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.