Official Obedience and the Politics of Defining 'Law'

Abstract

As recent questions about the legality of several American military activities make clear, most disputes about the legality of high-level official action take place not in courts of law, but in the court of public opinion. But in the court of public opinion, the various parties to the disputes turn out to be relying on vastly different conceptions of law itself, and of just what is to count as law in the first place. Although the central figures in the civil disobedience tradition – Thoreau, Gandhi, and King, among others – freely acknowledged that they were violating the positive law then in force, such acknowledgments, especially for public officials, are now quite rare. Instead, those who charge official illegality rely on a particular and typically unspoken (albeit narrow) conception of what is law, and officials defend their actions as legal by relying on a different and also typically unspoken (but substantially broader) conception of law. But if the debates about public legality and illegality are ones in which the various sides are relying on fundamentally different understandings of what law is and what the components of law are, the possibility of meaningful public discussion of official legality evaporates. This Essay does not seek to answer the question of what “really” counts as law, but aims instead to expose the jurisprudential underpinnings of typical charges that officials have violated the law, and of typical defenses by officials to such charges, defenses that understand the components of law in a different and ordinarily much more capacious way. Thoreau, Gandhi, and King recognized that positive law may at times conflict with morality or wise policy, but nowadays officials defending their actions against charges of illegality often adopt reconciliation strategies that dissolve any alleged conflicts between what the law requires and what the law-independent best course of action would be. These reconciliation strategies may play well in public discussion, but have the unfortunate effect of making it almost impossible to hold officials to public or political account for their unlawful policies