April 12, 2016

Meyler on LIberal Constitutionalism and the Sovereign Pardon

Bernadette A. Meyler, Stanford Law School, is publishing Liberal Constitutionalism and the Sovereign Pardon in The Scaffold of Sovereignty: Global and Aesthetic Perspectives on the History of a Concept (Zvi Ben-Dor Benite, Stefanos Geroulanos, and Nicole Jerr, eds., New York: Columbia University Press, forthcoming). Here is the abstract.
Theorists as diametrically opposed as Carl Schmitt and Immanuel Kant conceive of the pardon as an exception to the normal operation of law and associate that exception with the figure of the sovereign. This should not be surprising to those familiar with early modern political theory, which generally construed the pardon as one of the sovereign’s most significant powers. Those setting up the foundations for liberal constitutionalism, like Kant, failed to generate a new account of pardoning that would render it an important component of either the rule of law or democracy rather than a relic of monarchical sovereignty. Hence the pardon seems to fit more naturally into the anti-liberal Schmittian account of politics than into the contemporary U.S. constitutional order. As this essay contends, such a result was not inevitable; an alternative, non-sovereign conception of pardoning that appeared in early modern drama presented another possible basis for the act, one that was never implemented within politics. Kant associates pardoning with a particular kind of staging of the splendor of the king’s majesty, one trumped only by the horror of the spectacle of revolutionary and counter-revolutionary violence. This theatrical version of the pardon scene as affirming the height of the sovereign above the people — a version that manifests itself in the spectacular finales of early modern plays such as Shakespeare’s Measure for Measure — is countered by another kind of drama, in which forgiveness comes from a stranger or a friend, and is passed among citizens to reconstitute the state. The article concludes by analyzing an example of one such play, The Laws of Candy, and the path offered by its non-sovereign staging of pardoning.

Download the essay from SSRN at the link.

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