Mercy as the Driving Force of Reconciliation

Reconciliation thrives on powerful gestures. And these can often be unplanned, surprising, spontaneous. At least, this is how Willy Brandt later described falling to his knees on December 7, 1970, at the memorial to the Warsaw Ghetto Uprising. The decisive moment of reconciliation with Germany’s largest eastern neighbor was not the treaty signed with Poland that same day, but the wordless, moving gesture of genuflection that touched the whole world. That other gesture of reconciliation – with Germany’s largest western neighbor – came as just as much of a surprise and fits into a similar category: Helmut Kohl and François Mitterrand holding hands during a ceremony to honor the dead at the Douaumont Ossuary near Verdun, on September 22, 1984. This gesture too was unplanned, and it remains unclear to this day which of the two took the other’s hand.

Reconciliation is not plannable, not something that can be “produced”. Of course, the path for it has to be prepared, and that often means years of difficult work. But the key moment in which reconciliation takes place is experienced by both sides as a gift, by those who are forgiving as well as by those who are being forgiven.^[1] It is not part of the event program, it is not an item on the agenda. The peculiarity of this phenomenon may be one reason why, in the history of Christian theology, forgiveness and reconciliation have always been assigned to the domain of grace, and within this to the virtue of mercy.^[2]

However, as is so often the case in the history of ideas, difficulties arise when one single aspect is overemphasized and others are neglected. In modern discourse, mercy has been severely called into question. The main lines of inquiry as to its usefulness are as follows:

1. Mercy signals an inherent difference of status between the forgiving and the guilty, the helping and the needy. The merciful person acts “from above”. Does this not mean that forgiveness tends toward a degrading condescension, which is ethically reprehensible?^[3]
2. Mercy is regarded as superior to justice and law. It seems to be something like a “higher kind of justice”: “mercy before justice”, as the saying goes. Yet if that were so, justice and law would have to be understood as unmerciful and therefore ultimately inhuman. Can this really be true?
3. Linked to this, many people generally regard mercy (and not just forgiveness!) as being “supererogatory”, i.e., something more than what is strictly required. In this view, mercy can never be obligatory, while obligations belong to the realm of justice. However, this would mean understanding justice in a way that leaves no room for discretion. We would have arrived at a rather legalistic, pedantic understanding of justice.
4. Finally, it seems to be an intrinsic feature of mercy that it takes place face to face, in a relationship between two people. It seems to eschew any attempt to change structures. For this reason, “merciful humanity, with its spontaneity, is increasingly suspected of having a random effect that does not go far enough in terms of shaping social structures.”^[4]

These objections are discussed and refuted individually below. This will lead us to a new concept that brings the two virtues of mercy and justice closer together, and sees the practice of forgiveness as a free giving of both.^[5]

1) Mercy “from above”?

Anyone who helps the needy or forgives the guilty is indisputably in a position of power. Someone who is seriously injured, or starving almost to death, or homeless in the freezing winter is not able to assist themselves – they are dependent on the help of others. Similarly, someone who bears a heavy burden of guilt cannot find forgiveness from within themselves; they need the forgiving word of the party who was wronged. Thus, the power imbalance between the person offering mercy and the person receiving it cannot be argued away. However, this imbalance can be neutralized mentally if the “powerful” person imagines themselves in the position of the powerless one. Saint Gregory the Great, for example, insisted that humility (humilitas) must accompany pity (pietas) so that the helper does not become arrogant towards the poor (Gregory the Great, Moralia XXI, xix, 29). In general, according to him, all the virtues need each other – if even one is missing, the others are impaired and are not true virtues anymore (Gregory the Great, Moralia XXII, i, 2).

For Gregory, it seems clear that ostensibly merciful action “coming down from above” firstly represents a real danger, and secondly is not true mercy. To arrive at this ethical assessment, he does not need any modern ideas about equality within a framework of human rights. For him, it is quite sufficient to take the Christian message of love seriously, and with it the Golden Rule which Jesus spelled out in the Sermon on the Mount as being the measure of all ethics (Matthew 7:12). After all, anyone who helps others may find themselves in a situation where they are dependent on the help and mercy of others.

Of course, the question of how to handle this de facto power imbalance responsibly is also a question in international politics. If victorious states want to achieve lasting stability after a war, they will have to help defeated countries to get back on their feet. And where the defeated states were the aggressors, the victors should also grant them forgiveness if they ask for it. Ideally, they should not let their position of power show, but instead act with the greatest possible respect toward the defeated. In part, this is a matter of political prudence. Further humiliation of a nation that is already reeling from defeat would only sow the seeds for the next war. But it is mainly a moral question: Even a nation that has incurred heavy guilt does not lose the right to be treated with respect. A state may (temporarily) refuse the former aggressor’s request for forgiveness. However, it may not forgive in a way that flaunts its apparent moral superiority.

2) Mercy above justice?

The common understanding of the relationship between mercy and justice – both in the vernacular and in theology – is that the former trumps the latter. “Mercy before justice” is a commonly held, often used and rarely questioned concept. And according to the classical theological view, the Bible’s “call for mercy outweighs the cry for justice”.^[6] Therefore: “Mercy is the most perfect realization of justice.”^[7]

Now, the biblical testimony is by no means so clear-cut as it is claimed here. The classical preeminence of mercy is really due to Thomas Aquinas’ architecture of virtue ethics. In this order, mercy is a godly virtue as it is an expression of love (Thomas Aquinas, Summa Theologiae, II II, q. 30), whereas justice is “only” a cardinal virtue (Thomas Aquinas, Summa Theologiae II II, q. 47). Thomas attempts to organize the virtues according to Gregory the Great’s model – which was not actually intended for this purpose, and is therefore stretched too far. Gregory’s idea, in itself ingenious, was to state that the philosophical virtues – such as justice – must be permeated by the divine gift of mercy. In other words, every virtue, beyond its necessary rational structure, must be supported at its core – as its golden center – by trust (faith), magnanimity (hope) and devotion (love). This applies to mercy as much as it does to justice. I therefore argue that we should abandon Thomas’s scheme of virtues and give up the hierarchical notion of the superiority of mercy over justice.

Thus, like most ethicists, I espouse an inclusivist theory of virtue: If one virtue is realized, then so are the others. If one virtue is not realized, then neither are the others. For justice is by no means a more rational social principle or a more rational virtue than mercy. Both are equally driven by thoughts and feelings. We can see this currently in the dispute over the level of compensation payments for victims of sexual abuse. Some argue with many good reasons for five-figure sums, as was usual until a few years ago. Some argue with equally good reasons for six-figure sums; and reasons are even put forward for seven-figure sums. What is ultimately “felt” (!) to be appropriate by the courts and the general public is a question not of rational calculation, but of highly emotional processes of empathy with all (!) parties involved – even the offenders. Virtues, like social principles, can thus never be expressed in concrete terms without a good measure of emotionality (and therefore also subjectivity).

But what does the deeply rooted maxim of “mercy before justice” actually mean? In the context of egalitarian societies, it certainly cannot mean the arbitrary act of an autocratic ruler who “pardons” some offenders at will – even if this still exists in some democratic states as remnant of pre-democratic times. But even in earlier centuries, the maxim usually meant something different: namely, what is referred to in ethics by the term epikeia. Epikeia, Latin aequitas, appropriateness in English, describes the will to follow the spirit of a law and not the letter. This is based on the insight that an individual situation may be different from the normal case that a commandment seeks to regulate. When Jesus heals the sick on the Sabbath, for Him it is not mercy taking precedence over justice – and so it is also not an expression of an arbitrariness placing itself above the law. Rather, it is a consequence of the correct interpretation of the commandment to remember the Sabbath day. “The Sabbath was made for man, and not man for the Sabbath” (Mark 2:27), i.e. it is a lawful act. Epikeia is part of justice, not of mercy (Thomas Aquinas, Summa Theologiae II II, q. 120). Courts therefore have a duty to assess all the circumstances of an event and to judge according to the meaning, not the letter of the law. The fact that we sometimes find an incorrect classification of epikeia in the history of theology may have to do with the Gospel of Matthew, which in two places refers to actions of epikeia as “mercy” (Matthew 12:7, 23:23). After all, the evangelist was not a moral theologian.

3) Is mercy supererogatory?

Is mercy in principle supererogatory, i.e., can acts of mercy be described as something done voluntarily that goes beyond what is due? And conversely, do all duties in the narrower sense belong to the realm of justice? This distinction, which has shaped moral theology from Thomas Aquinas to the present day, is not so simple. In the New Testament, there are works of mercy that we must classify as obligatory, such as the assistance given by the Good Samaritan to the man who had been attacked by robbers (Luke 10); and works of justice (righteousness) that go far beyond duty, such as visiting the sick or prisoners who are already in an environment that cares for them (Matthew 25). On the other hand, there are works of mercy that are not obligatory, such as forgiving guilt (Luke 15), and works of justice that are obligatory, such as providing food for the hungry and drink for the thirsty (Matthew 25).

We should therefore not tie the question of supererogation to one of the two virtues, mercy or justice, but to concrete actions. For only actions can be obligatory or voluntary. It is obligatory for the nearest person to provide first aid in an emergency. It is voluntary for a person harmed by a culpable act to fulfill the offender’s request for forgiveness.

4) Mercy and justice – two sides of the same coin

For this reason, I now make the following proposition:I understand mercy and justice to be two equally important virtues that shape people, and principles that shape structures. Both can specify both obligatory and supererogatory actions. On the other hand, I consider forgiveness and reconciliation to be concrete actions (and not virtues) that are both merciful and just under certain conditions, but are by no means obligatory. They are always a free gift from the person who forgives or reconciles. I will develop and explain this proposition below.

Let us first attempt a precise definition of mercy:

Mercy is the resolute will to put oneself mentally or emotionally in the position of another creature in need of help or forgiveness, and to help or forgive them individually, but also structurally, where necessary and possible.

If we place the established definition of justice alongside this, it quickly becomes clear how the two virtues relate to each other:

Justice is the constant will, within the scope of possibilities, individually but also structurally, to give to each their own^N and to demand from each their own^A, including in the context of forgiveness and reconciliation.^[8]

Justice sees the bigger picture, the overall context, the needy and the able as well as both (!) needs (here referred to as “their own^N”) and abilities (here referred to as “their own^A”). Mercy, by contrast, focuses entirely on the needy and their needs. Justice needs mercy, because “their own^N” can only be recognized in mercy. Thus mercy is a constitutional part of justice. It is also its most important touchstone, as it ensures that the priority option for “the poor”, i.e. those in need (of help or forgiveness), is exercised. This option is inherent in justice, but is easily lost from view in the everyday interpretation of justice, which is usually ability-oriented.

We can also say that mercy looks mainly at the asymmetries that exist between “normal people” and those in need. It attempts to overcome these asymmetries by lifting up those in need through active help or active forgiveness. Justice, by contrast, looks at all asymmetries – those between “normal people” and the needy, but also those between several “normal people” and those between the powerful or the rich. It attempts to overcome asymmetries in two directions. It therefore goes further than mercy, but must always take care that it does not lose sight of those in need.

5) Mercy as part of justice

These considerations show that it is a fallacy to understand mercy primarily or exclusively in terms of individual ethics, and justice primarily or exclusively in terms of structural ethics. Mercy must be translated into (legal) structures just as much as justice.^[9] And this does in fact happen in the most diverse areas of society – despite all the observations above about modern society being more concerned with justice than with mercy. Here are just a few examples:

• Criminal law in modern democracies, as established in the reforms of the 1970s, is an attempt at merciful justice – at least in theory. Its goal is to resocialize offenders, even those guilty of the worst crimes. “Life imprisonment” must not be a lifelong sentence, even if populists often demand it. Instead, a humane penal system should ensure that every prisoner has a realistic prospect of being able to leave prison alive.
• Indiscriminate impunity is unmerciful. No one needs to learn this more than the church itself: “The widespread absence of church discipline is […] a misunderstanding of what mercy […] means.”^[10] Simply transferring priests who have sexually abused children or young people to another parish is utterly unmerciful to the victims, but does not help the perpetrators either.
• Mercy also means caring about the victims. This is another blind spot in church practice: In confession, in cases of sexual abuse, in pastoral care for prisoners, etc., the church looks one-sidedly at the offenders. That is unjust and unmerciful. The same can be observed in secular criminal law: It is only since the 1970s, with the founding of the “Weisser Ring” organization, that the victims of crime have received greater attention.
• The modern state also features structures of mercy for those in need through no fault of their own: There is a right to a minimum wage, a right to a basic level of income support, a right to insolvency, debt relief and much more – just like in the Old Testament. Justice can be very merciful.

In this regard, Magdalene Frettlöh points out that forgiveness does not replace or overcome justice, it is an intrinsic element of justice. Forgiveness is not “mercy before justice” or “mercy instead of justice”, it is “mercy in and through justice”.^[11]

6) Forgiveness as a free gift of justice and mercy

We have seen how important it is to distinguish between the attitude of mercy and the act of forgiveness. Forgiveness means the complete giving away of all justified anger toward and reservations about the culpable person. It is the consequence of both justice (justness, cf. Matthew 1:19) and mercy. For its part, mercy, as defined above, is the resolute will to put oneself mentally and emotionally in the position of another person in need of help, and to help them individually, but also structurally. In other words, to forgive them where necessary and possible.Mercy and justice together form the basis of genuine forgiveness.

Can forgiveness be demanded? Clearly not.^[12] But why not? This can be explained from various angles:

• From the perpetrator’s perspective: Because the guilty party has harmed others, and particularly because the psychological damage can never be completely undone, the guilt can never be fully “paid off”. Any right or entitlement to forgiveness could only come about if all the consequences of the culpable act had really been made good. As this cannot happen, there is no entitlement to forgiveness.
• From the injured party’s perspective: Because forgiveness is only possible if the forgiving person has experienced a considerable degree of inner healing and release, but this healing cannot simply be “done” or forced. Mercy – a natural prerequisite for forgiveness – can be practiced, acquired, “done”. We can learn to feel compassion (to a certain extent). However, forgiveness requires processes of personal healing that go beyond compassion for the guilty person. These cannot be learned, and (beyond therapy and other types of assistance) we can only allow them to happen to us.
• In systemic terms, from society’s perspective: An obligation or a strong expectation to forgive would impose a further burden on the injured person or injured population (group), instead of relieving them of the burden. That would be unjust and absurd!^[13] No, the “buck” must stop with the guilty person or party. It must not be passed.

7) Mercy as the driving force of reconciliation

Forgiveness, where it happens, is therefore “a present from heaven” – a gift. This is where Daniel Philpott’s politological considerations come in.^[14] He sees reconciliation between social groups or nations as a concept of justice that is driven by mercy. However, Philpott identifies in current debates two concepts of justice, of different reach: The first is the concept of justice in “liberal peace”. In this concept, coming to terms with the past takes place more or less exclusively via the legal process, i.e. via (criminal) courts. Yet this cannot heal the wounds of a dictatorship or civil war. Philpott therefore argues for the second, wider concept of justice, which embeds justice in an ethic of political reconciliation. This addresses the wounds of the affected people and aims to heal them. It includes the consideration of human rights and the understanding of liberal peace, but goes beyond this. In this expanded concept of justice, Philpott sees an approach that is primarily offered by religions. In this model of justice, mercy can be thought of as reconciliation’s animating virtue.

On the whole, I think Philpott’s model is correct. Reconciliation requires more than only the restoration of a just state of affairs, as important as that is. Reconciliation requires more than official arrangements to punish the perpetrators and compensate the victims. It needs to be worked out on many levels: historically, by bringing all the horrors to light, including those committed by those who are already dead. Ethically, by examining the injustice in all its depth. Psychologically, by supporting and promoting processes of healing. Socio-pedagogically, by opening up a communication space in which perpetrators and victims who are willing to seek reconciliation can talk to each other in a protected environment. Ritually, and in a broad sense religiously, by establishing a culture of remembrance with symbols and commemorations.

On some of these levels, the established religions can be helpful, as Philpott points out. In any case, however, there is a need for social movements that we cannot “do” – we can only be open and ready for them. Ultimately, we need a culture of reconciliation that grows from within, a culture that Ernst-Wolfgang Böckenförde once said the state needs but cannot create itself:

“The liberal, secularized state depends on prerequisites that it cannot guarantee itself. This is the great risk it has taken for the sake of freedom. It can continue to exist as a liberal state only if the freedom it grants to its citizens is regulated from within, based on the moral substance of individuals and a certain homogeneity of society at large. However, it cannot seek to guarantee these internal regulatory forces by itself, i.e., with its own means such as legal compulsion or authoritative decree. If it did so, it would give up its liberal character, and – on a secularized level – fall back into the claim of totality it once led the way out of, during the times of the confessional civil wars.”^[15]

Decades later, Böckenförde explained his now famous quote as follows: “From the state’s point of view, the liberal order needs a unifying ethos, a kind of ‘public spirit’ among those who live in this state. The question then is: What is the source of this ethos that the state can neither compel nor put in place by sovereign power? One may say: First of all, it is the practice of culture. But what are the components and constituents of this culture? Then we do indeed arrive at sources such as Christianity, the Enlightenment and humanism. But not automatically at every religion.”^[16]

Reconciliation is not a planned item on an agenda, as I mentioned at the beginning with the examples of Willy Brandt kneeling at the Warsaw Ghetto memorial in 1970, and Helmut Kohl and François Mitterrand holding hands at Verdun in 1984. It must grow from within, deeply rooted in a culture of mercy. Only in this way can mercy become a driver of reconciliation. But when it does, then “miracles” can happen.