From Majesty to Justice? Two Types of ‘Neo-Kantian’ Justification Strategies for the Right to Pardon

Kant’s (1999/1787) warning as to the moral hazards intrinsic to the right to pardon inside the criminal law system is well-known: a sovereign instance who exercises clemency ‘can demonstrate the splendour of his majesty and yet thereby wreak injustice to a high degree’. Three basic arguments connect the right to pardon to the potential for injustice. Firstly, pardoning inhibits the application of a rightly deserved punishment, fails to recognize the humanity of the wrongdoer and therefore violates the categorical imperative. Secondly, the pardoning prerogative should be strictly limited to crimes against the sovereign: one can never legitimately exercise the right to pardon in the name of someone else (this allows, however, for private pardons coming from the victims themselves). Thirdly, pardoning unjustly increases the insecurity of the political community. I suggest that there are two ways of overcoming Kant’s opposition to the right to pardon by using Kant’s own moral philosophy framework. One can try and identify a Kantian principled substitute to Kant’s anti-pardoning argument: on this account, pardons are morally legitimate to the extent that they result from ‘an imperfect duty of mercy, rather than [from] a perfect duty of justice’ (Morison: 2005). However, this justification strategy fails to demonstrate that pardoning can be morally just. Alternatively, following Merle’s (2000) critique of Kantian retributivism and Parish and Tuckness’s analysis (2010) of Kant’s view on mercy, I claim that the first argument against pardons is self-contradictory (as it implies a partial generalization of the criminal’s maxim) and that the third argument is strictly consequentialist and cannot be deduced from Kant’s deontological framework. Most importantly, I use Ripstein’s (2009) emphasis on the public/private rights distinction and contend that Kant’s second argument against pardons points to a technical (Kant: 2001/1790) – as opposed to a moral – problem. As a consequence, I identify a number of compatible institutional schemes for allowing victims to exercise the right to pardon alongside the sovereign. More generally, the ‘Neo-Kantian’ justification of pardoning is meant to highlight the fact that Kant is not a natural ally of the currently proliferating arguments in favour of retributivism.