1. On this distinction, see Joseph Raz, The Authority of Law: Essays on Law and Morality (Oxford: Clarendon Press, 1979) 263; Robert T. Hall, The Morality of Civil Disobedience (New York: Harper & Row Publishers Inc., 1971) at 20–21.

2. On this distinction, see Raz, supra note 1 at 263, 276. For a similar distinction, using different terminology, see Ronald Dworkin, A Matter of Principle (Cambridge, MA: Harvard University Press, 1985) at 106–07. However, it must be borne in mind that some authors attribute a different meaning to the concepts “civil disobedience” and “conscientious objection” than that which has been adopted here.

3. On the “defensive” aspect of conscientious objection, see: Raz, supra note 1 at 276; Dworkin, supra note 2 at 109.

4. Of course, an act may constitute both civil disobedience and conscientious objection, such as refusal to serve in the Vietnam War. See Raz, supra note 1 at 264.

5. The definition is based, with minor changes, on that of Raz, supra note 1 at 263, and that of Hall, supra note 1 at 15.

6. The truth is that the definition that we have proposed for conscientious objection might also embrace many cases of civil disobedience, for sometimes a person might feel it to be his moral obligation to act, by way of violating the law, in order to influence and change certain policies or laws. In other words, an act of calling upon the public, and not just a “defensive” violation of the law, might stem from a feeling of moral obligation (although there may also be cases of civil disobedience in which the desire to violate the law in order to bring about a change in immoral law or policy is present, yet it does not amount to a feeling that a moral obligation exists to act thus). Consequently, certain cases of civil disobedience can be considered as special cases of conscientious objection. The common denominator between these cases of civil disobedience and conscientious objection is the feeling that a moral obligation exists to violate the law; what distinguishes them is the nature of the call to the public, which is absent in “private” conscientious objection.

Despite the common denominator, civil disobedience and conscientious objection require separate discussion. Because of the public-political nature of civil disobedience, it will be treated differently from conscientious objection. Some considerations might support greater sympathy and tolerance for civil disobedience than “private” conscientious objection, since the former is motivated by a desire to improve society, and may even achieve this aim. On social benefit and on sympathy for civil disobedience, see Hall, supra note 1 at 131–32. On the other hand, some considerations might favour less sympathy and tolerance for civil disobedience, precisely because it is not a defensive action. It is a political act, which apparently deviates from the ground-rules of democracy, and which is more dangerous for the mechanism of decision-making. See, e.g., Raz, supra note 1 at 276. Consequently, in this paper I shall concentrate on conscientious objection within the narrow meaning, i.e., objection as a personal-private act, rather than a public-political one.

7. On this distinction, see Raz, supra note 1 at 263. Further on this distinction and its implications, see Michael Walzer, Obligations: Essays on Obedience, War and Citizenship (Cambridge, MA: Harvard University Press, 1970) at 133–35.

8. Many interpret this as being Socrates’ position in the Platonic dialogue Crito.

9. For a detailed discussion along these lines, see Hall, supra note I at 50–75.

10. On the distinction between the two questions, see e.g., Dworkin, supra note 2 at 106.

11. For a proposal along these lines, see Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978) at 206–22.

12. See Hall, supra note 1 at 139.

13. See, e.g., Hall, supra note 1 at 141–45.

14. On this matter, see Carl Cohen, Civil Disobedience: Conscience, Tactics, and the Law (New York: Columbia University Press, 1971) at 76–91; Graham Hughes, “Civil Disobedience and the Political Question Doctrine” (1968) 43 N.Y. Univ. L.R. 1 at 3–4. For a discussion of the various forms of tolerance, see also Kent Greenawalt, Conflicts of Law and Morality (New York: Oxford University Press; Oxford: Clarendon Press, 1987) ch. 15.

15. This is, of course, the starting point of the discussion. It is clear that in the course of the paper, various restrictions will be introduced into the proposal.

16. In the literature, the argument usually appears in the context of civil disobedience, but it is also applicable to conscientious objection.

17. Cf. Hugo A. Bedau, “On Civil Disobedience” (1961) 58 J. of Phil. 653 at 655.

18. Ibid.

19. Only apparently, because it is clear that from a practical point of view, if the defence is adopted, it will contain conditions and restrictions over and above the fact of the violation being motivated by conscience, and whosoever does not fall into the limited scope of the defence will again be pushed out into the arena of the moral problem.

20. For discussions of the distinction, see George P. Fletcher, Rethinking Criminal Law (Boston: Little, Brown and Company, 1978) at 759–62; Paul H. Robinson, Criminal Law Defenses, vol. 1 (St. Paul, MN: West Publishing Co., 1984) at 83–101. For further sources, see B. Sharon Byrd, “Wrongdoing and Attribution: Implications Beyond the Justification-Excuse Distinction” (1987) 33 The Wayne L. Rev. 1289 at note 1.

21. There are two approaches to the question of what is included in the category of justification. All would agree that the category includes those cases in which society judges that in the circumstances described in the defence, it is better to commit the offence. The dispute between the two approaches concerns the question of whether to include in the said category those cases in which society’s attitude to the act is that even though it is not preferable or desirable, neither is it wrongful, i.e., it is permissible from a moral and social point of view. For a list of sources for the two approaches, see Joshua Dressier, “New Thoughts about the Concept of Justification in the Criminal Law: A Critique of Fletcher’s Thinking and Rethinking” (1984) 32 UCLA L. Rev. 61 at 68 note 37. For the purposes of our discussion, I have chosen the approach whereby these cases are included in the category of justification, such that in general, justification can be characterised as a category which includes acts that are “not wrongful” or “permissible” in the eyes of society. Obviously, this category includes those cases in which the acts are preferable or desirable.

22. See e.g., the formulation of this defence in the Model Penal Code, sec. 3.02 (Philadelphia, PA: The American Law Institute, Model Penal Code: Proposed Official Draft (1962)). For a detailed discussion of this defence, see Fletcher, supra note 20 at 774–98; Robinson, supra note 20, vol. 2 at 45–68. There are some systems of law in which it is not sufficient that the harm avoided simply outweigh the harm caused: the former must “essentially” or “substantially” outweigh the latter. See Fletcher, supra note 20 at 786–87; Robinson, supra note 20, vol. 2 at 61–62.

23. As stated above, note 21, there are cases in which conduct which is in general wrongful, is considered under the circumstances not to be wrongful, even if it is not preferable to other conduct. In these cases, too, it is important to inform the citizen that she is permitted to do the act, because it is not right that the criminal law should transmit a message whereby a certain act is prohibited, when the legislator does not, in fact, consider there to be a moral-social reason for prohibiting it. This constitutes an unjustified restriction of liberty.

24. See Byrd, supra note 20 at 1294; Fletcher, supra note 20 at 810–11.

25. For an analysis along these lines, based on Bentham, see Meir Dan-Cohen, “Decision Rules and Conduct Rules: On Acoustic Separation in Criminal Law” (1984) 97 Harv. L. Rev. 625. It must, however, be added that another message exists for the citizen, which can be designated 1A, and it contains the warning, that if she does not submit to the normative message contained in 1, she will be subject to the punishment described in 2. See Dan-Cohen at 631.1 will discuss the message 1A infra (Part B, section 1).

26. Apart from their role on the first plane, it is clear that these defences also function on the second plane, for they inform the judge that if, for example, a person who stole under these circumstances should happen to come before him, she must be acquitted. This, however, is a secondary address, derived from the first, and from the normal rule that a person must be acquitted when it emerges mat she did not commit an offence; since, in defences of the type of justification, what emerges is that in essence, the person did not commit an offence, because of the exception to the prohibition.

27. See a formulation of this defence, for example in sec. 2.09 of the Model Penal Code, supra note 22. And see the discussion of this defence in Robinson, supra note 20, vol. 2 at 347–72.

28. Cf. Robinson, supra note 20, vol. 2 at 223.

29. For a formulation in terms of “understanding” for the accused, see Byrd, supra note 20 at 1290.

30. For emphasis that the concern here is with justice and fairness for the accused, see Fletcher, supra note 20 at 799 and 817, and Dan-Cohen, supra note 25 at 633.

31. See Fletcher, supra note 20 at 808, and Dan-Cohen, supra note 25 at 633.

32. See James Fitzjames Stephen, A History of The Criminal Law of England, vol. 2 (London: Macmillan, 1883) at 107. Indeed, there are those who say that a person in a situation of duress will not be deterred anyway by future punishment: punishment, therefore, becomes pointless, and that, in fact, is the reason for instituting the defence of duress. For sources on this approach, see Robinson, supra note 20, vol. 2 at 349 note 3. As opposed to this, however, it may be argued that cases are possible in which even a person who finds himself in a situation of duress will be deterred—see Stephen, ibid. Similarly, a person in a normal situation will be deterred by the punishment of a person in a situation of duress: cf. Fletcher, supra note 20 at 813–17. As such, it seems that we can agree with Fletcher and Dan-Cohen (supra note 30) that the main consideration is that of justice and fairness towards the accused.

33. Dan-Cohen, supra note 25 at 633.

34. Ibid, at 633–34.

35. Cf. Joshua Dressier, Understanding Criminal Law, 2nd ed. (New York: Matthew Bender/Irwin, 1995) at 196. For the position that there can be a “sanctionless legal duty” even in the criminal law see: Reginald Walter Michael Dias, Jurisprudence, 5th ed. (London: Butterworths, 1985) 244.

36. For a discussion of the practical implications of the distinction, see, e.g., Miriam Gur-Arye, “Should the Criminal Law Distinguish between Necessity as a Justification and Necessity as an Excuse?” (1986) 102 L.Q. Rev. 71; Byrd, supra note 20 at 1332–41; Dressier, supra note 35 at 195–97.

37. Obviously, such a discussion might also be useful for proposals for changing a defence that already exists in the legislation, as well as its scope.

38. On this and other aspects of the requirement of clarity, see Dan-Cohen, supra note 25 esp. at 658–77.

39. And in other cases—to permit, even if not to encourage it. See supra note 23.

40. Although in practice, after enactment of the defence and its publication, it is likely to have an effect on conduct. This, however, is a side-effect—an undesirable one—and it is not the purpose of the defence.

41. The advantage lies in a certain degree of neutralisation of the undesirable side-effect of weakening the deterrent. On this point, see Dan-Cohen, supra note 25 at 639–40. What I have said here concerning a possible advantage has been presented in the framework of the approach whereby even in a situation of duress it is possible to deter, and the defence is granted only due to considerations of justice towards the specific accused—see supra note 32. If we assume that there is no deterrence in situations of duress, then, even though this advantage disappears, this still does not mean that there is something wrong or disadvantageous in vagueness, for in a state of duress, the citizen is ex hypothesis not guided by the law, so that clarity or vagueness will not change anything.

42. Of course, other considerations which support the requirement of clarity must also be taken into account, but in this paper, I discuss only from the point of view of the consideration of guiding conduct.

43. On the point that the weighing up of values in the defence of the lesser evil is conducted according to the values of society and not those of the particular individual concerned, see e.g., Robinson, supra note 20, vol. 2, at 50–52. It should also be mentioned here that the formulation which I have adopted in several places in this paper identifies the values which underlie the laws (“the legislator’s values”) with those of society at large, or at least, those of the majority of the population. On the other hand, it can be argued that sometimes, the actual “legislator’s values” do not in fact reflect those of society. This can happen when opinion on a certain question is equally divided, or when, because of a particular political situation, the legislative arrangement reflects the opinion of only a minority of the population. In this paper, I do not discuss these special situations. I base myself on the assumption, which would appear to be correct for the majority of legislative arrangements, that the legislator represents the values of society.

44. Other defences exist, even of the justification type, which are dependent on a personal characteristic, such as that the perpetrator is a policeman. On this point, and for the opinion that the exemption of a pacifist from the army is a defence dependent upon a personal characteristic, see Kent Greenawalt, “The Perplexing Borders of Justification and Excuse” (1984) 84 Colum. L. Rev. 1897 at 1915–16.

45. Since it is logical to first examine whether the act is permitted, before we ask whether, despite a prohibition, the perpetrator should not be punished. On the primacy of the considerations of the justification type over those of excuse, see, e.g., Greenawalt, supra note 44 at 1899.

46. And cf. Walzer, supra note 7 at 143: “Having scruples is not the same as being good.”

47. In view of the extension of the category of justification to those cases in which the act is morally permitted—though not necessarily desirable, supra note 21—it is important to emphasis that the act of the objector is not permitted according to the state.

48. Raz, supra note 1 at 280.

49. Ibid. at 281.

50. Ibid.

51. See ibid, at 287.

52. Raz, supra note 1 at 281–82.

53. Even though this is coercion only in a weaker sense, for the option of dying is there.

54. It is true that there may be cases in which the fact of being in prison physically prevents a person from doing that which he feels morally bound to continue to do. When the deed is a continuing or repeated act, then when the person is imprisoned as a result of his deed, we are physically preventing him from doing that which his conscience directs him to do. It is clear, however, that Raz is not referring only to such cases, but also to the normal situations in which imprisonment does not force the person, physically, to refrain from acting upon his conscience. A person who is serving a prison sentence because of a refusal to join the army, or because he committed a one-time act of euthanasia, is not being physically prevented from doing that which he feels he is morally bound to do.

55. As against the idea that we are concerned that people of conscience will be deterred by fear of punishment and will act contrary to their consciences, it may be argued that a person who is afraid of spending a few years in jail, and who is therefore prepared to do something which he considers to be wrong, thereby reveals that he is not faithful to the moral belief prohibiting the act, and as such, why should we allow him to commit the offence? This argument can be answered. It presupposes a certain type of “identification test”, viz., no person of conscience is a one who is prepared to subdue his conscience for fear of a prison sentence. If, however, we continue in the same direction, we could also argue that a person is not a person of conscience if he is not prepared to die for the principle in which he believes, for if he is prepared to do something in order to preserve his life, it means that he does not really hold the belief whereby such act is prohibited. This argument ignores the fact that there can be various degrees of adherence to a moral principle. On the top rung, there is extremism—preparedness to die for the principle. Next is a readiness to serve a long prison sentence for the sake of not violating the principle, etc. A person who is prepared to violate the principle for fear of a prison sentence thereby demonstrates that he is not among the most fanatical believers in the principle, but it does not mean that he does not sincerely believe in the principle, and he may even be prepared to sacrifice many things for it, things such as money, standard of living, friendship, or, as sometimes happens in the case of a conscientious objector, to expose himself, even when there is no trial, to the contempt and condemnation of society. For a similar view, according to which a person may be a conscientious objector despite his bowing to threats of harm, see Greenawalt, supra note 14 at 313.

56. See supra note 33.

57. See supra note 25.

58. See supra note 35 and see also infra note 59.

59. This could be demonstrated as follows: Were we to press the state on the question of whether it is interested in this person committing the offence, its answer would not be simple. In a normal defence of justification (such as the defence of the lesser evil), the state often has a real interest in the person committing the offence; at other times, it is simply apathetic. Regarding the defence of excuse, e.g., duress, the state is interested in the person not committing the offence. With respect to the defence we are discussing, the answer of the state is complex, and it goes something like this: In fact, I am interested in the citizen becoming convinced, and in deciding of his own will not to commit the offence (either because he becomes convinced that the value expressed in the law is correct, or because respect for the law and the moral obligation to submit thereto win out in the weighing-up process). If, however, he does not become convinced, and he refrains from committing the offence only for fear of punishment, then I am already “prepared” for him to commit the offence, because I do not wish him to refrain only for fear of punishment.

60. This is from the perspective of the principle of guiding the conduct of the citizen. Other considerations in favour of clarity in the formulation of the law are possible. And see Dan-Cohen, supra note 25 at 658–77.

61. Cf. Yoram Shachar, “The Elgazi Trials—Selective Conscientious Objection in Israel” (1982) 12 Israel Yearbook on Human Rights 214 at 232–50; Leon Sheleff, “Disobeying the Law for Reasons of Conscience” in R. Gavison ed., Civil Rights in Israel: Essays in Honour of Haim H. Cohen (Jerusalem: The Association for Civil Rights in Israel, 1982) (in Hebrew).

62. The truth is that whenever criminal liability is imposed in the framework of the criminal offences, the general freedom of a person to do whatever he pleases is impeded. However, such impediment exists in relation to every criminal offence, and the fact that it exists presumes that the decision has already been made to sacrifice such freedom, so the point does not arise anew at the stage of discussing the defence. In the defence under discussion, however, a need arises to discuss damage of a special type: damage to a person’s conscience.

63. In this vein, see Robinson, supra note 20, vol. 1 at 83–86. And see his debate with Fletcher on this point at 85 note 7.

64. At the same time, it is possible to propose a weaker form of doctrine along these lines, and to say that even though the values of the state are, in its opinion, objectively correct, e.g., that murder is prohibited, there are still some less rigid values to which the state relates differently: even though it “believes” in these values, it is nevertheless prepared to say that they are not morally binding, objectively, upon a person whose conscience tells him that they are bad, e.g., even though the state believes, according to its value system, that people must do military service, it holds that if someone’s conscience directs him against doing so, he is morally permitted not to serve. According to this approach, the legislation—and the sanction—here are designed only for those who believe that morally, service in the army is not a bad thing, but who tend to avoid it because of material inducements, fear, etc., but not because of conscientious imperatives.

This appears to be the approach of Greenawalt, supra note 44 at 1916, but I think that it is tenuous. Moreover, even if we adopt this approach, the scope of the defence will be restricted, a priori, to a small number of offences, i.e., those which protect the “non-rigid” values. As opposed to this, Raz’s reasoning allows for the inclusion of many more offences, for it is not based on the assumption that the conscientious objector does something that is morally permitted. This is another argument for focusing the discussion on Raz’s reasoning.

65. In this vein cf. Walzer, supra note 7 at 138–42.

66. From what I have said it is clear that I do not think it is possible to propose that no conscientious objector should be punished, for a conscientious objector is always acting from “good” motives. A conscientious motive can be a very bad motive indeed, deserving retribution and punishment, if the conscience in question is evil in the eyes of those judging it—in this case, the state. As soon as a positive moral stand is adopted in relation to certain values, in conjunction with a meta-ethical objectivist approach whereby these values bind even those who do not believe in them, then there must be a readiness to declare the conscience of a person who advocates very evil values (in the eyes of the judge) to be bad, and to say that acts perpetrated by virtue there of are done from bad motives. The fact that the motive is a conscientious one is no guarantee that it is good. Let me repeat the words of Walzer, supra note 46, that “having scruples is not the same as being good.” Accordingly, if we assume that the law has an interest in prohibiting a certain action, and to deter even the conscientious objector from doing it (and this is the assumption at this point in the discussion, that there is no defence of the type of justification or anything similar, and we are looking at excuse), then it is impossible to construct an argument in terms of excuse to the effect that in principle, no conscientious objector can be punished, for the motive is always “good”.

67. Fletcher, supra note 20 at 799. Fletcher does not distinguish clearly there between “civil disobedience” and “conscientious objection”, but rather, speaks of “conscientious civil disobedience”. We can, however, use what he says there in our discussion of “conscientious objection” as defined in this paper.

68. Fletcher, supra note 20 at 802–05. It seems that that is the more accepted explanation: see also Robinson, supra note 20, vol. 2 at 222–24 and 348–53.

69. Fletcher, supra note 20 at 806.

70. See ibid, at 808.

71. This statement can be challenged by adopting an approach, according to which the primary aim of punishment is deterrence, and considerations of fairness to the accused constitute merely a safeguard against unjust punishment. However, in order to bypass this safeguard against unjust punishment it is still necessary to determine that the punishment is just, despite the fact that the person’s conduct is dictated by his beliefs.

72. In the context of the question of punishment for beliefs, we can move on to another plane. We can say that we allow ourselves to punish a person for his beliefs, because he bears some guilt in that, despite his having grown up in our society, he “chose for himself different values. This, however, raises another question: to what extent can it be said that a person is free in the choice of his values? On this point, compare the discussion in Robinson, supra note 20, vol. 2 at 438–43 on the proposal that has been made in the literature to recognise a defence of “brainwashing” for people who committed crimes under the influence of brainwashing, i.e., when they were subject to indoctrination that caused a deviation from the given political, religious and social system for the sake of another rigid system, all this being effected by special means such as torture, etc., which change a person’s character. And see Robinson, ibid at 441, who says that there are some who argue against the brainwashing defence by saying that it is irrational to excuse a person whose attitudes and values are shaped by brainwashing, but not to excuse one whose attitudes and values are shaped by other, equally strong influences, such as a difficult family life during childhood, or the rigours of daily existence in a ghetto.

73. The approach according to which we are dealing with a matter meriting protection in the framework of freedom of religion and conscience finds expression also in Hall, supra note 1 at 148. See also: Matthew Lippman, “The Recognition of Conscientious Objection to Military Service as an International Human Right” (1990–91) 21 Cal. Western Int’l L. J. 31 at 35,51–52; Marie-France Major, “Conscientious Objection and International Law: A Human Right?” (1992) 24 Case Western Reserve J. of Int’l L. 349 at 351, 355–56. This approach was also adopted by the United States Congress concerning freedom of religion (Religious Freedom Restoration Act of 1993, 107 Stat 1488, 42 USC §§ 2000bb—2000bb-4). This act was invalidated by the U.S. Supreme Court on June 25, 1997 (City of Boeme v. Flores). For a discussion of this Act see for example: Kent Greenawalt, ‘Quo Vadis: The Status and Prospects of “tests” under the Religion Clauses’ (1995) The Supreme Court Rev. 323.

Contrary to the approach presented in the article, Walzer doubts whether it is possible to base the notion of tolerance towards a conscientious objector on the right the objector has to follow his conscience. At the same time, Walzer advocates tolerance, in certain contexts, not by virtue of recognition of and respect for the right of the individual to freedom of conscience, but out of concern for the welfare of the state. See supra note 65 and accompanying text.

74. On this matter, see the quotation from Raz, in the text accompanying note 52. And see Dworkin, supra note 11 at 215, according to whom it is impossible to say that no one operating from conscientious motives will be punished, for this would make it impossible for the governing body to carry out its policies.

75. Raz, supra note 1 at 283–86.

76. Raz, supra note 1 at 283.

77. The discussion presumes that he is the only one paying the price. I do not wish to relate here to the arguments according to which, in this or that example of ‘paternalistic laws’, society too pays a price.

78. Cf. Greenawalt, supra note 14 at 320.

79. I will return to paternalistic laws infra at note 100.

80. Raz, supra note 1 at 284–85.

81. Ibid, at 285–86.

82. The definition of conscientious objection being like that in part A, section 1.

83. Raz, supra note 1 at 286.

84. On the point that the existence of a large number of objectors is likely to undermine tolerance, see, as well as Raz, Dworkin, supra note 11 at 219.

85. The inclusion of this condition gives rise to practical problems, e.g., can the citizen for whom the defence is intended make assessments of this type? Is it possible to rely on him not to err? I will deal with practical questions of this type in Part E of this article.

86. The opinion that “others should not be made to pay for the conscience of objectors”. We are prepared to be tolerant of conscientious objectors, but not at Hall, supra note 1 at 134–35.

87. Dworkin, supra note 11 at 217–18.

88. Supra note 14 at 318. (He raises the possibility of one exception to this principle at 319.)

89. Raz uses this idea in order to explain why a conscientious objector should not be exempted from paying compensation for a civil wrong, but it can also be invoked in the criminal context, see Raz, supra note 1 at 284.

90. The difference between the two formulations may have implications. The first formulation emphasises the damage to the rights of the individual. In the second formulation, there is no emphasis on rights, and the concern is mainly that damage is caused to, or a burden imposed upon, another person. In the context of a violation, for reasons of conscience, of the laws of murder, assault, theft, libel, privacy and so forth, the difference between the formulations has no significance, for these involve both damage to the individual and damage to the rights of the individual. But we should take note of the example discussed by Dworkin, supra note 11 at 217–19. When a conscientious objector is exempted from military service when only part of the population is called up, a situation is created whereby another person is drafted because of the exemption granted to the objector. A real burden, including mortal danger, is now borne by that other person. Should we say that there, too, because of the fact that a real burden is imposed upon another, the objector should not be tolerated? Dworkin contends that we should not say so. He distinguishes between the case in which the conscientious objection causes damage to the civil rights of an individual, in which case there is no room for tolerance, and the example under discussion, in which no such harm is involved. The draft laws do not reflect a judgement that a person has a moral right to be drafted only after certain other people have been called up. The order in which people are called up is a function of convenience, and also of considerations of fairness, e.g., the son of a parent who has lost a child in the course of military service will not be drafted. As such, conscientious objection poses a possible threat of damage to fairness and utility, but not to civil rights. It is therefore possible to tolerate the conscientious objector.

This then is an example of a difference between the two formulations. Dworkin apparently favours the first, which emphasises human rights. And see also the formulation of Hall, supra note 1 at 134, which emphasises the damage to the rights of another. As opposed to this, according to the second formulation, it can be said that in the case under discussion there is no room for tolerance either, because at the end of the process, the objection causes a real burden to be imposed upon another person. (It is, however, possible to furnish another argument against taking into the account the “burden” on the next draftee, e.g., that the “damage” is too indirect, or that the state is unwilling to consider army service as a “damage” against which protection is required.) I would point out again that in general, the difference between the two formulations has no implications, and from here on I shall deal only with the “regular” cases, in which there is both damage to the individual and to the rights of the individual.

91. See Dworkin, supra note 11 at 214, who says that when the objector is forced to submit to the law, he suffers irreparable injury in that he does what his conscience forbids him to do.

92. That it is possible to talk about different degrees of damage to a person’s conscience is supported by psychological facts. It is clear that we feel different levels of guilty conscience or of self-deprecation in accordance with our own assessment of the gravity of the wrong we have committed.

93. Of course, we can also reject the very position that civil rights have moral superiority over other values. However, in the text I prefer to suggest arguments which are valid even on the assumption that we accept that position.

94. It is arguable that the criminal law ought not to include offences which protect less important rights, such as the right to reputation, the right to privacy and the rights of ownership and possession of property, and that protection of these rights must remain in the domain of tort law. And if the criminal law should deal only with the most important individual rights, there will be no room for recognition of the right to conscientious objection when these important rights are affected. (In this vein, see Raz, supra note 1 at 284–85.) However, I am dealing with the criminal law as it exists in many states, which recognises criminal offences that protect rights such as the right to a good name, to privacy, and to ownership and possession of property.

95. An argument of this type also holds true against the approach that tolerance towards conscientious objection is not a matter of the right to freedom of conscience, and the objector must therefore yield to the rights of the individual. Even if we accord, in principle, priority to human rights, it is clear that there are cases in which the quantitative consideration is decisive in favour of sacrificing the human right to other considerations such as fairness or utility. See, e.g., the restrictions (which are considered to be justified) on human rights imposed in the name of state security.

96. Although it must be admitted that a certain intuitive sympathy exists for the argument that a person should not be a saint to the detriment of others. It lies, possibly, in the fact that we are prepared to accept that a person says directly that he has an interest and it is important for him that he be allowed to prefer this interest over that of another person. It is more difficult for us to accept a person coming and saying mat he has a moral obligation, and it is important that he be allowed to prefer it over the interests of another person. The point might be that the readiness to sacrifice another causes us to doubt the purity of the motives.

97. My discussion up to this point has been at the level of principle. There may be practical reasons for the distinction between laws protecting the individual and those affording protection of the public. I will discuss practical considerations infra Part E.

As against my discussion, it may be mentioned that Raz negates, a priori, any recognition of a right to conscientious objection in cases where “the obligation to violate the law is thought to be due to a rare combination of circumstances …” as distinct from cases in which “the ground is that the law itself is wrong (at least in part)…” supra note 1 at 282. It can therefore be argued that factually, the cases in which we will in general agree to tolerate conscientious objection which affects the individual are those of a rare combination of circumstances, in which in any case the right does not exist. However, even if we agree to this factual assessment, I believe that Raz gives no convincing reason for excluding the category of a “rare combination of circumstances” from the discussion. For this reason, I have not excluded such cases.

98. In the defence of the lesser evil also we are forced to use an abstract formulation, whose application it is difficult to predict. Nevertheless, many states preferred to enact such a defence rather than to forgo it.

99. The opposite problem also exists, not with those who are afraid to act upon the defence, but with those who, because of the abstract formulation, will jump to the conclusion that they have protection, even in cases where the defence is not applicable (see infra part E, on the problem of error).

100. States that have paternalistic laws should not have an absolute right of conscientious objection to them (see supra the text accompanying note 79.) In these states F-2 will apply to paternalistic laws as well. The balancing process might take into account the fact that the self-abasement suffered when a person is forced, for his own good, to act in violation of his conscience, might be greater then that suffered when he is forced so to act for the sake of others.

101. I use the term “value” in the wide sense, as shall be seen below. For a detailed discussion of the question of the philosophical basis of the liberal state, and on the adoption of the position that such a state is not “neutral” from a moral perspective, see Joseph Raz, “Liberalism, Autonomy and the Politics of Neutral Concern” (1982) 7 Midwest Stud, in Phil. 89.

102. This value judgement might, for example, be anchored in a comparison of the punishment for a murderer with that of an offender against a person’s privacy.

103. In order to prevent complication with the question of the ideology underlying specific religious dictates, I shall adopt, for the purposes of ray example, the opinion that the only significance of a Divine commandment is that it is a Divine commandment, and it must therefore be obeyed as a “commandment without reason”, and that there is no recognition of a “human” ideology or value as a basis.

104. Although sometimes, restrictions can be found in this area as well. See the discussion on the question of restricting the freedom of expression in the context of racist remarks in David Kretzmer, “Freedom of Speech and Racism” (1987) 8 Cardozo L. Rev. 445.

105. I have already discussed this above, in the text after note 45, and see also supra note 46. And cf. Hall supra note 1 at 74, 99–102.

106. On die point according to which a person still respects a deed of conscience even when it is judged as being wrong in that it is contrary to that person’s own views, cf. Hall, supra note 1 at 99.

107. It should be pointed out that even if we disagree that the very fact that people openly commit the offence is seen by the public as a mark of respect for the offender, it may still be said that die situation after the fact whereby the judge acquits such a person on the grounds of the defence of conscientious objection (if he happens to be indicted) is viewed by the public as a mark of respect, as is public decision of the prosecution not to indict, and this may be a consideration against instituting the defence.

108. It could be said, in criticism, that it is necessary to distinguish between two contexts in which we talk about “respect” as guiding conduct. There are situations in which we act in a certain way in order to prevent damage to a person’s honour or respect, and in order to avoid degrading and insulting him; and there are cases in which we act in a certain way in order to show our respect for a certain person in positive fashion. When I intend to insult a certain person in the presence of others, I may refrain from doing so at the last moment because I do not wish to impugn his honour. My inaction, however, does not amount to according positive respect for the person. It cannot be said that his honour has increased in the particular situation. On the other hand, if I stand up when an important person enters the room, or clap in honour of a person who has been called up to the podium to speak, these are cases of according positive respect. Thus, it can be argued that the argument made in the text fails to distinguish between different types of conduct regarding respect. Even if we assume that society need not accord positive respect to persons holding racist views, this is not good enough reason to deny the defence of conscientious objection, for the purpose of the defence is only to prevent damage to their honour, to avoid self-degradation, but not to accord them positive respect. Our answer to this could be that there are cases in which, even if we act in a certain manner only in order to avoid causing damage to a person’s respect, because of the circumstances of the case such conduct inherently constitutes a mark of positive respect, or at least, it is viewed as such by observers. For example, if an important person insults me in the presence of others, in a situation in which, had he been someone else, any reasonable person would have returned the insult, and only because of his importance do I refrain from impugning his honour, then, even if my purpose is to refrain from causing damage to his honour, nevertheless, under the circumstances, my silence also constitutes—or at least is seen to be—an expression of positive respect. The same could be said with regard to the present subject. Even if the purpose of granting the defence to conscientious objection is to prevent damage to the self-respect of the objector, an expression of positive respect for the objector and his beliefs is created as an unavoidable side effect (or at least this is how the public is affected). Such a side effect can constitute a reason for not making the defence available.

109. It would appear that according to Rawls, it is possible to distinguish between conscientious objectors on the basis of the contents of their ideologies. In his discussion of conscientious objection, Rawls proposes that the state adopt a different attitude to conscientious objection for reasons of religion than when the violation is motivated by pacifism. He says: “There is a temptation to say that the law must always respect the dictates of conscience, but this cannot be right… the legal order must regulate men’s pursuit of their religious interests …. If pacifism is to be treated with respect… the explanation must be that it accords reasonably well with the principles of justice, the main exception arising from its attitude toward engaging in a just war…. The political principles recognised by the community have a certain affinity with the doctrine the pacifist professes. There is a common abhorrence of war and the use of force, and a belief in the equal status of men as moral persons.” John Rawls, A Theory of Justice (Cambridge, MA: Harvard University Press, 1971) at 370.

110. For example, a racist ideology. And see, Kretzmer, supra note 104, who proposes an explanation for the fact that even if in general we are not prepared to restrict freedom of expression from the point of view of content, such restriction would be justified in relation to racist remarks.

111. This, of course, is only an illustration, and it is possible to change the formulation on different points, including adaptation to a state which has no written constitution.

112. On the question of politicisation of the court in the general context of providing a defence for conscientious objection and civil disobedience, see Hall, supra note 1 at 149–50.

113. On this problem see Greenawalt, supra note 14 at 316–17.

114. There are also considerations according to which it is precisely in the context of the draft that there is more room for tolerance, e.g., from the objector’s point of view, unjustified killing is the greatest wrong. Cf. Wojciech Sadurski, Moral Pluralism and Legal Neutrality (Dordrecht: Kluwer Academic Publishers, 1990) 191. Considerations of efficiency may also arise here. See Lippman, supra note 73 at 36. However, I am not concerned with these questions here.

115. See also Greenawalt, supra note 14 at 317. In many countries there is an exemption from military service for conscientious objectors. In those countries the conscientious objectors usually are required to perform some form of alternative service. See: Lippman supra note 73 at 37–39; Charles C. Moskos & John Whiteclay Chambers, eds., The New Conscientious Objection: From Sacred to Secular Resistance (New York: Oxford University Press, 1993).

116. Cf. Walzer, supra note 7 at 125.

117. They are practical in the sense that these are considerations which support the approach that even if in principle there is room for the defence, practical problems are likely to arise if it is adopted, and it should therefore not be adopted. Certain “practical” problems in specific contexts have already been discussed, such as the problem of politicisation of the courts, and that of a formulation which will allow for predictability.

118. The argument is mentioned—and generally, rejected immediately—in various formulations in many places. See, e.g., Walzer, supra note 7 at 17 note 18; Hall, supra note 1 at 133.

119. Although it is possible to distinguish between the two and to say that the defence of the lesser evil is more important to the state, since by virtue of this defence, “objectively” desirable deeds are done, and the price of not having such a defence could be heavy, e.g., a driver might not go through a red light, even when, for the sake of saving human life, it is necessary to do so. Moreover, it is possible to say that the defence of the lesser evil will have less effect in challenging the habit of obeying the law, since it is more comprehensible to the wider public.

120. For an assessment that the risk is not serious see Walzer, supra note 7 at 17 note 18.

121. Cf. Greenawalt, supra note 14 at 323–24. On the problem of identification, see also Raz, supra note 1 at 287; Lippman, supra note 73 at 33, 38; Major, supra note 73 at 354; Kent Greenawalt, “All or Nothing at all: The Defeat of Selective Conscientious Objection” (1971) The Supreme Court Rev. 31 at 48–50; Joseph E. Capizzi, “Selective Conscientious Objection in the United States” (1996) 38 J. of Church and State 339 at 361–62.

122. Perhaps this is one of the reasons that the English law does not have a general defence of the lesser evil. See: J.C. Smith & Brian Hogan, Criminal Law, 7th ed. (London: Butterworths, 1992) at 251.

123. It is, however, possible to distinguish between them, as in supra note 119, for example. It might also be said that in the defence of the lesser evil, the actor is often a third party rather than the person who is about to be harmed, and therefore there is less fear of error because the actor is more objective. Regarding conscientious objection, on the other hand, the actor is the same person who will suffer damage to his conscience, and he “judges himself and is, therefore, more likely to err.

124. The idea of “advance exemption” can be found in Raz, supra note 1 at 287. Countries which exempt conscientious objectors from military service generally have specialised tribunals which decide upon the applications of the conscientious objectors. See Lippman, supra note 73 at 38.

125. This committee could also make the exemption in certain cases dependent on the objector paying “compensation” to society, which would solve the problem of discrimination: see section 1 in this Part.

126. Cf. the comment of Raz, supra note 1 at 287–88, that granting a defence to conscientious objection will entail a serious invasion of privacy if we are not prepared to rely solely on the statements of the objector, and we conduct investigations etc. This point cannot serve as an argument against the defence, since the citizen is not obliged to invoke the defence, and if his privacy is dear to him, he should forgo the defence. Why should the defence be denied to others? However, Raz’s comment can be used as a consideration against the mechanism of a committee, and in favour of judgement by the court, as I have mentioned in the text. Raz himself does not raise the above point as a reason for negating the defence. He argues that instead of acting through the defence of conscientious objection, it is preferable where possible to avert a conflict of conscience in advance. The way to do this is by the legislator refraining where possible from imposing an obligation on the whole population, and attempting to achieve the legislative aims by voluntary means, e.g., that army service should be on a voluntary basis, and that there should be no obligation to salute the flag.

127. See supra note 100.