Mortimer Kadish and Sanford Kadish - Discretion to Disobey: A Study of Lawful Departures from Legal Rules

DISCRETION TO DISOBEY

A Study of Lawful Departures from Legal Rules

________ __

Mortimer R. Kadish

and

Sanford H. Kadish

___________

Classics of Law & Society Series

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Quid Pro Books

New Orleans, Louisiana

The Classics of Law & Society Series offers quality digital versions of the modern canon of scholarship in law and society, adding active tables of contents and linked footnotes and using care in formatting. Books in the Series, all written by renowned scholars, are recognized resources in their field and foundational works for later generations. They are part of the standard research library or classroom material on the topic, and have been read widely by the general public for what they teach us about law, history, politics, sociology, and philosophy.

Original work published in 1973 by Stanford University Press, Stanford, California.

Copyright 2010 by Mortimer R. Kadish and Sanford H. Kadish. All rights reserved.

No copyright is claimed in any quoted statutes, regulations, or excerpts from court opinions. The cover quotation is adapted from J. Levin, Review , 37 Modern L. Rev. 589 (1974), in reviewing the original hardback edition.

Published in 2010 by Quid Pro Books.
It is part of the Classics of Law & Society Series, Number One in the series.

ISBN:1610279565 (new ePub edition, 2012)

ISBN-13:9781610279567 (new ePub edition, 2012)

Publisher's Cataloging-in-Publication

Kadish, Mortimer R.; and Kadish, Sanford H.

Discretion to Disobey: A Study of Lawful Departures from Legal Rules / Mortimer R. Kadish and Sanford H. Kadish.

p. cm.

Includes Preface and Notes by the Series Editor; and bibliographical footnote references.

"A classic book of law and philosophy in which the authors explore the many ways in which law contains the conditions and procedures for its own departures. Sometimes law is legitimately made by breaking it."

1. LawUnited States. 2. Jurisprudence. 3. Criminal law. I. Title.

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Quid Pro, LLC

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New Orleans, Louisiana 70123

www.quidprolaw.com

To the memory of

Fanno and S.J.

TABLE OF CONTENTS

Text:

The Justification for Undertaking an Action

Acting in Roles: Citizens and Officials

Rule Departures in Roles

The Rule-of-Law Model and the Official's Role

An Alternative Model: The Criminal Jury

The Concept of Legitimated Interposition

Legitimated Interposition in Other Roles

The Law-and-Order Model and the Citizen's Role

The Concept of Legitimated Disobedience

Legitimated Disobedience and the Norm of Validity

Legitimated Disobedience and the Norm of the Lesser Evil

Legitimated Disobedience and the Norm of Justifiable Nonenforcement

Summary

Interposition and Disobedience Contrasted

Legitimation as a Response to a Dilemma

Openness to Legitimation in Legal Systems

The Values and Risks of Legitimation

Principles of Acceptance in Legal Systems

Principles of Acceptance and Legal Theory

An Alternative Model of a Legal System Checks and Balances

An Alternative View of Legal Obligation

On Conceiving of the Law

License Notes for the digital edition

...what to look for in this edition of Discretion to Disobey

After its original publication in November 1973, this book was soon recognized as an important contribution to the study of protest and lawful change in U.S. society during a tumultuous era when the distrust of legal institutions was acute, as was the need for responsible response to their sweeping powers. The daily-emerging Watergate story, recent overreactions to protests, and the winding down of the Vietnam War (and discovery of atrocities there) all revealed that trusted governmental actors had failed us. And yet the rule of law had to be maintained. How best to support the worthy ideal of the rule of law while profoundly challenging and upsetting the rules and the law was, and remains, more than a mere tension, a difficult puzzle. This book was immediately considered a major effort at working through that puzzle. And still today, nothing is simple; emphasis is everything, as they wrote at the time.

Just on the level of an academic feat, this book was, and is, a successful work in law and philosophy. Often, studies in that genre are more one than the other, and the marriage of the two disciplines is uneasy. Not so in this case, as it was the joint product of a respected philosopher, Mortimer Kadish, in synch with this brother Sanford, a lawyer by training and an equally acclaimed professor of law. It became a dialog between the disciplines of law and philosophy that resonates today, now involving a new generation of readers confronting their own question: what do citizenship and a call to action mean in the face of lawful authority sometimes wielded to serve not the public good but rather the petty and impatient, or even corrupt, purposes of legal actors? How to follow a law when to break it is more just?

To respect that effort and the reader, I have tried as much as possible to recreate this work as the authors envisioned it. Even so, the digital format has its own universe of rules, and I have adapted the book slightly to stay true to that vision and that universe. To this end, digital books typically use mutable locations rather than fixed pages (to accommodate font sizing and text to speech). Nonetheless, in this version I have indicated the original page numbers at key breaks along the way; they are re-introduced by {brackets}. Pagination follows the standard 1973 edition produced by Stanford University Press and is consistent with the publishers later paperback printings. Anything else in { } is added by me, to clarify. Some further notes to the digital format:

• The footnotes are numbered sequentially throughout, starting with chapter 2. In the original, footnotes re-started at upon each new chapter. For citation purposes and to make the notes cross-references usable, I have cited the original footnote number in {brackets} at the beginning of the chapter, starting with chapter 2, and at fixed locations along the way. All original footnote numbers may be readily deduced from these markers.

• The footnotes are now mostly endnotes, as they must be in an ebook that is not fixed. Yet in most formats the notes are linked, to jump easily. Fortunately, in the original, source materials and citations appeared as endnotes, and that format is maintained. However, in occasional places the authors also used a true footnote on the page to clarify a textual point in a significant way. To honor that intent and to maintain the correct numbering of the endnotes, I have turned these few footnotes into textual insertions, set off and marked as such just below that paragraph, with brackets for my marker. (I have done this as well with the only two endnotes, both brief, in chapter 1.) In a few places in which the note was very brief and could be incorporated in text simply as a parenthetical, I did that. Digital books simply do not allow for such diversity of footnoting, but I believe the use of a few textual asides works and comports with the original presentation.

• All cross-references include my bracketed notes to easily locate the material under the original numbering.

• I have made minor, consistent spacing changes throughout for legibility and proper ebook formatting without changing the words or quotability in any way. For example, block quotes are indented.

This edition was designed primarily for a digital platform, where the gap in accuracy, proper formatting, and usable footnote references is typically greatest. It can be read not only on dedicated ereader devices, but also using free ereader applications on such devices as a Windows PC or laptop, Mac, iPhone, iPad,BlackBerry, Android, and other smartphones. It is also available in simple PDF and rtf files. Other digital versions for various devices are linked on www.quidprobooks.com.