of the government. A crime now was considered an offence against the state and its laws rather than harm done to a particular person. Therefore, any money collected from the offender was not given as restitution to the victim but seized by the state. Punishment became normal, and there were only two possible degrees of culpability: guilty or not guilty. People came to think in categorical terms about blame. Instead of acknowledging some responsibility for their errors, defendants would usually deny any guilt.

Fortunately, there is one domain of law that is still treated more flexibly than the criminal justice system: civil law. When it comes to torts, individuals may sue others for compensation. When harm is done, the offence is judged in terms of degrees of liability rather than black-and-white guilt or innocence.

In recent years there has been a movement in favor of the older community-based justice system. This approach is fully recognized by some native Amerindian groups, who work with offenders in group meetings, seeking to find ways of repairing the damage done to the victim. The offender may be required to make restitution, but he will eventually be restored to the status of an acceptable person rather than consigned to the role of an outcast. In the end, successful restorative justice results in forgiveness. The outcome of such procedures seems to be more favorable than the older forms of justice imposed by the state. For one thing, rates of recidivism are lower.

Of course, restorative or community justice are not merely a matter of tolerating lower standards of moral behavior. It’s redemption, but it’s not unthinking tolerance or uncritical mercy. I am not sure, then, whether it answers Liz’s question. But it helps me formulate vital questions in a more promising way.

And a Happy New Year to you all!