Thursday, February 20, 2020
Books: "When Should Law Forgive?" By Martha Minow
When Should Law Forgive?
By Martha Minow
Norton; hardcover, 256 pages; $27.95
Martha Minow is a former dean of the Harvard Law School and the 300th Anniversary University Professor. In 2009, President Barack Obama nominated, and the Senate confirmed, Minow to the board of the Legal Services Corporation, a bipartisan government-sponsored organization providing legal services to low-income families, where she chairs the pro bono task force. She launched the Imagine Coexistence program in Kosovo with the United Nations High Commissioner for Refugees.
Minow is an eminent scholar who began teaching at Harvard in 1981, and she has taught on courses on disciplines including civil procedure, constitutional law, family law, international criminal justice, and the public law workshop. Her ability to shift easily from one discipline to another derives from her constant focus on the philosophical underpinnings of the law.
The underpinning of her new book is titled, When Should Law Forgive?, a question that is at the very heart of jurisprudence, and comes after thoughtful consideration of controversial presidential pardons, temporary amnesty for Dreamers, and bankruptcy procedures that give for-profit colleges relief but deny it to Americans burdened with student loans.
For Minow, this simple four-word sentence is a gateway that opens onto specific questions about the treatment of child soldiers, American consumer debt, and executive pardons in a global context. These questions explore the complex relationship between forgiveness and the very purposes of the law.
In an engaging and conversational style, Minow lays out arguments for and against forgiveness as a legal as well as personal practice, while highlighting three areas where, amid rules and regularities, law has resources for forgiveness: crimes committed by youth, debt and bankruptcy, and amnesties and pardons.
Attentive to potential harms when marginalized victims are encouraged to forgive their oppressors and when forgiveness seems a second-best alternative to justice, this work offers a rich and compelling vision of legal practices that can build and restore human relationships and stronger societies.
Minow writes, "Forgiveness enacted by law alters legal consequences. As a system of rules and institutions that govern human conduct, law expresses grounds and consequences for justified grievances, but it also offers methods to forgive wrongdoing. Expungement of criminal convictions, discharge of debt through bankruptcy proceedings, and executive pardons are examples of forgiveness through law. Law may itself enact forgiveness by forgoing otherwise applicable legal accountability and refraining from blame. Law can be a tool to convert suffering into opportunity."
Detailing how civilizations and religions throughout human history have incorporated collective forgiveness of crimes and debts, and examining timely issues such as immigration law violations, #MeToo, the final "Reflections" section offers readers a deep understanding of forgiveness administered through legal pathways, as well as when rigidity might be a better choice for serving the common good.
When Should Law Forgive? provides compelling queries, haunting stories, and promising avenues for change, while giving the reader a look into the world through two lenses, one of forgiveness and another of justice.
Minow writes, "So many traditions have words and rituals that cultivate the human capacity to forgive. Forgiving involves ceasing to let the wrongdoing count in one's feelings toward the wrongdoer, even while maintaining recognition of the wrong. One may forgive a person without forgiving the wrongful act itself. 'Forgiveness is the act of admitting we are like other people.' In contrast, some urge forgiveness precisely because of limitations in comprehension of others' behavior and motivations. Forgiveness encourages people to take the perspectives of others, to understand the larger pressures and structures affecting others' actions, and to prioritize creating a shared future over holding on to resentments from the past.
"The capacity to forgive, in turn, serves as a resource that enables individuals to overcome resentment and conflict. Nelson Mandela, who led the movement against South Africa's apartheid system and then orchestrated the peaceful transition to a democratic government embracing human rights, modeled generosity focused on the future rather than rancor centered on the past. 'Resentment is like drinking a poison and hoping it will kill your enemies,' he once observed. Requesting forgiveness marks a step toward repentance and redemption in relation to divine authority and in relation to family members, neighbors, co-workers, and even strangers; offers of forgiveness are human efforts to follow divine example."