Joe Biden’s pardoning of his son, Hunter, has elicited indignant reactions and accusations of outrageous nepotism. But there have been no voices raised to question his or any other president’s right to pardon anyone at all – what on earth gives any elected head of a democratic state based on the rule of law the right to overrule the verdict of the courts? According to most constitutions, the head of state is, after all, the ultimate guardian of that law.

Although there is evidence of pardons being granted in ancient Greece in the fifth century BC, the prerogative was from the earliest times restricted to monarchs, certainly as far back as the Babylonian kings. It derived from the assumption, held in most early societies, that the sovereign was divinely ordained. In Christendom, it was inherent in the very basis of monarchy: the king or queen was anointed at his coronation by a bishop who held his authority from the pope, the ultimate representative of God on earth. Accordingly, he or she reigned by the Grace of God, as every coin issued in their name proclaimed.

Although the British coinage still proclaims it, if only through the initials ‘D. G.’, standing for Dei Gratia, the notion of the monarch ruling by the Grace of God began to be questioned in the 17th century, and the prerogative of the Royal Pardon challenged in the 18th. In 1791 the French Revolutionary government abolished it outright, and since then it has been gradually abolished or circumscribed throughout Europe, and survives only in countries such as Saudi Arabia and Thailand.

Yet long before that, when the constitution of the first major republic in the world was being drafted, Alexander Hamilton introduced the idea of granting the right of pardon to the head of the new state, an odd one, given the American rebels’ abhorrence of arbitrary royal powers. More understandably, in France itself, First Consul Napoleon Bonaparte reinstated it in 1802. And although the 18th-century jurist William Blackstone maintained that ‘in democracies, the power of pardon can never subsist’, since then, every republic has written it into its constitution in some form.

In Brazil, the Central African Republic, Chile, China, the Czech Republic, Egypt, Finland, Germany, Greece, India, Kenya, Liberia, Madagascar, Malawi, Mexico, Mongolia, North Korea, Pakistan, Paraguay, Russia, Rwanda, Senegal, Somalia, South Africa, Sri Lanka, Taiwan, Tanzania, Tunisia, the United States and Venezuela, it is the prerogative of the president – or the prime minister in the Philippines and the Supreme Leader in Iran. In other cases, it is circumscribed by constitutional constraints such as a recommendation of the cabinet or at the very least a countersignature by the minister of justice, the head of the Supreme Court, or, as in France, by the prime minister.

It doesn’t take much imagination to identify the vulnerability of such a system to abuse, even where the president has to obtain the approval of the government. Most presidents are the candidate of the ruling party, and even where they are not, their influence or bargaining power is up to getting their way, and in Portugal the president can overrule the government. So while some reflect a genuine popular consensus, in most cases presidential pardons have less to do with mercy and more with letting cronies out of jail. That seems to have been the case in 2013 when Czech president Vaclav Kraus celebrated the 30th anniversary of the country’s recovery of independent statehood by freeing some 7,000 prisoners; he claimed to be acting on compassionate grounds as most of them were either over the age of 70 or on short sentences, but they did include associates convicted of fraud. More recently, President Andrzej Duda of Poland outdid him by pardoning cronies before they had been convicted – something Trump is supposedly thinking of doing for himself.

Ironically, it is in the surviving monarchies of Christendom that the royal right of pardon, or clemency, as it is sometimes termed, is most limited. In the United Kingdom, the royal prerogative of mercy is inherent in the coronation oath, in which the sovereign swears to administer ‘Justice in Mercy’, but the last time a British monarch, George IV, attempted to apply it on his own, he was reined in by Prime Minister Robert Peel. Since then, the monarch acts as the executive of the government in bestowing a royal pardon, though one assumes his or her views are given some consideration. Whether that is the case in British dominions such as Australia, Canada and New Zealand, where pardons are granted in the monarch’s name, is doubtful.

Much the same goes for other European monarchies: the kings and queens of Belgium, Denmark, Luxembourg, the Netherlands, Spain and Sweden are constrained by the government of the day, and only the Prince of Liechtenstein can act on his own.

Regarded from a purely logical perspective, stripped of its sacral authority, the royal act of clemency has no moral basis, while the presidential pardon is inconsistent with the rule of law. Yet many jurists argue that it provides an essential safety-valve, a mechanism to overrule the conclusion reached by law when this conflicts with popular feeling, political necessity or just plain common sense. The 2006 pardon covering soldiers shot for desertion in the First World War, the 2013 posthumous prerogative of mercy in the case of Alan Turing, that applied in 2020 to Steven Gallant for his brave action to save lives at Fishmongers’ Hall, and indeed President Trump’s 2018 posthumous pardon of the black boxer Jack Johnson, convicted for crossing a state line with his white partner, are good examples of the first and third. Political considerations inspire general amnesties following internal conflict, and nearly 400 such pardons have been granted in Northern Ireland since 1979.

The question is, who should have the prerogative of granting such pardons if the monarch can no longer invoke divine authority and elected politicians are almost bound to be partisan if not actually corrupt? Some kind of ombudsman? A special commission of the great and the good? Appointed by whom? Elected by popular vote? The more formalised and legalised the process, the more fettered its fundamental purpose, which is to cut through legal processes. And Vox Pop is hardly a reliable alternative; weak as he was, Pontius Pilate was at least impartial, and whatever your religious views, the choice of Barabbas over Jesus of Nazareth gives pause for thought.