Discretion to Disobey: The Jurisprudence of Departures from Rules
Discretion to disobey often occurs when there is a pre-set rule and established standards.
Discretion to disobey often occurs when there is a pre-set rule and established standards. A valid legal norm or rule which directs a person to do or refrain to do something is bound to be defied on some occasions even by the most law-abiding ones. There is always the scope of discretion within a person to disobey or depart from the set rules, knowingly refusing to conform. Therefore, there is a need to keep an account of this phenomenon.
On other occasions, the disobedience arises after there is a refusal to obey the directives of a legal system which is in fact sanctioned by that legal system or perhaps even is part of the legal obligation. This departure from the legal rules happens mainly due to the nuances of the complex structure of a functioning legal system.
All of us have certain roles and responsibilities in the complicated set of activities regulated by the legal system. The legal system confers us with these roles, prescribing us legal directives on we may or may not do in the situation. The job of playing your mutual part in the legal system is called a recourse role which represents our action in the event we are confronted with legal directives requiring us to do or refrain from doing something.
The notion of ‘re-course roles’ is the first and foremost thing to understand before diving into the jurisprudential aspects of discretion to disobey. Re-course roles are defined as the “roles that enable their agents to take action in situations where the role has prescribed ends conflict with its prescribed means, including grants of discretion broad or narrow.”
Nevertheless, one may justify his point by refusing to follow the directive on account of possible conflict with some more basic end of the legal and political order. Both government personnel and private citizens have recourse roles on some occasions in which they may choose to disobey legal directives owing to certain circumstances. The refusal is legally justified to do sometimes, but with a clear demarcation over civil disobedience from the legal rules departures.
The paradigm of civil disobedience covers the events in which the actor refuses to obey a legal norm. An actor may refuse to obey the rules on account of overriding moral considerations, but that may or may not be sufficient justification, but only if the actor’s refusal is legally justified on legitimate legal disobedience. This universe of justified or legitimated rule departures is divided into two main categories, those by personnel and those by private citizens.
A fine instance for private citizens is when the rule departed from provides a direct sanction for disobedience or non-compliance of rules, in the form of fine or imprisonment, from those where it does not. On the contrary, officials are often confronted with legal directives which are in a sense legally binding upon them but which don’t carry any direct sanction for non-compliance. A jury is under a legal obligation to convict an accused if it finds, beyond a reasonable doubt, that he has committed certain criminal acts, but nevertheless, it can decide to acquit the accused even when it has no reasonable doubt that he has committed the acts charged.
Essentially, the departure of rule, when legally justified, is done by officials it is the case of ‘legitimated interposition’, while the justified rule departures from legal norms carrying direct sanctions by both private citizens and officials are the instance of ‘legitimated disobedience’. However, the underlying considerations in both notions of legitimated interposition and legitimated disobedience are different, and there is a need to have a separate elaborate discussion on the same.
II. Legitimated Interposition
The notion of rule departures by officials represents the notion of official discretion, whose meaning is often very close but needs to be kept separate. Officials including the courts and judges have a major role to play in official discretion because they are the primary source of giving a meaningful interpretation to any rule or statute, removing all the ambiguity and vagueness. This is the interpretative role of the courts which involves a certain level of discretion. However, since the construction of statutes and laws changes and evolves over the course of time, it becomes rule departures and not the discretionary application of existing rules.
The law is not a set of precise rules and directives and is therefore often grasped as a discretionary measure by the officials instead of only playing an interpretive role.The judges, scholars, practising lawyers, for an understandable reason, give a meaningful interpretation through a series of cases, making the legal terms more precise than their underlying sources. Moreover, when certain judgments are overruled, it’s not always easy to describe exactly what it is about the case and which part is being overruled and departed from.
It is indisputable fact that there are occasions when legal development is marked by abrupt changes which have not been foreshadowed in the earlier judgments, which may be characterized as “rule departures”. This development is followed by the tendency of courts to oversimplify the complex law that often blurs the distinction between the notion of discretion in the application of legal rules and that of rule departures.
The blurred distinction between the two also occurs because courts are engaged in an admitted rule departure and are generally exercising their discretionary role to amend rules and law. It is noteworthy that courts don’t have the discretionary role in the application of existing rules but for the creation of new rules, which becomes a particularly heightened way, a ‘legislative’ role.
The legal system in India allows the courts to perform this legislative function to some extent to have an independent and interpretative judiciary. Since the court of law has the final word within our country’s legal system, rule departures by the courts in the course of discharging their legislative role are always, in a sense, legitimate. To quote Cardozo's statement,
“Judges have, of course, the power, though not the right, to ignore the mandate of a statute, and render judgment in spite of it. They have the power, though not the right, to travel beyond the walls of the interstices, the bounds set to judicial innovation by precedent and custom. Nonetheless, by that abuse of power, they violate the law.”
III. Legitimated Disobedience
The phenomenon of justified rule departures by private citizens is called legitimated disobedience. It is also termed civil disobedience, which means the active, professed refusal by a citizen to certain legal directives, orders, or government commands. This is the freedom of individuals to criticize the government and its order and even counsel disobedience or revolt in a free society.
If any law is contrary to the provisions of constitution, the individual has the right to refuse to obey state law. In other words, private citizens can challenge the validity of the law by violating it and show their disobedience is legitimate. If the challenge is upheld, the citizen is not punished- legitimated disobedience, but when the challenge is not upheld, the person has to suffer the prescribed sanction in form of a penalty such as a fine or imprisonment.
The severity of the penalty for the defendant and the likelihood that his/her challenge will succeed are the factors that determine the “surcharge” an individual must pay in order to exercise his right to engage in justified rule departures.
Moreover, generally, a private citizen does not have a right to challenge court judgments in this manner. The fact that the validity of a statute can be challenged only by the way of violating it is not the feasible solution for which citizens may have to suffer variably.
The proper solution would be to expand the right of citizens to defy judicial decrees with, of course, appropriate restrictions on the right of an individual to challenge the statute by way of violating it. Let’s say, for example, a statute makes it a criminal act to wound a person with a firearm, but the defendant argues that he should be exonerated because the criminal act was done in self-defence. Here, the defendant appeals to the court to depart from an established rule so as to legitimate his own departure from the rule; he is appearing before the court, which is referenced as the “norm of the lesser evil”.
The surcharge to be paid in order to appeal to the norm of the lesser evil is again determined by the severity of the statutory penalty discounted by the likelihood of success of the challenge.
So, there are four significant requirements for the legitimized disobedience by private citizens. They are listed as below:
- “The legitimating norm, such as the norm of the lesser evil or the norm that constitutional law supersedes ordinary law, lies within the province of a judge or other official to apply;
- It is asserted that the norm relives the citizen of the obligations and punishments imposed by the rule departed from;
- The norm functions as a qualification of the rule but as a justification for departing from the rule; and
- The citizen is in fact appealing to the norm as the justification for his departure from the rule.”
There are various types of justified rule departures, as discussed above; however, the above discussion is not exhaustive, keeping in mind the jurisprudential aspects of it with different interpretations. The departure from the legal rules happens mainly due to the nuances of the complex structure of a functioning legal system. The legal roles of officials and citizens are part of the legal system.
A country’s legal system needs to use this notion of roles to bridge the gap in the legal system and extend its boundary across the gap. To judges and practicing lawyers, the notion is explained well, but to the ordinary private citizens who wonder about their obligation toward laws that seem to him unjust, it is not explained plainly enough.
The article's main focus was on whether there are legally justified rule departures, either in the form of legitimated disobedience by private citizens or legitimated interposition by officials is a basic and recurring question. The validity of both the notions is necessary to be further discussed upon and provide an indisputable interpretation and rule to explain their practical applicability.
 M. Kadish & S. Kadish, Discretion to disobey: A Study of Lawful Departures from Legal Rules 35 (1973).
 Christie, G. (1974). Lawful Departures from Legal Rules: “Jury Nullification” and Legitimated Disobedience. California Law Review, 62(4), 1289-1310. doi:10.2307/3479784.
 Christie, Objectivity in the Law, 78 Yale L.J. 1311, 1313-18 (1969).
 B. Cardozo, ‘The Nature of the Judicial Process’ 129 (1921).
 Supra at 1. Pg 97-100.
Originally Published on: Mar 2, 2021