From the standpoint of the dissenter, however, such disobedience may often be justified, even in a generally just legal system. Disobedience is a very effective way of expressing the conviction that a legal system has made a mistake, and sometimes such dissent can play an important role in public deliberation, precisely because such dissent will be punished , and is understood to be costly.
Of course, legal systems may also allow special privileges for sincere but mistaken dissenters, particularly when dissenters act for religious reasons, as when the United States offers special exemptions from military service for those whose scruples prevent them from taking up arms.
Tim Sellers
09:02 PM 8/18/03 -0700, you wrote:
There has been some activity and comment recently on how to behave in the face of an unjust law, or a law perceived to be unjust by one, some, or many, in a system like ours. Hence the following question:
In a federal system such as ours, should unconscionability regarding the rule be allowed to justify insubordination to the system?
Here are some situations where the question comes up.
Last term, the USSC upholds California's draconian Three Strikes punishment scheme.
NY USDC Judge Martin retires stating he declines to support an unjust federal sentencing system.
Justice Anthony Kennedy tells the ABA and the nation that we're putting too many people in prison for too long and it is unjust.
A Supreme Court justice states some time ago that he no longer agrees to participate in the mechanism of death. Brennnan?
This spring, the Feeney Amendment, aka the PROTECT Act, as part of the Amber Alert Bill, restricts the power of federal judges to downwardly depart from the Sentencing Guidelines.
A-G John Ashcroft promulgates a rule requiring federal prosecutors to report the names of federal judges who depart downwardly from the Guidelines.
In Roe v. Wade and progeny, each side believes the other behaves unconscionably.
In the slavery and Jim Crow eras and controversies, each side, ... ditto.
During the Nazi regime of Hitler Germany, the Nuremburg Laws laid the legal groundwork for what we know as the Holocaust.
U.S. soldiers are taught they have no duty to obey an illegal order, in fact, as I understand it, have a duty NOT to obey such an order. I do not know the mechanism for protesting orders believed to be illegal, or what happens when told to obey nevertheless.
I'm aware of the opportunity to resign on principle for judges, or to recuse from hearing certain cases. In the case of the soldier, I believe s/he may apply for status as a conscientious objector as a ground for non-induction or discharge.
Then, of course, we have Judge Roy Moore, the Chief Justice of the Alabama Supreme Court, who refuses to remove the Ten Commandments from the public courthouse, despite legal command.
Is it okay to cheer, say, the German judge who subverts [illegally] a Nuremburg law, assuming such a thing happened, but to condemn a Judge Moore who follows HIS conscience (or political instincts)? On what ground does the German judge justify his insubordination? Natural Law? Higher Law? Supernatural Law? And Moore?
It seems to me that a realistic description of what is in fact the case is that one takes one's chances in going against the system, that the system controls unless and until the system changes, and many systems, including ours, insist on the principle of subordination.
The agitation and protest represented by the above-mentioned individuals simply become, then, part of the process that may or may not lead to change in the direction desired by the protestor. Meanwhile, the system grinds on, taking the innocent along with the guilty, at least as viewed in hindsight, and that's the best we can devise, at least for the time being.
Does anyone on the list have a take on the unconscionability/insubordination question that might lead to a more complete view of the conundrum?
I'd appreciate it if you so indicated.
Thank you in advance.
Bob Sheridan
[EMAIL PROTECTED]
San Francisco Law School
Regents Professor of the University System of Maryland
Director, Center for International and Comparative Law
University of Baltimore School of Law
1420 North Charles St.
Baltimore, Maryland 21201-5779
telephone:410-837-4532
facsimile:410-837-4396
