Dustin Houchin: Taking a closer look at questions of justice and mercy

“Justice tempered by mercy” is a phrase I sometimes hear used by speakers at legal events.

It comes from John Milton’s epic poem “Paradise Lost,” which is an account of the fall of man from the Bible’s book of Genesis.

In the poem, after Adam and Eve eat from the tree of knowledge of good and evil, God beckons his Son. God directs the Son to go to the Garden of Eden to punish Adam and Eve. Before leaving, the Son says:

“I go to judge

On earth these thy transgressours; but thou knowest,

Whoever judged, the worst on me must light,

When time shall be; for so I undertook

Before thee; and, not repenting, this obtain

Of right, that I may mitigate their doom

On me derived; yet I shall temper so

Justice with mercy, as may illustrate most

Them fully satisfied, and thee appease.”

If the point of legal speakers quoting Milton is to offer actionable advice for judges, or if it is taken as actionable advice by the judges, then it needs further examination.

Questions of justice and mercy arise most commonly in criminal cases, particularly at sentencing hearings.

Justice is what the law outlines. It is the application the sentencing parameters the democratically constituted legislature has adopted.

Mercy is outside of that. Mercy is a compassionate forbearance shown to an offender. Legal philosopher Jeffrie Murphy elaborates on the common definition in his book “Forgiveness and Mercy,” stating:

“It is never owed to anyone as a right or a matter of desert or justice. It always, therefore, transcends the realm of strict moral obligation and is best viewed as a free gift—an act of grace, love or compassion that is beyond the claims of right, duty, and obligation.”

In the context of a criminal sentencing, mercy would arise where the judge weighs the aggravators and mitigators and determines a just sentence according to the law, then departs from that sentence in a show of leniency and compassion to the defendant or his family.

As tempting as it sounds for powerful court officials to embrace mercy, it is outside of the law to do so.

Murphy again:

“If mercy requires a tempering of justice, then there is a sense in which mercy may require a departure from justice. Thus, to be merciful is perhaps to be unjust. But it is a vice, not a virtue, to manifest injustice. Thus, mercy must be, not a virtue, but a vice—a product of morally dangerous sentimentality. This is particularly obvious in the case of a sentencing judge. We (society) hire this individual to enforce the rule of law under which we live. We think of this as doing justice, and the doing of this is surely his sworn obligation. What business does he have, then, ignoring his obligations to justice while he pursues some private, idiosyncratic, and not publicly accountable virtue of love and compassion?”

It is ironic, then, that those advocating justice tempered by mercy quote “Paradise Lost.” In Genesis, as described in the poem, God makes a rule, a law if you will, for Adam and Eve. As Eve says in the poem, “But of the Fruit of this fair Tree amidst The Garden, God hath said, Ye shall not eat.”

Satan, as the serpent, persuades Eve to eat the fruit. He does so, in part, by telling her he has eaten the fruit himself and it has made him wise like God. The serpent tells Eve that if she eats the fruit, she will have the knowledge of good and evil like God. He persuades her she can substitute her own wisdom for God’s commandments. In so doing, Eve brings about the fall of man.

This is what a judge is doing when he tempers justice with mercy. He is substituting his own wisdom for the legislature’s commandments, and risks the fall of the law. Relying on a singular judge’s idiosyncratic sentimentality, rather than the law, obliterates the law. It replaces the conscience of the people with the conscience of the lone judge. It reduces the legislative process to the feelings of a particular individual.

Words matter in the law. In fact, the law is words. Distinguished legal speakers must be careful what they say. “Justice tempered by mercy” is a beautiful phrase, but in Milton’s poem, it was uttered by the Son of God. The Son is not substituting his wisdom for God’s law when he acts mercifully; he is God’s law. God has the power to grant mercy; democratically elected trial court judges do not.

If you tell a judge to temper justice with mercy, you are not the Son in Milton’s poem; you are the serpent.•

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Dustin Houchin is the Washington County Superior Court judge in Salem. He also is the publisher of Judex, a Substack newsletter on conservative judicial issues at judex.substack.com. Opinions expressed are those of the author.