The Miracle of Mercy

Abstract

Many states governed by the rule of law provide for mercy powers, most prominently the power to grant pardons. This raises a potential conflict: the rule of law requires that like cases be treated alike. Mercy, on the other hand, is usually understood as being unfettered by legal principles, including the principle of treating like cases alike. Focusing on state officials' pardon powers as an example of mercy, this article argues that we should conceive of pardons as miracles. Like miracles which suspend individual laws of nature, pardons suspend legal rules on an individual and discretionary basis. Once suspended, the legal rules no longer apply to the given case, and consequently there is no conflict between pardons and the rule of law. As I will show, this discretionary suspension of legal rules is a prerequisite for pardons to fulfil their function as a corrective to undesirable legal results.