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Poetry, Mercy, and the Phenomenology of Justice

Berger, Benjamin L., Poetry, Mercy, and the Phenomenology of Justice (June 10, 2014). Forthcoming in Ehud Ben Zvi, Claudia V. Camp, David M. Gunn and Aaron W. Hughes, eds., Poets, Prophets, and Texts in Play: Studies in Biblical Poetry and Prophecy in Honour of Francis Landy (London: T & T Clark, 2014).; Osgoode Legal Studies Research Paper No. 34/2014. Available at SSRN: http://ssrn.com/abstract=2448430

p.2: What would a phenomenology of justice look like and what role would mercy play in that account? The unruly experiences and lives of the individuals and communities wrapped up in the dramas of justice are paradoxically distant from legal and philosophical reasoning, laundered by rules of evidence for the instrumental exigencies of the former, and frequently effaced by the disciplinary conventions of the latter. One casualty of these habits of reflection is our understanding of the role of mercy in the experience of justice. Wanting to recapture space to imagine the role of mercy in justice, this paper makes an exploratory turn to a world consumed with representing the messy experience of justice and still thick with the language of mercy – to the poetic and narrative world created in the Book of Jonah. Drawing inspiration from a close reading of this mythic tale, I argue that mercy is an essential feature of the phenomenological architecture of justice, requiring us, as it does, to connect abstract judgment with the complexities and exigencies of our concrete conditions. Though distant from contemporary legal and political theory, I argue that mercy in fact remains an uncanny aspect of our experience of justice and so demands a political and legal scholarship that spends as much time reflecting on the sources and nature of mercy as a political virtue, as it does on the demands of reason and the dictates of law alone. -- Highlighted aug 29, 2014

p.3: The experience of justice—of wrong and pain, of judgment and forgiveness, of punishment and redemption—is notably absent from scholarly reflection about the nature of justice. This is, in some measure, an artefact of the nature of the disciplines and their sources. Neither case law, statute, nor treatise gives priority to the messiness of everyday life. Indeed, the suppression of experience is a feature of law and much political philosophy, both of which thrive on the muting of certain voices in favor of authoritative others and on the sorting and rendering of “the facts” to serve analytic ends. -- Highlighted aug 29, 2014

p.3: There is much truth in Bruno Latour’s felicitous image of attempting to access knowledge of life through the language of law: that doing so is “like trying to fax a pizza”. -- Highlighted aug 29, 2014

p.4: Indeed, language of mercy – once more central to political rhetoric about the interaction of law and justice, but more on this later – would seem oddly out of place in contemporary institutions of governance. Language of mercy is not absent from the social world, but its appearance in political or legal registers seems like a category error, somehow anachronistic, perhaps even a little embarrassing. Speaking of mercy seems incongruous with the rhetorical and analytical conventions of the modern secular rule of law. But the force of these conventions nevertheless leaves the organizing question in this chapter untouched: what role, if any, does mercy play in the experience of justice and what might this suggest about the nature of justice itself? -- Highlighted aug 29, 2014

p.4: And so, despite my years in the wilderness of legal scholarship, this exploratory return to poetry and prophecy is very much influenced by the guiding ethos of the work of Francis Landy: that life can be found in the poetry and stories that communities hold precious over time; that there is an existential wisdom to be found in poetry and through attention to the fruits of imagination. -- Highlighted aug 29, 2014

p.4: Wanting to recapture space to imagine the role of mercy in justice, I turn to a world consumed with representing the messy experience of justice and still thick with the language of mercy, the world created in the Book of Jonah. After listening carefully to the narrative and metaphor of the story of Jonah, I will turn back to consider what lessons it might offer about the place of mercy in the architecture of justice and what this might suggest for contemporary legal and political thought. -- Highlighted aug 29, 2014

p.5: The trope of the reluctant prophet is common enough to the Hebrew Bible, but, as with much in this strange story, the Book of Jonah plays with and magnifies the form, alerting the reader that she is in a different kind of narrative space, a kind of parody of prophecy that is stamped with didactic intentionality. -- Highlighted aug 29, 2014

p.6: Read in one way, the cumulative message of these episodes of judgment and justice is to underscore and valorize God’s mercy and compassion in response to remorse. God saves Jonah from the sea when he calls out in prayer, he saves the people of Nineveh when their King leads them in the collective expression of repentance. My reading is somewhat different. Close attention to the structure of the culminating metaphor of the story points not to a message about God’s mercy, but about the human perils of finding comfort in the life flattening simplicity of judgment. -- Highlighted aug 29, 2014

p.10: Structurally, the parallel constructed at the end of the Book of Jonah is not drawn between the innocent people in Nineveh and the plant; it is between the original judgment against Nineveh and the plant. As readers, we are given two virtually identical sets of reactions from Jonah and responses from God – Jonah expresses his dismay by saying that he would rather die than live, and God responds by asking if he is really that deeply grieved. Both are reactions to a loss of something. The second episode is clear enough: Jonah is happy about this magically appearing plant, the plant dies, and he bemoans its loss, which leaves him exposed to the “sultry east wind” and the sun beating down on his head. God is specific in his questions: “are you so deeply grieved about the plant?” Jonah confirms the object of his grief: “yes… so deeply that I want to die.” -- Highlighted aug 29, 2014

p.11: The plant judgment metaphor invites the reader to view Jonah’s attachment to God’s judgment in similar terms. Jonah finds comfort in the certainty of judgment. Just as the plant would offer shelter from certain lived realities, so too did God’s judgment. It cast a shadow over the complexity of life in Nineveh, one in which wickedness sits alongside virtue, blame meets repentance, and guilt and innocence are perilously hard to disentangle. It is easier and more comfortable, the metaphor suggests, to sit in the shade of clear and certain judgment, though this would hide from one’s eyes, as it did for Jonah, the Ninevites’ capacity for insight and repentance, as well as the injustices that would be done in the name of harsh and sure punishment. God spares Nineveh when his initial response to their wickedness is combined with a fuller experience of their humanity, one that reveals an internal life that is not adequately addressed by the categories of guilt and punishment. As Scholem explains, “Jonah takes the standpoint of the law, and from this side he is indeed right; God takes that of justice”. When, in the final phrases of the book, God points to the transience of the plant and the existence of those – human and beast – that could not be held to blame, He is showing Jonah the folly and potential injustice of holding fast to abstract judgment at the expense of regard for the complexity of life. -- Highlighted aug 29, 2014

p.12: And then there is that strange aphorism that appears suddenly at the climax of Jonah’s prayer from the belly of the fish: “They who cling to great vanity/folly (havleisav) forsake their own mercy (ḥasdam).” This phrase, which sits at the very heart of the Book – the 25 th of 48 verses – has always troubled translators. The ambiguity of the key words, hevel and ḥesed, is challenging; so too is the third person personal participle that modifies ḥesed (surely those who hold to false vanities [illusions / empty appearances] forsake God’s compassion, not their own mercy?). Yet reading of the Book of Jonah given in this chapter, one in which the analogy between the judgment of Nineveh and the plant have poetic pride of place, offers an interpretation of this aphorism faithful to the central themes and preoccupations of the book: to commit to abstract judgment alone is folly; and doing so estranges one from the virtue of mercy, with its unsettling but vital demand to connect one’s sense of justice with the perplexities of lived experience. -- Highlighted aug 29, 2014

p.12: There is a certain comfort to be found in judgment. It opens a reassuring moral chasm between the judge and the judged, sorting a confusing world neatly into right and wrong. In this way, clear and certain judgment makes the world more legible. This is its seductiveness, its considerable appeal; and this is the psychological sophistication of the Book of Jonah. A world in which judgments can be confidently made and relied upon seems sensible, orderly, and safely uncomplicated. It is a world in which action, desert, and consequence march in predictable sequence. That is the world in which Jonah wants to take refuge, just as he took refuge under the plant. It is the world that he seeks to preserve by fleeing, knowing that, once faced with the Ninevites’ lived realities and capacity for change, mercy might complicate matters. Yet, however comforting, this world of abstract judgment is no more committed to the real than the evanescent plant. Justice for Nineveh comes when God takes account not only of the Ninevites’ wickedness, but of the moral complexity of their situation and their capacity for insight and change. On this reading, the parable of the Book of Jonah teaches what Jonah learned in the belly of the fish: that, phenomenologically, justice is not found in condemnation and punishment alone, but in the confluence of judgment and mercy. -- Highlighted aug 29, 2014

p.13: Beating at the heart of the contemporary commitment to the rule of law is the belief that it reflects “the internalization of reason itself as a regulative ideal within the political order.” -- Highlighted aug 29, 2014

p.16: The success of the liberal rule of law has suppressed mercy in our political and legal vocabularies. And yet, though talk of mercy feels so foreign to the language in which we now formally discuss political and legal justice, the genealogical roots of the system and the mythical resources that have been the focus of this chapter still haunt our contemporary experience. Mercy appears not as wholly alien to us now but, rather, as uncanny. -- Highlighted aug 29, 2014

p.16: In our legal and political histories, as well as in our lived experience as reflected in our poetry, mercy is a secretly familiar dimension of justice. The uncanny conjures anxiety, wariness; it is, in some respects, frightening. For this reason, it is easier to respond to the uncanny with rejection rather than reckoning. And so it is with mercy in our modern conception of justice: it is unruly and ill fitted to a modern, secularized and rationalized legal and political culture and has therefore been exiled from – repressed in – authoritative discourse about the just. Yet there is no reason to think that the phenomenology of justice – that to which the myth of Jonah and the life of equity differently attended – has fundamentally changed. The shrouded persistence of sites for the exercise of discretion and conscience in our system of justice confirms what poetry suggests: that mercy is a real and essential part of the phenomenological architecture of justice, one that drops out of sight in modern legal and political reflection on justice. -- Highlighted aug 29, 2014

p.17: One might well ask what function this repression of mercy’s role in justice serves. The myth at the heart of this chapter would suggest that, like Jonah, we find collective comfort in certainty and confidence in judgment untroubled by attention to the untidiness of everyday life. In matters of crime, fierceness in the movement from breach of a law to punishment enables swift passage past the knotted lines of responsibility for individual acts, past the moral complexity of both the criminal and the social world in which he acts, and past larger structures of injustice to which it is much more difficult to respond. In a liberal legal culture shored up by the assumptions and efficiencies essential to our modern economic order, repression of mercy’s admonition to complicate is the easier path. A political or legal theorist might, then, wonder whether there is a link between this gap and the tendency to punitiveness and harshness, as well as the arid sense of social justice, so prevalent in contemporary politics and law. At minimum, refocusing on the relationship between mercy and justice, as the Book of Jonah still invites us to do, suggests a political and legal scholarship that spends as much time reflecting on the sources and nature of mercy as a political virtue, as it does on the demands of reason and the dictates of law alone. -- Highlighted aug 29, 2014