The Justice of Mercy
Publication Year: 2010
Published by: University of Michigan Press
Series: Law, Meaning, and Violence
This book is the work of an embarrassing number of years. The problem of finding a place for mercy within law is the question for me, and I suspect it always will be. But, being finite, I doubt that I will ever answer all the questions I have, so I can only proffer this effort as "what I have learned so far." As with any deeply personal work that stretches...
The problem of "justifying" mercy is old,2 but it has resurfaced recently in light of truth and reconciliation commissions and other transitional justice methods, debates over discretion in the federal sentencing guidelines, debates over the executive's clemency powers,3 and debates over "restorative justice" alternatives to traditional, state-imposed retributive punishment.4 We wonder...
Chapter 1. Beyond Kanticism to Being-with
Justice is usually understood as acting according to reason, and reason is conceived as a system of logically consistent rules. This "reason" of ours is the glue of community, giving us "reason" to treat each other fairly and to order our mutual affairs according to rules rather than whim. Without reason, we fear a return to a brutal state of nature, in which life is a battle zone between needy...
What if reason is not the ground of community or the essence of being human? This chapter outlines a different starting place. Instead of assuming we attain community and responsibility only through our efforts to overcome inclination and pursue reason, as the enlightenment philosophers did,1 what if we assume that the world and others are "given" to us already? What if reason is not...
Chapter 3. The Failure of Retribution
How does the metaphysical background of primal mercy as caritas, grace, and the "given" that comes before reason come to matter to a philosophy of punishment? If we recall that the main objection to mercy, understood in punishment terms as giving an offender less than is deserved, is that mercy is unequal and demeaning of who we are as reasonable creatures, we have already come...
Chapter 4. A New Approach: The Mercy of Punishment
As the last chapter sketched out, traditional accounts of punishment, whether utilitarian or retributivist, are not adequate. Yet they provide us with direction. We must articulate an understanding of punishment that sees it as (1) more than a tool for achieving something else, (2) somehow connected with both the wrongful intention and the harmful consequence of crime, and (3) giving central...
Chapter 5. The Ethics of Mercy: The Pardon Cases
In part 1, I suggested a rethinking of the relation between punishment and mercy from an understanding of humanity, at core, as a being-in/with rather than as a capacity for following universal rules of reason. After we have cleared away the philosophical objections to mercy that flow from the idea that universal rules are necessary to being human- that is, that mercy is irrational and...
Chapter 6. Miscarriages of Mercy?
When the problem of mercy arises, the conversation-ending question is often, would you forgive the Nazis? Such a question is usually meant rhetorically, as the reductio ad absurdum that ends debate. How could one forgive the Nazis? Yet, if we take the question seriously, there are three different problems to unpack here. First is the question addressed in the last chapter: are there any pardons...
Conclusion: Fallen Angels
Retributive justice's great strength has been its promise of nobility, derived from its kanticism. It gives meaning to the pain of punishment (and thereby to the wrong itself), it limits and rationalizes revenge, and it treats offenders with dignity. Retributivism also keeps mercy at bay, primarily by arguing that mercy is demeaning and unequal. Yet all of these strengths depend on the premise that...