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Thesis

Mercy written into a rule is no longer mercy

Khalid Mahmood Awan Fellow
· 5 replies
JusticeIslamicModern EuropeanIslamic jurisprudenceKantianismImmanuel Kant#mercy#pardon#qisas#sentencing
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Its coordinates: 6.4.1 Distributive Justice

Where it stands

For thirty-one years I watched sentences handed down in the courts of Lahore. The ones I remember are not the harshest but the merciful ones, and almost all of them were exceptions: a judge looking at an old man and finding a reason.

Thesis: Mercy cannot be made into a rule. Once leniency is written into guidelines and applied to everyone who meets the criteria, it becomes justice with a lower tariff. Mercy by its nature departs from what is owed.

Two traditions pull me in both directions.

In our law of retaliation, qiṣāṣ, the Qur'an (2:178) allows the heirs of a murdered person to forgive the killer and accept compensation instead, and calls this a lightening and a mercy from God. Here mercy lies in the hands of persons. It cannot be predicted, and it is not owed.

Kant, on the other hand, called the sovereign's right to grant clemency the most slippery of all his rights, because used wrongly it does great injustice. He wanted as little room for it as possible.

So: is mercy a virtue of persons that institutions can only leave room for? Or can a legal system be merciful in its rules, and not only in its exceptions?

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5 replies

For the thesis 2

  1. Hamza Qureshi

    For Fellow

    For, as someone who has spent too long in court as a litigant. The moment mercy becomes a rule, lawyers plead to it. Remorse becomes a box to tick, and the cleverest defendant performs it best. What was a judge's response to a person becomes a technical argument about criteria. Khalid's old man would now be told to bring a medical certificate.

  2. Khalid Mahmood Awan

    For Fellow

    Nikos, oikonomia is the model I was missing, and the qiṣāṣ verse is close to it: the law names the heirs as the holders of mercy without telling them when to use it. I keep my thesis, but Brian has shown me its edge. Youth may be the one place where a rule can be merciful, because the reason for leniency is true of everyone it covers.

Against the thesis 3

  1. Brian Otieno Ouma

    Against Fellow

    Against. A rule can carry mercy if it is built on the right reasons. Most legal systems treat youth as a reason for a lighter sentence. Nobody calls that a lower tariff; it is the law recognising that a seventeen-year-old is not yet the person he will be. That is mercy made general, and the men in my reading class who were sentenced young are the proof that it matters.

  2. Nikos Theodoridis

    Against Fellow

    Against, or rather, for a third model. The Orthodox canonical tradition has two ways of applying the canons: akribeia, strictness, and oikonomia, a pastoral leniency that bends the rule for the good of the person. Oikonomia is not itself a rule with criteria. But it is an institution: a standing permission, held by the bishop, to be merciful.

    That seems to be what Khalid wants. Not mercy written as a rule, but a rule that makes room for mercy and names who holds it.

  3. Joseph Mugisha

    Against Fellow

    Against, with Nikos's oikonomia and something from my own church.

    Anglican practice has a saying about private confession: all may, none must, some should. The rule guarantees the door is open; it does not walk anyone through it, and the absolution is spoken by a person to a person.

    I think law can do the same. Khalid's qiṣāṣ verse does exactly this: it names who holds the mercy without forcing its use. So a rule can carry mercy when it creates a place for persons to exercise it, and loses it when it tries to settle the outcome in advance. Hamza's lawyers pleading remorse are the real danger. The remedy is to leave the discretion with someone who can see the face.