The Morality of Mercy

33 Pages Posted: 31 May 2015

See all articles by Heidi M. Hurd

Heidi M. Hurd

University of Illinois College of Law

Date Written: 2007


In this article I explore whether retributivists are wrong to dismiss the notion that mercy can have any moral merits. My goal is to canvass what is surely a nonexhaustive list of instances in which mercy seems to have intuitive moral appeal even for declared retributivists - and to ask of each such instance two questions: (1) Is it an instance of true mercy (a properly-motivated suspension of just deserts), as opposed to an instance in which real justice (the imposition of just deserts) is sought to be achieved, or in which other considerations are really doing the moral work? (2) If it is an instance of true mercy, can it really be defended on moral grounds? As I will demonstrate, the arena in which mercy is moral is incredibly circumscribed. As such, retributivists are right to insist that, as a general matter, mercy is an unjustified gesture and a dubious moral virtue. But in the arena in which it flourishes morally, it is not just a virtue; it is the essence of the category. For it finds its place in loving relationships and friendships, and within those relationships, it is not just valuable, but constitutive. If we are to love and be loved, I hazard that we must be merciful and we must depend upon mercy. And if this is the case, it may be that we must each cultivate a merciful disposition that may well have an inevitable tendency to lead us astray in other arenas in which mercy is misplaced.

The article is divided into three main parts. Part II is devoted to a preliminary discussion of the nature of mercy, and particularly, the nature of the mental state(s) that must (or may) accompany an act of clemency in order for it to be of a merciful sort. As I conclude in this part, it may be impossible to specify the mens rea of mercy without understanding the circumstances in which mercy is both true to its name and justified. As such, it may be that settling the nature of mercy must await the lessons of Parts III and IV-the parts that concern the circumstances in which it is morally defensible for legal officials and private persons to deliver less than someone's just deserts.

Part III takes up the justifiability of clemency by officials-for example, prosecutors, judges, governors, and presidents-towards those suspected or convicted of criminal offenses. As I argue in this section, the most attractive moral justifications for official acts of clemency reveal such acts to be something other than acts of mercy-for example, efforts to redress procedural or factual errors so as, in fact, to impose just deserts; efforts to obtain gains in social utility, efforts to restore a victim 's sense of power and control by honoring her wishes as to the punishment accorded her aggressor. Indeed, as I shall argue, there is no moral basis for mercy, properly described, by officials within a justice system that is devoted to achieving retributive justice.

Part IV concerns private acts of mercy on the part of those who have been wronged towards those who have done them wrong. It begins with the assumption that victims have rights correlative with the secondary duties acquired by wrongdoers upon causing injury: (1) rights of compensation for the wrongs done to them, and (2) rights to exact retribution when the wrong is not a legal one or when the law might otherwise permit private retribution, or to assist in the prosecution of a wrong when private retribution has been preempted by a formal criminal justice system. It further presupposes that inherent in the nature of being a rights holder is the power to waive one's rights, such that victims are within their rights to waive the debts owed them by others or to refuse to exact retribution for the wrongs that have been done them. The question in this section, then, is how to determine when it is morally laudatory to stand on one 's rights-to enforce the secondary obligations of wrongdoers-and when is it morally laudatory to waive such rights-that is, to give mercy. As I argue, intimate relationships demand that one occasionally sacrifice one 's rights, and as such, they require that one cultivate a disposition for mercy. Inasmuch as it may be impossible to be the kind of person who (rightly) forgives wrongs at home without simultaneously being the kind of person who (wrongly) forgives wrongs on the job, it may be that the demands of personal virtue preclude one from being the kind of person who can live up to the demands of retributivism.

Suggested Citation

Hurd, Heidi M., The Morality of Mercy (2007). Ohio State Journal of Criminal Law, Vol. 4, 2007. Available at SSRN:

Heidi M. Hurd (Contact Author)

University of Illinois College of Law ( email )

504 E. Pennsylvania Avenue
Champaign, IL 61820
United States
2172443446 (Phone)
2172441478 (Fax)

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