THE LAW OF FORGIVING
By MARTHA MINOW
What do forgiveness and law have to do with one another? We have long known forgiveness in many different legal contexts -- in bankruptcy (one's debts are wiped clean), in criminal law (clemency for an inmate on death row) -- and amnesty in settings ranging from overdue fines at public libraries to international human rights violations. The value of forgiveness -- as expressed in proceedings in the international human rights context, as well as in proceedings in "ordinary" criminal and civil cases -- has gained increasing currency as an alternative to the formal rule of law. The recent interest in forgiveness and law reflects widespread dissatisfaction in the equation of justice with adversarial litigation. But we should be careful about embracing the move toward forgiveness, for our commitment to the rule of law often depends upon adversarial litigation for enforcement.
It almost goes without saying that the dissatisfaction with conventional adversarial litigation is wide-ranging. Not only is it costly and time-consuming, such litigation also is isolating, impersonal, and potentially destructive of human ties. It offers limited or constrained roles for actual parties. It requires that people put aside the totality and complexity of their identities, needs, and beliefs in order to translate the conflict into legal terms. Its process and even its substance seem arcane, remote, harsh and divisive, even if it is principled, formal, neutral and fair.
In contrast, alternatives such as mediation, restorative justice conferences, and truth and reconciliation commissions depart from precedent and professional scripts to invite humane encounters, deepened interpersonal ties, and the involvement of people's hearts and commitments in dealing with wrongdoing, conflict, and dereliction of duty. No small virtue of these alternatives lies in the fact that that they may promote apologies and forgiveness. "Forgiveness," writes author Christina Baldwin, "is the act of admitting we are like other people." That admission inspires compassion and empathy -- in rather stark contrast to the legal ideals of impartiality, just deserts, and equal treatment.
Some may view forgiveness -- and the means for attaining it -- as irreconcilable with the procedures and goals of a formal legal system. I maintain, however, that legal aspirations can be rendered compatible with the aspirations associated with forgiveness. At least in one view, a crime victim can support criminal prosecution and yet offer personal forgiveness to the defendant. The victim can quite sensibly understand forgiveness as a personal decision to forgo resentment, while still adhering to a philosophical or moral conception of law as an impersonal requirement for protecting the community, and treating like cases alike. Or a victim may choose to forgive a violator who accepts responsibility and commits to making amends. A victim may drop claims if the violator remedies the problem or pays damages. Similarly, in community conferences or restorative justice circles sponsored by some prosecutors' offices and criminal courts in this and other countries, the wrongdoer, victims, and community members discuss the harm, its effects, and strategies for rectification. If they develop an agreeable strategy, the wrongdoer may avoid legal sanction and undertake reparations instead.
A very different meaning arises when it is someone other than the victim who offers a way to bypass the workings of the law. Then forgiveness and law seem quite incompatible. That is why governmental offers of amnesty to human rights violators following transitions of national regimes are so troubling. It is a trade-off -- and often a practical one -- to grant amnesty to murders and torturers in order to facilitate a peaceful transition from military or repressive rule to a democratic regime. That trade-off sacrifices justice for peace, just deserts for future stability, and freedom for the bad guys for democracy for the people.
Justice and forgiveness are at odds in another way when victims forgive in hopes of effecting personal transformation. A victim may hope that the offer of forgiveness will prompt a change in the wrongdoer; this gesture of acceptance may soften the anger or end the isolation that led to the harm. Or the victim may hope to change herself by offering forgiveness. Then she can release herself from bitterness and preoccupation with revenge and punishment. The aspirations to change the wrongdoer or change the victim contrast with the more skeptical aspirations of law. Law demands accountability whether or not a wrongdoer has changed or could change; law asks, what would it take to reach someone unmoved by the lofty ambitions of self-transformation? What would it take to reach Justice Oliver Wendell Holmes, Jr.'s proverbial "bad man", the self-interested person who obeys the law only to avoid punishment?
Now, I do not mean to suggest that prosecutors and courts should never explore alternative dispute resolution methods that invite compromise or even apologies and forgiveness. But they should be cautious not to call such activities forgiveness when they are really about clearing dockets. And they should be especially vigilant against using the power of the state to press crime victims into the postures of forgiveness. Individual human beings are entitled to their own responses to injury and harm. And if it is not the victim but someone acting in her name who pursues an alternative to litigation, the victim's own prerogative to forgive -- or not to forgive -- is painfully eliminated. I also worry about uses of state power to induce apologies or the appearance of contrition. Contrition can so easily be feigned; tied to any instrumental advantage, a wrongdoer's apparent repentance is both potentially untrustworthy and insulting to the victimized. Governmental inducements to enact a posture of contrition deprive wrongdoers and victims alike from the gifts of apology and forgiveness, freely given.
Further, the apparent virtues of face-to-face apology and forgiveness should not distract us from the remarkable aspirations of a rule of law, implemented by institutional commitments to more impartial and impersonal conceptions of justice. Elevating respect for each individual over community, hierarchy, and inherited status, the rule of law embodies liberalism's commitment to objectivity, impartiality, and a system of governance by law rather than men. Its faith is in rules and rights as restraints on relationships and power. The movement for the rule of law may squeeze forgiveness out of justice in order to implement equal and impersonal treatment and to guard against the whims of the powerful and the abuses of power relationships. In nations without it, it is easy to see the rule of law as the accomplishment that it is. Consider the situation of the few remaining Serbs in Kosovo who have no ability to claim equal treatment in local hospitals or by local police, and who depend for their very existence on international peace-keeping troops.
Of course, the rule of law has never completely been realized. It remains tricky to know what is "like" enough to be treated alike. And impersonality and predictability do at times prevent the flexibility and attentiveness to achieving justice in a particular case. That is why judges and lawyers have struggled to invent room to forgive individual wrongs and wrongdoers. Equitable principles, as well as doctrines of lenity, hint at the generosity and hope associated with forgiveness. But no less valuable is the aspiration to establish institutions committed to the rule of law rather than the whims of governors. The ambitions of law and forgiveness offer worthy challenges, one to the other, in our desires for impartiality and compassion.