Beyond Control and Responsibility: The Beauty of Mercy

• DOI: https://doi.org/10.1016/S1059-4337(05)37007-4
• Published date: 15 December 2005
• Date: 15 December 2005
• Pages: 141-157
• Author: Joo Heung Lee

BEYOND CONTROL AND

RESPONSIBILITY: THE BEAUTY

OF MERCY

Joo Heung Lee

ABSTRACT

Punishment is essentially about the expression and establishment of pow-

er. As such, punishment always carries with it the possibility of debase-

ment. I want to insist that the only morally legitimate purpose of

punishment is to instill a respect for authority that does not demean the

subordinated party (for example, as a parent might punish his or her

child). In sum, my argument is that although harsh institutional punish-

ment may be justifiable on utilitarian grounds, it is objectionable for

aesthetic reasons that are ultimately far more important. As Nietzsche

caustically recognized in the case of Christianity, the metaphysics of

punishment is driven by the ugly feeling of ressentiment. Nevertheless,

Christianity does emphasize one aspect of the question of punishment that

Nietzsche would enthusiastically embrace: the attitude of forgiveness (or

the act of mercy). For Nietzsche, mercy is a reflection of a beautiful

strength. A new punitive paradigm, one that asserted superiority without

debasing the criminal, might pave the way for a more general affirmation

of life.

Crime and Punishment: Perspectives from the Humanities

Studies in Law, Politics, and Society, Volume 37, 141–157

Copyright r2005 by Elsevier Ltd.

All rights of reproduction in any form reserved

ISSN: 1059-4337/doi:10.1016/S1059-4337(05)37007-4

141

Systemically applied punishment that is justified on either utilitarian or

retributivist grounds will fall short of an ethical ideal that respects the dig-

nity of human beings. A utilitarian paradigm reduces criminals to mere

means to the end of the greatest aggregate happiness. Retributivism, in

contrast, might seem to better sustain the moral autonomy of agents as a

basic tenet. But there are those who, following Nietzsche, might regard

retribution as a veiled form of revenge, an expression of the herd’s will to

power.

Following Foucault, I maintain that punishment is essentially about the

expression and establishment of power. As such, punishment always carries

with it the possibility of debasement. This is exacerbated by the fact that

institutional punishment allows individuals to exert power as representatives

of the State: the protection of an anonymous authority allows even the weak

to participate in what Nietzsche calls ‘‘the right of the masters.’’

1

Reveal-

ingly, the problem of debasement in an institutional setting seems to be

significantly more acute in the United States than in Western Europe. The

Continental tradition gives us a hint as to an alternative practice that can

express moral condemnation without debasing individuals: the tradition of

mercy. One reason why Americans prefer a harsh system of justice could be

that our egalitarian foundations refuse to admit an aristocratic difference of

rank, a difference that is the condition for the possibility of mercy.

2

Iron-

ically, the most respectful (and merciful) attitude toward a criminal stems

from acknowledging his or her lower place in the social hierarchy (as a noble

might treat his servant).

The tradition of mercy can be seen as an aristocratic backlash against the

dual Enlightenment paradigms of egalitarianism and scientific determinism.

Prior to the Enlightenment, when theological structures predominated in the

West, retribution was the operative purpose of punishment. The great ad-

vantage of retribution over scientific determinism is that it allows us to

maintain the responsibility of the agent.

3

But with modernity, human agen-

cy has been reduced more and more to a network of determinable causes.

Interestingly, Nietzsche, who presents one of the most definitive critiques of

modernity, arrives at a similar conclusion. In affirming the innocence of

becoming, Nietzsche insists that responsibility (along with its corollary – the

soul) is a myth. Nietzsche argues that the idea of retribution most likely

masked a mixture of revenge and a desire to tame. So it seems that whether

we are operating under the Medieval paradigm of retribution or the Modern

paradigm of utility, the result is the same: the individual is debased insofar

as he or she is subject to punishment by a higher authority. While retributive

punishment would seem to least grant agency to the convict (as opposed to

JOO HEUNG LEE142