Keywords
Jurisprudence of departures from rules, non-compliance with rules, moral grounds, legal grounds, official roles, citizen roles, context of evaluation
Abstract
The authors' purpose in this important and intriguing book is to contribute to what they call "the jurisprudence of departures from rules" [p. 5]. They try to establish that non-compliance with rules of law may sometimes be justified not only on moral grounds but also on legal grounds - that is, that the legal system itself has considerable built-in tolerance of non-compliance with its own rules, and that an official or an ordinary citizen who contravenes a legal rule may well be able to make out a claim that he is acting "legally" after all. It is central to the authors' thesis that they do not see the legal system merely as a system of standards, whether the standards be called rules, or rules and principles, or even rules, principles and policies. In addition to standards, the legal system sets up a large number of roles of two general kinds: official roles and citizen roles. A role, whether part of the legal system or not, has a "context of evaluation" consisting of certain means and certain ends. Sometimes legal roles expressly include discretion as one of the means available to the person who fills the role (the "role agent").
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Recommended Citation
Bernard Adell, “Discretion to Disobey: A Study of Lawful Departures from Legal Rules”, Book Review of Discretion to Disobey: A Study of Lawful Departures from Legal Rules by Mortimer R. Kadish & Sanford H. Kadish, (1976-1977) 3:1 DLJ 318.
