Mercy in Legal Terms

First, totality versus individuality. As noted above, the state of emergency in Schmitt`s theory of sovereignty leads to “the abolition of the legal order in its entirety,” as Agamben puts it.77 Pardons, on the other hand, prevail only over legal norms isolated for one person. The leniency of the executive branch leads to the suspension of certain parts of the law, such as anti-murder laws, as applied in a particular case. Therefore, even in death penalty cases, pardons are much less important than emergency decisions, which affect the entire legal system. The personal element of forgiveness, which we discussed earlier in our analysis of private autonomy, plays a central role in the function of forgiveness as a last resort. Those who are vested with powers of grace are not mere (legal) officials. They are also always people who are supposed to act on personal considerations.89 For this reason, it is assumed that they are able to add a human touch to the system by correcting unfair or embarrassing legal outcomes. In a government of laws, there should always be a person who has the power to intervene for human reasons. Thus, unlike judges who, according to Murphy, are representatives of the rule of law, those with leniency power do not have their “own feelings”.90 One of the main advantages of introducing general rules into legal systems is that these rules apply equally to all possible cases. However, universality can lead to injustice if relevant differences in similar cases are not taken into account. Even the most developed legal systems face this dilemma.

As James Sterba notes, “well-designed institutional or legal rules. can generally only make it very likely that a moral outcome will occur; They cannot infallibly guarantee this outcome. 85 In order to correct the most flagrant injustices, a mechanism was needed to remedy this situation by allowing individual exceptions to the application of the general rules. Some have specified a standard to separate good reasons for [forgiveness] from bad ones. But the ex ante indication of when mercy is appropriate contradicts the reason for mercy in the first place: because not all factors can be predicted in advance, discretionary control is important.96 As Sarat and Hussain themselves admit, pardons are generally not “an imminent danger or collapse; His usual language is that of mercy and not danger. Sarat and Hussain (No. 55) 1314. The growing willingness of some jurisdictions to subject pardon decisions to judicial review raises the question of whether we can still say that pardons are miracles. Remember that I explained the miracle of mercy by showing that forgiveness is an essentially anarchic event.

Forgiveness, I said, are like a gift. They are an act of grace that cannot be subject to legal norms, because if they could, they could not fulfill their purpose of intervening when those legal norms fail. Can pardons be subject to judicial review when they remain miracles? Or is it the fall of the miracle of mercy? Pardons, as understood in this article, are different from other legal instruments, sometimes referred to as “pardons”. For example, several U.S. states consider what is called “innocence” (e.g. North Carolina) or “absolute” pardons (e.g., Virginia), reserved for the two wrongfully convicted individuals recovered on January 15, 2021. However, contrary to how I define pardons in this article, pardons are generally understood neither as full discretion nor as a repeal of the law. In the case of real innocence, the law is not nullified by absolute or innocent “pardons”, since the person was wrongly convicted and the law in question did not apply to him at all. In addition, there are legal instruments such as release on humanitarian grounds, which are similar to pardons in that they lead to the release of a convicted person before he or she has served his or her sentence. However, compassionate “pardons” are usually granted in response to serious illness or other unforeseen circumstances and are often necessary due to a lack of adequate care within the prison system. The more limited (humanitarian) grounds that may justify release on humanitarian and compassionate grounds suggest that, compared to pardons, the principles of the rule of law may apply to this instrument.

Pardons can also be distinguished from the so-called legal amnesty. Amnesties are not only granted by another actor (parliament instead of the executive); They also apply in different situations. One difference is that while a pardon is “surgical” because it only applies to a specific person, amnesties generally apply to a select group of people. In addition, amnesties are granted by the legislature, which is limited by the Constitution. This is not “private autonomy.” I suggest that we can identify at least four striking similarities between mercy (and forgiveness in particular) and the divine miracle. First, in the case of theological miracles, it is assumed that God has complete discretion in His actions. He is by definition not bound by any rules, because He Himself is the creator of these rules. When God performs a miracle, He does so with absolute discretion.

Similarly, pardons are the responsibility of the sovereign (i.e. the executive), who has absolute discretion. No sovereign is legally bound to grant a pardon or not. Second, no one has any claim or right to a miracle. Likewise, no one has the right to experience mercy through forgiveness. As mentioned above, neither mercy nor forgiveness are acts that anyone can demand. Third, miracles are not something that can be derived from the laws of nature, for while it is often said that the Christian God works through nature, a miracle actually defeats nature. This is possible because God, as the creator of nature, can choose to work against nature. So a divine miracle is something that should not happen according to the laws of nature. Pardons, by analogy, prevail over the course of human laws. As explained above, they do this surgically, so to speak, by only breaking certain rules. For example, if the law requires a person to spend 20 years in prison, a pardon overrides that legal requirement while the others remain intact.

That is what it means that pardons are provided for by law, but not regulated by law, because what is repealed can no longer bind. After all, a miracle is always a benevolent act. It benefits its beneficiary.84 As I have shown, this also applies to pardons. They are partial in the sense that they are always intended to benefit one or more persons in particular. See, for example, Andrew Novak, Comparative Executive Clemency: The Constitutional Pardon Power and the Prerogative of Mercy in Global Perspective (Routledge 2017), who notes that “executive discretionary pardon is uncomfortable in a legal system of objective rules and distinctions, and the pardon power has raised various philosophical objections”; Austin Sarat, “At the Boundaries of Law: Executive Clemency, Sovereign Prerogative, and the Dilemma of American Legality” (2005) 57 American Quarterly 611. 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. To understand my reasoning, one must first understand what pardons are. In short, forgiveness is an institutionalized form of mercy. As such, they generally include the three elements of mercy I described in section 2: they involve beneficial treatment, inequality of power, and discretion to decide whether someone is treated favorably or not.

These last two characteristics – inequality of power and discretion – are reflected in the fact that pardons are a matter of sovereignty. That is, they are exercised by the sovereign or by officials acting on behalf of the sovereign. Graces are the business of kings and queens, presidents and governors. The element of advantageous treatment, on the other hand, is reflected in the fact that pardons result in the renunciation or mitigation of punishment.50 As I will show in this section, there are two aspects that make the mercy of the executive special and distinguish it from other acts of state officials: first, pardons take precedence over legal rules and, Second, they are completely arbitrary.51 Being pity is punishable at the discretion of the judge. Crim.

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