The Justice of Mercy
THE JUSTICE OF MERCY, Michigan University Press, 2010
Posted: 14 Dec 2010 Last revised: 4 Feb 2014
Date Written: December 6, 2010
The problem of 'justifying' mercy is old, but it has resurfaced recently in light of debates over "restorative justice" alternatives to state-imposed retributive punishment. We wonder whether a victim/offender reconciliation that does not involve a painful sentence can be just; we wonder whether an executive is ever right to pardon out of compassion; we wonder whether judges should have discretion to sentence leniently in cases where defendants are remorseful, have dependents, are ill, have reformed, or are community heroes. Within the retributive punishment tradition that understands punishment as some form of "just deserts" based on the crime alone, all of these exercises of leniency are illegitimate. This book challenges this orthodoxy at its Kantian conceptual roots, rereading the philosophical tradition to argue that mercy is the prerequisite for just punishment, rather than its nemesis. The first step is taking seriously the idea that humans live with each other in time, not as isolated "reasoners" or "choosers" in a conceptual eternity. From this insight follows an account of law as common law, not universal rules; an account of punishment as a response to wrongs that resettles relationships for the future in conditions of uncertainty; and an understanding of mercy as a fundamental ethical requirement never to give up on each other. By unearthing an alternative to our "just deserts" apologies for a cruel and broken penal system, the hope is that all the rich institutional possibilities imagined by the restorative justice movement will become more conceptually acceptable and available.
The book is available through Project Muse website.
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