To what extent is mercy as depicted in Les Misérables and the Bible compatible to law, in the context of Hong Kong’s criminal justice system?
1. Introduction
Beyond their literary artistry, the Bible and Les Misérables are known for their portrayal on humanity, and remain two of the most influential literary works to date. With regards to their critical insight in punishment and forgiveness, this essay seeks to answer the question: To what extent is mercy as depicted in Les Misérables and the Bible compatible to law, in the context of Hong Kong’s criminal justice system?
It does so by first examining Les Misérables and the notion that one may find mercy to be antagonistic to the rule of law. It then analyses how mercy completes the law in the Bible. Subsequently, it contends that the notions can co-exist under different forms of justice: Where justice is concerned with a positivist notion of fairness, law and mercy are not compatible because the discretionary nature of mercy weakens the maintenance of social order. Contrarily, law and mercy converge under a textured, moral-centric understanding of justice that focuses on one’s acceptance of the moral principles behind the law. Lastly, it assesses the claim that both notions are not mutually exclusive in our criminal justice system. It does so by examining Hong Kong’s criminal sentencing policy, which suggests that while mercy is an effective guidance to morality, it is not a panacea, but an alternative that balances the vigilant application of the law.
2. Law and mercy as incompatible
Through the lens of Javert in Les Misérables, law and mercy are incompatible as mercy weakens the purpose and enforcement of an efficient criminal justice system.
Before assessing this argument, it is important to first assess the significance of character Javert. Javert is the embodiment of strict application of the law who acts without mercy and rigidly enforces the law. He would argue that rules and laws must be abided to effectively maintain social order. When prostitute Fantine insulted the Mayer, Javert imposed a six month sentence on her as a punishment. As she begs for his mercy, Javert "turned his back away" from her both figuratively and literally. To Javert, imposing punishment and drawing definite boundaries, deters Fantine from committing the same crime again. The effect of a rigid criminal justice system is also highlighted by Fantine’s claim that she is "not afraid of the Mayor" but is "truly frightened" of Javert, the enforcer of the laws. Strict enforcement and fear effectively deter criminals from committing wrongdoings again. This notion supports Javert's contentions that law allows for punishment, and punishment deters crime. Today, preventing harm to society and deterring people from bringing harm is of utmost significance in our criminal justice system, and one may argue that a strict, merciless society is an effective way in accomplishing so.
Therefore, Javert would argue that mercy is incompatible to the law, as it malignantly affects its ability to enforce the law strictly by leaving leeway. He describes kindness as an "ill-begotten" means to "disorganize society". To him, mercy opens up the legal system to discretionary justice, which can result in inconsistencies of the law. Javert not only finds this an unfair outcome but "total destruction of himself, the law and the society".
While his beliefs seem rather extreme at first, they are not without merits. The criminal justice system law highly concerns precedent and consistency and embraces the rule of law. Under the rule of law, no one is above the law, and it is not for "a man like a Javert to set aside… the dictates of the written law". Suppose Javert decides to Fantine go with mercy. In a criminal justice system that values abidance to precedents, the fact that Javert can arbitrarily decide on what to do implies that he is not subject to the law, and therefore above the law. This would thus erode the rule of law, considering under the rule of law, no one is above the law. Therefore, one may claim that the discretionary nature of mercy renders the criminal system an inefficient one as it is inconsistent.
Further, laws are codified and executed to govern social behaviour. Enforcing Laws with mercy and discretion may, therefore, be seen as laws which weaken the cardinal goals of its criminal justice system. Thus, in support of Javert's strict and uniform view of the law, one would argue that mercy does not correspond to the law, as mercy attracts inconsistencies in and weakens the criminal justice system.
3. Law and mercy as compatible
While the previous suggests that law and mercy are incompatible, one may alternatively argue that mercy not only corresponds to but also reinforces the law by completing one's manifestation of moral values, which are embedded in the law. From the story of King David to the parable of the Prodigal Son, the Bible supports that those treated with mercy do not merely practice the law – they learn to accept and embrace the law.
The story of King David serves as a compelling account of how mercy induces and completes one's understanding of the law. As a man who is moved by lust, Kind David impregnates the wife of his faithful soldier Uriah, Bathsheba, whom he proceeds to murder during a battle. Under today's criminal justice system, David would be a murderer who also committed adultery and punished heavily. He disobeyed the laws and "despised the word of the Lord" and did "what is evil in his sight". Eventually, David received forgives from God despite the temporal punishment of his child's death. Upon receiving forgiveness, he was also granted another son, Solomon, by God. Through the eventual act of mercy, Kind David was able to achieve the revelation of the truth of forgiveness, restored his sense of morality and his behaviour. Therefore, mercy helps Kind David not only realise his wrongdoings, but undergo a transformation that enables him to internalise on the law.
Apart from the story of Kind David, the parable of the Prodigal son provides insight on how mercy completes the law. Upon finding himself chastened after taking his father's inheritance and squandering in the wild, a young son decides to go home and seek his father's mercy. While the son does not commit any crime explicitly, the story "borrows heavily from a legal repertoire": The young son is an offender who pleads for mercy from his father, the enforcer of justice who welcomes the son with open arms. This juxtaposes the older son, who represents the "wider law-abiding community" and centres directly on the justice of his father's actions. He angrily complains at the father for "kill[ing] the fattened calf" for younger son who he finds undeserving of mercy.
The law often distinguishes the right from the wrong, yet in the parable, it was the father's forgiveness that helps the son realise what the right thing is, by reaffirming his self-actualization. Specifically, the son's soliloquy is predicated on the him having "come to himself" (eis heauton de elthōn). This is an idiom often used to denote a thoroughgoing change of heart caused through the "acceptance of moral blame, recognition of the impact of one's behaviour on others", and more importantly, the mercy of others. This helps one go further than the compliance with social expectations, by reinforcing moral standards through self-actualization. Mercy and the law are therefore compatible in a way that mercy prompts one to consider the depths of one's depravity and induces one's internalization of the law.
4. Law and mercy as both incompatible and compatible
This section seeks to dissect and explain the notion that law and mercy can be both incompatible and compatible, under different forms of justice. Specifically, these two forms of justice are called a thin sense of justice and a thick sense of justice.
4.1. Defining the terms
A thin sense of justice refers to justice in the context of "goodness, badness, rightness, wrongness, and obligatoriness". It refers to the form of justice that emphasizes codified rules and "positivistic, rule-governed concepts". It echoes the rigidly enforced justice sought by Javert.
On the other hand, a thick sense of justice refers to justice to "the full panoply of human moral… and emotional aspirations." It relates to the human experience more than "approaches that confine justice to technical consideration of laws, rights and freedoms". It allows us to hold the law and mercy together in the domain of criminal justice, in a way that it encourages restorative justice in pursuit of compliance with moral standards.
4.2. A thin form of justice
Under the thin notion of justice, law and mercy are not compatible, as the functions of positive laws are antagonistic to the discretionary nature of mercy. In a criminal justice system, laws must achieve retribution, deterrence, incapacitation, and rehabilitation. Some, if not most, of these goals attempt to prevent the perpetrator from committing further wrongdoings by evoking immediate reactions of fear and shame. Shame, in particular, does not focus on one's moral responsibilities, but the discrepancy between one's ideal self and one's actual self.
At the start of Les Miserables, the law punishes and dehumanizes Jan Valjean. He feels shameful because he is not who he wants to be - a street rat whose life does not matter. This experience deters him from getting caught again. Surely, drawing clear lines of demarcation can effectively maintain social order. If Jean Valjean were forgiven right from the start, he would not be deterred from recommitting his crime. In that case, one would follow that mercy undermines the rule of law, as it departs from a positivistic system.
4.3. A thick form of justice
However, as justice requires deliberation and vigilance, is also benefits from mercy and forgiveness. Therefore, one may argue that a thicker notion of justice holds justice and mercy together in a restorative sense, by facilitating one's recognition of morality and internalization of moral principles. Unlike the thin notion of justice, this version of justice seeks to induce one's feeling of guilt as opposed to shame. Guilt is a "negative moral self-evaluation" involving one's behaviour. This one senses a discrepancy between one's moral self and actual self, and this sense of discrepancy is often induced by mercy.
As previously discussed, punishment deters Jean Valjean from committing the crime again. Nevertheless, under these circumstances, he still believes he did what he did for the right reasons. It was not until the bishop's forgiveness does he undergo a true behavioural transformation. Soon after the bishop's mercy, Jean Valjean was overwhelmed with "the weight of his bad conscience", and called himself "miserable", a word that connotes wretched behaviour. Through this feeling of guilt-induced by mercy, he can internalize and truly understand what he could not comprehend through mere positive laws and punishment - morals.
To Jean Valjean, mercy induces the actualization of his transgressions and produces guilt. Through guilt, Jean Valjean was able to achieve a thicker and restorative form of justice. Therefore, one would argue that a thicker notion of justice holds justice and mercy together as the domain of criminal justice in a restorative sense; it goes one step beyond one's recognition of morality.
However, this is not to say that our society should function under the thick form of justice alone, or that one of the two notions of justice should reign supreme. In fact, one may further suggest that both forms of justices serve different purposes in our criminal justice system. Under such view, the criminal justice system should function under the thinner version of justice, due to practical concerns of maintaining social order and the rule of law. The thicker, more textured view of justice should then serve as a guide to balancing the "incessant orgy of retribution" when executing the thin version of justice.
5. Applying forms of justice to Hong Kong’s criminal justice system
As discussed above, law and mercy are both compatible and incompatible depending on the goals and forms of justice. This section seeks to expand the idea that both forms of justice can co-exist in our current criminal justice system by serving different roles. It does so by examining this theoretical notion under Hong Kong's sentencing practices.
With regards to recent updates through HKSAR v Ngo Van Nam and HKSAR v Abdou Maikido Abdoulkarim, persons charged may be granted a discounted sentence if they plead guilty during or before the proceedings, subject to the court's overriding discretion. For instance, if one pleads guilty on the first day of trial, the court may grant a 20 per cent discount from the starting point for sentence. Afterwards, the discount will be less than 20 per cent and so on.
While this principle mainly functions to guarantee judicial efficiency, it is also an attempt to strike a balance between mercy and the law, by giving one a chance to seek mercy and "come to himself", as the younger son did in the parable of the Prodigal Son. Also, this does not entirely excuse the behaviour of the person charged and imposes the necessary means and punishment to maintain social order. One may, therefore, argue that the sentencing principle reflects the theorized dynamic between the forms of justice discussed above because it introduces morality while operating under a thinner sense of justice. The possibility of limited, but merciful outcome echoes the idea that "forgiveness, like mercy, must be infused into, be part and parcel of the very concept of justice."
However, while some may plead guilty due to a genuine feeling of guilt, some may do so to take advantage of the system and plead guilty as a tactical move to escape from a heavier sentence. Therefore, there is a delicate balance between exercising judicial discretion and maintaining social order by preventing abuses of this discretion. Therefore, the balancing exercise of law and mercy is a continuing practice.
6. Conclusion
This essay questions the extent to which mercy is compatible with law in the context of Hong Kong's criminal justice system. While Les Misérables highlights how mercy may weaken the rule of law by disturbing social order, the Bible also shows how mercy may induce one's internalization of morality and acceptance of the law. Through literary interpretation and legal application, this essay is of the view that mercy is compatible to the law insofar as it serves to induce one's acceptance and internalization to the law. Law and mercy can be both incompatible and compatible under different domains of the criminal justice system by serving various roles. This involves a delicate balance between exercising judicial discretion and maintaining social order by preventing abuses of the criminal justice system. Ultimately, it suggests that our criminal justice system should give ample consideration to black-letter laws and codified legal principles, and refer to a thicker form of justice as an essential guide and but a manual.
