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First of all, I have no experience in Law, I was just "philosophically" interested by a question related to it. I hope it is not off topic.

The French President François Hollande is considering granting apresidential pardon to some French woman. My question is the following: how does the concept of presidential pardon have a justification in terms of separation between the executive and the judiciary?

Why, philosophically, a president or any elected politician would have a right to directly influence justice decisions as in the case of presidential pardon? What is the idea behind that? I expect that the reason may vary depending on the country where it does exist.

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The simple legal answer is that the President has this power because the law gives it to them.

Historically, the right of the head of state to grant pardons is a legacy of autocratic monarchical rule: this was a power that kings and queens had over their subjects. In France, this power ended with the monarchy during the French revolution but was reinstated by Napoleon, himself an autocratic monarch, and it has remained in the various incarnations of the French legal system ever since. Here is an examination of the concept in various jurisdictions.

The concept of separation of powers is a much more recent concept. In particular, the tripartite separation into administrative, judicial and legislative power can be traced to Montesquieu in his The Spirit of the Laws in 1748. This Enlightenment point of view crept into many political systems, however, the specific expression of it reached full flower in the establishment of the United States. It is worth noting, that pardons at both state and Federal level are part of US law vesting in the Governor (or some other member of the executive) and the President respectively.

The tripartite separation is supposed to provide checks and balances with each arm of government serving to limit the power of the other two. In this context, it is perfectly reconcilable that the executive branch should have the power to intervene and correct "mistakes" made by the judiciary just as the legislative branch does by being able to change the law in the light of judicial interpretation of existing law. In effect, the executive can correct "mistakes" in individual cases looking backwards and the legislature can correct "mistakes" in general going forward (the do in fact have the power to make laws retrospective [backwards looking] and specific but they tend not to do so).

  • Thanks for your clear answer. I was aware of the first two paragraphs. The third one is interesting, I do not know much about the historical background of separation of powers. The last paragraph is very interesting. What does avoid conflicts? For example, if the president grants a pardon but judicial power disagrees? Back to your correction of my question: I was not able to find an article in english talking about the pardon but if I am not mistaken, F. Hollande did grant it (partially, whatever that means). – MoebiusCorzer Feb 18 '16 at 22:07
  • ... if the president grants a pardon but judicial power disagrees? Nothing happens - this is a power the President has, he is answerable to the electorate for it, not the judiciary. – Dale M Feb 18 '16 at 22:14
  • (Correct me if I misunderstand your answer) You seem to say that the diverse powers are able to correct the mistakes made by the others. What does ensure that these are mistakes? What does empeach abuses? Suppose that Judiciary decides "A" and the president says "I invalidate A". What can empeach him to do so if it is not justified. – MoebiusCorzer Feb 18 '16 at 22:19
  • If you have another question, then ask another question. Don't ask in comments. – Dale M Feb 18 '16 at 22:28

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