Martha Minow & George Williams: On Forgiveness
I think the decision to forgive when it’s made mindfully, deliberately, without coercion, is an expression of strength, it’s not an expression of weakness. It is a decision to make a choice about how I want to live my life.
2021 GANDHI ORATION
Martha Minow | George Williams
In the 2021 Gandhi Oration, Harvard Law Professor and human rights expert, Martha Minow spoke with UNSW Deputy Vice-Chancellor of Planning and Assurance and Anthony Mason Professor of Law, George Williams on the complicated intersection between law, justice and forgiveness.
Can forgiveness play a more powerful role? Who has the right to forgive? And who should be forgiven?
ABOUT THE GANDHI ORATION
Since 2012, UNSW Sydney has hosted the annual Gandhi Oration celebrating the legacy of Mahatma Gandhi as a champion of human rights. The Oration features discussions on the significant human rights issues of our time. Past speakers have included Senator Pat Dodson, Peter Greste, Pat Anderson, Shoma Chaudhury, Reverend Tim Costello, Rosie Batty and Shen Narayanasamy.
Ann Mossop: This podcast was recorded on the lands of the Bidjigal people whose sovereignty was never ceded. We pay our respects to their elders past, present, and future. Welcome to the UNSW Centre for Ideas podcast, a place to hear ideas from the world's leading thinkers and UNSW Sydney’s brightest minds. I'm Ann Mossop, Director of the UNSW Centre for Ideas. The conversation you're about to hear, On Forgiveness, the 2021 Gandhi Oration is between human rights expert, Martha Minow and UNSW Professor George Williams, and was recorded live. We hope you enjoy it.
George Williams: My name is George Williams, and I'm delighted to host this event with this year's speaker, Martha Minow, who's joining us from Boston. Martha is one of the world's most foremost legal academics. She's the 300th anniversary University Professor at Harvard University, and has taught at Harvard Law School since 1981. She has served as the inaugural Morgan and Helen Chu Dean from 2009 to 2017. Martha has expertise in a very wide range of areas, including human rights, constitutional law, and advocacy for members of racial and religious minorities and for women, children and people with disabilities. She also writes and teaches about media policy, privatisation, technology and ethics, military justice, and ethnic and religious conflict. She's the author of many scholarly articles and books and these include her book, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence, and also her book, Making All the Difference: Inclusion, Exclusion and American Law. As you can see, Martha's scholarship is marked by willingness to tackle some of the biggest and most pressing questions facing our societies today. She brings to these questions a deep knowledge, a broad perspective that makes her work influential and compelling. This is equally true for her latest book, When Should Law Forgive? In a world wracked with division and disagreement, she is asking important questions about when we should be prepared to forgive, and indeed what the limits of forgiveness should be. These questions are especially pertinent in the United States today, which Martha has described as the most incarcerating society in the history of humanity. But they are no less relevant to us in Australia and other countries, as we face a range of challenges this year, and in the future. These are the issues we're looking forward to exploring today in the 2021 Gandhi Oration. And Martha, welcome. It's a pleasure to have you join us for this event.
Martha Minow: Thank you so much, George, this is an honour indeed.
George Williams: Martha, you open your book, with a grim reflection on the age in which we live, you say ours is an unforgiving age, an age of resentment. Why is that? Why have we created this age of resentment? And why is forgiveness today in such short supply?
Martha Minow: My own observations about this, of course, are limited by what I know, in my own research, but my perception is that there's a kind of influence of digital media, on the way that people talk with one another. Maybe because we don't have the experience, as much, with the face to face communication and seeing the dignity and the effects of our speech on other human beings. That's one source, I think and brief speech that’s pointed and often hateful. I think a second, though deeper reason has to do with there really are grounds for resentment and grounds for grievance. Globalisation in the economic sphere has left many people behind and made many other people much better off. And the distance between the two has grown and grown. I think, in addition, in my country and in your country, there are legacies of racial injustice, ethnic mistreatment, colonialism, that continued to the present. So there are many, many reasons for ongoing resentment. And unfortunately, many, many forums and contexts for people to express it with less of the opportunities for the face to face and mutual understanding.
George WIlliams: And of course, during the pandemic, as with this event itself, we’re dealing increasingly with these types of forms of communication. Have you noticed any shift, even in more recent times, because of how we're forced to communicate at this difficult moment in our history?
Martha Minow: I do think that it's unprecedented. And thank goodness for the technology that we at least have some possibility of communicating. But I was talking today with one of our experts on criminal justice, that the experience of meeting with a client virtually and not being able to shake a hand, not being able to notice that the client's shoes have holes in them. This has limited the ability to provide full representation.
George Williams: And I suppose also limited the ability for empathy in those circumstances as well. It's not easy to have empathy across a screen or through social media.
Martha Minow: And not easy to express it, even if you feel it.
George Williams: And so, Martha, in your book, you're injecting the idea of forgiveness into these troubled times. Can you tell us what you understand by forgiveness?
Martha Minow: Forgiveness is, in my view, letting go of justified grievance, it's not forgiveness, if the letting go is of an unjustified grievance. It's that the grounds for holding resentment are well established, well known and warranted, but forgiveness is reaching a point of saying, I am going to let this go, even though I am justified in seeking revenge or legal consequences. Forgiveness is a resource that human beings have developed over centuries, every religious tradition, every philosophic tradition, cross cultural, cross time, values forgiveness. And there's even research on large apes and forgiveness rituals that they engage in after conflict. It seems to be a technique of coexistence, and even deeper, a way for people to build a sense of commonality and recognition of one another's humanity.
George WIlliams: One of our staff members, Rajinder Cullinan wants to know, does forgiveness necessarily mean condoning the act or forgetting the harm that may have been caused?
Martha Minow: This is such a critical question, and I really don't think so. We have a different word for that for forgetting, it is different than forgiving, and indeed, I became very interested in the particular role that law plays in forgiveness, and coming to realise that an individual who has been victimised can with good reason, say I forgive you, personally, to an offender, while still expecting the legal system to proceed with its own demand for accountability. So I think that there can not only be remembering, but even punishment or consequences, if there is interpersonal forgiveness. But maybe at times the legal system, the societal institution should also forgive.
George Williams: And Martha, you've talked about forgiveness as a concept having deep roots. It's a powerful concept. It's like saying, I'm sorry, there are things in our society that carry with them power and impact. When you think about forgiveness, and the role that it plays in our western societies today, what have we inherited, in terms of forgiveness from older communities, older societies that help us understand the roots of this concept?
Martha Minow: There are so many examples in literature, in stories and narratives about individuals and groups, either forgiving, or deciding not to forgive, or granting amnesty, forgoing of consequences. And going back to ancient Greece, Hammurabi, from even earlier, there are traditions in the biblical world, there are traditions that actually even provide a, kind of, script for people to express apology, to take responsibility, and actually to make amends. Now, traditions differ about whether that script expects something reciprocal, that is, should you forgive without an offer of an apology? Some traditions say yes, that that is the godlike behaviour. And others say, no, you are right to withhold forgiveness until there has been some taking of responsibility, and even making amends. But it is remarkable how well and distributed these scripts are. Every society has some version of them.
George Williams: And are there any models or ways of thinking about forgiveness that perhaps we don't have in our society today that you think we could take productively from those older understandings of forgiveness?
Martha Minow: I am sure that that is true. And just in the most basic sense, I fear that many young people are not actually taught, how do you apologise as a real apology? And what does it take to let go, and really let go? You know, there's a lot of interesting work in mental health, and even health more basically, finding that those who are able to forgive, actually have reduced stress, have better health. And so that's something that's new and helpful in passing this on, but instruction in taking responsibility, and in forgiving, I think that we are missing that and could learn more from some older traditions. It's also, to me, very striking to see many adults, many in public life, give what they say is a public apology, but now are called non-apology, apologies where someone says, if anyone was hurt, I'm sorry. Well, you know, that's not taking responsibility.
George Williams: And of course, we see that a lot in Australia, statements of regret, and all sorts of words, often weasel words that are designed to be anything but a sincere apology. And, thank you. One really interesting contemporary example of forgiveness is South Africa's Truth and Reconciliation Commission. And in that case, forgiveness was deployed as a concept to bring a sense of reconciliation, to help unify the nation, after such a troubling and difficult period of apartheid. In that example of forgiveness, truth was a central concept. To what extent is truth necessary to have genuine forgiveness?
Martha Minow: I do think that the South African Truth and Reconciliation Commission offers an example that has been inspiring across the world. There now are hundreds of Truth Commission's and Truth and Reconciliation Commission's, national ones, one recently in Canada, and ones that are in local communities, and some that are in private settings as well. What's distinctive about the South African experience is several elements. One, it was a negotiated part of the peaceful transition of power from apartheid, to democratic governance. It was an amazing moment at the last minute of the negotiations of the interim constitution, where the negotiators had this sense of some unfinished business, and added something that they invented a new word for, they called it the post amble, instead of a preamble. And the post amble to the interim constitution called for a process of building a bridge from the past to the future. Under that auspices, people organised a process of studying around the world. What experiences had any other nation ever undertaken, and learned from the Nunca Más report in Argentina, and from other efforts to have investigations into human rights atrocities, and to elevate truth and truth telling. Based on that – here's another area of distinctiveness – South Africa came up with this idea of conditional amnesty, offered to those people who participated in human rights violations on any side of the apartheid regime, amnesty on the condition of telling truth, and without the full telling of truth, and without demonstrating that their use of violence was proportional, and was justified if it was, by political reasons rather than other reasons, they would not get amnesty. That experience did elevate truth and truth telling, though, interestingly, the South African Truth and Reconciliation Commission has a long exploration of what is meant by truth and their psychological truth, historical truth, many different kinds of truth. Can there be forgiveness without truth telling? I suppose so. Individuals can say I'm gonna just move on and let go, when we are dealing with something that's societal. I do think that truth, having a clear record, being able to say, this is not deniable anymore, is often very, very important to allow people to let go, and that seems to have been true in South Africa.
George Williams: One thing your book explores, Martha, is just how diverse are the experiences where we permit forgiveness, and some of the most prominent examples are actually in debt. And of course, the whole concept of bankruptcy, that is, you can be forgiven for the debts that you owe to people. And you describe how this is a concept again, with very deep roots going back to the Hebrew Bible to ancient Greece. Why do so many different times and places see the forgiveness of debts as being so important?
Martha Minow: You know, some people have said to me, why are you putting together debt and crime? They have nothing in common. Well over many periods of history, they have absolutely been viewed as actually having much in common. And it's not by accident that we use the same word to forgive, to let go. Hammurabi’s code is 1745, or thereabouts, before the common era, actually provided for some process of forgiving debts. I think that there are different versions of the Lord's Prayer that use trespass and others that use debt for talking about violations that individuals then seek some forgiveness for. I think that they're often intertwined, in fact, because the punishment for debt historically was actually enslavement, or other kinds of curtailments of liberty, debtors' prison, a familiar technique. And so the blurring of those two lines was very long standing. And in part because, in many traditions, and certainly Western traditions, the view that debt was a violation of a promise, a promise to pay, and promises were themselves, divinely authorised and sworn to. So a violation of that kind of promise could actually take the status of a blameworthy act, much like the violation of the commitments not to injure another, not to murder another.
George Williams: Of course, debt isn't just about individuals. I mean, debt is often owed by nations, to banks, and to others. And there's a large international debate about when it's appropriate, particularly for emerging nations to forgive debt. Your book talks about this concept of odious debt. Can you talk us through what you mean by that, and how this plays out in the context of forgiving nations for their debts?
Martha Minow: Thank you. Yeah, so odious debt is, is not a legal concept. But it's a notion that has been proposed by scholars to identify those circumstances where a sovereign debt, sovereign indebtedness occurred in a way that pertained to the conduct and misconduct of a ruler, or a government official, who indebted the nation, or took loans, in ways that actually did not benefit the nation, that benefited the individual, or actually supported military actions that were not in the interests of the nation. And what scholars have argued for is a kind of recognition of a defence to debt of that sort that's experienced by a sovereign nation. I think the idea here is very much especially when there's a transition in government, why should the people be responsible for the misconduct of a prior leader? As I say this concept has not been recognised by law, but the arguments about it have helped to raise awareness about often oppressive circumstances under which national debt has been undertaken and grown. And there are very elaborate processes by creditor nations and even private creditors to come up with mechanisms to forgive or let go of some of the debt, to reconstruct it. And we also have seen coalition's of amazing groups for example, Pope John Paul joined together with the rock music's star Bono to create an initiative joined in by many nations to support this kind of letting go of developing country indebtedness.
George Williams: And of course, with debt as you're describing, there are quite elaborate and well developed ways the law does forgive debt. I mean, bankruptcy is a well known path and a well established and accepted path to forgiving debts. But on the other hand, those sort of paths are not always available in other areas of the law. If we look at crime, for example, it's often very difficult to achieve forgiveness in those areas. Why is the law so inconsistent in forgiving in some areas like debt, but being so unforgiving and punitive in other areas like crime?
Martha Minow: That is a question that very much has motivated my own research and is the juxtaposition that I offer in this book. You know, the phrase to clean the slate, which really came from pubs in Britain, where there will be a running tab kept by the barkeep that would actually keep the unpaid, the service of the drinks that have not yet been paid, and periodically there would be a wiping the slate clean and starting over. We have that as a concept very much when it comes to financial debt. We do not have that concept, at least not in the United States, when it comes to crime. When it comes to crime, even someone who has served his or her time, has served a sentence, in many parts of the country faces what are known as the collateral consequences of crime. Further consequences now that they're out of prison, that bar them, for example, from certain jobs, from certain housing, from certain kinds of licences, and even in some states from maintaining the custody of their children. And compare that with bankruptcy, I find it so very fascinating in the United States, the opportunity to declare bankruptcy and start over was considered so important by the framers of the nation, that there is explicit authorisation in the constitution for Congress to create a nationwide process for bankruptcy. And I've often thought it has something to do with the fact that one of the founding fathers, Thomas Jefferson was himself in debt during much of his life. He being Thomas Jefferson, and actually went on to develop a kind of political theory about it, and said that one generation should not saddle the next with its debts. There should be an opportunity to wipe the slate clean. I think that in many respects, it's easier to talk about doing that when we're dealing with finances, in a real way, you can't get blood from the stone, if the indebted person or entity has no resources, there's just not much you can do, and locking up the individual or denying the sovereign nation or the town from ever incurring debts again, may not allow them to get back on their feet. It's interesting to see that in the United States, the adoption of national bankruptcy law has actually been associated with an entrepreneurial culture. In many parts of the United States, for example, in Silicon Valley, it's kind of a point of pride to have failed before and to start over. There are even some investors who will not invest in a new startup unless the people involved have actually tried before and failed, because they understand that to be part of the process. And there are some other nations that don't have as generous bankruptcy laws that have sent delegations to the United States to try to understand how bankruptcy works, and how to promote that kind of risk taking approach. You know, many businesses treat bankruptcy or indebtedness as the cost of doing business. Now, Australia has a robust regime for bankruptcy, and so knows a lot about that already.
George Wiliams: And of course, you talk about the lack of forgiveness for crimes and that runs very deep, even to the point of denying someone their basic citizenship, for example, the retribution involved in not being able to vote if you've committed a crime, and I mean, that lack of forgiveness is so pervasive for some of these crimes. I wonder whether that itself has longer term impacts within the American community?
Martha Minow: I have no question that it does. The felon disenfranchisement that is permitted by the Constitution is one big exception to otherwise existing mechanisms for letting go. It's right there in the Constitution. It was actually even part of the analysis that led to the new amendments of the Constitution following the Civil War. And felon disenfranchisement has been a huge question in contemporary elections, where there because of the racial disproportion of our criminal legal system, felon disenfranchisement similarly has a big racial disparate impact. And so efforts to alter those rules become caught up in racial justice initiatives, and also party politics.
George Williams: One area though, where quite severe crimes may be involved, but yet there is some potential for forgiveness relates to child soldiers. And in that case, whether it be internationally or otherwise there's a preparedness to forgive, a preparedness to let those children move on. What is it about that category that enables us to move beyond this very punitive criminal system to say there's room for forgiveness for someone who's been a child soldier?
Martha Minow: I have been so fascinated by this and as a student of international criminal justice, I have watched how some of the early tribunals, for example, the ad hoc tribunal for the Former Yugoslavia and for Rwanda dealt with that question, basically concluding that those most responsible for atrocities were the priorities, and they didn't specify what would be the treatment of any one who was a child while committing atrocities. But in subsequent contexts, for example, the Sierra Leone tribunal, now the International Criminal Court, there's explicit consideration and either exemption from prosecution or again, articulated priority, this is not the priority. And I think it's for many reasons, but certainly high on the list, is a view that the conflagration, even the offences committed by the hands of an individual who was a child at the time, were not caused by the child. Teens who are drawn into these conflicts by adults, often coerced. The kidnapping of minors to become child soldiers is rampant activity. In many parts of Africa, some parts of South America, there have been child soldiers throughout history in almost every war. But this coercion, and capturing seems to coincide with those kinds of struggles where having people who are more easily controlled has been a priority. And even the creation of lightweight weapons, lightweight guns seem to stimulate this interest in coercing and drawing into conflict, children. This idea that it's not their fault, they got caught up in it, seems to have power, even though some of those individuals stay well into adulthood, and commit terrible crimes, murders, rapes. And also, some individuals exercise some degree of voluntariness, in joining up with an armed group, a rebel group, either because they think there's an ideological reason, or it just looks like a better option than what they have at home. And anyone who's ever parented an adolescent, a teenager, I have noticed that there is a capacity for some will, some voluntariness, even though there may also be some lack of full rationality and full thinking through consequences. Anyway, in some recognition of that complexity that I think has led to an international community's willingness to say, this is not a priority. And criminal law is not the right reaction. There's sometimes tensions between the international community and the domestic nation, where a returning child soldier may not be fully accepted in their home community because they haven't paid their dues, they haven't made amends. And in some communities, there have been developments of, even rituals, to try to reintegrate those individuals, and helped make a marker between the period when they committed crimes and a new life. But I just can't help but compare that with the treatment of adolescents who commit crimes, at least in the United States, where there is not much forgiveness, we have mechanisms that allow for the transfer of those individuals to adult court, to adult prisons, and a layering of serious penalties, shows a kind of punitiveness that is so in contrast with the way these issues are talked about in the international sphere.
George Williams: And of course, that can even be in circumstances in countries where the fact is you talk about that breed empathy for child soldiers coercion, directed by someone else, economic and other circumstances, men gang members, for example, may find themselves in a similar position. I mean, is there any sense in the United States that there is some parallels or really as you say, it's just entirely different tracks where empathy and forgiveness is permissible for child soldier, but a child in a similar position in a gang, for example, there is no such possibility.
Martha Minow: The similarities are so striking to me. And that's one reason I wanted to draw the comparison. As you say, oftentimes it is adults who've created the drug trade, that draw in young people on the theory that they won't face as serious punishments. It's adults who have created the economic circumstances that make it more attractive to engage in criminal activity than to work at a fast food restaurant which may be the only job available in the community. And it is adults who have created again, those lightweight weapons, the exact same weapons used with child soldiers, are used in gangs. So is there an appetite? Is there an openness to some kind of forgiveness? I'm hopeful. But there has not been that kind of tradition in recent years in the United States. Except insofar as there's a beginning and a growing recognition of the power of restorative justice, of diverting people from the former criminal justice system, and engaging victims and survivors in share conversations, where individuals can take responsibility, there can be acts of forgiveness, but maybe even more importantly, acts of paying amends and restitution, so that there can be a reintegration of the community.
George Williams: And one of the really important questions that this conversation highlights are what are the limits of forgiveness? Are some crimes unforgivable? Because of their severity, because of their impact upon victims. And we've had a number of questions from within our community, people wondering what are the limits of forgiveness? For example, one of our students, James Pham, has asked whether forgiveness is possible without the remorse of the other party. Is it possible to forgive when someone's committed a crime, but there's no contrition, no remorse on their part? Is forgiveness foreseeable or appropriate in those circumstances?
Martha Minow: Such a great question. You know, I think fundamentally, for interpersonal forgiveness, it's got to be a decision left to those who've been injured. No one can tell an individual who's been injured, you must forgive or you shouldn't forgive. I think that those are the personal prerogatives and any other approach is another kind of victimisation. When it comes to something that's more collective, that's more about society, it is very interesting to think about whether there should be expectations of remorse. And on the one hand, that's appealing, we certainly think about that when we come to sentencing, do people take responsibility for their actions, do they show remorse? But there's the risk of a, kind of, performance, kind of an enactment of something that may not be genuine at all. And I remember having the chance to talk with the commissioners of the Truth and Reconciliation Commission in South Africa, about exactly that, and asking why amnesty could be granted only on the condition of truth telling, and not on taking responsibility or showing remorse. And I will never forget several of the commissioners saying to me, well, that's because then we would never know, if there was an expression of contrition, wasn't genuine? Was it true? Similarly, if there was an act of forgiveness, was it genuine? Was it true? Or was it coerced? So that's made me of two minds, I personally, am much more inclined to forgive when there is expression of remorse and taking responsibility. But I worry about using the power of government, the power of the state, to force people to perform what really have to be acts of the heart.
George Williams: Martha, your answer speaks of how forgiveness is an act of power, and in fact, that we need to interpret that in light of the different positions of the people involved, and in fact, their relative positions of power itself. This relates to a question that's coming from Professor Fleur Johns from the Faculty of Law and Justice. She says Gandhi wrote that forgiveness is the attribute of the strong. and the conditions of stark inequality, should those in positions of relative powerlessness, refuse appeals for their forgiveness?
Martha Minow: Such an important question, and I absolutely do believe that no one should be coerced into forgiveness, and no one should really be expected to forgive. It's got to be a choice by individuals. And at the same time, I do think it's worth noting that even those who are marginalised, who have systematic oppression, acquire a position of some power at the moment of being asked to or considering themselves whether or not to forgive, because that power includes the power not to forgive. And there's a way in which the wrongdoer who is going to benefit if forgiveness is granted, is now brought down to a lower plane, and the one who has the power to give or deny forgiveness is elevated, even if that person is subject to systematic disadvantage. I do agree with Gandhi. I think that the decision to forgive, when it's made mindfully, deliberately without coercion, is an expression of strength. It's not an expression of weakness. It is a decision to make a choice about how do I want to live my life? Do I want to be focused on the grievance? Even though it's justified? Or do I want to go ahead and build a future? I think it can be an act of real strength. And yet it is often not viewed that way. It's often viewed as oh, you didn't fight back? Oh, you didn't demand some kind of revenge? Well, it takes some kind of control to let go of what's justified as resentment. So I guess my basic answer is it. It is a very much in the hands of those who've been violated to decide whether or not to forgive. And the choice to forgive, then, if voluntary can be an act of strength.
George Williams: And that concept of forgiveness in giving someone agency, giving someone power in a debate is really relevant at the moment to some very large public conversations undergoing in Australia. And those conversations are about past and more recent allegations of sexual assault, in one case involving a prominent politician, in other case involving a matter that goes to the heart of power in Australia. I wonder what if any role you think forgiveness has to play in those debates about people with power, issues of sexual assault, and the role that, of course, women play in those debates and coming forward with the allegations?
Martha Minow: You know, we have, of course, those issues in this country, in the United States as well. And what is very troubling to me is the rush to expectations of forgiveness by people who have had to overcome great personal fears and societal negative consequences, to come forward and actually bring a complaint against often people in positions of political power, or economic power, or people who have control over an industry, the media industry, for example. In the MeToo context, many people have been saying, well, why isn't there more forgiveness? Why are the accusers demanding accountability? My own view is, we have only so recently recognised systematic sexual violence and sexual abuse as itself a wrong. It's a little early in the day to be saying, well, why isn't there forgiveness? Moreover, it's in this context, specifically that I've seen many examples of these non-apology, apologies and no effort on the part of some very prominent wrongdoers to say I did wrong and I will make amends, I will create funds to support those who are still dealing with the victimisation, I will create programs to educate young people about their rights and the rights not to be violated, and their duties not to violate another, I haven't seen that happen. So it seems a little early in the day to be talking about forgiveness.
George WIlliama: And forgiveness is also a troubling concept in these types of debates given how gendered it would be that we're essentially asking women, almost always, to forgive men. In these circumstances, does that itself raise questions about how appropriate forgiveness is in these debates?
Martha Minow: No question about it. And that echoes the earlier question about, what is the status of power in these exchanges over forgiveness and apology? In Western tradition, Western literature, there are enactments of forgiveness rituals, and it is almost always a woman, or person in a lower position of power, who is seeking some, some kind of forgiveness, or being expected to forgive. So there's something culturally we need to understand. And yet I don't want to abandon entirely the power that's embedded in the act of forgiveness. And the decision not to forgive, there is power in that, and it can be liberating even more for the one who was wronged, than it is for the other, to say I let go, and I am not going to let this violation define the rest of my life.
George Williams: And of course, we've been talking about examples of where we might consider forgiveness for someone with power, prominent politicians or others. But, of course, forgiveness can also be given by those people with that power, and perhaps the most obvious and pertinent examples of the presidential pardon, and an institutional act of forgiveness in your constitution. And of course, the idea of a pardon is something that goes through many countries. When do you think it is appropriate for a president to use a pardon to forgive someone?
Martha Minow: You know, the pardon power in the US Constitution has only one explicit exception and one implicit exception. And the explicit exception is, it cannot be used in cases of impeachment. And the implicit one is that it is only a federal power. So the national president can forgive national crimes, but it has no power to forgive state crimes, that's a different sovereign, has no power to forgive a crime within an Indian Nation, that's a different sovereign. And yet, other than that, it is an unbounded power. It's described by the courts that have looked at it as a plenary power. And there seems to be some idea that it actually was part of the checks and balances and the design of the Constitution, that if there were runaway judges, or judges that had some kind of bad motives, this was a way that the executive could correct it. And yet, I think we can't really understand the presidential pardon power without seeing it in some ways as a carryover from a royal prerogative, the Royal bill, writ, the Royal capacity to forgive the Royal Court of Equity, for example. And, you know, we've just been through an experience with a president who loved to exercise power, particularly liked to pardon power, because he didn't have to ask anyone else about when to use it and how to use it. Whereas prior presidents, for decades, have actually been humbled by this power, and developed processes in the Department of Justice, to have a vetting of those applications for forgiveness, and to try to develop some notions of equity and fairness across different cases. The real danger, of course, is that this power can be used by a president to reward his own – and it's only so far been male presidents, so I'm gonna say his – his own friends, his own cronies or his campaign supporters. And what we saw with President Trump was the offer, or the hints about the use of the pardon power, to actually protect himself, to hint to people who would be participating in an impeachment action, or criminal action, I can forgive you, so do not do not give over information that would be injurious to me. Very, very troubling, because, again, it puts a president in the role like a royalty above the law, outside the law, which is contrary to everything about a rule of law that constitutional democracy is trying to establish.
George Williams: And of course, what's striking about the US presidential pardon power is it has those roots in English systems. Of course, Australia has a like power. But we would not dream of using the pardon in the circumstances where you routinely use it in the United States. It's just not acceptable in our political or legal system to do so. Does that suggest that perhaps the day should be numbered for the presidential pardon power? Or do you think it serves still a justifiable purpose, if it's kept within reasonable limits?
Martha Minow: Well, I think that the norms that you're describing in Australia are what's missing in the United States, and developing some norms about its scope of appropriate use, I think is an urgent agenda item right now, you know, President Obama used the pardon power, I think in a in a good way. He maybe didn't even use it enough. But he used it to acknowledge systemic injustices in the criminal law system, where individuals had been convicted under laws that had subsequently been changed, to lighten the sentence. And yet they were individuals still serving long sentences, for example, for nonviolent drug related offences. And to use it in that kind of broad based way. Where there's been a calculus and an analysis of what fairness is across similarly situated cases, I think there can be a good use of it. And I also think that there are devices like a commutation of a sentence. So even if it's not a full pardon, to say, you know, we revoke the sentence itself, you can actually be restored to the voting rolls, for example, we eliminate that collateral consequence of a crime. As long as we have those collateral consequences, I think it's good to have some mechanism to correct it. Some states have recently come up with mechanisms to actually allow for the sealing of a criminal record and allow people to obtain a, kind of, fresh start. And I think that that's a good technique, but on the pardon power given to one person, without any checks, there's real concern. We would need a constitutional amendment or self restraint by the executive to make a change. And I think it's very striking to look at other countries that have very thoughtfully created mechanisms like multiple person Commissions that give pardons. Or in South Africa, the pardon exercised by the executive is subject to judicial review. It's not the last word, we would need a constitutional amendment to make changes like that. But I think it's quite instructive.
George Williams: And when we think about forgiveness as a concept, we can think of forgiving oneself. I mean, that's not an alien concept. Can you ever think of a circumstance where it would be right for a president to use their pardon power to pardon themselves, either for a past or future indiscretion?
Martha Minow: I do not. And I think that's an oxymoron. There are even very interesting legal arguments to actually analyse whether the verb to grant, is something you can grant yourself a pardon. But I think again, that would very much violate the norm of being not above the law. And yet, the idea of self forgiveness in other contexts is very important as a psychological matter. Many child soldiers do not forgive themselves for the murders that they committed or the rapes they committed, and really need to work through how to let go of their blame in order to have a ability to build a constructive life. And that's been true, I think, of people who have committed other kinds of offences as well. And so I think self forgiveness is conceivable, not as a legal matter, but as a psychological matter.
George Williams: And moving from one presidency to another. I'm wondering how this might apply with the new administration you have in the United States. We have a question here from Professor Ros Dixon. Again, from our faculty in law and justice, she asks, how does your notion of forgiveness help guide government officials, such as in the Biden administration, as it thinks about how to deal with the potential criminality of its predecessors?
Martha Minow: You know, we certainly don't want to live in a world where every new administration brings criminal charges against the prior administration, on the other hand, nor do we want to live in a world in which there is no accountability for violations. I believe that the Biden administration should first and foremost de-politicise the Department of Justice, and restore it to the traditions of integrity that it once had. And in doing so, I think the newly confirmed Attorney General Merrick Garland is right to pursue the course of having professional prosecutors follow the evidence, and to see whether this is the kind of case that they would bring under other circumstances. What is helpful in this country is that the federal system means that no matter what the federal government does with regard to the prior administration, or its members, the states can pursue their own actions. And indeed they are, there are several actions already pending criminal actions against President Trump and against other members of the administration. And I suspect we will see more.
George Williams: Thank you and Martha, one final question. We've covered lots of different examples of forgiveness, going back a long way to very contemporary examples. And you've spent a long time thinking about these different issues. I'm just wondering personally, are there any areas which you've really grappled with to work out whether forgiveness is achievable or reasonable? What are some of the hardest examples you've struggled with personally, in looking at this area?
Martha Minow: I could make a joke George and say, I'm not going to forgive you for asking that very hard question. But I will say it is a question that I do grapple with, and I am not myself that much of a forgiving person. I do myself struggle with blame, blaming others, and holding on to grudges. But where I have had the biggest trouble is in thinking about those who mastermind very egregious violations of human dignity and rights. Certainly the perpetrators of the Holocaust, the perpetrators of the Rwandan genocide, those who were behind the Cambodian genocide. I really cannot fathom forgiving people who actually not only deprived so many people of their lives, their decency, their dignity, but also turned others into perpetrators. I find that almost, I think it is unforgivable. I'm very glad that the International Criminal Court has found it really criminally liable to as an adult recruit or coerce young people to be soldiers, to deprive someone else of the chance to live and make choices. That is so egregious. I don't think it's forgivable.
George Williams: Martha you talked about your own perceptions of forgiveness, has writing this book shifted your own point of view as to when you personally might forgive someone, or have you pretty much stuck to the cause from where you were before you embarked on this journey?
Martha Minow: Well, I will say that reading about the health benefits of forgiveness has affected me quite significantly. And I also have thought a lot about individuals like Gandhi, who are so admirable in modelling a form of humaneness and seeing the dignity even of those who are opponents. I think that it was instrumentally very successful in his case, but also a model of a, kind of, large soul, a large heart. That is something to emulate.
George Williams: Thank you, Martha. I've really enjoyed our conversation for the 2021 Gandhi Oration. We really appreciate your generosity and your time and talking us through your new book, When Should Law Forgive? I know you'll have inspired many more people to read your book and to think a bit more deeply both about what the role the law can play and also what we can do as people, and when should we forgive? Makes a great gift if people are looking for presents at the moment. Thank you. I'd also like to thank the many people who have helped to put this together from the Centre of Ideas and thank you, our audience, for sticking through and listening to such an interesting conversation. If you'd like to find out about more events at the University of New South Wales, please sign up to the Centre for Ideas and we'd love to see you.
Martha Minow is the 300th Anniversary University Professor at Harvard University where she has taught at Harvard Law School since 1981, and served as the inaugural Morgan and Helen Chu Dean from 2009-2017. Her courses include advanced constitutional law; freedom of speech frontiers; fairness and privacy; family law; international criminal justice; law and education; and law, justice; and design. An expert in human rights, constitutional law, and advocacy for members of racial and religious minorities and for women, children, and persons with disabilities, she also writes and teaches about media policy, privatisation, technology and ethics, military justice, and ethnic and religious conflict. She is the author of many scholarly articles and books, including Saving the News (forthcoming); When Should Law Forgive?, In Brown’s Wake: Legacies of America’s Constitutional Landmark, Between Vengeance and Forgiveness: Facing History After Genocide and Mass Violence and Making All the Difference: Inclusion, Exclusion, and American Law.
George Williams (Chairperson)
George Williams is one of Australia’s leading constitutional lawyers and a frequent commentator on legal issues. He has written and edited 37 books, including Australian Constitutional Law and Theory, The Oxford Companion to the High Court of Australia and Human Rights under the Australian Constitution. He is the Deputy Vice-Chancellor, Planning and Assurance at UNSW Sydney, and is also the Anthony Mason Professor and a Scientia Professor of Law. Williams previously served as Dean of UNSW Law & Justice. He was made an Officer of the Order of Australia in 2011 for distinguished service to the law in the fields of anti-terrorism, human rights and constitutional law as an academic, author, adviser and public commentator.