This paper makes the case for the permissibility of post-conflict amnesties, although not on prudential grounds. It argues that amnesties of a certain scope, targeted to certain categories of perpetrators, and offered in certain contexts are morally permissible because they are an acknowledgment of the difficulty of attributing criminal responsibility in mass violence contexts. Based on this idea, the paper develops the further claim that deciding which amnesties are permissible and which ones are not should be decided on a case-by-case (...) basis. Against what seems to be an increasingly popular assumption of some international actors, just as "blanket" amnesties are impermissible, so is an absolutist rejection of all types of amnesties. (shrink)

An emerging consensus regards domestic amnesties for international crimes as generally inconsistent with international law. This legal consensus rests on a norm against impunity: the chief role of international criminal law, and of the fledgling International Criminal Court , is to end impunity for violators of the worst of criminal acts. But the anti-impunity norm, and the anti-amnesty consensus that has arisen from it, now face serious difficulties. The ICC's role in the ongoing conflict in Northern Uganda illustrates the deadlock (...) that has now emerged between countries wishing to retain the power to use domestic politics and criminal law as tools for negotiation with current or outgoing perpetrators, on the one side, and the ICC's determination to apply a consistent international anti-impunity norm, on the other. The paper argues that the anti-impunity norm itself is based on a narrowly retributivist conception of criminal justice. A broader norm for democratic accountability, by contrast, would continue to prefer prosecutions over amnesties in international law, less for the opportunity for deserved retribution for perpetrators than for the public enactment of the deliberative procedures associated with the rule of law.Keywords: amnesty; impunity; international law; international criminal court. (shrink)

This paper explicates and challenges John Rawl's argument concerning a rule-utilitarian theory of punishment. In so doing, it argues in favour of a retributivist theory of punishment, one that seeks to justify, not only particular forms of punishment, but the institution of punishment itself. Some crucial objections to retributivism are then considered: one regarding the adverse effects of punishment on the innocent, another concerning proportional punishment, a third pertaining to vengeance and retribution, a Marxian concern with retributive punishment, and a (...) concern with the concept of desert. Each objection is deflected in order to ward-off what seem to be the most serious criticisms of a retributivist view of punishment and to clarify the depth of the retributivist position. (shrink)

Mercy is a form of charity towards wrongdoers that justifies punishing them less severely than they deserve according to justice. Three main objections to mercy, or its exercise by organs of the state-that it is irrational, unjust and procedurally unfair-are addressed in the course of defending mercy as a value that has a place in deliberation about criminal punishment. The paper draws on both the communicative theory of punishment and aspects of existing legal practice in mounting this defence.

Our characters are formed, at least in part, by forces beyond our control. Should this lead us to mitigate the responsibility of those who turn out badly? Martha Nussbaum argues that we ought to be merciful to wrongdoers on these grounds. Against Nussbaum, I argue that we have important moral reasons to treat people as responsible for character and hence to eschew mercy. Treating someone as responsible is required if we are to treat them as a moral agent, to treat (...) them as having a moral point of view that is worth hearing. However my point is not that there are no reasons for mercy, but simply that there are other reasons, to do with respect, that pull in the opposite direction. The result is not a decision procedure for all cases but a better understanding of the complex moral geography. (shrink)

When a person acts from ignorance, he is culpable for his action only if he is culpable for the ignorance from which he acts. The paper defends the view that this principle holds, not just for actions done from ordinary factual ignorance, but also for actions done from moral ignorance. The question is raised whether the principle extends to action done from ignorance about what one has most reason to do. It is tentatively proposed that the principle holds in full (...) generality. (shrink)

Amnesty in the context of national reconciliation involves waiving or cancelling the punishment of convicted or suspected criminals in the name of peace. We can distinguish three positions: amnesty is wrong because it is unjust; amnesty is unjust, but necessary; and amnesty is just because it expresses forgiveness. The third position sounds promising. However, it assumes that when we forgive, we can justifiably waive or cancel the need for punishment. I argue that only punishment that expresses repentance and atonement brings (...) about true reconciliation between the wrongdoer and the rest of the community. If we forgive in the absence of repentance and atonement, we restore our relationship with the wrongdoer, but in doing so ignore the way the wrongdoing conditions the relationship. An adequate, properly reconciled relationship can only be forged on the basis of some agreement on fundamental values, and that requires a change of heart from the wrongdoer. Forgiveness cannot properly be conceived as cancelling the need for repentance, atonement and punishment. (shrink)

What distinguishes evils from ordinary wrongs? Are some evils unforgivable? How should we respond to evils? Card offers a secular theory of evil--representing a compromise between classic utilitarian and stoic approaches--that responds to these and other questions.

The aim of this paper is to explain what is involved in the exercise of the Judaeo-Christian virtue of forgiveness, and in so doing to lay bare the structure of human (rather than Divine) forgiveness. It argues that it is not possible, through some act of will, to forgive a person for the wrongs that have been done to one, but shows nonetheless that forgiving is a task and that the disposition to undertake this task in the appropriate circumstances may (...) properly be regarded as a virtue. However, to be too willing to undertake this task, or to undertake it in inappropriate circumstances, is a vice since it is indicative of diminished self-respect. Success in the task of forgiving falls beyond our full rational control and depends very largely on a capacity to empathise and to feel an appropriate degree of compassion. Whether or not we are able to do so and sustain this itself depends on certain social contingencies. (shrink)

On the basis of a communicative theory of criminal punishment, I show how mercy has a significant but limited role to play in the criminal law—in particular (although not only) in criminal sentencing. Mercy involves an intrusion into the realm of criminal law of values and concerns that are not themselves part of the perspective of criminal law: a merciful sentencer acts beyond the limits of her legal role, on the basis of moral considerations that conflict with the demands of (...) penal justice. Sometimes, however (but in a decent system of law in a decent society, rarely), that is how citizens should act. Finally, I discuss, and criticise, two attempts to find a place for mercy within a communicative conception of punishment, and argue that repentance is not an appropriate ground for leniency or mercy in sentencing. (shrink)

A theory of punishment should give some account of mercy and yet it is true to say that very little has been said about it at all. It is commonly regarded as a praiseworthy element in moral behaviour—something to be practised occasionally both for the good of the one who punishes and the one who is punished. The suffering that punishment involves is unpleasant for all concerned, and if it is possible to avoid it or lessen it without moral injustice, (...) then it is desirable to do so. We condemn as hard and unbending the judge who never shows mercy and the suggestion is that the poor unfortunates whose lot it is to be judged by him are poor unfortunates indeed. This is reflected in the fact that the opposite of merciful—merciless—means cruel. Presumably there are occasions when it is appropriate to show mercy to an offender, and other occasions when it is not. What are the conditions for the appropriate exercising of mercy, how do we decide how much mercy is appropriate, and when is a judge morally obliged to be merciful, if ever? (shrink)

This paper addresses the relationship between amnesty granted to perpetrators of serious human rights abuses and retributivism. It rebuts arguments advanced by Dan Markel and Lucy Allais in support of their claim that the granting of conditional amnesty—amnesty in exchange for perpetrators’ confessing to, and disclosing the details of, their wrongdoing—by the South African Truth and Reconciliation Commission (TRC) was consistent with retributivism. Markel contends that conditional amnesty was perfectly in line with recipients’ desert, while Allais submits that the TRC (...) secured as much retribution as was possible in the circumstances of South Africa’s democratic transition. The argument of the paper is that while retributivists have good reasons to view conditional amnesty as justified, the reasons provided by Markel and Allais are not among them. (shrink)

Many people have the intuition that the failure to impose punishment on perpetrators of such serious human rights violations as murder, torture and rape that occurred in the course of violent conflict preceding a society’s transition from authoritarianism to democracy amounts to an injustice. This intuition is to an appreciable extent accounted for by the retributivist outlook of a high proportion of those who share it. Colleen Murphy, however, though she accepts that retributivism may justify punishment of offenders in stable (...) democracies, claims in her recent book on transitional justice that retributivism is inapplicable in the circumstances of transitional justice. I argue that the four arguments she provides in support of this claim are unsuccessful and that retributivism, assuming it to be a tenable rationale for punishment, justifies the subjection of perpetrators of at least some serious human rights abuses to sanctions in at least some transitional societies. (shrink)

There is extensive discussion in current Just War literature about the normative principles which should govern the initiation of war (jus ad bellum) and also the conduct of war (jus in bello), but this is the first book to treat the important and difficult issue of justice after the end of war. Larry May examines the normative principles which should govern post-war practices such as reparations, restitution, reconciliation, retribution, rebuilding, proportionality and the Responsibility to Protect. He discusses the emerging international (...) law literature on transitional justice and the problem of moving from a position of war and possible mass atrocity to a position of peace and reconciliation. He questions the Just War tradition, arguing that contingent pacifism is most in keeping with normative principles after war ends. His discussion is richly illustrated with contemporary examples and will be of interest to students of political and legal philosophy, law and military studies. (shrink)

Many countries have attempted to transition to democracy following conflict or repression, but the basic meaning of transitional justice remains hotly contested. In this book, Colleen Murphy analyses transitional justice - showing how it is distinguished from retributive, corrective, and distributive justice - and outlines the ethical standards which societies attempting to democratize should follow. She argues that transitional justice involves the just pursuit of societal transformation. Such transformation requires political reconciliation, which in turn has a complex set of institutional (...) and interpersonal requirements including the rule of law. She shows how societal transformation is also influenced by the moral claims of victims and the demands of perpetrators, and how justice processes can fail to be just by failing to foster this transformation or by not treating victims and perpetrators fairly. Her book will be accessible and enlightening for philosophers, political and social scientists, policy analysts, and legal and human rights scholars and activists. (shrink)

On the basis of a communicative theory of criminal punishment, I show how mercy has a significant but limited role to play in the criminal law—in particular (although not only) in criminal sentencing. Mercy involves an intrusion into the realm of criminal law of values and concerns that are not themselves part of the perspective of criminal law: a merciful sentencer acts beyond the limits of her legal role, on the basis of moral considerations that conflict with the demands of (...) penal justice. Sometimes, however (but in a decent system of law in a decent society, rarely), that is how citizens should act. Finally, I discuss, and criticise, two attempts to find a place for mercy within a communicative conception of punishment, and argue that repentance is not an appropriate ground for leniency or mercy in sentencing. (shrink)

Anatomists of criminal justice systems usually ignore the tiny organ called ‘mercy’ or ‘clemency’. Its name and shape may vary from one body politic to another, but its nature and function are uninterestingly obvious.It merely allows benign interference when the programming of the system seems to be having unacceptable effects in special cases.