Justice should be tempered with mercy

'Mercy' is compassion or forbearance shown especially to an offender or to one subject to one's power.

'Justice should be tempered with mercy' has a reference to Portia's speech in Shakespeare's The Merchant of Venice. It means the offender may have justly deserved a harsher punishment. If justice is tempered by mercy, it is adjusted to satisfy the idea of ‘mercy’. Hence the judge is less severe.

If someone has done something wrong, justice often leads to punishment, whether by a parent or teacher towards a child, or by a court towards a person who has committed an unlawful act. Punishment can sometimes be harsh. It suggests that while justice be done, the punishment has to softened by kindness. 

No one can accept that "eye for an eye" or "tooth for tooth" or the "law of retaliation" is just. Any justice untouched by spark of humanity or mercy is savage as justice is not tempered with mercy. If you forgive no man their trespasses neither will your father forgive your trespasses.

Criminal courts are halls of justice, not halls of mercy. Prosecutors often ask for the maximum penalty for the offense to be leveled against the defendant. Justice ought to be tempered with mercy, as mercy can make for good public policy. Almost all of those who go to prison are poor, and the handful who aren’t the state seems determined to make broke before they are released. When a judge sends someone to prison, the goal should be not just to punish them for their crimes, but to ensure that when they are released they become productive members of society. Making sure an inmate is financially wiped out upon release isn’t the way to do that.

Justice is not equivalent to meted punishment for moral and legal wrong. Justice is relinquishing what is due. When justice is abused, law rarely repairs the social rift. Instead it discourages repeated social rifts. If the criminal is ungrateful he will continue his behavior. Society may choose that risk rather than ruining the life and reputation of an individual over a single incident of indiscretion.

Once a junkie, always a junkie.

Very rarely people change themselves, especially for good. In the name of civilization, humanity and religion, if punishments are lenient, it promotes and encourages wrongdoings which are inherently profitable. Unless risk is high and profit is low, people will be tempted towards wrong doings. Therefore punishments must be harsh.

Meritocracy is myth

Merit is simply a good quality or feature that deserves to be praised. Merit and justice play a crucial role in ethical theory and political philosophy. Some view justice as allocation according to merit. Others view justice as based on criteria of its own, and take merit and justice as two independent values. Merit and justice are strongly linked in the human perception of social order. Spoils system, also called patronage system, is a practice in which the political party winning an election rewards its campaign workers and other active supporters by appointment to government posts and by other favors. A change in party control of government necessarily brings new officials to high positions carrying political responsibility, but the spoils system extends personnel turnover down to routine or subordinate governmental positions. Although spoils system is an American political term, it is common in many other countries as well.

• The merit of all things lies in their difficulty. Everyone agrees that justice must be in accordance with some kind of merit.
• Meritocracy has been presented as a means of breaking down established hierarchies of privilege.
• Merit systems is an uniform and impersonal employment and advancement policy based on evaluation of abilities and achievements, instead of on favoritism or politics.
• It is not hard to see why people find the idea of meritocracy appealing. It carries with it the idea of moving beyond where you start in life, of creative flourishing and fairness. But all the evidence shows it is a smokescreen for inequality. 
• The fact is, meritocracy is a myth. Social systems that reward through wealth, and which increase inequality, don’t aid social mobility, and people pass on their privilege to their children.
• Meritocracy contradicts the principle of equality, no less than any other oligarchy. Meritocracy is the great delusion that ingrains inequality.
• Our leaders sell meritocracy as a utopian system of fairness, but merit has been manipulated to privilege the wealthy. Merit is a malleable and easily manipulated term. 
• Meritocracy was a term of abuse, describing a ludicrously unequal state that surely no one would want to live in. Why would you want to give more prizes to the already prodigiously gifted? Instead we should think about how to give those doing difficult or unattractive jobs more leisure time, and share out wealth more equitably so that we all have a better quality of life and a happier society. 

It is better to be an eminent person than to be a prominent person.

Unequal growth is a threat to democracy. Meritocracy that promotes unequal growth and is also in conflict with the 'Preamble to the Constitution of India' which confers and guarantees equality of status and of opportunity; and to promote among them all. The sooner we disband this myth called 'meritocracy' and replace with widely acceptable, efficient and equitable criterion for distribution of scarce resources and facilities, it is better.

Beware of those propagandist tricks

The daily belabouring of issues only creates a frenetic public parade of issues and allegations. But nothing is followed up to establish the truth.

• In a democracy, those who are spiritual have to be political. It suits the interests of the corrupt and oppressive players in politics to sustain the myth that politics is a truth, justice, welfare, den of scoundrels. 
• Politics is sacred. A Swachh Bharat will be possible only through swachh politics.
• Commitment to truth is the core that spirituality and politics should share. Truth operates on the ground as justice. Justice addresses human dignity and welfare. Wherever truth is compromised, people’s welfare has suffered and oppression has bared its fangs.
• It is politics that contextualises commitment to truth and makes it concrete. Those who care for truth in politics remain continually vigilant against every measure, every propagandist trick, meant to hypnotise the masses. 
• Commitment to truth creates a national culture marked by scientific temper and rational thinking.
• Capacity of the masses to think rationally can be disabled by a variety of factors such as lack of education, their inability to think rationally, their vulnerability to propaganda, the non-availability of relevant data, the creation of hype and waves, and so on.
• Democracy, especially, is under a duty to educate and empower citizens to think rationally and choose objectively. Oppressive regimes are averse to spreading education and free thinking.
• The dogmas of patriotism and nationalism are valuable to the extent of serving as catalytic agents to galvanise people’s energy for nation-building. But in the history, these concepts have been used mostly to spread hatred among nations and within them, between castes, groups, communities.
• Commitment to truth on the part of citizens requires that they see through the avalanche of issues. An illusion of upholding accountability is created by the daily belabouring of issues. A new issue is ushered even before the current one settles down. Nothing is followed up to the extent of establishing the truth of issues. Nothing changes.
• In a democracy, its citizens must remain in harmony with one another. They should never treat each other as enemies. Enmity is spread by vested interests to thrive by polarising citizens. The policy of ‘divide and rule’ never promotes people’s welfare.
• A democracy ought to take care of the majority that are poor. The fruits of development should be distributed preferentially among the poor. 
• The oligarchic element lurks in every democratic polity should never be allowed to become powerful enough to scuttle democracy. The corporates of today are the successors of yesteryear oligarchs. 
• The threat that the oligarchic elements hold out to democracy becomes ominous when the media play a partisan and propagandist role. When this process crosses the Lakshman rekha, it imperils democracy.
• The dogma of stability and its implications for the dynamic of democracy needs to be watched. Every centre of power is apt to deem itself to be the sole and legitimate custodian of national destiny. It views prospects for change with extreme intolerance. This keeps the dividing line between ‘freedom of choice’ and ‘sedition’ continually fluid. This brings ‘the right to choose’ under extreme stress and strain.
• The difference between a corrupt government and a tyrannical one is that the former knows itself to be a bird of passage and are fixated on reaping a bumper harvest in quick time. A tyrannical government is obsessed not with megabucks but with self-perpetuation. It substitutes the money with monopoly. The corrupt do not wish to be caught. The tyrannical do not wish to be shown the door. Both addictions harm democracy. And both skip on thin ice.

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Abraham Lincoln’s advice to lawyers

Abraham Lincoln, who famously served as America’s sixteenth President during the Civil War, was for most of his life prior to the presidency a lawyer. He was moderately successful, but certainly would not have been one of the “celebrity” lawyers of today. His average fee was between $5 and $20. The highest fee he ever charged was $5,000, which, though substantial for the time, was not common for him. But his success was notable enough to induce various people to ask him for his advice on not only becoming a lawyer, but the practice of law. His answers epitomize the typically homespun, and common sense way in which Lincoln famously expressed himself, even as President.  Baked into his answers was a healthy dose of life wisdom which anyone intent on a successful career could benefit from.

Lincoln’s summary of the “best practices” to which lawyers should adhere for their realistic appraisal of human nature, and the art of virtue. They are reproduced here:

I am not an accomplished lawyer. I find quite as much material for a lecture, in those points wherein I have failed, as in those wherein I have been moderately successful.

The leading rule for the lawyer, as for the man, of every calling, is diligence. Leave nothing for to-morrow, which can be done to-day. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labor pertaining to it which can then be done. When you bring a common-law suit, if you have the facts for doing so, write the declaration at once. If a law point be involved, examine the books, and note the authority you rely on, upon the declaration itself, where you are sure to find it when wanted. The same of defenses and pleas. In business not likely to be litigated—ordinary collection cases, foreclosures, partitions, and the like—make all examinations of titles, and note them, and even draft orders and decrees in advance. This course has a triple advantage; it avoids omissions and neglect, save your labor, when once done; performs the labor out of court when you have leisure, rather than in court, when you have not. Extemporaneous speaking should be practiced and cultivated. It is the lawyer’s avenue to the public. However able and faithful he may be in other respects, people are slow to bring him business, if he cannot make a speech. And yet there is not a more fatal error to young lawyers, than relying too much on speech-making. If anyone, upon his rare powers of speaking, shall claim exemption from the drudgery of the law, his case is a failure in advance.

Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser—in fees, and expenses, and waste of time. As a peace-maker the lawyer has a superior opportunity of being a good man. There will still be business enough.

Never stir up litigation. A worse man can scarcely be found than one who does this. Who can be more nearly a fiend than he who habitually overhauls the Register of deeds, in search of defects in titles, whereon to stir up strife, and put money in his pocket? A moral tone ought to be infused into the profession, which should drive such men out of it.

The matter of fees is important far beyond the mere question of bread and butter involved. Properly attended to fuller justice is done to both lawyer and client. An exorbitant fee should never be claimed. As a general rule, never take your whole fee in advance, nor any more than a small retainer. When fully paid beforehand, you are more than a common mortal if you can feel the same interest in the case, as if something was still in prospect for you, as well as for your client. And when you lack interest in the case, the job will very likely lack skill and diligence in the performance. Settle the amount of fee, and take a note in advance. Then you will feel that you are working for something, and you are sure to do your work faithfully and well. Never sell a fee-note—at least, not before the consideration service is to be performed. It leads to negligence and dishonesty—negligence, by losing interest in the case, and dishonesty in refusing to refund, when you have allowed the consideration to fail.

There is a vague popular belief that lawyers are necessarily dishonest. I say vague, because when we consider to what extent confidence, and honors are reposed in, and conferred upon lawyers by the people, it appears improbable that their impression of dishonesty is very distinct and vivid. Yet the impression, is common—almost universal. Let no young man, choosing the law for a calling, for a moment yield to this popular belief. Resolve to be honest at all events; and if, in your own judgment, you cannot be an honest lawyer, resolve to be honest without being a lawyer. Choose some other occupation, rather than one in the choosing of which you do, in advance, consent to be a knave. 

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If you are resolutely determined to make a lawyer of yourself, the thing is more than half done already. It is but a small matter whether you read with anybody or not. I did not read with anyone. Get the books, and read and study them till you understand them in their principal features; and that is the main thing…The books, and your capacity for understanding them, are just the same in all places…Always bear in mind that your own resolution to succeed, is more important than any other one thing.

If you wish to be a lawyer, attach no consequence to the place you are in, or the person you are with; but get books, sit down anywhere, and go to reading for yourself. That will make a lawyer of you quicker than any other way.

Yours of the 24th, asking “the best mode of obtaining a thorough knowledge of the law” is received. The mode is very simple, though laborious, and tedious. It is only to get the books, and read, and study them carefully. Begin with Blackstone’s Commentaries, and after reading it carefully through, say twice, take up Chitty’s Pleading, Greenleaf’s Evidence, and Story’s Equity etc. in succession. Work, work, work, is the main thing.

In law it is good policy to never plead what you need not, lest you oblige yourself to prove what you can not. Reflect on this well before you proceed.

As to fees, it is impossible to establish a rule that will apply in all, or even a great many cases. We believe we are never accused of being very unreasonable in this particular, and we would always be easily satisfied, provided we could see the money—but whatever fees we earn at a distance, if not paid before, we have noticed we never hear of after the work is done. We therefore, are growing a little sensitive on that point.

Rule of the Law

The rule of law is the legal principle that law should govern a nation, as opposed to being governed by arbitrary decisions of individual government officials.

Definition of the 'rule of law' comprises the following four principles:

1. The government and its officials and agents as well as individuals and private entities are accountable under the law.
2. The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.
3. The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
4. Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are of sufficient number, have adequate resources, and reflect the makeup of the communities they serve.

Factors of the rule of the law index:

1. Constraints on Governments Powers is the extent to which those who govern are bound by the (a) fundamental law, (b) limited by the legislature, judiciary and audit, (c) sanction for misconduct and (d) transition of power is subject to the law 
2. Absence of Corruption in government agencies i.e. legislature, executive, judiciary, military & police. Bribery, improper influence by public or private interests, and misappropriation of public funds or other resources.
3. Open Government is that (a) shares information, (b) empowers people to hold the government accountable, (c) fosters citizen participation in public policy deliberations. Publicizing of basic laws & legal rights, information properly published by the government, requests for information are properly granted, effective civic participation mechanisms and bringing specific complaints to the government 
4. Fundamental Rights protects human rights. It is a system of positive law and is at best “rule by law”. It encompasses adherence to (a) enforcement of laws that ensure equal protection (b) right to life and security of the person (c) due process of law and the rights of the accused (d), freedom of opinion and expression (e) freedom of belief and religion (f) the right to privacy (g) freedom of assembly and association (h) fundamental labor rights of collective bargaining, prohibition of forced & child labor and elimination of discrimination.
5. Order and Security is how well the society assures the security of persons and property. Security is one of the defining aspects of any rule of law of society that is a fundamental function of the state. It is also a precondition for the realization of the rights and freedoms that the rule of law seeks. This includes various threats i.e. crime, political violence, and violence to redress personal grievances.
6. Regulatory Enforcement is the extent to which regulations are fairly and effectively implemented and enforced. Strong rule of law requires that these regulations and administrative provisions are enforced effectively, are applied and enforced without improper influence by public officials or private interests, administrative proceedings are conducted timely, without delays, due process is respected in administrative proceedings, and that there is no expropriation of private property without adequate compensation. This does not assess what government chooses to regulate and to what extent but examines how regulations are implemented and enforced. To regulate such as public health, workplace safety, environmental protection and commercial activity.
7. Civil Justice measures whether ordinary people can resolve their grievances peacefully and effectively through the civil justice system. The civil justice system should be accessible and affordable, free of discrimination, free of corruption, and without improper influence by public officials.  This also necessitates that court proceedings are conducted in a timely manner and not subject to delays. Recognizing the value of Alternative Dispute Resolution mechanisms, this also measures the accessibility, impartiality, and efficiency of mediation and arbitration systems that enable parties to resolve civil disputes. 
8. Criminal Justice is a key aspect of the rule of law, constituting mechanism to redress grievances and bring action against individuals for offenses against society. Criminal justice systems are capable of investigating and adjudicating criminal offenses successfully and in a timely manner, through a system that is impartial and non-discriminatory, and is free of corruption and improper government influence, all while ensuring that the rights of both victims and the accused are effectively protected.  The delivery of effective criminal justice also necessitates correctional systems that effectively reduce criminal behavior. The delivery of criminal justice should take into consideration the entire system including the police, lawyers, prosecutors, judges, and prison officers. 

Informal Justice concerns the role played by customary and ‘informal’ systems of justice including traditional, tribal, and religious courts, and community-based systems in resolving disputes. These complex systems often play a large role in cultures in which formal legal institutions fail to provide effective remedies for large segments of the population, or when formal institutions are perceived as remote, corrupt, or ineffective. The dispute resolution systems are timely and effective, they are impartial and free of improper influence, and these systems respect and protect fundamental rights. 

Seven deadly sins are:

Wealth without work, Pleasure without conscience,
Science without humanity, Knowledge without character,
Politics without principle, Commerce without morality,
Worship without sacrifice. – Mahatma Gandhi

My View:

In every aspect of 'rule of law', our country India stands abysmal. With information, awareness, transparency and education it is improving rather slowly. The irony is that while people at low end are uneducated, unskilled, poor but are good; people at high end are educated, skilled, rich but are bad. It is a catch 22 situation; unless politics change - people won't change and unless people change - politics wont change. In past 70 years after independence there is significant improvement but far less compared many advanced countries.