Lawful Departures from Legal Rules: Jury Nullification and Legitimated Disobedience

TLDR: The Discretion to Disobey: A Study of Lawful Departures from Legal Rules by Mortimer R. Kadish, a philosopher, and Sanford H. Kannan, a lawyer as mentioned in this paper.

Abstract: Even the most law-abiding among us has on some occasion knowingly refused to conform to what he accepts as a valid legal norm directing him to do something or to refrain from doing something. How do we account for this phenomenon? Is it always merely laziness, viciousness, rebelliousness, or evidence that we are after all only human? Or are there occasions when the refusal to obey the directives of a legal system is in fact sanctioned by that legal system and perhaps even is part of our legal obligation? In an important new book, Discretion to Disobey: A Study of Lawful Departures from Legal Rules, Professors Mortimer R. Kadish, a philosopher, and Sanford H. Kadish, a lawyer, argue that the second explanation is the correct one. Their argument is subtle, sensitive to the nuances of the complicated structure of a functioning legal system, and full of real insight. Whether ithe argument is completely persuasive is a question each reader must answer for himself. Personally, I am not fully persuaded. Since the underlying question is one which any observer of the contemporary legal and political scene with even the slightest philosophical bent is bound to confront, it might be useful to state the difficulties I have with their argument. If, by so doing, I can help to initiate the public discussion which their stimulating book deserves, then I shall have paid Discretion to Disobey the homage it merits. For, lest there be any doubt about it, I think it is a very good book which deserves careful reading.