Gerald Postema: "Dilemmas of Discretion: Equity and Mercy"

Abstract

It is often said that the rule of law opposes official discretion and, thus, that it opposes equity and mercy because both encourage officials, especially judges, to exercise discretion to mitigate the harshness of law. This chapter argues that discretion plays an important role within law’s rule. Equitable judgment in the private law context and mercy in the criminal law context are compatible with the rule of law and necessary complements to law. Equity seeks to correct law in order to achieve particularized justice; it is internal to the ambition of law and works together with it to achieve that ambition. It is possible to design a public framework for the exercise of equity discretion that yokes law and equity institutionally and internally. Mercy tempers justice; it is a matter of compassionate grace rather than respect for rights. Mercy does not displace justice, nor justice mercy; rather, mercy is an integral part of a morally justified institution of punishment. It enables a distinct form of egalitarian recognition, recognition of common vulnerability. Justice and mercy are complementary values that temper each other at the points where each, on their own, would lose their normative force. Mercy is necessary also in the broader political community. Without mercy, and the compassion that moves it, a rigorous practice of accountability can poison the solidarity characteristic of the mode of association fostered and protected by law’s rule.