REVIEWS

DOIhttp://doi.org/10.1111/j.1468-2230.1974.tb02404.x
Publication Date01 Sep 1974
REVIEWS
DISCRETION
TO
DISOBEY.
By
M.
R.
KADISH
and
S.
H.
KADISH.
[Sbanford,
California:
Stanford
University Press.
1973.
241
pp.
(incl.
index).
€4-50.1
The subtitle of this book is “A Study of Lawful Departures from Legal
Rules.” This
will
raise the hackles
of
any English lawyer, like this reviewer,
brought
up
in
a
positivist tradition. The authors put forward the paradoxical
idea that
a
citizen
or
ofiicial may lawfully break the law, that disobedience
to the law’s commands might, in certain circumstances, be justifiable not only
by reference
to
extra-legal criteria such
as
moral standards,
but
also by
reference
to
standards
or
prindpals within the legal system itself. This ldea
certainly excites curiosity and interest, even if
it
also
excites suspicion.
What do
the
authors mean by lawful departures from legal rules,
or
“1egiEmated disobedience”
as
they often call it? Such departures may be
undertaken legitimately by both offidals and ordinary citizens.
Ot?icials,
they
argue, can sometimes depart from mandatory legal rules in order to further
the true purposes of their roles as officials, and that action can be justified
“not
in
the
moral
but
in the legal context.” This power
is
quite separate
from the wide dmiscretionary powers often conferred upon officials and which
give them flexibility in administering legal rules. The extent to which
individual legal systems will allow such deviations from legal rules will vary,
and it
is
possible that in
a
system which follows
a
very authoritarian
law and
order” model no
such
deviations
will
be permitted at all. However, the
authors
argue
that under the American legal system deviations from mandatory
rules are permitted, even though the precise
scope
of these powers may be in
doubt. The argument
is
presented mainly by the extended analys‘is of examples
of
legitimate deviations, such
as
that of the powers of juries.
Juries have
a
legal duty to return
a
verdict according
to
the law, the
content of which they are told by the judge. Nevertheless juries also have
a
liberty, which the authors somet5mes
seem
to consider
to
be
a
right, to return
a verdict in conflict with the judges’ instructions on the law provided the
reasons for
so
doing appear strong enough
to
negate
their duty
to
follow
those instructions. Where they exercise this liberty their verdict
3s
not
a
nullity.
It
cannot be upset (for the juries are not required
to
give
reasons for
their
verdiids). The jury cannot be punished
or
held personally
responsible for their verdicts, They often use this power. “Jury nullification
of unjust laws
is
a
continuing tradition.” After considering other possible
interpretatlons of these facts the authors conclude that juries are allowed by
the law to break the law where the nature of their role, and considerations of
justice and common sense demand this. First that juries
have
a
mandatory legal duty to follow the judge’s Instructions on the law and,
secondly, that
a
departure from this legal duty can sometimes be legally
justifiable. But are juries bound by such
a
mandatory rule? How realisac
is
it
to
talk of legal duties where there the legal system provides no possibilmity
of enforcement, either directly
or
indirectly? Would it not be more honest to
say that the legal system imposes powers on juries, not duties, and that the
use
of
the term duty In this connection is
a
fiction adopted by the legal system
in order to maintain some kind
of
pretence
or,
possibly,
reinforce
a
moral
ideal? Even if it
is
accepted that there exists
a
legnl duty, the authors’ basis
for arguing that the law legitimises
a
disregard of that duty is
’its
non-
enforceab’ility. The law, however, wlll not enforce the duties of juries where
589
This
argument depends upon two main assumptions.

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