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At the Boundaries of Law: Executive Clemency, Sovereign Prerogative, and the Dilemma of American Legality

2005; Johns Hopkins University Press; Volume: 57; Issue: 3 Linguagem: Inglês

10.1353/aq.2005.0052

1080-6490

Austin Sarat,

Seventeenth-Century Political and Philosophical Thought

"At the Boundaries of Law: Executive Clemency, Sovereign Prerogative, and the Dilemma of American Legality" In this essay the author examines the issue of borders and borderlands in regard to the rule of law itself. Sarat looks at the way courts and judges chart the boundaries of legality as they wrestle with sovereignty and sovereign prerogative. Sovereignty troubles the rule of law by being at once prior to, and yet a product of, it. Sovereignty in a constitutional democracy exists in a legal borderland, where ideas of principled predictability and meaningful constraints on officials meet their limits. Sarat takes up one example of sovereignty prerogative, namely executive clemency, and examines its treatment in and by law. Executive clemency provides an arena in which to examine how law explains and justifies gaps in its facade of principled predictability and constraint. In its dealings with executive clemency, law authorizes a kind of lawlessness, or acknowledges the limited ability of rules to tell officials how, when, and why they may exercise the power accorded to them. Here we see law constructing and policing its own boundaries, boundaries within which, on its own account, prerogative power cannot be contained. In the jurisprudence of clemency we find lawÕs borderland and, as in all borderlands, uncertainty and anxiety as well as possibility and opportunity.