When Should Law Forgive?

By Martha Minow. W.W. Norton & Company, 2019. 256 pages. $27.95/hardcover; $17.95/paperback or eBook.

When Should Law Forgive? is like a fresh breeze, blowing away mist and cobwebs, turning leaves to expose new facets, invigorating the mind. As someone who has not considered the field of law in any intentional way, I appreciated the service the author does in taking various bits of legal practice that we’re all vaguely aware of and creating an integrated moral lens through which to view them all.

Does forgiveness even belong in a legal system? If laws are created for the purpose of ensuring accountability to societal norms by judging and punishing those who cross the line, it could be argued that advocating for forgiveness risks destabilizing the whole system. Yet how can we live without it?

How should the atrocities that child soldiers commit be punished? When individuals—or nations—are so deeply burdened by debt that repayment is impossible, what is a fair way forward? How can having one individual with the constitutional power to pardon others promote mercy, and when does it protect unprincipled self-serving?

It turns out that, even as the thrust of our law is toward punishment, in each case current legal systems have some provisions for forgiveness: of minors, of debtors, of rebels. Many of us would argue that there should be many more. The author is clearly sympathetic to this perspective but also offers some cautions. Pressuring people to forgive those who have done them harm can diminish their agency and not serve the cause of justice. Requiring apologies can also produce formulaic responses that have little to do with the deep remorse that is more likely to elicit true forgiveness.

She suggests two shifts in focus that could help build more forgiveness into the legal system. One is a shift in attention from the past to the future. And the second is a shift from the individual to the community. Restorative practice can play a role in both. What if the community can gather around someone who has broken a law, reflect on the conditions within which that individual acted, then consider what needs to happen or change to make the community more whole going forward?

Thus, the question becomes not whether to reflexively punish—or reflexively forgive—for example, child soldiers or young gang members who have clearly harmed their community. Rather, it becomes a larger inquiry that includes the role that adults have played in setting these children up to do harm, and a means of holding all accountable for their own actions in a context that allows for forgiveness as they move forward.

Similarly, debtors could acknowledge what they have promised to pay, while the community considers the lending practices that have ensnared them, so a solution can be reached that acknowledges a need for accountability and change for all parties going forward. Amnesties and pardons can be used to heal past divisions and offer opportunities to whole groups of people for a fresh start. In some cases, the law places restraints on people who have served their time but face ongoing restrictions on their freedom. Laws that restrict people such as Vietnam-era draft resisters and undocumented immigrants can be eased so that we all are more able to leave the past behind.

Several issues that are mentioned only briefly whetted my appetite for more. Minow touches on how women have fared in this arena of law and forgiveness. While women’s capacity to forgive offers a model to our male-dominated culture of punishment, an assumption that forgiveness will be forthcoming may shield a perpetrator from coming to terms with what he has done, or inhibit a woman from calling for justice. And, ironically, conflict resolution systems in traditional societies, which tend to incorporate more compassion and forgiveness than Western legal systems, sometimes sideline women. The attempt to use computers and artificial intelligence to reduce problematic judicial discretion also deserves greater consideration, since using data from an unequal society can actually embed injustice more deeply into the system. More broadly, if law originates in the context of inequality, is building in space for forgiveness enough?

That said, I would recommend this book to anyone who values the pursuit of forgiveness and seeks to encourage its practice in all aspects of our shared lives. It is a short book, written in very accessible language and with a generosity of spirit, geared toward those who would bring their values—faith or otherwise—into the public sphere.

Pamela Haines is a member of Central Philadelphia (Pa.) Meeting. Her most recent book is Money and Soul, an expansion of a Pendle Hill pamphlet by the same name.

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