At trial, a civil disobedient may appeal to his reasonable belief in the unconstitutionality of the law that he violated. However, he cannot appeal to any technical difficulties that would require him to lie about his performance of the act in question, or about the role of his conscience in motivating his action

Hughes, Graham

English

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Philosophic Exchange
Volume 1
Number 1 Volume 1, Number 1, Summer 1970 Article 2
1970
Response to Professor Marshall Cohen
Graham Hughes
New York University
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Hughes, Graham (1970) "Response to Professor Marshall Cohen," Philosophic Exchange: Vol. 1 : No. 1 , Article 2.
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120 
GRAHAM HUGt IES 
Prof c ssor of I-cm· 
.�<·w York l '11iucrsil_v &/roof of Lau: 
1
Hughes: Response to Professor Marshall Cohen
Published by Digital Commons @Brockport, 1970
RESPONSE TO PROFESSOR MARSHALL COHEN 
by 
GRAHAM HUGHES 
Professor Cohen has given us a clear. sensthle and subtle essay on 
civil disobedience and there is only one aspect of his analysis with which 
I shall want to take issue. I would also wish to make some comments from 
the standpoint of a lawyer and perhaps parttcularly from the perspective 
or a criminal and constitutional lawyer. 
First I want t-0 agree emphatically with Professor Cohen (and with 
Ronald Dworkin who has also made this point)1 that the concept or fidel· 
ity r.o law would be vulbra.rized and made distortm�ly simple if we under· 
stood it as referring to an obligation not to question thP decision of a 
court. even the Supreme Court. Such a position would mvo!ve the error 
of failing to distinguish between the concept or a legal system and the 
concept of authority within the system. The court is cercainly established 
by the norms of the system as the proper authoritative organ to make 
decis1ons which legally bind the parties but to acknowledge this is very 
different from saying that the court is an infallible, oracular spokesman 
for correct or best statements of the law. To assert this would, indeed, 
be contrary to the traditions and practices of lawyers who are constantly 
arguirag in the courts and in the classrooms that the Supreme Court was 
wrong when it came to one decision or another. The position which Pro· 
fessor Cohen properly attacks is perhaps a confused legacy of the real­
ist movement in American jurisprudence. The realists were in the habit 
of talkmg about the law more m terms of what judges do in deciding 
cases than in terms or rules and principles. But even the realists would 
have said that the Jaw on a particular point is a prediction of what a court 
wnl decide tomorrow rather than a record or what ll decided yesterday. 
Once we look upon the law more illuminatingly as a body of rules and 
principles. as a process of reasoning and argument. the correct position 
is even more apparent. Fidelity to law requires a constant reexamination 
of decisions in terms of rules and principles rather than a slavish genu· 
fleKion to the court's latest pronouncement. 
There is of course an important difference between arguing that the 
court's decision was wrong m law and asserting the reservation of a 
privilege to refuse to comply. Professor Dwofkrn has argued (and I under­
stand Professor Cohen to be agreeing with him) that tile authoritative 
nature of the court within the system is an important reasrn which should 
inchue tile ct tii.en in the direction of compliance even if he should be· 
lieve the court to be wrong. But both these writers would go oo to assert 
that it is not always a decisive reason . A strong moral position against 
the implications of the decision may be a reason for disobedience and 
this would be relevantly and significantly supported by the added conten-
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RESPONSE TO PROFESSOR MARSHALL COHEN 
tion that the court's decision was wrong in law. This is a position which 
I do not think is inconsistent with a lawyer's inclination to support the 
rule of law. The rule of law cannot live with the proposition that anyone 
may have a privilege to disobey when even compliance would be incon­
venient or whenever he disagrees with the policy judgment imp1icit in the 
law. But itis able to survive alongside the position that there is a moral 
ju�tificakion for disobedience when it is in terms or an appeal to con­
science. 
If civil disobedience can sometimes, perhaps often in the United 
States. be grounded in a position which partakes both of moral claims 
and legal claims, what practical lesson is there for law enforcement 
officers and judges? At lhe least, as Ronald Dworkin has argued, 3 
we may suggest that the motivation, the moral positions and arguments 
that w1derlie the disobedience are perfectly proper matters to be consider­
ed by enforcement officials in exercising the discretionary function of 
deciding whether to prosecute or not and by judges in determining what 
sentence to hand down if a convi4tion ensues. I would go further and 
suggest, as I have done elsewhere, that it is conceivably proper, though 
attended with some difficulties, for the courts to hold that a defendant's 
reasonable belief in the unconstitutionality of a statute under which he 
is prosecuted might in some cases be recognized as a defense leading 
to an acquittal. The question of whether the statute is constitutional is 
not. after all, the same question as whether the defendant is a guilty 
person deserving of punishment. Guilt in criminal law has always included 
elements which go beyond the doing of a prohibited a.ct. The prosecution 
must show mens rea or guilty mind in the accused and mens rea is dis­
placed by a variety of possible justifying circumstances .  The belief 
that the statute which he apparently violated was unconstitutional might 
be regarded as a justifying circumstance without any strain on classical 
principles of criminal law. The limits of such a doctrine would certainly 
be narrow and would embrace only a small number of civil disobedience 
cases and perhaps only those which Professor Cohen has suggested should 
not be thought of as typical instances of civil disobedience at all. Cases 
of "indit·ect .. disobedience would not be touched at all. And even where 
the defense was prima facie appropriate, as where the defendant asserted 
that he believed the statute which he violated to be unconstitutional, there 
would be a quest.ion as to whether a court could continue to regard lhe 
belief as reasonable once it ran contrary to an explicit decision of the 
Supreme Court on the point at issue. 
Professor Cohen has suggested that it is perfectly cm1sistent with 
the practice of civil disobedience for the defendant in such a case to 
claim in his defense when prosecuted that the law under which he is 
charged is unconstitutional. I agree completely but there is a more dif­
ficult question here which ought to be considered. The defendant's attor­
ney may wish to raise matters which d o  not go to the constitutionality 
of the law in question but are rather ••technical'' arguments e.g. that 
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GRAHAM HUGHES 
certain testimony is inadmissible under the laws a evidence or that a 
judge was in error in ruling against the defendant's motion to discover 
part of the prosecution's case. Is it consistent with a posture of civil 
disobedience to raise such pomts? Does the civil disobedient have an 
obligation to renounce all defenses and arguments of a legal nature other 
than an attack m the constitutionality of the law under which he is 
indicted? This question was raised by some in connection with the trial 
of Dr. Spock where issues of constitutionality were raised by the de­
fense alongside a number or other · · technical' · defenses. 
It ce11tainly is consistent with fidelity to law in the broad sense to 
raise defenses which are generally proper in a tnal . But the que�tion here 
of course is whether it � consistent with the appeal to conscience which 
the disohedient is asserting. Perhaps here we must distinguish between 
a whole range of possibilities. At the one extreme it would clearly eradi­
cate all elements of appeal to conscience if the defendant at his trial 
were to exercise his right to stand mute and put the prosecution to its 
burden of proof and then argue that they had simply fa iled to adduce 
sufficient evidence for a. conviction. The notion of an appeal t.o con­
science would seem to include of necessity at least the absence of a 
denial that the act was done by the accused and some positive proclama­
tion of the reasons for doing it. If a proclamation of the reasons for doing 
the act is to be included then this would seem to entail an admission that 
the accused did the act. The necessity for such an admission does not 
mandate a formal guilty plea, for the procedural context of a guilty plea 
may deprive the defendant of a forum for making his appeal to conscience, 
but it is certainly inconsistent with any defense or objection which 
avoid� the opportunity to justify the conduct in question. 
The necessity of not denying the act does not however entail tile 
abandonment of all technical objections. A defendant who is a civil dis­
obedient may surely assert, consistently with his posture of appeal to 
conscience , that the prosecution should present its case :kil a lawful and 
proper manner. For, if he is willing to be convicted, this is only provided 
that Lhe conviction be according to law. Part of what he insists upon in 
his appeal to conscience is that the state should behave in a lawful and 
constitutional manner. There is of course the risk ( if that is the right 
word) that the successful raising of an objection to the prosecution's 
procedures may be sufficiently decisive to result in au acqu1tta 1. Here 
mdeed there may be a choice to be made, fa· the def endaut may t.ake the 
view that the V'd.lue to he preserved by holding the prosecution to full 
legal propriety in its JX"esentation of the case against him is outweighed 
by the added strength that his appeal to conscience will gain from con­
viction and submission to punishment. But the contrary choice, though it 
may have the practical outcome of dilutmg the strength of the appeal to 
conscience , is not irreconcilable with the initial posture of civil dis­
obedience. 
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RESPONSE TO PROFESSOR MARSHALL COH�N 
Professor Cohen has expressly taken issue with what I have writ­
ten on an earlier occasion and here I continue to some extent to di�agt·ee 
with him. h1 his te-xt, with elaboration in a footnote. Professor Cohen 
writes: 
"It has been suggested that when the courts invoke the 'political 
question' doctrine and refuse to adjudicate the i�sues the disobedient 
wishes t.o raise, their action is tantamount to finding that the executive 
is legally free to perform these very actions. But it is far more plausible 
to argue that when they invoke this doctrine they assume a wholly agnos­
tic position on the issues involved and simply enforce as law the deter­
minations of the political branches: ·5 The weakness of Professor Cohen's 
position here seems to be revealed in the curious paradox mvolved in the 
last sentence quoted. 1 do not see how the courts can be said to " enforoo 
as law the determinations of the political branches·· and at the same time 
be said to take "a wholly agnostic position. "  The ruling that the action 
of the executive cannot be challenged in a legal forum with its implicit 
corollary that the mechanisms of law enforcement may be properly used 
to enforce too executive determination. is too much charged with positive 
consequences to be dismissed in this way. 
The point is that a decision of the Supreme Cotu't that an issue is 
not justiciable because i t  involves a political question is itself a deci­
sion of a point of law about the jurisdiction of the Court. As such it 
amounts to a ruling that no tribunal exists which has the legal power in 
the instant case to declare the act of the executive unlawful. Ttais cer­
tainly has a less affirmative impact than a procedure by which the court 
took jurisdiction of the case and interpreted the substantive provision 
of t� constitution in the executive's favor. But it does at the least mean 
that in the instant case the executi ve has a legal privilege to a�t as it 
has done in the bare sense that no institution has the legal capacity to 
declare its action unlawful. 
I must be careful to insist here that I am not falling into the error 
of arguing that a legal duty cannot exist in the absence of enforceability. 
Lawyers are very familiar with situations where a duty is not directly 
enforceable against the one who was in breach but yet remains significant 
for practical purposes of attaching liability vicariously to others. But 
in the political question area the issue is not one of enforceability but 
rather of justiciability. A less rarified example from another field may 
serve to make the point. If, X who is domiciled in New Jersey is run over 
in Newark by an automobile driven by Y. also domiciled in New Jersey 
there is no way at all in which X can maintain an action against Y in the 
courts of New York State. Does this me.an that under the law of New York 
Y did not commit a breach of legal duty when he ran down X? For a law­
yer the only sensible answer to this question must be in tbe affirmative . 
An application of the political question doctrine, though on a much more 
exotic plane , has the same juridical significance. I t  is a holding to the 
effect that no adjudicative tribunal has the power to interpret the limits 
124 
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GRAHAM HUGHES 
of executive power in a given area, carrymg with u the implication that 
challenges to such power can only be n:ade in the poliucal arena. 
Professor Cohen seeks to avoid this conclusion by aqrnmt: that the 
judgment that a legal duty has been breached · · is by no means the exclu­
sive prerogative of the courts ." He suggests that "ttE President. the 
Congresi and even the public may, and often must, make such jud­
Dlents . • • It is perhaps here that the heart o f  the disagreement between 
Profe ssor Cohen and myself emerges. As a lawyer J am uncomfortable with 
a usage which can ref er to a judgment as legal m the absence of any 
norm which can be taken to characterize the Judgment as authontative. It 
is of course true that individuals can make legal judgments which are not 
in themselves authoritative but the notion of legal Judgment here is a 
derivative one which takes color from the existence of some mstilution 
which is empowered to make an authoritative Judgment on the issue. So I 
may make a legal judgment that the Supreme Court has been wrong in some 
of its decisions which invoke the political q11estion doctrine. I would then 
simply be disagreeing with the Court's interpretation or the law of the 
political question doctnne. But it would not make sense for me to con-:. 
tend that while I do not question the application the poilitical question 
doctrine by the Court I still want to argue that the action of the executive 
is tn the some sense illegal. Another way of purling this is to say that 
any argument I may wish to make asserting the illegality of the execu­
tive's action is essentially dependent on a prior argument that the court 
was mistaken in its application of the political question doctrine. and is, 
therefore , a concession that the concept of illegality is dependent on 
locating an authoril:ative tribunal wh1ch, under the law, ought to rule oo 
the question . If Professor Cohen could concede this much. then perhaps 
we are not after all in disagreement. 
I .  Dworkin. Clvll D1sobedlcnc;c, TiiE CASE AGAINST PROSECUTION. 
New York Review of Books. Vol. X, No. t I .  J11ne b, 1968. 
2 .  See Waaserstrom, THE OBLl�TION TO OBE'I' THE LAW. 1 0  U.C. L.A. 
Law Review 780 (1963). 
3. Dworkin, OP. CIT. SUPRA n. I .  
4. Hu1hes. CIVIL DISOBEDIENCE ANO THE POLITICAL QUESTION 
DOCTRINE. 43 N.Y.U Law Rev. I ( 1968). 
S. SUPRA 
6. SUPRA 
125 
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Response to Professor Marshall Cohen

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