Mercy as a Legal Concept

Yes and no. First, consider the sense in which the development of legally restricted pardons does not detract from their miracle character. It is important to note that the extent to which pardons are subject to judicial review is indeed quite limited. The courts, which have broken with the sacrosanct nature of executive clemency, mostly only consider clemency proceedings; they fail to review the final pardon decision themselves.113 In other words, they allow for a procedural review rather than a substantive review. For example, some courts have set (minimum) standards for due process, such as the obligation to hear the leniency applicant`s arguments. Or they have established a more general right to a fair trial.114 However, the official`s personal decision to grant or reject a request for clemency himself has remained largely unchallenged by the courts. Ultimately, therefore, while courts allow limited judicial review of the pardon process, they generally accept that individual pardons should not be subject to substantial review.115 From a legal perspective, asserting that clemency donors have discretion – that they are (not) free to show leniency – means that they have no legal obligation.12 An act of mercy is therefore never a act to which one is obliged to perform. The giver of grace does not need to be limited by law to be free to decide whether or not to grant mercy to the recipient of grace, and thus whether or not to benefit the person in the least powerful position. The other side of the coin is that no one has the right to receive the mercy of the Merciful.13 it is something to beg for.14 To explain this, I will argue in this section that the thesis of the conflict concerning pardons can be refuted once we recognize its “miraculous” character.

To put it less mystically, pardons cannot conflict with the rule of law and its need to treat similar cases equally, because they are cases in which individual rules do not apply. I will first develop my argument by explaining the anarchy (or “regularity”) inherent in executive mercy. If I apply this statement to the (apparent) conflict between pardons and the rule of law, I will show that pardons cannot violate the rule of law (A). Next, I will show that the anarchy of graces must be interpreted as a miracle rather than a state of emergency in the Schmittian sense, as Sarat and Hussain argued (B). I will support my conclusion by demonstrating that the miraculous nature of pardons is essential to their function as a last resort in cases where the normal application of the law would have undesirable results. Finally, I will mention the possible decline in executive leniency caused by increased judicial review of pardon (C) decisions. While Sarat and Hussain`s theory can be usefully applied to resolve the conflict thesis, I believe that its framework – the Schmittian state of emergency – obscures our view of the true nature of pardons. In particular, I will argue in the next section that the fact that pardons prevail only over isolated legal norms in favour of one person and not the entire legal system is essential to its function as a last resort. So I would say that pardons are best understood as miracles and not as states of emergency.

The situation is different with respect to the statutory pardon power, even if the exercise of that power results in the suspension of the law. This paradoxical feature of pardons has been described by Sarat and Hussain as “legal lawlessness”.[63] The idea behind acts of legal anarchy is that the law can exempt certain acts from its ordinary requirements. As a result, legal systems may grant powers – such as the power to pardon convicted criminals – that are not regulated by law. In these cases, the law allows anarchy. The powers of pardon are provided for by law itself and allow the bodies to which they are delegated to decide freely whether and how they wish to exercise this power in a specific case. Thus, in Sarat and Hussain, we can say that pardon powers are a form of “legally sanctioned legality”.64 If the law dictated the terms of pardons, it would mean giving the fox responsibility for the henhouse. This does not mean, however, that the legal system should not claim to be as fair as possible to the individual case. This was emphasized by the Italian legal thinker Cesare Beccaria, who stated that “clemency is a virtue that belongs to the legislator and not to the executor of the will of laws, a virtue that should appear in the code and not in the private judgment.” 97 Beccaria assumes that the more just a state is, the less it needs forgiveness. For a state to become more just, he suggested, it should leave to the legislator the reasoning behind executive mercy, “to be tender, forgiving, and humane”.98 Beccaria`s ideal – unattainable but nonetheless desirable – was one that does not require forgiveness because its laws are sufficiently just and benevolent.99 There is a fascinating parallel here with Anselm`s theory. It is also based on the idea that it seems impossible to be merciful and deal with similar cases at the same time.

But Anselm comes to a different conclusion than Harrison. According to Anselm, God could in principle be just and merciful at the same time. This is because Anselm`s claim was based on his purpose of proving that God exists. In short, he argued that things that exist only in our imagination are less perfect than things that exist in reality. Because God is the most perfect of all beings, He must actually exist. And part of perfection is combining all sorts of virtues, including mercy and justice. Anselm recognized the tension between a merciful act and a just act and resorted to the following argument. The tension dissolves as soon as we realize that the act of mercy can be viewed from two angles: the point of view of the recipient of mercy, for whom the act seems to contradict what justice would have demanded; and the perspective of God himself, for whom the act can still be considered just because it “is appropriate to [his] goodness.” [45] I now turn to the second aspect of pardons, namely that they involve complete discretion on the part of the public servant. In this sense, pardons differ from ordinary discretionary powers.

Unlike the latter, which are subject to legal restrictions on how public servants should exercise their discretion, there are generally no restrictions on the exercise of pardon powers.67 In other words, ordinary discretionary powers are measured by law, but pardons are generally not. An act of mercy by the executive, as Sarat and Hussain note, is different from “more regular cases [of discretion], since it may be an act of complete discretion by a single ruler.”68 This does not mean, however, that Schmitt`s thinking is useless in understanding the nature of pardons. Schmitt was right when he pointed out that “the concepts of modern state theory are secularized theological concepts”.80 Although he mentioned mercy only in passing, he pointed out in political theology that because of its ability to suspend the normal course of events, “the exception in jurisprudence is analogous to the miracle in theology”.81 When an Almighty God decides miracles, An all-powerful secular ruler decides on the exception. In his later works, Schmitt returns to the dichotomy between the natural and the supernatural – between law and exception. In The Nomos of the Earth, he argues that the appropriation of land is “the principal legal title underlying all subsequent laws”.82 In other words, all law begins with the order of the earth. And the earth, of course, is the epitome of nature. Its order is therefore the order of the natural. And as Schmitt explains in On the Three Types of Legal Thought, the supernatural finds its representation in mercy, which is not part of a “humanized normativist order,” but “belongs to a sublime divine order above human normativization”.83 Mercy – which belongs to the supernatural realm – cannot be ordered in the same way as the law. that is, naturalness.

Mercy has its source in the divine, the law in nature. Order (law) is opposed to disorder (mercy), nature to the supernatural. Mercy and law exist in separate worlds. Involuntary euthanasia, on the other hand, is a patient who cannot consent to end-of-life measures. Involuntary euthanasia concerns a patient who does not do or resists such measures. Both are illegal in all countries. Many rule of law states provide for clemency powers, especially the power to grant pardons. This raises a potential conflict: the rule of law requires that similar cases be treated equally. Leniency, on the other hand, is generally understood not to be limited by legal principles, including the principle of treating similar cases equally.

This article focuses on the forgiveness powers of state officials as an example of mercy and argues that we should understand pardons as miracles. Like miracles that trump individual laws of nature, pardons trump legal rules on an individual and discretionary basis. After the suspension, the legislation no longer applies to the case in question and, therefore, there is no conflict between pardons and the rule of law. As I will show, this arbitrary suspension of legislation is a prerequisite for pardons to fulfil their function as a remedy for undesirable legal results. Mercy, practice. To pity is to be punishable at the discretion of the judge. To understand my reasoning, one must first understand what pardons are. In short, forgiveness is an institutionalized form of mercy. As such, they generally encompass the three elements of mercy I described in section 2: they involve beneficial treatment, inequality of power, and discretion in deciding whether or not to treat someone beneficially.

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