The “benign prerogative”: Political theory and executive pardoning

Abstract

This article examines pardon to develop a more holistic understanding of prerogative. Executive prerogative, the power to do what is necessary for the public good without the explicit sanction of the law and sometimes against it, is widely seen as an extraordinary power most relevant in times of crisis. Pardon, however, has been historically understood as an important example of prerogative. Even in times of political stability, pardon and therefore prerogative are nearly always needed to maintain rule of law because pardon preserves the reputation of the law. American political practice and political theory both indicate that pardon is less dangerous to rule of law than other forms of prerogative. My analysis of the pardon prerogative reveals that exercises of prerogative threaten to entirely displace rule of law only insofar as they can achieve something without rule of law that rule of law normally achieves.