'The Difficulties of Democratic Mercy' by Aziz Z. Huq
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Dean Martha Minow’s wide-ranging and learned Jorde lecture
“Forgiveness, Law, and Justice” is characteristic in its unstinting ambition.1
The lecture does not only sweep in complex normative and empirical questions
concerning the relationship of legal institutions and rules to a capaciously
defined concept of “forgiveness.” It furthermore aspires beyond the sublunary
scholarly task of delimiting and describing. Unconfined to the desiccated
philological minutia of a Casaubon, Dean Minow instead approaches her topic
with dauntless optimism and eyes fixed firmly on empyrean-minded aspiration.
To follow her argument is to be apprised of the possibility of a stronger loving
world, and to have one’s own parochial and reflexive skepticism—the coin of
the realm in the law school workshop—put to shame.
Yet to speak in aspirational terms should not mean dispensing with the
question of how a given vision of justice can be attained, or diagnosing with
precision the barriers to its realization. So while I share Dean Minow’s large
ambitions for law as a catalyst for interpersonal and social reform, my
commentary here will focus narrowly on the impediments to that ambition. My
aspirations here are modest along several margins. To begin with, my aim is
narrow in both conceptual and geographical terms. Although Dean Minow
anchors her topic with a parsimonious definition of forgiveness as “a conscious,
deliberate decision to forego rightful grounds for grievance against those who
have committed a wrong or harm,” her discussion overflows that definition to
touch on several related, but nonetheless distinct, normatively infused concepts.
In the course of her exegesis, moreover, she ranges through a set of
geographically disparate examples that include transitional justice mechanisms
in South Africa, Liberia and Sierra Leone; the exercise of prosecutorial
discretion in the International Criminal Court; the treatment of former child
soldiers; and the discharge of sovereign debt obligations under the so-called
“odious debt” doctrine.
Eschewing that conceptual and geographic breadth, I will focus on
only one of the concepts that Dean Minow seriatim conjures. I will also invoke
solely the vulgar demotic of American law. More specifically, this commentary
homes concentrates upon our domestic experience with what Dean Minow’s
colleague Carol Steiker terms “legal institutions of mercy” to examine the
conditions under which democratic mercy is feasible. These institutions have
either wholesale or retail power to mitigate civil or criminal liability. The
simple claim that I want to advance is that our own rich experience under the
U.S. Constitution suggests that it is extraordinarily difficult to institutionalize
such official forbearance—especially on democratic soil—and especially when
our political economy, in its superfluously punitive modalities, generates the
need for forgiveness. Rather than seeking for redemptive reforms through
democratic process, I suggest that the institutional installation of merciful
discretion often requires a dispensation from, and limits to, the otherwise
democratic order.
My response proceeds in three steps. I begin by offering some analytic
clarification by disentangling three distinct concepts at work across Dean
Minow’s examples—forgiveness, mercy, and excuse—and by showing how the
law can play different functions depending on which of these normative
concepts is at stake. I next explain why a domestic focus, as opposed to the
international lens that Dean Minow employs, may reap dividends for her
project. The third—and most substantial—element of the commentary
examines the operation of mercy in the domestic domain with an eye to
understanding why its dispensation is so impoverished. I conclude by pointing
to the nettlesome trade-offs, most importantly between democracy and mercy,
that Dean Minow’s proposals invite—tradeoffs that, in my view, admit of no
easy solution.
