Mercy is a central virtue in both secular and religious moral thinking. But, as I have argued previously, justice is also a central moral concept. The problem is that mercy may require the waiving of penalties which are justly incurred. There is, therefore, a philosophical problem of the extent to which the two can be reconciled.
Mercy belongs to a group of overlapping concepts which include forgiving, pardoning, and showing compassion. There are, therefore, blurred contexts in which we might use any of these concepts and be understood. Nevertheless, clarity is always desirable so I shall try to isolate the essence of mercy and consider how it can be reconciled with justice.
How does mercy differ from pardon? There are two differences. The first and lesser difference is that in a pardon the guilty party is completely exonerated, whereas mercy can be shown either in complete exoneration (as in pardon) or in partial exoneration when the guilty party is put on probation rather than being sent to prison, or is bound over, and so on.
The second and more fundamental difference is that a pardon can be and in practice frequently is given for a range of contingent reasons, such as to make a peace treaty easier to maintain, to negotiate return of hostages, to avoid popular protest, and so on. In short, pardon is a utilitarian concept. On the other hand, mercy remains fundamentally in the company of justice, and in particular in the retributivist interpretation of justice.
How does mercy differ from compassion and forgiveness? The answer is that compassion and forgiveness are exercised by us in our private lives, as part of the interactions of ordinary social life. On the other hand, mercy is exercised by people in public roles, as judges, sheriffs, club secretaries or policemen considering whether to issue a fine to someone who has broken Covid travel rules. In other words, mercy is at home in the same context as justice, that context being a system of rules.
But the rules of justice can be applied with a narrow or a broad interpretation. In a narrow sense, justice requires consistency of treatment. It is a principle of formal justice that like cases should be treated alike, whereas showing mercy seems logically to require a breach of that formal rule of justice. In other words, mercy is incompatible with formal justice.
There is also a broader sense of justice which can be located both in the law and more informally in everyday morality. The criminal law is a system of rules with penalties attached to breaches of these rules. If these penalties are not imposed on those who breach the rules, there is formal injustice. But that is only half the story. Rules are breached by people with different sorts of character and personal histories, or who act from a variety of motives. Justice in the wider sense requires that these be taken into account. In the wider sense, justice is compatible with, or indeed morally requires, the showing of mercy.
Consider some examples. Most jurisdictions have laws against the deliberate killing of other persons. Severe punishment is attached to such laws, let us say 20 years in prison. Now, suppose that person A deliberately kills her husband in order to inherit his estate and set up house with her new lover. Person B deliberately kills her husband who is in great pain from a terminal illness. She has first discussed the matter with him, has received his encouragement and confesses to the police what she has done. Person C deliberately kills her husband after years of physical and mental abuse endured from him. Most people would say that justice requires that the law should be applied strictly in case A, but that in cases B and C justice should be tempered with mercy.
In reply to this type of argument, it could be objected that while cases B and C might loosely be called cases of mercy, strictly speaking they are not. They are simply cases in which legal justice requires that its rules be treated flexibly. After all, sentences are decided, within limits, by judges. It is easy to forget that they are called 'judges' because they exercise judgement. In other words, their roles include applying sentences with flexibility.
If we take this line, we could say that in both the law and ordinary social interaction the proper way to look at mercy is to depict it as a matter of benevolently reducing or waiving punishment. This line certainly fits some of the ways in which we speak of mercy in ordinary life, the law and within theology. Mercy according to this way of thinking is appropriate when there are obligations on us which outweigh the claims of justice. If we take this line, mercy joins the company of concepts such as compassion and benevolence, and the line certainly fits some of the ways in which we think of mercy.
But there is a drawback to placing mercy into the same category as benevolence and compassion. It is that benevolence and compassion don't require grounds or reasons. 'It was a sunny morning so I happened to be feeling very benevolent' is a sentiment which need raise no moral eyebrows. But if we substitute 'merciful' for 'benevolent' in the example, we have the arbitrary approach of a despot.
To put it another way, for an action to count as benevolent or compassionate, it must be true that a non-benevolent or non-compassionate action or omission would not be wrong. Benevolent and compassionate actions are desirable but they reflect how people happen to be feeling, and feelings can be matters of the luck of nature or of circumstances. But, as opposed to that point of view, my claim is that when it is appropriate to show mercy as in cases B and C above, a non-merciful decision would be wrong.
The argument can be put in a legal context. A legal system is governed by two broad moral ideas: aequum et bonum, the equitable and the good. Now justice in the narrow sense is a function of aequum and mercy is then incompatible with justice. But in the broader sense, justice is a function of the operation of both concepts, and sometimes, to exemplify bonum, mercy must be shown.
Does this mean that mercy is a utilitarian concept? Is the good it exemplifies a utilitarian good? No doubt language and attitudes are sometimes blurred but, as I claimed previously, mercy is a concept most at home in a retributivist context. I suggested that it makes logical sense to speak of giving a pardon for a variety of reasons, including utilitarian ones, but mercy can be said to be shown only where the good aimed at is in some way intrinsic to the situation, such as a good realised through taking into account the quality of the will of the accused. Was the intent in the killing, for example, to relieve suffering? If so, then mercy is to be justified by an appeal to the moral character of the accused.
As I have admitted, there can be unclear cases. For example, suppose a mother of three children ought, in terms of law, to be sent to prison for a year but the judge, in view of the likely effect on the children, decides to exercise mercy and gives her a conditional discharge. Has mercy been generated here by utilitarian considerations? That could be said, but the judge's decision is specifically for the sake of the children in question rather than society more generally. His decision can therefore be seen under the legal umbrella of bonum.
Robin Downie is Emeritus Professor of Moral Philosophy at the University of Glasgow
