Jean-Jacques Rousseau opined in Émile that “[t]he universal spirit of the Laws of all countries is always to favour the strong against the weak, and the one who has against the one who has nothing.” This perspective casts law in a less than flattering light. Anatole France famously showed that the formal equalities provided by a legal system don’t overcome Rousseau’s critique, for “the majestic equality of the laws forbid rich and poor alike to sleep under the bridges, to beg in the streets, and to steal their bread.”
In Rousseau’s and France’s paradigm, rooted in egalitarian insight, the state threatens to, and does, intervene punitively in the lives of one portion of the population, the poor, under circumstances in which it will never have cause to punish those more well to do. Unmasking the harms left possible by formal equality, we’re then reasonably justified in viewing the official action as arbitrary, an abuse of power, contrary to the rule of law.
It isn’t readily apparent, however, that the state harms others, leastwise not directly, when its executive exercises the official, discretionary power of the pardon and sentence commutation, by definition in favour of individuals who have indeed been accused, seized, possibly tried and convicted, hence punished to that extent, and thereby excuses them from further sanction. Yet time after time, citizens, journalists, and theorists see executive action that lets the offender off the hook under circumstances that appear inappropriate, corrupt, evocative of political or personal favouritism, as a violation of the rule of law. See, for examples, reactions to Donald Trump’s pardon of Joe Arpaio and his commutation this year of Roger Stone’s sentence, Montenegrin President Filip Vujanovic’s pardon of Edin Hamzic, Philippines’ President Rodrigo Duterte’s “absolute pardon” of US Marine Lance Corporal Joseph Pemberton, convicted of killing a transgender woman, and so forth.
This is not to say that corrupt pardons are, in fact, harmless. In the most immediate sense, the spectre of such a pardon tends to eliminate the deterrent effect of the laws for those in official favour, and can embolden those transgressors to carry on. But more generally, the very supposition that an official pardon is “corrupt” suggests a harm to society’s fabric. It’s not just that a pardon might seem to be inappropriate under the circumstances, or with respect to the particular person at issue. Defying norms about what may be appropriate about a pardon or sentence commutation might be offensive yet not necessarily be seen as impairing the rule of law. But some certainly are denounced in these terms. And this is the very point that begs the question, and hence remains to be shown. What, in other words, renders a pardon “corrupt” such that it causes deterioration of the rule of law and constitutes an insidious harm to society?
We often deem official actions that seem “arbitrary” to impair the rule of law. Yet pardon derives from the Latin perdonare (‘to grant freely’), and suggests a personal, discretionary gift bestowed by the sovereign, in the form of the head of state, to the perpetrator of an offense. An executive might engage in the ritual of picking names of subjects out of a hat each year, reviewing their cases for certain features, and granting pardons to some, without implicating the rule of law. The pardon is by its nature essentially arbitrary, and meant to be so. This calls for a deeper understanding of why a pardon that is deemed corrupt stands apart and implicates the rule of law project.
One important explanation must be that the corrupt pardon reveals the formal notion of equal access to justice to be quite illusory. In this sense, it is paradoxically what is arbitrary about the power of the pardon that renders it consistent with the rule of law. However, when the executive is seen as selecting offenders for pardon based on personal or political preference, rather than by drawing straws over a set showing some indicia of penance or rehabilitation, the public is offended by a dynamic that speaks of unearned privilege and unequal access to power and the pretense of justice.
Finally, the corrupt pardon scenario is instructive with regard to the debate over the meaning of the rule of law. Commentators reiterate that “it is not entirely clear exactly what the concept of the rule of law amounts to.” Although theorists have tended to locate the rule of law in certain, largely formal features or attributes of legal systems – such as their issuance of general, understandable, prospective rules, criteria Lon Fuller called law’s “internal morality” – rule of law evaluations also come out badly if law treats people unequally in broader respects. The more expansive category encompassed by the rule of law can be labelled, generally, access to justice.
Seen this way, it isn’t too big of a leap to an understanding that conditions existing in the larger society, which affect individuals’ and groups’ access to law’s procedures and remedies, as well as the legal system’s devices that empower knowledgeable participants, all implicate a rule of law analysis. Although the very idea of the rule of law is a public good, a construct by which people demand that their legal system be accountable to all communities, and by which they condemn its grave shortcomings in dispensing equal and dignified treatment to all, the concept is vulnerable to being hijacked and manipulated by interests and authoritarian regimes opposed to the public good. The authoritarian will declare that his corrupt pardon is, to the contrary, an effort at upholding the rule of law, because the justice system had previously treated the offender “so unfairly.” But, even if misused by power, the rule of law ideal, as a moral evaluative vehicle, holds law to its commitment to treat people with equal respect, and like cases alike.
In this respect, the rule of law commits the legal system to affording all people a fair opportunity to participate in the inputs to the system, and to have that participation impartially adjudicated. This commitment implicates the actual capabilities of the people to access the system in reality, an equalisanda inaugurated in the literature by Amartya Sen upon posing the question equality of what?, in his 1970s Tanner Lectures. And the issue of people’s real world capabilities to obtain access implicates, in turn, the social, political, and economic conditions in which they find themselves. Seen this way, the rule-of-law project holds a structural position in the collective normative discourse as a vehicle by which people morally evaluate the interplay between the actual capabilities of individuals and groups to participate in law, and the legal system’s treatment of those individuals and groups.
While the power of the pardon, appropriately exercised, aims at signalling a new or more generous sensibility on the part of the state, or of fostering aspirations toward personal redemption that might be extra-judicially noticed, its corrupt exercise magnifies the impression of venality in high places, and of the regime’s profound unfairness. Because that sense of unfairness directly implicates gross inequalities in access to justice, it likewise implicates the rule of law project. By rendering the legal order subservient, in effect, to the whims of biased executive power, corrupt pardons upend the project’s basic norm according to which law ought to afford each individual equal concern and equal respect.
Alani Golanski – James Kent Scholar, Columbia University School of Law;Director, Weitz & Luxenberg, P.C., New York, N.Y.