Martha Minow | W. W. Norton | 2020

Reviewed by Rabbi Dr. Stu Halpern

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“Forgiveness encourages people to take the perspectives of others, to understand the larger pressures and structures affecting others’ actions, and to prioritize creating a shared future over holding on to resentments from the past,” writes Martha Minow in her When Should Law Forgive? Her fascinating study seeks to unpack the possibilities of forgiveness in the contemporary legal realm through an examination of forgiving youth, forgiving individual debt, and pardons. In the book’s introduction, Minow, a current university professor at Harvard Law School and its former dean, raises the volume's framing questions, including by what means law can forgive, how legal forgiveness differs from individual forgiveness, and what the limits of legal forgiveness should be. When it comes to forgiveness of young people’s crimes, Minow is inclined towards restorative justice, in which “the wrongdoer provides services or works to repair the damage he or she has caused.” Most complex are former child soldiers, since, as Minow notes, determining the extent of responsibility of those who become soldiers in their youth is quite difficult. Should they be forgiven because of their age? Should they be viewed solely as victims? What if they voluntarily joined rebel groups without being coerced or abducted? Perhaps, she suggests, “a new concept could be devised to acknowledge the complexity of individuals who have been both victims and perpetrators, who were abducted as children and then abducted other children.” International law has left these policies to individual nations, and the U.S. has given states individual discretion. As she cautions, potential non-prosecution policies would not amount to forgiveness, and forgiveness by definition would need to require an acknowledgment of wrongdoing. Rather than offering blanket immunity, Minow suggests “giving a means to earn a livelihood and obtain medical assistance, having opportunities to denounce perpetrators safely and to document their departure from militia groups, and undergoing mediation with community and family members… use of the arts can also help develop empathetic connections, discover and express remorse and self-acceptance, and express desires for community understanding and acceptance.” Alongside Rabbi Lord Jonathan Sacks’ argument that “the biblical institutions of the Sabbatical and Jubilee years [were] created specifically because of the danger of people being trapped by debt,” Minow cites Shakespeare, Margaret Atwood, and the U.S. Constitution to inform her analysis of the possibilities of debt forgiveness. “When people borrow to build a business or renovate a house,” she writes, “they create value for the society as well as for themselves. For inventors and entrepreneurs, debt accompanies creativity, and debt forgiveness can encourage more creativity.” Noting the recent history of national and corporate debt forgiveness, Minow laments the absence of the encouragement of individual loan forgiveness, particularly student debt. As she concludes, “legal rules can and should preserve the governmental, economic, and communal environment that encourages risk-taking, acknowledges the realities of impoverishment, and recognizes the participation of actors on many sides of transactions in a world of risks, enterprise, and chance… when a government itself imposes fines and fees that make individuals into debtors—and threatens imprisonment for nonpayment—that government is blameworthy in ways that are difficult for any to forgive.” In her discussion of pardons and amnesty, Minow notes that in 1986 President Reagan and Congress granted amnesty to 2.7 million undocumented immigrants, allowing them to apply for jobs, open bank accounts, and buy homes. While analyzing presidents’ more ethically questionable pardons (Bill Clinton’s pardon of Marc Rich and Donald Trump’s of Joe Arpaio, to cite two examples), she notes that conditional pardons, commutations, and expungements may reduce incentives for others to break the law, because unlike full pardons, they limit forgiveness. Citing Justice Anthony Kennedy’s calling for a revised pardon process because “a people confident in its laws and institutions should not be ashamed of mercy,” Minow advises forgiveness within the law “exercised wisely and fairly,” in a way that will strengthen the law and justify citizens’ faith in it. Ultimately, as the book concludes, forgiveness is a way of beckoning towards the future, as opposed to dwelling too long in the past. The possibilities of both individuals and the law to forgive are thus a crucial element in considering ways for a more promising tomorrow. To read more Straus Center book reviews, click here. You can learn more about the Straus Center and sign up for our newsletter here. Be sure to also like us on Facebook, follow us on Twitter and Instagram and connect with us on LinkedIn.