Some weeks ago I wrote here about the place in the law of the virtue of forgiveness alongside the stalwart of promise-keeping (or, better put, the virtue of fidelity). Contracts scholars like Charles Fried, Seanna Schifrin , and Curtis Bridgeman (who got me starting on the topic here) argue that promise-keeping is the crux of the social practice contracting. In turn, the practice of contracting is important because it is one of the principal means by which we instantiate human autonomy. Human autonomy, at least since Immanuel Kant, is the core of modernity’s social imaginary. Hence, legal remedies for breach of the promises made in contracts are foundational to the work of the State; legal remedies are a means of realizing our true human nature.
Forgiveness, however, is not at the core autonomy. Forgiveness, while continuing to occupy an important place in popular Western conceptions of the moral life, has not received the analytic attention of fidelity. In fact, forgiveness may be incompatible with the Kantian notion of virtue. See Immanuel Kant, The Metaphysical Elements of Justice. In any event, using Jean Braucher’s moral intuitionism as a starting point (here), I observed that the discharge of most individual debts enjoined by the Bankruptcy Code reflects the important place of forgiveness in American law. Standard contract defenses like impossibility/impracticability/frustration of purpose and unconscionability may also have foundations in the virtue of forgiveness but there can be little doubt that the principal place of forgiveness in black-letter law is the discharge in bankruptcy. (Those curious about this contention can look at a piece I published several years ago in the American Bankruptcy Institute Law Review here.)
Not surprisingly, there are accounts of the bankruptcy discharge that are not grounded in the virtue of forgiveness (or any other virtue for that matter). Modern utilitarianism (“law and economics” when it comes to law) finds a place for the discharge in—no surprise—wealth maximization. But I won’t pursue this perspective here. I will instead express some thoughts about the morality of forgiveness and then its place in the in the bankruptcy discharge.
After my previous blog on this topic a colleague directed me to the well-known passage in the gospel of Matthew18:21-35 where Jesus instructs Peter about the path of discipleship with the parable of the unforgiving servant: if we demand only justice against those who have wronged us, we can expect no mercy from God.
Yet consider that these injunctions were directed to those who identify themselves with Jesus Christ by faith and the divine forgiveness therein promised. To what extent do such commands apply to those who do not baptized into Jesus or, more to the point, to the powers of the modern State? Can the State ever forgive a wrong committed against a citizen? Perhaps. But I am confident that the state cannot forgive the wrong against me as me; at most the State can forgive the wrongfulness of an act as it pertains to the State. With respect to the one wronged, forgiveness “is the enacted resolution of the victim no longer to hold against the wrongdoer” the wrong done. (Wolterstorff, Justice in Love at 169). Or, as I would put it, forgiveness is the waiver of secondary rights of correction (i.e., those rights that accrue when one's primary right has been violated). Given either formulation, it is clear that whatever it is, the discharge in bankruptcy does not amount to the creditor’s forgiveness of her debtor.
Does the state have the power, much less the authority, to mandate that its citizens forgive? Certainly not. Forgiveness is the “enacted resolution” of the one wronged. Coerced “forgiveness” simply does not amount to a waiver, the voluntary relinquishment of a known right. It is an oxymoron.
A fine kettle of fish. Perhaps I was wrong to suggest that the bankruptcy discharge is grounded in forgiveness. Or perhaps we can distinguish between the discharge equaling forgiveness –certainly not; and being “grounded in” the virtue of forgiveness—an indirect yes.
Subscribe to:
Post Comments (Atom)
No comments:
Post a Comment