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The Justice of Mercy
By LINDA ROSS MEYER
The University of Michigan Press
Copyright © 2010
University of Michigan
All right reserved. ISBN: 978-0-472-11745-1
Chapter One
Beyond Kanticism to Being-with
Justice is usually understood as acting according to reason, and reason is conceived as a system of logically consistent rules. This "reason" of ours is the glue of community, giving us "reason" to treat each other fairly and to order our mutual affairs according to rules rather than whim. Without reason, we fear a return to a brutal state of nature, in which life is a battle zone between needy, violent people. This CHAPTER will show how this conception of justice as reason and of community as requiring the "glue" of reason is bound up in an incomplete and dogmatic understanding of Kantian philosophy, a kind of Kantian catechism, or "kanticism."
Given this understanding of justice, if we take mercy, in its most basic sense, as giving a person less punishment than he or she deserves or, in a deeper and broader sense, as a gift or grace—giving another a benefit that is undeserved and to which the other has no right—the disjunction between mercy and law seems obvious by definition. Mercy, or grace, is unlawful, outside the rules, beyond rights.
This ideal of justice as a system of rules is deeply embedded in our legal system. Reason is the touchstone for law. Irrational laws are unconstitutional; irrational people are not criminally responsible. Differences in treatment must be either explained as reasonable or eliminated. "Interest," "feeling," or "opinion" is not universal and therefore not a reason; selfish prudence is not a reason.
Law students imbibe these assumptions from the first day of law school. When asked a question like, "Should the Nazis be allowed to march in Skokie?" students learn not to say "I feel ..." or "In my opinion ..." or "Well, it just depends on your personal views" or "It depends on whether the trial judge is a Republican." Reasons, not "personal points of view" or political predictions, must be given and analyzed. Students also learn not to give post hoc empirically contingent answers to doctrinal conundrums—such as "If it turns out that the march causes more suffering to the residents of Skokie than canceling it causes the Nazis, then the trial court was wrong to allow it" or "If it turns out that canceling the march resulted in a 10 percent drop in peaceful protests across the country, then the trial court was wrong to cancel it"—because what counts as a relevant consideration and what threshold of likelihood will be deemed critical must be decided by reason in advance, before the empirical sciences can be deployed to determine whether those considerations exist or not.
Compared with other forms of discourse, law seems strange. Why can a plaintiff 's lawyer not simply point out to the trial judge that to rule in his opponent's favor would create a grave risk of reversal by appellate Judge Z, who always rules in favor of accident victims—even if the lawyer can back up his prediction by meticulous empirical research? Why can a judge not give damages to injured plaintiffs explicitly on the ground that causation takes too much time and money to establish? Why can a jury not convict and incapacitate a defendant on the ground that he or she is statistically likely to commit crimes anyway, even if he or she has not yet done so? Why should a judge not judge on an ad hoc basis, without issuing inefficient, time-consuming opinions and struggling to articulate rules? Why should a judge not randomly distribute convictions, so as to increase information costs for criminals and deter crime? Why should society not judge judges on how beneficial their rulings turn out to be for our collective social welfare?
As others have pointed out, law resists colonization by the social sciences and retains its rationalist catechism—its "kanticism." Our continuing allegiance to reasoned justification demands that law be rule-bound, nonarbitrary, and universal and that legal decision makers make decisions based on preexisting rules about what features of the situation are legally relevant, not on their own "subjective" predictions of other judges' actions, their evaluation of the efficacy of various policies, their predilections, their self-interest, or their analysis of public opinion polls. Law, Ronald Dworkin says, is about principle, not policy. Why do we limit law in this way? For no further utilitarian reason—just because that is what acting on the basis of reason requires. As a form of kanticism, the law is in many respects fundamentally nonutilitarian.
The utilitarian and social scientific approaches are not the only ones law's kanticism rejects. Law also rejects the personal and the private. Jurors are not to allow emotion to sway their decisions; public officials are not to let personal concerns or affinities interfere with their public decisions; nepotism is wrong, bribes are wrong, vigilantism is wrong, and so on. Law must be public, universal, and reasonable. Emotion, understood as mere inclination and based in a self-interest, individual perspective, or self-reference that cannot apply to all alike, is irrelevant and distracting to the obligation to do one's duty.
It is because of the kanticism of our legal system that we tend to treat mercy as the mad woman in the attic of law. Mercy does not treat like cases alike, cannot be analyzed as a right subject to an obligation, is associated with emotions and personal relationships, is historically based in hierarchy rather than equality, and is not governable by rules. Its nature appears to run counter to that of law, which we conceive to be impersonal and egalitarian and universal.
To find an approach to law that acknowledges mercy and reconciliation is to question the very grounding of law in reason. This search requires a return to Kant's text, to untangle the roots of the dichotomy between emotion and reason, the roots of reason and autonomy as the ground of both responsibility and community, the roots of the insistence on universal law as a paradigm, and the roots of the categorical nature of imperatives of reason, impervious to the pragmatic claims of imagined futures or the contingent relationship of the parties.
I. THE KANTICISM OF LAW
The kanticism of law can be located most easily in Kant's Groundwork of the Metaphysics of Morals. The Groundwork sets out a series of connected propositions that are deeply embedded in our legal system. Kant's argument for making reason the foundation of ethics (and community) goes as follows:
For Kant, human will is only free of causal necessity if it is an exercise of reason, for reason follows its own principles of logic and consistency, and the claims of logic are not affected by the arbitrary power of nature's relations of cause and effect. If all men are mortal and Socrates is a man, then I must acknowledge Socrates is mortal, regardless of barometric pressure, global warming, or my uncontrollable upwelling of sympathy and admiration for Socrates. As only our ability to reason frees us from causal necessity, only reason is truly completely within our power, and only reason can be the basis on which we can be responsible: "Everything in nature works according to laws. Reasonable [vernunftiges] beings alone have the faculty of acting according to the conception of laws, that is according to principles, i.e., have a will" (Kant, Groundwork, 40). Once the will is isolated from "every impulse which could arise to it from obedience to any law [of nature], there remains nothing but the universal conformity of its actions to law [as such], which alone is to serve the will as a principle, i.e. I am never to act otherwise than so that I could also will that my maxim should become a universal law" (ibid., 27). Hence, the first statement of Kant's categorical imperative can be restated as "Always act in accordance with reason." The good will, the ethical will, the free will, is at the same time the reasonable, consistent, rule-bound will.
I judge the worth of my actions by their "good will"—that is, the reasons actuating them (in Kant's language, the "maxim of the action")—not by the contingent results that follow. Results depend too much on nature's causal forces that are beyond my control. I cannot be responsible for what is not within my power; therefore, I am responsible not based on results but only for doing my rational best based on what I, using appropriate diligence, knew at the time I acted. It is right for me to save a child from being run over by a car, even if the child grows up to be Hitler. Conversely, attempted murder is a serious crime, even if no one is hurt. The rightness of the act should be determined by its reason, not its consequences. Reason is the end in itself, that which is always good.
If we accept that reason is an end in itself, then it must be so whether it is my own reason or someone else's, for reason requires me to treat like cases alike. Hence Kant derives the second statement of the categorical imperative, which can be stated as "Treat reason, whether in yourself or others, as an end in itself and not a means only." Here, then, reason becomes not only the basis of freedom and responsibility but the basis of community. I recognize the other as "like" me when the other is also capable of reason (even if nonhuman). My obligations to the other are the same as those I have toward myself, so I must treat the reason in others as I treat the reason in myself. I may no more kill (without adequate justification) than risk my life (without adequate justification). Without the mutual recognition of reason, there is no connection with the other. Reason is, in our kanticism, the "glue" that binds us together and creates community.
The logical requirement of consistency requires not only that we respect others who have reason but that we act only on universally applicable principles. We test the rightness of our thinking by determining whether it can be applied to all like cases. Reason demands that our law be universal. We cannot make unjustified exceptions for ourselves, our friends, our families. We cannot make exceptions for "just this once." If a principle seems exceptionable in some set of circumstances, we must state why it is exceptionable in categorical terms that can then be folded back into the statement of our rule. For example, if our first-cut rule is "No late papers" but it seems wrong not to accept a paper from a student who came down suddenly with a collapsed lung, then we must restate our rule to apply to all like cases: "No late papers except in cases of sudden and serious illness." The categorical and universal applicability of rules of reason requires that no case be unique.
Finally, this mutuality of reason that links us together can form a larger statelike ethical community of reasonable beings through a "kingdom of ends" in which reasonable beings come together and work out reasonable laws for themselves. These laws, based in reason, will necessarily be consistent and harmonious, forming the basis of an ethical community and an ideal state. This is the third statement of the categorical imperative: "Now since it is by laws that ends are determined as regards their universal validity, hence, if we abstract from the personal differences of rational beings, and likewise from all the content of their private ends, we shall be able to conceive all ends combined in a systematic whole (including both rational beings as ends in themselves, and also the special ends which each may propose to himself), that is to say, we can conceive a kingdom of ends, which on the preceding principles is possible" (Kant, Groundwork, 62).
Our commitment to reason, moreover, lends us a spark of the divine. We rise above the squalor of dependence, passivity, and heteronomy to govern ourselves: "And it is just in this that the paradox lies; that the mere dignity of a man as a rational creature, without any other end or advantage to be attained thereby, in other words, respect for a mere idea, should yet serve as an inflexible precept of the will, and that it is precisely in this independence of the maxim on all such springs of action that its sublimity consists; and it is this that makes every reasonable subject worthy to be a legislative member in the kingdom of ends: for otherwise he would have to be conceived only as subject to the physical law of his wants" (Kant, Groundwork, 68). We substitute our own law of reason, like the divine will (ibid., 41), for the natural "physical law of our wants." We overcome our own creatureliness and become, at least in concept, demigods.
This kanticism is deeply embedded in the principles and practices of our law. Judges proceed from case to case by stating universal principles that explain their result as consistent with past precedent. Rules of decision must be stated with some level of generality: a decision cannot apply to just one case or for just one time. Herbert Wechsler's concept of "neutral principles" of constitutional law tried to capture this idea, but even apart from Wechsler, the standard judicial practice requires, above all, a demonstration of the consistency of the decision at bar with prior cases or else a reasoned explanation of why the precedent was wrong and the explication of a new basis for decisions into the future. Legal principles must transcend the case in place and in time, reaching back into the past and vaulting into the future with a single line of logic.
Unlike our empirical knowledge of the world, reason is not bounded by the forms of intuition—by space or time. In reason, we reach for an Archimedean standpoint of certainty, logic, and what is always true, everywhere and whenever. Hence, the retroactivity of judicial decisions imagines that the "reasons" for the rule were there all along to be discovered. The decision is explained by its reasons, and we expect the loser either to acknowledge the rightness of the reasoning or to reasonably point out its flaws on appeal. In a Kant-like kingdom of ends, if we reach the most reasonable answer, we should all finally be brought into agreement, regardless of our personal losses or suffering.
Our substantive law also reflects these Kantian commitments. In criminal law, we accord irresponsibility with insanity—with the absence of the ability to reason. Regardless of emotional turmoil or temptation, we usually assume that if one can reason, one is responsible under the law: logic is impervious to natural causes, and the reasonable will is ipso facto the free will. The traditional M'Naghten rule defining insanity reflects this: if you know the nature and quality of your act and you know right from wrong, then you are not insane, regardless of your emotional or volitional state. In other words, if you can form the major and minor premise of a syllogism (e.g., "Murder is wrong" and "This is murder"), then the conclusion ("Therefore, this is wrong") necessarily follows. We may mitigate (e.g., in the case of voluntary manslaughter) or excuse (e.g., in the case of duress) out of a recognition of human weakness, but these doctrines are the exceptions in the law and are traditionally carefully barricaded by restrictive categories (imminent threats to life or certain kinds of wrongful provocation).
In criminal law, we have come to care more about mens rea than result, with desert primarily defined in terms of culpability rather than the extent of harm caused. One who does great harm innocently, under traditional doctrines of criminal law (leaving to one side the highly debated public welfare crimes) is not criminally responsible. Inchoate crimes (attempt, conspiracy, solicitation) are, under Model Penal Code principles at least, punished as severely as completed crimes, despite the fact that no harm need occur. As Meir Dan-Cohen puts it, "The core of criminal law doctrine, centered around the concept of mens rea and the variety of criminal excuses, probably comes closer than any other set of social practices to an instantiation of the Kantian conception of the responsible human subject as the noumenal self, characterized exclusively by a rational free will unencumbered by character, temperament, and circumstance."
In constitutional law, due process and equal protection doctrine require that laws have a "rational basis," apply equally across like cases, and accord autonomy and respect to citizens. Nonutilitarian rights claims are framed by both judges and litigants around Kantian categories of autonomy, equality, respect, and rational treatment.
In tort law, negligence is defined as not avoiding what a "reasonable person" would avoid and is determined by what could be known at the time of the action, not what we discover later. There is no liability in negligence for dangers one had no reason to know about at the time one acted, regardless of how much harm results. Strict liability remains a source of academic debate and dissension insofar as it challenges and resists the kanticism paradigm.
Our contract paradigm accords binding force to agreements reached by parties who are presumed to be equal, rational, and autonomous. Exceptions to this paradigm are still exceptional, and the presumption of equal, free, and reasonable parties remains, though it may be overcome in particular cases.
(Continues...)
Excerpted from The Justice of Mercy by LINDA ROSS MEYER Copyright © 2010
by University of Michigan . Excerpted by permission of The University of Michigan Press. All rights reserved. No part of this excerpt may be reproduced or reprinted without permission in writing from the publisher.
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