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Hi all,

In his response to a question on the justice on mercy on December 6, 2012(http://www.askphilosophers.org/question/4957), Dr. Thomas Pogge argued that he does not necessarily equate mercy with a deprivation of justice and gave three reasons for justifying his argument. I understand the reasons he gave, but am confused by the example he uses and how that example which functions to illustrated the third reasons actually illustrates the point of the third reason itself; if "the absence of this excuse is very difficult to prove beyond a reasonable doubt," how does that lead to the recognition that a, "rare, morally valid excuse in the law might be a bad idea? And how does recognizing that a "rare, morally valid excuse in the law might be a bad idea" lead to greater opportunities for criminals to escape punishment? I find the entire issue of justice and mercy particularly topical given the recent tragedies of the shootings in the United States and the gang rape situation in India and how an argument like Dr. Pogge's could offer a new perspective on such events (please note that I am not implying that anybody would under any circumstances condone such acts of atrocities), so any clarification on what Dr. Pogge meant (or thought he meant) when he was using his example would be appreciated.

January 10, 2013

Response from Thomas Pogge on January 11, 2013

The three reasons I gave were meant to establish the intermediate conclusion that the criminal law cannot perfectly anticipate all realistically possible cases, cannot be designed so that it always yields the correct result by declaring guilty all and only those who really are guilty.

As my third reason for this I adduced the example of rare but morally valid excuses that should nonetheless not be recognized in law. Here is a concrete case. I was caught by a speed camera going 47 mph in a residential area with a 30 mph speed limit. I was going so fast because I was trying to get back home quickly because I had this sudden fear that, lost in thought, I had somehow turned on the gas dial of my kitchen stove without igniting the gas. I feared that gas was filling my apartment, posing a substantial risk to people living above and below. So I drove faster than legal in the reasonable belief that the risk posed by my speeding was very much smaller than the risk posed by my possibly gas-releasing stove. When I got home, I found that all my stove's dials were in the "off" position. Nonetheless, I had done the right, responsible thing by getting home quickly to avert possible danger from my neighbors. So I should not be punished for my speeding violation; I have a really good excuse.

But now suppose the law recognized this excuse, exempting people like me from punishment. Many speeders would then invoke this excuse in order to avoid punishment. And it would be next to impossible to identify those who are lying and to prove beyond a reasonable doubt that they are lying. It is better, then, morally better, not to recognize that excuse in the law. This leads to a few undeserved punishments (of people for whom speeding really was the right and responsible thing to do) but it also avoids a very much larger number of false acquittals of people who are willing to lie their way out of a speeding ticket. It is much better that a few people like myself pay an undeserved fine than that our speed limits become all but unenforceable.

The upshot is then that I do get punished pursuant to a law that is exactly as it should be. And yet, my punishment is undeserved. In this context, an exceptional act of mercy (on the part of a police office or judge) makes sense. I am then spared a legally warranted punishment, but not unjustly so. Rather than coming at the expense of justice, mercy here actually promotes justice.



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