Judicial Disobedience, Justice Lemuel Shaw and Commonwealth v. Aves

Abstract

The main purpose of this paper is the analysis of the notion "judicial disobedience”. The author describes two aspects (individual and institutional) and compare them with civil disobedience. The problem is presented in a paradigmatic manner upon the example of case law of American courts relating to slavery in the period of half of the century preceding the outbreak of the Civil War. Based on this, the author constructs a typology assuming four possible opinions of an adjudicating judge based on provisions of law, which are contrary to the judge’s conscience and morality. In this paper the problem is described upon the example of Justice Lemuel Shaw, Chief Justice of the Massachusetts Supreme Judicial Court from 1830 to 1860. However special attention is paid to his judgment in case Commonwealth v. Aves., but his another verdicts have been mentioned as well.

Judicial resistance and the virtues

“…In the current context, judicial resistance has been discussed in reference to modern Central European democracies that found themselves affected by the "rule of law backsliding" (Graver 2022). In theoretical legal debates, the notion of judicial resistance usually pertains to taking up action (or non-action) in defence of the rule of law and judicial independence by individual judges within their juridical capacities (Graver 2018, Zajadło 2022. This understanding of the notion is also adopted in the following argument.…”