This essay examines Martha Nussbaum's prescription for tempering retribution with mercy in the capital sentencing process. Nussbaum observes that the operation of retribution in the ancient world resulted in harsh and indiscriminate punishment without regard to the particularities of the offender and his crime. In the interest of mercy, Nussbaum advocates the use of the novel as a model for a more compassionate sentencing process. An examination of Nussbaum's ``novel prescription'' reveals that the retribution that operates in the modern criminal (...) law, and in the Supreme Court's capital sentencing jurisprudence, already accommodates the values of justice –individuation, particularization, and proportionality – that are characteristic of the mercy tradition. Moreover, the rich narrative approach that Nussbaum favors is by no means congenial to merciful punishment. Because the particularistic detail of the novel form is not confined to the sympathetic portrayal of the defendant, the emotionalism that Nussbaum urges encompasses as well emotional details about the characteristics of the defendant's victim. Such victim impact evidence is consistent with the novel form, but is unlikely to promote merciful judgment. Instead, the details of victim impact evidence can be expected to exacerbate a sentencing authority's inclination to judge a capital defendant harshly. The novel thus provides a poor model for the capital sentencing process because it fosters the sort of unchecked emotionalism that undermines the rational decision making that the Supreme Court has sought to achieve. (shrink)

In the space of their 16-month posting to Poland, the 500 men of Police Battalion 101 genocidally massacred 38,000 Jews by rifle and pistol fire. Although they were acting as members of a formal security force, these men knew that they could avoid participation in killing operations with impunity, and a substantial minority did so. Why, then, did so many participate in the genocidal killing when they knew they did not have to? Landmark historical studies by Christopher Browning and Daniel (...) Goldhagen proffer contrasting explanatory answers to this troublesome question. This article focuses on a criticism that has often been leveled at the internal coherence of Goldhagen’s controversial explanatory theory. Goldhagen’s explanation is that the men freely, willingly, and responsibly participated in the genocidal killing because of their beliefs about Jews—beliefs that they were causally determined to hold. Critics charge that this is incoherent: How could perpetrators have been passive recipients of determinist... (shrink)

I assess the justification for the granting of amnesty in the circumstances of ‘transitional justice’ advanced by certain of its supporters according to which this device is morally legitimate because it amounts to an act of mercy. I consider several prominent definitions of ‘mercy’ with a view to determining whether amnesty counts as mercy under each and what follows for its moral status. I argue that amnesty cannot count as mercy under any definition in accordance with which an act or (...) practice’s amounting to mercy lends it justificatory support, while its qualifying as mercy under certain morally neutral definitions provides no basis for considering it justified. (shrink)

This paper provides a discussion of the role that emotions may play in the justification of punishment. On the expressivist account of punishment, punishment has the purpose of expressing appropriate emotional reactions to wrongdoing, such as indignation, resentment or guilt. I will argue that this expressivist approach fails as these emotions can be expressed other than through the infliction of punishment. Another argument for hard treatment put forward by expressivists states that punitive sanctions are necessary in order for the law (...) to be valid. But this justification of punishment, too, is unconvincing. There are no good reasons to assume that we have to resort to punitive measures in order to vindicate the law. I will then raise the more general worry whether there is any intelligible link at all between moral emotions such as indignation, resentment or guilt and retributive behaviour. I will finally conclude with some sceptical remarks on the moral worth of retribution. (shrink)

Understanding the contributions and the implications of law and emotion scholarship requires an acknowledgement of the different approaches within it. A significant part of law and emotion scholarship is focused on arguing for the relevance of emotion and on identifying emotion in legal processes and actors. Other parts of it venture further to ask how law can affect the expression and content of emotions themselves. This scholarship challenges legal positivist foundations, as well as some other established divisions in thinking, both (...) in law, and more generally in the history of ideas. The other important factor, which this article explores, is the methodology employed by law and emotion scholarship. (shrink)