Within and beyond the law: Examining theatre of mercy in sentencing courts

• In Event: The value of keywords: Mercy, equality, hope, and liberty in penal Policy, practice and experience

Abstract

Discussions of mercy in literature are usually either philosophical-normative or legal-doctrinal. Through either lens, mercy is usually viewed as a virtue associated to the rule of law, raising questions of fairness, quality, or justice in its application. Drawing on empirical findings from sentencing hearings in Israel, we explore how mercy is performed, managed and constructed in sentencing courts in Israel. We argue that in the ‘theatre of mercy , judges a) construct mercy as part of the rule of law that stems from their core authority, judicializing mercy through different discursive tools; but also b) construct mercy as a feature external to the law, as part of emotional communication between the judge and the offender. This reaffirms the asymmetry of power between the judges and the sentenced individuals and powerfully marks that sentencing is essentially the rule of a person rather than the rule of law. Implications for criminology and penal theory will discussed.

Authors

• Netanel Dagan, The Hebrew University of Jerusalem

• Marion Vannier, VANNIER