Right and left: Ideological disobedience in israel

Israel Law Review

Volumn 36, Issue 3, 2002, Pages 19-71

  Gans, Chaim ^a  

^a TEL AVIV UNIVERSITY   (Israel)

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EID: 84876286337     PISSN: 00212237     EISSN: 20479336     Source Type: Journal    
DOI: 10.1017/S0021223700017970     Document Type: Article

References (68)

1. Elyakim Ha'etzni, “Civil Disobedience in the Perspective of the Crisis in Israeli Society,” in Yehoshua Weinstein, ed. Disobedience and Democracy (Jerusalem, Shalem Publishers, 1998) 183, at 200–201. [Hebrew]
2. Disobedience and Democracy.
3. Haetzni, Disobedience and Democracy, at 197–198.
4. Itay Asher and Uri Yablonka, “The New Objectors,” Ma'ariv, 30 June, 2003 p. 2 [Hebrew]
5. Nadav Shragai and Moshe Reinfeld, “Rabbis, Encourage Officers to Refuse Evacuating Settlements,” Ha'aretz, 11 June, 2003 p.1 [Hebrew]. According to the Ha'aretz report, “One of the foremost Rabbis of Judea and Samaria, previously the Head of the Yesha Rabbinical Committee, Rav Zalman Melamed, met yesterday with the General of the Central Command, Moshe Kaplinsky and told him to disobey the order to evacuate settlements, and to resign from the General Staff. Rabbi. David Dudkevitz too, the Rabbi of the Yitzhar settlement, met yesterday with two brigade commanders whose troops were scheduled to participate in the evacuation of populated outposts, and requested that they disobey the order.” Neither the generals nor the commanders have found it necessary to meet with intellectuals of the left prior to fulfilling orders to guard the settlements. The following comments may explain why.
6. Ha'etzni, Ha'aretz at 196.
7. Ha'aretz.
8. Shlomo Avineri, “Obedience and Democracy,” in Yehoshua Weinstein ed. Disobedience and Democracy (Jerusalem, Shalem Publishers, 1998) 165. [Hebrew]
9. Avineri, Disobedience and Democracy, at 171.
10. Disobedience and Democracy.
11. For a similar argument, see Amnon Rubinstein, “Selective Disobedience” Ha'aretz, 25 February, 2002 [Hebrew]. The argument commands extensive popular support. According to the prevalent view, the legitimization of left wing disobedience compels a parallel justification of right wing disobedience, and vice versa. After completing relatively final versions of this article, I heard Rav Yuval citing Rubinstein's claim in a discussion concerning the Pilots' Letter of Refusal, conducted in Tel-Aviv University in October 2003.
12. There is a complication here. For ultimately laws are the result of a dispute resolving procedure which those subject to them agreed to accept upon themselves, or which they should agree to accept, at least when it is democratic. I discussed this subject elsewhere (Chaim Gans, Philosophical Anarchism and Political Disobedience (New York, Cambridge University Press, 1992) 94–161. My conclusion there ultimately was the same as it is here. Consequently I will not discuss the possible complication here.
13. MC 3/57 Military Prosecutor v. Milenki, PM 17 90.
14. Ha'etzni, PM, at 190.
15. This question is discussed in far greater detail in Peter Singer, Democracy and Disobedience (New York, Oxford University Press, 1973)
16. Gans, Democracy and Disobedience, at 94–119.
17. For a discussion of the Sikh example see Brian Barry, Culture and Equality (Cambridge, Harvard University Press, 2002) 53–54, 152.
18. The issue of conscientious objection is discussed further in: Joseph Raz, The Authority of Law (Oxford, Clarendon Press, 1979) 262–289
19. Gans, The Authority of Law.
20. I discuss this issue in greater detail in Philosophical Anarchism and Political Disobedience, The Authority of Law
21. there is a particularly detailed, important discussion in Raz, The Authority of Law.
22. H.C. 4062/95, Epstein v. Minister of Defense (unpublished 26.7.95)
23. H.C. 2700/96, Barnovsky v. Minister of Defense (unpublished 29.4.96)
24. H.C 1380/02, Ben-Artzi v. Minister of Defense, 56(4) P.D. 476
25. H.C 470/80, Algazi v. Minister of Defense (unpublished)
26. H.C. 630/89, Michnas v. Chief of General Staff (unpublished 17.10.89)
27. H.C. 7622/02, Zonshein v. Judge Advocate General 57(1) P.D. 726. [hereinafter: Zonshein].
28. For an English translation of this case see this issue, “Zonshein v. Judge Advocate General,” (2002) 36 Israel Law Review 1. Citations below refer to the English translation in this issue.
29. Gillette v. United States 401 U.S. 437 (1971).
30. Zonshein, U.S., at 11.
31. Zonshein, U.S. at 14.
32. U.S. at 15.
33. U.S., at 14.
34. U.S., at 14.
35. For a detailed analysis of these points in Marshall's decision in the Gillette case, see the excellent article of David Malament, “Selective Conscientious Objection and the Gillette Decision,” (1972) 1(4) Philosophy and Public Affairs 363. Malament's critique of Marshall also applies to Barak.
36. See Zonshein, “Selective Conscientious Objection and the Gillette Decision,” at 14.
37. I have discussed this issue in detail in the past. See Gans, “Selective Conscientious Objection and the Gillette Decision,” at 138.
38. The discussion presented here, regarding the possibility of justifying intolerance towards justified disobedience, represents a drop in the ocean of what there is to be said on the topic. In my opinion, Raz made the most important contribution to the discussion in his article (see Raz, “Selective Conscientious Objection and the Gillette Decision,”).
39. See Avi Sagi and Ron Shapira, “Conscientious Objection - A Critical Examination of the Refusal of Service in the Territories Under Current Circumstances”, position paper, dated 25 July 2003, appended to the Respondents file in the Zonshein case, at 1.(unpublished).
40. See also Avi Sagi and Ron Shapira, “Civil Disobedience and Conscientious Objection,” (2002) 36 Israel Law Review 181.
41. This is in accordance with the comments of David Heyd, in a note dated 9 October 2002 (unpublished), which discusses Zonshein's petition, and the position paper of Shapira and Sagi. Heyd submitted his note to the Petitioners' attorney in Zonshein, responding to contentions made by Shapira and Sagi regarding his article, in David Heyd, “Objection - Political or Conscientious (or: Is there a Border between Civil Disobedience and Conscientious Objection)?” in Yishai Menuchin, ed., Democracy and Obedience (Jerusalem, Siman Kria, 1990) 99–110. [Hebrew].
42. This would be the case if each of the motives, the conscientious and the political - were independently sufficient to motivate disobedience, even in the absence of the other motive. Avi Sagi and Ron Shapira accept this notion in there second position paper named “Conscientious Objection - Supplementary Comments to Position paper” dated 20.10.02, p. 3 (unpublished) which is a rejoinder to papers submitted by Raz, Heyd and Harel in response to their original position paper.
43. See also Sagi and Shapira” Civil Disobedience and Conscientious Objection”, “Conscientious Objection - Supplementary Comments to Position paper”.
44. In part 4 of the document referred to in the previous note, Shapira and Sagi attempt to argue that if an act is simultaneously an act of civil disobedience and of conscientious objection, then it should be treated as an act of civil disobedience and not of conscientious objection. On the other hand, Alon Harel (see Alon Harel, “Unconscionable Objection to Conscientious Objection: Notes on Sagi and Shapira,” (2002) 36 Israel Law Review, 219.
45. Also see Alon Harel “A Critical Examination of a Critical Examination of the Refusal to Serve in the Territories under Current Circumstances, Is it Conscientious Objection”, p. 7 http://mishpatim.mscc.huji.ac.il/newsite/segel/harel/pub/brief2.pdf), argues that it should be regarded as an act of conscientious objection and not of civil disobedience.
46. Harel's position is based on an analogy to a case in which A killed B both because he wanted to murder him and in self-defense. According to Harel, the existence of a motive for murder in these cases is not a sufficient reason for conviction for murder. Shapira and Sagi maintain that Harel's position is incorrect and that most scholars have the opposite view, in other words, that in these kinds of cases, there should be a conviction for murder. Moreover, they further contend that even if Harel's conclusion was right regarding the dual motivation for murder, that case is not analogous to acts that are simultaneously acts of civil disobedience and conscientious objection. This is because within the framework of criminal defenses, self-defense is a plea of justification whereas conscientious objection is a plea of excuse. This is not an appropriate forum for discussing whose position is correct, Harel's or Sagi-Shapira's. Moreover, the substantive question of whether the fact that the self-defense plea is a justification or an excuse is not relevant in our context because there is no need to regard the exemptions given to conscientious objectors as criminal defenses. They can also be regarded as simple exceptions to rules. (For a discussion of the possible legal methods for expressing tolerance with respect to conscientious objection, see Gans, “A Critical Examination of a Critical Examination of the Refusal to Serve in the Territories under Current Circumstances, Is it Conscientious Objection”,). At any rate, the appropriate official attitude regarding acts which are both acts of civil disobedience and of conscientious objection should be based on an integrative understanding of both aspects, as I have attempted to do in the text adjacent to this note. I see no compelling reason for the treatment of such acts as if their two aspects were mutually exclusive.
47. For a discussion of the varying degrees of severity of acts of civil disobedience on the one hand and conscientious objection on the other hand, see Gans, “A Critical Examination of a Critical Examination of the Refusal to Serve in the Territories under Current Circumstances, Is it Conscientious Objection”.
48. In part 4 of their position paper (see “A Critical Examination of a Critical Examination of the Refusal to Serve in the Territories under Current Circumstances, Is it Conscientious Objection”)
49. Shapira and Sagi rely extensively upon my comment in Gans, “A Critical Examination of a Critical Examination of the Refusal to Serve in the Territories under Current Circumstances, Is it Conscientious Objection”, that “the considerations justifying a tolerant attitude towards personal conscientious objection do not justify a tolerant attitude regarding persuasive and coercive civil disobedience.” This contention is correct and it is similarly correct that in my book I also made comments to that effect (even though I share no part in Sagi and Shapira's concept of “personal conscientious objection” and its normative implications - which I cannot discuss within here). However, Shapira and Sagi quote my comments regarding the severity of acts of civil disobedience vis-à-vis acts of conscientious objection, creating the impression that my comments support their contention that the dissenters of “Courage to Refuse” should automatically be judged stringently, as if their actions were nothing more than acts of civil disobedience. Creating this impression is misleading, as evidenced from my comments in the text adjacent to this footnote.
50. The case of Ben Artzi mentioned above (Ben Artzi, “A Critical Examination of a Critical Examination of the Refusal to Serve in the Territories under Current Circumstances, Is it Conscientious Objection”) is a case in point, and there are also other, more prominent examples.
51. See Sagi and Shapira, “A Critical Examination of a Critical Examination of the Refusal to Serve in the Territories under Current Circumstances, Is it Conscientious Objection”. The argument of Sagi and Shapira described there appears in part 2 of their position paper (mainly in section “C”).
52. What this actually means is that the generalization principle is essentially a formal principle and it is difficult to derive significant substantive conclusions from it. The recognition that the generalization principle cannot be a source for serious practical moral insights is a commonplace in the pertinent philosophical literature on this principle. See e.g.: David Lyons, Forms and Limits of Utilitarianism, (Oxford, Oxford University Press, 1965).
53. (For an enlightening discussion see Edna Ullman-Margalit, The Emergence of Norms, (Oxford, Oxford University Press, 1977) 53–58.) Refusal to serve in the Territories does not satisfy that condition.
54. Shlomo Avineri, “Not in the Name of Gandi and Martin Luther King”, in Ha'aretz, 5 August 1995 [Hebrew].
55. A few pages after his chronicle of civil disobedience in Israel, Ha'etzni (See Ha'etzni, Ha'aretz,) writes: “The Israeli left was the first to place the subject of civil disobedience as an elaborated doctrine on the public agenda, in the contexts of the Lebanese Lebanon War and military service in Judea Samaria and the Gaza Strip…it was only later, when what is referred to as the “Peace Process” began to gain momentum, that the accords of civil disobedience also began to be heard from the other side too.” These remarks of Haetzni do not contradict his chronicle of disobedience, if his intention is that the left preceded the right in its theoretical discussion of the issue of civil disobedience. In this context, as in others too, the right prefaced “we will do” to “we will listen”.
56. Sagi and Shapira, position paper, Ha'aretz, at part 3.
57. I am speaking of utilitarianism. For criticism on this point, and the surrounding controversy, see John Mackie, Ethics Inventing Right and Wrong, (London, Penguin, 1977) 129–134
58. J.J.C. Smart and Bernard Williams, Utilitarianism, For and Against, (Cambridge, Cambridge University Press, 1973), 77–150.
59. See also Samuel Scheffler, The Rejection of Consequentialism, (Oxford, Clarendon Press, Revised Edition 1994).
60. See for example, Immanuel Kant, Groundwork to the Metaphysics of Morals, trans. Mary Gregor, (New York: Cambridge University Press, 1996).
61. See Smart, Williams, Groundwork to the Metaphysics of Morals, at 98–99.
62. See Sagi and Shapira, position paper, Groundwork to the Metaphysics of Morals, at part 3.
63. However, Shapira and Sagi did not follow the line dictated by their argument that that the Occupation is justified from the perspective of jus ad bellum. The reason is that it would have compelled a conclusion contradicting their contention that soldiers should serve in the Territories because of their “responsibility to ensure that evils are not committed” Groundwork to the Metaphysics of Morals.
64. See also Groundwork to the Metaphysics of Morals.
65. Presumably, my responses to Kasher could be inferred from the discussion of the precedent argument, and also from the discussion of democracy as the basis of the obligation to obey in Gans, Groundwork to the Metaphysics of Morals.
66. For a more detailed discussion of this distinction in the context of the obligation of obeying the law, including subtleties which I cannot address here, see Gans Groundwork to the Metaphysics of Morals.
67. See Ha'aretz, 11 September 1988 Ha'ir, 16 June 1989, p. 33 [Hebrew].
68. Shlomo Avineri, Yediot Acharonot, 10 November 1995, p.22 [Hebrew].