Journal of Civil Rights and Economic Development

Volume 23 Article 6
Issue 3 Volume 23, Fall 2008, Issue 3

"When Mercy Seasons Justice"

Melissa Beach

Follow this and additional works at: https://scholarship.law.stjohns.edu/jcred

This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It
has been accepted for inclusion in Journal of Civil Rights and Economic Development by an authorized editor of St.
John's Law Scholarship Repository. For more information, please contact [email protected].
 'WHEN MERCY SEASONS JUSTICE"1

MELISSA BEACH*

The quality of mercy is not strained.

It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest:
It blesseth him that gives and him that takes.
'Tis mightiest in the mightiest; it becomes
The throned monarch better than his crown.
His scepter shows the force of temporalpower,
The attributeto awe and majesty
Wherein doth sit the dread and fear of kings;
But mercy is above this sceptered sway.
It is enthron~d in the hearts of kings;
It is an attribute to God Himself;
And earthlypower doth then show likest God's
When mercy seasonsjustice. Therefore, Jew,
Though justice be thy plea, consider this:
That in the course of justice none of us
Should see salvation. We do pray for mercy,
And that same prayer doth teach us all to render
2
The deeds of mercy.

INTRODUCTION

Peace is the ultimate goal of our society. To have peace, there

must be justice. Justice is at hand when people operate accord-
ing to what is "morally right," "equitable," and "fair"; punish-

' WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE act 4, sc. 1, 203 (Barbara A. Mo-
wat & Paul Werstine eds., Washington Square Press 1992) (1596).
* J.D., June 2008, St. John's University School of Law; B.A. English, May 2005, St.
John's University.
2 SHAKESPEARE, supra note 1, at act 4, sc. 1, 190-206. Portia, while disguised as Baltha-
zar, the doctor, spoke these words in answer to Shylock's question: "On what compulsion
must I [be merciful]?" Id. at 189.
 ST JOHN'SJOURNAL OFLEGAL COMMENTARY [Vol. 23:3

ments must be "deserved [or] merited." 3 By nature, people are

good, but no person is perfect. Therefore, people will inevitably
disturb the peace within our society. Societies created laws to
promote peace, but those laws exist in vain if implemented un-
justly. Along with justice, a peaceful society must have love and
mercy; mercy is "[c]lemency and compassion shown to a person
who is in a position of powerlessness or subjection, or to a person
with no right or claim to receive kindness; [it is] kind and com-
passionate treatment in a case where severity is merited or ex-
pected, esp[ecially] in giving legal judgment or passing sen-
tence." 4 Mercy must fuse with justice.
Our criminal justice system should be based upon this goal.
Peace breeds happiness. From a utilitarian standpoint, an action
can only be justified if the happiness it brings outweighs the dis-
content; "the purpose of all laws is to maximize the net happiness
of society. ' 5 Deterrence is the ultimate function of the laws; if
people are deterred from committing crimes, the lives of those
6
within our society will be more peaceful, and in effect, happier.
Since we live in a world of both good and evil, not all people can,
or will, be dissuaded from participating in criminal activity.
Once a crime is committed, the question arises: What is the just
result?

I. THEORIES OF PUNISHMENT

The first step towards attaining justice lies within an under-

standing of the theories of punishment: rehabilitation, deter-

3 OXFORD ENGLISH DICTIONARY ONLINE (Oxford Univ. Press 2008), available at

http://www.oed.com/ (defining "just").
4 OXFORD ENGLISH DICTIONARY ONLINE, supra note 3 (defining "mercy").
5 JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 14 (3d ed. 2001) (discussing the
principles of classical utilitarianism, as formulated by Jeremy Bentham).
6 Compare JOSHUA DRESSLER, CASES AND MATERIALS ON CRIMINAL LAW 34 (3d ed. 2003)
(asserting that "[t]he general object which all laws have ... is to augment the total happi-
ness of the community" (quoting JEREMY BENTHAM, AN INTRODUCTION To THE
PRINCIPLES OF MORALS AND LEGISLATION, 83-84 (John Bowring ed. 1843), with
DRESSLER, UNDERSTANDING CRIMINAL LAW, supra note 5, at 14-15 (expounding upon the
basic principles of "classical utilitarianism, formulated by Jeremy Bentham," that "[l]aws
should be used to exclude, as far as possible, all painful and unpleasant events" and that
these goals, "as applied to the criminal law" are manifest in "generaldeterrence [according
to which,] D is punished in order to convince the general community to forego criminal
conduct in the future").
2008] WHENMERCYSEASONS JUSTICE

rence, incapacitation, and retribution. 7 In order for peace and

justice to be obtained, all four theories must coexist. Many with-
in our society strive for justice, but different people often have
differing perceptions of justice. A joke notes that the definition of
justice is "an outcome in your favor." In reality, a just result is
obtained through fairness, reason and truth. Peace departs
when an unjustified harm occurs, just as it does when that harm
is punished unjustly.
What makes a punishment unjust? From a retributivist
standpoint, when a punishment is harsher than deserved, justice
has not been attained, and an injustice has occurred.8 While "[t]o
an uncompromising retributivist, the wrongdoer should be pu-
nished, whether or not it will result in a reduction of crimes,"9
the philosophy of an uncompromising retributivist has no place
within our criminal justice system. Our society's theory of pu-
nishment, and, in effect, our theory of justice, cannot be as sim-
ple, or as harsh, as punishing for the sake of just deserts. When
faced with each individual crime, and when facing each individu-
al person who committed that crime, one must ask: "Why?" ".Why
did this person commit this crime?" "Why are we inflicting this
punishment and what purpose do we hope to fulfill through its
implementation?" Retributivism is only relevant to punishment
when "determining whether and how much to punish a particular
person." 10 Punishment ought to be calculated in accordance with
the severity of the crime and the culpability of the person who
committed that crime, thus comporting with fairness and reason.
Still, determining adequate punishment, especially in terms of
years or monetary fines, can be somewhat enigmatic, akin to
comparing apples and oranges. How many years of punishment
Compare supra page 2 (arguing that in our criminal justice system "mercy must fuse
with justice"), with DRESSLER, CASES AND MATERIALS, supra note 6, at 35-36 (explaining
basic principles of general deterrence, individual deterrence and incapacitation, three
classic utilitarian justifications for punishment meted out by a criminal justice system),
and DRESSLER, UNDERSTANDING CRIMINAL LAW, supra note 5, at 15-16 (explicating the
fundamental goals and principles of rehabilitation as "[a] non-classical variety of utilita-
rianism" as a justification for punishment versus the basic principles of retributivism to
justify punishment).
8 Compare supra note 3 and accompanying text page 1 (defining just as "what is 'moral-
ly right,' 'equitable,' and 'fair"'), with DRESSLER, CASES AND MATERIALS, supra note 6, at 40
(noting that under negative and positive retributivism, it is immoral to punish a wrong-
doer more than he deserves).
9 DRESSLER, UNDERSTANDING CRIMINAL LAW, supra note 5, at 16.
1 DRESSLER, UNDERSTANDING CRIMINAL LAW, supra note 5, at 22 (emphasis in original).
 ST JOHN'SJOURNAL OFLEGAL COMMENTARY [Vol. 23:3

adequately punishes an assault? A robbery? A murder? When,

if ever, is the death penalty justified? Societal norms must an-
swer these questions through trial and error of the people, using
the legislative process.
As evils and temptations continue to exist in our society,
crimes will also persist. Therefore, our primary focus should be
upon rehabilitation, rather than punishment. Our ultimate goal
is neither to punish, nor to inflict further harms, but to remedy
the harms inflicted and prevent additional harm. Thus, the
unique, individual nature of each case demands an individua-
lized remedy or punishment, such as "psychiatric care, therapy
for drug addiction, or academic or vocational training."1 1 For
those unable to be rehabilitated, incapacitation can, to an extent,
prevent them from harming others and from consequently caus-
ing discord in a peaceful society. 12 It is debatable whether jail can
be rehabilitating.

II. CULPABILITY
Punishment is just only when he who is penalized is culpable;
he is "guilty," "blameworthy," and "deserving punishment or con-
demnation." 13 What makes a person culpable? The weightiest de-
terminant is whether or not that person has free will. To meas-
ure the fairness of a sentence, it is essential to first determine
that actor's capacity to choose. Mercy can be bestowed only on
one who is culpable. When reducing or eliminating the punish-
ment of a person lacking free will, it is justice, rather than mercy,
that is imparted.
When an individual commits a crime but completely lacks free
will, culpability is absent. 14 However, the consequences of that
11See DRESSLER, UNDERSTANDING CRIMINAL LAW, supra note 5, at 15. "Adherents of re-
habilitation prefer to call the reformative process 'treatment' or 'healing,' rather than 'pu-
nishment.' However, because the process does not require the criminal's consent and is
the result of a criminal conviction, reformative procedures constitute punishment." Id. at
n.34.
12 See CITIZENS BUDGET COMM'N, MAKING MORE EFFECTIVE USE OF NEW YORK STATE'S

PRISONS 9 (2000), available at http://www.cbcny.orglDOCS52000.htm (identifying incapa-

citation as one of four goals of prison sentence); see also Robert Keel, Rational Choice and
Deterrence Theory, Jul. 14, 2005 (stating the key concepts in understanding principles of
crime prevention), http://www.umsl.edul-keelr/200/ratchoc.html.
13 OXFORD ENGLISH DICTIONARY ONLINE, supra note 3 (defining "culpable").
14 See Marcia Johnson, Genetic Technology and Its Impact on Culpability for Criminal
Actions, 46 CLEV. ST. L. REV. 443, 470 (1998) (concluding that the root principle of crimi-
2008] WHEN MERCYSEASONS JUSTICE

person's criminal actions continue to exist. The situation must

be addressed, but not through retributive means. To make a per-
son "pay for his crime" when he is not culpable, not only would be
unjust, but would also serve no purpose. The consequences can
and should be remedied through avenues other than criminal
punishment, such as helping agents tailored for the victim and
his family's health and well-being, remembering that the ulti-
mate goal is peace. 15
In a few instances, most notably situations involving duress
and certain mental diseases or defects, the law characterizes a
person as not culpable for her actions. 16 New York's Penal Law
limits the definition of duress in such a way that a person may
not simply claim duress to avoid criminal responsibility where it
is warranted: a person will not be sentenced for an offense when
she engaged in the illegal conduct because she was compelled to
do so "by the use or threatened imminent use of unlawful physi-
cal force upon him or a third person, which force or threatened
force a person of reasonable firmness in his situation would have
been unable to resist."1 7 Further, a person cannot successfully
claim duress when he "intentionally or recklessly places himself
in a situation in which it is probable that he will be subjected to
duress."1 8 Under circumstances such as these, the actor is culpa-
ble in consciously inserting himself into such a situation.
Likewise, suffering from a "mental disease or defect"1 9 lessens
the amount of culpability that person might be thought to pos-

nal justice system is based on exercise of free will); see also Stephen M. Leblanc, Com-
ment, Cruelty to the Mentally Ill: An Eight Amendment Challenge to the Abolition of the
Insanity Defense, 56 AM. U.L. REV. 1281, 1315-16 (2007) (explaining how a lack of free will
makes an individual non-culpable under retribution theory).
'1 See generally Development in Law: Alternatives to Incarceration,111 HARV. L. REV.

1863 (1998), (discussing alternatives such as coerced treatment programs, community

corrections programs, and shaming); see also Dan M. Kahan, What Do Alternative Sanc-
tions Mean?, 63 U. CHI. L. REV. 591, 591-95 (1996) (describing alternative sanctions and
the reasons why the general public is not receptive to them).
16See infra notes 17-18 (detailing the elements of the affirmative defense of duress and
the situations when it is not available).
17N.Y. Penal L. § 40.00(1) (2008). Duress is an "affirmative defense" in New York; even
if the jury finds the defendant guilty of a crime beyond a reasonable doubt, it would be
unjust to punish that defendant for that crime. Id.
18N.Y. Penal L. § 40.00(2) (2008).
19N.Y. Penal L. § 40.15 (2008) (proscribing that there is a lack of criminal responsibility
when the actor, "at the time of [his] conduct, as a result of mental disease or defect ...
lacked substantial capacity to know or appreciate either: 1.The nature and consequences
of such conduct; or 2. That such conduct was wrong.").
 ST JOHN'SJOURNAL OFLEGAL COMMENTARY [Vol. 23:3

sess. Humans are not just bodies, but are composed of minds,
hearts, and souls. While an emotion such as revenge or anger is
not a valid excuse for committing a crime, suffering from a men-
tal disease or defect can be. 20 If a person cannot understand or
appreciate the nature and consequences of her conduct, or does
not know that her conduct is wrong, she cannot be held responsi-
ble for such conduct. 2 1 Severe punishment would most likely be
inappropriate, whereas court-ordered rehabilitation, including
receiving psychiatric care and/or22 medication would benefit not
just that person, but also society.
Most often, however, life is not simply black and white, but
23
many shades of gray.

III. THE MERCHANT OF VENICE AND BEOWULF

A study of Shylock, the villain/victim of Shakespeare's The
Merchant of Venice, lends insight into the optimal interplay of
justice and mercy for a peaceful society, while a reading of Beo-
wulf 2 4 demonstrates the perils of a society where mercy is absent.
Even though Shakespeare wrote The Merchant of Venice in

20 See United States v. Freeman, 357 F.2d 606, 615 (2d Cir. 1966) (noting as "fact that

the law has, for centuries, regarded certain wrong-doers as improper subjects for punish-
ment"); see also Leblanc, supra note 14, at 1286-88 (recounting the history of the insanity
defense).
21 See generally Helen Shin, Note, Is The Death Of The Death Penalty Near? The Impact

of Atkins and Roper on The Future of Capital Punishment for Mentally Ill Defendants, 76
FORDHAM L. REV. 465 (2007) (analyzing the impact of the Atkins and Roper decisions and
the subsequent creation of two categories of individuals who are exempt from the death
penalty); see also AMNESTY INTERNATIONAL, UNITED STATES OF AMERICA: THE EXECUTION
OF MENTALLY ILL OFFENDERS (2005), available at http://www.amnestyusa.org/document.
php?lang=e&id=ENGAMR510022006 (identifying inconsistency with the concept of "ex-
treme culpability" and the execution of the mentally ill).
22 See DEREK DENCKLA & GREG BERMAN, CTR. FOR COURT INNNOVATION, RETHINKING

THE REVOLVING DOOR: A LOOK AT MENTAL ILLNESS IN THE COURTS 3-4 (2001), availableat
http://www.courtinnovation.org/_uploads/documents/rethinkingtherevolvingdoor.pdf (in-
dicating that there is a problem of recidivism when mentally ill inmates do not receive
proper care); see also HUMAN RIGHTS WATCH, ILL-EQUIPPED: U.S. PRISONS AND
OFFENDERS WITH MENTAL ILLNESS 3 (2003), available at http://www.hrw.org/reports/2003/
usal003/usal003.pdf (examining the inadequacy of current mental health care in prisons
and the need for reform).
23 It is impossible to know or discover who first observed that life consists of shades of

gray rather than clear black and white meaning. This assertion however is such a com-
monplace that it has become a bit of a bromide.
24 BEOWULF: A VERSE TRANSLATION (Daniel Donoghue ed., Seamus Heaney trans., W.

W. Norton & Co. 2002) (700-1000).

2008] WHEN MERCYSEASONS JUSTICE

1596,25 and the poem of Beowulf is said to have been "composed

some time between the middle of the seventh and the end of the
tenth century of the first millennium," 26 our society can learn
much from the juxtaposition of their characters' backgrounds,
ideals, and emotions. That The Merchant of Venice and Beowulf
are fictional only adds to their relevance and inherent truthful-
ness. In the words of the late Kurt Vonnegut:
[T]he only way in which Americans can rise above their or-
dinariness, can mature sufficiently to rescue themselves and
to help rescue their planet, is through enthusiastic intimacy
with works of their own imaginations. I am not especially
satisfied with my own imaginative works, my fiction. I am
simply impressed by the unexpected insights which shower
down on me when my job is to imagine, as contrasted with
the woodenly familiar 27ideas which clutter my desk when my
job is to tell the truth.
Delving into works of fiction, particularly The Merchant of Ve-
nice and Beowulf, can have the same effect that Vonnegut ex-
presses above: by thinking imaginatively, we attain insight that
enables us to find innovative, practical ideas and solutions.

IV. BEOWULF

A. Synopsis of Beowulf
Beowulf, while known as a story of heroism, has morsels of vi-
gilantism combined with justice. According to Beowulfs transla-
tor, Seamus Heaney:
The poem was written in England but the events it de-
scribes are set in Scandinavia, in a "once upon a time" that
is partly historical. Its hero, Beowulf, is the biggest pres-
ence among the warriors in the land of the Geats, a terri-
25 See Internet Shakespeare Editions, The Merchant of Venice: Shakespeare in Perfor-
mance, (asserting that Shakespeare's "Composition Date" for The Merchant of Venice is
"1596: 1595-1597"), http://internetshakespeare.uvic.ca/Theater/sip/playMV/main.html;
see also MICROSOFT ENCARTA ONLINE ENCYCLOPEDIA, The Merchant of Venice (2007)
(stating that the Shakespearian comedy The Merchant of Venice was written around
1596), http://www.encarta.msn.com/text_1741500443 0/Merchant-ofVenice.html.
26 BEOWULF, supra note 24, at xxiii.
27
KURT VONNEGUT, WAMPETERS, FOMA & GRANFALLOONS (OPINIONS) xxv-vi (Dial Press
Trade Paperbacks 2006).
 STJOHN'SJOURNAL OFLEGAL COMMENTARY [Vol. 23:3

tory situated in what is now southern Sweden, and early

in the poem Beowulf crosses the sea to the land of the
Danes in order to rid their country of a man-eating mon-
ster called Grendel. From this expedition (which involves
him in a second contest with Grendel's mother) he returns
in triumph and eventually rules for fifty years as king of
his homeland. Then a dragon begins to terrorize the coun-
tryside and Beowulf must confront it. In a final climactic
encounter, he does manage to slay the dragon, but he also
meets his own death and enters
28
the legends of his people
as a warrior of high renown.
Beowulf was, and is, looked upon as a hero, but he lacked mer-
cy. Beowulf began his adult life with an intense desire to fight
for the benefit and welfare of the people of his society; he essen-
tially strove for peace. Conversely, his life ended when he was
led by a vastly different passion: his pride. Just as in The Mer-
chant of Venice, Beowulf often makes reference to God and His
will, but while The Merchant of Venice seems to focus on the New
Testament's mercy, Beowulfs heart lies with Old Testament jus-
29
tice.
Grendel, the monster for whom Beowulf traveled to the land of
the Danes, was reminiscent of Satan. Just as the archangel Luci-
fer was jealous of God and turned to evil, Grendel, the "powerful
demon" '30 "nursed a hard grievance:" 3' Grendel hated to hear the
songs and praise in the mead hall, where people were joyous and
thankful for their Almighty's creation. 32 Grendel, "a fiend out of
hell,"33 lived:
in misery among the banished monsters,
Cain's clan, whom the Creator had outlawed
and condemned as outcasts. For the killing of Abel
the Eternal Lord had exacted a price:
28BEOWULF, supra note 24, at xxiii-iv.
29See Marie Padgett Hamilton, The Religious Principle in Beowulf, 61 PMLA 309, 309-
10, (1946) (stating that the people in the novel "are loyal to one true God ...like the cho-
sen people of the Old Testament"); see also LOREN COBB, BEOWULF: A POETIC WEAPON
FOR PEACE (2000) (noting that Beowulf presents a fascinating picture of the early influ-
ence of Christianity and "addresses an audience that knows the Old Testament well"),
http://www.aetheling.com/essaysBeowulf.pdf.
30 BEOWULF, supra note 24, at 5, 1. 86.
31BEOWULF, supra note 24, at 5, 1. 87.
32 BEOWULF, supra note 24, at 5, 11.87-89. "It harrowed [Grendel] to hear the din of the
loud banquet every day in the hall...." Id.
33BEOWULF, supra note 24, at 5, 1. 100.
2008] WHEN MERCYSEASONSJUSTICE

Cain got no good from committing that murder

because the Almighty made him anathema,
and out of the curse of his exile there
34
sprang
ogres and elves and evil phantoms.
The Biblical references are unambiguous: Cain and Abel were
the sons of Adam and Eve. 35 Cain was jealous of Abel because
God favored Abel over Cain. 36 Cain killed Abel.3 7 Consequently,
God put a curse on Cain, banishing him from the land and caus-
ing him to suffer for the remainder of his life. 38 Led by evil more
so than Cain, Grendel possessed neither goodness nor compas-
sion; he lacked humanity.
Grendel's attack upon the Ring-Danes was no small feat:
greedy and grim, he grabbed thirty men
from their resting places and rushed to his lair,
flushed up and inflamed from the raid, 39
blundering back with the butchered corpses.
The very next night, the
merciless Grendel
struck again with more gruesome murders. 40
Malignant by nature, he never showed remorse.
Grendel's "vicious raids and ravages" 41 lasted for twelve

34BEOWULF, supra note 24, at 6, 11.105-12.

35Genesis 4:1-2. "Adam lay with his wife Eve, and she became pregnant and gave birth
to Cain. She said, 'With the help of the LORD I have brought forth a man.' Later she gave
birth to his brother Abel." Id.
36 Genesis 4:2-5.
Now Abel kept flocks, and Cain worked the soil. In the course of time Cain brought
some of the fruits of the soil as an offering to the LORD. But Abel brought fat por-
tions from some of the firstborn of his flock. The LORD looked with favor on Abel and
his offering, but on Cain and his offering he did not look with favor. So Cain was very
angry, and his face was downcast.
Id.
31Genesis 4:8 "And while they were in the field, Cain attacked his brother Abel and
killed him." Id.
38Genesis 4:10-12.
The LORD said, "What have you done? Listen! Your brother's blood cries out to me
from the ground. Now you are under a curse and driven from the ground, which
opened its mouth to receive your brother's blood from your hand. When you work
the ground, it will no longer yield its crops for you. You will be a restless wanderer
on the earth. .
Id.
39BEOWULF, supra note 24, at 6, 11.122-25.
40BEOWULF, supra note 24, at 6, 11.135-37.
41BEOWULF, supra note 24, at 7,1. 152.
 ST JOHN'SJOURNAL OFLEGAL COMMENTARY [Vol. 23:3

years. 42 During which time:

he would never
parley or make peace with any Dane
nor stop his death-dealing nor pay the death-price.
No counselor could ever expect
fair reparation from those rabid hands.
43
All were endangered.
For the Danes, these times were far from peaceful. In order to
cope with Grendel's ceaseless attacks, the people began reaching
out to powerful counselors, who
would lend advice
plotting how best the bold defenders
might resist and beat off sudden attacks. 44
Still the attacks continued, with
panic after dark, people endured4 5
raids in the night, riven by the terror.
At long last, Beowulf,
the mightiest man on earth,
highborn and powerful, 46
sailed to save those "who needed defenders," 47 offering them his
"wholehearted help and counsel 48 when he heard the

stories of the plight [they] suffer[ed]

49
in [their] legendary hall.
He hoped to overcome Grendel in a single battle, 50 even renounc-
ing his sword and shield because Grendel refused to use wea-

42 See BEOWULF, supra note 24, at 6, 1. 147 (describing Grendel's rule lasting for "twelve
winters").
43 BEOWULF, supra note 24, at 7, 11. 1547-59. See also id. at n.2 "According to Anglo-
Saxon law, a murder or any unlawful killing could be resolved by the payment of a sub-
stantial fine to the family of the victim. It was the society's means of preventing the cycles
of feuds from beginning." Id.
44 BEOWULF, supra note 24, at 7, 11. 172-74.
45 BEOWULF, supra note 24, at 8, 11.192-93.
46 BEOWULF, supra note 24, at 8,11. 197-98.
47 BEOWULF, supra note 24, at 8, 1. 201.
48 BEOWULF, supra note 24, at 10, 1. 278.
49 BEOWULF, supra note 24, at 13, 11. 411-12.
50 See BEOWULF, supra note 24, at 13, 1. 426.
2008] WHEN MERCYSEASONS JUSTICE

pons. 51 Beowulf trusted fate for the outcome:

Whichever one death fells
must deem it a just judgment by God.
If Grendel wins, it will be a gruesome day;
he will glut himself on the Geats in the war-hall,
swoop without fear on that flower of manhood
as on others before. Then my face won't be there
to be covered in death: he will carry me away
as he goes to ground, gorged and bloodied;
he will run gloating with my new raw corpse
and feed on it alone, in a cruel frenzy
fouling his moor-nest.

Fate goes ever as fate must. 52

Beowulf risked his life to end Grendel's.
While Grendel was feared and viewed as a horrendous mon-
ster, Beowulf was known as the "prince of goodness," 53 but
proudly asserted:
"When it comes to fighting, I count myself
as dangerous any day as Grendel.
"54

Still, God was in control, and had laid his favor upon Beowulf ra-
ther than upon "God-cursed Grendel," 55 for:
the Lord was weaving
a victory on His war-loom for the Weather-Geats.
Through the strength of one they all prevailed;

51 See BEOWULF, supra note 24, at 13, 11. 433-40

I have heard moreover that the monster scorns
in his reckless way to use weapons;
therefore, to heighten Hygelac's fame
and gladden his heart, I hereby renounce
sword and the shelter of the broad-shield,
the heavy war-board: hand-to-hand
is how it will be, a life-and-death
fight with the fiend.
Id.
52 BEOWULF, supra note 24, at 13-14,11. 440-55.
53 BEOWULF, supra note 24, at 19,1. 676.
54 BEOWULF, supra note 24, at 19, 11. 676-78.
55 BEOWULF, supra note 24, at 19, 1. 711.
 ST JOHN'SJOURNVAL OFLEGAL COMMENTARY (Vol. 23:3

they would crush their enemy and come through

in triumph and in gladness. The truth is clear:
Almighty God rules over mankind
and always has. 56
57
A terrible battle ensued, with Beowulf overwhelming Grendel;
Beowulf
was not inclined
to allow [Grendel] to depart alive:
he did not consider that life of much account
to anyone anywhere. 58
And so:
Beowulf was granted
the glory of winning; Grendel was driven
under the fen-banks, fatally hurt,
to his desolate lair.

Clear proof of this

could be seen in the hand the hero displayed
high up near the roof: the whole of Grendel's
59
shoulder and arm, his awesome grasp.
Beowulf was honored and revered by the people for his heroism,
but he gave thanks to the Lord God for His help in loosening
60
evil's grasp on their society.
The chieftain of those previously scourged by Grendel compen-
sated Beowulf with gold for his great feat, 61 for Grendel
would have killed more, had not mindful God

56 BEOWULF, supra note 24, at 19,11. 696-702.

57 BEOWULF, supra note 24, at 21, 1. 787. Grendel "was overwhelmed." Id.
58 BEOWULF, supra note 24, at 21, 11.790-93.
59 BEOWULF, supra note 24, at 22, 11. 817-35.
60 See BEOWULF, supra note 24, at 25, 11. 927-41. Beowulf offers a prayer of thanks to

God:
now a man,
with the Lord's assistance, has accomplished something
none of us could manage before now
for all our efforts.
Id. at 11.938-41.
61 See BEOWULF, supra note 24, at 27, 11. 1052-53 (describing Beowulfs compensation,
paid in gold).
2008] WHEN MERCYSFASONS JUSTICE

and one man's daring prevented that doom. 62

While Grendel was incapacitated from committing future mur-
ders,
an avenger lurked
63
and was still alive,
grimly biding time.
Grendel's mother, who lived in "the cold depths" 6 4 of the "fearful
waters," 65 having been banished there after Cain killed his
brother, for Cain bore
misbegotten spirits...
66
the banished and accursed.
She
sallied forth on a savage journey, 67
grief-racked and ravenous, desperate for revenge.
She went to the hall of Heorot, coming upon and killing a great
warrior while he was asleep, and then
[s]he ... snatched their trophy,
6
Grendel's bloodied hand.
Once again, evil and madness had a hold on the people, as the
murder of one powerful force, Grendel, spurred the rage and re-
venge of a second force, Grendel's mother.
Beowulf pledged to end the life of Grendel's mother, as
[i]t is always better
to avenge dear ones than to indulge in mourning.

Let whoever can 69

win glory before death.

62 BEOWULF, supra note 24, at 27,11. 1055-56.

63 BEOWULF, supra note 24, at 34, 11.1257-58.
64 BEOWULF, supra note 24, at 34,1. 1261.
65 BEOWULF, supra note 24, at 34, 1. 1260.
66 BEOWULF, supra note 24, at 34, 1. 1266-1267.
67 BEOWULF, supra note 24, at 35, 11.1277-78.
68 BEOWULF, supra note 24, at 35, 11. 1302-03.
69 BEOWULF, supra note 24, at 37, 11. 1384-88.
 ST JOHN'SJOURNAL OFLEGAL COMMENTARY [Vol. 23:3

Beowulf, "indifferent to death," 70 slaughtered Grendel's mother,

and retrieved Grendel's head from his corpse, bringing it back to
the people as a sign of glory. Once again Beowulf praised God for
his victory, just as Beowulf himself was praised by the people
once more:
as the son of Halfdane spoke this wisdom:
"A protector of his people, pledged to uphold

truth and justice

In all things [Beowulf is]

even-tempered,
prudent and resolute. 7 1
Beowulf was acknowledged for drawing the Geat nation and the
Danes
into shared peace and a pact of friendship
72
in spite of hatreds [they had] harbored in the past.
Beowulf was known to all as a great and heroic warrior:
Thus Beowulf bore himself with valor;
he was formidable in battle yet behaved with honor
and took no advantage; never cut down
a comrade who was drunk, kept his temper
and, warrior that he was, watched and controlled
his God-sent strength
73
and his outstanding
natural powers.
At the end of his reign, however, Beowulf was once again faced
with a formidable enemy: a dragon. 74 Although Beowulf was old-
er and more frail, he
was too proud
to line up with a large army

70 BEOWULF, supra note 24, at 38, 1. 1443.

71 BEOWULF, supra note 24, at 44, 11. 1699-1706.
72 BEOWULF, supra note 24, at 48, 11.1857-58.
73 BEOWULF, supra note 24, at 55, 11. 2177-83.
74 See BEOWULF, supra note 24, at 56, 11. 2208-12(stating that Beowulf ruled his king-
dom in peace for fifty years before "a dragon on the prowl" began causing turmoil).
2008] WHEN MERCYSEASONSJUSTICE

against the sky-plague.7 5

As King, rather than engaging in warfare for the welfare of his
people, he
pursue[d] this fight
76
for the glory of winning.
Beowulf killed the dragon, but lost his life as well. His death
not only left his society without a king, but endangered their se-
curity as well, as the Swedes were likely to cross their borders
and "attack in force"7 7 when they found out that Beowulf was
78
dead.

B. The Justice within Beowulf

Beowulf was known as a great hero because he was strong,
powerful, brave and effective. He brought peace to his people by
ridding them of monsters, but with his successes, he may have
allowed new evils to befall them. Beowulf courageously remedied
horrific situations single-handedly, but focused on the safety of
the people within his society rather than on bestowing true jus-
tice upon violent offenders. To Beowulf, justice was "eye for an
eye," rather than "turn the other cheek." When taking the whole
picture into account, however, merciless justice may have been
Beowulfs only option, especially as to Grendel.
Not often do we come across a manifestation of pure evil:
Grendel was not human, he was a monster. Grendel was culpa-
ble of his crimes because he had free will. Motivated by jealousy
and hatred, Grendel killed men because they were joyous and
singing. Possessing no remorse, he killed not just one, but many
men. It seems that there was no possibility of rehabilitation or
even deterrence with Grendel, so incapacitation was the only re-
medy. No place existed that could contain a monster of Grendel's
caliber, and so death was most likely the only means of incapaci-
tating him from murdering again. Beowulfs killing of Grendel
was just because it was the most fair and reasonable choice.
Determining the level of Grendel's mother's culpability is more
75 BEOWULF, supra note 24, at 59, 11.2345-47.
76 BEOWULF, supra note 24, at 63, 11. 2513-15.
77 BEOWULF, supra note 24, at 74, 1. 3002.
78 BEOWULF, supra note 24, at 74, 11. 2999-3003 (describing the belief that once the
Swedes discover that Beowulf is dead, they will revive their "vicious feud").
 STJOHN'SJOURNAL OFLEGAL COMMENTARY [Vol. 23:3

complicated. As a mother, she was significantly affected by

Grendel's death. She was mad, possibly insane with sadness,
and imposed her grief onto the people through murder. As Beo-
wulf said:
It is always better 79
to avenge dear ones than to indulge in mourning.

When Grendel's mother acted in accordance with Beowulfs man-

tra, Beowulf fought and killed her, in order to protect the people.
Beowulfs actions were in harmony with the very same mantra,
but he was rewarded as a hero. The reason is that Beowulf
worked for peace, while Grendel and his mother strove against it.
They represented all that is evil, while God favored Beowulf.
When peace and happiness are the primary desires of society
good is encouraged and evil discouraged. In order to accomplish
his society's goal of peace, it was necessary for Beowulf to also
kill Grendel's mother because she was a monster of proportions
similar to her son, capable of wiping out their entire society in
one fell swoop. While Grendel's mother may have seemed more
justified in her killings than Grendel, she was not. It is not justi-
fiable to kill for revenge or out of anger, with no purpose other
than for retribution. It adds nothing to society, and removes a
life. Grendel's mother did not deserve mercy.
As the poem of Beowulf comes to an end, it is evident that
Beowulf operated under dissimilar motivating factors near the
end of his life and reign as king. Whereas he was originally mo-
tivated solely by God's will, peace, and the best outcome for socie-
80
ty, in his old age his pride became a greater influence upon him.
81
He risked his life to kill an enemy of his society and succeeded.
However, Beowulf died from that fight, leaving his society with-
out a leader, and without a protecting force.8 2 They became vul-

79 BEOWULF, supra note 24, at 37, 11. 1384-85.

80 See BEOWULF, supra note 24, at 63, 11.2510-15 (noting Beowulfs boast that though
he was old, he would fight as King "for the glory of winning").
81 See BEOWULF, supra note 24, at 67, 11. 2688-2706 (describing Beowulfs battle with
the dragon, "the bane of the people" during which the dragon clamps his fangs into Beo-
wulf's neck).
82 Compare BEOWULF, supra note 24, at 74, 11. 2724-2736 (recounting Beowulf dying
words in which he described how, during his life, he had protected his people form all
neighboring clans because none would dare attack him) with BEOWULF supra note 24 at
2008] WHEN MERCYSEASONS JUSTICE

nerable to invasions from neighboring enemy states.8 3 While it

was just for Beowulf to kill the dragon, it was also just for Beo-
wulf to die as well because he killed for the wrong reasons. Kill-
ing the dragon may have been necessary, but Beowulf killed him
to prove his strength as a warrior and courage as a king, despite
the fact that he was older and had a more important duty: to pro-
tect his people through his leadership and guidance. Significant-
ly, mercy was not a component in the execution of justice within
Beowulf. Rather, forces of pure evil, that wreak havoc and can-
not be rehabilitated or deterred, must receive merciless justice,
and the justice given must be fair, reasonable, and in accordance
with truth. Mercy cannot be bestowed when it will inhibit peace.

V. THE MERCHANT OF VENICE

A. Synopsis of The Merchant of Venice

The Merchant of Venice is a story of love, and may even be a
story of trials and tribulations, but a story of justice and mercy it
is not. Antonio, the play's namesake, was a Venetian merchant
whose wealth was invested overseas.8 4 Antonio, though he
[held] the world but as the world []
A stage where every man86
must play a part,
[A]nd [his] a sad one,
he found some pleasure in lending money to Bassanio, his "most
noble kinsman."8 6 Bassanio appealed to Antonio with a plan to
"unburden all [his] plots and purposes,"8 7 for in "Belmont [was] a
lady richly left" Portia.8 8 Bassanio told him

74, 11. 2999-3003 (predicting that the Swedes, a neighboring clan, were likely to attack
Beowulfs people once they learn that he is dead).
83 See BEOWULF, supra note 24, at 74, 11. 2999-3003 (predicting that the Swedes were
likely to cross the border and attack once the learned that Beowulf was dead).
84 SHAKESPEARE, supra note 1, at act 1, sc. 1, 11. 1-46. Antonio contemplated his sadness
while his companion, Salarino, assumed Antonio was distressed about his merchandise.
Id. at 1-41. However, Antonio had faith in his wealth and said his merchandise was not
the cause of his sadness. Id. 42-46.
85 SHAKESPEARE, supra note 1, at act 1, sc. 1, 11.81-83.
86 SHAKESPEARE, supra note 1, at act 1, sc. 1, 1. 60.
87 SHAKESPEARE, supra note 1, at act 1, sc. 1, 1. 140.
88 SHAKESPEARE, supra note 1, at act 1, sc. 1, 1. 168.
 ST JOHN'SJOURAAL OFLEGAL COMMENTARY [Vol. 23:3

O my Antonio, had I but the means

To hold a rival place with one of [her suitors]

That I should questionless be fortunate!8 9

Antonio's "fortunes [were] at sea"90; he had neither

money nor commodity

To raise a present sum. 9 1
Even so, Antonio offered his credit to Bassanio, which he would
allow to be strained
even to the uttermost
To furnish [Bassanio] to Belmont to fair Portia. 92

a. The Loan
And so the stage was set for the drama of The Merchant of Ve-
nice. Bassanio went to Shylock, a Jewish moneylender, to borrow
three thousand ducats in Antonio's name, to be paid back at the
end of three months. 93 Shylock did not want to lend the money to
Antonio, but agreed to do so under intense terms: that Antonio
would sacrifice a pound of his flesh to Shylock if he forfeited the
bond. 94 Antonio sealed unto the bond, 95 undeterred, saying, "[t]he
Hebrew will turn Christian; he grows kind,"' 96 and felt secure be-
cause his "ships [were to] come home a month before the day." 97
People referred to Shylock as a "devil,"98 and an "evil soul."99
Shylock's own servant, Lancelet, deserted him. 10 0 Worse, Shy-
89 SHAKESPEARE, supra note 1, at act 1, sc. 2, 11.180-83.
90 SHAKESPEARE, supra note 1, at act 1, sc. 2, 1. 184.
91SHAKESPEARE, supra note 1, at act 1, sc. 2, 11.185-86.
92 SHAKESPEARE, supra note 1, at act 1, sc. 2, 11.188-89.
93 See SHAKESPEARE, supra note 1, at act 1, sc. 3, 11.9-10 Shylock accepts Bassanio's
offer, stating:
Three thousand ducats for three months,
and Antonio bound.
Id.
94 See SHAKESPEARE, supra note 1, at act 1, sc. 3, 11. 156-63 (proposing his infamous
terms, Shylock sets forth his condition to the loan).
95 SHAKESPEARE, supra note 1, at act 1, sc. 3, 1. 183 (agreeing to Shylock's severe terms).
96 SHAKESPEARE, supra note 1, at act 1, sc. 3, 1. 191.
97 SHAKESPEARE, supra note 1, at act 1, sc. 3,1. 194.
98 SHAKESPEARE, supra note 1, at act 1, sc. 3, 1. 107.
99 SHAKESPEARE, supra note 1, at act 1, sc. 3, 1. 108.
100 SHAKESPEARE, supra note 1, at act 2. sc. 2, 11.22-31.
2008] WHEN MERCYSEA SONS JUSTICE

lock's daughter abandoned him soon after, saying:

But though I am a daughter to his blood,
I am not to his manners.

I shall end this strife,

Become a Christian and [Lorenzo's] loving wife. 10 1
Though Shylock's daughter Jessica claimed she would end her
paganism and become Christian, while in her flight from her fa-
ther, she stole his jewels and his money. 10 2 Shylock was intensely
angered at her desertion and at his losses. Tubal informed Shy-
10 3
lock of Antonio's ill luck overseas, and Shylock was pleased.

b. The Trial
All the while, the love between Bassanio and Portia was grow-
ing. When Portia discovered Antonio's dire fate, she vowed to
save her lover's friend, and accomplished this through deceit,
saying:
I never did repent for doing good,
Nor shall not now. 104
Portia viewed herself as a savior of Antonio:
How little is the cost I have bestowed
In purchasing the semblance of my soul
From out the state of hellish cruelty!105

LANCELET: To be ruled by my conscience, I should stay with the/

Jew my master, who (God bless the mark) is a kind
of devil; and to run away from the Jew, I should be
ruled by the fiend, who (saving your reverence) is
the devil himself. Certainly the Jew is the very devil
incarnation, and, in my conscience, my conscience
is but a kind of hard conscience to offer to counsel
me to stay with the Jew. The fiend gives the more
friendly counsel. I will run, fiend. My heels are at
your commandment. I will run.
Id.
1o1SHAKESPEARE, supranote 1, at act 2, sc. 4, 11.18-21.
102 See SHAKESPEARE, supra note 1, at act 2, sc. 8, 11. 12-23. Solanio, laughing with Sa-

larino at Shylock's misfortunes, referred to Shylock as "dog Jew" and recount his reaction
to his daughter fleeing. Id.
103 See generally SHAKESPEARE, supra note 1, at act 3, sc. 1 (depicting Tubal sharing

with Shylock the "news from Genoa.").

104 SHAKESPEARE, supra note 1, at act 3, sc. 4, 11.10-11.
105 SHAKESPEARE, supra note 1, at act 3, sc. 4, 11.19-21.
 ST JOHN'SJOURNAL OF LEGAL COMMENTARY [Vol. 23:3

Portia disguised herself as a doctor of laws, with a letter of intro-

duction for the Duke from Doctor Bellario, Portia's cousin, who
had written a letter of falsities for her.106 Portia arrived at Anto-
nio's trial, with a plan to overthrow Shylock and benefit Antonio
along with her new husband, Bassanio, and through their happi-
ness, she would also profit. Shylock was aware that mercy was
expected of him, 10 7 but could not bring himself to grant it.108 An-
tonio acknowledged the contract he had executed with Shylock to
be valid.109 Portia implored Shylock to be merciful and attempted
to "mitigate the justice of [his] plea,"'110 but Shylock was steadfast
in his determination for a pound of flesh from Antonio and
turned down an offer of even three times the amount of the mon-
ey that he had lent."' In his conversation with Portia, Shylock's
intense hatred for, and malice against, Antonio was apparent as
he refused Portia's suggestion that a surgeon be present to stop
106 SHAKESPEARE, supra note 1, at act 4, sc. 1, 11.152-71. The letter read:
Your Grace shall understand that, at the receipt of
your letter, I am very sick, but in the in that your
messenger came, in loving visitation was with me a
young doctor of Rome. His name is Balthazar.I
acquainted him with the cause in controversy between
the Jew and Antonio the merchant. We turned o'er
many books together. He is furnished with my opin-
ion, which, bettered with his own learning(the great-
ness whereof I cannot enough commend), comes with
him at my importunity to fill up your Grace's request
in my stead. I beseech you let his lack of years be no
impediment to let him lack a reverend estimation, for I
never knew so young a body with so old a head.
I leave him to your gracious acceptance, whose trial
shall better publish his commendation.
Id. (italics in original).
107See SHAKESPEARE, supra note 1, at act 3, sc. 3, 1. 1. Shylock protests: "Tell me not of
mercy." Id.
108 See SHAKESPEARE, supra note 1, at act 3, sc. 3, 11. 5-9. Despite expectations to the
contrary, Shylock remains firm:
I'll have my bond. Speak not against my bond.
I have sworn an oath that I will have my bond.
Thou call'dst me a dog before thou hadst a cause,
But since I am a dog, beware my fangs.
The Duke shall grant me justice.
Id.
109See SHAKESPEARE, supra note 1, at act 3, sc. 3,11. 27-29 (showing that even though
Solanio thought the Duke would "never grant this forfeiture to hold," Antonio lamented
that "The Duke cannot deny the course of law").
110SHAKESPEARE, supra note 1, at act 4, sc. 1, 1. 209.
M See SHAKESPEARE, supra note 1, at act 4, sc. 1, 11. 235-38 (refusing the offer of"thrice
the money offered" him, Shylock insists to make good the oath that he has "in heaven").
2008] WHENMERCYSEASONS JUSTICE

Antonio's wounds from bleeding during the cutting of his flesh

112
because it was not expressed in the bond.
Portia used wit and cunning in her interpretation of Shylock's
bond with Antonio in order to reach the most favorable result for
her husband's closest friend. Portia read the contract as expres-
sio unius est exclusio alterius,1 13 stating:
This bond doth give thee here no jot of blood.
The words expressly are "a pound of flesh."
Take then thy bond, take thou thy pound of flesh,
But in the cutting it, if thou dost shed
One drop of Christian blood, thy lands and goods
Are by the laws of Venice1 1confiscate
4
Unto the state of Venice.
Portia validated her words with the pleas of Shylock:
For, as thou urgest justice, be assured 11 5
Thou shalt have justice more than thou desir'st.
In vain, Shylock attempted to give Antonio leniency to preserve
his own interests, first applying for Antonio's offer of three times
the bond amount, and then settling for a mere repayment of the
bond's principal. 116 However, Portia refused him because he had
refused both options in open court and now should "have merely
justice and his bond."1 1 7 On top of this castigation, Portia brought
further charges against Shylock:
Tarry, Jew.
The law hath yet another hold on you.
It is enacted in the laws of Venice,

112 See SHAKESPEARE, supra note 1, at act 4, sc. 1, 11. 269-74 (refusing the suggestion

that a doctor be present, Shylock justifies his position because the presence of a doctor
was not part of the agreement).
113BALLENTINE'S LAW DICTIONARY 4421 (3d ed. 1969). Defining expressio unius est ex-
clusio alterius as:
The expression of one thing implies the exclusion of another thing. A maxim
applied in a construction of contracts to the effect that the expression in a con-
tract of one or more things of a class implies the exclusion of all not expressed.
. . A principle of statutory construction, but as an aid to construction, not a rule
of law, the principle being of limited use and application.
Id.
114SHAKESPEARE, supra note 1, at act 4, sc. 1, 11.319-25.
11 SHAKESPEARE, supra note 1, at act 4, sc. 1, 11.329-30.
116See SHAKESPEARE, supra note 1, at act 4, sc. 1, 11.332-50 (negotiating to no avail for
the enforcement of the terms of his bond).
117SHAKESPEARE, supra note 1, at act 4, sc. 1, 11.353.
 ST JOIN'SJOURNVAL OFLEGAL COMMENTARY [Vol. 23:3

If it be proved against an alien

That by direct or indirect attempts
He seek the life of any citizen,
The party 'gainst the which he doth contrive
Shall seize one half his goods; the other half
Comes to the privy coffer of the state,
And the offender's life lies in the mercy
Of the Duke only, 'gainst all other voice.
In which predicament I say thou stand'st
For it appears by manifest proceeding
That indirectly, and directly too,
Thou hast contrived against the very life
Of the defendant, and thou hast incurred
The danger formerly by me rehearsed. 118
Down, therefore, and beg mercy of the Duke.
In answer to this peril, the Duke immediately responded:
That thou shalt see the difference of our spirit,
I pardon thee thy life before thou ask it.
For half thy wealth, it is Antonio's;
The other half comes to the general state,
Which humbleness may drive unto a fine.1 1 9
Shylock, miserable at the prospect of being penniless, lamented:
you take my life, 120
When you do take the means whereby I live.

Portia raised the possibility of mercy to Antonio, who answered:

So please my lord the Duke and all the court
To quit the fine for one half of his goods,
I am content, so he will let me have
The other half in use, to render it
Upon his death unto the gentleman
That lately stole his daughter.
Two things provided more; that for this favor
He presently become a Christian;
The other, that he do record a gift,
Here in the court, of all he dies possessed

I1s SHAKESPEARE, supra note 1, at act 4, sc. 1, 11.361-78.

119 SHAKESPEARE, supra note 1, at act 4, sc. 1, 11.384-88.
120 SHAKESPEARE, supra note 1, at act 4, sc. 1, 11.392-93.
2008] WHEN MERCYSEASONS JUSTICE

Unto his son Lorenzo and his daughter.121

And so Shylock left the court, with his life, but without his faith;
neither mercy nor justice was bestowed upon him.

B. Shylock

a. Shylock's Situation in Life

A victim of oppression from the womb, Shylock was denied citi-
zenship in Venice even though it was the city of his birth. 122 His
Jewish heritage and religion conferred "alien"123 status on him.
In the third scene of the first act of The Merchant of Venice, Shy-
lock is introduced into the scene as "Shylock the Jew," while the
accompanying person, a Christian Venetian, is simply "Bassa-
nio."1 24 When Bassanio and Antonio entreated Shylock to loan
the three thousand ducats to them, Shylock callously responded:
I hate him for he is a Christian,

He hates our sacred nation, and he rails,

Even there where merchants most do congregate,
On me, my bargains, and my well-won thrift,
Which he calls "interest."
1 25
Cursed be my tribe
IfI forgive him!
A stranger to Shylock's past would think him harsh, but his emo-
tional outbursts are understandable in combination with his
background. As Antonio implored Shylock to loan the money to
him, Shylock replied:
Signior Antonio, many a time and oft
In the Rialto you have rated me
About my moneys and my usances.

121 SHAKESPEARE, supra note 1, at act 4, sc. 1, 11.396-406.

122 See SHAKESPEARE, supra note 1, at 166 n.364 (explaining that "[a]s a Jew, Shylock
would have been denied citizenship in Venice).
123 SHAKESPEARE, supra note 1, at act 4, sc. 1, 1. 364; see also Peter K. Yu, Piracy, Pre-
judice, and Perspectives: An Attempt To Use Shakespeare To Reconfigure The U.S- China
Intellectual PropertyDebate, 19 B.U. INT'L L.J. 1, 43 (2001) (noting that the alien statute
that applied against Shylock had a discriminatory effect against Jews).
124 SHAKESPEARE, supra note 1, at act 1, sc. 3 (indicating Bassanio and Shylock the Jew
enter the scene).
125 SHAKESPEARE, supra note 1, at act 1, sc. 3, 11.42-52.
 ST JOHN'SJOURNAL OFLEGAL COMMENTARY [Vol. 23:3

Still I have borne it with a patient shrug

(For suffrance is the badge of all our tribe).
You call me misbeliever, cutthroat dog,
And spet upon my Jewish gaberdine,
And all for use of that which is mine own.
Well then, it now appears you need my help.
Go to, then. You come to me and you say
"Shylock, we would have moneys"-you say so,
You, that did void your rheum upon my beard
And foot me as you spurn a stranger cur
Over your threshold. Moneys is your suit.
What should I say to you? Should I not say
"Hath a dog money? It is possible
A cur can lend three thousand ducats?" Or
Shall I bend low, and in a bondman's key
With bated breath and whisp'ring humbleness,
Say this: 'Fair sir, you spet on me on Wednesday
last;
You spurned me such a day; another time
You called me 'dog'; and for these courtesies
I'll lend you thus much moneys? 126
To the citizens of Venice, especially Bassanio and Antonio, Shy-
lock was not human, because he was a Jew.

b. The Relationship of Shylock and Antonio

A life of subjugation encompassed Shylock's past, present and
future. Upon encountering Shylock, Antonio would disgrace him
in every way imaginable. Persecuting him for his religion, Anto-
nio called Shylock a "misbeliever." 127 Antonio spit on Shylock's
Jewish robe and on his beard, even kicking him and calling him a
"dog." 128 Still, Shylock revealed the aching and wretchedness he
felt about his life, expressing to Antonio:
I would be friends with you and have your love,
Forget the shames that you have stained me with,
Supply your present wants, and take no doit, 129
Of usance for my moneys, and you'll not hear me!
Aware that any attempt at amity or even tolerance with Antonio

126 SHAKESPEARE, supra note 1, at act 1, sc. 3, 11. 116-39.

127 SHAKESPEARE, supra note 1, at act 1, sc. 3, 1. 121.
128SHAKESPEARE, supra note 1, at act 1, sc. 3, 1. 138.
129 SHAKESPEARE, supra note 1, at act 1, sc. 3,11. 149-52.
2008] WHEN MERCYSEASONS JUSTICE

would be in vain, Shylock agreed to lend the money to him, with

one caveat. 130 If Antonio forfeited the loan in three months, he
would also forfeit a pound of his flesh,
to be cut off and taken
In what part of [Antonio's] body pleaseth [Shylock].131

Shylock effectively designated a contract for Antonio's life. Anto-

nio, however, was not dissuaded, and sealed to the bond.
What motivated Shylock in his desire to kill Antonio? Suffer-
ing from oppression may have influenced Shylock to cruelly wag-
er against Antonio's life, but it cannot be said he was predisposed
to commit crimes against Christians. Shylock had free will. Not
only was his crime premeditated, but he also had several chances
to have mercy on Antonio and refused them.' 32 Although Shy-
lock's position in life was undesirable and all whom he came in
contact with treated him harshly, his actions were unjustifiable.
Revenge drove Shylock to long for the blood of Antonio:
SALARINO: Why, I am sure if he forfeit, thou wilt not
take his flesh! What's that good for?

SHYLOCK: To bait fish withal; if it will feed nothing

else, it will feed my revenge. He hath
disgraced me and hindered me half a mil-
lion, laughed at my losses, mocked at my
gains, scorned my nation, thwarted
my bargains, cooled my friends, heated mine ene-
mies-and what's his reason? I am a Jew. Hath not
a Jew eyes? Hath not a Jew hands, organs, dimen-
sions, senses, affections, passions? Fed with the
same food, hurt with the same weapons, subject to
the same diseases, healed by the same means,
warmed and cooled by the same winter and sum-
mer as a Christian is? If you prick us, do we not
bleed? If you tickle us, do we not laugh? If you

130 See Randy Lee, Who's Afraid of William Shakespeare?: Confronting our Concepts of
Justice and Mercy in the Merchant of Venice, 32 U. DAYTON L. REV. 1, 11 (2006) (describ-
ing Shylock's request that he "may take a pound of Antonio's 'fair flesh").
131SHAKESPEARE, supra note 1, at act 1, sc. 3, 11.162-63.
132 Compare SHAKESPEARE, supra note 1, at act 4, sc. 1, 11. 10-14 (describing Shylock's
action as "tyranny") with SHAKESPEARE, supra note 1, at 140 n.14 (clarifying that "tyran-
ny" in this context means "unmerciful action")..
 STJOHN'SJOURNAL OFLEGAL COMMENTARY [Vol. 23:3

poison us, do we not die? And if you wrong us, shall

we not revenge? If we are like you in the rest, we will
resemble you in that. If a Jew wrong a Christian,
what is his humility? Revenge. If a Christian wrong
a Jew, what should his sufferance be by Christian
example? Why, revenge! The villainy you teach me I
will execute, and it shall go hard but I will better the
instruction. 133
Shylock claimed Christians taught him villainy, but rather than
forgiving them, he looked at them with a retributivist eye. 134 Shy-
lock spoke these words not to invite sympathy, but as "self-
135
justification for [the] villainy intended."

c. The End

i. First, as to Antonio
While Antonio's behavior may have been morally reprehensi-
ble, it is not usually warranted or justifiable to punish ethical
wrongs criminally. The difference between Antonio and Shylock
was that Shylock acted on his malicious thoughts. And while we
would like to deter such thoughts in the first place, we cannot
punish thoughts. Racial prejudices and economic inequalities
evidence larger societal problems. 13 6 The prevention of larger
problems comes through fixing the roots of those problems.
When people commit crimes, it is vital to understand why they
committed those crimes, so that the underlying causes may be
addressed. Every child should have adequate food, clothing and
shelter, and have the opportunity to grow in a supportive, loving,
stable environment. A school's quality of learning should not
133SHAKESPEARE, supra note 1, at act 3, sc. 1, 11.50-72.
134See Michael Jay Willson, A View of Justice in Shakespeare's The Merchant of Venice
and Measure for Measure, 70 NOTRE DAME L. REV. 695, 721 (1995) (describing one actor's
portrayal of Shylock "as an embodiment of the Old Testament 'justice' which was an 'eye
for an eye"').
135 John R. Cooper, Shylock's Humanity, 21 SHAKESPEARE QUARTERLY 117, 118 (1970)
(quoting BERNARD GREBANIER, THE TRUTH ABOUT SHYLOCK 204 (1962)), available at
http:/llinks.jstor.org/sici?sici=0037-
3222%28197021%2921%3A2%3Cl17%3ASH%3E2.0.CO%3B2-W (last viewed April 13,
2008).
136 See Hope Babcock, Environmental Justice Clinics: Visible Models of Justice, 14
STAN. ENVTL. L.J. 3, 52 (1995) (describing social and economic inequities as society's prob-
lems); see also Carol R. Goforth, 'What is She?' How Race Matters and Why it Shouldn't,
46 DEPAUL L. REV. 1, 104-05 (1996) (noting social and economic inequality in America).
2008] WHEN MERCYSEASONS JUSTICE

vary according to which neighborhoods it serves. Early in life,

schools must teach that we are all equal in worth, and not just to
tolerate, but to embrace each other's differences.
The violent philosophies and temperaments of both Shylock
and Antonio are partly due to their environments and upbring-
ing, as is evident from their deeply held prejudices. Antonio vio-
lently spat on Shylock, shunning him with vulgarities and de-
meaning names, while Shylock violently executed a contract for a
137
pound of Antonio's flesh, which Shylock would cut himself.
Understanding the reasons why people act in certain ways is vi-
tal for the prevention of crimes. 138 In our society today, as the
faces of criminals become younger and younger, we must realize
that just "[a]s in the natural world, there are complex links be-
tween the quality of individual human development and the sta-
tus of the human community."1 39 If we can adequately target the
youths of our society, not only to teach them love and mercy, but
also to better their environments, the peaceful effects upon our
society will be boundless. According to Robin Karr-Morse, li-
censed family therapist and first executive director of the Child-
ren's Trust Fund of Oregon,1 40 and Meredith S. Wiley, Chief of
Staff to the Oregon Speaker of the House,1 41 "[t]he quality of the
human environment is directly tied to each individual's ability to
love, to empathize with others, and to engage in complex think-
ing. By failing to understand the cumulative effects of the poi-
sons assaulting our babies in the form of abuse, neglect, and toxic
substances, we are participating in our own destruction." 142 Karr-

137 See Ken Masugi, Race, the Rule of Law, and The Merchant of Venice: From Slavery
to Citizenship, 11 NOTRE DAME J.L. ETHICS & PUB. POL'Y 197, 204 (1997) (outlining rela-
tions between Antonio and Shylock).
138 See Reza Fadaei-Tehrani & Thomas M. Green, Crime and Society, 29 INT'L J. OF
SOCIAL ECON. 781, 781 (2002), availableat http://www.emeraldinsight.com/Insight/
ViewContentServlet;jsessionid=OBF5COC464FB12C2B8OD5114DC15C 192?Filename=Pu
blishedlEmeraldFullTextArticle/Articles/0060291002.html (noting that the "gains and
costs of criminal behavior include psychic elements."); see also Criminology: The Study of
Crime and Behavior, (describing various punishment theories and their underpinnings),
http://www.rpi.edu/-verwyc/lawchap5.htm (last visited April 13, 2008).
139 ROBIN KARR-MORSE & MEREDITH S. WILEY, GHOSTS FROM THE NURSERY 12 (Atlantic
Monthly Press 1997).
140 The Paula Gordon Show, http://www.paulagordon.com/shows/morse/ (last visited
April 13, 2008).
141 The Paula Gordon Show, http://www.paulagordon.com/shows/morse/ (last visited
April 13, 2008).
142 KARR-MORSE & WILEY, supra note 139, at 12.
 ST JOHNSJOURNAL OFLEGAL COMMENTARY [Vol. 23:3

Morse and Wiley, writers of Ghosts from the Nursery,143 worked

together to design and manage the Children's Care Team a group
charged with restructuring Oregon's services to families and
children. 144 Their message supports the idea that it is not enough
to provide food, shelter, and clothing for every child-love is es-
sential.
Considering that "a growing percentage of our babies are now
gestating in and being born into an environment perfectly de-
signed to breed rage and despair," 14 5 it is not surprising that so
much violence takes place every day in our society in "physical,
emotional, social, [and] verbal" forms. 146 Living in a peaceful so-
ciety encompasses more than the criminal world: Peace starts at
home. "Home" is a fluid concept in regards to where and with
whom children are living, but a "home" should always have love
147
and support. Where love is absent, hatred abounds.

143 See Joanie Connors, Ghosts from the Nursery: Tracing the Roots of Violence (book re-
view), http://www.csudh.edu/dearhabermas/bkrevviol01.htm (last visited April 13, 2008)
(summarizing the book written by Karr-Morse and Wiley); see also The Paula Gordon
Show, http://www.paulagordon.comlshows/morse/ (last visited April 13, 2008) (stating
that Karr-Morse and Wiley co-authored the book).
144 The Paula Gordon Show, http://www.paulagordon.com/shows/morse/ (last visited
April 13, 2008).
145 KARR-MORSE & WILEY, supra note 139, at 14.
146 KARR-MORSE & WILEY, supra note 139 at 14. See also id. at 13-14.
Each year the Children's Defense Fund publishes a yearbook entitled The State
of America's Children.According to their 1996 and 1997 issues: A baby is born
every minute to a teenage mother. The mortality rate for American babies un-
der the age of one is higher than that of any other western industrialized na-
tion; African-American babies are more than twice as likely to die in their first
year of life as white babies. Twenty-five percent of our preschool children live
below the poverty level. One in four foster children in five states sampled en-
tered foster care before his or her first birthday. Newborns make up the largest
share of those infants. One in three victims of physical abuse is a baby less
than twelve months old. Every day a baby dies of abuse or neglect at the hands
of his or her caregivers. Three of every four children murdered in the twenty-
six top industrialized nations combined were American. Only 8.4 percent of in-
fant and toddler care in U.S. child care centers is considered developmentally
appropriate care; 51.1 percent was judged mediocre quality care, and 40.4 per-
cent poor quality care.
Id. See generally HelpingAmericasYouth.gov, Introduction to Risk Factors
and Protective Factors, http://guide.helpingamericasyouth.govlprogramtool-
factors.cfm (last visited Mar. 24, 2008). This excerpt identifies certain risk fac-
tors, including being from a broken home, to participating in risky behaviors,
including violence. Id.
147 See KARR-MORSE WILEY, supra note 139, at 300. Factors associated with violence

include larger environmental factors: "Living below community economic norm, modeling
of violent solutions to problems by key models, modeling of weapon use in community;
access to weapons, unavailability of involved adult who teaches values and values child,
[and] modeling of alcohol, drug use to deal with problems." Id. The authors present "The
2008] WHENMERCYSEASONS JUSTICE

ii. Shylock's Sentence

Shylock was wronged countless times throughout his life. 148 He
invites sympathy and sympathy is warranted. But his response,
vengeance, was not warranted. While it was understandable and
justifiable for Shylock to have felt strong, angry emotions against
his persecutors, he was not justified in acting on those emotions
in a criminal manner. Criminal acts of vengeance and revenge
are not acceptable or desirable for a peaceful society. 149 In killing
Antonio, Shylock's oppression would not end. When people act on
their emotions of anger and vengeance, violence is perpetuated
amongst society. In life, returning evil for evil, causing further
harm to punish a previous harm, only brings strife and more
sadness. While Shylock should have been rehabilitated, it is
questionable whether incapacitation would have been warranted.
He obeyed the law to the best of his ability; even in his attempt to
take a life, Shylock did so by executing a contract, which the "vic-
tim" willingly signed. Shylock's crime, making a contract in
which the penalty for forfeiture was a pound of flesh, did not
bring about a tangible harm because Antonio did not lose an
ounce of blood, and was even able to save his principal from the

Primary Prevention of Violence: A Continuum of Programs," which seems to help, if not

solve, many of the problems plaguing our society. The programs include: Pre-parenting
training in schools, comprehensive pregnancy prevention, comprehensive prenatal health
care, home visitation for all newborns, education for first-time parents in emotional and
behavioral development, day care and preschool education, skill training for parents of
high-risk preschoolers, and education for professionals in emotional and behavioral devel-
opment. Id. at 305-09. Moreover, in homes where parents exhibit violence towards one
another, children show a tendency to mimic this violent behavior in their own adult lives.
See also Marjory D. Fields, The Impact of Spouse Abuse on Children and Its Relevance in
Custody and Visitation Decisions in New York State, 3 CORNELL J.L. & PUB. POL'Y 221,
231 (1994). 'The tendency of child witnesses to model violent behavior is well estab-
lished." Id.
148 See e.g., Cooper, supra note 135, at 117 (opining that Shylock's character could have
been crafted as a tragic figure); see also Steven Berkoff, Theater: Shakespeare Wrote Arias
for Villains, NEW YORK TIMES, Jan. 14, 2001, available at
http://query.nytimes.com/gst/fullpage.html?res=9507EEDF103AF937A25752COA9679C8B
63&scp=2&sq=shylock+wronged&st=nyt (providing that "Shylock is denied the love of an
entire nation").
149 See e.g., DANIELLE S. ALLEN, THE WORLD OF PROMETHEUS: THE POLITICS OF

PUNISHING IN DEMOCRATIC ATHENS 18 (Princeton Univ. Press 2002) (2000) (explaining

that in modern society acts of revenge are not considered acceptable as they are personal
and excessive); see also J. Daryl Charles, Thoughts on Revenge and Retribution,
http://pewforum.org/deathpenalty/resources/reader/20.php (opining that revenge is "wild
and 'insatiable"').
 ST JOHItN'SJOURNAL OFLEGAL COMMENTARY [Vol. 23:3

loan. 150 However, it is impossible to know whether Shylock would

have completed his crime had Portia not interfered with the out-
come of the contract.
The optimal punishment for Shylock was one that both de-
terred him from pursuing violent means to an end, and rehabili-
tated him from acting on angry impulses. If Shylock were ar-
rested today for this same crime, he would most likely serve time
in jail and attend a court-mandated anger management pro-
gram-a fair and reasonable punishment. The best sentence is
that which is most likely to bring about societal peace. By pu-
nishing an attempted murder with imprisonment, other members
of society should be deterred from committing like crimes. Pro-
grams focusing on rehabilitation bring about peace in a substan-
tial, tangible way because upon successful completion of such a
program, the subject should not only be less likely to commit fu-
ture crimes, but should also become a more positive force in so-
ciety. 151 Retribution is a check on imprisonment, ensuring that
the offender does not serve more time in jail than is warranted by
the crime he committed.1 52 The purpose of retribution is not the
happiness of the victim(s) family and friends.1 5 3 People who are
victims of crimes are in need of, and deserve, help from their so-
ciety, but that "help" should not come through retributive means.

150 See The Complete Works of William-Shakespeare, The Merchant of Venice,

http://www.shakespeare-literature.com/TheMerchant_of_Venice/O.html (noting that An-
tonio defaulted on his loan to Shylock, yet did not give a pound of flesh to Shylock as was
promised for such a default).
151 See generally PAUL KARSTEN FAUTECK, GOING STRAIGHT: AN Ex-
CONVICT/PSYCHOLOGIST TELLS WHY AND How (luniverse 2001) (arguing that criminal
rehabilitation is helpful in reducing recidivism rates); see also Alfred Himelson, Prison
Programs That Produce, http://www.worldandihomeschool.com/public/2003/december/
cipubl.asp (last visited April 13, 2008) (noting that "we should typically expect program
subjects to have 10 to 15 percent less recidivism than nonprogram subjects with compara-
ble backgrounds").
152 See e.g., Ivana Bacik, Crime and Punishment-Retributionor Rehabilitation(2005)
available at http:/Jlawlibrary.ie/viewdoc.asp?Docid=144&Catid=18&StartDate=Ol+
January+2001&m= (providing that most retributive punishment systems are based on
proportionality between the crime committed and the punishment served); see also James
Marshall, The Justificationsof Punishment (2000), availableat http://www.ffst.hr/
ENCYCLOPAEDIA/punishmentl.htm (explaining that retribution is a method of pu-
nishment focusing only on paying for the wrong already committed).
153 See Bacik, supra note 152 (arguing that retributive theories of punishment seek to
punish the offender based upon what is morally appropriate given the crime); see also
Marshall, supra note 152 (explaining that the purpose of the retributive system is to have
an offender pay for his offense, despite a recent trend that focuses on the needs of the vic-
tims or their families).
2008] WHEN MERCYSEASONS JUSTICE

Those affected should use the situation as a means to grow, to

learn, and to help others. This is not to downplay their suffering
or anger in any way, but just as Shylock would not be justified in
acting out of vengeance, neither are the loved ones of a victim of
a crime. Our governments should provide programs made espe-
cially to benefit and help victims and their loved ones without
cost.
Shylock's punishment was unjust. His penalty should not have
benefited Antonio, his persecutor. A fine that goes toward bene-
fiting society is a more fair choice because it allows the judge im-
posing that fine to remain impartial. Shylock's judge was far
from unbiased: she not only had a vested interest, but she was
not even a real judge! Portia used deceit to put herself in a posi-
tion where she could influence a decision in Antonio's favor
against Shylock. Having him convert to Christianity was gra-
tuitous. The Duke thoughtlessly assented to Antonio's idea of
mercy, saying:
He shall do this, or else I do recant
154
The pardon that I late pronounced here.
Antonio most likely thought of this idea due to his antiquated be-
lief that only Christians, not Jews, could understand the concept
of mercy. 155 In reality, anyone is capable of mercy. Mercy blends
with justice when sentences are imposed with love rather than
hatred.
The mercy of which Portia spoke was divine. 15 6 Unfortunately
for Shylock, the "mercy" Portia, the Duke, and Antonio bestowed
upon him was not really mercy at all. In the Bible, Jesus tells a
parable of the Pharisee and the Publican that is reminiscent of

154SHAKESPEARE, supra note 1, at act 4, sc. 1, 11.407-08.

155 See Patricia Truxler Coleman, The Merchant of Venice: Neither Comedy, Romance,
Nor Tragedy, MIDSUMMER MAGAZINE (1992), availableat http://www.bard.org/education/
studyguides/themerchantofvenice/merchanttragedy.html. "[F]or the citizens of Venice ...
that mercy which 'is an] attribute to God himself is the just due only of those who are like
them in appearance, behavior, beliefs, and values." Id. For a contrary view, see Cooper,
supra note 136, at 121. "Though [Shylock's] forced conversion to Christianity seems to us
to be cruel and insulting, we are meant, I think and as many critics have said, to see this
as the altogether kindly conversion of Shylock to the new rule of mercy and thus his libe-
ration of the dilemma of the old law." Id.
156See SHAKESPEARE, supra note 1, at act 4, sc. 1, 1l. 190-206 (utilizing a divine meta-
phor, Portia describes that mercy "droppeth as the gentle rain from heaven").
 ST JOHN'SJOURNAL OFLEGAL COMMENTARY [Vol. 23:3

157
Portia and Antonio:
And [Jesus] also told this parable to certain ones who
trusted in themselves that they were righteous, and
viewed others with contempt: "Two men went up into
the temple to pray, one a Pharisee, and the other a
tax-gatherer. The Pharisee stood and was praying
thus to himself, 'God, I thank Thee that I am not like
other people: swindlers, unjust, adulterers, or even
like this tax-gatherer. I fast twice a week; I pay tithes
of all that I get.' But the tax-gatherer, standing some
distance away, was even unwilling to lift up his eyes
to heaven, but was beating his breast, saying, 'God, be
merciful to me, the sinner!' I tell you, this man went
down to his house justified rather than the other; for
everyone who exalts himself shall be 1humbled,
58
but he
who humbles himself shall be exalted.
For our society to appropriately emulate the mercy exemplified
Portia's speech, we must look to its source: the Bible. Portia be-
lieved that
earthly power doth then show likest God's
159
When mercy seasons justice.

VI. THE BIBLE

A. Justice and Mercy

"For if you forgive men for their transgressions, your heavenly
Father will also forgive you. But if you do not forgive men, then
your Father will not forgive your transgressions."' 160 According to
the Bible, in the end, "God Himself is Judge."' 6 1 Still, judges in
the United States would do best to emulate God's ways to the
best of their abilities. Judges must be impartial, omniscient, and

167 See Cooper, supra note 136, at 121 (describing that "with hardness of heart [Shylock]

reject[ed] the new law of mercy, and with the pride of the Pharisees he [was] confident
that he [was] justified by obedience to the letter of the law.")
158 Luke 18:9-14.
159 SHAKESPEARE, supra note 1, at act 4, sc. 1, 11.202-03.
160Matthew 6:14-15.
161Psalm 50:6.
2008] WHEN MERCYSEASONS JUSTICE

decide fairly, having discernment. "He will judge the world with
righteousness, [a]nd the peoples with equity." 162 A judge who is
like God would possess the "spirit of wisdom and understand-
ing,"163 "counsel and strength,"' 64 and "knowledge;"'' 65 he would
judge the poor "with righteousness ... [a]nd decide with fairness
for the afflicted of the earth."' 66 As if speaking directly to Shy-
lock's case, God instructed judges to "judge righteously between a
man and his fellow countryman, or the alien who is with him,"167
not to "show partiality in judgment,"'168 but to "hear the small and
1 69
the great alike."'
In judging with equity, a judge must look upon all with fair-
ness: he "shall do no wrong in judgment"'170 and shall use "just
balances [and] just weights."' 7' A judge must evaluate without
prejudices; justice is blind. 72 Judges "shall judge the people with
righteous judgment."' 73 Judges "shall not distort justice; [they]
shall not be partial, and [they] shall not take a bribe, for a bribe
blinds the eyes of the wise and perverts the words of the righ-
teous."'1 74 God does not pervert justice; he does not pervert what
is right; 175 God gives "justice to the afflicted."' 76 "Righteousness
and justice are the foundation of [God's] throne; [1]oving kindness
and truth go before [Him]."177 "Evil men do not understand jus-
tice."'1 78 If we desire heavenly lives, we need to "let justice roll
down like waters [a]nd righteousness like an ever-flowing
stream."' 79 Jesus expressed dismay when rulers neglected the
162 Psalm 98:9.
163 Isaiah 11:2.
164 Isaiah 11:2.
165 Isaiah 11:2.
166 Isaiah 11:4.
167 Deuteronomy 1:16.
168 Deuteronomy 1:17.
169 Deuteronomy 1:17.
170 Leviticus 19:35.
171 Leviticus 19:36.
172 See Leviticus 19:15 (proscribing that "[y]ou shall do no injustice in judgment; you
shall not be partial to the poor nor defer to the great, but you are to judge your neighbor
fairly.").
173 Deuteronomy 16:18.
174 Deuteronomy 16:19.
176 See Job 8:3. "Does God pervert justice [o]r does the Almighty pervert what is right?"
Id.
176 Job 36:6.
177 Psalm 89:14.
176 Proverbs 28: 5. "But those who seek the Lord understand all things.". Proverbs 28:6.
179 Amos 5:24.
 ST JOHV'SJOURNAL OFLEGAL COMMENTARY [Vol. 23:3

"weightier provisions of the law: justice and mercy and faithful-

ness." 180 As to mercy, "God is OPPOSED TO THE PROUD, BUT
GIVES GRACE TO THE HUMBLE."18 1 Therefore, mercy is most
appropriate when the person in need of it is truly sorry for his
criminal act.

B. The Answer
When the goal is peace, our objectives must comport with mer-
cy both inside and outside of the courts. We should hope to stay
out of the court as much as possible. In order to do so, our lives
must be lived putting others before ourselves:
Let love be without hypocrisy .... Bless those who
persecute you; bless and curse not. Rejoice with those
who rejoice, and weep with those who weep. Be of the
same mind toward one another; do not be haughty in
mind, but associate with the lowly.... Do not be wise
in your own estimation. Never pay back evil for evil to
anyone. Respect what is right in the sight of all men.
If possible, so far as it depends on you, be at peace
with all men.182

CONCLUSION
183
"[I1f you love those who love you, what reward have you?"
180Matthew 23:23. "Voe to you, scribes and Pharisees, hypocrites! For you tithe mint
and dill and cummin, and have neglected the weightier provisions of the law: justice and
mercy and faithfulness; but these are the things you should have done without neglecting
the others." Id.
181James 4:6. (capitalization in the original).
182Romans 12:9-18.
183Matthew 5:46. See also Matthew 5: 38-48.
You have heard that it was said, 'AN EYE FOR AN EYE, AND A TOOTH FOR A
TOOTH.' But I say to you, do not resist him who is evil; but whoever slaps you
on your right cheek, turn to him the other also. And if anyone wants to sue you,
and take your shirt, let him have your coat also. And whoever shall force you to
go with him one mile, go with him two. Give to him who asks of you, and do not
turn away from him who wants to borrow from you. You have heard that it
was said, 'YOU SHALL LOVE YOUR NEIGHBOR, and hate your enemy.' But I say to
you, love your enemies, and pray for those who persecute you in order that you
may be sons of your Father who is in heaven; for He causes His sun to rise on
the evil and the good, and sends rain on the righteous and the unrighteous. For
if you love those who love you, what reward have you? Do not even the tax-
gatherers do the same? And if you greet your brothers only, what do you do
more than others? Do not even the Gentiles do the same? Therefore you are to
be perfect, as your heavenly Father is perfect.
Matthew 5:38-48. (italics and capitalization in original).
2008) WHEN MERCYSEASONS JUSTICE

Just like justice, mercy must be bestowed fairly and equally. We

must be "good to all"'18 4 by being "gracious and merciful; [silow to
anger and great in loving kindness."'18 5 In determining the precise
situation to grant mercy, remember that the end result must be
peace. Mercy is never deserved, but can be justified when the
person to whom it is being bestowed is truly humble. Once a per-
son understands that what he did is wrong, is sorry and asks for-
giveness, the purposes of punishment have been attained. That
person should not repeat that crime. In order for change to take
place, a person must realize and acknowledge that a change is
necessary.

184Psalm 145:9.
185 Psalm 145:8.