18 August 2009

On confusing justice with mercy...

In the land of the gobsworthy, the fat mouthed man is king. Or, in the interests of gender parity, the chubby lipped lady. Sometimes one gets so used to the helterskeltering, tapsalteerie world of political comment, its bickering squall and the predictably light sleet of negativity and baseless criticism rather passes one by. Up to a point, one can allow for its existence, without getting overly engaged in it. Bring a Macintosh, and invest in a pair of Wellies.

I posted previously about what I suggested might be the deliberate diffusion of information by the august Kenny MacAskill concerning the apparently imminent release of Al Megrahi. Watching the man himself on television, he certainly did not seem to my eye to be a chap standing with his trousers sagging, full of an unexpected and unanticipated gush of ordure. Certainly, his remarks flowed with their usual wending, ox-bow fluency. With MacAskill you never step into the same sentence twice. Indeed, listening to him speak, he clearly operates in an eternal verbal present, never certain what words passed his lips even a moment before, and equally uncertain what his next glittering phrase might be. My point, to be brief, is that he did not appear like a man anticipating the flood.

Nevertheless, I’ve been mildly taken aback by some of the coverage. I expected there to be robust exchanges in the rowdy writing press – totting up to a furore, a row – about the justice of the thing, about which I have my own doubts. Other opinion-flingers are all over the place. The coal-ventricled Telegraphist seems to object primarily because nobody has told him what is going on, crying “lack of clarity”. Magnus Linklater goes mildly nuts about the whole affair – or absence of final ministerial comment of the aforementioned affair – in the Times. Meanwhile, Tam Dalyell, who does not find the case for Megrahi’s conviction compelling, makes a profoundly chilling argument about what he believes actually happened in 1988.

Indeed, on the whole issue of compassionate release, my particular little conscientious compass darts hither and thither, indecisively. Here, roughly, is why. It is grotesque loftily to insist in the integrity of a system, despite all appearances. Only a fool would imagine an innocent person may not be clapped in irons, thrust into some concrete cave we all prefer not to consider. Like everyone else, Lockerbie furnishes me with few answers that I can scrutinise, instead relying on the authority-begging judgements of others, small flickering lights through the murk. Guilty, said the three judges in the Netherlands. That we all know, flatly. The hostile case is that the decisions of those in authority have not illuminated the guilt of Al Megrahi. Indeed, enwrapped in their robes of high distinction, they are distracting willow-the-wisps. Thus, what can one honestly say on the justice of the thing, really? Who in the general public is furnished with sufficient personal information to come to a decision? For most of us, the voice of justice is silent, uttering hardly a whisper.

Crank up your telly and turn to the BBC News, however, and at some point you’ll bump into selected souls of the dear old Scottish public, sharing their views on the prospect of Megrahi being released. Opinion, representatively differs. Here, however, is one story one hears quite regularly. Says the woman, if he didn’t do it, I think he should be released. If he did it, he should stay inside. While this may seem like an obvious reiteration of the basic rationale and justification for incarceration, it isn’t. In the current matter, other considerations are stirred in. Putting aside the treaty provisions on transferring prisoners, focus on the much mooted compassionate relief, on an exercise of the executive prerogatives to mercy. See it in that context. The argument reassumes the following form. If he is innocent, he should receive compassion. If he is guilty, punishment should resume, even unto the last, bitter breath.

Over time, much has been written on the paradoxical relationship of justice with mercy. For Christians, and its ultimate, maximum God of both justice and mercy – the prompting, unanswerable question is how can the divinity absolutely dispense the full measure of both virtues? Do not the imperatives of justice and the imperatives of mercy at times conflict? If God is perfectly merciful, how can he be perfectly just? More prosaically, and to return our minds to our own godless deliberations, how should we determine when to be merciful? Is mercy reached by rules still mercy, or does it enter the strictures and precepts of justice? What seems clear is that a significant section of the general public are conflating one with the other, bundling the two threads into a disastrous tangle where justice determines whether or not we should be merciful. It shouldn’t. If Megrahi is guilty in law, that is a matter to be sought for in the mind of justice. If he is innocent, justice must throw open his cell door.

The exercise of clemency cannot be so restrained. Here, the question ‘should Megrahi be released’ becomes equally contested, but less entangled in unanswerable speculation on what happened that grim day, over Lockerbie. Put aside the man’s guilt or his innocence. Admit we have no idea. Now, should MacAskill undertake the works of mercy for a dying man? That last point is a particularly challenging one in the present climate, as Megrahi’s condition remains a largely unknown quantity. Crucially, we have no images of the man, no visual encounter to confirm the largely heatless announcement that cancer is claiming him. Does the extremity of the crime he was convicted for militate against the granting of mercy? Some people believe so. Yet approaching the problem in this way leaves one open to the rip-tide of uncertain justice, and the tumult we only just excised ourselves from.

In part, the progress of this argument is an expression of my own attempt to understand how I feel about the decision facing MacAskill. Perhaps predictably, I found myself being drawn into the debates about the justice of the matter, and in that maze, hastily lost. To everyone else, I'd commend the question "should we be merciful"? While understandable, the family members of the lost who ask "was Megrahi merciful to the victims" are imagining a false pairing. Mercy has no relevance for the innocent. For the guilty, or those determined to be guilty, mercy affords no tit for tat, precisely because it is not a manifestation of justice. That being so, I believe that we should release Megrahi, not because it is just to the deceased if he is guilty, because it isn't. Not because it is just to him if he is innocent - because its not. Enacting punishment on a man in the last throes is grotesque. We should be merciful if we simply determine that we should. While many of you will be familiar with the indomitable, sharp-featured visage of justice, brandishing scales and sword - you may have encountered fewer representations of her sister, Mercy. The imperatives to mercy are not so clean and reasoning as those commending justice. This second goddess lacks the uncluttered Palladian lines of the former, without the objective tools of measurement which are Justice' instruments. She is wild, contingent, simply herself. It is this feature which makes the decision to exercise mercy so difficult. Unlike the rule-governed, disposing formulae of contemporary justice, it is a real decision, every consideration unweighted, resolutely particular.


  1. Lallands

    This one is really difficult, but surely mercy can only be handed out by the victims' families. And given that any appeal has been dropped - something that some of the more 'merciful'/'truth-seeking families had been hoping for - how can more light be shed on what actually happened?

    How can MacAskill make a judgement to compassionately release Al Megrahi? Any release would imply that MacAskill believes that the man MAY be innocent, but without any further judicial proceeding taking place. OR, that it be based on pure compassion. Perhaps for a much lesser offence, yes but not for the pre-meditated killing of 270 civilians. Surely not.

    And with the backdrop of UK, US and Libyan Governmental pressure, this will continue boiling up until the decision has been announced. I'm certain that the Scottish Government have also considered the political implications of any decision, and based on this, it's looking increasingly likely that they will not release the man at all.

    A release would mean criticism all round. Good for the UK's trade relations with Libya (after Mandy's Corfu meet with Gaddafi junior,) but dreadful for Scotland's reputation within the US, as well as UK/US relations.

  2. Brilliant, brilliant, brilliant....!

    What an excellent post, I've read it a few times now. On the money in so many ways.

    Extra kudos for this line:

    With MacAskill you never step into the same sentence twice. Indeed, listening to him speak, he clearly operates in an eternal verbal present, never certain what words passed his lips even a moment before, and equally uncertain what his next glittering phrase might be.

    (Hopefully it won't be the case tomorrow at 1pm)

  3. Andrew,

    In one respect through the anticipatory and subsequent debate on this issue, we've been lucky: no Merchant of Venice. Echoes perhaps, nuanced quasi-references, but no quotation at length.

    Time to end that Shakespeareless peace:

    "The quality of mercy is not strain'd,
    It droppeth as the gentle rain from heaven
    Upon the place beneath: it is twice blest;
    It blesseth him that gives and him that takes:
    'Tis mightiest in the mightiest: it becomes
    The throned monarch better than his crown;
    His sceptre shows the force of temporal power,
    The attribute to awe and majesty,
    Wherein doth sit the dread and fear of kings;
    But mercy is above this sceptred sway;
    It is enthroned in the hearts of kings,
    It is an attribute to God himself;
    And earthly power doth then show likest God's
    When mercy seasons justice. Therefore, Jew,
    Though justice be thy plea, consider this,
    That, in the course of justice, none of us
    Should see salvation: we do pray for mercy;
    And that same prayer doth teach us all to render
    The deeds of mercy. I have spoke thus much
    To mitigate the justice of thy plea;
    Which if thou follow, this strict court of Venice
    Must needs give sentence 'gainst the merchant there."

    The speech is overquoted, and for the life of me, I have never been able to deduce quite what that famous first line of Portia's speech is meant to denote. However, the bit I wanted to focus on was where she (and dear old Shakespeare) locate mercy - in the divine monarch, and in his (presumably anointed) earthly vice-regent.

    Certainly, I'd not be willing to commit myself to the mysticism, but in the structure of our government, mercy is the prerogative of the executive. It amounts to nothing in terms of a moral commentary on an individual. It is not forgiveness. To be materialist, it is simply an order for the organs of the state to desist depriving an individual of their liberty.

    This is a consequence of allotting to state officers justice' sceptre. Of course, we could approach matters differently - something more along the lines of those elements of Sharia law which empower the victim to enforce compensatory punishment on the guilty. At least that is my own (very elementary) understanding of that aspect of Islamic jurisprudence. Vast pinch of salt recommended.

    I would be against this sort of approach for myself. I am obviously willing to concede, however, that it is a legitimate point to politicise in our public discourse.

  4. Jeff,

    On the MacAskill point, a friend put it even more briskly and eloquently than I was able.

    Kenny MacAskill, the Goldfish Orator...