
Contents
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Crooked Cord or Law with Eyes? Crooked Cord or Law with Eyes?
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Equity Equity
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Equity in Its Jural Habitat Equity in Its Jural Habitat
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Obstacles to Understanding Equity Obstacles to Understanding Equity
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The Equity-Law Partnership The Equity-Law Partnership
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Mitigating Grace Mitigating Grace
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Power, Discretion, and Compassion Power, Discretion, and Compassion
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Mercy in the Criminal Process Mercy in the Criminal Process
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Do Justice and Leave Mercy to Heaven Do Justice and Leave Mercy to Heaven
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The Place of Justice and Mercy in the Criminal Process The Place of Justice and Mercy in the Criminal Process
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Mercy in the Polity Mercy in the Polity
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11 Dilemmas of Discretion: Equity and Mercy
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Published:November 2022
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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.
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