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Government Mercy

24 Pages Posted: 1 Aug 2017 Last revised: 11 Sep 2017

Adam Perry

University of Oxford - Faculty of Law

Date Written: July 30, 2017

Abstract

A pardon is an act of mercy according to the law, but is a pardon mercy in an ordinary or genuine sense? What distinguishes a pardon from a lenient judicial sentence, which is not mercy by the law’s lights? These are questions about what mercy as it is understood in law has to do with mercy as it is understood outside of law, and about who in government acts mercifully and when, if indeed anyone in government ever does. Here I propose a general analysis of mercy, then bring that analysis to bear on government action. Three features of my analysis are noteworthy. First, almost all existing analyses say that mercy is unconstrained in a normative sense, but I argue that mercy is unconstrained in the way that arbitrary power is unconstrained. Second, although it’s often assumed that mercy must be motivated by compassion, I show that mercy only requires acting with the intention to benefit the recipient. Third, my analysis says that mercy requires the giver of mercy to overcome a motivation to treat the recipient harshly. Given this analysis, few government acts are merciful, but pardon is an institutional approximation or analog of mercy.

Keywords: Pardon, Mercy, Clemency, Arbitrary, Forgiveness

Suggested Citation

Perry, Adam, Government Mercy (July 30, 2017). Oxford Legal Studies Research Paper No. 51/2017. Available at SSRN: https://ssrn.com/abstract=3010951

Adam Perry (Contact Author)

University of Oxford - Faculty of Law ( email )

St Cross Building
St Cross Road
Oxford, OX1 3UL
United Kingdom

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