On clemency. by Gerardo Muñoz

The last mail that I received from my friend, the philosopher Emilio Ichikawa (1962-2021) before passing away stated the following: “Eres clemente, creo que esa palabra ya ni se usa”. Being clement (or ser clemente) has fallen in disuse, both in English and Spanish. One can only guess the reason as to why being clement or clemency has disappeared from a world governed primarily by force. It is notable that for Seneca in his treatise De Clementia (55 A.D) thought of the scope of this notion as precisely the preservation of the human political bond (vinculum) in moments of social disintegration. Speaking directly to the Roman rulers, Seneca argued that state power is never enough; there was also a standing requisite of clementia needed when dealing with weakest members of the social bond (membris languentibus) [1]. In modern legal discussions, clemency has not only disappeared as a practice, but been fully incorporated into the administrative function of the “pardon powers”; which, as we have seen in the last years in the United States, it has become a mere political token in favor of the powerful and not the weakest members in society.

On the contrary, it seems that the decline of politics and the full emergence of social administration presupposes a necessary forgetting of the principle of clemency. Perhaps a current Supreme Court case will suffice to bring this to light: a 94 years old lady, Geraldine Tyler evaded interest rates and property taxes for some years and ended up being expropriated from her home, which was immediately sold by the State of Minnesota for forty thousand dollars in order to charge her the fifteen thousand dollar fine, while keeping the equity surplus of the sale. The fact that the SCOTUS judges were not fully convinced of Minnesota state action and its lawyer (Neal Katyal), matters little to one fact that no one seems to have noticed: mainly, that the legal process has become main vehicle for injuries. In this framework, clemency has no place in in the statuary structure of public order.

Indeed, the main trait of the Americanization of ‘force’ is not just limited to physical or electoral stasis; rather, it is the motorization of legality without restraints. For every action that circumvents from public administration there is no possibility of clemency, but only subjection to legal rationalization through abstract principles of “equity” (passive exceptionalism mandated by costs and benefits models). And so, the clementia juris (the sweetness of law) as once imagined by Quintilian has been expelled from law, leaving behind only an obsessive legality that preserves an increasingly inclement schism of social life.

Perhaps “clemencia” as used by Ichikawa had nothing to do with politics; and, in a way, Seneca’s term in his treatise was already inflated by rhetorical functionalism at the service of the axiomatic order of socialization. There is a more originary sense of clemency – as the prefix *klei indicates – which is the clinamen that names the encounter (the Peitho) between the disinterested souls that freely subtract themselves from rhetorical force [2]. I would like to imagine that this is what Ichikawa had in mind when, instead of defining a concept, he appealed to an ethical disposition: being clemente.




1. Seneca. De clementia (Oxford U Press, 2009), 74.

2. Gianni Carchia. “Eros e logos: Retorica antica e peitho arcaica”, in Retorica del sublime (Laterza, 1990).