Letting Go

“Ours is an unforgiving age, an age of resentment,” writes Martha Minow, the 300th Anniversary University Professor at Harvard, in the opening of her new book, “When Should Law Forgive?” In what follows, that reflection jump-starts a compassionate yet clear-eyed reexamination of law’s basic aims.

From the treatment of young people in the criminal justice system to how we handle debt to the possibilities embedded in pardons and amnesty, Minow asks whether law can and should promote forgiveness, and whether law itself should forgive. The work builds on Minow’s 1998 book, “Between Vengeance and Forgiveness,” where she explored ways of responding to collective violence and genocide.

“Many people asked me: ‘Why are you looking for an alternative to forgiveness? Why isn’t forgiveness itself a good thing?’” she said. These questions led her on a journey to examine how law might allow for letting go of justified resentment, as she has come to define forgiveness.

“The capacity to acknowledge wrongdoing but also to use ritual as a mechanism for letting go,” she said, is a theme she found again and again while looking into the role of forgiveness across ages and cultures. Examples abound in her book: the Quran’s allowance for adjusting when a debt comes due, the biblical Jubilee’s periodic debt forgiveness, Shakespeare’s reminder in “The Merchant of Venice” that mercy can benefit all sides, South Africa’s pursuit of truth and reconciliation with the fall of apartheid, and Colombia’s negotiated peace agreement with revolutionary armed forces.

“Finding that many societies, many civilizations in history, have pursued forgiveness either in specific moments or just as a general practice, I think, reinforces this recognition that it’s a human resource,” Minow said.

And yet, for Minow, the use of that resource seems to ebb and flow, with its tide hitting a low point today. “I do think that in the United States in particular we are at one stage of a cycle where we’re in a largely unforgiving phase,” she said. Mass incarceration is just one example she cited: The United States now incarcerates people at a higher rate than any other society in human history. Yet so far, Minow writes, “the yearly ritual of a presidential Thanksgiving pardon for a live turkey has had more cultural resonance than pardons or commutations for prison inmates.”

Minow considers how other justice models might contend with wrongdoing while providing more hope of liberation from the past.

Take communal restorative justice initiatives for former child soldiers. These are processes where everyone affected by a crime—with emphasis on victim participation—works to find a strategy that will repair the harm done. “Communal processes focus less on assigning individual guilt and innocence than on gathering the experiences and feelings of the former child soldiers, working on a shared narrative about the political and social contexts that make young people into soldiers … and pursuing rituals and practices that could restore their membership in larger communities,” Minow writes.

Accountability isn’t lost in this picture. For instance, Minow describes her fear that failing to impose consequences on former child soldiers who show some agency “may impair development over time of their own identities as moral agents.” This leads her to look for a middle ground that aims for rehabilitation and reintegration alongside accountability.

Likewise, Minow worries about accountability with debt forgiveness, wrestling with the fear of creating what economists call “moral hazard,” where forgiveness could induce risks by suggesting people won’t bear the costs of their borrowing. Yet, with such hazard in mind, she still asks whether more could be done to empower less sophisticated borrowers, encourage responsible lending, and involve a broader circle of actors when they are implicated in either the problem of crushing debt or its solution.

And there are instances when Minow suggests blanket forgiveness might be ideal. Take presidential pardons or amnesty, which she thinks might be appropriate especially when they can lessen existing unfairness or ease a political transition. Pardons in particular run the risk of corruption, she acknowledges. President Bill Clinton, for example, pardoned a major Democratic donor’s former husband, Marc Rich, accused of tax evasion and more, without relying on the Justice Department’s established review process. President Donald Trump pardoned his political supporter Joe Arpaio after Arpaio violated a court order prohibiting him from engaging in unconstitutional racial profiling. But the solution isn’t to do away with the pardon, Minow argues. Rather, she wants to see the development of substantive criteria that would reject pardons based on corruption or promotion of unjust lawlessness.

Here, a reader might start to sense a broader theory emerging for how forgiveness can strengthen the law. Minow quotes former Supreme Court Justice Anthony Kennedy ’61, who reflects on the declining use of the pardon power: “A people confident in its laws and institutions should not be ashamed of mercy.” Minow embraces this claim but also goes further, arguing that thoughtfully applied mercy is not just an indication of, but also a contribution to, law’s good health. “Forgiveness within the law, exercised wisely and fairly, strengthens the law and justifies people’s faith in it,” she writes.

In this sense, forgiveness emerges as a kind of exception that doesn’t just prove, but also improves, the rule of law.