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Justice and Mercy

The moral debate about whether Abdelbaset al-Megrahi, the man convicted for the Lockerbie bombing,  should have been released has now morphed into a political debate about who wanted what and who said what to whom: . But the moral debate itself remains unresolved.

Let’s assume, for the sake of argument, that (a) Megrahi was guilty as charged, (b) his trial was procedurally just, (c) he deserved his sentence, and (d) he is very close to death. Those who opposed freeing Megrahi tended to concentrate on (a)-(c), especially (a) and (c), as if that settled the matter. But of course those who supported freeing him believe that there was a case, based on compassion or mercy in response to (d), for releasing him before he had finished his sentence. What is going on here?

Martha Nussbaum, the American philosopher based at the University of Chicago, argues – following Aristotle – that compassion (or true compassion) can never be felt for deserved suffering. This seems wrong: surely many people did feel genuine compassion for Megrahi. The question is whether it was justified.

The relation between compassion, or mercy, on the one hand, and justice on the other, is a complicated one. On the face of it, mercy seems irrational: if someone deserves a punishment, surely there must be something unjust about knowingly ensuring that that they do not suffer it? But, on the other hand, is it not cruel to force someone to die in prison, and can justice really require that?

Some see here an irresoluble conflict between two incommensurable moral perspectives, or two virtues, with no resolution possible – we are left with an interminable debate. But here I think Aristotle can help us. According to him, there can be no genuine conflicts between virtues, since the virtuous person gets it right in every case – so whatever that person decides is what is right in that domain. The domain in question here is punishment, and the virtuous person is the person who will take action to ensure that the right amount of punishment is inflicted. So getting it wrong – whether that is keeping Megrahi in prison, or releasing him – will be unvirtuous or vicious, not the deliverance of some alternative virtue.

In other words, this debate cannot be resolved by each side accusing the other of either injustice or lack of the virtue of compassion (which, equally, consists in feeling concern for the right people, at the right time, and so on). The question is whether there was reason to free Magrahi or not, and here one has to make a choice between a stern, retributive principle of justice on the one hand, which would speak in favour of leaving him to die in prison, and a gentler, perhaps primarily deterrence-based conception of punishment, according to which  release would do no harm and probably some overall good. Exactly how to make that choice, of course, is a deep epistemological problem; the shrillness of the accusations made against opponents in this present debate suggests that those involved have so far failed to recognize that.

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3 Comment on this post

  1. I wonder if we could add a bit more to this account, along the lines that acting according to the demands of justice is a bit thin. After all, just actions need only be minimally decent; admirable actions, on the other hand, are more-than-just. To give a person what he deserves – whether that be in terms of remuneration for his job, or punishment for his transgressions – might be just, but it’s also a bit… well… meh.

    The point is that to release someone on compassionate grounds may not be just, but that doesn’t mean that it’s unjust – it might simply be more-than-just. I’m thinking here of the Aristotelian great-souled man, predisposed to generosity – which implies predisposed to give more than is deserved. I suspect the same could be said here: to say to al-Megrahi that he does not deserve release but that we’re going to release him anyway becasue, frankly, we’re big enough strikes me as being admirable. (I think there’s something Nietzschean about this, too – perhaps in the Genealogy, though I can’t remember…)


    Sorry. Wittering.

  2. re the preceding comment:

    How can something be “more than just”? It is just or it isn’t. Maybe there are cases which call for an un (not) just disposition, but that is because there is a competing measure for action. What can this measure be? “More than just” seems to imply this other scalar, which places justice or just actions as lying along that scale, to be beaten by other actions.

    If you take justice to have to do with desert, I can’t see how you can beat Aristotle. If a person deserves what he gets, then that’s it. In fact, it may be a bad thing to interrupt treatment that is deserved, and mercy may simply say to others (and to the subject) the action for which the punishment is meted out wasn’t that bad, after all. Now, God gets to say that, but how does one of us mortals know when to administer mercy?

    On the other hand, you can simply chuck justice in the sense of penal justice, and find some other reason for (not) punishing someone. What criteria do we apply in such cases?

  3. Justice is one virtue, but it is not the only or necessarily the most important one. So I don’t think considerations of justice settle the matter. I agree with Roger that, assuming al-Megrahi was justly convicted and imprisoned, the issue is whether there is reason to violate some considerations of justice in the name of mercy. But I don’t think compassion, by itself, is sufficient. One could have compassion for al-Megrahi but still insist that only justice be served.

    If memory serves, Nietzche thought that mercy indicated that the merciful person thinks of himself as invulnerable–mercy is an expression of one’s superiority or nobility. So the reference to Aristotle’s great-souled man is appropriate.

    But to my mind, mercy is a matter of determining if the peculiarities of a particular case warrant over-riding some justice considerations. And I don’t see anything peculiar or unique about al-Megrahi’s case.

    So I think mercy was not justified in this case. I have a long post on this topic at my blog.

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