Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, July 29, 2005

Civil Disobedience and Judicial Power

Immigration lawyer Chuck Roth offers the following reflections on my earlier query regarding civil disobedience and the Catholic judge:

In our legal system, it is the role of judges to say "what the law is." In our judicial system, to rule that the law says X when in fact you know that it says Y is, in effect, a lie.  One cannot do evil that good should come of it.  Lies are immoral.  So at the level of legal analysis, you cannot willfully misstate the law, even to achieve a good end like saving a life.

I think the Judge Sprizzo example is inapposite.  Juries find not only facts, but (implicitly) decide that their sense of justice does not preclude conviction.  I see jury nullification as a crucial part of the jury's raison d'etre, as a democratic check on the political branches.  Thus, I don't view jury nullification as a lie.  Because Judge Sprizzo was acting as judge and jury, he assumed the powers of jury nullification as well.  As such, it was no lie for him to decline to convict, precisely because he was acting as jury, not judge.  So I support what he did; but that tells us about the role of a jury, not the role of a judge.

Here is an example of civil disobedience for a Judge.  A Court of Appeals judge is on a three-judge panel, and dissents, admitting that settled law calls for the conclusion reached by the majority, but refusing to consent to it.  This would not be a lie, because it acknowledges the reigning law.  But it would be a conscientious refusal to conform to that law. 

But what if two judges on the panel felt morally obligated to dissent?  This is the same circumstance as a District Court judge, on remand from the Court of Appeals, required by law to order, e.g., the destruction of fertilized eggs.  It seems to me that power changes the equation.  It is part of the nature of civil disobedience that one must be in a position of submitting to power, not wielding it.  In being civilly disobedient, one respects the law, recognizes its authority, and submits to punishment.  But where disobedience becomes so powerful as to overmaster the law, it is not susceptible to punishment, and thus cannot recognize the law's authority by submitting to legal penalties.

If it is correct to conclude that civil disobedience requires a situation of relative powerlessness, it follows that Judges can only be civilly disobedient when in the dissent.
All that being said, civil disobedience is not the only option in the face of injustice endorsed by authority.  As your citation of Garrison suggests, revolution is another alternative.  And I would see the act of a judge wielding power in disobedience to higher appellate authority (either as a Dist Ct judge, or in a majority) as revolution.  There may be circumstances - e.g., Bonhoeffer and Hitler - where one is morally permitted, perhaps even obligated, to rebel.  But in starting a revolution, as with any just war, one would have to carefully and prudently consider the likely effects as well as the causus belli.  So the question becomes: is the legal system so far gone as to require revolution?  Fr. Neuhaus seems (seemed?) to think so.  I am dubious, as, it sounds, are you.


Vischer, Rob | Permalink

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