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PUNISHMENT, FORGIVENESS, AND MERCY

Published online by Cambridge University Press:  26 November 2019

Jeffrie G. Murphy
Jeffrie G. Murphy*
Affiliation:
Regents’ Professor of Law, Philosophy, and Religious Studies, Sandra Day O'Connor College of Law, Arizona State University
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Abstract

Forgiveness and mercy are often thought of as acts that we perform or gifts that we bestow. In this essay the author focuses on character and explores the implications for punishment if one focuses on having a character that is merciful and forgiving in disposition. He argues that the tension that is often thought to exist between justice, on the one hand, and forgiveness and mercy, on the other, is lessened by focusing on the virtue of having a forgiving and merciful character.

Keywords

lovehumilityforgivenessmercyreformrehabilitationpunishmentKant
Type
Essay
Information
Journal of Law and Religion , Volume 35 , Issue 1 , April 2020 , pp. 5 - 17
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 2019

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Footnotes

This essay was presented in draft at a symposium convened at the Inner Temple, London, in October 2018 and will be published in Mark Hill, Norman Doe, Richard Helmholz, and John Witte, Jr., eds., Christianity and Criminal Law (Abingdon: Routledge, 2020).

References

1 “Homily of His Holiness Pope Francis,” Cairo, Egypt, April 29, 2017, https://w2.vatican.va/content/francesco/en/homilies/2017/documents/papa-francesco_20170429_omelia-viaggioapostolico-egitto.html.

2 Nietzsche, Friedrich, Thus Spoke Zarathustra, in The Portable Nietzsche, ed. and trans. Kaufmann, Walter (New York: Viking, 1954), 103–439, at 212Google Scholar.

3 Nietzsche, Friedrich, Beyond Good and Evil: Prelude to a Philosophy of the Future, trans. Kaufmann, Walter (New York: Vintage, 1966), part 4Google Scholar, “Epigrams and Interludes,” aphorism 146, page 89.

4 Heine, Heinrich, Gedanken und Einfälle, section I, quoted in Sigmund Freud, Civilization and Its Discontents, trans. and ed. Strachey, James (New York: W.W. Norton and Co., 1961)Google Scholar.

5 It is important to emphasize that, in spite of a common confusion, retribution does not mean vengeance or harsh punishment and does not mean (indeed explicitly rejects) punishment based on hatred, anger, or resentment. It simply means the punishment that is deserved—a value that will often incline the retributivist to argue for reduced punishment. Note also that when punishment is described as imposing suffering, this is not to be taken as pain. It is rather the sense of suffering as enduring (think of “he does not suffer fools gladly”) where the criminal is simply being required to endure a period of confinement in which he no longer enjoys full voluntary control over his life. In short, and as the old saying goes (although many in our increasingly cruel society no longer seem to think in this way, alas), we send people to jail as punishment, not for punishment. I am personally drawn to a justification of punishment that combines both crime control and retributive elements. I defend such a view in some detail: Murphy, Jeffrie G. in my “Last Words on Retribution,” in Routledge Handbook of Criminal Justice Ethics, ed. Jacobs, Jonathan and Jackson, Jonathan (London: Routledge, 2017), 28–41Google Scholar.

6 For an elaboration of my previously stated views on forgiveness and mercy see Murphy, Jeffrie G., Getting Even—Forgiveness and its Limits (Oxford: Oxford University Press, 2003)Google Scholar. My views have been greatly influenced by the sermons on Matthew 5: 43, 44, “Upon Resentment” and “Upon Forgiveness of Injuries” by Bishop Joseph Butler (1692–1752): Fifteen Sermons Preached at the Rolls Chapel and Other Writings on Ethics, ed. Naughton, David (Oxford: Oxford University Press, 2017), sermons 8 and 9Google Scholar.

7 Anselm, Proslogium, Chapter IX, in Medieval Sourcebook, “Anselm (1033–1109): Proslogium,” accessed September 26, 2019, https://sourcebooks.fordham.edu/basis/anselm-proslogium.asp#CHAPTERIX.

8 Kierkegaard, Søren, Purity of Heart Is to Will One Thing: Spiritual Preparation for the Feast of Confession, trans. Steere, Douglas V. (New York: Harper, 1938)Google Scholar.

9 Kant, Immanuel, Metaphysical First Principles of the Doctrine of Virtue, in The Metaphysics of Morals, trans. and ed. Gregor, Mary J. (Cambridge: Cambridge University Press, 1991), 181–280, at 253Google Scholar.

10 Kant, Doctrine of Virtue, 251.

11 Kant, Immanuel, Religion within the Limits of Reason Alone, trans. Greene, Theodore M. and Hudson, Hoyt H. (New York: Harper Torchbooks, 1960), 33–34Google Scholar.

12 Luke 10:27, King James Version.

13 Auden, W. H., “As I Walked Out One Evening,” in Collected Poems, ed. Mendelson, Edward (New York: Modern Library, 2007), 134–35, at 135Google Scholar.

14 The issue of whether or not the command to love one's neighbor as oneself can be accepted with independence from the metaphysical claims that are a part of orthodox Christianity (the promise of eternal life, for example) is not one that I am able to explore here. Perhaps those of us who are initially skeptical of many of these metaphysical claims can be drawn to them (on certain interpretations) because of the immediate appeal of the value of love. If so, then Kierkegaard may be mistaken in thinking that the belief in a divine command must precede belief in the fundamental value of love. I suspect that more people are drawn into Christianity because of the appeal of the love commandments than because of those metaphysical arguments about God's existence and nature that are generally made central in introductory philosophy courses.

15 Murphy, Jeffrie G., “Humility as a Moral Virtue,” in Handbook of Humility: Theory, Research, and Applications, ed. Worthington, Everett L. Jr., Davis, Don E., and Hook, Joshua N. (New York: Routledge, 2017), 19–32Google Scholar.

16 Johnson v. Phelan, 69 F.3d 144 (7th Cir. 1995).

17 Kant, Doctrine of Virtue, 142.

18 Kant, Religion within the Limits of Reason Alone, 34.

19 Kant, Religion within the Limits of Reason Alone, 33.

20 Dorfman, Ariel, Death and the Maiden (New York: Penguin Books, 1991), 58–60Google Scholar.

21 Nietzsche, Beyond Good and Evil, part 4, “Epigrams and Interludes,” aphorism 68, page 80.

22 Pinker, Steven, The Better Angels of Our Nature: Why Violence Has Declined (New York: Viking Press, 2011), 175Google Scholar.

23 Trevor, William, Felicia's Journey (London: Viking, 1994), 212Google Scholar.

24 As quoted in Denning, Alfred Thomas, The Influence of Religion on Law (Edmonton: Canadian Institute for Law, Theology and Public Policy, 1997), 107Google Scholar.

25 See Sigler, Mary, “By the Light of Virtue: Prison Rape and the Corruption of Character,” Iowa Law Review 91, no. 2 (2006): 561–608, at 561Google Scholar.

26 Burton, Susan, Becoming Ms. Burton: From Prison to Recovery to Leading the Fight for Incarcerated Women (New York: New Press, 2017)Google Scholar; Nicholas Kristof, “From Prisoner to Modern-Day Harriet Tubman,” New York Times, May 4, 2017, https://www.nytimes.com/2017/05/04/opinion/susan-burton-modern-day-harriet-tubman.html.

27 Kristof, “From Prisoner to Modern-Day Harriet Tubman.”

28 “The law will be fulfilled, but only by love.”