Emory International Law Review


Doron Menashe


The aim of this Article is to present a normative argument for mercy as a legitimate consideration in judicial proceedings, defining it as a distinct and independent element not encompassed by normal concerns of justice, retribution and individuation of sentencing. The Article addresses two meanings of mercy in the judicial context, both of which have—in the view of the author—a rightful part in the process of judgment and sentencing. These are “mercy” in the weak sense, i.e., a deliberative state of mind which accompanies the judicial proceedings (“Lesser Mercy”), and “mercy” in the strong sense, i.e., the judicial prerogative of taking into account, under appropriate circumstances, mercy towards the defendant once convicted, as a deviation from strict retribution (“Greater Mercy”). The Article presents the different approaches one may find in academic literature pertaining to the validity of considering mercy in court, and the relationship between justice and mercy. The Article begins with the basic moral intuition as to the merit of mercy. From this point of departure, the Article deals with the various criticisms raised against the legitimacy of considering mercy in the judicial context. In the normative analysis, the Article points to the need of formal justice to accommodate the particularistic circumstances of every incident. Although some have argued that this function should be met by equity, the Article argues that mercy is better suited because rational-analytical considerations may prove insufficient in this context. The Article also argues that the judge’s prerogative to determine under which circumstances to employ mercy towards the defendant does not contradict the responsibility and duty of the judge to impartiality. On the contrary, mercy lives harmoniously with and epitomizes the social values that every judge should represent.