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When Can or Should Legal Judgment Be Merciful? An Introduction

Published online by Cambridge University Press:  05 December 2011

Austin Sarat
Affiliation:
Amherst College, Massachusetts
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Summary

Mercy occupies an uncomfortable position in liberal legal systems like that of the United States. From everyday encounters between citizens and police to grand gestures like executive pardons, the possibilities and need for mercy and merciful judgments abound. Law needs mercy. Thus, for theorists like Martha Nussbaum mercy can and should be folded seamlessly into the operations of law.

Yet almost as ubiquitous as are occasions for the exercise of mercy are suspicions and doubts about it. Low-visibility police decisions, prosecutorial charging decisions, judicial sentencing in the absence of guidelines – these and other merciful judgments often seem troublingly arbitrary, prone to partiality or outright discrimination. As Jeffrie Murphy puts it:

If we simply use the term “mercy” to refer to certain of the demands of justice (e.g. the demand for individuation), then mercy ceases to be an autonomous virtue and instead becomes part of…justice. It thus becomes obligatory, and all the talk about gifts, acts of grace, supererogation, and compassion becomes quite beside the point. If, on the other hand, mercy is totally different from justice and actually requires (or permits) that justice sometimes be set aside, it then counsels injustice. In short, mercy is either a vice (injustice) or redundant part of justice.

Type
Chapter
Information
Merciful Judgments and Contemporary Society
Legal Problems, Legal Possibilities
, pp. 1 - 18
Publisher: Cambridge University Press
Print publication year: 2011

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