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Almost every constitution in the world confers a power to pardon.  Pardon powers are found in the constitutions of old states and new states, Western states and non-Western states, states with a Christian tradition and states without one. Pardon powers are part of the constitutions of states as diverse as France, Indonesia, Peru, Russia, the United Kingdom, and the United States. 

Pardon powers share several features. First, the exercise of the power has the result of lifting or lessening criminal liability. Second, the power achieves this result not by changing the law, but by setting it aside in a particular case. Third, the power is held by a branch of government other than the judiciary – the executive, normally, or the legislature, less commonly. Finally, in its traditional mould, a pardon power is wholly arbitrary. Its use is unreviewable and unconstrained. (For recent departures from this traditional form of the pardon power, see my post here.) 

So understood, pardon powers seem to conflict with two of the most basic principles of constitutionalism. Contrary to the separation of powers, a pardon power gives to a branch of government other than the judiciary a role in determining criminal liability in particular cases. Contrary to the rule of law, a pardon power is traditionally neither controlled by nor ruled by law.  

Hence the pardon paradox: one of the most common constitutional power is at odds with some of the most fundamental constitutional principles. Pardon powers are everywhere but seem to properly belong nowhere. I argue that the paradox has a solution. Appearances notwithstanding, pardon powers threaten neither the separation of powers nor the rule of law. My argument has three steps.

Gap cases

The first step is that even an ideal optimal legal code will require suboptimal results (ie, results which there is overall reason not to achieve absent the code) in some cases. In such cases there is a “gap” between what is required by the code we should have and what we should do absent the code.  

Gap cases are inevitable for familiar reasons. A code which perfectly tracks the underlying reasons in every case will be very complicated. It will be time-consuming to apply, as a result. People will make mistakes about what it requires. That will lead to uncertainty about what others will do. These costs may be significant enough to favour a simpler, easier to use code instead. Crude and usable may beat accurate but hard to apply. 

Consider the regulation of assisted suicide. Sometimes, it is morally permissible for one person to help another person commit suicide. Think of cases in which a person has a clear desire to die and is of sound mind, terminally ill, in terrible pain, etc. But let us assume – purely for the sake of argument – that were the law to make a limited exception for this sort of case, some people would be unfairly pressured to kill themselves. Overall, it could be best to have a blanket prohibition on assisted suicide. 

Selective deviation

The question then becomes: how should we respond, when an optimal code requires a suboptimal result? There are broadly three options.

At one extreme is adherence to the code in every gap case. We would never set the prohibition on assisted suicide, say, even if it was clear that it yielded a bad result. This strategy the advantage of preserving the code as a source of guidance and stability. But it comes at too high a price. A code will require many suboptimal results. Deviating in the occasional case does not significantly undermine the code’s predictability and stability. 

At the other extreme is deviation from the code in every gap case. Whenever it was clear that it was morally permissible for a person to help another to commit suicide, for example, we would set aside the legal prohibition on doing so. The problem is that, if we always deviate from the code in gap cases, then people will come to expect deviations in these circumstances. As a result, they will not look to the code for guidance; they will look to official decisions. We will have ended up altering the code, not in form, but in substance. 

So, we shouldn’t always adhere to an optimal code. Nor should we always deviate from it. We should adhere in some cases and deviate in others. We should “selectively deviate”, in other words. The most important thing about selective deviation is that it leads to treating like cases differently. For example, in some cases when a person is terminally ill, suffering terribly, etc., we would set aside the prohibition on assisted suicide. In some like cases, we would not. Treating like cases unalike may sound terribly unjust. But the alternatives – adhering to the code come what may, and deviating so often guidance and stability are threatened – are even worse. This is the second step in the argument. 

Justifying the pardon power

The final step is to show that pardon powers are the right vehicle for selective deviation. 

What we want is a power to set aside a code without altering or changing it. A pardon power fits the bill. The power we want must not be regulated by any rules. That is because, were it subject to rules, its use would be predictable. Were its use predictable, it would undermine the code. Again, a pardon power is exactly what we want. There is an irony here. Were the pardon power ruled by law, the code would not rule over citizens. So, the rule of law itself favours an uncontrolled pardon power over a controlled one. The implication is that we should not extend judicial review to pardon decisions, at least on rule of law grounds.  

It is not enough that powers to set aside the law *can* be used inconsistently; the must *in fact* be used that way. The judiciary is institutionally diposed towards consistency in its  decision-making. This is precisely what we do not want. It follows that we should give a power to set aside the law to a different branch of government, and thus to either the executive or legislature. So, the separation of powers, as a principle which requires power to be allocated to the institution best suited to wielding it, itself favours a pardon power. 

Overall, the features of pardon powers which seemed to be in tension with the rule of law and the separation of powers are in fact justified based on those same principles. The paradox is dissolved. 

I set out this argument in detail in a draft article, and I would be very grateful for comments or criticisms. 

This post first appeared on I-CONnect here.

I have a new draft article about constitutional conventions, co-authored with Farrah Ahmed (Melbourne Law School) and Richard Albert (Boston College Law School). The article is about how courts can, do, and should engage with constitutional conventions. Here’s the abstract:

The study of constitutional conventions is anchored in an assumption that has so far remained unchallenged: Commonwealth courts will recognize and employ conventions but never enforce them. We show in this Article that the dominant view today is doubly mistaken: there is no such shared “Commonwealth approach” to the treatment of constitutional conventions nor do Commonwealth courts refrain from enforcing conventions. Drawing from Canada, India and the United Kingdom, we disrupt the foundations of the scholarly understanding of conventions by demonstrating that Commonwealth courts have recognized, employed and indeed also enforced conventions. Beyond this new discovery, we make the normative claim that Commonwealth courts sometimes should enforce conventions, an additional contrast between the dominant view and ours. We argue that courts should act as executors of the will and judgment of constitutional actors, and limit themselves to enforcing only power-shifting conventions, which transfer power from those who have legal power to those who can legitimately wield it. This new role of an executor court brings clarity, stability and predictability to the exercise of official powers that are rooted in constitutional convention rather than constitutional law.

Download the SSRN version of the article here.

I’m pleased to say that I have an article just out in the Cambridge Law Journal: ‘The Flexibility Rule in Administrative Law’. I hope to put up a longer post summarising the article soon, but for now, here’s the abstract:

Administrative officials are permitted to have policies as to the exercise of their discretionary powers, but those policies must be flexible, not rigid. The “flexibility rule”, as I call it here, is nearly a century old. Over time, it has become part of the furniture of judicial review: often used, rarely examined. That neglect has led to confusion, on display in recent cases. In this article I try to put the flexibility rule back on a sound footing. I argue, first, that the flexibility rule requires authorities to treat policies merely as rules of thumb. Second, the primary justification for the flexibility rule is neither legislative intent (as courts have said), nor the avoidance of error (as commentators tend to assume); it is the value of participation. Third, and as a result, the flexibility rule ought to apply to policies governing the use of prerogative and other non-statutory powers, as well as to policies governing the use of statutory powers.

The published version of the paper is here. There’s a draft version here. Comments and suggestions are very welcome!

Farrah Ahmed and I have a new paper out in the Oxford Journal of Legal Studies: ‘Constitutional Statutes’.

This is our second paper on constitutional statutes. Back in 2012, in BH v Lord Advocate, the Supreme Court suggested that constitutional statutes could only be repealed expressly, not by implication. In 2015, Farrah and I published a paper in CLJ, ‘The Quasi-Entrenchment of Constitutional Statutes’ (published | draft), criticising the notion that judges can, on their own initiative, immunise statutes from implied repeal.

That first paper was mainly critical and negative. In this new paper, Farrah and I focus on the positive. We set out a definition of a constitutional statute. We also say how courts should (as opposed to shouldn’t) treat constitutional statutes. Here’s the abstract:

In recent years, British courts have treated constitutional statutes differently from ordinary statutes. This article sets outs to explain: (i) how courts have treated constitutional statutes differently from ordinary statutes; (ii) what a constitutional statute is; and (iii) why constitutional statutes should be treated differently from ordinary statutes. Courts have made it harder for ordinary statutes to repeal constitutional statutes by implication, and easier for constitutional statutes to repeal ordinary statutes by implication. A constitutional statute is a statute which regulates state institutions, and which possesses importance of a particular type that we describe. The nature of a constitutional statute largely—but not entirely—justifies the special treatment they have been given. These conclusions have wider implications, including for proposals to codify the British constitution.

Here’s the paper: published | draft.