Shying Away from Mercy

The Decline of Mercy in Public Life
by alex tuckness and
john m. parrish
cambridge, 318 pages, $29.99

T

hough mercy is a Christian virtue, our post-Christian society shies away from relying on it. Lenient criminal sentences, pardons, and debt forgiveness all seem to undercut the demands of justice and public safety. We now speak the language of rights, instead of mercy, to justify helping the needy. Social programs have displaced Christian charity, and generic do-gooder benevolence has supplanted mercy. By making benevolence bureaucratic and impersonal, we have suppressed human kindness and empathy, the direct personal contact that stirs the heart. Debt relief, welfare programs, and criminal sentences become political footballs in a zero-sum game. Any show of mercy seems to sacrifice ­justice.

It was not always thus, as Alex Tuckness and John Parrish show in their intellectual history of the decline of mercy. Aristotle understood mercy as tailoring justice to the needs of the particular case, and other ancients emphasized mercy as restraining one’s vengeful anger. In Eastern Orthodox Christianity, mercy is God’s love for all of us and our active love toward one another, particularly those in need. Christ’s supreme act of mercy was his incarnation, crucifixion, and resurrection, conquering death and the devil, raising up fallen mankind, and opening the way to eternal life. The father in the parable of the prodigal son exemplifies God’s mercy and paternal love for us all.

But beginning in the Middle Ages, the Western intellectual tradition put mercy on a collision course with justice, by framing strict retribution as essential to justice. ­Anselm understood Christ’s death on the cross as satisfaction demanded by God’s justice to atone for mankind’s sins. Enlightenment thinkers then secularized this understanding of justice, collapsing the distinction between God’s punishment and man’s. By insisting upon political equality, impartiality, and universality, Grotius, Hobbes, and Locke reframed justice in terms of rights. Mercy thus seemed a relic of absolute monarchy, condescending to inferiors and smacking of arbitrariness. Care for the poor was no longer defended in terms of Christian mercy, but public justice.

The two opposing modern approaches to punishment thus converge in their hostility to mercy, as Tuckness and Parrish explain. Utilitarians such as David Hume, Cesare Beccaria, and Jeremy Bentham feared that mercy is unequal and arbitrary and sacrifices deterrence of future crime. Bentham, in particular, distrusted judicial discretion and put his faith in legislative codification of rules. He even mistrusted private charity, because only the state knows enough and is able to promote justice without encouraging indolence.

Immanuel Kant, though Bentham’s opposite as an advocate of retribution, agreed that mercy equals injustice. The demands of Kant’s categorical imperative require rule-based retribution without pity. Kant’s stern retributivism is driven not only by duty but also by the need to treat all persons equally and impartially.

Tuckness and Parrish’s thoughtful book is a welcome invitation to revive mercy in the public square. It should also prompt Christians to rethink our embrace of the foundational concepts of the Enlightenment, such as strict understandings of equality, impartiality, universality, and rights. Justice requires discretion as well as rules, and it can coexist with mercy.

When our laws deny this truth, they grow mechanistic and inhumane. Strenuously squelching arbitrariness simply drives discretion underground (say, from judges and juries to prosecutors) or forces everyone into the same Procrustean bed. Exalting rights and censoring empathy can be heartless toward criminal defendants and debtors. Government social programs risk crowding out charitable expressions of love that remind ourselves that the poor are our brethren and we are all our brothers’ keepers. And all of these rule-based, bureaucratic approaches miss opportunities to inculcate the virtue of mercy in our hearts as well as in our children’s. Government cannot mirror Christian teaching, particularly in a pluralistic country. But it can leave more room for Christian insights to leaven rules with mercy, compassion, and love.

—Stephanos Bibas, a professor of law and criminology at the University of Pennsylvania, is the author of The Machinery of Criminal Justice.

This review initially appeared in the February edition of First Things.