Cambridge Legal Theory Discussion Group (CLTDG): 'The Miracle of Mercy'

Speaker: Giordana Campagna

Many states which consider themselves rule of law states provide for some form of mercy. One of the best-known examples for this is the power of certain state officials to grant pardons. This raises a dilemma: the rule of law requires that like cases be treated alike. Mercy, on the other hand, is usually understood as being unbound by rules. As many scholars argue, mercy is like a gift whose giver is not constrained by any rules, including the rule of law. Hence, if we required mercy-givers to apply mercy according to the requirements of the rule of law (equally to all like cases), they would cease to be mercy-givers. For this reason, if mercy-givers were bound by the rule of law, they would no longer be mercy-givers. Mercy and the rule of law thus appear to be in conflict. I argue in my paper that this conflict disappears once we understand mercy as a miracle. Focusing on pardons in particular, my argument is that they are isolated abrogations of individual legal rules. As a result, pardons cannot be in conflict with the rule of law. The analogy with miracles is particularly fitting as in both cases, miracles and pardons, the ordinary course of events is set aside in an individual case by a greater power.