23 Pages Posted: 1 Aug 2017
Date Written: July 30, 2017
Pardons are part of nearly every legal system, and pardons are almost always presented by the law as acts of mercy. Here I consider whether the law's understanding of mercy is consistent with our ordinary understanding of mercy. I ask: are pardons merciful, in an ordinary or genuine sense? What distinguishes pardons from, for example, lenient judicial sentences, which aren't merciful by the law's lights? To answer these questions, I work from the general to the particular: I propose a new definition of mercy, then apply that definition to state action. Three features of my definition are noteworthy. First, almost all existing definitions 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 definition says that mercy requires the giver of mercy to overcome a motivation to treat the recipient harshly. Given this definition, most but not all pardons are merciful. Few other state acts are merciful.
Keywords: Pardon, Mercy, Clemency, Arbitrary, Forgiveness
Suggested Citation: Suggested Citation
Perry, Adam, Pardons and Mercy (July 30, 2017). Available at SSRN: https://ssrn.com/abstract=3010951