Justifying Official Disobedience

Abstract

Do government officials, who have taken an affirmative oath to uphold the constitution, have any legitimate claim to disobey the law? We argue that they do. Indeed, the nature of law itself requires officials to have some mechanism to enforce the secondary rules or if one prefers, the associative obligations, upon which their authority is based. When institutional structures and official behavior makes it impossible for officials to subordinate government activity to the rule of law, then other officials may be excused from legal constraints for the limited purpose of ensuring accountability. We use arguments from legal, constitutional and political theory to illustrate this narrow excuse.