Amnesty and Pardon

Laws above the Law

In most legal systems (but less often in common law countries), amnesty and pardon are used in a more diversified way than the definitions seem to imply. The legislative power that enacts them can change, as well as the scope of their application. Three characteristics tend to locate amnesty and pardon in the political arena rather than within the legal field. First, even if they are experiencing a partial standardization in many countries, they occur in times that people perceive as a crisis, when it is necessary to ease the pressure in overcrowded prisons or in an overloaded judicial system, or when a political regime has just collapsed. Second, amnesty and pardon, which have been useful tools for state building, are still two of the symbols of a sovereign power that has no other limits than the ones it imposes on itself. The sovereign in a real sense undoes the law it previously enacted when ordinary procedures of justice are suspended or when an amnesty statute suspends another law without abrogating it. Third, amnesty and pardon infringe the principle according to which law must be general and equally applied. They both provide room for situations defined as exceptional and therefore put delinquents above the law. The exception is, in a certain way, made legal. Therefore, many consider amnesty and pardon as signs of an arbitrary exercise of power.

Tools for Political Transition

When legislatures or political leaders grant these tools after a severe crisis, such as a civil war or period of governmental repression, amnesty and pardon should allow a society to break with its chaotic and violent past. An early recorded amnesty occurred in 403 BCE and allowed the Athenians to reconcile after conflicts provoked by the expulsion of the Thirty Tyrants. In 1598, in France, Henri IV promulgated the Edict of Nantes, which granted Protestants amnesty and religious liberty and served to put an end to the religious civil wars. In 1865, U.S. President Andrew Johnson proclaimed an amnesty after the American Civil War.

...