Contemporary calls for relief, aid, or charity span numerous domains of care and increasingly exist in the absence of a rights-based model of justice, not as a complement to it. This troubling trend displaces demands for equal rights in favor of inegalitarian pleas for mercy.
My interest in justice and mercy stems partially from having worked as a refugee and asylum lawyer in the United States. Later, as a legal anthropologist, I sat in on murder cases in Iran’s capital Tehran over a span of a decade. A curious aspect of the criminal justice system that I sought to examine was the victims’ extreme right of retribution: in homicide and other major crimes, the victims’ immediate family members may seek justice in kind for harms done to their kin. In these cases, the victim’s family may also exercise what activists are increasingly referring to as another right: that of forgoing retributive sentencing altogether.
In this system, the entire negotiation or reconciliation process is extra-judicial and mostly unregulated. That does not mean that judiciary officials are uninvolved. They are involved at every juncture. The codes of criminal procedure impose an imperfect duty on all government officials to bring the parties to reconciliation in a settlement short of exacting retributive punishment. This legal and moral duty to forgive, without any formal guidelines for how to do that, has generated a cottage industry of forgiveness work in Iran. While forbearance constituted the legal term of art used in these judicial proceedings, my activist interlocutors referred broadly to their work as pertaining to forgiveness and as part of a broader ethic of mercy. If they saw forbearance as refraining from exercising a right, they considered forgiveness as an act of material and spiritual release from the burden of the wrongdoing. My interlocutors often used these terms interchangeably, along with mercy, a term that they said encompassed the other two.
The work of the social activists who I observed is also part of a broader attempt, perhaps a movement, aimed at changing the culture on the ground. These activists endeavor to do what they call the “cultural work” of making Iranian society as a whole feel more forgiving, more compassionate. They try to replace the initial emotional, and perhaps historically and culturally inscribed, urge toward revenge (of which retribution is already a diminution), to one of compassion, based on many practices grounded in layered local traditions and ritual practices. At all costs, they attempt to prevent the cases they are working on from becoming too mediated and politicized—key ingredients likely to turn the tide back to revenge seeking.
The larger goal of many activists, however, is to change the law. Short of that, they seek to change the cultural ethos to one in which forbearance is the norm and retribution the exception. Some recent changes to the laws, substantively and procedurally, make forbearance more appealing. Activists also enjoyed the singular feeling of elation when victims’ families agreed to forgo retributive sanctioning. Families who forgave received local and international praise. Individuals ranging from state officials to anti-death penalty activists would find common cause in public celebrations of forgiveness and mercy.
Jacques Derrida highlighted mercy’s manifold qualities through a single word he changed in Victor Hugo Jr.’s French translation of The Merchant of Venice. Derrida found Hugo’s term tempere (to temper) for “seasoning” wanting because it failed to capture the robust meaning that “seasoning justice” conveys in Shakespeare’s original phrasing. He proposed the term relever (to lift up) for its affinity with the term seasoning. Derrida’s consideration of a “relevant translation” of the quality of mercy adumbrates a divine power interiorized in individuals: mercy is “God-like” and translates “the theological into political.” Through their forbearance and forgiveness, my interlocutors likewise exhibited mercy’s divine yet material qualities.
Derrida’s methodical analysis depicts a certain richness in the quality of mercy and adds to the literature on mercy in law as a corrective to injustice or as the curbing of a deserved punishment. The analysis of how a seventeenth-century play lifts up justice through recourse to mercy, however formidable, leaves contemporary readers with a discomfiting, if not mistaken, sense of the power of mercy—particularly when it is projected onto international law and contemporary political arrangements.
In my years of research, one group showed particular disdain for the pervasiveness of mercy in Iranian criminal sanctioning: defense lawyers. They found fault with a system that turned their clients into supplicants while underwriting the political-theological dimensions of sovereign power. A simple retort by one defense lawyer put things into perspective for me: “My client has rights.” She asked, “Why should she be forced to beg for forgiveness?” Another added, “We want justice based on law, not mercy,” separating human-made laws from divine mercy. Even if these boundaries were artificial, the lawyers were signaling something significant. The rule of law that accords rights according to consensus is opposed to the discretionary force of mercy handed down from on high.
Thus, for these interlocutors, mercy is inimical to a justice framework based on human rights, in which certain rights are understood to be inherent, and not subject to discretionary authority. Socio-legal scholars have suggested that status-based societies became “modern” when retribution (and its flipside, mercy) shifted from the province of individuals to that of states. And today, mercy exists in forms well beyond forbearance in criminal justice. Iran’s seemingly exotic juridical process shows the laudable qualities of mercy in injustice, but it also allows us to consider mercy’s limits.
From a human rights standpoint, the logic of mercy, embedded in discretionary power, is troubling precisely because it depends on the discretion of an authority who holds power over the life of another. Appeals to compassion are pleas to powerful authorities to grant mercy; they are based on the potential of benevolence as opposed to the necessity of equality. They rely on and entrench social, classed, racial, and gendered hierarchies rather than egalitarianism, a cornerstone of human rights. And while mercy can be used as a corrective to injustice, those decisions are often political, emotional, and irrational, while the resulting system is unequal and arbitrary.
Humanitarian laws, or the laws of war that have emerged over the past four hundred years to protect civilians during conflicts, derive from the dispute-resolution processes of domestic justice systems, like the one in Iran. The pardon power and its logic of mercy is also present in justice systems throughout the global North. The same logic guides contemporary humanitarian approaches to major social problems, such as the refugee crisis. This crisis exceeds the conditions of possibility of statist problem-solving, not only due to its vast scale, but also because its analytic is unable to address the idea of social obligations that we owe to each other. In this era of myriad protracted humanitarian crises—across multiple war zones, as well as climate, economic, and global health disaster zones—hundreds of millions of people have fallen into need—of aid, charity, or relief, and have been relegated to performing as supplicants to obtain such services.
The cruel logic of mercy is evident in its contemporary codified forms starting with the Universal Declaration of Human Rights (UDHR), Article 14, which provides those fleeing their places of residence owing to a well-founded fear of persecution only with the right to seek asylum, not to obtain it. This language is reminiscent of a criminal seeking a federal pardon. They have the right to ask—to supplicate.
As with forbearance or pardon, the grant of relief to a refugee is humanitarian, and thus discretionary. Legal scholars, jurists, and statespersons made this deliberate decision in the wake of the horrors of World War II. With the rise of the nation-state and its greater affinity for imagined homogenous communities, the rights claims of individuals who fell outside of the state’s normative constitution would be cast aside and left to the mercy of states. Writing in the wake of the post-war international system, Hannah Arendt saw the effects on refugees clearly and noted the very same distinction I seek to show here: “the prolongation of their lives is due to charity and not rights.”
And today, in the midst of the worst refugee crisis since the Second World War, an interesting correlation emerges because the laws protecting refugees derive from the forced migration of Europeans in that period. The 1951 Convention Relating to the Status of Refugees is the primary legal treaty that guides nation-states’ approaches to refugees and asylum-seekers who reach their borders. The 1951 Convention placed specific temporal and geographic parameters on refugees seeking relief. Only refugees from post-war Europe were eligible to apply for asylum. Even then, asylum was a discretionary grant from a sovereign power. While the 1967 Protocol Relating to the Status of Refugees removed these temporal and geographic constraints on asylum-seekers, the entire international system for refugee protection originally emerged to shelter European refugees during and after World War II.
The raced/ist legacy of this system is still intact in important ways. Consider the treatment of refugees from the global South, to whom these treaties were arguably never intended to apply. Palestinians who were made refugees after the British mandate over Palestine ended and the conflict began were specifically excluded from both treaties. These exclusions continue today. For Palestinians, a separate but unequal system of temporary aid exists through the United Nations Relief and Works Agency (UNRWA). After more than seventy years, UNRWA beggars belief that the humanitarian crisis to which it is responding is provisional. Yet UNRWA receives considerably less funding than the UN’s other relief agency, United Nations High Commissioner for Refugees (UNHCR).
Overall, the refugee relief system is not based on the inherent dignity of the human. It is intended as temporary and discretionary humanitarian aid by a conglomeration of sovereigns. The ultimate grant of asylum, which can be both temporary and revocable, is conferred by a sovereign whose decision bestows life or death. As a result, refugees’ claims of persecution are often denuded of politics in order to trade on the compassion of those with power.
To draw on Arendt once again, the deprivation of rights results in the denial of a political community. This loss of a polity, Arendt argues, is akin to being expelled from all of humanity—to being “nothing but human.” Despite the contemporary resort to relief in the form of charity and aid, the loss of a political community for the hundreds of millions of people who are today subjects of aid is a glaring residue of law’s inability to address broad social and political problems. When people do not have rights, humanitarianism, which is premised on the logic of mercy, fills the vacuum.
Thus, the rights-based critique of the Iranian criminal justice system, particularly the condemnation of relief bestowed through the discretionary grant of mercy, also applies to the international system for the protection of forced migrants. Beyond the humanitarian approach to the treatment of refugees, we can observe numerous other social issues for which the only recourse available is the care economy. This is evident not only in the treatment of the elderly or the sick—but also in calls for governments to “forgive” student debt, to provide shelter for the millions of working-but-unhoused people, and so on.
This, I suggest, is the discontent of our contemporary humanitarian system. The inability of legal institutions to protect vast swaths of people undermines the claim that rights are universal. As Arendt put it seventy-five years ago, the breakdown of interests and institutions laid bare the contingent nature of the core principle of human rights: their inalienability. As it turns out, those rights are only enjoyed by citizens, while the stateless are left to the mercy of the state. In light of this vacuum of rights, charity, mercy, relief, aid, benevolence, and forbearance have become powerful signifiers of life and life-giving into which so many people are now conscripted. Humanitarianism has become the moral, intellectual, and cultural condition of our current era.