Skip to main content Accessibility help
×
Hostname: page-component-5d59c44645-lfgmx Total loading time: 0 Render date: 2024-02-19T18:35:47.428Z Has data issue: false hasContentIssue false

4 - Actions of Mercy

Published online by Cambridge University Press:  05 December 2011

Austin Sarat
Affiliation:
Amherst College, Massachusetts
Get access

Summary

They stood gazing at the artificial Negro as if they were faced with some great mystery, some monument to another's victory that brought them together in their common defeat. They could both feel it dissolving their differences like an action of mercy. Mr. Head had never known before what mercy felt like because he had been too good to deserve any, but he felt he knew now.

– Flannery O’Connor

To know what mercy is, must one have received it? The losers don't write history, and (known) criminals don't write punishment theory. The scholars who do write punishment theory disagree on how to justify punishment, but they tend to agree that punishment is justifiable on some normative account. And if punishment is just, mercy is viewed as a threat, an extralegal distortion of the principles of legal justice. Quite literally, a merciful judgment is a judgment against punishment. It seems those who are for punishment are logically required to be against mercy. But do the critics of mercy fully understand what they oppose? Is the philosophical critique of mercy equivalent to victors’ history?

Type
Chapter
Information
Merciful Judgments and Contemporary Society
Legal Problems, Legal Possibilities
, pp. 205 - 233
Publisher: Cambridge University Press
Print publication year: 2011

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

O’Connor, FlanneryThe Artificial NiggerThe Complete Stories 1995 249 269Google Scholar
Kozinski, AlexTseytlin, MishaYou’re (Probably) a Federal CriminalIn the Name of JusticeCato Institute 2009 43Google Scholar
Murphy, Jeffrie G.Mercy and Legal JusticeForgiveness and MercyHampton 1990 166Google Scholar
Sigler, MaryMercy, Clemency, and the Case of Karla Faye TuckerOhio State Journal of Criminal Law 4 2007 455Google Scholar
Card, ClaudiaOn MercyPhilosophical Review 81 1972 182CrossRefGoogle Scholar
Nussbaum, Martha C.Equity and MercyPhilosophy and Public Affairs 22 1993 83Google Scholar
Steiker, Carol S.Tempering or Tampering? Mercy and the Administration of Criminal JusticeForgiveness, Mercy, and ClemencyStanford University Press 2007 16Google Scholar
Markel, DanAgainst MercyMinnesota Law Review 88 2004 1421Google Scholar
Card, ClaudiaOn MercyPhilosophical Review 81 1972 182CrossRefGoogle Scholar
Ristroph, AliceDesert, Democracy, and Sentencing ReformJournal of Criminal Law and Criminology 96 2006 1293Google Scholar
Hurd, HeidiThe Morality of MercyOhio State Journal of Criminal Law 4 2007 389Google Scholar
Feinberg, JoelThe Expressive Function of PunishmentDoing and Deserving 1970 95Google Scholar
Murphy, Jeffrie G.
Bentham, JeremyIntroduction to the Principles of Morals and LegislationDover 2007 200Google Scholar
Bentham, JeremyThe Rationale of PunishmentPrometheus Books 2009 328Google Scholar
Morris, Herbert 1981 93
Hampton, Jean 1992 12
Murphy, Jeffrie G.Legal Moralism and Retribution RevisitedCriminal Law and Philosophy 1 2007 5CrossRefGoogle Scholar
Murphy, Jeffrie G. 1999 149
Moore, Michael S. 1997 91
Zimring, FranklinPrinciples of Criminal Sentencing, Plain and FancyNorthwestern University Law Review 82 1987 73Google Scholar
Ristroph, Desert, Democracy”; Ristroph, “How (Not) to Think Like a PunisherFlorida Law Review 61 2009 727Google Scholar
Scheid, Don E.Constructing a Theory of Punishment, Desert, and the Distribution of PunishmentsCanadian Journal of Law and Jurisprudence 10 1997 441CrossRefGoogle Scholar
Kant, Immanuel 1974 196
Kant, 1970 155
Ristroph, AliceRespect and Resistance in Punishment TheoryCalifornia Law Review 97 2009 601Google Scholar
Murphy, JeffrieMarxism and RetributionPhilosophy and Public Affairs 2 1973 217Google Scholar
France, Anatole 1894
Westen, PeterThe Empty Idea of EqualityHarvard Law Review 95 1982 537CrossRefGoogle Scholar
Raz, Joseph 1986 220
Anderson, Elizabeth S.Pildes, Richard H.Expressive Theories of Law: A General RestatementUniversity of Pennsylvania Law Review 148 2000CrossRefGoogle Scholar
Adler, Matthew D.Expressive Theories of Law: A Skeptical OverviewUniversity of Pennsylvania Law Review 148 2000 1363CrossRefGoogle Scholar
Nietzsche, Friedrich 1995 100
Fletcher, George PThe Place of Victims in the Theory of RetributionBuffalo Criminal Law Review 1999 51 58Google Scholar
Whitman, JamesMaking Happy PunishersHarvard Law Review 118 2005 2698Google Scholar
Ristroph, AliceResponsibility for the Criminal LawPhilosophical Foundations of the Criminal LawOxford University Press 2011Google Scholar
Finkelstein, ClairePositivism and the Notion of an OffenseCalifornia Law Review 88 2000 335CrossRefGoogle Scholar
Murphy, Law Like LoveSyracuse Law Review 55 2004 15Google Scholar
Koosed, Margery MalkinAverting Mistaken Executions by Adopting the Model Penal Code's Exclusion of Death in the Presence of Lingering DoubtNorthern Illinois University Law Review 21 2001 41Google Scholar
Ryan, George 2005 218
Golash, Deirdre 2005
Brown, Edward198983
Hobbes, Thomas 1996

Save book to Kindle

To save this book to your Kindle, first ensure coreplatform@cambridge.org is added to your Approved Personal Document E-mail List under your Personal Document Settings on the Manage Your Content and Devices page of your Amazon account. Then enter the ‘name’ part of your Kindle email address below. Find out more about saving to your Kindle.

Note you can select to save to either the @free.kindle.com or @kindle.com variations. ‘@free.kindle.com’ emails are free but can only be saved to your device when it is connected to wi-fi. ‘@kindle.com’ emails can be delivered even when you are not connected to wi-fi, but note that service fees apply.

Find out more about the Kindle Personal Document Service.

  • Actions of Mercy
  • Austin Sarat, Amherst College, Massachusetts
  • Book: Merciful Judgments and Contemporary Society
  • Online publication: 05 December 2011
  • Chapter DOI: https://doi.org/10.1017/CBO9781139030656.008
Available formats
×

Save book to Dropbox

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

  • Actions of Mercy
  • Austin Sarat, Amherst College, Massachusetts
  • Book: Merciful Judgments and Contemporary Society
  • Online publication: 05 December 2011
  • Chapter DOI: https://doi.org/10.1017/CBO9781139030656.008
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Actions of Mercy
  • Austin Sarat, Amherst College, Massachusetts
  • Book: Merciful Judgments and Contemporary Society
  • Online publication: 05 December 2011
  • Chapter DOI: https://doi.org/10.1017/CBO9781139030656.008
Available formats
×