The discussion in this post deals with the liberal tendency to place mercy above justice. Advocating the supremacy of mercy is St. Anselm of Canterbury and opposing that view is the late John Rawls of Harvard and some quotations from Immanual Kant, who essentially state that punishment should be meted out according to what reasonable people would conclude is commensurate with the crime.
John Bordley Rawls (February 21, 1921 – November 24, 20 02) was an American philosopher and a leading figure in moral and political philosophy. He held the James Bryant Conant University Professorship at Harvard. His magnum opus, A Theory of Justice (1971), is now regarded as "one of the primary texts in political philosophy." His work in political philosophy, dubbed Rawlsianism, takes as its starting point the argument that "most reasonable principles of justice are those everyone would accept and agree to from a fair position." Rawls employs a number of thought experiments—including the famous veil of ignorance—to determine what constitutes a fair agreement in which "everyone is impartially situated as equals," in order to determine principles of social justice. He is one of the major thinkers in the tradition of liberal political philosophy.
Rawls received both the Schock Prize for Logic and Philosophy and the National Humanities Medal in 1999, the latter presented by President Bill Clinton, in recognition of how Rawls' work "helped a whole generation of learned Americans revive their faith in democracy itself."
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There was a book published in 1971 by Rawls called A Theory of Justice which asserts that reasonable people, despite religious and core belief differences, determine what justice is for a society and its legal system. This isn't merciful enough for a liberal society, accordingt to Danel P. Moloney's PhD thesis in 2004, because mercy is critical for a liberal society, in following the teachings of Anselm of Canterbury, an Archbishop of Canterbury and subsequent saint who wrote Cur Deus Homo.
Cur Deus Homo and Satisfaction Atonement
The Satisfaction (or Commercial) theory of the atonement was formulated by Anselm of Canterbury in his book, Cur Deus Homo (lit. ‘Why the God Man’).[53] He has introduced the idea of satisfaction as the chief demand of the nature of God, of punishment as a possible alternative of satisfaction and equally fulfilling the requirements of justice thus opening the way to the assertion of punishment as the true satisfaction of the law. In his view, God’s offended honor and dignity could only be satisfied by the sacrifice of the God-man, Jesus Christ. Anselm undertook to explain the rational necessity of the Christian mystery of the atonement. His philosophy rests on three positions—first, that satisfaction is necessary on account of God's honour and justice; second, that such satisfaction can be given only by the peculiar personality of the God-man Jesus; and, third, that such satisfaction is really given by this God-man's voluntary death.
Here is Daniel Pl Moloney's abstract of his PhD dissertation on this subject:
THE MIRROR OF JUSTICE:
A PLEA FOR MERCY IN CONTEMPORARY LIBERAL POLITICS
Abstract
by
Daniel P. Moloney
As usually defined, the concepts of justice and mercy seem incompatible—if
justice is the strict application of the law, and mercy lenient deviation from it, then mercy
is unjust and justice is merciless. Perhaps for this reason, liberal political philosophers
have mostly neglected the topic of mercy, despite its traditional role in contributing to
political stability. The present study suggests that one can integrate mercy into liberal
political philosophy only after significant departures from the usual accounts.
St. Anselm of Canterbury gave the classic formulation of the paradoxes of justice
and mercy in his Proslogion, and in his later works he solved them. Anselm claims that
justice and mercy should be defined in terms of right order or rectitude. Justice is the
desire to effect and preserve rectitude, while mercy is the attempt at restoring another to
justice so defined. Anselm claims it is both more stable and more humane to persuade
people to desire right order for its own sake, rather than to coerce the people to uphold
the political order or to bribe them to pursue it out of momentary advantage.
Mercy, understood in an Anselmian fashion as ordered toward rectitude, is a
stabilizing policy when exercised with prudence. The contractarian theories of justice
promoted by John Rawls and others are unstable because they cannot earn the support of people who reject autonomy as the organizing principle of their lives and politics.
Moreover, it is difficult to develop an adequate account of criminal punishment that is
consistent with contractarian liberalism. A view that puts stability and mercy at the center
of its accounts of governing and punishing can serve as a more stable foundation for
liberal politics than can contemporary views.
The theory developed here sees citizens a in democracy as leaders responsible for
promoting their ideas of social order. When advocating their ideas, they ought to
persuade those who disagree rather than to coerce them, for this promote stability.
Likewise with criminals: although, punishment is justified as a defense of societal order
against the criminal’s attack on it, it is better to persuade the criminal to obey the law
voluntarily and for principled reasons.
– Daniel Patrick Moloney, abstract for PhD dissertation, Notre Dame University, 2004 (online at
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The various arguments in Part One thus converge on a single conclusion. If
liberalism is to be viable, its goal cannot be to abolish heteronomy, but rather must
consist in the effort to make it more benign. A regime built around heteronomy of any
sort will require that, at least in some respects, citizens do not regard themselves as
equals. At this point, though, tolerance can no longer serve as the sovereign virtue—as
the term has come to be used in contemporary discussion, tolerance applies between
equals. Rawls claims that ‘civic friendship’ characterizes liberal democracies, a phrase
that evokes classical views of the friend as another self, one’s equal in the most important
respects. On the other hand, ‘paternalism’ is the derogatory term used to describe what I
have (perhaps euphemistically) called benign heteronomy. Part One concludes that a
stable society needs to be built upon a virtue that is proper to the father, but that can also
be extended to the friend and the self. That virtue is mercy. Reintroducing mercy to the
discussion, however, reintroduces some of the problems mentioned at the beginning of
how to reconcile mercy and justice. Solving those problems is the task of Part Two.
Applying the solution to the case of liberal politics is the task of Part Three.
--ibid, ppg. 5-6
But though men when they enter into society give up the equality,
liberty, and executive power they had in the state of Nature into the
hands of the society, to be so far disposed of by the legislative as
the good of the society shall require, yet it being only with an
intention in every one the better to preserve himself, his liberty and
property (for no rational creature can be supposed to change his
condition with an intention to be worse), the power of the society
or legislative constituted by them can never be supposed to extend
farther than the common good, but is obliged to secure every one's
property by providing against those three defects above mentioned
that made the state of Nature so unsafe and uneasy. And so,
whoever has the legislative or supreme power of any
commonwealth, is bound to govern by established standing laws,
promulgated and known to the people, and not by extemporary
decrees, by indifferent and upright judges, who are to decide
controversies by those laws; and to employ the force of the
community at home only in the execution of such laws, or abroad
to prevent or redress foreign injuries and secure the community
from inroads and invasion. And all this to be directed to no other
end but the peace, safety, and public good of the people.
-- John Locke, Second Treatise on Government, IX.131 (emphasis added, quoted by Moloney).
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Kant’s contractarian view of the state leads to his strong retributivist view of
punishment. In a passage that could have come right out of Rawls, Kant defines justice as
simply “the aggregate of those conditions under which the will of one person can be
conjoined with the will of another in accordance with a universal law of freedom.”
Every crime is a violation of the social contract, of the mutual obligations that reason
shows we have towards each other, and justice requires that the network of mutual
obligations be completely restored. Here’s how Murphy summarizes the key Kantian
points:
“If the law is to remain just, it is important to guarantee that those
who disobey it will not gain an unfair advantage over those who do
obey voluntarily. It is important that no man profit from his own
criminal wrongdoing, and a certain kind of ‘profit’ (i.e., not
bearing the burden of self-restraint) is intrinsic to criminal
wrongdoing. Criminal punishment, then, has as its object the
restoration of a proper balance between benefit and obedience. The
criminal himself has no complaint, because he has rationally
consented to or willed his own punishment. That is, those very
rules which he has broken work, when they are obeyed by others,
to his own advantage as a citizen. He would have chosen such
rules for himself and others in the original position of choice. And,
since he derives and voluntarily accepts benefits from their
operation, he owes his own obedience as a debt to his fellowcitizens
for their sacrifices in maintaining them. If he chooses not
to sacrifice by exercising self-restraint and obedience, this is
tantamount to his choosing to sacrifice in another way—namely,
by paying the prescribed penalty:
(Quoting Kant) ‘A transgression of the public law that
makes him who commits it unfit to be a citizen is called…a
crime….What kind and what degree of punishment does public
legal justice adopt as its principle and standard? None other than
the principle of equality…that is, the principle of not treating one
side more favorably than the other. Accordingly, any undeserved
evil that you inflict on someone else among the people is one you
do to yourself. If you vilify him, you vilify yourself; if you steal
from him, you steal from yourself; if you kill him, you kill
yourself…To say, “I will to be punished if I murder someone” can
mean nothing more than “I submit myself along with everyone else
to those laws which, if there are any criminals among the people,
will naturally include penal laws.”
This analysis of punishment regards it as a debt owed to the lawabiding
members of one’s community; and, once paid, it allows reentry
into the community of good citizens on equal status.
Moloney, ppg. 100-101
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White’s argument is the stronger of the two, since it shows that the very possibility of
unconditional commitments makes it impossible for the parties of the original position to
arrive at consensus on Rawls’s principles of justice, or any other principles that depend
on autonomy or the ability to revise one’s comprehensive doctrine. Rawls’s decision to
limit his theory to reasonable citizens allows him to evade this objection, but as we have
argued in earlier sections, this comes at unacceptable costs: it treats some citizens
inhumanely, and it leads to political instability.
Moloney, p. 63
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the distinction between the public and the private spheres need not be explained in terms of autonomy as Rawls does...
Moloney, p. 78
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The topic of punishment always invites discussion of mercy, since mercy
connects the exercise of power with a concern for the moral dignity of human beings. In
this chapter I hope to show four things: 1) that Rawlsian liberalism cannot reconcile its
commitments to autonomy and equality with any regime’s need for a state-run system of
criminal justice and punishment; 2) that any theory of the state has to have a theory of
punishment as one of its central parts; 3) that attractive theories of punishment ought to
balance respect for the humanity of the offender with the need for order and stability in
society; 4) that punishment can profitably be seen as an extreme form of moral education,
as some contemporary philosophers have urged. If these conclusions are right, then we
have another reason to reject autonomy and tolerance in favor of benign heteronomy and
mercy as the characteristic values of a stable and humane liberalism.
Moloney, p. 80
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Kant insists that freedom and autonomy require that we will rationally; irrational desires only enslave.
Moloney, p. 101
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In sum, for the purposes of this blog, Moloney's PhD thesis contends that irrational desires should be considered along with rational will when considering punishment, and that mercy is effective and in the interests of society, ultimately in an anterior relationship to justice. This is a intelligent dissertation in support of the importance of mercy to modern liberals.
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