Martha Minow, "Forgiveness, Law and Justice"

PRESENTER: As all of you know, the Brennan Center for Justice based at NYU is a nonpartisan, public policy and law institute that focuses on issues of democracy and justice The Jorde Symposium, named after Thomas Jorde, a professor at Berkeley and a benefactor of the Brennan Center, promotes scholarly discourse from a variety of perspectives, mostly those issues that were central for the legacy of Justice Brennan Now one of the unique aspects of the Jorde Symposium is that following the main lecture, two faculty members from each institution– so when it was at Berkeley they were Berkeley faculty members, here University of Chicago faculty members– provide commentary So, today I’m delighted that Professor Aziz Huq, himself, of Brennan Center alumnus, and Professor Martha Nussbaum will be giving us their views Now, I should state that the Professor Nussbaum is going to be arriving a little late, because she has a prior engagement in the philosophy department But as you might imagine, she has studied the paper very carefully and is going to come equipped with her usual insightful comments Now, I now have the pleasure of welcoming Martha Minow to our law school Normally, I might make a crack about the weather Say, you know, boy, how usual it must be to come to subzero weather with actually snow today But I won’t, because Martha Minow is a native Chicagoan, so she must feel a little bit like a polar bear amidst ice flows today, back home Indeed, the Minow name is synonymous and inseparable from our city Newt Minow is the legendary former head of the FCC, and former managing partner of one of our all-time favorite firms, Sidley Austin He and his wonderful wife, Jo, are leaders of scores of civic organizations in the city, and we’re honored to have you both in the audience today Thank you for coming In addition, Martha’s sister, Nell, is a graduate of our law school In 2010, she won the Alumni Associations’ Professional Achievement Award Now, when I said a moment ago that it’s my pleasure to introduce Martha, I am understating my enthusiasm There are some people in the world that seem to excel at virtually everything they do, make it seem like it’s no effort at all, and Martha Minow is one of them She’s a prolific scholar, a legendary teacher– indeed, of many of you were in this room– an extraordinarily engaged civic leader, an inspired leader of a renounced law school In other words, Martha Minow is the sort of person one would love to hate, because she’s so perfect at everything that she does But even more infuriating, is the fact that Martha makes hating her impossible, because she’s also one of the nicest, most genuinely descent human beings I’ve ever met And so, it’s a particular pleasure to have her here today Martha is the Morgan and Helen Chu Dean and professor of law at the Harvard Law School She’s taught at Harvard since 1981 in a large number of fields, including civil procedure, constitutional law, family law, and international criminal justice Her scholarship is in a wide range of fields, also including constitutional law, education law, human rights, and has influenced judges, academics, and legislators throughout the world And I could spend the rest of the evening stating all of Martha’s board affiliations, which include Chicago’s MacArthur Foundation and the Legal Services Corporation But instead, you’re not here to listen to me, you’re here to listen to Martha, so, I’m going to stand aside and allow her to present the 2015 Jorde Symposium lecture, Forgiveness, Law, and Justice Martha– [APPLAUSE] MARTHA MINOW: Good afternoon, and Michael, that was so very lovely And it really touches me deeply, and it’s just wonderful to be here with you, because we’re such good friends And I am very comfortable here with the snow and the cold

I also went to the University of Michigan, so this is nothing I want to thank the Brennan Center and its representatives here today, and I want to thank them for many things, among them selecting University Chicago as a place to hold this lecture And not the least reason being, that I do get to be here with my parents And I’m very grateful to them for being here, and for reading the lecture, and talking with me about it in advance I am also incredibly grateful to Martha Nussbaum, and to Aziz Huq for being willing to comment on what is really a work in progress And so, I say to them, and I say to you all, forgive me Now how often have you said that? Forgive me These are words that we use when we arrive late– no comment meant to you all These are your words that we use when we ask someone to repeat something that they’ve said that we missed And these are words that we use when we’ve done something more egregious These are familiar words in the prayers of many religions These, our words, are steps towards repentance and redemption Request for forgiveness fill the lyrics of pop music, detailing mistakes and apologies between lovers, parents and children, citizens and governments, individuals and their gods Forgiveness is pivotal in novels ranging from Atlas Shrugged to The Lord of the Rings trilogy, Ender’s Game, Wicked, Victor Hugo’s classic, Les Miserable That one spotlights the human cost that an unforgiving law can impose not only on a criminal defendant, but also on the one who enforces the law And in its climax, the escaped convict, Valjean, mercifully spares the life of the police chief who had spent years pursuing him, shocking the man of the law with the power of forgiveness Now whether to forgive and why have become subjects of entertainment– relationship advice, religious counseling and political drama When a high government official is caught in personal or political scandal, journalists and philosophers and families and friends discuss whether and when such a figure should be forgotten by whom If you are a procrastinator, as I sometimes am, just put into a search engine, forgiveness and anything else, and you will see endless debates, and endless discussions on blogs and elsewhere Forgiveness expresses generosity of spirit, reconnection, and constructive focus on the future Forgiveness in this sense is a potentially non-depleting resource It offers psychological, physical and practical relief for both wrongdoers and for victims of wrongdoing But forgiveness has its limits Some acts seem unforgivable Wrongdoers who show no remorse after heinous acts, especially, try the limits of forgiveness And terrible wrongs, generating no apologies, persist A recent documentary film called The Act of Killing, examines the massacres in Indonesia that began in 1965, and killed an estimated 2.5 million people in mass murders That human cruelty defies understanding It has also escaped public reckoning The film by MacArthur Genius Fellow, Joshua Oppenheimer, invites two unrepentant perpetrators right on film to reenact their actions Apparently, delighted by the chance to participate in the film, the two elderly perpetrators show absolutely no remorse, or even a flicker of self-doubt, until possibly at the very end of this experience one of them plays the role of the victim, and shows a moment of remorse Now even the combined resources of law, politics, psychology, religion, and the arts, may be too limited to respond to some horrors And private or public pressure on a victim to forgive can be a new kind of victimization, denying the victim her own choice So, I ask myself the question, although forgiveness holds many, many resources, should law encourage people to forgive one another? Should law be used to forgive people, itself, for wrongdoing? Or, instead, is it a mistake to promote greater connections between law, with its need for predictability, and forgiveness, with its dependence on emotions and moral judgments? Before exploring these questions, I will discuss what I mean by forgiveness I will turn then to the possible roles that law can play in relationship to forgiveness in the context of criminal law, both international and domestic And also, perhaps a little bit surprisingly, another area is debt, and by that, I mean both sovereign debt of nations and also consumer debt, something that many of us live with I realize, that as a dean, I turn to the subject of debt, because I live with it all the time, as do our students Then I will raise some questions about the inquiry itself When I first turned to these issues, South Africa’s Truth and Reconciliation Commission was just getting started And in the 20 years since, and in no small measure because of the TRC effort, forgiveness has attracted global attention

and debate in law, psychology, and politics, as well as in its traditional homes of religious and philosophic discussion And so, I will, along the way, consider what we have learned from the TRC about the promise and limitations of forgiveness and the law, both for law and for forgiveness So, what do I mean by forgiveness? I mean a conscious, deliberate decision to forego rightful grounds for grievance against those who have committed a wrong or a harm A conscious, deliberate decision to forego rightful grounds for grievance against those who have committed a wrong or a harm Now, forgive in this sense is not an obligation It is a choice It’s held at the discretion of those who were harmed Forgiveness can offer benefits to an offender, for example, relieving a sense of isolation, offering solace and acceptance And it can offer benefits to a victim, who by forgiving can let go of resentment, can regain a connection, or simply feel empowered by the choice to forgive The choice not to forgive, though, is also empowering And this definition raises questions about whether groups or institutions can forgive, or if a group or an institution is engaging in this activity is it more appropriately identified as mercy, or pardon, or amnesty in the sense that these do not forgo a ground for a grievance, so much as simply forego warranted punishment This difference signals the important element of letting go of resentment and blame that I think is central to forgiveness And the shift in attitudes and relationships, also central, is different than merely relinquishing authority to punish Now, forgiveness, tolerance, and mercy figure prominently in philosophic and religious traditions Humanism, Christianity, Judaism, Islam, Buddhism, Baha’i, Hinduism, Confucianism– as well as ancient and practices of native peoples, Hawaii, Canada, New Zealand, Sierra Leone, and elsewhere– if you study traditional methods of justice in many of these areas, forgiveness is pretty central Evangelical Christians and followers of both the right-leaning Tea Party and left-leaning Occupy Movement, offer support for forgiveness Whether for criminal charges, or for consumer debt, and psychological, spiritual, and practical dimensions come together in calls from many different quarters to let go of justified resentment Now, it is widespread and honored, these calls for forgiveness, but forgiveness is hard to enact It’s often difficult to let go of resentments And I often, myself, feel a desire for revenge over even minor matters, maybe because I drive in Boston Now, forgiving family members and neighbors who harm us is a daily challenge, and some find it impossible to forgive if the wrongdoer has not already apologized, or otherwise made amends I want to underscore, I don’t think it’s bad not to forgive Some acts are simply unforgivable Crucially, letting go of resentment cannot be done by anyone else Pressure to forgive, imposed on one who has already suffered, is another harm And declining to forgive can, in fact, express a fair expectation of accountability and responsibility I’d go so far as to say that the desire for revenge should be understood as the wellspring of the sense of justice, because it’s an expression of the view that something wrong was done, and I am worth more than that A wrong should be made right, and an intended harm should be met with a consequence This idea is central to law Pursuing rights, correcting wrongs, that’s the heartland of law Courts and legislatures speak to our highest hopes for fairness, predictability, equality, and freedom from bias and corruption Forgiveness often seems antagonistic to these very goals It can jeopardize the appearance, if not the reality, of laws even-handedness And yet, I don’t think that these concerns should halt the inquiry It should, instead, frame it Legal tools are just that, they’re tools, and the purposes that they serve, should be ours Law can be a tool for harmony, for compassion, for human growth, and for converting suffering into opportunity, as well as, a mechanism for predictable application of rules So, what roles could law play in forgiveness? Collective power can be used to promote or directly express forgiveness Law can also be used to discourage or encourage forgiveness Law can penalize people who apologize, and in so doing, make forgiveness less likely Law can construct adversarial processes that render forgiveness less likely than it would otherwise be, or law can give people chances to meet together in spaces where they may apologize and forgive, even if it doesn’t force enactments of forgiveness Law can, itself, enact forgiveness by foregoing otherwise applicable legal accountability, along with the suspension of blame And I think, not wisely, law could even be used to force statements of apology and forgiveness,

but it certainly cannot compel the feelings that those are meant to express So, consider some examples– a husband and wife, or a wife and a wife, or a husband and a husband, on the brink of divorce may be required by law to try to mediate their disagreements A good mediator will call upon each spouse to express the grievance and the desires of the other person And even if they then go on to proceed to divorce, the spouses may become more forgiving and more cooperative They may have come to see, or at least be able to imagine, the other person’s perspective And they may even find common ground, perhaps in resenting, the mandatory mediation exercise Some may be offended to be asked to forgive a former spouse And in finding a capacity to forgive, at the same time, the forgiver can gain some freedom from anger and resentment Second example, a victim of physical assault could be asked by legal officials whether or not to prosecute Giving that victim the authority to make the law forgive, or give up For the law could, instead, treat the assault as a violation of public norms, and go ahead with the prosecution, even if the victim chooses not to– the so-called no drop rule Prosecution can, indeed, proceed regardless of the participation of the victim, though it’s harder But the law would turn later to a victim, once there is a conviction, and introduce forgiveness, or the opportunity to express it in the form of the punishment Third example, law can proceed, not just case by case, but also by category, and in decisions about when to prosecute, anyone, for example, who commits self-defense that’s exempted from a certain kind of punitiveness Or, the law can enact a general amnesty, a general pardon, even before prosecution– say of protesters in a certain context, or of immigrants who enter the country illegally, or who were children when they entered– and these express a kind of suspension of blame, a kind of forgiveness, though they also may express a political judgment about the behavior, or about the costs of prosecution Law can prescribe, as yet another example, negative consequences for a doctor who apologizes for making an error during surgery The law can treat that apology as an admission Thirty-six states now have adopted what they call, apology laws, that prohibit admission at trial of any expression related to sympathy or apology And I think this is an effort to say, there should be room for people to make these expressions without being in fear that it may affect later liability Following a civil war or a mass violence, the law of one country or international law can call for criminal prosecutions, but they may instead proceed without prosecutions and collect victim’s testimony, for example, for history or memorials, or grant amnesties And in some sense, South Africa’s Truth and Reconciliation Commission represents an innovation in creating amnesty that was conditioned on the collection of disclosures and statements by alleged perpetrators of the wrongdoing that they had engaged in The designers of the Truth and Reconciliation Commission hoped that this process would prevent cycles of revenge by giving public acknowledgment to past wrongs and by investigating violations of human dignity, both by the prior government, and by those who fought against it It was quite a gamble, and it remains controversial at this moment, political cartoonist in South Africa named [? Zappo ?] brilliantly captured the problems in a drawing that shows the TRC’s chair, Archbishop Desmond Tutu, standing on ground that says, “truth,” on one side of a chasm, and on the other side of the chasm is a ground labeled, “reconciliation.” So, this idea that truth can lead to reconciliation remains an idea, not a lived reality, even though there are also some very positive things to be drawn from the TRC experience So let me spend a moment on that, before returning to the broader questions about forgiveness and law I do think it’s noteworthy that the TRC drew criticism from opposing sides with challenging court by the African National Congress by the family of Steven [? Biko ?]– the commission’s proceedings and report also drew fire from former government officials, police, and political leaders, so it was attacked from both sides An d that’s some evidence that the TRC did something that at least appeared to be fair, and it filled its mandate in a fair and impartial manner The studies following the TRC report, ambivalence and disappointment, and negative and mixed reviews, with many people wondering if efforts at forgiveness simply cover up wounds that were supposed to be healed But it’s also worth noting that the TRC coincided with relatively peaceful transition to democracy in South Africa And how levels of people’s reported willingness

to engage with politics and respect the legal system, the country remains in serious difficulties, particularly around crime and rape And yet, I think to the amazement of almost every observer, the peaceful quality of transition in South Africa coincided, as I say, with the TRC, and maybe the TRC had something to do with it The story the TRC has been compelling enough to inspire similar efforts elsewhere Even though documented instances of actual forgiveness enabled by the Truth Commission in South Africa are very few, one study of 429 participants indicated that only 72 of them had ever even discussed forgiveness, and only 10% were willing to forgive, if the wrongdoers took responsibility for their deeds, and only seven individuals were willing to forgive without any conditions So it’s overblown to say that the TRC, itself, produced forgiveness And at the same time, this experiment has inspired very similar efforts in Rwanda, Sierra Leone, Cambodia, Liberia, Greensboro, North Carolina– many, many other places Priscilla Hayner wrote a book surveying truth commission She found at least 40 that followed in the wake of the South African experience And the idea now become a standard topic in the burgeoning field of transitional justice, as nations contemplate paths out of mass violence and civil war Maybe because there is a group of consultants that travel around the world telling people how to set up truth commissions, but it can’t just be that Such efforts seem to offer some kind of ritual that allows individuals and groups to move on after terrible violence The language and example of leadership offered by Nelson Mandela and Archbishop Tutu offered inspiring narratives and images to communities thirsty for hope And the statements of aspiration of the South African experience had the risk of allowing people to conflate goals with accomplishments That’s a real problem And nonetheless, it did seem to offer a kind of third way between either doing nothing after atrocity, or engaging in costly and controversial criminal prosecutions Transitional justice efforts commonly now proceed with a variety of efforts, making forgiveness one theme Take Sierra Leone, when it emerged from its bloody and lengthy civil war, the nation created a truth and reconciliation commission But at the same time, criminal prosecutions proceeded through its special tribunal And after the special court for the Sierra Leone pursued and convicted Charles Taylor, the chief mastermind of violence in Sierra Leone and former president of Liberia, on charges of war crimes and crimes against humanity, one survivor of the civil war commented, “One could argue that the conviction of Charles Taylor closes an important chapter in Sierra Leone’s history, some even may call it justice, but court decisions won’t build Sierra Leone, or any other country where former perpetrators and victims live alongside each other Rebuilding can start only with a purposeful daily decision to forgive, and forge a common future.” The person who made these comments was a survivor of the civil war and violence there His name was Samuel Koroma, and he recalled later his life as a teacher before the civil war He recalled a time when he visited a student who had avoided school, because other children made fun of his ragged pants and bare feet And Koroma, the teacher, bought the boy, who he called Vandy, some clothes and shoes, and the boy returned to school Then the civil war started and Koroma witnessed rebels from the Revolutionary United Front burned down his village, murder his sisters, murder his brother-in-law, murder his grandmother, and Koroma, himself, was captured and told he would be executed A youth, one of the thousands of child soldiers drawn into the conflict, volunteered to serve as the executioner and Koroma recalled, and I quote him, “the boy let me out of sight of the group to the execution spot under several banana trees My heart was pounding My mind was fixed on death Teacher, do you remember me? The boy asked I will not kill you You are a good man Do you remember that you bought me shoes and pants so I could go to school? I watched in amazement as a young man removed the cover from his head revealing familiarize eyes and a tear-soaked face Vandy drew a rough map with charcoal to the nearest village held by peacekeepers, and that’s how I crawled to safety, and eventually returned to my family.” After the war, Koroma helped Vandy as he returned to school, and they remained friends And this is the story that Koroma told in calling for daily forgiveness and rebuilding after violence Now, it’s a very special kind of story These are two people who had a relationship before the violence And maybe it’s not forgiving, maybe it was a kind of mutual favor giving But maybe there was something involved that we could call forgiveness, a letting go of resentment and grievance– rightful grievance

Even people without prior relationships can grant forgiveness Family members of murder victims have organized in the United States against the death penalty Mothers of the young man known as the Gugulethu Seven killed by apartheid-era South African police force forgave the government informant who tipped off the police And beyond individual acts, legal rules and procedures can create incentives for apologies, pardons, amnesties, reconciliation, in many diverse context, as I’ve already suggested, such as divorce, criminal law, intergroup violence What these forms of forgiveness do is they emphasize forward-looking thinking, and they invite people to draw upon personal ties and social norms, or to help make new ones So thus far, I’ve identified some potential benefits from forgiveness, which again, I defined as a conscious, deliberate decision to forego rightful grounds for having a grievance against those who committed a wrong or a harm And I’ve also suggested that forgiveness can operate, not only between individuals, but also groups, even though there’s something problematic by making that shift And I do see four questions emerging from this inquiry First, does looking to law to promote forgiveness and invite too much public pressure on private emotions? Second, there’s the analogy between interpersonal forgiveness and collective forgiveness work, or does the analogy instead obscure how societies differ from individuals? Third, does forgiveness amount to a second best solution– turn to one true justice is not possible, legally, politically, or psychologically? And fourth, does forgiveness impair law and its commitments to predictability and equal treatment? So briefly, I’ll consider each one So first, does using law to promote forgiveness wrongly impose burdens? I do think that forgiving a wrongdoer can offer relief from burdens of anger and resentment But I also think that forcing anyone to forgive, even if it’s really possible, is, itself, oppressive In one study, 30% of participants in South Africa’s TRC process reported feeling pressure to forgive And that, I think, is a source of resentment and continues to contribute to the mixed views about the TRC Any process that makes an individual doubt, or feel ashamed of his or her personal response to indignation, to violation, this imposes new damage and resentment And on the other hand, its only honest to acknowledge that legal institutions, one way or the other, do affect people’s emotions and human relationships Participating in a lawsuit affects the people involved It can be emotionally draining It can push the parties even farther apart It can magnify negative emotions that exist because of the underlying conflict And its adversarial processes in divorce and custody matters, I can say from having represented people in those contexts, increases bitterness and blame Litigation can enlarge the distance between disputing parties And for that very reason, commercial actors in long-term relationships of mutual benefit often agree, not only to forego litigation, but even to forego legal formalities in dealing with their disputes It’s wise to be cautious and humble about using law to shape, or to manipulate the feelings of individuals But it’s no less important to admit that law does affect its participants And if the legal framework inevitably affects emotions, pushing people to at least consider forgiveness, may be no worse than pushing people towards revenge, adversariness, or bitterness Second, does societal forgiveness compare correctly with interpersonal forgiveness? I worry about jumping too easily from the image of personal forgiveness to political or societal issues And we know the groups and nations behave very differently than individuals Crowds behave differently than individuals A nation may have a head, but it does not make it a human being So can a public leader or an institution guide a group of people, themselves, to let go of desires for revenge– let go of resentment? This is an empirical question It occupies scholars of truth and reconciliation commissions, not only in South Africa, but also in Argentina after the fall of the military junta and the restoration of democracy People are studying this in Chile, as well Very hard to get a grip on it But notice, this is a question not about the societal forgiveness, itself, but about the impact of leaders on the feelings of individuals Very interesting and worth exploring, but it’s still different from whether or not the group, itself, or the government, itself, can forgive Does that make any sense? Does a government official have standing, or authority to forgive? Consider a woman whose husband had been imprisoned and tortured, who said in the South African Commission for Truth and Reconciliation– she said, “a commission or a government cannot forgive Perhaps only I could do it, but I am not ready to forgive.”

That comment haunts me And the claims about forgiveness on behalf of individuals that are made by government officials, often grate terribly against those who are the direct and immediate victims And on this view, government officials can offer pardon or compensation to victims, but they cannot offer forgiveness to wrongdoers Yet, governments may be the only entities with any standing to consider forgiving crimes against humanity, precisely because such crimes transcend any individual, and there may not be individuals left to offer forgiveness And the violations of dignity of everyone affected in the world may leave no one with standing to forgive So in this conception, only some representatives of groups could ever act on behalf of those who were victimized It’s a puzzle, and I don’t believe that I’ve answered it, but I don’t think that it’s correct simply to conclude, without complications, that only individuals can forgive Third, does forgiveness amount to second best when justice is not possible? We may think of substituting some forms of forgiveness simply because it’s too difficult to do anything else Surviving victims may not know whom to forgive Legal action may be difficult, because there’s no evidence, or it’s stale, or because there’s a risk of reprisal, or because of the appeal simply of trading amnesty for peace And wrongdoers may still be powerful in societies undergoing transitions, wrongdoers often still hold power They may manipulate a truth and reconciliation process to extend their repression After mass murders in some societies, the judiciary and prosecutors may be the very same people as those who were empowered during the mass atrocity, or a new regime may be relatively powerless, or it may have to make a deal to dispense with prosecution in order to gain power So there are real concerns that people turn to forgiveness and truth and reconciliation commissions, not because they’re independently good, but because they seem the only thing available At the same time, I think that forgiveness may represent some goals that societies and individuals have that are not as well served by adversarial trials And the question that I’ve put here about whether forgiveness amounts to second best, is really an invitation for a discussion about what should be those goals And are there goals that might be better served by some mechanisms other than prosecution, for example? I don’t have a direct answer, but I do have a fourth question, and that is, does forgiveness impair law and its commitments to predictability and equal treatment? Because if it does that, then I think there really are jeopardies by any effort to use law to promote forgiveness And this question will frame the remainder of my remarks The injection of forgiveness does risk undermining predictability, and the appearance, or the reality, of treating like cases alike Specifying the factors and the conditions relevant to departure from otherwise applicable sanctions, I think, is necessary to advance the goal of treating like cases alike, which is so important to fairness and perceptions of fairness And that means we have to look at particular examples, and so I’m going to look at three The first one picks up a question that was left by the framers of the first permanent international criminal court, which was charged with prosecuting gross violations of human rights The second concerns responses in criminal law, and particularly international criminal law, to child soldiers with, I think, some repercussions also, though, for juvenile offenders, domestically And the third turns to debt, notably sovereign debt So the first one deals with this interesting curiosity about the design of the first permanent International Criminal Court It can exercise jurisdiction only when national jurisdictions fail to do so, including where they purport to act, but in reality, are unwilling or unable to carry out proceedings And in this way, the ICC compliments domestic justice systems, rather than replacing them This complementarity provision is ingenious, because it deals with the sheer fact of limited resources of this one permanent court by saying, actually, the court is meant to be a place of last resort only if domestic nations do not act The question is, what does it mean for a domestic nation to act in a way that deprives the ICC of jurisdiction? Does it have to act by prosecuting, or can a nation do something other? Can it, for example, have a truth commission? The authorizing law, the Rome Statute, the treaty that established the court– guess what– leaves the question open, and it was not for lack of discussion In fact, there was such extensive debate over this question about whether domestic truth commissions or non-adversarial justice should count to deprive the court of authority to prosecute You can read pages and pages, see every argument raised,

and then the framers said, we can’t decide, so they punted So the question is technical, but it points directly to the law’s role and relationship to forgiveness Should a truth commission, collecting evidence by perpetrators and victims, satisfy the international legal requirements and deprive the court of its authority to prosecute? If it has key elements, my suggestion is– such as actually providing opportunities for people to be heard, providing opportunities to name names If it actually has elements of fairness and elements of accountability, I think at least it should be a candidate for this possibility But there is a risk that a truth commission could be a sham Local authorities can bend to the demands of despots who seek to negotiate terms of their own amnesty They could put on a show, and call it a truth commission, and say, well, we’ve done what we need to do, and therefore, the International Criminal Court cannot do anything else And here I would say, we do have some checks– the judges at the International Criminal Court, the UN Security Council retains power to refer matters to the court Member nations that govern retain the power to refer matters– they can step in, and at least, there’s the possibility of checking domestic departures from international criminal justice norms There is, of course, the need to check the professional prosecutors at the ICC who may, understandably, focus primarily on criminal convictions, and not actually recognize other ways to advance purposes But here’s the fundamental point, the whole conception of complementarity depends on the idea that a global network of nations will commit each of themselves to end genocide, to prevent crimes against humanity This will not happen if the task of international criminal law and its enforcement is over there in the Hague It will only happen if its embraced fully by the member nations And that, it seems to me, is reason enough to at least allow some room for experimentation for what the domestic response can be The response that would deprive the ICC, itself, of jurisdiction In the long term, respect for national traditions and self-determination in matters of peace and justice can build commitment and engagement with efforts to address and prevent genocide and crimes against humanity I would venture to say even more than the two or three cases that happen every four or five years at the International Criminal Court My second example looks at child soldiers This is a question about forgiving people who participate in brutal killings, rapes, and other international crimes, when they are minors And prosecuting those who turn children into soldiers is, itself, a recent advance in international human rights and its enforcement In fact, the very first prosecution and conviction by the International Criminal Court of Thomas Lubanga, actually pursued him on the charges of enlisting recruiting and using child soldiers, creating a 14-year prison sentence and making new law on the possibility of punishing people for turning people into child soldiers But what that case did not address is what happens to the child soldiers themselves When children are abducted, coerced, or enticed into assuming the role of a soldier, or a sex slave, which in the international human rights’ context is subsumed under the phrase “child soldier.” These individuals are victimized by adults, who take away their childhoods and make them instruments of violence and lawlessness But some youth join rebel groups without being abducted or coerced Some are drawn by ideology or actions– opportunities for action or responsibility– some by the thrill of committing violence Some are coerced, initially, but later make choices to engage in killings and rapes Should their exercise of choice, some degree of choice, make them culpable, or should they be forgiven across the board? At the moment, international norms urge no prosecution for any individual under the age of 18 Many countries take a very different view Many countries actually treat adulthood as occurring at an earlier age And because international law, itself, does not criminalize even recruiting individuals who are soldiers between the ages of 15 and 18– so no one can be prosecuted even for coercing someone who is 16 and making them into a slave Neither the recruiter, nor the teen soldier is responsible for any criminal violations committed by individuals in this age range And if anyone here has ever been a teenager, or is a parent of a teenager, you may know that 16 and 17 years old will do what they want, anyway So this group of older children are allowed to fight No one is responsible for their being soldiers, and they are not responsible, even if they made the choice themselves And even if initially abducted, a 15-year-old

can commit a murder, a torture, or rape A 15-year-old can recruit and kidnap younger children to serve as soldiers And under the law, 15 to 17 year olds are treated as victims, no matter what they did Children can make choices One adolescent explained that he planned to return to Liberia, so he could claim the benefits available to demobilize child soldiers, and then return to fighting Another explained how avoiding killing by deliberately aiming incorrectly, or otherwise permitting potential victims to escape, was something available to them The same young person may present himself as a tough combatant, while friends and former soldiers are in conversation, and then treat that individual– say to others, I’m a traumatized and innocent while talking with non-governmental organization workers We all know that, and see that often as a survival tactic But it shows that there are latitudes of choice, and it does raise the question about across-the-board exemption of individuals from any kind of responsibility A young woman may find it easiest to deal with an investigating commando by forming a sexual relationship with him And that may be completely justifiable But to treat that individual’s having made no choices is, in many ways, to demean her, and to say that she has no mind of her own Perhaps ironically, viewing child soldiers as innocent victims, which is the rhetoric of most human rights organizations, makes forgiveness beyond reach simply by definition, because forgiveness is available only to those who commit a wrong By treating child soldiers as victims, and incapable of wrongdoing no matter what they do, they’re not eligible for forgiveness, because they haven’t done anything wrong Many former child soldiers, when you interview them– and I’ve read many testimonies, and talked with many people who work with them– say that they are wrought with guilt about what they did, and have no framework to talk about it, because they’re not held responsible They’re not viewed as people who can be responsible Emmanuel Jal who is a former child soldier and became a music rapper– he expresses this struggle in his lyrics For example, “he says I’m in another war This time it’s my soul that I’m fighting for.” Nations in the international community could actually involve those who participated as minors under the age of 18 with armed groups in public prophecies to acknowledge for themselves in larger society what happened and why These young people can contribute to social efforts to acknowledge violence and lawlessness, and maybe help to forge new and productive chapters in their own lives, and in the futures of their own societies What’s fascinating is that– at least in many of the areas in Africa where this issue is coming up, where thousands and thousands of young people are dealing with the experience of having been a child soldier– under their domestic laws, they would be treated as adults And they’re not being tried, and therefore, their communities shun them and say they’re not held responsible for what they did They’re held in a kind of limbo, and it’s that problem that I’m trying to look at, not with clear ideas I’m not suggesting they should be prosecuted by international criminal tribunals, but I think it’s wrong to exempt them across the board from any kind of accountability And finding ways to acknowledge both the wrongs done to, and the wrongs done by, young individuals could actually help the law be forgiving, without leaving former child soldiers beyond the role of the law itself My third example is debt I know you’ve been waiting for this one Debt and forgiveness are commonly coupled in language that some people say is a quaint holdover from an older era That’s not really the same forgiveness, some people have said to me, and yet the concept of debt infuses Western and Christian morality In this light, the moral dimension involved in resolving financial debts is anything but a quaint holdover from the past Legal mechanisms of bankruptcy offered a practical solution, but also a metaphor allowing individuals and companies to declare insolvency and discharge debt, obtain immunity from suit, have a fresh start Often with consequences– required financial counseling, selling off assets to repay creditors, restructuring payment schedules, and probably receiving a poor risk rating for future credit Individuals who go through bankruptcy undergo shame and personal difficulties Businesses often declare bankruptcy, though, as a business strategy, sometimes to break union contracts, sometimes to give priority to certain relationships, sometimes to walk away from investments that no longer make sense And so, sometimes, this language of forgiveness may seem out of bounds, particularly when we talk about businesses But some debts lie outside of bankruptcy, at least

in the United States Student loans, some of you may know, cannot be forgiven by declaring bankruptcy, except in instances of total disability, death, and some instances public service That’s a choice Once upon a time, student loans were forgivable under bankruptcy Congress could change it tomorrow, though I don’t think they will And following the subprime mortgage explosion and the massive defaults in the global financial disaster, many private creditors forgave private home mortgages, and there could be private forgiveness even without formal bankruptcy proceedings What’s interesting to me is, to think about those areas where bankruptcy is excluded, even extends to sovereign nations, also states I’m not going to comment on Illinois’ situation Detroit, though, was able to declare bankruptcy Illinois cannot declare bankruptcy, nor can many developing nations, even though they are in terrible, terrible shape financially because of debts– because of the terms of creditor nations Now drawing from biblical notions of the jubilee year that clears the slate of all debts, there’s something called the Jubilee Network that has mobilized faith communities and other organizations and claims credit for developing global financial reforms, and more than $130 billion in debt relief for the world’s poorest countries There’s a committee for the abolition of third world debt that collected 24 million signatures in just two years from people in 166 countries, petitioning the cancellation of debts for developing nations And people like Bono and Pope John Paul II, and many others, engaged in this effort to try to pursue multilateral debt relief and forgiveness It’s been fascinating for me to watch law professors and economists press for the recognition of a new legal doctrine, odious debt It’s a colorful phrase The idea is that certain types of debt do not deserve to be repaid, because they were undertaken for purposes at odds with the interests of the people expected to repay them And despite the usual rule that agreements must be kept even when governments incurring a debt has been overturned and replaced, advocates urge the cancellation of odious debt when a sovereign debt failed to receive general consent of the people in the nation Requiring such repayment punishes the people for the bad behavior of their leaders without doing anything to halt or deter lending to horrible regimes and embracing the odious debt doctrine, its advocates argue could redirect international capital to more productive and transparent uses Opponents, of course, have good arguments too They say that recognizing a doctrine that would exempt repayment would have terrible definitional problems It would reward those in the worst run countries with the worst managed debt It would, say the skeptics, excuse repayment of odious debt, raising the price of funds offered on credit, and shrinking the supply Something that I think you guys all learn here It’s in the ether here, right, about supply and demand? And so, in fact, in my own community, many of my students from developing countries, who are most opposed to the development of the odious debt doctrine, and say it will shrink the credit that’s available to their countries So there are some alternatives Non-governmental organizations could develop voluntary standards to spur aggressive monitoring to raise international creditors to score sovereign borrowers with the aim of reducing loans for improper purposes Public and private actors could offer technical assistance to debtor nations, so that they can stretch out the payments, or take advantage of shifts in interest rates and the value of relevant currencies, just as lender nations do It’s fascinating to see Britain has decided two days ago to repay some debt they’ve had since 1720 to take advantage of a favorable currency exchange rate Very interesting Maybe some people from Britain could actually consult with some of the countries to whom they have loaned money that are dealing with repayments right now There are lessons I’m trying to learn and others too, from Argentina’s recent experiences, certainly suggest the need for some kind of global system to prevent a holdout creditors from derailing negotiated restructuring of national debt When you have everybody agreeing to the restructuring, except a couple of people who bought the debt for pennies on the dollar, you got to wonder what exactly is going on here Taking a page from commercial debt collection companies that purchase bad debts and collect pennies on the dollar by garnishing wages and harassing debtors, the supporters of Occupy Wall Street started a group called Rolling Jubilee to purchase consumer debt and then do something rather radical– forgive it Having raised more than half a million dollars by last summer, this group, actually, has been able to buy and forgive with half a million dollars, $10 million worth of people’s medical bill debt,

student loans, and consumer debt, while expressing compassion for distressed debt as a human problem Non-governmental actors can assist and do this kind of work What governments can do, can also help Domestic and international governmental bodies can facilitate such efforts with favorable tax treatment and other incentives, or even engaging in this activity of buying up distressed debt So my closing thoughts, forgiveness by individuals, groups, and even governments can afford a valuable resource in responding to wrongs Promoting forgiveness, however, can jeopardize the predictability, reliability, and equal treatment sought by the rule of law Efforts to amplify laws support for forgiveness could nonetheless preserve the rule of law and advance justice, by attending to specific features of particular problems And so, in this light, I’ve have suggested that the International Criminal Court should recognize, as complimentary, some domestic responses to genocide and crimes against humanity that do not involve criminal prosecutions where there is accountability, and fairness, and key elements of the rule of law are present I’ve also suggested that those elements might include naming wrongdoers, offering opportunities for both victims and alleged perpetrators to be heard, conditioning amnesty on provision of testimony, or reparations Individuals who became child soldiers or sexual slaves, I’ve suggested, should not be subjected to applicable international criminal sanctions, but neither should they be exempted categorically from accountability To forgive them requires acknowledgment of wrongdoing Domestic and international institutions could construct distinctive means, both to acknowledge the wrongdoing, and to assist those individuals and their societies in constructive next steps Former child soldiers could, themselves, be involved in devising juvenile justice style hearings, or truth commissions, or other formats, or engage in community service, and also receive educational and therapeutic supports And I’ve suggested that massive sovereign debt should be eligible for forgiveness and restructuring through legal frameworks that function like domestic bankruptcy procedures That tax incentives, provided by domestic governments, could promote non-governmental buybacks to help relieve crushing student and consumer debt I’m not wedded to the details of any of these proposals They’re here, simply, to indicate that it’s possible to devise legal rules and practices that support forgiveness without giving up fairness And that we broaden the tools available in law if we broaden laws’ purposes to include the possibility of forgiveness Now we should guard against turning to forgiveness, solely, when more robust justice is not available We should be careful not to deploy the power of the law to distort private emotions We should not [? allide ?] the differences between individuals and groups But we could consider how and when law can usefully make space for forgiveness And even when law adjudicates the past, we hope it will help make a better future Law will, in one way or another, affect emotions It could support forgiveness as much as it supports revenge There’s a man named Paul [? Bose ?], who I think was famous for absolutely nothing except crafting sentences that he hoped would be quoted after he died He wrote before Twitter, but I think he would have loved Twitter Here’s one of his quotations that I liked so much that I will use it as I end He said, “forgiveness does not change the past, but it does enlarge the future.” I look forward to your comments and discussion Thank you [APPLAUSE] PRESENTER: I’d like to invite Martha Nussbaum to give the first commentary MARTHA NUSSBAUM: Well, first, I’d like to thank Martha Minow for this very rich and provocative paper on such an important topic I’m going to focus, as a philosopher that I am, on the philosophical definition of forgiveness, and suggest some normative worries about different varieties of it And I’ll talk about three different attitudes, only two of which are actually forgiveness And then I’ll end with some brief remarks about Nelson Mandela Now by now, there’s a large philosophical literature in which forgiveness is treated together with resentment and other emotions that are typically called reactive attitudes The standard definition– and it is quite standard, although, I like Charles Griswold’s quote very much I really don’t think it’s particularly original in this respect Here’s Charles Griswold’s definition He argues, first, that forgiveness is a two-person process involving of moderation,

of anger, and a sensation of projects of retribution or revenge, in response to the fulfillment of six conditions, and so here are the six A candidate for forgiveness must, number one, acknowledge that she was the responsible agent; number two, repudiate her deeds by acknowledging their wrongness, and herself as their author; number three, express regret to the injured that having caused this particular injury; number four, commit to becoming the sort of certain person who does not inflict injury, and show this commitment through deeds as well as words; number five, show that she understands, from the injured person’s perspective, the damage done by the injury; and number six, offer a narrative accounting for how she came to do wrong, how that wrongdoing does not express the totality of her person, and how she is becoming worthy of approbation So this is a lot, but let’s begin at the beginning So forgiveness is a process in which a wronged person moderates, or perhaps totally gives up, anger, and certainly, totally gives up projects of revenge or retribution So there has to be a wrongful act There has to be, at least initially, anger at that act, and some type of retributive project, or at least wish Now does Minow agree with this? I think she does agree with that part She clearly thinks there has to be a wrongful act, and she often refers all through the paper to resentment and to the decision to abandon projects of retribution And, I think, also she often refers to moderating angry emotions as well But there’s a puzzle, for in her initial definition of forgiveness on page 3 of the paper, she says it’s a “conscious, deliberate decision to forego rightful grounds for grievance against those who have committed a wrong or harm.” Now this reference to grounds of grievance puzzles me I don’t think Minow means to say that the forgiver has to say that the wrongful act was not wrongful, or somehow forget it or pretend that it didn’t occur If she does mean that, then I think she’s incorrect However, I think that by forego rightful grounds of grievance, putting the X on grievance, she means giving up retributive projects, and perhaps retributive emotions, not giving up the fact that the wrongful act was wrong And in this respect, I think she really is not at all far away from Charles Griswold But what about those six conditions? Minow says that forgiveness does not require an apology, and can be unilateral And, I think, ultimately this is correct, but let’s not go there too quickly Because Griswold’s six conditions replicate perfectly, and I’m sure that’s where he got them really, the standard Jewish count of the necessary conditions of forgiveness as presented in [INAUDIBLE] in Yona of [? Doron ?] and then repeated in the marvelous, vast tone of [? Joseph ?] [? Dove ?] [? Soloventric ?] late in the 20th century The main scenario envisaged is that between the sinner and God, and God demands quite a lot before forgiveness will be granted But then this same dyadic structure, more or less, is then replicated in human relations In the Christian tradition, a lot of different things can go on, but this conditional or transactional picture of forgiveness is one very prominent form We see it in Gospels, along with much else as we’ll see in a minute, but it is one thing that Jesus does say For example, the woman taking in adultery is forgiven on the condition that she go and sin no more And in Luke 17, Jesus says, “if your brother wrongs you, rebuke him, and if he repents, forgive him And if he wrongs you seven times in a day, and seven times turns to you saying I repent, you shall forgive him So that is very much following the Jewish tradition there And then the organized church, not surprisingly, develops this into an elaborate structure that gives ca in the church enormous power We see this in [INAUDIBLE] day on [? Tenzia ?] We see it in the Catholic tradition of the confession We see it in the picture of the last days that we get in medieval poem [? Dia ?] [? Cera ?], and it was so central to the mass Forgiveness, in this part of the Christian tradition, requires confession, contrition, vows not to sin again, and in short, considerable humbling of the penitent before the wronged person

We see this same idea, very interestingly, in the postscript that the, of course, Anglican Bishop Desmond Tutu wrote to his book No Future without Forgiveness Not in the book itself, but in the postscript, he says, there has to be confession, there has to be contrition, and so on and so on Now I think this idea is also ubiquitous in personal relations quite apart from religion Unless the other party comes to me and apologizes, and maybe grovels and confesses, there should be no forgiveness I mean, think about the public ritual of politicians and their wronged wives We always say– the politician says, I’m a changed man, I’m a broken man, and so on And then it’s only then that the woman is supposed to forgive him And then, of course, Hillary Clinton was taken to the cleaners for forgiving him without that kind of performance of humility And now I think that Minow needs to the knowledge how prominent and uncommon this conditional and transactional account of forgiveness is I don’t have much time here, but in brief, this is something I’m working on now I think this transactional type of forgiveness is very slippery and morally dubious, because of the way in which it extracts a performance of abasement from another person as the price of restored attitudes and relations It is, I think, not the sensation of anger, but often, at least, a [? covert ?] from of anger In the Gospels, however, we also find two other things First, we find some instances of unconditional forgiveness, so Jesus says the sins are just forgiven and doesn’t mention any condition And this seems much better to me, although, it might have been better yet not to have been dominating by resentment in the first place We always have to watch out for sometimes the person who says, I forgive you, apparently without condition, is secretly thinking, well, you ought to be groveling whether you are or not So I think unconditional forgiveness is morally better than conditional forgiveness, but not totally without some problem I happen to think that anger is always morally dubious, so that’s another reason why I think that even unconditional forgiveness is, to use the words of my great teacher Bernard Williams, one thought too many But in the Gospels and also in some dissident Jewish texts, we also find a third thing, which is, in my view, best of all, and that is unconditional love and generosity Love your enemies Do good to them that hate you And there are many such texts in the Bible For me, the key example is the parable of the prodigal son The father, when the son comes back, does not extract an apology He doesn’t have any idea, in fact, whether the son is even likely to apologize Nor, indeed, does the reader, because the son, we know– the son’s starving and that’s why he’s come back It’s not because of any change of heart But the father simply loves him, and he sees him coming a long way off, and he’s just so glad to discover that he’s alive And when he sees him coming, and I’ll quote from the text, “he was seized by a surge of powerful emotion”– literally, in Greek, his guts were ripped out– and he ran and fell on his neck and kissed him Now at this point, in other words after he’s been hugged, the son does begin an apology But the father, basically, doesn’t pay any attention to it He turns away and says, let’s have a big celebration Now I think it would take too long to offer a detailed reading of the parable and to say why I think this attitude is better than unconditional forgiveness even, but I do think that one can see its attractiveness The father was never dominated by anger and retributive wishes in the first place, so he can move straight into generosity and love Now, just very briefly, I want to suggest that it’s this generous attitude that Nelson Mandela persistently embodied, in a very deliberate way formed himself to be, that sort of person He talks about daily meditations during his 27 years of imprisonment on Robben Island Now I’ve read virtually everything that Mandela published, and there isn’t a single reference to forgiveness, and certainly not to contrition or confession But even the unconditional sort of forgiveness, as I have said, it still presupposes that there was anger and resentment, and Mandela tells us that he basically

decided that anger was an inappropriate attitude and he tried to get rid of it and cultivate different attitudes His account of his treatment of his former adversaries always emphasizes seeing and celebrating the good in people and just moving ahead to a future of cooperation, rather than dwelling on grievance And I think this is in Minow’s paper, and very much in the ending of her paper, but it is, I would say, it’s not really forgiveness Now I’ve talked a lot to Justice Albie Sachs about this, the great South African constitutional judge who knew Mandela very well And he agrees with me and that the idea of forgiveness, while important for Desmond Tutu, seemed to Albie Sachs and to other ANC people around Mandela, a religious idea that was basically alien to their movement For Sachs, the main thing was the pursuit of institutional justice But for Mandela, it also involved a new set of human attitudes, which are basically those of the father of the prodigal son Mandela repeated says, you get people to work with you by seeing the good in them and treating them as capable of good deeds So I’m just end with one wonderful example of this generous, not angry, attitude Mandela is describing an exchange with a white Afrikaner warder who was appointed to be his personal cook when he was in the third of the three prisons, Victor Verster, which is just prior to his release So the first one was the horrible Robben Island The second one, Pollsmoor, is a little bit better But Victor Verster– because they knew he was going to leader of the nation, they put him in a very nice prison, which is almost like a kind of country club And the situation was that Mandela was already being treated very well, albeit still a prisoner, and so a white jailer had to be his personal cook and servant So we can imagine all sorts of possibilities of resentment on both sides Now the question arises, who is going to do the dishes, and here’s what Mandela says “I took upon myself to break the tension, and a possible resentment on his part, that he has serve a prisoner by cooking and then washing the dishes And I offered to wash dishes, and he refused He says, this is his work I said, no, we must share it Although he insisted, and he was genuine, but I forced him Literally, forced him to allow me to do the dishes, and we established a very good relationship A really nice chap, [INAUDIBLE], a very good friend of mine.” Now I think this is clearly not transactional forgiveness, but I would argue that it’s also not unconditional [INAUDIBLE], because there is no anger to let go of Mandela had dealt with all of that in himself years ago, and he had replaced anger by an ethic of unconditional love And his attitude was not only good for him, it was very good for South Africa If he had said to Warder [INAUDIBLE], I forgive you, Warder [INAUDIBLE] would have been reminded of his culpability and the relationship would be off to a rocky start Even unconditional forgiveness involves a kind of [INAUDIBLE] of the wrongdoer It says, I am virtuously renouncing my resentment even though you have given me good grounds for resentment So it’s a kind of self aggrandizing attitude– Mandela’s isn’t It’s just respectful, humane, and loving We can’t all obtain the moral dignity of Mandela, or we might add, Gandhi and King We’ll also exemplify this, I think We can’t all love those who wrong us, but we should certainly try, and that means looking at the whole idea of forgiveness with a certain skepticism even if, in many cases, it’s the best that limited human beings can do [APPLAUSE] PRESENTER: [INAUDIBLE] AZIZ HUQ: Thank you very much We can start by expressing my gratitude to Dean Minow, to Dean Schill, and to the Jorde lecturers, organizers, for arranging this event In her wide ranging and learned lecture, Dean Martha Minow raises questions about the relationship between forgiveness and law of the legal institutions And to explore that relationship, she invokes a vivid range of far-reaching examples– examples that are global in scope But Dean Minow’s topic is capacious, not only in its geographic scope, but also in its [INAUDIBLE] reach My comments focus on only one aspect of her presentation I want, more specifically, to hone in upon what Dean Minow has to say about what her colleague, Carol [? Stiper ?], calls legal institutions at mercy–

those institutions with the discretion to mitigate criminal or civil liability And the simple claim that I want to advance is that our own rich experience under the US constitution suggests that it is extraordinarily difficult to institutionalize official forbearance, especially on democratic soil and especially under circumstances where our political economy generates the need for forgiveness So to situate my comments, I want to start by mapping out some distinctions in Dean Minow’s diverse examples I think there are at least three distinct concepts at work in those examples First, as Professor Nussbaum exculpated, there is a psychological concept of forgiveness that involves or arises in bilateral relationships between individuals Second, there is the distinctly institutional concept of mercy, something that Jeffrey Murphy has defined as the official exercise of discretion to mitigate a legal consequence that is otherwise a personal’s lawful fate And then finally, there are some of Dean Minow’s examples that are too [? rule-like ?], to [? wanting ?] indiscretion, too inattentive to particulars to rank as mercy It rather should be solid since its excuse, justification, or mitigation And just as there are diverse ideas of forgiveness, mercy, and excuse, [? allied ?] in Dean Minow’s examples, so too there are a diverse array of roles that the state can play It can be a forum for mending personal relationships It can be an instrument for reorganizing relationships between whole social groups, or it, itself, could be an instrument for setting aside civil or criminal penalties Now I am skeptical about my own ability to say anything meaningful about so diverse an array of psychological and institutional arrangements, and so I want to focus upon those examples in Dean Minow’s lecture that are best captured by the rubric of what I’ll call, at mercy And I think this includes some of the child solider examples, the essential criminal prosecution examples, and perhaps, the debt forgiveness example In my view, we gain more traction in understanding the institutional circumstances of mercy by looking at a domestic, rather than an international, context As Dean Minow mentioned, it may well be that we want for sufficient examples, sufficient empirical information, to make credible predictions about the trajectories of the sort of intuitions that she describes in the international sphere Even the case studies that Dean Minow examined, I fear, yield few unambiguous lessons– take, here, the Truth and Reconciliation Commission in South Africa My own empirical on police legitimacy in South Africa raises the question about the opportunity costs of the TRC commission That work suggests that the post-apartheid state has systematically failed to supply basic public goods of security from crime, and that this failure has comprehensively vitiated both trust and social cohesion It may, therefore, be that South Africa’s limited post-apartheid pool of legal capital and expertise would better had been devoted to building a fair, non-corrupt policeman corps for the millions of South Africans, rather than to enabling 429 people to confront their past I, instead of looking [INAUDIBLE] domain, would rather look at our own parochial experience under the US Constitution for guidance here And our domestic experience is relatively rich, for there are at least three institutional cites of mercy in the US Constitution First, our federal courts’ power to exercise discretionary, equitable authority Second, the equitable discretion of the prosecutor to forego criminal charges recognizes constitutional and [INAUDIBLE] and other cases And finally, is the authority of both the executive to pardon and the juries who nullify that create related sites for mercy within the criminal adjudicative process Consideration of these three institutions I submit yields no sanguine lesson Each has been narrowly construed, each falls short of the redemptive aspirations [INAUDIBLE] by Dean Minow And the reason for this failure roots back to the democratic pedigree of legal authority in the United States and the tendency of political economies that conduce to a need for mercy to simultaneously stifle the instruments of mercy So as an example I want to use equitable judicial powers– I think looks, at first blush, the most likely source or cite of merciful discretion There are two sources in the Constitution’s text

for [? rooting ?] the cite in [INAUDIBLE] three reference equitable judicial authority, [INAUDIBLE] one suspension clause, which is a reference to a equitable remedy For all purposes, it’s instructive to look at habeas, which is protected by the suspension clause, and to other occasions that the courts have correcting unlawful state action Now for the advocate of mercy here, the record here is bleak Habeas, at it’s core, is a remedy for unlawful executive detention, and in this regard, it has comprehensively failed Take the court’s intervention in Guantanamo under the name of [INAUDIBLE] This case came too late It came after the majority of the detainees had been released, including those most likely warranting freedom Moreover, rather than increasing the rate of releases from Guantanamo, the [INAUDIBLE] decision led immediately to a decline in the rate of releases from the base In the less noticed immigration contact, habeas would serve as an extensive modality of promoting legality at the border Today, it has been almost abolished by statute And finally, the availability of habeas relief in the post-conviction context under Section 28 USC, Section 2254, is at best a mirage– a mirage because of the legislative changes, most importantly enacted by Congress in 1996, Rather, to the extent the federal courts today exercise a merciful form of equitable discretion, it is not to enable social cohesion, or to redeem historical justice It is, rather, to exculpate the errors of the state It is in the widening dire of absolute and qualified immunity It is in the deepening shadow of the good faith exception to the exclusionary rule and the Fourth Amendment context, and it is cases like the recent Heien versus North Carolina, where the court denied a remedy for a Fourth Amendment violation, because an officer simply didn’t know what the law was Equitable forgiveness, that is, is not dead in the public law context It exculpates the ignorant officer, enables the negligent violation of the Constitution, and licenses routine unlawful infliction of state coersion Now to be clear, my claim is not that American legal institutions are incapable of mercy In Illinois, for example, in 2003, Governor George Ryan famously commuted all capital sentences But the Ryan commutation provides us with a clue as to why institutional mercy is so rare Ryan was at the end of his term He feared no democratic reprisal The calcification of equitable public remedies, I think, flows from the Constitution’s success as a democratic regime The same could be said of the demise of pardons, the end of jury nullification, and the extinguishing of merciful prosecutorial discretion It is through the direct election of prosecutors, through the electoral reward of those politicians who promise ever more punitive policies, and through the selection of Supreme Court justices who promise to be tough on crime, that electorally pivotal factions of the American public and transform our constitutional [? faults ?] of mercy into instruments of vindictiveness The ensuing punitive political economy, moreover, has only strengthened those interest groups that opposed mercy and has only sat the electoral power of those geographic communities that won’t oppose it The positive feedback loop of the contemporary [INAUDIBLE] state’s political economy, that is, means that correcting its mercy warranting excuses becomes increasingly difficult over time Now advocates of institutionalizing legal mercy might draw two lessons from this First, more ambitiously, she might observe [? law ?] theorists from [INAUDIBLE] to Jeffrey Murphy that the essence of mercy lies in a discretion, that as [INAUDIBLE] cautioned, is not constrained But the essence of democratic government is the representation of the people To represent in a democratic register, whether as a delegate or a trustee, is not to act upon unbounded caprice It is to be constrained by some constant view of what the people want or need Mercy and democracy, that is, stand at least somewhat in tension with each other Secondly, and more modestly, America’s part suggests that whether democracy is most in need of instruments of legal mercy, it is least likely to preserve them from the force of majority rule And so to repose one’s hopes that mercy or forgiveness

in democratic legal institutions, at least in the absence of the qualities of public character that profess a Nussbaum [? denominator– ?] qualities that one might doubt own finds in the American public This may be an exotic enterprise Those who seek to capture mercy, those who seek to promote forgiveness, may do well to look elsewhere than democracy Thank you [APPLAUSE] PRESENTER: I’d like to invite Martha to come back up and take questions for about 15-20 minutes, and then we’ll have a reception outside Martha? MARTHA MINOW: Well those are just splendid, splendid comments, and lots for me to absorb And I say to Martha, I’ve already learned so much from your writings on this subject You’re close is pretty much where I end up I just don’t think that many of us are Mandela or King And so short of that, what can the rest of us do? But it’s lots to think about And the issue of the arrogance, even of the unconditional forgiveness, is something very sobering, indeed And, Aziz, very sobering comments, and I share your great concerns about the decline of habeas in many contexts and the punitiveness of the American political economy My late colleague, Bill Stuntz, I think did a marvelous analysis of how the dynamics of the political economy in United States have led to the carceral state And thinking about, though, the interesting shifts in politics right now of conservative Republicans and quite different people with more liberal leanings coming together to challenge the carceral state is really, for me, an opening for some of these ideas about forgiveness, as is the president’s approach towards immigration So I think that having a mixed view is understanding where it’s possible to have these more forgiving attitudes, rather than assuming that it inevitably impossible, would be one response that I’d have to your very thoughtful comments But most of all, I’d like to hear questions, comments from the rest of you Yes– hi AUDIENCE: Hi So it was, for me, an analytic fussiness at the heart of the paper that I’m hoping you can clear up for me And it goes to the question of what one is forgoing when one forgives And it seems to me there’s a difference between forgoing compensation and forgoing revenge that makes the debt example somewhat different– in particular, the [? debting ?] case of bankruptcy, because I’m sensing which one is forgoing compensation but imposing revenge, in the sense that one is ruining credit ratings, is the difference between damages and punitive damages, for example And I’m particularly moved by this because very often when I am wronged, in say a consumer situation, and I talk to a supervisor, and the supervisor says, well, we’ll discipline the person who wronged you I say, it doesn’t help me I want compensation I don’t want revenge Another lack of clarity is where’s the boundaries between the individual and the group– that I wanted to bring both of these together with an example that I may be getting slightly wrong, which is what I understand in some Islamic traditions, the ability of a family of a victim to forgive sometimes when they are offered sufficient compensation, so that a death penalty, for example, is not exacted, but it’s precisely in the presentation of compensation that they forego revenge And I noticed that– I was kind of surprised that on the list Martha was reading of the standard definitions of forgiveness, there was nothing about offering compensation to the extent of one’s ability, and that made me think I may be– [INAUDIBLE] clarity [INAUDIBLE] forgiveness, but I hope you can clear it up MARTHA MINOW: Well, I’ll try Although, I’m not sure it’ll be entirely satisfactory, because these are tough questions I think that in the transactional approach to forgiveness, which is, of course, a dominant approach, particularly in Jewish traditions and in some Christian traditions and some Islamic traditions The transactional approach calls for actions that demonstrate the change of heart of the wrongdoer And those actions often take the form of something you might call compensation, or reparations, or restitution So that’s a framework in which, in a transactional view of forgiveness, there is the connection that you’re asking for I was focusing largely in my talk on non-transactional, unilateral forgiveness And I did so very deliberately, because I actually think that giving the transactional approach the pride of place so limits our ability

to talk about the role of law Because you can’t force, necessarily, people do the things that are requested, even if it’s looking for compensation I guess I don’t agree with you about bankruptcy or debt forgiveness I think that the devastation to many people’s credit ratings that occurs with bankruptcy is not different than what they have without the bankruptcy, so I don’t think that it’s caused by the bankruptcy It’s caused by the failures to pay And so, I guess, you and I just have a difference out about that view And I, having done a little bit, not enough but a little bit of comparative law study about American bankruptcy compared to other countries, it is extraordinary how forgiving it is in this country That it really does allow people to have new chances to start all over, and it’s that I was trying to focus on I think that it’s fair to say that the lack of any kind of act by a wrongdoer to demonstrate a change of heart, an act that includes payment of money but may include changing their behavior, may include their own perspective work, is a reason to really doubt that there’s a change of heart If forgiveness is contingent on those changes of heart, it’s really going to be a limited tool And I’m interested in exploring the possibilities, even where we don’t have it Where we do have those willingness on the part of wrongdoers to pay money, to engage in actions, to go to the communities that have been wronged and apologize and engage in education, all that’s wonderful I’m concerned about the cases where we don’t have that Yes– who are you? AUDIENCE: I’m Jose [? Spinosa ?] MARTHA MINOW: Thank you AUDIENCE: [INAUDIBLE] I’m interested in the– you said that the law produces some incentives for forgiveness, and at the same time, there was an idea floating in the air about a distinction between– thank you– trials and truth commissions So my question specifically has to do with the [INAUDIBLE] case, in which we are discussing precisely what kind of [INAUDIBLE] to deal with these huge, massive human rights’ violations So what do you think– which are the characteristics of the trials or truth commissions related with forgiveness? Which one produces or incentivates more forgiveness, or, and specifically, which are those characteristics? Also, among truth commissions, not all truth commissions are used to the same levels of success, so what kinds of design– of institutional design– would you consider that are most favorable for producing this kind of forgiveness? MARTHA MINOW: Great, great question You know, here, Professor Huq’s distinctions about the different kinds of roles that institutions can play are very worthwhile to consider So the difference between the possibility of law creating a forum for meetings, on the one hand, or creating an institutional structure through which the groups can themselves engage in a different kind of relationship And I think the third one that you had, Professor Huq, was to the institution itself setting aside penalties that would otherwise apply These are worth identifying, because a truth commission, or even a criminal process, could engage in any of these So Professor Moshe Halbertal has written very thoughtfully about the first in his arguments that forgiveness requires proximity You can’t actually engage in the face to face acts of interpersonal forgiveness if you’re not close enough to each other And so one thing that some truth commissions have done is created a setting where offenders and victims actually can meet with each other Not in the formal setting of the truth commission, it’s in the outskirts It’s in the outsides And some trials have done the same thing It’s not the trials themselves, it’s the courthouse, and it’s the courthouse creating rooms where there are private meetings And so, on the first, that is creating a forum for meetings, I think that that’s something that actually could be mindfully built into either trials or to truth commissions It’s a decision whether or not to create those kinds of settings, and with what kinds of third parties to create safety or encouragement In terms of institutional recognition of reorganization relationships between groups, it seems to me that trials are terrible at that Trials actually produce, most typically, more aggressive and adversarial approaches And truth commissions may actually enable some kind of institutional reorganization relationships and groups, often if there’s reparations actually, but I haven’t seen any that have done it very well

It certainly didn’t happen in South Africa But the third, the institution itself setting aside penalties, that again could be done in trials or in a truth commission You ask, though, ultimately for an empirical question, which is which kinds of institutions, with what features, have done what well? And what I’d say, here, is that the evidence is terrible We just don’t know We don’t have baselines How do you have measurements? It’s just incredibly difficult, so I am afraid that this field is in its infancy The field of transitional justice an empirical field is in its infancy And it may not actually get much better, because we can’t do controlled experiments The research is very, very problematic What you can do is you can have post hoc surveys And it’s very hard to know with people whether or not things would have been different if they had done things differently, because you can’t run the trial So then, I think, we’re stuck with actually studies of legitimacy, perceived legitimacy, and that is post hoc, and it’s not comparative I identified features of truth commissions that I think simply represent elements of fairness, not because of empirical research other than what people in the West view as fair People in the West view as fair procedures where both sides have a chance to be heard, people in the West view as fair indications of actually naming names only after there’s been evidence, and those are features that I would identify of effective truth commissions Yeah? AUDIENCE: Thank you so much, Dean Minow My name is Elliot [? Geyser ?] I’m a second-year law student here In an attempt to sort of synthesize your hope for the project of conservatives and liberals in the United States, attempting some kind of mercy and/or forgiveness-based reforms with what Professor Huq [INAUDIBLE] Professor Nussbaum is sort of saying, maybe the problem isn’t so much democracy being incompatible with mercy and forgiveness, or rather having an administrative state that kind of [? vehicles ?] that we have to create a series of trip wires that form those grounds for retribution that makes it incapable for allowing our leaders to have the Nelson Mandela kind of attitude, because they’re responsible for a lot of latent retribution or anger Perhaps, the solution might be something to do with reducing the number of ways in which someone can get aggrieved, or at least the state could be aggrieved I’m kind of curious [INAUDIBLE] MARTHA MINOW: Do you have an example in mind? AUDIENCE: Well, that the example, in general, to me that is just eliminating the number of regulatory offenses I can [INAUDIBLE] kind of context, which is [INAUDIBLE] requires for people to kind of fall over any kind of period MARTHA MINOW: It’s a really great question And I do worry, myself, that we have an instance of a lot of hatred and anger and resentment, because we’ve actually created a public culture that encourages it– that encourages the culture of grievance I have to say, that as a regulated entity, which a law school is and a dean lives with it all the time, I’m incredibly sympathetic to what you’re describing And the ways in which any institution is always in violation, because there are just so many rules and requirements, it creates a kind of over-regulated dangerous situation that leaves discretion in the hands of any enforcer who wants to go after somebody So I’m terribly sympathetic to your general approach I think that there is, at this moment, I do believe, in this country, a widespread view that there is too much of this kind of gotcha mentality in the law And I think that, let’s grab it I think that it’s true in the criminal justice system I think it’s true in the regulatory system And I think that that’s something that’s worth addressing, and I think that the language of forgiveness resonates for people in trying to mobilize those sentiments AUDIENCE: [INAUDIBLE] and I work in the law library My question has to do with how you got started in this work It’s clear that your background [INAUDIBLE] in cases of Kosovo, South Africa, et cetera Can you say a little bit about that history as compared to, say, [INAUDIBLE] work with cases where individuals commit murder and people are encouraged to forgive individuals I have been struck in the reading I’ve done in anticipation of this by what you consider to be the scope of the problem There were too many people to be brought

through a criminal assist, so that your concerned that forgiveness not become a cop-out But you’re also, as I understand it, anxious to make sure that something is happening in this society that gets at guilt, gets at culpability, and doesn’t inform the huge scope of the problem MARTHA MINOW: So thank you for that question, and I’ll be very frank and say that I started this project in the library I’m in the library and I am looking around as I, at the time, was working on the issues having to do with responses to mass atrocity And I looked up forgiveness, and at that time– this is early ’90s– the only resources on my campus that dealt with the subject were at the Divinity School And that sent me on a journey that was very different than the journey would be today And you’re right, I’ve done work in Kosovo, and I’ve done work in South Africa But I’ve also done work in, you know, the south side of Chicago, and I’ve done work in Boston I’ve done work with juvenile justice I’ve done work in family matters So, for me, this is something that I started to see coming up in many, many circumstances I’ve not, myself, been involved in domestic murder trials, but I have been very much affected by my students who work in that context And also, by meeting people who are leaders of the movements in this country by family members of murder victims It’s a set of attitudes that I don’t have, this genuine forgiveness, and this desire to limit the state’s capacity to punish I’m in awe of it It’s not my own It’s not the same exact sentiment that maybe motivates a country that has so many people who could be prosecuted and looks for the alternatives, the way that you’re talking about But, you know, it’s very interesting I’ve worked with many students who worked in Cambodia In Cambodia, the estimates are that one out of three people engaged in the genocide You’re not going to try all those people It’s just not possible But it’s also not clear that it’s the right response, because it means that the problem that happened there is not the kind of thing that a criminal justice system is set up to do It’s about a mass effect in the society of leaders and attitudes, and you have to have some kind of set of institutional responses the deal at that granular level And I think that that’s not actually so atypical– that we have many, many, many problems that have that quality In singling out a few people for large, expensive trials is just not going to deal with it And I don’t in any way mean to trivialize the problem by saying, why do you think libraries have forgiveness programs for returning books? Anyone else? PRESENTER: OK, well, I’d like to thank you, Martha, very much [INAUDIBLE] [APPLAUSE] MARTHA MINOW: Thank you