The critical legal studies movement has, in my judgment, raised at least one important issue for jurisprudence and moral philosophy. I am thinking of its claim that traditional moralistic jurisprudence errs in confining its inquiries to formal, abstract, and public doctrines and to the intellectual rationales for those doctrines. According to the “crits,” a full philosophical grasp of law and morality requires an examination of the underlying causal forces that in part generate both the doctrines and the intellectual rationales for them. The person who seeks total enlightenment about morality and the law is invited to look, not just to the ideological superstructure, but to the underlying substructure that gives the superstructure at least a part of its point. This seems to me an invitation that those of us who practice traditional jurisprudence should accept.

I am particularly interested in the degree to which certain moral and legal doctrines are rooted in specific passions (feelings, emotions) and the degree to which a philosophical examination of those passions will have a bearing on an understanding and evaluation of the doctrines that they in part generate and for which these doctrines in part serve as rationalizations. Although not currently at the center of philosophical fashion, this type of inquiry has, of course, a venerable philosophical history.

INTRODUCTION

Forgiveness, Bishop Butler teaches, is the forswearing of resentment – the resolute overcoming of the anger and hatred that are naturally directed toward a person who has done one an unjustified and non-excused moral injury.

THE RETRIBUTIVE EMOTIONS

The critical legal studies movement has, in my judgment, raised at least one important issue for jurisprudence and moral philosophy. I am thinking of its claim that traditional moralistic jurisprudence errs in confining its inquiries to formal, abstract, and public doctrines and to the intellectual rationales for those doctrines. According to the “crits,” a full philosophical grasp of law and morality requires an examination of the underlying causal forces that in part generate both the doctrines and the intellectual rationales for them. The person who seeks total enlightenment about morality and the law is invited to look, not just to the ideological superstructure, but to the underlying substructure that gives the superstructure at least a part of its point. This seems to me an invitation that those of us who practice traditional jurisprudence should accept.

Jean Hampton distinguishes three kinds of hatred: simple hatred, moral hatred, and malicious-spiteful hatred (Nietzsche's ressentiment). Simply having an aversion to someone because of some non-morally objectionable quality (e.g., he is a bore) is unavoidable and raises no moral issues unless one acts on the feeling in immoral ways. (Trying to avoid a bore at a party is permissible; killing the bore – though very tempting – is not.) Moral hatred is aversion to a person (e.g., a Nazi) because of the immoral cause with which he is identified, and is coupled with a desire to triumph over him and his cause. There is no desire to hurt the person simpliciter but only a willingness to allow such hurt if unavoidable in the pursuit of victory over his immoral cause. Malicious or spiteful hatred, however, has as its very object the attempt to diminish and hurt another and thereby gain competitive advantage over him and his status; and it is this kind of hatred, argues Hampton, that is both irrational and immoral.

I am inclined to agree with almost everything Hampton says – as far as it goes.

This book grew out of conversations and correspondence that we have had since 1985. At that time Murphy sent Hampton a copy of his 1982 essay “Forgiveness and Resentment” (a version of which is included as Chapter 1 of the present book). This prompted her to read, reflect on and write about the issues he had raised. After some initial correspondence and conversations that mixed philosophical topics and life experiences, we realized that we had a deep interest, both intellectual and personal, in the emotions of resentment, hatred and compassion and in the virtues of forgiveness and mercy – virtues that are often regarded as exemplifying the latter emotion and allowing us to overcome the former two. We found these topics important, not only for ethical theory and the theory of virtue, but also for social, political and legal philosophy. Moreover we also found that we both had personal reasons for wanting to subject to philosophical reflection emotions that were important parts of our own personalities and that engaged the religious and moral traditions in which we had been raised.

We early realized that we approached these topics in a sufficiently similar manner that useful exchange between us was possible; but we also realized that each would never bring the other around to a common point of view.

What is the relationship between justice, retribution, resentment, hatred, and revenge? And what is the relationship between that set of behavioral and emotional responses and the seemingly opposed promptings of love, charity, and compassion? I opened an exploration of these questions in my earlier chapters, and I want to continue it in this chapter with a discussion of mercy – a virtue (if it is a virtue) that seems to engage all of the above issues in general and to raise in particular the issue of the degree to which, if at all, the demands of justice can be reconciled with the demands of compassion. If we think of a virtuous person as one lacking in neither justice nor charity, we will see this reconciliation project as central to an understanding of such matters.

Before beginning this project, however, I want briefly to consider where, in my view, I now stand with respect to the thoughts expressed by Jean Hampton.