The Hardest Iron is Oft Broken: Why Justice Requires Mercy

Abstract Is mercy merely compatible with institutional justice, or is it partly constitutive of it? I defend the constitutive justice thesis that a legal system instantiates institutional justice only if it includes an authorised, internal corrective capacity for exceptional cases, properly characterised as mercy. This position opposes formalist conceptions that identify institutional justice with impartial rule-application alone. The argument proceeds by motivating the need for an authorised, internal, corrective capacity for corrective judgement in exceptional cases. It is then argued that when such correction operates in punitive and remedial contexts, it is properly characterised as mercy. Sophocles’ Antigone is then employed as a diagnostic case to show that a legal system which excludes this corrective capacity forfeits its claim to justice altogether. It is thereby shown that a conception of justice which excludes mercy risks collapsing into an inhuman and ultimately self-undermining form of legality.