David Weinberger wrote yesterday about Yom Kippur and forgiveness, and the difference between human rules of living and computers' rules of living. What he touches on in the post is something I've been thinking a lot about these days: the tension between Justice and Mercy.
It's a simple ethical dilemma, similar to the tension between Truth and Loyalty (do you rat on your best friend?), part of the curriculum of The Institute for Global Ethics' ethical fitness seminars, and something I first began to think about in an organized way when I read Rush Kidder's book How Good People Make Tough Choices. I thought a lot about Justice and Mercy in my first year of law school, when I was trying to get my head around the difference between torts and crimes and what bad acts will bring the apparatus of the state down against a perpetrator (crimes), and which ones won't (lies), and which ones will, but only if a private party complains (torts).
I've found myself talking to folks about my career these past couple of months, and when I talk about the legal work I was doing for the past two and a half years I found myself using the framework of Justice and Mercy to explain why I find bankruptcy law so fascinating. By Justice I mean a system where bad acts have consequences that are predictable and even-handedly applied, and that exact a reasonable punishment from the actor, and perhaps make recompense to the harmed party. By Mercy I mean a system that allows for differences in individual circumstances and adjusts penalties accordingly, that tries to promulgate no further suffering, that ultimately forgives the bad actor and wipes the slate clean. Both Justice and Mercy are good, and they are in tension. I'm sure commenters will quibble with my semantics here, but you can't really have both Justice and Mercy at the same time. Justice is blind, it doesn't care how sorry you are. Mercy does. Forgiveness is not the same as punishment. Mercy is a situation where a harsh penalty is spared a wrongdoer. We need both Justice and Mercy, even though we can't have both at once. I think our legal system tries to codify justice, while building in room for mercy (the jury system, for example, or prosecutorial discretion).
Anyway, I liked doing bankruptcy work precisely because of the inherent tension in it. Bankruptcy is where Justice meets Mercy, codified in the Bankruptcy Code. The Code tries to make rules for a just kind of mercy. Everywhere else in the law, you've got to honor your contracts, and if you don't, a plaintiff can bring the mechanism of the state to bear to enforce the contracts. In bankruptcy, this dynamic is turned on its head. A debtor doesn't have to honor all its contracts, or pay debts in full. There is forgiveness of a kind. And the Code is full of rules about when and how that forgiveness can be earned, and when it must be withheld. It's a fascinating world.
Comments