A Right to Dissent?
Joseph Raz
II. CONSCIENTIOUS OBJECTION
The main conclusion of the above discussion of civil disobedience is that there should not be a moral right to such disobedience. If in the circumstances of a certain state there is a right to civil disobedience it is a reflection of the inadequacy of its law in not setting the right limit to lawful political activity. Nothing in the arguments leading to this conclusion suggest that it can be extended to the problem of conscientious objection. Civil disobedience is a political act, an attempt by the agent to change public policies. Conscientious objection is a private act, designed to protect the agent from interference by public authority. The two classes of action overlap, but their justification is bound to take different routes; an individual entering the public arena in the name of his right to participate in making collective decisions in the one case as against an individual asserting his immunity from public interference in matters which he regards as private to himself. The case for a right to conscientious objection seems much stronger. Reflection on the nature of liberalism, it seems, may suggest that the very narrow definition of the liberal state given above should be widened to include the institution of a general legal right of conscientious objection, that is, a state is liberal only if it includes laws to the effect that no man shall be liable for breach of duty if his breach is committed because he thinks that it is morally wrong for him to obey the law on the ground that it is morally bad or wrong totally or in part. Though the case for such aview is very strong, so are the considerations weighing against it, and I find myself unable to advocate a general view based on general political principles. The following discussion will be rather inconclusive. It explores in a general way various considerations for and against such a right and various alternative solutions. These when coupled with detailed information concerning the political and social circumstances of a certain country may lead to definite conclusions as to the legal institutions
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appropriate for that country. No attempt at such application will be made here.
1. CONSCIENCE AND RESPECT FOR PERSONS
Conscientious objection is most often discussed nowadays in connection with military service. There may be practical reasons why it is difficult to extend the right to conscientious objection to other fields of the law, but whatever principles or moral reasons there are for recognizing it with regard to conscription apply also to other areas of law.1 Even if it is true that the duty of military service is the only one which requires individuals to kill or to participate in killing and even if this duty requires greater sacrifice of personal goals and desires than any other legal duty, these facts do not make conscientious objection uniquely suitable to conscription. Conscientious objection seems not to be based on a desire to protect individuals from far-reaching consequences to their life due to the law. It is moral objection, not objection in the name of one’s own interest in preserving one’s basic life-style and one’s fundamental plans for the future. Nor does the fact that killing is a matter of grave moral concern matter. This in itself does not raise any doubt in the justification of requiring a man to kill (or indeed to put his own life at risk). The point is not that military service is morally justified. It may not be, but that debate is irrelevant to the present purpose. The point is that if one holds that military service can in principle be justified (by considerations such as the need to prevent death or indignity to other people) then once one is convinced that it is required in certain circumstances the gravity of the requirement does not in itself give rise to any right to conscientious objection. The only way to base such a right on moral principles is to concede that because somebody wrongly believes that military service is morally prohibited for him he should be allowed to opt out. Here lies the main difficulty in justifying conscientious objection. It involves showing that a person is entitled not to do what it would otherwise be his moral duty to do simply because he wrongly believes that it is wrong for him to do so. There are,
1 There are historical reasons for the way Western thought concerning conscientious objection has developed. But this essay deliberately ignores the history of ‘the subject. It aims to present several considerations towards a systematic treatment ofthe subject.
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of course, other kinds of arguments which could be used to justify conscientious objection in some cases. It could, for instance, be argued that to force pacifists to serve in the army is counter-productive for they will make bad soldiers and will spread dissension in the ranks (or alternatively live at public expense in gaol). In totalitarian and similar states the right to conscientious objection is sometimes demanded as a compromise. The real solution to the moral iniquities of those states can only come with the overthrow of the government and the repeal of many laws. This being impossible, let those who feel the oppression most strongly have the partial relief which a right to conscientious objection can bring. This and similar arguments are often valid and valuable. But the purpose of this essay is to examine the principal moral arguments for a general right to conscientious objection, a right to be recognized even in the good state. Therefore, the argument must proceed on the assumption that the law is morally valid and that one should (morally) comply with it. The conscientious objector, it will be assumed, proposes to act wrongly. Should he have a right to do the wrong thing because he sincerely holds mistaken or wrong moral views?2 If there is reason to allow people such a right it is likely to apply to matters other than military service as well. Some time ago a very religious parent objected to his daughter attending school wearing a skirt. Eventually he preferred to emigrate rather than to submit. This shows the depths of his conviction. But he was not a pacifist and would not have objected to military service as such. Surely if there is a right to do the wrong thing because of one’s convictions it should apply to this parent as well. The fact that he prizes highly what we do not does not weaken his case. It is precisely this fact that lies at the heart of the principle of conscientious objection.
So much by way of clarifying the nature of the problem. Set in this way it is easy to see the outline of a utilitarian solution. Even if performing an action would, disregarding the agent’s own attitude to it, be morally obligatory, it may not be so once his attitude to it is taken into account. If the person prefers not
2 For the reasons explained in the previous essay no coherent relativist position concerning moral matters afl-ects this presentation of the issue. Coherent relativism allows the agent to hold moral views. Therefore, it must allow him to reject incompa(il)fc 1)clicf.s as misguided and wrong. Hence the problem of why one should allow another to act immorally just because he holds misguided views.
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to perform it, his preference affects the moral reckoning and may tip the balance. This is most likely to be the case where the preference not to perform the act is intense and where the utility of reluctant performance is small.3 In some such way a utilitarian may defend the right to object to military service without wishing to justify its extension to other areas. In contemporary Western societies conscription is likely to be the only legal requirement which arouses a depth of opposition among pacifists such that the suffering caused to them by insisting on their service outweighs their contribution to security (especially given the availability of acceptable and useful forms of alternative service). This is hardly the place to consider the truth of utilitarianism. Let me mention four features of utilitarian arguments for conscienobjection, two of which I find attractive and two unattractive. The two attractive features are: First, though every individual’s desire to act in accordance with his wrong moral convictions is recognized, it is not allowed absolute force. It has to be considered against other interests and values (for the utilitarian these are all preferences of people-perhaps even other preferences of the would-be objector himself). Second, there for the utilitarian, a similar case to allow a person freedom to pursue other preferences and goals. The first drew back of the utilitarian view is in fact the root of its second advantage.
The utilitarian exempts the objector not because of his moral belief but because of his desire to act according to it. Any desire, for a mink coat, for a polygamous marriage, etc., gives rise to the same considerations of principle. Only the relatively easy and harmless way in which the objector’s claim can be satisfied and the difficulty or impossibility of satisfying other desires without harm to others distinguish them. Most people reflecting on conscientious objection tend to the view that the right of the objector, if he has any, rests on respect for his moral beliefs. To be sure, the objector desires to conform to his beliefs, but it is the fact that those desires reflect a moral belief which distinguishes them from other desires of his and endows them with
3 A utilitarian may wish to defend conscientious objection on the ground that it encourages a propensity to stand up to intolerant government. But it seems to me that it is rather difficult to make out a reasonable case as to how respect for conscientious objection bv a liberal government will encourage people to stand by their principles in general or in the face of an illiberal government in particular.
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a special claim to our respect. Finally, this, like any other utilitarian argument, presupposes that every desire which any person may conceive is a reason for action for any other person (provided he can do something about it). This is a highly questionable assumption which it is extremely difficult to justify. Utilitarianism is only one form of humanism, i.e. of the view which prizes the well-being of persons very highly. Contemporary philosophers prefer to talk of ‘respect for persons’. Respect for persons can and, 1 think, should be interpreted in ways incompatible with utilitarianism.4 Once more it has to be admitted that this is not the place to propound and defend any view of the requirements entailed by respect for persons. It is necessary again to begin by making a bold and undefended assumption. It is that humanism calls for respecting the autonomy of persons, that is, their right and ability to develop their talents and tastes and be able to lead the kind of life they are committed to. The areas of a person’s life and plans which have to be respected by others are those which are central to his own image of the kind of person he is and which form the foundation of his self-respect.
These considerations are here outlined briefly and crudely. But even so they point to the familiar conclusion that inasmuch as respect for persons leads to valuing personal autonomy, it also leads to valuing pluralism. This takes two fundamental forms: first, the creation and protection of conditions for developing people’s talents and tastes in accordance with their nature, in a way which opens for them possibilities of satisfying lives subject to the constraints imposed by the necessities of social co-operation and of securing similar opportunities to all; second, with respect to people with formed tastes and inclinations, creating an environment which enables them to pursue them in any way they like, subject to those same constraints.
It is from this second aspect of pluralism that the argument for conscientious objection derives its force. It concerns people with formed moral views and it claims their right to be faithful to them even if they are misguided. To establish the claim it
4 It is difficlult to know to what extent the view of the foundation of a right to conadentious objection stated below leads to practical conclusions different from a utilitarian argument for a right to object. There is a considerable overlap between them, but they may dive me to a greater or lesser degree depending on the conditions of the society under consideration.
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is not enough to point, as the utilitarian does, to the fact that people generally prefer to conform to their moral views. It is necessary to explain why and how it is that a person’s ability to avoid wrongdoing is central to his self-respect. It is necessary to contrast one’s inability to satisfy many personal goals and desires which is regarded as bad luck and unfortunate and is felt as disappointing and frustrating, with one’s inability to conduct normal life (i.e. out of gaol) while avoiding moral wrongdoing which is perceived as humiliating and degrading.
As was indicated above it is not part of my case that moral convictions, however wrong, have a claim to respect superior to all personal goals. On the contrary, most adults’ vision of themselves is built around some aspects of their life or personality and around some goals such that the preservation of these is crucial to their sense of identity and self-respect. Such personal goals have an equal claim to respect by the state. A law preventing dedicated novelists from pursuing their vocation with the freedom essential to it is as bad, and bad for the same reasons, as a law conscripting pacifists to the army. The same is true of laws making the tenure of offices of state or pursuit of certain professional occupations dependent on declarations of allegiance which people may find incompatible with their moral principles. Here people are faced with a choice of being false to their moral convictions or sacrificing what may well be essential personal goals. Both alternatives are equally evil.
Humanism leads to the ideal of individual autonomy and this to pluralism. These in turn provide much guidance to the general purpose and features of the law and among other consequences they provide a firm foundation for the claim that the law should not coerce a person to do that which he holds to be (however misguidedly) morally wrong. But-and here again the argument outlined agrees in principle with the utilitarian approach-the right not to have one’s conscience coerced which is thus established is merely a prima facie right. It can be overridden to protect other values and ideals. This is inevitable, given that it is a right to do that which is in fact morally wrong which is given to people who will use it for that very purpose. To give it absolute importance is to prefer the morally wrong to the morally right whenever the agent has misconceived moral ideas however wicked’. A sufficient number of sufficiently
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wicked people will be able to create, even if they are a mere minority, a most iniquitous state just by the use of the right to conscientious objection. Surely one does not wish to allow Hitler to perpetrate his atrocities simply because he thinks it his moral duty to do so.
2. CONSCIENCE AND THE PURPOSE OF LAW
The prima facie character of these considerations canvassed above seems sufficient to justify (at least partly) one limitation on one’s right not to have one’s conscience coerced by law. It was noted in the preceding essay that not every case of breach of law which is held by the agent to be morally obligatory for him is a case of conscientious objection. Only when the ground is that the law itself is wrong (at least in part) is it such a case, but not if the obligation to violate the law is thought to be due to a rare combination of circumstances or to any other conditions which cannot be expected to be met by amending the law. This may be no more than an arbitrary distinction or one which at best is justified in terms of the administrative difficulty of extending a right to such circumstances. But it is perhaps possible to justify the exclusion on the ground that such cases are most oftenavoidable by the agent. The circumstances which lead to the conflict between the law and one’s perceived moral duty are normally subject to one’s control and if one desires to remain faithful to one’s moral principles one could, even if at a cost to oneself, prevent them from arising. Hence, especially given the prima facie nature of the claim that the law should not coerce one’s conscience, society is entitled to require the individual to shoulder the burden of his convictions rather than require society itself, which regards them as wrong convictions, to do so. One important category of such occasional conflict between law and conscience in which the agent has no control over the circumstances giving rise to the conflict is that where one’s moral principles require political action whether revolutionary or by way of civil disobedience, in defiance of the law. Here, given the potentially grave consequences of such actions, they should be governed by the principles explained in the previous essay which, in a liberal state, do not allow the claim of an
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erroneous conscience to be tolerated. Too much is usually at stake in such cases. 5
A humanistic society will in general allow the imposition of duties on people only if these are justified on one or more of the following grounds: It must be in the interest of the person subjected to the duty, or in the interest of other identifiable individuals, orin the interest of the public. A duty is in the public interest if its observance benefits, or is likely to benefit, unidentifiable individuals. A duty benefits identifiable individuals if and only if an explicit and non-norm-dependent6 description of the act constituting breach of duty entails the occurrence of harm to an individual (it need not identify the individual in any way other than as the victim of that violation). Murder, rape, theft, assault, libel, breach of contract are examples of this kind. Refraining from speeding, spying, circulating counterfeit currency, polluting the rivers are examples of duties protecting the public. A particular offence may well harm individuals, but whether or not it has done so cannot be deduced from a description of the occurrences of the violation by itself. If there were other drivers around then one’s speeding may have alarmed them or put them at risk; if not, not.
The ground for having a particular legal duty is of great importance in assessing the force of the claim to recognize a right to conscientious objection. The claim is strongest with respect to paternalistic laws, i.e. those whose justification is predominantly in terms of the interests of the persons bound by them (each person’s duty being in his own best interests). It is hard to imagine a situation in which coercing the conscience of a normal adult by law in his own interest could be justified. If the ideals of autonomy and pluralism are not enough to enable a person to pursue his moral convictions at his own expense then they count for very little indeed.’
5 This should not be read as a call for severe sentences in such cases. They should simply be governed by normal penal considerations. Such considerations do suggest that crimes of principle often require a more severe sentence effectively to deter potential offenders, but this is not always so.
6 This condition is meant to rule out description of the act as ‘an offence against the Criminal Law Act no. etc.
7 In recent years some members of the Sikh community conducted a brave campaign to be allowed to wear turbans rather than crash-helmets when riding motor-cycles. It could be said that this is an avoidable duty and that it is not purely paternalistic, being partly in the public interest (to avoid the cost of looking after injured motor-
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The objector’s claim to respect carries least conviction with regard to laws protecting the interests of identifiable individuals. We are hardly likely to tolerate murder, rape, libel, or even violation of property or contractual rights because of a misguided moral belief on the part of the offender. The reason is simple enough.
The legal consequences of such breaches of duty may be a liability to pay damages, they may involve an enforcement of the duty through injunction or specific performance, and they may involve penal measures. As was noted before, it is normally right to expect the conscientious objector to bear the cost to others of his adherence to his principles and therefore there will be little reason in a humanistic state for exemption in normal cases from liability for damages. But often even penal and enforcement measures may be justifiably directed against him. In a humanistic society it is assumed that the law will respect pluralism and will restrain individual freedom of action only rarely, only when vital interests of other people are involved. When this is the case those others should not be made to pay for the conscience of objectors. Hence their liability in damages. Furthermore, in a humanistic society direct enforcement and penal measures will be prescribed only where (1) damages are not adequate compensation, (2) the matter affects sufficiently vital interests of the victim to justify the further intrusion into the liberty of the offenders which such measures involve. When these conditions are satisfied the right to object is normally overridden.
This argument anticipates some of the points raised in the next section. It is an argument based on the prima facie nature of the case for a right to object. It does not deny the force of the claim but insists that in most cases penal and enforcement measures should anyway be invoked only to protect vital interests and in such cases the autonomy of the offender will norm-cycle riders). Still it seems a pathetic example of bureaucratic insensitivity. Their case highlights a growing problem in contemporary Western societies. Increasingly the state is thought to have an obligation to care for the victims of various misfortunes and consequently also a duty to prevent such misfortunes. The necessary measures are defended both on grounds of interest and of paternalistic protection. Unfortunately such measures often involve restrictions of individual freedom. Such restrictions, though some times justified, are often excessive because, among other reasons, they create problems of conscientious objectionally
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be overridden. Where less vital interests are at stake liability should anyway be for compensation only and these are not in most cases excluded by the claim to autonomy. They are a reasonable price for it. They can be thought of as the equivalent of the alternative service normally accepted as a justified price for exemption from conscription. The reasoning is similar: the alternative duty (alternative service, damages) is beneficial (to the public, to the harmed individual); it is not harder to bear than the original duty avoided by the objector but borne by others; it serves more or less indirectly the same or related goals, and it avoids coercing the objector’s conscience. Naturally, these conditions sometimes cannot be met and then alternative service may not be justifiable.
When the person whose interests the law is designed to protect voluntarily agrees to the breach of duty, the case, though formally of the second category (protecting the interest of identifiable others), becomes in essence the same as that of paternalistic duties. This is the reason why a person who claims, however erroneously, that it was his moral duty to aid a friend to commit suicide or to commit voluntary euthanasia has an overwhelming claim that his offence shall not make him liable to the normal legal consequences. His claim must be recognized as exceptionally strong even by those who support the existence of such laws.
Different considerations arise in connection with duties to protect the public interest. Here the claim not to have one’s conscience coerced encounters less opposition from other considerations. The reason is not that the interests of unidentifiable individuals count for less than those of identifiable ones. Obviously these are same individuals and their interests count equally regardless of the legal technique of protecting them. The reason is that laws protecting the public interest normally allow for certain flexibility because of the insignificance of each individual’s contribution. Consider taxation, anti-pollution laws, etc. Most of the time exempting a single individual from the duty will make little or no discernible difference to the protected good. This is generally the case in all public-interest laws concerned with the provision of common goods, whose availability to an individual does not depend on his personal contribution and where the value of individual
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contributions to the generally available benefits is small. Similar considerations affect other public-interest laws such as inchoate offences and others. These very often are concerned with easing the job of the law-enforcing agencies (enabling the police to prosecute for conspiracy or for unlawful possession of firearms people who probably will or did commit serious offences but where this cannot be proved). Here, where the objection affects the inchoate offence but not the complete one there is an obvious case for protecting the objector from criminal liability. (If he objects to the main offence and the connection between the inchoate offence and the main offence is close, then the argument does not apply.) Public-interest laws often concern reducing risk of harm and these often have (as with rules for safe driving) the characteristics of laws providing for common goods.
These comments are very general. 1 have not picked on examples which are particularly likely to be objected to on conscientious grounds. My intention was simply to point to the flexibility such laws allow and which makes them particularly suitable for an exception based on a right of conscientious objection. There is little surprise therefore that laws protecting public interest have traditionally been the main focus of attention of those who claim a right to conscientious objection. Remember, however, that here as elsewhere one is concerned with balancing the right to autonomy as against other interests. Thus if too many people will, in a particular society and at a particular period, claim the right to object they may defeat the interest served by the law and this may be indefensible.
3. FREEDOM OF CONSCIENCE AND A RIGHT TO OBJECT
In the first section we saw that a prima facie right not to have one’s conscience coerced by law is implied by an appropriate interpretation of humanism. The section included various general considerations concerning the kind of laws which it is reasonable to suppose should be subsumed under this right, that is laws which even when right in all other respects should not be enforced against conscientious objectors. No very precise conclusions are possible concerning such balancing questions. All one can say is that generally laws of one category should be subjected to the right while generally laws of another category
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should not. There is another problem, however, which has to be discussed if only in the same general and tentative way: What legal form should the recognition of a right not to act against one’s conscience take? One simple and radical solution is to introduce a special and unified legal doctrine granting a right of conscientious objection which can be invoked to obtain exemption from liability for breach of any of a number of laws. Let us suppose that with respect to some laws the burden is on the objector to apply for a certificate of exemption from an appropriate judicial authority, whereas with respect to other laws there is a choice of applying for an exemption in advance or of raising a defence of conscientious objection when sued for breach of law. Henceforth when talking of a right of conscientious objection I shall have in mind a legal doctrine of this kind. Such a doctrine is a way of recognizing one’s right not to have one’s conscience coerced by law or the right to freedom of conscience, as 1 shall now call this aspect of the ideal of respect for personal autonomy. But is it the only way? Is it a good way? Three major drawbacks seem to be inevitable concomitants of a right to conscientious objection.
First, such a right is wide open to abuse. Entitlement for it depends on a person’s moral convictions. Such matters are hard to establish by independent evidence. The word of the person invoking the right is almost invariably the only direct evidence. The opportunities for abuse are countless.
Second, the existence of the right encourages self-doubt, self deception, and in general undesirable forms of introspection. The exact nature of one’s motives is a matter concerning which even the agent himself may not be too confident. This is especially so in the numerous cases in which one acts out of mixed motives. And almost all one’s important decisions are like that. By making the application of the law to one’s case dependent on one’s motives for action in matters which are normally of some consequence to one’s life the right to object encourages self-doubt, self-deception, and morbid introspection.
Third, unless the right is applied on the basis of a simple declaration by the objector (a method making abuse all the more easy) the institution of a right to object involves sanctioning some degree of public intrusion into the private affairs
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of individuals. The police or other investigating agencies will have appropriate powers to pry and the individual himself will have to account for his moral life before public officials (and possibly in public). It is no adequate answer to this objection that one’s exposure is self-inflicted, since nobody is compelled to apply for exemption. The very existence of the right constitutes an encouragement for individuals to apply for it and in any case freedom of conscience is compromised if it is guaranteed only through compromising other aspects of one’s autonomy, and self-respect, i.e. one’s privacy and one’s dignity.
For these reasons it is preferable to protect freedom of conscience in other ways which are free of such objections. A right to conscientious objection should be introduced only very sparingly and only in the absence of better ways of protecting freedom of conscience.
The main device for protecting freedom of conscience is and must in any case be the avoidance of laws to which people are likely to have conscientious objection. A state which does not impose an obligation of public worship according to state religion will not have to deal with objection to such a duty. Freedom of conscience and the pluralistic character of a state are guaranteed by its self-restraint from dictating action in areas known to be subject to sensitive moral convictions and by the provision of facilities and services as required by people of different moral and religious convictions (adequate possibilities of choice in education, freedom of marriage to members of different religions, etc.). All this is of course very familiar wisdom. The point 1 am urging is that a right to object should in so far as is possible be avoided in favour of general exemptions from law for categories of people identified independently of their moral views. Rather than allow Muslim employees to stay away from work on Fridays, all employees should have the freedom to choose their rest day (or their second rest day). All doctors should have the right to refuse to abort (without having to state any reasons) and so on. Naturally, it will not always be possible to get round the need to have a right to object in this way. It is better, other things being equal, not to have conscription and thus avoid the problem of conscientious objection. But sometimes other things are not equal and conscription is
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justified. It then becomes imperative to recognize the right of objection on moral grounds.8 In summary, there is a strong case for avoiding coercion of even an erroneous conscience. The case is, however, merely a prima facie case. It may be right to comprand override it in favour of other goals. It is, however, particularly strong respecting paternalistic laws and public-interest laws (at least unless the number of objectors is large enough to jeopardize the goal of the law). In devising ways of recognizing the right, the institution of a right of conscientious objection has inevitable undesirable results. It is better to shape the controversial law in a way which avoids its application to controversial cases or, if this is not possible, by exempting potential objectors in ways not dependent on their declared moral beliefs. Within limited boundaries there is, however, room for a right to conscientious objection as one way of protecting autonomy and pluralism.
8 Modern states tend on the whole to avoid imposing specific duties of service on citizens. These have been to a large extent replaced with the levying of taxes, enabling the state to pay for the services it requires which are then provided on a voluntary basis. This trend helps avoid the problem since individuals are not directly responsible for potentially controversial services. It is true that one may object to taxation because of the use made of the money, but this can be sincerely done only by a person who finds that the wrong of contributing money to bad causes outweighs the wrong of withholding taxation and denying his contribution to many worthwhile services.