As one is, so one sees: Delacroix on the role of habit in moral discernment

‘A fool sees not the same tree that the wise man sees’, so wrote William Blake in his enigmatic ‘Proverbs of Hell’.¹ Of course, in one sense, the wise man and the fool see the same tree – they direct their eyes to the same object – yet, what they take in, what they meaningfully perceive, may be quite different. Blake here attributes the difference to intelligence or wisdom and the lack of it, but he offers a more nuanced elaboration of his thought in a letter to a friend.

To the Eyes of a Miser [he wrote] a Guinea is more beautiful than the Sun, & a bag worn with the use of Money has more beautiful proportions than a Vine filled with Grapes. The tree which moves some to tears of joy is in the Eyes of others only a Green thing that stands in the way. To the Eyes of the Man of Imagination, Nature is Imagination itself. As a man is, So he Sees. As the Eye is formed, such are its Powers.²

Blake's observation is not just a clever way of putting the tired and thoughtless claim that beauty is in the eyes of beholder. The ‘eyes of the man of imagination’ sees something different from what you and I might see in ‘nature’. But, Blake suggests, this is not due to the painter's pure receptivity, which, alas, is not available to the rest of us. Our eyes, like those of the miser, are selective, habituated to see only some aspects of the reality around us; but this is also true of the artist. As the person is, as the eye is formed, so it sees. The artist's vision is no less selective, focused, or formed than the fool's.

Sylvie Delacroix invites us to a new and deeper understanding of the role of such habituation in our daily lives.³ Her fine study offers keen insight into the operation of habit in our lives among others, its enabling and enhancing contributions to moral deliberation and judgment, and its potential for their distraction and distortion. My discussion here seeks not to fundamentally challenge her analysis, but to build upon it. I begin with a brief outline of her account, elaborating it a bit here and there. Then I put her account to work to deepen our understanding of the place of mercy in the criminal process, an institutional context of moral judgment in which habitual elements seem to play an important, if unacknowledged, role.

Delacroix on habit, deliberation and judgment

A habit, Delacroix maintains, is a pattern of behaviour of thought – or perhaps a patterned response of behaviour or thought – that, momentarily at least, escapes the subject's conscious awareness (3, 4). It does not depend or draw upon conscious activation of constituent parts or steps of the pattern. Hence, it involves little or no effort or focused concentration of attention. These habits may be acquired unintentionally, absorbed from one's social environment, by natural and unself-conscious mimicking of others. (Hume saw in this ‘contagion’ the operation of a primitive form of ‘sympathy’.⁴) In contrast, we acquire other habits through some amount of intentional effort. They are learned and often taught (3).

This seems correct and a good start. Still, I would like to elaborate it slightly in three respects. First, we find such habits not only in behaviour and in thought, but also, as Blake reminded us, in our ordinary perception, and, I might add, in our emotions. The world around us engages our perception and emotions, as well as our thought and action. In the course of her discussion, Delacroix seems to admit as much. Second, habits of each of these kinds tend to include a dispositional, or better a motivational, element. The habit is not just an enacted pattern, but also an inclination to enact the pattern. In appropriate circumstances, the patterned response is likely to occur; they trigger the response, albeit not inevitably. Third, as Aristotle observed, some habits, especially those that are learned through a process of intentional habituation, have standards of correctness implicit in them. This habitual behaviour is not merely done, but done correctly or incorrectly; it is taught through guided doing and correction. These habits tend to be embedded in the practices of individuals, and more commonly in the practices of communities into which individuals are inducted. Enacting these habituated patterns is a kind of performance, governed by standards internal to the practice; these standards are internalised and activated by those who perform them.

This standard embedding is especially true of habituated skills. Some habits involve no skill, of course and some skills are (largely, if not exclusively) innate. But many skills ‘develop on the backs of’, are embodied in or supported by, habits (3–5). One may acquire them through habituation and they may have habitual components. The boundary between habit and skill is wide and fuzzy, Delacroix allows. I might add that in some cases of taught habits, we the amalgam of habit, skill, and disposition (and, as well shall see, a degree of deliberation and judgment) combine into a kind of discipline. Thus, for example, those benighted law students who are taught to ‘think like a lawyer’ learn a discipline – part habit, part skill, part judgment, all subject to a degree to deliberative control (44).

This brings us to a key element of Delacroix's analysis of habit. Rather than thinking of a sharp dichotomy between automaticity and fully conscious deliberative agency, she suggests that we think of these two concepts as lying at the extremes of a spectrum (39). At one end, automatistic ‘agency’ not only escapes the subject's awareness but also is ‘impenetrable to deliberative intervention’. At the other end, deliberative control is fully and consciously engaged. Most habits, she argues, tend to fall somewhere between these extremes. Although they to some degree escape conscious awareness, they are not necessarily utterly unthinking or non-cognitive.

Related to this is the fact that habits range from the unalterably rigid to the substantially plastic. Plasticity of habits, she argues, is a function of their adaptability and their availability to conscious awareness and hence to deliberative control (39–40). Reflection on these conditions leads her to what, in my judgment, is the most important insight of her analysis of habit. The existence of habits – of behaviour, thought, or (I would add) emotion – is not merely compatible with deliberative control, depending on their availability to conscious awareness, but habitual processes ‘operate alongside’ and in support of deliberative processes (4, 32, 39). They are not necessarily opposed to each other, but often are mutually supportive, mutually dependent. Well-functioning deliberation depends on an infrastructure of habits of thought (and emotion); similarly, habits function well only if they are reasonably plastic – adaptable and available to conscious awareness.

Consider, first, the dependence of deliberative consciousness on habit. Deliberation – perception, use of concepts, as well as reflective, action-oriented deliberation – can work only with, against the background of, deliverances available through habit-formed grasp of ‘affordances’ (33, 41). Habit supports deliberate, intentional action. Cognitive heuristics help us manage the information available to us in the phenomenological manifold. They deliver content to conscious cognitive processes and free up cognitive and deliberative processes for other related activities (35–36). They enable one to engage with other aspects of one's circumstances that demand attention, or to do so in ways that avoid certain biases or limitations of rationality.

To illustrate this useful insight, I make a slight detour to consider a mistake often made by those who seek to design legal institutions.⁵ They argue that in times of emergency it is necessary to free decision-makers from the shackles of rules, and give them full access to and free reign over all the relevant facts of the emerging situation. Necessity, they argue, justifies suspension of ordinary constitutional-legal constraints. However, this approach fails to recognise that ‘emergency conditions do not suspend the laws of human fallibility’.⁶ It is precisely in times of crisis when stress levels are high, Stephen Holmes argues, that decision rules and protocols are most valuable.⁷ Like Delacroix (35), he invites us into the emergency department of a hospital. Emergency department personnel are keenly aware that the stakes are high, risks of delay are great, and swift and decisive action is necessary. Nevertheless, to minimise the risk of fatal but avoidable mistakes, they follow protocols they have practised in advance. They do so because they understand the danger of relying on gut reactions and immediate responses to the situations they face. Extreme urgency requires adherence to appropriately designed, habituated protocols.⁸

In the absence of protocols, decision-makers are not more deliberatively flexible, but significantly less so. Protocols free decision-makers from psychological compulsions, biases, behavioural rigidities, false certainties, and cognitive deficiencies like confirmation bias and aversion to self-critical thinking. ‘Constraints can be empowering’,⁹ Stephen Holmes reminds us. They focus one's aim, and remind one of longer-term objectives, other dangers, and important considerations that are likely otherwise to be drowned out by the immediate demands of the crisis. Training, discipline, coordination and practice do not cripple improvisation; they free it up. The protocols Holmes has in mind structure the emergency deliberative and decision-making process, forcing decision-makers to take proven steps to keep deliberation open to information and opportunities, offering heuristics to block obstacles to clear thinking, and requiring that decision-makers rely on deliberation partners.

Critics argue that legal rules tie deliberation to rigid, strictly past-oriented strictures when what is needed most is the ability to read clearly the complexity of the pressing circumstances. However, deliberation unconstrained by or freed from the influence of established rules is often no less a prisoner of the past, the individual decision-maker's own past. Rule-free deliberation is not free-range deliberation; it must draw on the decision-maker's personal experience. It is a dangerous myth that when decision makers are freed from rules they can see particular situations in all their naked complexity. As Blake reminded us, we attend to that which we are habituated to recognise, and we systematically overlook other features of our situation. We can train our attention to focus on other considerations, as a skilled painter will see in a landscape much that an untrained eye would miss. But training is a form of habituation. Decision makers are not freed from the past, nor suddenly able to see the particularities of the emergency situation that are obscured by rules; rather, they remove one lens only to look through another, without recognising they have done so.

Of course, to be useful, such habituated protocols must be designed carefully, based on prior experience, and, as Delacroix argues, subject to deliberative control. To avoid rigidity and inappropriate or irrational responses to situations – that is, to maintain the plasticity of the habituated responses – access to deliberative consciousness is important. The empowering aspect of habit is lost once the agent loses the ability to bring automatic processes to conscious awareness (40). Such habits must be ‘within reach’ of deliberative consciousness. This is the other side of the mutual dependency of habit-formed automatic processes and conscious deliberative processes.

Deliberative control of habits

Delacroix discusses at length what is involved in maintaining the plasticity of habit. ‘If ethical agency is to mean anything’, Delacroix writes, ‘it must have at its core an account of exactly what it is about us, human beings, that endows us with the capacity to stand back from and challenge habitual, accepted norms rather than blindly adapt them’ (59). She challenges the rationalist or intellectualist view that posits a detached Archimedean perspective on habit and the situations to which it responds, and its cousin that links deliberative control to a capacity of ‘responsiveness to reasons’ (67–71). She also avoids the mistake that Blake highlighted: the idea that it is possible to achieve a kind of pure receptivity, cognitive or perceptual, to circumstances or ‘affordances’. All attention, Blake suggested, is selective – formed or trained. To pay closer attention is to bring to bear skills of seeing that we do not usually deploy, skills that are themselves habituated. Hence, to free oneself from one (set of) habit(s) is not to be free of habit, but to enter the domain of another. When happily trained, such conscious, deliberative control is, as she puts it, a ‘meta-habit’. The critical stance, she argues, is ‘a way of having a habit’ (67). I would like to look a little more closely at this meta-habit.

The capacity of deliberate control has deep roots in habit, in a habituated capacity for ‘pre-reflective discernment’ (65, 69). To help elaborate this capacity, she draws on Iris Murdoch's notion of ‘the work of attention’, which ‘takes place in the background, as we learn to find our way around the world and our life with others’ (71–72). I confess I find Murdoch's notion of attention mysterious. Fortunately, Delacroix elaborates the idea, highlighting two critical features of this meta-habit.

The first is an ‘openness to self-doubt’ (42) that she calls ‘Socratic sophia’ (45, 50–52). Socrates' legendary wisdom lay in his awareness of and willingness to acknowledge what he did not know. Those who have acquired the habit of Socratic sophia are ready to question habitual understandings of situations they encounter. And this, she argues, involves questioning their understanding of themselves as persons who can knowledgeably cope with the situation. We might think of this as a kind of humility, a readiness to be called and call oneself into question (52).

Socratic sophia is just one component of the self-awareness that is important for this meta-habit. We might also recognise that other obstacles within the self may also inhibit it. For example, powerful attachments to particular other persons and one's need to preserve a secure place in one's community or tribe, can blind one to the needs of others and to commonalities one could otherwise perceive. They can inhibit one's ability to appreciate the human and personal meaning of their experiences. Humility, no doubt, is important; but so too is a degree of awareness of other features of the self that limit one's understanding.

This awareness may be especially important for the satisfactory exercise of the second of the two key elements of Delacroix's meta-habit of habit correction. She calls this ‘responsiveness to the Other’, that is, to persons outside the circle of one's ordinary, habit-formed engagements (83). Like sophia, this responsiveness involves a readiness to suspend learned patterns of interaction (or avoidance of interaction) with others.

She characterises this capacity as ‘the proactive concern to understand the other's point of view as potentially expressive of a whole way of being’ (81). However, this is, to my eye, rather too grand and grasping it may be beyond the abilities of most moral agents. However, what Delacroix has in mind can be put in less grand terms. It is, first of all, an inclination for engagement with persons outside one's comfortable circle. It is not abstract and conceptual, but rather concretely relational. It involves personal encounters, not intellectual comprehension. It does not involve robust taking up of another's point of view – let alone another's ‘whole way of being’. Rather, it is the capacity to appreciate the human and personal significance of another person's particular, concrete experiences, to connect them in some meaningful way to one's own experience. It is a habituated capacity in concrete circumstances to appreciate, grasp the meaning of, another person's particular experience and an inclination to exercise this capacity upon an encounter with that person. We can reasonably hope that ordinary moral agents might learn this habit. I suggest that this is an important part of responsiveness to others.

Delacroix may well appreciate this somewhat more modest understanding of the responsiveness she has in mind, for she maintains that such responsiveness is prompted by actual encounters between persons. Iris Murdoch writes, ‘We can only understand others if we can to some extent share their contexts.’¹⁰ For Delacroix also, imagination is not enough. She emphasises the ‘physicality’ of such encounters (80). There must be some actual engagement of persons in and with a common situation, calling for a kind of triangulation by which they can negotiate the significance of the situation (84). Actual verbal communication, she suggests, facilitates (and may be necessary for?) this negotiation. Language ‘enables individuals to engage a situation together, by drawing attention to certain aspect of the sociomaterial practices we care about and exploring different ways of going on together’.¹¹ However, it is crucial for habit-challenging that this encounter introduces some friction, some difference or divergence into an appreciation of the common situation, something that calls for mutual adjustment. (Habit remoulding, the task of this critical meta-habit, is the ‘work of the negative’, as Hegel would have put it.)

Thus, habits of responsiveness to others – engaged, interpersonal, self-critical and reciprocal encounters – building on a habit of Socratic sophia, are core elements of the meta-habit of deliberative control. This complex habit is neither innate, nor acquired simply by drinking the community's water. It must be learned, practised, and strengthened in the ‘in-between spaces’ in our communities (87). If this meta-habit is critical to responsible moral agency, as I believe it is, we must see to it that these spaces are available – that we can encounter others beyond our habituated circle. The erosion of public space where such encounters can occur is no less than a threat to responsible moral agency. We must teach these habits to others or at least model them. One lesson we can draw from Delacroix's analysis is that responsible moral agency is not born, it is taught, nurtured in social and civic public spaces.

Mercy: a second-order habit of the heart

To illustrate the usefulness of Delacroix's understanding of the role of habit in moral life, and explore its role in a complex legal-institutional context, I propose to look at how mercy might figure in a decent and just criminal process. I begin with a brief, general discussion of mercy, the details of which I cannot defend here.¹²

We can say that mercy, in its jural context, involves the authorised exercise of unexpected, because undeserved, discretionary mitigation of harsh treatment called for by law, mitigation intended to benefit the recipient. When mercy is justified, it is motivated by considerations not encompassed by the explicit rules of criminal law, considerations of compassionate concern for the plight or suffering of the recipient. Looking beyond the law's focus on culpability of the offender, mercy takes into account the offender's needs, vulnerability, and suffering,¹³ and takes efforts to mitigate the suffering. It thus focuses its attention on the history, circumstances, or specific conditions of the recipient.

Mercy is a kind of compassionate mitigating grace. It springs from self-reflection – reflection on the fact that we are all fallible and vulnerable to obstacles to our moral flourishing. Reflection on common human frailty, Sir Matthew Hale maintained,¹⁴ engenders compassion, which, in turn, counsels mercy. While circumstances keep some of us from temptation's full force, for others of us obstacles to flourishing may prove too difficult. Reflection on similarities between judge and the offender enables judges to make sense of the offenders’ experience as suffering, taking in what it would mean to experience it themselves. Compassion makes palpable the similarity of conditions, focusing on common vulnerabilities, shifting to the background the differences that obtain between official and offender, bringing home to the official the offender's plight.

Mercy in the jural context takes its distinctive shape from its relationship to justice in the law. It is not merely particularised justice (correcting the injustice done by law, due to its necessary generality), but rather it is a distinct value or virtue that ‘tempers’ justice. It is not indifferent to justice or fault; it does not excuse or condone wrongdoing. Rather, it seeks to mitigate the consequences of an otherwise justified judgment of wrongdoing and culpability. Yet, mercy does not just compete with justice. The two values are more intimately related: they are interdependent. They are mutually limiting, mutually correcting. Both are vulnerable to misunderstanding, misdirection and characteristic deformations. When they function well, and are adequately institutionalised, each tempers the other, correcting the deformations to which they each are prone.

Consider first mercy's characteristic deformations. Self-reflection can open the judge to appreciation of the features of the offender's life and circumstances, and the impact of the law's judgment on the offender, to which the law may be blind. However, mercy is risky; it can go wrong. While self-reflection enables understanding of another, it can fail when distorted by bias. One's judgment of similar possibilities may be narrowly focused and uneven. Mercy-engendering compassion depends on a sense that the offender is ‘like me’, but this sense can be constrained or distorted by an implicit (habit-formed) sense of ‘me’ and of ‘likeness’. Habituated to attend only to a narrow circle, one's responsiveness to another may be bounded and imperfect.

Some observers also claim that mercy in the jural context is inevitably degrading to the beneficiary, because it fails to respect the offender's moral autonomy. Although this criticism views human dignity through the lens of a rarified and abstracted notion of moral autonomy, mercy's compassionate gaze carries a risk, especially in contexts of asymmetry of power. Compassion can be twisted into condescending, even contemptuous, pity. ‘There but for the grace of God go I’ may express self-congratulatory privilege rather than humility. Pity looks to need and deficiency, while compassion looks to the person in need – to the needs as they affect, afflict, and disable the person. Mercy must keep its gaze focused on the person, who, like all human beings, is an embodied moral agent with human needs, and who depends on the world and other persons for their flourishing and for their exercise of moral autonomy.

Justice in the criminal context, likewise, is vulnerable to deformations. The criminal law civilises the political community's expression of condemnation of wrongdoing by subjecting it to rigorous procedures that promise to respect the dignity of those charged with crimes, and by insisting that condemnation be tethered to publicly declared laws and that subsequent punishment be meted out only when, and to the degree that, the person charged is truly culpable. This desert-focused justice is also subject to deformations. Legal controls depend on a strategy of abstraction, focusing attention only on offenses, on the offenders' culpability, states of mind, and general conditions of responsibility. This is not merely baked into the institutions of the criminal process, it is embedded in the habits of thought and deliberation of officials authorised to act in the name of the community. Chesterton, whom Delacroix quotes several times, identified one risk of this strategy of abstraction. ‘The horrible thing about all legal officials, even the best’, is not that they are wicked or stupid, but that ‘they have got used to it. Strictly they do not see the prisoner in the dock; all they see is the usual man in the usual place. They do not see the awful court of judgment; they only see their own workshop’.¹⁵ Their workshop trains an attitude – a habit – of abstraction in order to achieve a desired degree of impersonal judgment. The risk is that those who exercise judgment fail to see the person in the dock. The strategy of abstraction blinds officials to the experience of the harsh treatment inflicted. The message of punishment, meant to express effectively the authenticity and force of the condemnation of the wrongdoing and the wrongdoer, risks demeaning the wrongdoer. It looks to the abstracted moral agent but fails to see the person.

Mercy corrects – tempers – desert-focused justice. It provides judges with a wider view of the offender, refusing to identify the person with the wrong done. In Dante's Inferno, sinners become the sins they once freely chose. Criminal justice, abstracting from the person and focusing only on the wrong done and the offender's culpability condemns wrongdoer, the victim and the community to a kind of hell. The option of mercy in the criminal process provides an opportunity to break the thrall of this distorting identification.

Desert-focused justice and mercy are not merely virtues of the institution of criminal adjudication, they are virtues of officials authorised to exercise the community's judgment, virtues that function best when embedded in habit. Both are professionally trained disciplines, capacities combining attitudes, dispositions, and judgment. Judges, in their formal education, are trained to ‘think like lawyers’. But this is not an exclusively self-aware cognitive activity, but, at bottom, a habit of thought and more that anchors them in a deep understanding of and commitment to the law. The strategy of abstraction, also, is anchored in habits of feeling as well as thinking. Likewise, adequate professional training of our judges combines the desert-oriented justice habit with the mercy habit, a habit that engages self-reflection and compassion. It is not simply a thoughtless feeling – a passive movement of the heart – nor pure receptivity of the ‘particulars’ of offenders' circumstances. It is a trained and focused receptivity, attending to features of the offenders different from those seen and appreciated by the habit of justice. Like the refined attention of the painter, mercy is habit-focused attention, responsiveness to persons and circumstances. As the judge is (trained), we might say, so the judge sees. Merciful judgments are expressions of a complex combination of reflectivity, perception, feeling and inclination to act, rooted in a habit of the heart. This habit does not preclude deliberation or judgment; it enables and aids it, sometimes redirecting it from its desert-justice orientation to a compassionate alternative.

While the mercy habit may temper justice, it does not silence it; rather, it complements it. When it operates well, it is a second-order deliberative habit, entering as a potential corrective to the potential deformations of the strategy of abstraction. Yet, it depends on habits and judgments of justice to prepare the ground and set the parameters of its own operation. Only after justice has done its work, can mercy properly be brought into view. Since the exercise of merciful judgment is also vulnerable to deformations, the institutions of the criminal process must structure it, requiring to articulate publicly the reasons of its exercise and there by provide a degree of accountability for it.

Moral ambidexterity

The professional role of judging calls for a third, indispensable, habit, one that enables judges to entertain these other two habits, acknowledging and managing the tension in which they continuously exist. Judges are called upon to acknowledge and appreciate the morally ambivalent relationship between justice and mercy and to develop the will and skill to manage it. We can call this habit-based capacity, moral ambidexterity. However, the need for this habit is not limited to those who inhabit the professional role of judging; it is important for morally responsible judgment and action in general.

Poet Micheal O'Siadhail writes,

Although extremists beat their tight-skinned drum,

I've learned to plump for ambiguity,

a twilight which refuses to succumb

to either-or but chooses to stay free,

to keep two poles in tension so they both

can bring their own to where they don't agree.¹⁶

O'Siadhail speaks of ambiguity, but the problem is not that words have more than one meaning, but that important values conflict or compete. The habit or skill that he describes is practical, not linguistic. It is a habit of mind capable of living with conflicting values or principles, a capacity to ‘to keep two poles in tension’. This is not a form of indifference or indecision, even less of irony or easy relativism. Rather, it is a mode of serious engagement, appreciating the force and validity of each value so that ‘they both/can bring their own to where they don't agree’.

The universe of irreducibly plural values makes the habit of ambidexterity essential for responsible moral agency. One must learn to be comfortable with the complexity of the moral universe, to experience the pull of competing values as the welcome manifestation of their importance and to accept that one can be of two minds with good reason.¹⁷ Rather than being paralysed by the conflict, one must learn to address it, keeping the competing values in view, and learn to manage the complexity responsibly, to preserve the competing values, while imaginatively finding ways to honour them wherever possible.

Sometimes, one of the values outweighs another, or one obligation defeats another. Careful discernment, taking into account all the morally relevant features of the circumstances, may lead one to that conclusion. Even then, the morally ambidextrous agent will fully appreciate the moral costs of acting on that judgment and accept responsibility for bearing and repairing them. Sometimes, careful discernment will enable the agent to reframe the choice in a way that avoids the conflict in large part. Sometimes, the agent can find a third way that achieves partial, but substantial, realisation of both competing values through a kind of compromise. Sometimes, the discerning agent may come to a better understanding of the limits of one of the competing values that opens the door for its tempering by the other.

This discipline of ambidexterity must be learned, habituated. Delacroix's discussion of moral habits offers us valuable insight into this and other habits that are crucial for responsible moral judgment and flourishing moral life.

Disclosure statement

No potential conflict of interest was reported by the author(s).

Notes

1 William Blake, The Complete Poems (Digitreads 2019) 158.

2 ‘Blake to Dr Trusler, 23 August 1799,’ in Sir Geoffrey Keynes (ed), The Letters of William Blake with Related Documents (Oxford University Press 1980) 9.

3 Sylvie Delacroix, Habitual Ethics? (Hart 2022). All page references in the text of this article refer to this work.

4 David Hume, A Treatise of Human Nature, David Fate Norton and Mary J Norton (ed) (Oxford University Press 2000) 206, 368, 378.

5 See Gerald J Postema, Law's Rule: The Nature, Value, and Viability of the Rule of Law (Oxford University Press 2022).

6 Stephen Holmes, The Matador's Cape (Cambridge University Press 2007) 233.

7 ibid 311–55.

8 ibid 301–2, 310.

9 ibid 305.

10 Iris Murdoch, The Sovereignty of Good (Routledge and Kegan Paul 1970) 32.

11 Delacroix (86) quotes Jasper C Van den Herik and Erik Rietvels, ‘Reflective Situated Normativity’ (2021) 178 Philosophical Studies 3381.

12 This section builds on my discussion of mercy in Law's Rule: The Nature, Value, and Viability of the Rule of Law (Oxford University Press 2022) ch. 11.

13 Mercy in this context may also take into account the plight of nearby others, for example the offender's family; however, broader considerations of the welfare of the community fall beyond the scope of this virtue.

14 Hale wrote in his diary, while sitting on the King's Bench, ‘It is the grace and goodness of God that I myself have not fallen into as great enormities as those upon which I give judgment. I have the same passions and lusts and corruptions that even those malefactors themselves have. . . . But even while the duty of my place requires justice and possibly severity in punishing the offense, yet the sense of common humanity and human frailty should at the same time engage me to great compassion to the offender.’ Quoted in Gerald J Postema, Matthew Hale: On the Law of Nature, Reason, & Common Law (Oxford University Press 2017) xvii–xviii.

15 GK Chesterton, ‘Twelve Men’ in Chesterton (ed), Tremendous Trifles (Sheed and Ward 1955) 57–58.

16 Micheal O'Siadhail, The Five Quintets (Canterbury Press 2019) 340.

17 Amile Rorty, ‘The Ethics of Collaborative Ambivalence’ (2014) 18 Journal of Ethics 392–403.