《衡平，慈悲，与莎士比亚》讲义（一）
[Jurisprudence at UCL]
Seminars on Equity, Mercy and Shakespeare by John Tasioulas
February 18, 2013
[Reading]
Aristotle, Nicomachean Ethics, Book V.10
Martha C. Nussbaum, ‘Equity and Mercy’, Philosophy and Public Affairs 22 (1993): 83. Also reprinted in her Sex and Social Justice (OUP, 1999)
[Background]
• In modern philosophy, there is prominence given to the value of justice, which is a primary social value/virtue.
- Michael Sandal: expand justice to the whole morality
• Another tradition is to regard justice as one value among others; one other value is equity, as opposed to legal justice.
• Ordinary people may be concerned about charity, or talk about duties of charity; one of the virtues of charities might be mercy, in the context of punishment.
The seminar attempts to retrieve the idea of justice that may be sidelined now, or be expanded to capture all. Note there is a distinction between 'deserved to be punished' and 'a reason to punish him' for the discussion of mercy.
[Notes]
• Aristotle on the meaning of justice
- (in a broader sense) (as with Plato) no the term of justice
(1) It is a moral virtue as dealing with other people. Virtues such as temperance not dealing with other people.
(2) (more Aristotle than Plato) It is a socially enforceable morality, as contrasted with morality in intimate relationships which is none of the society’s business.
- (in a narrower sense) (Book V) categorizes distributive justice, corrective justice and legal justice
• Legal justice and equity
- Legal justice is the justice according to law and with the satisfaction of certain general requirements. It is because pure reason does not tell you the precise penalty, but we do need penalty and not give judges too much freedom. So the law steps in as a guide.
- Equity steps in when operationalizing justice by implementing rules, since it is impossible to foresee every possible situation with encompassing, over-inclusive, or under-inclusive laws.
- Legal justice tries to embody society through simplified rules. However, there will be cases where applying simplified rules it is impossible to achieve universal justice. There is a reason in certain situations to deviate from certain rules to apply particularized judgment achieve universal justice.
- legal justice and equity are two means of achieving universal justice, which is a value in itself.
equity is parasitic and serves as a remedy when rules go wrong.
Note: There is a presupposition of a legal system and equity is a rectification of it.
• Equity as a form of justice
- A way is needed to judge when to deviate from certain rules.
- Conformity with rules is a moral judgment. Deviation from rules is a moral judgment, too.
Equity does have a connotation of moral judgment.
- Equity may have both effects of aggravation and mitigation.
Roscoe Pound, ‘decadence of equity’: the process of deviation may generate a new set of rules, which may again be formalistic and replicate the existing problems that are exactly what equity aims to solve.
• Distinction between rules and principles as Dworkin may put it
- Aristotle doesn’t believe in principles as modern philosophers do. Justice is not a bunch of propositions.
- The driving force behind justice is not principles, but certain types of persons. It is a virtue, an orientation, a character of the soul, and the ability to reason through particular situations.
- It is no surprise that not everyone can achieve justice. It takes intelligence and practical skill to become such a person, and luck to achieve full justice in given circumstances.
- However, there still needs to be certain guidelines.
• Mercy is a more particularized application of rules
- (broader) mercy is still justice in the sense of universal justice
- (narrower) in criminal law, mercy is how the criminal should be punished, what they deserve, whether they deserve to be punished less (a retributive issue).
• Nussbaum on Equity and Mercy
- There is no such idea of ‘mercy’ as ‘equity’ in Aristotle, but the idea has presence in classical Greek culture.
- There is an absence of religion in her discussion, with regards to the common belief that ideas such as mercy and charity are related to Christianity.
- She applies a literary imagination to expose the wide variety of human life.
- She employs the feminist angle. Psychological findings go that in morality men reason principles and rules, while women fit morality into life and relationships. Aristotle goes with the feminist view in a sense. There is a certain emotional engagement with certain situations.
• Asymmetry between mitigation and aggravation
- Mitigation: the law should be mild and lenient
- Aggravation: the law should go beyond and punish more harshly
- Should people be punished strictly for situations they can’t take full responsibility for or control over? E.g. a woman kills her husband, because the woman is under abuse for ten years, or because the woman wants to inherit the wealth from her husband.
- There is a systematic tendency to consider mercy as a leniency, to punish someone less than they deserve, but never more than they deserve. A reason can always be found against aggravation. Why is that? Why should discretionary deviation coming in favor of leniency more tolerated than aggravation? One reason may be that generally speaking retrospective punishment is generally not allowed.
- Nussbaum: such pattern is only a statistical matter.
- Tasioulas: this is wrong. Showing mercy only possible when someone deserves to be punished. Moreover, it is closely related to the rule of law, which is a modern concept, instead of Greeks' focus on virtues. To put constraints on officials is to allow people to make free choices and plan their lives.
• Distinction between mercy and forgiveness.
- Mercy is seen from the official’s view, while forgiveness is classically and primarily a victim’s virtue.
- Mercy is a reason for punishment and associated with the welfare of the defendant. Forgiveness is not engaged with retributive responses to the wrong and the wrong-doer. Forgiveness is unconditional of the wrong-doer and may be related to moral hygiene.
Seminars on Equity, Mercy and Shakespeare by John Tasioulas
February 18, 2013
[Reading]
Aristotle, Nicomachean Ethics, Book V.10
Martha C. Nussbaum, ‘Equity and Mercy’, Philosophy and Public Affairs 22 (1993): 83. Also reprinted in her Sex and Social Justice (OUP, 1999)
[Background]
• In modern philosophy, there is prominence given to the value of justice, which is a primary social value/virtue.
- Michael Sandal: expand justice to the whole morality
• Another tradition is to regard justice as one value among others; one other value is equity, as opposed to legal justice.
• Ordinary people may be concerned about charity, or talk about duties of charity; one of the virtues of charities might be mercy, in the context of punishment.
The seminar attempts to retrieve the idea of justice that may be sidelined now, or be expanded to capture all. Note there is a distinction between 'deserved to be punished' and 'a reason to punish him' for the discussion of mercy.
[Notes]
• Aristotle on the meaning of justice
- (in a broader sense) (as with Plato) no the term of justice
(1) It is a moral virtue as dealing with other people. Virtues such as temperance not dealing with other people.
(2) (more Aristotle than Plato) It is a socially enforceable morality, as contrasted with morality in intimate relationships which is none of the society’s business.
- (in a narrower sense) (Book V) categorizes distributive justice, corrective justice and legal justice
• Legal justice and equity
- Legal justice is the justice according to law and with the satisfaction of certain general requirements. It is because pure reason does not tell you the precise penalty, but we do need penalty and not give judges too much freedom. So the law steps in as a guide.
- Equity steps in when operationalizing justice by implementing rules, since it is impossible to foresee every possible situation with encompassing, over-inclusive, or under-inclusive laws.
- Legal justice tries to embody society through simplified rules. However, there will be cases where applying simplified rules it is impossible to achieve universal justice. There is a reason in certain situations to deviate from certain rules to apply particularized judgment achieve universal justice.
- legal justice and equity are two means of achieving universal justice, which is a value in itself.
equity is parasitic and serves as a remedy when rules go wrong.
Note: There is a presupposition of a legal system and equity is a rectification of it.
• Equity as a form of justice
- A way is needed to judge when to deviate from certain rules.
- Conformity with rules is a moral judgment. Deviation from rules is a moral judgment, too.
Equity does have a connotation of moral judgment.
- Equity may have both effects of aggravation and mitigation.
Roscoe Pound, ‘decadence of equity’: the process of deviation may generate a new set of rules, which may again be formalistic and replicate the existing problems that are exactly what equity aims to solve.
• Distinction between rules and principles as Dworkin may put it
- Aristotle doesn’t believe in principles as modern philosophers do. Justice is not a bunch of propositions.
- The driving force behind justice is not principles, but certain types of persons. It is a virtue, an orientation, a character of the soul, and the ability to reason through particular situations.
- It is no surprise that not everyone can achieve justice. It takes intelligence and practical skill to become such a person, and luck to achieve full justice in given circumstances.
- However, there still needs to be certain guidelines.
• Mercy is a more particularized application of rules
- (broader) mercy is still justice in the sense of universal justice
- (narrower) in criminal law, mercy is how the criminal should be punished, what they deserve, whether they deserve to be punished less (a retributive issue).
• Nussbaum on Equity and Mercy
- There is no such idea of ‘mercy’ as ‘equity’ in Aristotle, but the idea has presence in classical Greek culture.
- There is an absence of religion in her discussion, with regards to the common belief that ideas such as mercy and charity are related to Christianity.
- She applies a literary imagination to expose the wide variety of human life.
- She employs the feminist angle. Psychological findings go that in morality men reason principles and rules, while women fit morality into life and relationships. Aristotle goes with the feminist view in a sense. There is a certain emotional engagement with certain situations.
• Asymmetry between mitigation and aggravation
- Mitigation: the law should be mild and lenient
- Aggravation: the law should go beyond and punish more harshly
- Should people be punished strictly for situations they can’t take full responsibility for or control over? E.g. a woman kills her husband, because the woman is under abuse for ten years, or because the woman wants to inherit the wealth from her husband.
- There is a systematic tendency to consider mercy as a leniency, to punish someone less than they deserve, but never more than they deserve. A reason can always be found against aggravation. Why is that? Why should discretionary deviation coming in favor of leniency more tolerated than aggravation? One reason may be that generally speaking retrospective punishment is generally not allowed.
- Nussbaum: such pattern is only a statistical matter.
- Tasioulas: this is wrong. Showing mercy only possible when someone deserves to be punished. Moreover, it is closely related to the rule of law, which is a modern concept, instead of Greeks' focus on virtues. To put constraints on officials is to allow people to make free choices and plan their lives.
• Distinction between mercy and forgiveness.
- Mercy is seen from the official’s view, while forgiveness is classically and primarily a victim’s virtue.
- Mercy is a reason for punishment and associated with the welfare of the defendant. Forgiveness is not engaged with retributive responses to the wrong and the wrong-doer. Forgiveness is unconditional of the wrong-doer and may be related to moral hygiene.
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