Clemency is a popular yet controversial mechanism in many modern democracies, often described as standing in tension with the rule of law. Drawing on phenomenological literature, we conceptualize clemency as a mechanism that gives humanity back to the law's impersonal machinery. Building on a qualitative analysis of 75 presidential clemency cases in Israel consisting of the president's handwritten annotations, we suggest that the president's decision-making communicates dual messages: (a) reaffirming the law “from above,” by externally validating the work of the criminal justice system; and (b) personalizing the legal machine “from below,” by transforming the abstract legal subject into the vulnerable Other. Through such dual messages, the work of clemency decision-making is legitimized as a bridge between the rule of law and the ethics of care.
Dagan et al. (Thu,) studied this question.