H.L.A. Hart is widely acknowledged as the most important writer and thinker of the 20th century in the discipline of Anglo-American legal philosophy. His debates with Harvard’s Lon Fuller, author of "The Case of the Speluncean Explorers," and his later debates with his former student, Ronald Dworkin, on the nature and function of law in our legal system, changed the way most scholars approach modern legal problems.

In Hart’s seminal masterpiece, "The Concept of Law," first published in 1961, he presciently discussed a hypothetical situation that we can now say actually came to fruition on Jan. 6, 2021. In Chapter IV, on the relation between sovereign and subject, he asks why subjects have the “habit of obedience” to the lawgiver and the law. He posits a mythical figure, called Rex I, who is the lawgiver and whom everyone obeys, and he asks what is to happen if Rex I were to die or otherwise leave office. He describes such circumstances as a “transition period” and he emphasizes that any good legal system should insist on a peaceful transfer of power between Rex I and his successor, Rex II. He says:

“… acceptance of a rule by a society at one moment does not guarantee its continued existence. There may be a revolution; the society may cease to accept the rule. This may happen during the lifetime of one legislator, Rex I, or at the point of transition to a new one, Rex II, and if it does happen, Rex I will lose or Rex II will not acquire, the right to legislate. It is true that the position may be obscure: there may be intermediate confused stages, when it is not clear whether we are faced with a mere insurrection or a temporary interruption of the old rule, or a full-scale effective abandonment of it (emphasis in the original).

It seems that Jan. 6, 2021, was one of those “intermediate confused” moments, to use professor Hart’s words, where we were not sure whether the interruption of the transfer of power between Rex I and Rex II was “a mere insurrection” or a full-scale abandonment of the old system. It seems to us that this conclusion makes it all the more important that the defendants in the Jan. 6 insurrection prosecutions not be pardoned by the incoming chief executive.

We understand that in our federal legal system the president has the absolute right to pardon whomever he chooses, whether family member or archfederal criminal. Issuance of a pardon, however, sends a distinct message. There is even a strong current of the federal law that holds that issuance of a pardon requires acceptance by the recipient, tantamount to an admission of guilt.

If the president were to pardon the Jan. 6 insurrectionists, the message would be that the desire by the insurrectionists for a full-scale abandonment of the former legal system (a crime) was an OK desire and that we should encourage, or at least forgive, the intended destruction of our legal system. In our view, this is a very bad message, one that no chief executive should countenance. If he still thinks he ought to pardon the insurrectionists, he should make it very clear that he is doing so because he believes they were confused and not because our current legal system should be abandoned.