A legitimate expectation in a liberal democracy is that public officials enforce the law regardless of its content; when they don’t do so, their actions tend to be publicly condemned. This expectation puts street-level bureaucrats in a moral dilemma when they consider that a certain law is unjust: either they don’t enforce the law and violate their duties to the citizenry, or they enforce it and become complicit in injustices. This paper argues for the legal permission of public officials to disregard legal mandates for moral reasons. Call it official disobedience. Contrary to common intuitions, I show that official disobedience would foster the principles of and improve governance in liberal democracies: it accommodates public officials’ personal autonomy and yields three main democratic benefits. First, information about the outcomes of the law would become available for lawmakers; second, in the aggregate, it would protect citizens from injustices; third, it would improve the moral character of bureaucrats.
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Political scientists often assume that a main characteristic of the administrative state is the principal-agent relation that exists between citizens and public officials, see Miller 2005. However, informed citizens know that certain bureaucrats have a certain degree of discretion regarding the enforcement of the law (e.g., prosecutors). This paper focuses on street-level bureaucrats, those who are not elected or formally appointed, but merely hired, and who tend to be at the lowest levels of the administrative state.
See Heath 2020, Chap. 6.
Admittedly, it sounds rather paradoxical to say that there is legal permission to disobey the law. “Officials disobedience” must be understood as a label to refer to the disregard or omission to enforce the law, not really an act of disobedience. Yet, I opt for this label to keep the parallelism between “civil disobedience” and “official disobedience.” I argue that both moral rights have similar foundations in a liberal democracy. I thank an anonymous reviewer for suggesting this clarification.
I follow Brownlee’s understanding of a moral right of conscience as “essentially a claim-right that others not interfere with our carrying out our responsibilities” (2012, 119).
Following Raz (1979), I take for granted that people have no moral obligation to obey illegitimate regimes.
Estlund (2007, 218) does acknowledge that there might be an exception if Jason has first-hand knowledge that the inmate is innocent.
See Arendt 2006.
For other arguments against the voluntarist objection, see Brownlee (2012, 111–112).
There might be cases in which this is justified, but they tend to be exceptional.
Yet, if Jason uses the key to open the inmate’s cell, he is using public power for advancing his moral convictions, hence this is not an act of official disobedience.
See Schiffrin’s (2000) notion of accommodation.
I leave open the possibility that, in some complicated cases, the justification of official disobedience can be scrutinized by the judicial power.
I leave the specifics open.
Pierre Rosanvallon (2008) talks about the legitimacy of proximity.
For the relation between group size and the collective decision-making cost, see Buchanan and Tullock (1962).
Regarding the difficulties of reaching a supermajority in collective decisions, I follow Buchanan and Tullock (1962).
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I thank the editors and two anonymous reviewers for their helpful comments. For their support and illuminating feedback, I am also grateful to Thomas Christiano, Ben Cilwick, Daniel Dzah, Connor Kianpour, Jake Monaghan, Gregory Robson, Alexander Schaefer, David Schmidtz, Vlad Tarko, and Steve Wall. Finally, I would like to thank the students of my Philosopy of Law course at the University of San Diego for their brilliant comments, especially Damiera Cruz, Lily Hogan, and Lex Padilla.
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Juarez-Garcia, M.I. Official Disobedience: Bureaucrats & Unjust Laws. Criminal Law, Philosophy (2023). https://doi.org/10.1007/s11572-023-09689-1