Philosophical Review

On Mercy
Author(s): Claudia Card
Source: The Philosophical Review, Vol. 81, No. 2 (Apr., 1972), pp. 182-207
Published by: Duke University Press on behalf of Philosophical Review
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 ON MERCY

M ERCY and retribution

have beenthought
to presuppose
fundamentally ethicalorientations,
different whichhave
been roughlycharacterizedas an ethicofcharityand an ethicof
justice. Charityhas been revered,on the one hand, as going
"beyondjustice" in a senseof beingsuperiorto it, and viewed
withsuspicion,on the otherhand, as arbitrarysentimentality.
Justicehas been declared by some as fundamentalto a moral
point of view, while othershave regardedan insistenceupon
justice as indicativeof pettinessand a vindictivedisposition.
Althoughjustice has been a widelyinvestigated topic of recent
moral philosophy,the idea of charityhas receivedlittlesuch
reflection.It is to be hopedthatan examinationofcharitywould
dispelthe notionthatbeingcharitableis an alternativeto being
just. This essay is intendedas a beginningin that direction,
takingmercyas an exampleof a formof charity.
Two general questionshave interestedme in the ethicsof
mercy: (i) How is mercyrelatedto justice in the practiceof
punishing?(2) Whatare themoralbasesofa case formercy?In
the firstsectionbelow I tryto set out the moralbases of a case
formercyby developinga principlewhich is analyticof that
conceptin its theoretically mostinteresting sense-namely,as a
moralresponseto an offender whomwe have therightto punish.
In developingthe mercyprinciple,I relyupon notionsof desert
and equalitywhich are ordinarilyassociatedwith the idea of
justice. Thus, a partial answer to the firstquestion emerges.
Mercy can be construedas a moral responsecharacteristic of
justiceas a virtueofpersons whohave therightto punish,although
it is notpartofthejusticeoftheinstitution ofpunishment in so far
as thatinstitution is definedby rulesdelineatingrightsin accord
withprinciplesof socialjustice. The further questionthenpre-
sentsitself:how is justiceas a virtueof personsrelatedto justice
as a virtueof social institutions? In the secondsectionbelow I
take up that problem,and in the thirdconsiderthe view that
mercyis a formof benevolence.The final sectionis devoted

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 ON MERCY

types of cases in which mercymay

mainly to representative
appropriate.
seem intuitively

I. THE MERCY PRINCIPLE

In dealingwiththequestion,"What are theconditionsforthe

appropriateexercisingof mercy?" Mrs. AlwynneSmart has
arguedconvincingly thatmercy,consideredas a moralresponse
to an offender, makesgood senseonlyo n a retributive, or par-
tiallyretributive,theoryof punishment.'For in beingmerciful,
we reduceor withholda penaltywhichwas initiallythoughtto
be justifiedat least in part on the basis of the offender's desert
forhavingcommittedan offense.The primaryquestion,then,
whichinterests bothof us, is how thisinitialjustification can be
outweighedby factorsthat make mercyappropriate,without
leading to injustice.
Mrs. Smartconcludesher searchfora justification of mercy
withtheviewthatwe arejustifiedin beingmerciful to an offender
"only when we are compelledto be by the claims that other
obligationshave on us," as whenimposingthe deservedpunish-
ment would work an unusual hardship upon the offender's
family.2That is, showingmercyis wrongunlesswe have some
obligationthefulfillment ofwhichrequiresus to be lenientwith
the offender. The reasoningbehindthisconclusionseemsto be
thatapart fromsuch obligationswe have no basis on whichto
discriminatefairlyamong offenders who have committedthe
samesortofoffense. It is notsimplythatwe have a right to punish,
whichwe are morallyat libertyto exerciseor not as we please.
Giventhatwe have exercisedthisrightin somecases and thatwe
could not justifiablyrefuseto exerciseit in all cases, we are
obligated to punishthe offender the same as otherswhose cases
are relevantlysimilar.As Mrs. Smartpointsout, the view that
"a littlemercyis betterthan none" is clearlyunsatisfactory if
it calls forviolationof the basic rule ofjustice that relevantly

1 "Mercy," XLIII
Philosophy, (I968), 345-359.
2 Ibid.,pp. 353-354,359

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 CLAUDIA CARD

similarcasesbe givenrelevantly similartreatment.3 In theabsence

of an overridingcontraryobligation,then, it seems the pre-
sumptionstandsthat the offender oughtto be punished.
Mrs. Smart's conclusion has some plausibilitygiven her
understandingof "mercy" as "benevolent treatmentof an
offender."4 Doing the offendersome good would, in itself,no
more be sufficient to justifyreducingor withholding a penalty
than it would be sufficient to justifyimposinga penaltyin the
firstplace. Some other ground is needed to justifytreating
differently persons whose offensesare relevantlysimilar. A
contraryobligationmightprovidesuch a ground.
And yet thereis somethingodd about the idea thatit is jus-
tifiableto be mercifulonly when we are obligatedto be. One
would expectsuch a case to containa nonessentialcoincidence
of different groundsfor being lenient:groundsfor mercyplus
the obligation.For mercyseemsbasicallysomething we have no
obligationto give, and it is difficultto recognizean action as
theshowingofmercyifthe agentwas obligatedto act as he did
anyway.What seemsneededto grounda case formercyis some
basis apart fromour obligationson whichto overridetheinitial
justificationforpunishing-somegroundswhichare notfoundin
all or evenmostcases.A clue to sucha basisis providedby con-
sideringthat initialjustification itself.It consistspartlyin the
offender's deserts.Now, if some offenders deservepunishment,
it seemsthatsome of themalso deservemercy.What we need,
then,perhaps,is a principlesettingforththe desertbases of a
case for mercy.I offerthe followingprincipleas givingcon-
ditionssufficient to establishsuch a case: Mercyought to beshown
toan offender whenit is evident thatotherwise (i) he wouldbe madeto
suffer unusuallymoreon thewhole,owingto his peculiarmisfortunes,
thanhedeserves in viewofhisbasiccharacter and (2) hewouldbe worse
offin thisrespect thanthosewhostandto benefit fromtheexercise of
theirrighttopunishhim(ortohavehimpunished). Whentheconditions
of thisprincipleare met,the offender deservesmercy.Although
desertofmercydoes notgiveriseto an obligation,it can present
a case sufficientlystrongto outweighthe initialjustification for
3Ibid., pp. 35I-352.
4Ibid., p. 358.

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 ON MERCY

punishingand allow us to discriminate amongoffenders without

violatingthe rule ofjustice.
To understanddesertof mercy,then,one needsan idea what
it is to deserveor not to deserveto suffer,on the basis of one's
character.An intuitiveidea of this is given by a traditional
conceptionofHell, whichis suggested to someextent,forexample,
by Dante's Inferno. Accordingto thisconception,the realization
of whichhas been called "cosmicjustice," a persondeservesto
sufferwhat he would sufferfromanotheror otherswere he to
live in a community in whicheveryoneelse had the same (or
comparable) faultsas he. Withoutlosing the main intuition,
the idea can be slightlyalteredso as to allow that a person
deservesto suffer, on the whole,no more than one could rea-
sonablybe expectedto suffer fromanotheror otherswerehe to
live in a community in whicheveryoneelse had the same (or a
comparable)sortof over-allcharacteras he (includingvirtues
as well as faults).
Presumably,one's "cosmic deserts"are deservedonly from
God, or the authorof the cosmos.If the cosmoshas no author,
then,thereis no one fromwhomsuchdesertsreallyare deserved,
thoughwe can understandwhat is meantby the idea.
The basic pointof mercyseemsto lie in the recognition that,
in theabsenceof "cosmicjustice,"someofthosewhoma socially
justcommunity wouldhave the rightto punishmaybe unusually
more "sinnedagainstthan sinning,"eitherby otherpersonsor,
metaphoricallyspeaking,by fate. Personswhose characteris
basicallygood may be evenmorelikelythanothersto be among
thosewho are apprehendedand convictedwhentheydo commit
offenses, sincetheydo notmakecrimea lifestyleand are proba-
bly not so practicedin the artsofdeception.Those who standto
benefitfromexercising therightto punishmaybe morefortunate
on the whole than are (some of) those who become liable to
punishment. There seemsto be no feasibleinstitutional remedy
forthisstateof affairsin the formof additionalrulesgoverning
liabilityto punishment,which would not have the effectof
seriouslyundermining the commonpurposesforwhichpunish-
mentis instituted. A partial remedyis found,however,in the
exerciseof mercy.

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In orderto determine whetheran offender deservesthe mercy

of thosewho have the rightto punishhim, it is not sufficient
to point out that he has sufferedundeservedmisfortune. The
lattermay be true of everyone.We need to considerhis pre-
dicamentin relationto that of others.Accordingto the mercy
principle,theoffender who deservesmercywouldotherwise(and,
perhaps,anyway)not only sufferundeservedly(in the "cosmic
sense") but would be worseoffin thisrespectthan thosewho
standto gain fromhis beingheld liable to punishment. I takeit
thatamong the latterare includedotheroffenders.
Thus, an attemptto compensatefor inequalitiesof fortune
entersinto the idea of mercytogetherwiththe recognition that
one's fortuneor misfortune may be deservedor undeserved.
Mercymay be seen as an attempton the part of the morefor-
tunateto compensatethe less fortunatefortheirgreaterunde-
servedsuffering, when a significant part of thatsufferingis due
neitherto injusticein the laws nor to the faultof the offender
himself,by imposingless than the deservedpunishmentwhich
theyhave a rightto exactfortheoffenses ofthelatter.
Perhaps the mercyprincipleis not sufficiently precisewith
respectto the relevanceof misfortunes and character.Both may
needto be shownto be relevantin somespecialwayto theoffense
committedor to the penaltydeservedfor that offense.Yet I
believethe principleoffersa fruitfulbeginningforan analysisof
"mercy."That is, I takeit thatpartofthemeaningof "showing
mercyto an offender" is thattreatinghimmoreleniently thanhe
deservessimplyforhis offense, or imposingless thanthe penalty
we have the rightto impose,is groundedin a certainkind of
appeal to his characterand misfortunes. The mercyprinciple
attemptsto specifysuch an appeal.
"Mercy" is casuallyregardedas simply"imposingless than
the penaltydeservedforan offense, or less than the penaltywe
have the rightto impose," withoutany referenceto grounds.5

5Even more casually,one can be "merciful"withouthaving a right,or

any initialjustification,but having simplythe power to inflicta hardship.
"Mercy," so used, is no longera moral concept,somewhatas "punishment"
applied to all sortsofbeatingsis notbeingusedin a moralsense.Still,"mercy"
has been understoodin a broader moral sense than that with which I am

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 ON MERCY

When,however,a deservedpenaltyis withheldonly to protect

therightsor welfareofothers-as whena notoriousand powerful
gangsteris not punishedsolelyfor fear of the revengeof his
colleagues-it does not seem that mercyis being shown, al-
thoughthe consequenceforthe offender may be the same. To
distinguish mercyfromothersortsoflenienttreatment ofoffenders,
we need to include in its analysissome referenceto grounds,
just as, in givingan analysisof"punishment," we need to include
a reference to its peculiargroundsforthe infliction of hardship
(thesimplest form ofwhich is to say that the hardship is inflicted
becausean offense was committed).6 Whiletheresulting analysis
is normative, in thatit presents a standardor principleofconduct
as defining(or partiallydefining)a formofconduct,it need not
be taken to beg the questionwhetherthat formof conductis
morallyjustifiedon thewhole,eitherin generalor in any partic-
ular case. For one can questionwhetherthe standardis con-
sistentwith(other)moralprinciples, or to whatextentit can be
made so by qualification,or even whetherit is itselfa moral
principle.And one can questionthe accuracyof relevantbeliefs
about thefactsofparticularcases.
The formulation ofthemercyprincipleabove reliesupon one's
understanding of "mercy" as "imposingless than the penalty
the offender deservessimplyforhis offense, or less thanwe have
therightto impose,"and makesexplicitonlytheprimary grounds
of such treatment.A more clearly analyticstatementof the
principlewould begin,"An offender is shownmercywhen the
penaltywhichhe deservesforhis offense, or whichothershave
the rightto imposeforit, reduced suspendedor waived on
is or
thegroundthat,otherwise,...."I takeit thatthemercyprinciple
is a moral principleand attemptto supportthisbelief,in part,
by bringingout connectionsof mercywith familiarideas of
justice.
immediatelyconcerned.For we speak of being "merciful"with respectto
the exerciseof otherrightsthan the rightto punish (probablyby analogy),
or in administeringotherkindsof rules,when the normalprocedurewould
have unintendedhard consequencesforsome personsand equityis needed.
6 For elaborationof this point with respectto punishment and promise-
keeping,see John Rawls, "Two Concepts of Rules," Philosophical Review,
LXIV (I955), 3-32, especiallyhis discussionof the practiceconceptof rules.

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II. MERCY AND JUSTICE

Mercyis a virtueof personsratherthan of the institution of

punishment. Personswho administerthe rulesof the institution
may be formallyinvestedwith the prerogativeof mercy.This
investituredoes not make the institutionitselfmerciful,
however,
as it may be made sociallyjust if its rulesare framedin accord
with principlesof social justice. If we understand"practice"
broadlyenoughto include the ways in whichpersonsrespond
to rules they have instituted,mercy might be considereda
virtueof thepracticeof punishing.It seemsclearer,however,to
distinguishmercyas a virtueofpersonswho administer therules,
by contrastwiththe virtuesof the rulesadministered.
Justiceis frequently
discussedonlyas a virtueofsocial institu-
tions and is understoodto definea proper balance of rights
among personsparticipatingin them.7Actingjustlyis viewed,
in this context,as a matterof fulfilling one's obligationsand
respectingthe rightsof others.In so far as the idea ofjustice
is restrictedin thismanner,it is naturalto contrastmercywith
justice. For in being merciful,one declines to exerciseone's
rightagainst another,or to exerciseit as fullyas one might.
And in askingformercy,one asks of anothersomethinghe has
no obligationto give.Still,it is thoughtthata fair-mindedperson
will be responsiveto consideration of what othersdeservefrom
him, even thoughhis failureto do so would violate no one's
rights.
Given the extentto which a recognitionof desertsand a
presumptionof equalityenterinto both the establishment of a
properbalance ofrights, on theone hand,and thebasesofmercy
cases, on the other,we mightinclude the latteras well as the

7See, e.g., Rawls, "Justiceas Fairness,"Philosophical

Review,
LXVII (1958),
i64-I94. On p. i64 Rawls makes it explicitthat he is consideringjustice
C"only as a virtueof social institutions,"
and thathe understandsprinciplesof
justice as givingrestrictions on how institutions"may definepositionsand
offices,and assign theretopowers and liabilities,rightsand duties." In the
same paper, however,he also discussesthe "duty of fairplay," whichis not
assignedby therulesofan institution, and in "The SenseofJustice,"Philosoph-
ical Review,LXXII (I963), 281-305, he takesup moralfeelingscharacteristic
of the sense ofjustice.

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 ON MERCY

former underthegeneralidea ofjustice.We can thendistinguish

betweena narrower senseof"justice,"as a virtueofsocialinstitu-
tions,and a widersensein whichit is a virtueof personspar-
ticipatingin and administering the rules of social institutions.
Call the former"social justice" (or "institutional"or "legal
justice") and the latter "personaljustice," understanding the
latter to include a sensitivity to considerations of the former.
Part ofthe answer,then,to the question,"How is mercyrelated
to justice in the practiceof punishing?"is that mercyis an
expressionofjusticeas a virtueofpersonswho have the rightto
punish,but not an aspectof the social or legaljusticeof the in-
stitutionby whichtheyget thatright.The further questionthen
arises:how are thesetwo formsofjustice relatedto each other?
One answerto this questionis providedby consideringthe
different waysin whichpersonaldesertsare recognizedby each.
Justiceas a virtueofpersonsincludesdirectresponsesto theper-
sonal desertsof otherswhenit is not sociallyfeasibleor prudent
to makesuchdesertsthe bases ofrightsin thefollowing manner.
Joel Feinberg,in his essay,"Justiceand PersonalDesert,"points
out that,insteadof respondingdirectlyto the desertsof others,
we ofteninstituterules and proceduresby whichpersonsmay
''prove" to each otherthattheydeserveto be treatedin certain
ways and therebydemonstrateor acquire the rightto be so
treated-thatis, becomeentitledto such treatment.8 Such rules
setup publiccriteriaforbeingtreatedin variouswayswhichare
more clearly ascertainablethan the informalindicationsof
desertsby which people tend to respondspontaneously. Thus,
rules of evidenceare institutedin the practiceof punishingto
makeit morelikelythatthosewhodo notdeserveto be punished,
because theyhave not been at faultin committing an offense,
will have the rightnot to be punishedand thatonlythosewho
deserveit will be held liable (a kind of reverse"entitlement").
The mostreadilyascertainablecriteriaof someone'sdesertneed
not accompanyit universally, however, and may even be present
when the desertis absent.There may be evidenceof fault,for
8 justice: Nomos VI, ed. by Carl J. Friedrichand John W. Chapman (New
York, i963), esp. pp. 93-94. I am greatlyindebtedto Feinberg'sdiscussion,
in thispaper, of the idea of desert.

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example,wheretherewas no fault,and one may have been at

faultin committing an offense withoutleavinganyofthenormally
accepted public evidenceof the fact. Thus, personssometimes
have a rightor areliableto be treatedin waystheydo notdeserve.
This may be considereda cost worthbearingif it is stillmore
likelythat personswill get theirappropriatedesertsunder the
systemthan withoutthe system,althoughwe may feela strong
tensionbetweenactingon the basis of rightsand actingon the
basis of desertsin thosecases in whichit happensto be obvious
to us thattheydo not coincide.
A further reasonwhyit may be consideredimportantto insist
upon going by rights,even thoughthe rules can misfirewith
respectto desertsin particularcases,is, as Feinbergalso points
out, thatthe ruleshave a commonutilityin furthering the goal
of social security.9They enable us to predictmore accurately
the waysin whichwe will be treatedby othersif we do certain
thingsand to plan accordingly, and, further,to plan in accord
withthe kindsofexpectations we thinkit good to have.
In thepracticeofpunishment the commongoal ofsocial secu-
rityis greatlyfurthered by instituting complexcriteriaof penal
desertas a basisofpenalliability.Withrespectto mercy,however,
therewould be more conflictthan compatibility betweensafe-
guardingthe relevantdesertsby meansofa rightand furthering
the over-allcommongoal of social security.Given that we are
unable to predictand controlso many of the misfortunes to
which people are naturallyliable, everyone's(other) rights
would be robbed of a protectionagainst those who happen,
throughno faultin thelaws,to be unfortunate.
Mercy,then,has a place wherethereis no feasibleway of
grantingto thosewho are less fortunate in the undeservedsuf-
feringthey endure a rightto more lenienttreatmentwithout
seriouslyundermining the goal of social securityin whichthey
likewisehave an interest.It is notthatwe shouldresponddirectly
to someone'sdesertwhen it simplyhappens in a particular case
thathe is not entitledto what he deservesor is entitledto what
he does not deserve,ifthe desertin questionis the sortof thing

9Loc. cit.

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that has been made the basis of a right.It is, rather,thatsuch

responsesare appropriatewhenit is not sociallyfeasibleto make
the kindof desertin questionthe basis of a rightor obligation.
Withthesedistinctions in mind we can clarifywhat is meant
by "temperingjustice with mercy." One sometimesgets the
impression thatthelatterphraseis takento mean something like
"being a littleunjust in orderto make roomfora littlecharity."
If the above accountofmercyis correct,however,we can under-
standtheidea morecoherently as "beingmorejust thanit would
be possibleto be in some cases werewe simplyto act in accord
with institutionaljustice." When we temper (institutional)
justice with mercyin decidinghow to treat the offender, we
considernot onlyfactsabout his offensebut also factsabout his
characterand suffering which may not be revealedsimplyby
looking at his offense.Thus, we take a broader view of his
situationthan we tookin establishing for
our initialjustification
punishinghim.This does notmean,however,thatwe act without
principleor relax our scrupleof searchingforrelevantfactson
which to ground our judgmentsregardingthe case at hand.
The coherenceofmercywithretributive justicein punishment
is further broughtout by consideringthe latterin more depth.
Retributive justice in punishment may be a modification of the
idea ofHell suggestedin SectionI above, as follows.Personsare
thoughtto deservea lossofrights, eithertemporary or permanent,
as the appropriatesourceof suffering forhavingbeen at fault
in violatingthe rightsofothers.A retributively deservedpunish-
mentwould be one which imposedno greatersuffering upon
the offenderthan one could reasonablybe expectedto suffer
fromthesimilarconductofanotheror others,weresuchconduct
to becomegeneralin the community (if,forexample,therewere
no law prohibiting it). A legallyjust punishmentmay be less
severe,however,than would be permittedby such a retributive
principlealone. For a principleofthecommongood directsthat
thepunishment providedforvariouskindsofoffenses be no more
severe than is needed to give everyonea reasonable mutual
assuranceof generalobedienceto the law.
It mayhappen,owingeitherto good fortune or to theprinciple
of the commongood, thatan offender punishedin accord with

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legaljusticeis treatedno worsethanhe would deservein a "cos-

mic sense,"or is, at any rate,not worseoffthan othersin this
regard.Yet thereis no guaranteeof thisresult.It may as easily
happen thatan offender facingpunishment has been victimized
by the even worsecrimesofothersor thathe has enduredother
unusual and substantialmisfortune which is not due to any
injusticein thelaws. In suchcasesas thesethelaw maybe unable
to "do justice" to our sense of what is fair,althoughwe may
expectmorefromthosewho administerthatlaw.
It mightbe thoughtthatsincethereis in thenatureofthecase
no obligation, as such,to show mercy,then,unlesswe are coin-
cidentallyobligatedon some other basis to be merciful,it is
morallyoptionalwhetherwe do it or not.10That is, one might
thinkthatwhileit is all rightto showmercywhereit is deserved,
it is equally all rightnot to do so and simplydependsupon our
personal inclinations,providedwe adopt a consistentpolicy.
This view seems to miss the forceof the judgmentthat one
person deservessomethingfrom another. Many things that
oughtto be done-that it would be wrongnot to do-are not
obligationswhich are correlatedwith rights,where a rightis
understoodas a moraljustification forlimitinganother'sfree-
dom.""Mattersof personalprudenceare commonlyrecognized
not to fitthe model of obligation,althoughthejudgmentthatit
would be wrong,on groundsof personalprudence,to do some-
thingis not a moraljudgment.12 By contrast,thejudgmentthat
one ought to show mercyseems clearlymoral. Someone who
is said to be mercilessor ungratefulor unforgiving seems as
10 This view is to be distinguished fromMrs. Smart's positionwhich is,
rather,that withouta (coincidental)obligationnot to punish,it would be
wrong to show mercy.
11This conceptionofa rightis elaboratedby H. L. A. Hart in "Are There
Any Natural Rights?," Philosophical Review,LXIV (I955), esp. pp. I77-I78.
12 Hobbes, e.g.,arguedin De Cive,Pt. II, ch. vi,sec. xiv,thatan "obligation"
to oneselfis no obligationat all sinceone could releaseoneselffromit at one's
own pleasure,"and he thatcan do this,is alreadyactuallyfree."Essentially
the same argumentoccursin Marcus G. Singer,Generalization in Ethics(New
York, I 96I), p. 3 I 3, in termsof"duty" ratherthan"obligation."Elaborations
of distinctionsbetweenprudenceand moralityare foundin J. S. Mill, On
Liberty,ch. iv, and Immanuel Kant, Groundwork of theMetaphysics of Morals,
ch. ii.

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 ON MERCY

clearlybeingcriticizedon moralgroundsas is one who is said to

be unfaithful or dishonestor a freeloader.
Showingmercy,praising,forgiving, and showinggratitudeare
examplesof formsof conductin whichwe oughtto engagepri-
marilyon the basis of the personaldesertsof others.'3Paradox-
ically,an attempton the partofsomeonewho is so deservingto
exactsuch treatment fromotherscan have the effectof altering
his desert.This is perhapsmostclearlytrueof praise and grat-
itude.14One who even requests,much less triesto exact,praise
or gratitudeseems (at least a little)less deservingof it on that
account. The fact that otherscannotjustifiablypress a claim
againstsomeoneto do somethingdoes not have the implication
thathe cannotbe wrongin failingto do thethingin question.It
simplyleaves others"at his mercy,"and his responseperhaps
revealsmoreofhissenseofjusticethanis typicallyrevealedwhen
otherscan justifiablyexact theirdue.
Perhapsthe applicationof "just" or "fair"to our responsesto
the desertsof othersextendsthe basic senseof thoseterms.It is
worthnoticing,however,that we do not say that a personhas
failed to be entirelyjust or fair,even in such an "extended"
sense,whenhe has merelynot been benevolent.

III. MERCY AND BENEVOLENCE

In order to comprehendand dispel a varietyof misunder-

standingsabout the ethicsof mercy,it is importantto bringout
somecrucialdifferencesbetweenmercy,as a formofcharity,and
grace, as a formof benevolence.The mercy principleruns
counterto a widespreadassumptionthat mercyis a formof
benevolence.Mrs. Smart, for example, holds that mercyis
properlyregardedas "deciding,solelythroughbenevolence,to
impose less than the deservedpunishmenton an offender."'L5

13 Cf. Feinberg,op. cit.,p. 85, on praise as something one may deservebut

never be entitledto.
14 See, also,JosephBeatty'sdiscussionof paradoxesconcerning forgiveness,
in "Forgiveness,"American PhilosophicalQuarterly,
VI (I970), 246-252.
15 Op. cit.,p. 358.

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Whilethisview of the natureof mercyhelpsto accountforher

thesameviewmightlead others,
conclusionaboutitsjustification,
insistingupon the voluntarinessof benevolence,to the con-
clusion that "mercy" is unjust unless shown to all offenders.
And how could we justifydoing that?
UnderlyingMrs. Smart's view of the nature of mercyis a
distinctionto be drawnbetweengenuinemercycases and cases
in whichthepenaltygivenby therulesis unjustlyseverein view
of the nature of the offenseor the motivewith which or the
circumstancesin which the offensewas committed.As Mrs.
Smart pointsout, an appeal for "mercy" is likelyto be sub-
stitutedforan appeal to socialjustice,owingto the urgencyof
the case at hand, when the rulesin forceare unjustat a given
time.16In bothgenuineand pseudomercycasesit maybe argued
thatwe oughtnot to exercisewhatis grantedby therulesas our
rightto impose a certainpenalty.Thus, it is easy to fail to
distinguishbetween these types of cases. Accordingto Mrs.
Smart,providingless than the penaltygiven by the rulesin a
pseudo mercycase is really a matterof justice, whereasin a
genuineor paradigmmercycase, it is a matterof benevolence
(whichthenrequiresfurther justification).
Makinguse ofpointselaboratedin SectionII above,however,
we can distinguish betweenthesesortsof cases withoutrecourse
to the idea that mercyis benevolence.With respectto pseudo
mercy,therulesin forcecan in principlebe rectified-mademore
just-so as to render a plea for "mercy" unnecessary.In a
paradigmmercycase, the argumentconcernsnot thejustice of
the rules but that of the personsin whose name the rules are
administered.(It is possibleto have a complexcase in which
both typesof argumentare appropriate.)Thus, we can obviate
confusionbetweengenuineand pseudo mercyby pointingout
16Ibid., pp. 345-349. Mrs. Smart also remarksthat "for the law to be
completely(morally)just and sophisticatedit would have to provide for
everypossiblegraduationof a crimeand prescribethe appropriatepenalty,
and thiswould be impracticable"(p. 349). Thus, she appears not to count
promotionof the commongoal of social securityas part of thejusticeof the
law, nor does she appear to recognizeany significantdistinctionbetween
withthisgoal and cases
cases in whichthe law can be improvedconsistently
in whichit cannot.

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that real mercyreflects justice solelyas a virtueof persons.It

complements thejusticeoftheinstitution ofpunishment, whereas
pseudo mercyis intendedto correctinjusticein the rules.
Furtherunderlying the view of mercyas benevolencemay be
a tendencyto identify any formof conductwhichis intendedto
benefitsomeoneelse as "benevolent."If it is thoughtnecessary
to include motivatingfeelingsof kindnessor affectionas the
motivein benevolentconduct,theconfusion ofbenevolencewith
charityis renderedeven easier. For charityis oftenthoughtto
includesuch motivating feelings.'7
Bothcharityand benevolence
are formsof conductwhich are (at least intendedto be) bene-
ficialto others.Both,however,can be distinguished as morally
different formsof beneficence withoutany reference to motives.
The voluntaryaspects of both can be expressedin termsof
different levelsof freedomfrommoral restriction. And thisdif-
ferenceis a major pointof contrastbetweencharityand benev-
olence.
In orderthata decisionbe properlyregardedas benevolent, and
not simplybeneficent,it mustbe the case thatit would have been
morallypermissibleto make an opposite decision-that is, a
nonbenevolent decision;a decisionnotto offera benefitto others.
This, I believe,is analyticof the idea of benevolenceas "vol-
untaryassistanceor support,"in that it gives the appropriate
sense of "voluntary"-namely,"morally unrequited." Grace
is a specialkindofbenevolence-namely,a giftor favoror other
benevolentgestureforwhichgratitude is appropriate.While one
can decide in a graciousmood to do something one would have
been wrongnot to do anyway,it is at most one's mannerof
makingthe decision,and not the decisionitself,thatis properly
regardedas gracious.Lacking graciousnessmay be an impov-
erishment of characterin its widestsense,as is lackinga senseof
humor,but it does not provide groundsfor moral criticism.
Charity-takingcare forthewell-beingofothersas theywould
rationallycarefortheirownwell-being(or as we wouldrationally
17 See, e.g., Henry Sidgwick'sdiscussionof benevolencein The Methods

of Ethics (7th ed., London, 1907), Bk. III, ch. iv, beginningwith, "The
generalmaximofBenevolencewould be commonlysaid to be, 'thatwe ought
to love all our fellow-men'" (pp. 238-239).

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care forour own well-being)-on the otherhand, is a formof

beneficent conductwhichis voluntaryonlyfromthe standpoint
ofobligation.18That is, one oughtto be charitable-itis wrongon
moralgroundsnot to be-although one has no obligation as such
to be charitable; otherscannot justifiablypress a claim for
charityas theirright."Uncharitable,"unlike "unbenevolent,"
is a termofmoralcriticism, and beingmercilessis a specialway
of being uncharitable."Beneficence,"in general,however,has
no implicationswhatever regarding moral requirednessor
obligation."Beneficent" simplydescribesconductas "benefitting,
or intendedto benefit,others."
In so faras mercyis regardedas a formofbenevolenceand is
stillthoughtto be a virtue,thejustification ofpunishment seems
thoroughly undermined.Perhapsone would understand"tem-
peringjusticewithmercy"to be illustratedby threatening justly
deservedpunishment, but withone's tonguein one's cheek-that
is, withtheidea ofsubstituting benevolenceforjusticeat thelast
minute.Something likethisis apparentlytheviewofmanypeople
who believe that although God threatensHell and that we
deserveto go there,He would neverreallysend anyonethere
(at least, not permanently), because He is "merciful"and not
"merelyjust." If the mercyprincipleis correct,however,mercy
is not a formofbenevolence,sincegroundsformercyestablisha
case for the judgment that it would be wrong not to show
mercy.
Further,if mercyis regardedas benevolenceand benevolence
is recognizedas "beneficentconductwhich is not morallyre-
quired," it mightbe thoughtthat we need not scrupleabout
consistency in showingmercyto offenders. That is, it mightbe
thoughtthattherewouldbe nothingmorallywrongwithshowing
mercyto some offenders and not to otherswhose cases were
relevantlysimilar.This view is apparentlyupheld,forexample,
in thebeliefthatGod has "mercifully" chosento save a few ofus

18 On the meaningof charity,cf. Rawls, "The Sense ofJustice,"op. cit.,

p. 287: "To love anotheris to care forhim forhis own sake as his rational
self-lovewould incline." In the Biblical injunction,"Thou shalt love thy
neighboras thyself"(Lev. I9:I8), the directionof comparisonis reversed,
thoughthe sense seems to be the same.

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miserablesinners,whereHis decisionis understoodto have no

morebasis than thatit has pleased Him to make it.
If thisweremercy,whocouldacceptit and facehisunfortunate
neighbor?The view thatin beingcharitablewe escape the rule
ofjusticethatrelevantly similarcases be givenrelevantly similar
treatment probablyaccountsmostfortheantipathyofthosewho
thinkof charityas arbitrary sentimentality.This view,however,
containsa special confusion.Mercyis confusednotwithbenev-
olence in general but with grace, which is a special kind of
benevolence.
When it is permissibleto show favors,not only are we not
initiallyrequiredon moralgroundsto do the favor,but we are
also not obligatedon the basis of havingdone a favorforone
personto do favorsforotherswhosecircumstances are relevantly
similar.Favorsare appropriately shownon the basis of the per-
sonal inclinationsof both the donor and recipient.It is often
permissible to be benevolent,however,whenit is notpermissible
to showfavors.For example,in decidingquestionsof policy,it
can be all rightto treatsimilarsituationsdifferently, although
not similarpersonswithina givensituation.That is, we may be
morallyfreeto adopt a benevolentpolicy,althoughwe are not-
and trivially so-required to do it,and yetwe maynotbe morally
freeto adopt a policyof beingbenevolenttowardsome persons
and not towardothersin thesame situationwhentheircases are
relevantlysimilar.We may incurthe obligationto treatothers
in a certainway,even thoughwe werenot initiallyobligatedto
treatanyonethatway. Strictly, onlythe policydecisionshould
be regardedas benevolent;once the commitment is made, we
are obligatedto others,and the commitment may be made by
meansof a decisionto be benevolentin one case.
The wrongness ofbeinguncharitable, however,is independent
oftherulethatsimilarcasesbe treatedin relevantly similarways.
If we showmercyto somewho deserveit and not to otherswho
likewisedeserveit,perhapswe doublywrongthelatterby unfair
discrimination as well as lack of charity.Charitydiffersfrom
benevolence,however,and fromgrace in particular,in that
unfairdiscrimination is never the sole explanationof what is
wrongwithour conductwhenwe fail to be charitable,whereas

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it can be thesole explanationofwhatis wrongwithour conduct

when we are benevolent,or show favors,wherewe oughtnot.
In dealingwithoffenders whomwe have the rightto punish,
we oughtnotto showfavors.A judge who did so wouldbe guilty
offavoritism. Nor is mercy,properlygrounded,a favor.For we
have a case forthejudgmentthatit would be wrongnotto show
it. A showofgratitudeon thepartoftheoffender who is treated
mercifully could be taken as grosslyinappropriateif it carried
the suggestionthat the merciful judge was doing him a favor.
Thus,itis morallymisleadingto regardmercyforoffenders as a
matterof benevolenceand twiceas misleadingto regardit as a
matterof grace. The intuitionunderlyingMrs. Smart'sview of
thejustification of mercyseemssound: in any particularcase,
eithermercyoughtto be shownor it oughtnot.An obligationto
show mercy,however,arises only indirectly,if at all (leaving
aside othercoincidentalobligations),by way of the rule that
similarcases be given similartreatment.This obligationstill
would not implya rightto mercyas such,but only a rightnot
to be discriminated against.
Finally,thetendencyto identify charitywithbenevolencemay
be partiallyaccountedforby the feelingthat charityneeds no
basisin personaldeserts.For benevolenceas suchis not the sort
of thingthatis deserved.It soundsodd to speak of "deserving"
charity,althoughit soundssimilarlyodd to speak of "deserving"
justice. For we ought to be charitable,and just, to everyone.
Mercy,however,can be theformofcharityspecifically deserved,
as punishmentcan be the formof social justice specifically
deservedin certainsituations.By contrastwithpunishment and
reward,mercyis deservedon the basis ofwhat one has endured
and thenatureofone'smoralcharacteron thewhole,ratherthan
on the basisofindividualperformances or omissions.Those who
argue that an offenderdoes not deservemercybecause he was
"unmerciful" towardhis victimsprobablymissthispoint. Such
an argumentsuggeststhatwithholding mercyis a further kindof
punishment.While the offender'scrueltyhelps to reveal his
character,we need to knowalso whathe has suffered, in orderto
determinewhetherhe deservesmercy.Thus, mercyis closerto
compensation than to retribution-compensation forinequalities

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offortunethroughsomesenseon thepartofthosewho are more

fortunate that"There,but forthe 'graceof God,' go I."
Still,it maybe thoughtthatthereis something likea principle
of benevolence,outsidethe conceptof justice,which underlies
mercy.For if personaljustice encompassestreatingpersonsas
theydeservewhenthereis no feasiblesocialinstitution to protect
the kindofdesertin question,thenone may wonderwhywe do
not recognizea principleanalogousto the mercyprinciplebut
directinginstead that the penaltydeservedfor an offensebe
increasedwhen it is evidentthat the offender would otherwise,
owingto hispeculiargood fortune, suffer muchlesson thewhole
than he deservesin view of his basic character.Such a principle
would embody,in part,theidea ofenvy, understoodas "wishing
othersto be no betteroff than oneself."19The principlein
questionwould tend to realize envyonlywithrespectto unde-
servedfortune.
Envy,in thissense,is a formof malice.But whatis malicious
about it? Whyis envya faultand mercya virtue?Bothmay be
provoked by inequalities of undeserved misfortunen.One
explanationofthe moraldifference betweenthemmightbe that
mercyresultsfromtemperingpersonaljustice witha beneficent
restriction which is violated by envy-namely,the restriction
thatpersonsnot be made to suffer, even if theydeserveit, when
their good fortunedoes not result fromsocially remediable
conditionsresponsible forthe undeservedmisfortunes ofothers.20

19This is notthepopularsenseof"envy"whichmeans"desiringforourselves
the advantagesof others."I have in mind a situationin which thereis no
real possibilityof our having the advantagesof others,thoughit is possible
to cause the latterto lose theiradvantagesand therebyequalize theirstatus
withour own. Cf. Rawls's remarkson envyin "Justiceas Fairness,"op. cit.,
p. I70 and n. 7, pp. I70-I7I.
20 For an exampleof the beliefthat mercyis justice temperedwithbenefi-
cence, see Chaim Perelman,"ConcerningJustice,"The Idea ofJusticeandthe
Problem ofArgument, trans.byJohnPetrie(New York, i963), p. 58. Perelman
prefaceshis observationthat "the prerogativeofmercywithwhichsovereigns
are endowed enables themto softenthe severitiesof the law by takinginto
account special circumstanceswhich the judge did not have to take into
consideration,"withthe remarkthatwe are led to place such an "obstacle"
in the way of "the strictadministration ofjustice" by "a normativesystem
based on beneficence."

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This accountofmercyas 'justice temperedwithbeneficence"

(or, equally, "beneficencetemperedwithjustice") seemsunsat-
isfactoryto me for the followingreasons.Expressionsof envy
hardlyseem to be manifestations of personaljustice. They are
muchlessnaturallyregardedas deservedthanmercy,eventhough
thosewhomwe envymaybe thoughtnotto deserve("cosmically")
theirgood fortune.This factcannotbe accountedforsimplyby
the fact that while one would wish formercy,one would not
wish to be envied. For one would not wish to be resentedor
punished,either,and yet both resentment and punishment are
readilyacknowledgedto be deservedin certaincircumstances.
Envy may be easilyconfusedwithresentment, whichis a re-
sponseto the wrongsothershave done to us.2' Resentmentcan
be directedtowardthosewho are undeservedly morefortunate
ifwe believethediscrepancies betweentheirfortune and oursare
traceableto their of
toleration unjust social Unlike
institutions.
resentment, however,envyis perverse.Actingupon it tendsto
reduceeveryone's chancesforhappiness.The showofresentment,
at leastwhenbridledby principlesofsocialjustice,can produce
changeswhichincreaseopportunities forhappiness.The perver-
sityofenvy,then,seemssufficient to accountforitsbeingregarded
a malicioustraitof character.If everymoral responsetending
to further humanhappinessin any formwhateveris regardedas
beneficent, however,framing in accordwithprinciples
institutions
in
too, furthering
ofsocialjusticeis beneficent, thecommongood.
But, then,beneficencewould not be regardedas placing qual-
ificationsuponjustice.

IV. CASES

A look at some representative typesof cases in whichmercy

seemsintuitively appropriatesupportsthe contentionthatthere
are special groundsfor mercy,distinctfromthe groundsof
excuseandjustification, whichcan makethenormally justpenalty
seem Such
unfair. cases also serveto bringout problems involved
in attempting to applythemercyprinciple.
of the
as a responsecharacteristic
21 Cf. Rawls's discussionof resentment

senseofjustice,"The Sense ofJustice,"op. cit.,p. 299.

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"Poetic justice"-or natural (by contrastwith authority-

imposed)justice-may make criminaljustice,orthefullmeasure
ofit, seemsuperfluous and even cruel.An exampleis thecase of
the speedinghit-and-run driverwhose victimturnsout, to his
horrorand grief,to be a memberof his own family.Anotheris
thecase ofthearsonistwhoseown uninsuredhomeis ignitedand
burned to the ground as a resultof sparksflyingfromthe
buildingsto whichhe set fire.If offenders regularlybecame,in
some such sense,the victimsof theirown crimes,punishment
would seem unnecessary. Whenit happensin a particularcase,
we are torn in different directionsbecause the normallyjust
penaltyseemstoo severe,and yetwe cannotcountupon "poetic
justice" fordeterrence.
Mrs. Smarthas arguedthatin such cases a reductionof the
penaltyis not reallya matterof mercybecause it is a matterof
justice: the normal legal penalty plus the sufferingalready
endured would exceed what is retributively deservedfor the
offense.22 But is thisa matterof thejustice of the law? Would
it be feasibleto incorporateintothelaw a clauseto theeffect that
thepenaltybe lessin case theoffender mistakenly or accidentally
injuressomeoneor harmssomethinghe cares for? If so, Mrs.
Smartis right,and such a case would not presentgroundsfor
genuinemercy.Otherwise,it would seem that "poeticjustice"
cases are paradigmcases for mercy.
Similarto such cases are othersin whichthe offender is taken
advantage of, in consequenceof his offense,by otherswhose
crimesmaybe worsethanhisown,althoughhe maybe as anxious
as theynot to be discovered.An offendermightpay a heavy
pricein blackmail,forexample,fora relatively lessseriousoffense
the discoveryof which might,nevertheless, ruin his reputation
or cause his familygreatsuffering. In othercases,offenders are
brutallybeatenand in otherwaysmade to suffer the revengeof
othersquiteapartfromthelaw. One difficulty withan attemptto
improvethe law by incorporating a clause to the effectthatthe
penaltybe reducedin such cases is that the offender who has
suffered in thisway may have been made to suffermuch more

22 Op. cit., pp. 348-349.

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forhisoffense alreadythanwouldbe retributively just, so thatto

''even thingsout" he wouldhave to be releasedfrompunishment
forfutureoffenses as well.Yet we wouldnotwantanyoneto plan
to commitfutureoffenseswith that expectation.Leaving the
questionofreducingthepenaltyas a matterofmercyavoidsthat
problem,forone cannotclaim mercyas one's right.
It may be thoughtthat thereis a special problemformercy
cases regardingthe offender's attitudetowardhis offense.Mrs.
Smart has insistedupon the importance of the offender'sre-
pentanceand reformin a case for mercy.23 Now, a strictin-
sistenceupon thesefactorswouldseemto ruleout casesin which
the offender-orthe accused-seriouslypleads innocence.Is it
inappropriateto show mercyto a convictedoffender who does
not admitguilt?Perhapsthe pointcan be recastin termsofthe
accused'swillnotto commitsuchan offense in thefuture.Either
way, the restriction suggeststhat particulartraitsof character
have a special relevanceto a case formercy,whereasthe mercy
principleproposedherein is more general in its referenceto
character.The principlewould allow, for example, that an
offendermighthave suffered greatlyenough to deservemercy
despitehis continuingweaknessof will withrespectto the kind
of offenseof whichhe is convicted.
The relevanceofrepentanceand reformmay be explainedby
recallingtheidea of "cosmicjustice." The unregenerate offender
who becomesthe victimof his own crime,forexample,maynot
have suffered worsethan he would sufferwere he to live in a
community of otherslike himself,thoughhe may have suffered
worsethanhe would suffer simplyfromthe legallyjust penalty.
In that case, an applicationof the mercyprinciplewould not
indicategroundsformercy-at least, not on the basis of these
facts.Still, repentanceand reformwould not appear decisive
whereverthereis a questionof mercy.For it is also possiblethat
the unregenerate offender has alreadysufferedmorethanwould
be "cosmicallyjust," or would so sufferif the normalpenalty
wereimposed.
The typesof cases mentionedabove mightsuggestthat the

23 Ibid., p. 350.

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relevantmisfortune in a case formercymustoccurin consequence

of the offenseand in thisway be analogousto punishment.In
other cases, however,misfortunes that seem relevantbear no
specialrelationofeithercause or effectto theoffense committed.
In some cases the relevantmisfortune is anticipated,perhaps
partlyin consequenceof the penaltydeservedfor the offense.
The penaltymayworkan unusualhardshipbecauseofsomething
else the offenderis going to sufferanyway. It is not simply
that the same penaltycan affectdifferent offendersdifferently,
dependingupon what they value, although such can
differences
createproblemsofinequity.Thereare also misfortunes foreseeable
independentlyof punishment,which may be aggravatedby
punishment, suchas impendingdeathfroman incurablephysical
condition.
In stillothercases misfortunes that seem relevantprecede the
offense, thoughtheydo notjustifyit, and may formpart of a
causal backgroundto the offense, thoughtheydo not excuseit.
An exampleis the case of a womanwho kidnapsanother'sbaby
because her own has died. More generally,we thinkof cases in
which the offendersuccumbs,in despair,to a temptationto
commitsome crime,when he probablywould not even have
been so temptedhad his lifenot been so miserable.It can seem
here that the offenderhas already "paid" in advance for his
offense,althoughnot "paid" willinglyor with the object of
securinglibertyto committhe offense.While such unhappy
backgrounds may providea partialexplanationofthe offense, it
is not the kindthatexcuses,unlessdespairis a signof insanity.
Further,punishingsomeonewho has already reached despair
seemsinhumane,regardlessof his character.Perhapsthereare
undefinedlimitsto the extenteven of "cosmicallydeserved"
suffering thatwe can refuseto alleviate,or allow anyoneto incur,
withoutshame.24A prohibition on "cruel and unusual" punish-

to delineate
24 In Deut. 25: 2-3, forexample,thereappears to be an attempt

such a limit:"Then if the guiltyman deservesto be beaten,thejudge shall

cause him to lie down and be beatenin his presencewitha numberofstripes
in proportionto his offense.Fortystripesmay be givenhim, but not more;
lestifone shouldgo on to beat himwithmorestripesthanthese,yourbrother
be degradedin your sight" (RSV).

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ments,forexample,seemsto have a humanitarianbasis inde-

pendentof both deterrentand retributive considerations. But,
then,if characterbecomesirrelevantwhen suffering is extreme,
is it a matterofmercyto withholdpunishment? If so, themercy
principleis incompleteas it stands,assumingit is not altogether
misguidedin the emphasisit places upon character.
Finally,thereare twoothersortsofcaseswhichraisetheques-
tionwhetherthereneed be anypeculiarmisfortune in thebasisof
a case formercy.First,thereare what Mrs. Smart has called
"passage of time" cases,in whichthe offender is not discovered
until many years afterhis offenseand has meanwhilelived a
just and respectablelife(has, forexample,repaid the moneyhe
stoleor compensatedthevictimsofhiscrime).And,second,there
are what we mightcall "supererogation cases," in which the
offenderhas done unrewardedthings"above and beyondthe
call ofduty"whichseemfarmoresignificant ofhis characteron
the whole than does his offense.We may be inclinedto "make
allowances"in bothtypesofcases.But is thisa matterofmercy?
Mrs. Smarthas arguedthata waiverofthepenaltyin a "pas-
sage oftime"case wouldnot be a matterofmercybut,rather,of
(legal?) justice,on the groundthatthe offender is no longerthe
same personhe was.25Yet, presumably,thissortof case would
not arise except whereit was sociallyundesirableto adopt a
statuteof limitationsregardingthe kind of offensecommitted.
Perhapswhattheoffender deservesat thispointis to be forgiven,
or partiallyforgiven.26 Whilethereis a sensein whichhe is "no
longerthe same person"-namely,he seemsto have "grown"in
character-it is not a sense which would make forgiveness
incongruous. For he can feelremorse, forexample,forhis earlier
offense,as one cannot feel remorsefor the offenseof another
person.And,strictly, we cannotforgive one personfortheoffense
if
of another.But he can be forgiven, then perhapswe stillcan
25 op. cit.,pp. 354-358.
Mind,n. s. LXVIII (I939),
26J.D. Mabbottargues,in "Punishment,"
I52-i67, that only the victimand not the state is in a positionto forgive.
It is not only the conspicuousvictim(when thereis one), however,who is
wrongedby an offenseagainstthe law, but also othermembersof the com-
munitywhose co-operationwith the law is taken advantage of unfairlyby
thosewho violateit.

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have theright to punishhim,as we could notordinarily have the

rightto punishone personforthe offense of another.
Can we, then,be simultaneously mercifuland forgiving?Is
mercyitselfa kind of forgiveness, or partial forgiveness (as in
"forgivinga debt")? Does forgiveness of an offenderrequire
mercywhenthereis a penaltyin question?If so, it would seem,
again, that the mercyprinciplestandsin need of revision.For
theremay be no unusual misfortune in a case calling forfor-
giveness.In the "passage of time" case, the offender seems,if
anything, to have been ratherlucky,sincea prisontermimposed
twentyyears earlier,for example,mighthave robbed him of
someof the bestyearsof his life.
Supererogationcases raise, even more strongly, the question
whethera person'svirtues,or good deeds,can "make up for"his
faults,or offenses,in a way thatwouldjustifytreatinghim more
lenientlyforthe latterand, if so, whethertheypresentgrounds
formercy.Consider,forexample,the physicianwho has saved
manylivesat greaterpersonalriskto himselfthan anyonecould
reasonablyhave asked, but who nevertheless has made only a
modest living and has experiencedtypical hardships.Now,
suppose(to eliminateutilitarian considerations)thathe is retired,
and he commitsa largetheft to supplement hisretirement income.
His case resembles(other?) mercycases in that thereis, let us
grant, considerablediscrepancybetween the kind of life he
deservedand thekindoflifehe had. As in the "passageoftime"
case, however,the offender may have suffered no unusual mis-
fortune.In bothsortsofcasespunishment seemsto place a public
stampin the wrongplace on the offender's character,and per-
haps it is primarilythis aspect of punishment, ratherthan the
suffering,thatseemsundeserved.
The mercyprincipleoffered hereinis presentedonlyas giving
conditionssufficientto establisha case formercy.The cases col-
lectedabove providesome groundsforthinkingsuch conditions
may not be necessary.In severalcases, I have not attemptedto
sketcheven roughlythe offender'swhole life and character.
Often,some particularmisfortune stands out as the obvious
specificground.Also, thereare certaindifficulties which make
the applicationof the principleseem impracticablemuchof the

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time. Is it not true that all too frequentlywe are withoutthe

requisiteevidenceformakinga reasonablejudgmentregarding
the misfortunes an offender has endured,or even regardinghis
basic character?Perhapsan affirmative answeris not a serious
objection to showing mercy where we can, if it is likewisenot a
seriousobjectionto punishingthattoo manyoffenders are never
apprehendedand convicted.In this sense,it may be that "a
littlemercyis betterthannone," forwe can be preparedto give
similartreatmentto otherswhen the evidenceis forthcoming
that theircases are relevantlysimilar.

POSTSCRIPT

The enterprise of arguingthat charityand justice are inter-

relatedethicalideals appearsto have the followingramification
for ethical theory.If successful,it could greatlydiminishthe
remainingplausibilityof utilitarianism. Probably the greatest
appeal of a utilitariantheoryof ethicsis thatit appears to give
prominenceto the virtueof charity.For charityis commonly
associatedwithdoinggood,and doinggood is takenbyutilitarian
theoryto be the end of all moral conduct. The most serious
objectionsraisedagainstutilitarianism in recentmoralphilosophy
have been to the effectthat the theoryis unable to providea
satisfactoryaccountofjustice.27One mightbe preparedto hold
to utilitarianismanyway, however,on the ground that the
theorydoes seemto recognizethe virtueof charityand withthe
beliefthat charity,in the end, is more fundamentalto morals
thanjustice. These groundsare mistakenif a consistently utili-
tariantheory of ethicscan give no more account
satisfactory of
charitythanit can giveofjusticeand ifcharityis not,in theend,
an alternativeto justice at all. I believeI have presentedsome
reasonsforthinking thatat leastthelatteris thecase ifmercyis,
as I have takenforgranted,a formof charity.And, on the face
of it, mercyseems no more utilitarianthan punishment,not
becausetheformerunlikethe latterneitherneedsnoris capable
27 One of the most perceptivecriticisms on thiscount is
of utilitarianism
foundin Rawls, "Justiceas Fairness,"op.cit.,pp. i87-193.

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 ON MERCY

of any justificationwhatever-as some have thought-but

because both are based in part upon what seemsto be a pre-
utilitarianconceptionofpersonaldesertand upon a presumption
againstenjoyingrelativelygood fortuneat the expenseof unde-
servedsuffering on the part of others.
CLAUDIA CARD
Madison
of Wisconsin,
University

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