64 Pages Posted: 1 Dec 2014 Last revised: 11 May 2015
Scholars and activists have long been interested in conscientious law-breaking as a means of dissent. The civil disobedient violates the law in a bid to highlight its illegitimacy and motivate reform. A less heralded form of social action, however, involves nearly the opposite approach. As a wide range of examples attest, dissenters may also seek to disrupt legal regimes through hyperbolic, literalistic, or otherwise unanticipated adherence to their formal rules.
This Article asks how to make sense of these more paradoxical protests, involving not explicit law-breaking but rather extreme law-following. We seek to identify, elucidate, and call attention to the phenomenon of "uncivil obedience." After defining uncivil obedience and describing its basic varieties and mechanisms, we explore tools that have emerged to limit its use. We explain that private law has developed more robust defenses against uncivil obedience than has public law, especially in civil-law jurisdictions. We argue that the challenges uncivil obedience poses to public law values are as substantial as those posed by civil disobedience. And we suggest that uncivil obedience may be a particularly attractive tactic for ideologically conservative individuals and the contemporary Republican Party. For these reasons and others, the Article aims to show, uncivil obedience deserves much more of the sort of critical attention that has been afforded to civil disobedience.
Keywords: Civil disobedience, legalism, legal theory, rules and standards, social norms, law in books/law in action, grey holes, rule of law, abuse of right, equity, preemption, federalism, Senate, work to rule, medication abortion, filibuster, immigration, welfare, navigators, moral psychology, partisanship
Suggested Citation: Suggested Citation
Bulman-Pozen, Jessica and Pozen, David, Uncivil Obedience. Columbia Law Review, Vol. 115, pp. 809-72, 2015. Available at SSRN: https://ssrn.com/abstract=2532245
By David Pozen
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