Civil Disobedience and the Lawyer’s Obligation to the Law

Abstract

The purpose of this essay is to propose and justify a theory of the proper role of the lawyer faced with issues involving civil disobedience. Given the assumption that civil disobedience sometimes is morally proper, the more difficult question concerns whether civil disobedience might be proper in certain circumstances for general (nonlawyer) citizens, yet still improper for the lawyer, either as individual or as counselor. As described in Part IA, by becoming a member of the legal profession the lawyer takes on special responsibilities, which require the lawyer to make certain personal and professional sacrifices. As described in Part IB, our American legal system, with its Constitution, Bill of Rights, and emphasis on democracy, causes many people to see a close correlation between the rule of law (the notion that there are certain principles of justice with which both governments and individuals must comply) and positive law (the pronouncements of legislatures, courts, and administrative entities). Part IC sets out why, in light of this close identification between positive law and the rule of law, lawyers have a special obligation to act in accordance with the law. Part II of this article discusses the lawyer as counselor. When serving as a counselor, the lawyer provides both raw information and discussion to help the client make a fully informed decision. The lawyer’s role as counselor includes informing the client of his or her options within the law. In order to fulfill this responsibility the lawyer must be able to have a wide ranging discussion with the client. Any limitations on the lawyer’s discussion come from according proper respect for the client’s autonomy.