When Should Law Forgive?

by Martha Minow

Overview

The potential power of forgiveness in an age of resentment.

Crimes and violations of the law require punishment, and our legal system is set up to punish, but what if the system was recalibrated to also weigh grounds for forgiveness? What if something like bankruptcy—a fresh start for debtors—were available to people convicted of crimes? Martha Minow explores the complicated intersection of the law, justice, and forgiveness, asking whether the law should encourage people to forgive, and when courts, public officials, and specific laws should forgive.

Who has the right to forgive? Who should be forgiven? And under what terms? Minow tackles these foundational issues by exploring three questions:

• What does the international response to child soldiers teach us about the legal treatment of juvenile offenders in the United States?
• Why are the laws surrounding corporate debt more forgiving than those governing American student and consumer debt, and sovereign debt in the developing world?
• When do law’s tools of forgiveness, amnesties, and pardons strengthen justice, peace, and democracy (think South Africa), and when do they undermine law’s promise of fairness (think Joe Arpaio)?

There are certainly grounds for both individuals and societies to withhold forgiveness, but there are also cases where letting go of legitimate grievances can make the law more just, not less. The law is democracy’s girder beam, and Minow urges us to build forgiveness into the administration of our laws. Forgiveness, wisely exercised, can strengthen law, democracy, and respect for the humanity of each person.

Product Details

ISBN-13:	9780393081763
Publisher:	Norton, W. W. & Company, Inc.
Publication date:	09/24/2019
Pages:	256
Sales rank:	1,056,620
Product dimensions:	5.50(w) x 8.30(h) x 1.10(d)

About the Author

Martha Minow is the 300th Anniversary University Professor and former dean of Harvard Law School, where she teaches courses on constitutional law and on law and social change. She has written many influential books and articles about law and society.

Table of Contents

Introduction 1

Chapter 1 Forgiving Youth 35

Chapter 2 Forgiving Debt 73

Chapter 3 Amnesties and Pardons 113

Chapter 4 Reflections 145

Acknowledgments 165

Notes 171

Index 241

Editorial Reviews

07/15/2019

Minow (Between Vengeance and Forgiveness), former dean of Harvard Law School, offers a thoughtful and well-reasoned treatise on forgiveness as an alternative to traditional legal remedies. She begins with the question of forgiving youth, specifically child soldiers in Africa and American gang members. Minow explores a number of perspectives, considering young offenders’ individual responsibility and the knowledge that they are also victims who have often been coerced, seduced, or kidnapped. Taking as a legitimate goal the opportunity for young offenders to have a constructive future, she advocates for the development of separate juvenile justice systems, restorative justice mechanisms, and truth commissions. In a similar vein, she argues that forgiving unmanageable debt loads owed by governments and individuals alike can yield better economic results than exacting payment at any cost, despite the risk that it could make some consumers act recklessly. On the topic of amnesty, she weighs the societal gains and risks, using as examples the amnesty for Vietnam draft avoiders and Gerald Ford’s pardon of Richard Nixon. Though her theories are abstract in some ways, she connects them to topical subjects including presidential self-pardons, immigration, and the legalization of marijuana. Minow’s compassionate, knowledgeable, and nuanced examination of the gains that may follow policies that substitute forgiveness for rigid legal remedies is groundbreaking and should provide a useful framework for future policy makers. (Sept.)

Publishers Weekly

"[When Should Law Forgive?] will help readers understand the thorny complexities of forgiveness under law."

Booklist

"In a world of noise and confusion, animated by vengeance, Martha Minow is a voice of moral clarity: a lawyer arguing for forgiveness, a scholar arguing for evidence, a person arguing for compassion."

Jill Lepore

"In this time, so shaped by reactionary and ‘call-out’ cultures that foster harsh, virtue-signaling condemnation of others, this brilliant book carries a profound reminder: for a diverse society to cohere as a humane society, it has to have the capacity—rooted in law—to forgive and reconcile. This book’s inspiring discussion of how the law can do this is a beacon to that more humane society."

Claude Steele

2019-08-07
A Harvard Law School professor examines when it is appropriate for the law, that instrument of punishment, to show mercy through forgiving misdeeds.

The law in this country, writes Minow (In Brown's Wake: Legacies of America's Educational Landmark, 2010, etc.), is already inclined to forgive legal misbehavior in the matter of debt, allowing for bankruptcy proceedings in the place of erstwhile debtors' prisons. That there is stigma attached and that those who go through the process may find their credit ruined for years does nothing to diminish the fact that those with legitimate claims against the debtor are forced into a system that may pay them pennies on the dollar. Thus, while's there no reason to take joy in bankruptcy, at least it's a possibility that all parties settle on. Things are different when it comes to murder, individual or mass, as with the genocidal killings in parts of Africa a generation ago, when Archbishop Desmond Tutu and other leaders organized campaigns that forgave while not forgetting. Minow examines when it is appropriate for legal institutions to press for forgiveness rather than punishment. For example, what of the case of child soldiers, kidnapped and pressed into service in terrible campaigns in conflicts throughout the world? "To ask how law may forgive is not to deny the fact of wrongdoing," writes the author of this and other problems. "Rather, it is to widen the lens to enable glimpses of these larger patterns and to work for new choices that can be enabled by wiping the slate clean." Throughout, Minow writes evenhandedly. She observes that in the instance of presidential pardons, one vehicle for forgiveness, it all hinges on lack of corruption—lack that could not be demonstrated in the instance of Donald Trump's pardon of disgraced Arizona lawman Joe Arpaio, nor by Bill Clinton's pardon of big-ticket donor Marc Rich. Forgiveness works, Minow holds, but only when it is clean, unforced, and willingly extended.

A solid, accessible contribution to the literature of restorative justice.

Kirkus Reviews

"Minow’s new book thoroughly explores one enduring means of conflict resolution that is far too often overlooked: forgiveness."

Law360 - Judge Ketanji Brown Jackson

"No one but Martha Minow could have written this brilliant, and brilliantly readable, meditation on the role of forgiveness in the law and of the law in forgiveness… [showing how] to move forward and rebuild while both remembering the past and getting past it."

Laurence Tribe

"In a book at once compassionate, nuanced, and tough-minded, Martha Minow brings together in an illuminating conjunction a set of issues that at first glance seem to have nothing whatever in common: horrific crimes committed by child soldiers, corporate and student debt, and presidential pardons for unrepentant criminals. All of these, as Minow brilliantly shows, raise the same pressing and contentious question: For what offenses and under what conditions should a just legal system offer forgiveness? This is a legal minefield through which When Should Law Forgive? provides an indispensable guide."

Stephen Greenblatt

"Martha Minow’s work on how societies can recover from large-scale tragedies and human-rights violations has been transformational.… Her insights are smart, thoughtful, and rooted in a deep, nuanced understanding of what justice sometimes demands."

Bryan Stevenson