Mercy Is Not Justice. But Equity Is.

A short post to commend a paper by Mary Sigler, Equity Not Mercy (download from SSRN here). As Sigler observes, the vocabulary and concept of "mercy" have come to the fore in the moral and even political discourse surrounding crime and punishment in the United States. Before we get to the place of mercy in this discourse, however, it's important to notice that there are other starting points for criticism of America's current system of criminal justice.

"Everyone" seems to agree that not only are there too many crimes in America (especially when combining state and federal governments) and that the levels of punishment for many of those crimes is disproportionate to the utilitarian values of deterrence or prevention. In other words, too many folks spend too much time in taxpayer-supported prisons to justify the burgeoning cost. Such arguments from efficiency are drawing increasing support from self-proclaimed conservatives who a decade or so ago were championing "law and order" campaigns.

Others on the political Left and even the Right (such as the late Chuck Colson) have advanced moral arguments against the current criminal-industrial complex. Arguments from the Left have tended to focus on ungrounded concerns about human dignity. Humanity or "democratic values" or the like are proffered as counterweights to a system that leads to massive incarceration. The lack of foundation for such values is, however, problematic except as a political trope. (For my extended analysis of the problem of deploying an ungrounded "human dignity" as the foundation for the contemporary human rights movement see Looking for Bedrock: Accounting for Human Rights in Classical Liberalism, Modern Secularism, and the Christian Tradition (download here).)

If not ungrounded, many of the moral arguments decrying crime and punishment in the United States are ad hoc. They often involve appeals to highly contested "first principles" or isolated biblical texts, often taken out of context.

Enter virtue theory of which Equity Not Mercy is an example. (For some of my posts about virtue in law go here, here, and here.) More than simply deploying virtue theory, however, Sigler considers the nature of two relevant virtues, mercy and equity. Why need we distinguish these virtues in our discussions of criminal justice? Here's how she puts the problem:

The term mercy is used broadly to refer to almost any instance of (or basis for) remitting the harshness of punishment. Although unobjectionable as a colloquial matter, this indiscriminate usage is conceptually problematic. The problem is not that “mercy” has a fixed meaning that precludes application to some subset of these cases … Rather, mercy understood in this broad sense distorts at least two concepts that are essential to our legal, moral, and political life. The broad use of the term mercy denies us the conceptual resources to assess the distinctive operation of traditional mercy—an act of grace that cancels or mitigates what is due out of compassion or concern for the recipient. Even more important, broad mercy effectively diminishes the concept of justice, alleviating the pressure it would otherwise exert to redress claims of right.

In other words, a system that defines crimes and ascribes their punishment is--one hopes--aimed toward justice. And mercy, whatever its virtues (pun intended) is about doing less than justice. In yet more other words, we should in the first instance employ the notion of equity when criticizing the application of sometimes draconian criminal penalties. Mercy is a good but it's not one that should characterize how we critique the problems of our current system.

If not mercy, why equity? Again I will let Sigler speak for herself:

Unlike mercy, a freestanding virtue, equity is an instrument of justice. Indeed, according to Aristotle, “it is a kind of justice, and not a distinct state of character.” Against the backdrop of a legal code that is necessarily general in its orientation—providing universal rules to order human affairs—equity focuses on the particulars, fine-tuning the law’s application to the messy reality of individual cases. In this way, “the law takes account of the majority of cases,” but equity promotes true justice “in so far as law is defective on account of its generality.” Reflecting this complexity, the modern criminal law includes opportunities for the exercise of discretion to allow decision makers to do justice within the parameters of the rule of law.

(For my observations about the nature of equity check out my piece God's Bridle: John Calvin's Application of Natural Law (download here).)

Drawing on resources as varied as Blackstone and Martha Nussbaum, Sigler goes on to contrast mercy and equity and make some applications of equity to our current system. I will let readers explore her work for themselves. I can, however, urge folks who are interested in a good close-to-the-ground analysis of the virtues to do so.

Calvin, Calvinism, and Rights

A close associate (thanks, Jeremy) referred this link to me http://www.calvin.edu/january/2009/witte.htm. It’s an hour-long lecture by John Witte, professor of law at Emory Law School in Atlanta. Two years ago Witte published The Reformation of Rights (Cambridge 2007) in which he argued that John Calvin and subsequent Calvinism were the grandfather and father of the modern understanding of human rights. Don’t let the length of his talk put you off, Witte is an extraordinarily engaging lecturer. The best parts of his comments concern the work of Geneva’s Consistory, its highest ecclesiastical court. Unlike the Lutheran reformation, the Calvinists had a high regard for the law within and without the Church (no law-grace dichotomy for Calvin). The Consistory dealt with all sorts of matters (including marriage, family, and sex), resolving most without recourse to the civil law system but referring the recalcitrant to the magistrate and his power of the sword.

However, Witte’s fundamental thesis about Calvin’s place in the history of rights seems simultaneously anachronistic and Whiggish. While Witte admits that Calvin’s understanding of rights was localized (and not universal) and theologically, indeed, scripturally grounded, his paean of praise suggests a closer connection between early-modern and post-modern rights talk than I believe a careful examination will bear. Witte’s discussion of the tight Calvinistic nexus between rights and duties (particularly early modern Calvinism’s identification of rights as means by which to perform duties) is so different from the modern conception of rights as markers of zones of personal autonomy as to call his thesis into question.

Witte’s lecture (and book) also suggests that Calvin’s discussion of rights and early modern Calvinism’s expansion of the scope of rights was sui generis, a rupture with the medieval past and without parallel in the contemporary European context. In fact, a number of Catholic legal scholars were actively developing the concept of natural rights during the 15th and 16th centuries. See, e.g., Domenicus Soto and Tomasso di Vio. See also Nicholas Wolterstorff, Justice (Princeton 2008) and James Gordley, Foundations of Private Law (OUP 2006).

The popular nature of a public lecture, the occasion of his address (“The January Series” at Calvin College, this year honoring the 500th anniversary of John Calvin’s birth), and Witte’s irenic nature all contribute to what I think is an overestimation of Calvin’s place in the story of rights in the Western tradition. The subsequent efforts of Calvinists in the Dutch Republic, England, and New England bear up much better as historical sources for human rights but Witte’s classification of the Unitarian John Adams (and even, IMHO, the Separatist John Milton) as a Calvinist undercuts even this argument.

Nonetheless, I heartedly recommend taking an hour to listen to a master of legal and cultural history at his best