It is often said that the rule of law opposes official discretion and, thus, that the rule of law opposes equity and mercy because both encourage officials to exercise discretion to mitigate the harshness of law. I argue that discretion plays an important in support of 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. Mercy is an integral part of a morally justified institution of punishment. Justice and mercy are complementary values that temper each other at the points where each, on their own, would lose their normative force.
Gerald J. Postema, Boshamer Professor of Philosophy and Professor of Law, Emeritus, University of North Carolina at Chapel Hill (BA, Calvin College—1970; PhD, Cornell University—1976; Doctor Honoris Causa, University of Athens—2016). He served as Arthur L. Goodhart Distinguished Visiting Professor of Legal Science, and Fellow of Corpus Christi College, Cambridge (2013-14). He is a former Fellow of the Netherlands Institute for Advanced Studies, Guggenheim Fellow, Rockefeller Fellow (Bellagio), and Visiting Fellow at the European University Institute (Florence). In 2022, Oxford University Press published his Law’s Rule: The Nature, Value, and Viability of the Rule of Law. Other major publications: Bentham and the Common Law Tradition, 2nd edition (OUP, 2019), Utility, Publicity, and Law: Bentham’s Moral and Legal Philosophy (OUP, 2019); On the Law of Nature, Reason, and the Common Law: Selected Jurisprudential Writings of Sir Matthew Hale (OUP, 2017), Legal Philosophy in the Twentieth Century: The Common Law World (Springer, 2013). He served as associate editor of Treatise of General Jurisprudence and the Philosophy of Law, 12 volumes (Springer, 2005-2016). From 1997 to 2006, he edited Cambridge Studies in Philosophy and Law. Currently, he is co-editor of Cambridge Elements: Philosophy of Law. Thomas Bustamante and Thiago Lopes Decat edited a collection of essay in his honor, Philosophy of Law as an Integral Part of Philosophy: Essays on the Jurisprudence of Gerald J. Postema (Hart, 2020).
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