"Above the sceptred sway": retrieving the quality of mercy.
| Autor | Ransome, William F. |
RESUMEN: La clemencia se suele considerar como una virtud moral loahle. Sin embargo, se ha puesto en duda la cualidad de la clemencia. Puesto que ser clemente implica ser indulgente con un malhechor más allá de los dictados de la justicia, parece que la clemencia no puede ser una virtud loable. Sostengo que varios intentos recientes por reconciliar la clemencia con la justicia fracasan, y que la tentativa subsiguiente por resucitar la clemencia como virtud moral loable es dudosa. Sin embargo, también demuestro cómo se puede recuperar la calidad loable de la clemencia si reconstruimos cuidadosamente su defensa moral fuera de la ley.
PALABRAS CLAVE: equidad, justicia, lenidad, clemencia, virtud
SUMMARY: Mercy is often thought to be a praiseworthy moral virtue. However, the quality of mercy has been thrown into doubt. Since to be merciful is to be lenient to a wrongdoer beyond the dictates of justice, it seems as if mercy cannot be a praiseworthy virtue. I argue that several recent attempts to reconcile mercy with justice fail, and that the subsequent endeavour to resurrect mercy as a praiseworthy moral virtue is doubtful. However, I also show how the praiseworthy quality of mercy can be retrieved, if we carefully reconstruct the moral case in its favour outside the law.
KEY WORDS: equity, justice, leniency, mercy, virtue
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Introduction
The status of mercy as a praiseworthy moral virtue is in doubt. (1) In the criminal law, it has been traditionally thought that the morally virtuous judge will, in some cases of punishment, temper justice with mercy. Mercy is supposed to be a praiseworthy moral virtue--it is good for a judge to be merciful. Justice, on the other hand, is supposed to be a central moral consideration--a judge is morally obligated to be just. In cases of punishment for wrongdoing, however, there is a prima facie conflict between mercy and justice. To be just is to exact a penalty in due proportion to the crime committed, whereas to be merciful is to exact a penalty less severe than justice dictates. Several attempts have been made to reconcile justice and mercy in the criminal law. (2) It may be, however, that mercy and justice are in fact irreconcilable in this context. In this paper I examine the case for mercy's status as a praiseworthy moral virtue, with the aim of determining in what context mercy can be regarded as genuinely praiseworthy. (3)
The idea of justice in retribution is one of balance, or due proportion, between the severity of wrong done and the severity of punishment. Martha Nussbaum (1993, pp. 88-89) and A.T. Nuyen (1994, pp. 61-62) both refer to the ancient Greek conception of balance and equality in the "natural process" as being the basis of the concept of retributive justice. In Aristotle's view, "What the judge aims at doing is to make the parts equal by the penalty he imposes, whereby he takes from the aggressor any gain he may have secured" (NE 1132a 6-7). The wrongdoer has caused an imbalance in the natural order of things, and it is the obligation of the judge to restore the natural balance by inflicting an appropriate punishment on the wrongdoer; according to Aristotle, "What the judge does is to restore equality" (NE 1132a 17). In this way, the imbalance caused by the wrongdoer in his own favour is negated by the appropriate punishment. A straightforward contemporary understanding of justice might deem that the severity of punishment a just judge imposes on the wrongdoer answers to the severity of wrong done. The defining obligation of the judge in cases of wrongdoing and punishment is to be just, and in being just to inflict the severity of punishment that the wrongdoer deserves. The idea of mercy in retributive punishment, on the other hand, is one of leniency toward the wrongdoer going beyond due proportion. The merciful judge determines a just punishment, and instead of inflicting it decides to inflict a less severe penalty. Nussbaum refers to the Roman Stoic Seneca, who develops the concept of mercy as "that which turns its course away this [lenient] side of that which could be justly determined" (Nussbaum 1993, p. 102). At the core of the concept of mercy are the requirements that (1) the merciful agent is under no moral obligation to be lenient, and (2) that the wrongdoer has no moral claim to leniency. (4)
The primary OED definition of mercy is consistent with these requirements, although it does not explicitly state that the merciful agent is under no obligation, but rather that the recipient is in his power: "1. a. Forbearance and compassion shown by one person to another who is in his power and who has no claim to receive kindness; kind and compassionate treatment in a case where severity is merited or expected." Thus, a further requirement of merciful agency suggests itself: (3) that the recipient of mercy is in the power of the merciful agent. (5) The institutional power of judge over wrongdoer in the criminal law is the paradigm case of this power relation in most discussions of mercy--as the use of the word 'leniency' in the prior two conditions hints--although it is by no means the only context in which mercy can be shown. The concept of mercy covers a far broader set of cases outside the law, as I shall discuss later. However, it is especially crucial to resist the temptation to generalise features belonging to the restricted institutional role of judges in criminal law cases to all merciful agency. Merciful agents who are not judges themselves, it ought to be noted, are not necessarily bound by the judge's institutional role or duty, which includes determining and then taking some corrective or punitive action towards wrongdoers. The power that the merciful agent holds is the power to relieve--or to refrain from inflicting--suffering, which is conceptually distinct from the power of determining and enforcing the punishment that wrongdoers should suffer. The dominant example of the criminal law judge in discussions of mercy tends to blur this important distinction.
There is also a secondary concept of mercy, which applies to a power relation between persons in the absence of, or apart from, any moral considerations at all: "5. a. The clemency or forbearance of a conqueror or absolute lord, which it is in his power to extend or withhold as he thinks fit ...; b. at mercy.., absolutely in the power of a victor or superior, at his disposal; liable to punishment or hurt at the hands of another .... " This secondary concept--I shall refer to it as mercy *--is easily confused with the original concept, although it is important to recognise some of the differences between the two. Under the secondary definition, the merciful* agent may well be morally obligated to treat his victim with compassion, and the recipient may well be morally entitled to lenient treatment. Indeed, a certain kind of qualified moral decency--well short of praiseworthiness--can be observed here: merciful* treatment often prevents or avoids immoral harm (i.e. the immoral harm that the merciful agent chose not to inflict). A captor who has it in his power to torture or even kill his captive, and yet who relents, shows mercy *, even when the captivity itself is immoral. Moreover, justice and mercy * within the criminal law are easily reconciled: to be both merciful * and just, the judge is simply required to be just, despite having the power to inflict a range of more severe--and unjust--punishments. This secondary concept of mercy *, however, isn't the concept that aspires to moral praiseworthiness, and nor is it in serious tension with the judge's obligation to treat wrongdoers justly.
When operating in the context of crime and punishment, the original concept of mercy is in prima facie conflict with the concept of justice. To formulate the conflict in terms of desert and obligations:
(1) A person guilty of wrongdoing deserves a certain severity of punishment.
(2) To administer the deserved severity of punishment is to be just.
(3) To fail to administer the deserved severity of punishment is to be unjust.
(4) To administer a less severe punishment than is deserved, whilst under no obligation to do so, is to be merciful.
(5) However, to administer a less severe punishment than is deserved is to fail to administer the deserved severity of punishment, and is therefore to be unjust.
(6) Therefore, to be merciful is to be unjust.
Since a judge is obligated to administer justice--what the wrongdoer deserves for his wrongdoing--and since mercy is "conceptually exclusive of rights and obligations", it seems that mercy, in this context, is not a moral virtue at all (Nuyen 1994, p. 66). If a judge were to show mercy she would manifest injustice, and, since to administer justice is the defining moral obligation of the judge, she would be morally blameworthy rather than praiseworthy.
Despite this apparently insurmountable problem, several recent writers have attempted to reconcile justice and mercy as virtues of judges in cases of crime and punishment. It will serve our purpose here briefly to revisit those arguments, so as to reconstruct the existing case against mercy. From this basis the case for mercy can then be examined outside the "criminal law paradigm" (Murphy and Hampton 1988) with the aim of determining whether and where mercy is a praiseworthy moral virtue.
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Mercy and the Criminal Law
H. Scott Hestevold (Hestevold 1983, 1985) proposes a solution to the conflict between justice and mercy using the concepts of "supererogation" and "disjunctive desert". According to Hestevold, mercy should be considered as a supererogatory moral virtue, one that is good to perform but not obligatory: mercy "involves the supererogatory tempering of deserved suffering", whereas, "justice involves the obligatory administering of deserved suffering for an agent's having performed a wrongful action" (Hestevold 1985, p. 281). The concept of "disjunctive desert" reconciles the two in cases of crime...
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