Some basic and universal questions in life are never really settled once and for all. Instead, they continue to challenge each generation anew. One of them is the question of finding the balance between justice and mercy.
Homer, Plato and Aristotle have documented humanity’s struggle with these questions. William Shakespeare tried to highlight this problem in one of his lesser-known plays: “Measure for Measure”.
In the play, the Duke is concerned about the lax morality in Vienna. He concludes that the lenient enforcement of laws is the cause of the problem.
In his words, “We have strict statutes and most biting laws; which for these nineteen years we have let slip; for terror, not to use, in time the rod; becomes more [mocked] than [feared]; and liberty plucks justice by the nose.”
So he appoints a new official tasked with the mission of rooting out the prevalent immorality by strictly enforcing the “statutes and most biting laws”.
As is usually the case with newly acquired power, and fully convinced of the righteousness of his cause, the new official sets about his task with tremendous zeal and a singularity of mind. He proceeds on a fast and strict law enforcement campaign.
He soon finds a transgressor of a law considered to be of minor consequence by most people of the time, but a violation nonetheless. He sentences him to death, which technically is according to the law but considered to be an extreme measure by most people.
The sister of the accused comes to the official begging for mercy and leniency. He was not inclined to show either. He rather gives her a self-righteous lecture on the importance of law and order. The drama continues further and raises more questions about morals and personal integrity.
Suffice it to say that the Duke finds out the overzealous, strict and impersonal interpretation and execution of the statutes by his deputy was causing social strife. There is a legal maxim that describes this situation: extreme law is the greatest injury.
This is often the case when positivist judges interpret the letter of the law only, forgetting its spirit.
This is very similar to what happened in this country in the last decade or so. Fearing the breakdown of law and order after the 2005 election fiasco, the government went on a binge of rulemaking that was unprecedented.
There seemed to be prohibitive proclamations: the civil society law, media law, anti-terrorism law. It cannot be said that parliament carefully deliberated on them since they were ill-considered and poorly crafted.
In hindsight, the fact that the interpretation of these laws by a judiciary with a positivist tradition that was intimidated by a muscular executive ended in rights abuses should not be surprising. Neither should the resultant civil unrest. People can only bear so much suffering.
In light of this fact, it is understandable that a reformist government had to show a measure of equity, mercy and pardon. That was necessary for the restoration of social cohesion. For citizens that were subjected to cruel and unusual punishment, the granting of pardons was exactly what justice demanded.
However, it is imperative that the pendulum should not be allowed to swing to the other extreme. As the law must not tolerate cruelty in the name of justice nor should it condone crime in the name of forgiveness.
In the words of Shakespeare, “lawful mercy is nothing kin to foul redemption.”
The acquittal of the guilty is as damaging to society as the incarceration of the innocent.
Recent events all over the country are showing signs of the breakdown of law and order. This should not be allowed to deteriorate any further. Law enforcement officials should not be abdicating their professional responsibility in the name of reform.
Experience shows that neglecting laws unenforced for a while leads to disorder, just like Shakespeare highlighted in his play, and is soon followed by a campaign of law and order.
When law enforcement is done through a campaign, what I have in mind here is best expressed in the Amharic word zemecha, roughly translating to campaign, instead of through regular law enforcement channels and mechanisms, more often than not, human rights abuses are committed.
The age-old paradox between justice and mercy is facing the country. It is a delicate balance. The government had leaned too far on the side of justice in the past. It seems to be falling out of balance on the side of mercy now. There is a need for correction. Even the church acknowledges that misplacedindefinite mercy can be an abdication of the commandment for justice.
Writing in the Ecclesiastical Law Journal, Thomas Schuller says, “Charity without justice is not charity, but a counterfeit, because charity itself requires that objectivity, which is typical of justice and which must not be confused with inhuman coldness.”
The first show of “Measure for Measure” was performed in 1604 for English King James I, who was the successor of Queen Elizabeth and a monarch with a keen interest in the problems the play tries to address, according to academic Roberta Linciano.
James I was the author of a book that illustrated his theory of royal authority, describing how the king’s discretion was to serve to mitigate the law when it was ‘doubtsome or too rigorous” and when its severe enforcement could create an evident injustice.
Since absolute justice would lead to society’s destruction and unconditional mercy to its total corruption, between these two extremes, James I recommended the golden mean rule, “use justice, but with such moderation, as it turns not in tyranny.”
It is something that was written a very long time ago, but it is a timely lesson for present-day Ethiopia.
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