The Justice of Mercy

Chapter 1. Beyond Kanticism to Being-with

chapter 1 Beyond Kanticism to Being-with Justice is usually understood as acting according to reason, and reason is conceived as a system of logically consistent rules. This “reason” of ours is the glue of community, giving us “reason” to treat each other fairly and to order our mutual affairs according to rules rather than whim. Without reason, we fear a return to a brutal state of nature, in which life is a battle zone between needy, violent people. This chapter will show how this conception of justice as reason and of community as requiring the “glue” of reason is bound up in an incomplete and dogmatic understanding of Kantian philosophy, a kind of Kantian catechism, or “kanticism.” Given this understanding of justice, if we take mercy, in its most basic sense, as giving a person less punishment than he or she deserves or, in a deeper and broader sense, as a gift or grace—giving another a bene‹t that is undeserved and to which the other has no right—the disjunction between mercy and law seems obvious by de‹nition. Mercy, or grace, is unlawful, outside the rules, beyond rights. This ideal of justice as a system of rules is deeply embedded in our legal system . Reason is the touchstone for law. Irrational laws are unconstitutional; irrational people are not criminally responsible. Differences in treatment must be either explained as reasonable or eliminated. “Interest,” “feeling,” or “opinion ”is not universal and therefore not a reason; sel‹sh prudence is not a reason. Law students imbibe these assumptions from the ‹rst day of law school. When asked a question like,“Should the Nazis be allowed to march in Skokie?” students learn not to say “I feel . . .” or “In my opinion . . .” or “Well, it just de9 pends on your personal views”or“It depends on whether the trial judge is a Republican .” Reasons, not “personal points of view” or political predictions, must be given and analyzed. Students also learn not to give post hoc empirically contingent answers to doctrinal conundrums—such as “If it turns out that the march causes more suffering to the residents of Skokie than canceling it causes the Nazis, then the trial court was wrong to allow it”or“If it turns out that canceling the march resulted in a 10 percent drop in peaceful protests across the country, then the trial court was wrong to cancel it”—because what counts as a relevant consideration and what threshold of likelihood will be deemed critical must be decided by reason in advance, before the empirical sciences can be deployed to determine whether those considerations exist or not. Compared with other forms of discourse, law seems strange. Why can a plaintiff’s lawyer not simply point out to the trial judge that to rule in his opponent ’s favor would create a grave risk of reversal by appellate Judge Z, who always rules in favor of accident victims—even if the lawyer can back up his prediction by meticulous empirical research? Why can a judge not give damages to injured plaintiffs explicitly on the ground that causation takes too much time and money to establish? Why can a jury not convict and incapacitate a defendant on the ground that he or she is statistically likely to commit crimes anyway , even if he or she has not yet done so? Why should a judge not judge on an ad hoc basis, without issuing inef‹cient, time-consuming opinions and struggling to articulate rules? Why should a judge not randomly distribute convictions , so as to increase information costs for criminals and deter crime?1 Why should society not judge judges on how bene‹cial their rulings turn out to be for our collective social welfare? As others have pointed out, law resists colonization by the social sciences2 and retains its rationalist catechism—its “kanticism.” Our continuing allegiance to reasoned justi‹cation demands that law be rule-bound, nonarbitrary, and universal and that legal decision makers make decisions based on preexisting rules about what features of the situation are legally relevant, not on their own “subjective” predictions of other judges’ actions, their evaluation of the ef‹cacy of various policies, their predilections, their self-interest, or their analysis of public opinion polls. Law, Ronald Dworkin says, is about principle, not policy.3 Why do we limit law in this way? For no further utilitarian reason—just because that is what acting on the basis of reason requires. As a form of...