On Mercy and Justice

Eve Tushnet has a great post about justice and mercy. (Blogspot permalinks are busted, of course...scroll down to the post entitled "JUSTICE, MERCY, AND THE FALL" from April 7.)

A few excerpts:

Have been thinking a lot recently about justice and mercy, especially about the famous Adam Smith tagline, "Mercy to the guilty is cruelty to the innocent." [...]

Smith's quote points out some of the ways that naive or misapplied mercy can become itself merciless, thoughtlessly cruel--an obvious example would be freeing a murderer who then kills more people. Many of the debates about how widespread welfare affects culture and creates perverse incentives revolve around more subtle examples of Smith's principle. Policing may seem like a "justice" act, but live in an unpoliced neighborhood for a while and you'll see that it can also be a great mercy to a populace terrorized by criminals.

But justice isn't just merciful to the innocent. It can also be a means of keeping the guilty from doing further harm--and thus a blessing in disguise to them. Chastisement can provoke repentance. Chastisement can force self-examination. [...]

But the justice-trumps-mercy stance is also flawed, because it divides the world into the Good Guys and the Bad Guys, and if you ever fall off the cliff into BadGuyLand, that's it for you--you'll get what you deserve. If you have a kid out of wedlock, don't expect my help--you should have kept your pants zipped. If you rob a store, don't expect me to visit you in prison, bring books to the prison library, or give you a second chance--I ought to ostracize you, both to maintain the disincentives to robbery and because you earned it. What have the sheep to do with the goats?

There are a lot of problems with this view, but perhaps the most obvious one is just that there is no one who does not need mercy.

Eve says that her thoughts on this subject are "unformed" and "scattered." I don't think they are at all...they're well worth reading.