Some arguments against conscientious objection and civil disobedience refuted

Israel Law Review

Volumn 36, Issue 3, 2002, Pages 227-253

  Enoch, David ^a  

^a HEBREW UNIVERSITY OF JERUSALEM   (Israel)

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[No Author keywords available]

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EID: 33750721194     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700018045     Document Type: Article

References (61)

1. Asa Kasher, “Refusals: Neglected Aspects,” (2002) 36 Israel Law Review 171.
2. Barak Medina, “Political Disobedience in the IDF: The Scope of Soldiers' Right to be Excused from Taking Part in Military Activities in the Occupied Territories,” (2002) 36 Israel Law Review 73.
3. Avi Sagi and Ron Shapira, “Civil Disobedience and Conscientious Objection,” (2002) 36 Israel Law Review 181.
4. Chaim Gans, “Right and Left: Ideological Disobedience in Israel,” (2002) 36 Israel Law Review 19.
5. See Sagi and Shapira, Israel Law Review, at 192 and 203. That Sagi and Shapira conflate the two normative issues (whether acts of disobedience are morally justified, and what is the morally justifiable way for the state to treat those performing such acts) is somewhat surprising, given that the distinction is emphasized even in this very issue, in Gans' article to which they refer in other contexts.
6. See Gans, Israel Law Review, at 24.
7. For some of the relevant references here, see Sagi and Shapira, Israel Law Review, at fns. 3 and 7. Notice that both conscientious objection and civil disobedience are to be clearly distinguished from revolutionary disobedience, the kind of disobedience that aims at overthrowing the government and destroying the current legal and political order. At times, Sagi and Shapira conflate even this distinction.
8. See Sagi and Shapira, Israel Law Review, at 198–199: “A person committing an act of civil disobedience, who, as such, questions the legitimacy of the legal system…”.
9. See also Sagi and Shapira, Israel Law Review, at 215.
10. Sagi and Shapira, Israel Law Review, at 183 seem to think that a commitment of the objector to the generalizability or universalizability of the relevant act is a good mark of civil disobedience rather than conscientious objection. But this is simply false: Someone who - in a paradigmatic act of civil disobedience — illegally blocks roads in order to draw attention to the disputed legal norm need not commit herself to the claim that everyone should block roads. And a Catholic who refuses to kill in a paradigmatic case of conscientious objection does not become any less of a conscientious objector if he thinks that everyone ought to be Catholics, and so to refuse to kill (in similar circumstances).
11. Neither Sagi and Shapira, nor Kasher nor Medina mention this characteristic difference between paradigmatic cases of conscientious objection and paradigmatic cases of civil disobedience, even though it is often mentioned in the literature. See, for instance, David Heyd, “Refusal - Political or Cosncientious?” in Yishai Menuchin, ed. On Democracy and Obedience (Jerusalem, Siman Kria, 1990) 89 [Hebrew]. As will become clear in the next few paragraphs in the text, I do not think it is a coincidence that these writers do not mention this often-mentioned characteristic difference between conscientious objection and civil disobedience.
12. (At one point, Kasher, On Democracy and Obedience, at 177–178 seems to indicate that other cases of civil disobedience — ones violating norms other than the disputed ones - may be easier to justify. But even if this is so - and I am not sure it is -still this does nothing to undermine the point about to be made in the text.)
13. For a reason that is entirely unclear to me, Sagi and Shapira seem to think that another characteristic difference between conscientious objection and civil disobedience is that moral persuasion (understood by them as necessarily universalizable or general) cannot play a part in the motivations of paradigmatic conscientious objectors. This, of course, is a misunderstanding of conscientious objection, for one can protect one's soul from the moral disintegration involved in the violation of one's deepest (and perhaps also perfectly universalizable) moral beliefs. Perhaps this misunderstanding is why they find it necessary to introduce a further distinction, one between “moral” and “private” conscientious objection. See Sagi and Shapira, On Democracy and Obedience, at 182–186. I find the introduction of this further distinction unhelpful, and indeed, later in their arguments Sagi and Shapira treat the “moral conscientious objector” as they do the person engaging in civil disobedience
14. For related suspicions see Heyd (though Heyd is ultimately more sympathetic to the distinction and its significance than I am). Medina too expresses doubts about the normative significance of the traditional distinction between conscientious objection and civil disobedience. See Medina, On Democracy and Obedience at 79–80.
15. See, for example, Andrei Marmor, “On the Forms and Limits of Political Dissent in a Liberal Democracy” available at http://lawweb.usc.edu/users/amarmor/work/political.html
16. See Chaim Gans, Obedience and Disobedience (Tel Aviv, Hakibbutz Mamuechad, 1996) 121–122 [Hebrew].
17. For a critique of this distinction, see Gans, Obedience and Disobedience at 31–34
18. Amir Paz-Fuchs and Michael Sfard,‘The Fallacies of Objections to Selective Conscientious Objection,” (2002) 36 Israel Law Review 111. Medina's suggestion to amend the global-selective distinction or replace it by what he calls the political-nonpolitical distinction suffers, I think, from many of the difficulties highlighted by Paz-Fuchs and Sfard and by Gans.
19. H.C. 7622/02, Zonshein v. Judge Advocate General, 57 (1) P.D. 726.
20. For the English translation of the Zonshein case, see this issue of the Israel Law Review: “Zonshein v. Judge Advocate General,” (2002) 36 Israel Law Review 1. Citations below refer to the English translation in this issue.
21. For this point see also Gans, Obedience and Disobedience, Israel Law Review, at 121
22. Medina, Israel Law Review, at 92.
23. I think Gans believes that this is indeed the case, at least with regard to cases of coercive civil disobedience. See Gans, Israel Law Review, at 47.
24. Even Sagi and Shapira seem to grant this much. See Israel Law Review at 192, though given their misunderstanding of what over-determination consists in (to which I return below), it is not clear to me what exactly they intend to be granting here.
25. Alon Harel, “Unconscionable Objection to Conscientious Objection: Notes on Sagi and Shapira,” (2002) 36 Israel Law Review 219. Harel raises an interesting question -whether legal or moral protections that apply to actions performed from certain motivations automatically apply also to actions that are motivationally over-determined, with one protected and one unprotected motivation. I am not sure what the answer to Harel's question is in general, but the above arguments regarding the applicability of autonomy-related considerations convince me that at least in our case the protection to which conscientious objectors are entitled applies (prima facie) to cases that are motivated both by conscientious-objection-like motives and by other, presumably unprotected ones.
26. And that's a good thing, too, for this allows me not to address their sketchy discussion of the objectivity of sociological facts (or lack thereof) (See Sagi and Shapira, Israel Law Review, at 186–191), one that is as philosophically amateurish as it is irrelevant.
27. The example loosely follows one Korsgaard gives in a very different context. See Christine Korsgaard, The Sources of Normativity (Cambridge, Cambridge University Press, 1996) 26.
28. Sagi and Shapira's discussion presupposes that motivational over-determination requires that the distinct motives be independent, and at one point they say so explicitly. Sagi and Shapira, The Sources of Normativity at 194–195. Nowhere do they argue for this claim.
29. See Sagi and Shapira, The Sources of Normativity, at 197.
30. Though I couldn't find an explicit statement by Kasher to this effect, this seems to me a natural understanding of his discussion, especially when he voices doubts regarding the proper understanding of conscience in our context. See Kasher The Sources of Normativity, at 178–179.
31. But see note 4, above. For the point in the text made in the context of cases of Israeli refusal, see Heyd, The Sources of Normativity, at 92.
32. This is true also for most - though not all - of the considerations Medina employs in arguing that political refusals - unlike nonpolitical ones (in the sense he stipulates for these terms) - should not be tolerated. See Medina, The Sources of Normativity, at 95–104.
33. This is a central theme for Kasher. Kasher, The Sources of Normativity, at 176–177.
34. See also Medina, The Sources of Normativity at 95–100.
35. This is a central theme for Medina, The Sources of Normativity at 95–100.
36. Zonshein, The Sources of Normativity, at 14.
37. For instance, Kasher, The Sources of Normativity, at 174–175. Notice that all of Kasher's arguments -about, for instance, the requirement to inflict as little harm as possible on the democratic infrastructure of the state - crucially depend on such arguments from consequences. If the consequences he envisions (weakening the army, harming the rule of law) are unlikely to occur, or if the consequences of alternative courses of action are even worse, such arguments do not get off the ground. So even those of Kasher's arguments that do not look like arguments from consequences collapse under the pressure of the objections to arguments from consequences in the text.
38. See, for instance, Sagi and Shapira's claim. Sagi and Shapira, The Sources of Normativity, at 198–199. that the consequences of mixed-motives-refusal are more severe than those of civil disobedience proper.
39. For similar points made in the current context (as a criticism of the Israeli Supreme Court's decision in the case of Zonshein), see Gans, The Sources of Normativity, at 42–43.
40. Medina explicitly acknowledges that for the arguments against refusal to be complete such support must be supplied. Medina, The Sources of Normativity, at 98.
41. MT 151/03, The Military Attorney General v. Matar et. al. (unpublished) (section IV 8 (iii); page 87).
42. See Medina, The Sources of Normativity, at 95–100.
43. For a related point, see Gans, The Sources of Normativity, at 114.
44. See Medina, The Sources of Normativity, at 82–86.
45. See Gans, The Sources of Normativity, at 34–38 and 25–31.
46. See Gans, The Sources of Normativity, at 52, footnote 51.
47. Sagi and Shapira's claim that this point by Gans “chillingly compares soldiers serving in Judea, Samaria and Gaza with suicide bombers” (Sagi and Shapira, The Sources of Normativity, at 208–209) is thus not only philosophically groundless, but also rather clearly made in bad faith.
48. Sagi and Shapira, The Sources of Normativity, at 201–207.
49. Sagi and Shapira, The Sources of Normativity, at 204–205.
50. Gans' truck example — where given that no one else will stop to help push the truck, and that one cannot push it by oneself, one has no duty to stop and try (hopelessly) to help — is an example of a case where one is entitled to take into account the expected violations of the very duty under discussion. Gans, The Sources of Normativity at 53–54. The example that follows here is one where one is required to take into account the expected violations of the very duty under discussion.
51. Sagi and Shapira's discussion of the truck example is another example of gross misunderstanding, intentional misrepresentation, or both. They write: “Passers by who listen to Gans' advice … will avoid giving assistance with the excuse that each one of them cannot remedy the situation by himself. The owner of the truck will obtain assistance, in Gans' world, only if coincidentally four people happen upon the spot simultaneously.” Sagi and Shapira, The Sources of Normativity, at 207. This is, of course, false. Gans argues that if you know others won't stop to help, then given that you alone cannot push the truck you are under no obligation to try. For your obligation to assist the truck driver to kick in all that is necessary is that it is at least somewhat likely that if you stop to assist her so will sufficiently many others to make the help effective. There is no requirement that the four people required for effective help “happen upon the scene simultaneously”, and if your very stopping will increase the likelihood of others stopping, you should take this too into account.
52. Notice, by the way, that this example also shows how tendentious Sagi and Shapira's choice of terminology is. For clearly, there is nothing egoistic or egocentric about taking into account in my deliberation the fact that the other person is not likely to attempt a rescue herself. Indeed, nothing is more altruistic than my jumping into the water to save the drowning child. Relatedly, at one point. Sagi and Shapira say that according to Gans, refuseniks must hope that others will violate their duty to refuse (for otherwise they - the refuseniks - will have acted wrongly). Sagi and Shapira, The Sources of Normativity at 204–205. This is, of course, false: A refusenik need only believe, not hope, that others will violate their duty to refuse, just as in the example in the text I need only believe, not hope, that the other person will violate her duty to rescue.
53. For a consequentialist-friendly attempt to provide such an account — one that, to an extent, entitles one not to give to famine relief more than one would be required to give had everyone given their share - see Liam Murphy, Moral Demands in Nonideal Theory (Oxford and New York, Oxford University Press, 2000).
54. For one discussion of the accusation (addressed at Kantians) of utopianism, of not taking proper account of the immoral behavior of others, see Thomas Hill, “Kant's Utopianism,” in his Dignity and Practical Reason (Ithaca and London, Cornell University Press, 1992), 67.
55. Sagi and Shapiro, Dignity and Practical Reason, at 214.
56. Indeed, if following Sagi and Shapira's advice will make my refusal more effective.as a means to what I think of as the proper ends here, then it will ipso facto make my refusal more dangerous from the point of view of the state, enabling Sagi and Shapira to demand yet harsher sanctions to be imposed on me, sanctions which (following their advice) I will not object to, thus becoming even more effective, and more dangerous, and so subject to sanctions that are harsher still, and so on, ad inifinitum. For somewhat similar advice - this time offered in good faith - and some relevant discussion, see Gans, Dignity and Practical Reason, at 49–50.
57. At one point Sagi and Shapira, Dignity and Practical Reason, at 197 write that “by the very act of refusal they [refuseniks] position themselves as accusers and not as persons desirous of protection or leniency.” The point in the text suffices to refute the implication that refuseniks cannot consistently be both.
58. The same point suffices also to refute Sagi and Shapira's claim that willingness to pay the price serves as “a sign of their recognition of the fact that the change must be carried out by society as a whole” (Dignity and Practical Reason at 212), for even if there is room for this symbolic meaning of the willingness to pay the price, clearly it does not vindicate punishments of arbitrary severity.
59. At times, Sagi and Shapira, Dignity and Practical Reason, at 183 write as if the relevance of the willingness-to-pay-the-price intuition is evidential in character - it gives spectators, and perhaps even the refusenik him - or herself, much needed evidence as to the sincerity of the act of refusal. But I see no reason to believe that no other evidence for such sincerity is available or sufficient, and even if this were the case still this would not suffice to undermine the justification of the refusal.
60. Medina, Dignity and Practical Reason, at 100–104 discusses such fairness-considerations, but he does so in the context of determining the proper reaction of the state to acts of refusal, not in the context of the evaluation of such acts themselves. And this complicates matters significantly: Citizens may be required by fairness to obey the law, but it seems to me much less plausible to claim that the state is required by fairness to punish citizens who do not
61. See Gans, Dignity and Practical Reason, at 108–111.