¹ Ha'etzni, Elyakim, “Civil Disobedience in the Perspective of the Crisis in Israeli Society,” in Weinstein, Yehoshua, ed. Disobedience and Democracy (Jerusalem, Shalem Publishers, 1998) 183, at 200–201Google Scholar. [Hebrew]

² Ibid.

³ A few examples of this will be mentioned in the course of the article.

⁴ Ha'etzni's list contains 21 items, the last of which is the threat of disobedience originating in both the right and the left. The list is not comprehensive and additional examples could be cited from both sides of the political spectrum. His description of ideological disobedience in Israeli society appears to be more accurate than the depictions given by others to the extent that he lists far more cases of right-wing disobedience than of left-wing disobedience.

⁵ Haetzni, supra n. 1, at 197–198.

⁶ Asher, Itay and Yablonka, Uri, “The New Objectors,” Ma'ariv, 30 06, 2003 p. 2 [Hebrew]Google Scholar; Shragai, Nadav and Reinfeld, Moshe, “Rabbis, Encourage Officers to Refuse Evacuating Settlements,” Ha'aretz, 11 06, 2003 p. 1 [Hebrew]Google Scholar. 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.

⁷ Ha'etzni, supra n.1, at 196.

⁸ Ibid.

⁹ Yeshayahu Leibowitz was a notable and prominent exception to the position generally adopted by the political and spiritual leadership of the left, i.e. opposition to the refusal to serve in the Territories. Both his prominence and his isolation only highlighted the extent and the significance of his rejection by the left wing leadership. Later on, Shulamit Aloni joined the refusal camp and she too may have paid a price by being ousted from the active leadership of the Left wing of the Knesset. Knesset Members Roman Bronfman and Zahava Gal'on are the other two exceptions to the general left wing rejection of ideological disobedience by refusal to serve in the Territories.

¹⁰ Avineri, Shlomo, “Obedience and Democracy,” in Weinstein, Yehoshua ed. Disobedience and Democracy (Jerusalem, Shalem Publishers, 1998) 165Google Scholar. [Hebrew]

¹¹ Avineri labors through two pages (169–171) to explain why the two paradigms of civil disobedience in the United States cannot be regarded as examples of disobedience in defiance of the majority will. The first is David Henry Thoreau, who protested against slavery in the nineteenth century, and the second is Martin Luther King, who protested against racial discrimination in the 1960's. While both cases involved a rebellion against the majority-supported laws of the states concerned, viewed from the perspective of the Federation of United States, these States were in fact in the minority. Avineri's effort to demonstrate that the will being protested against in these cases was the minority will, as distinct from the majority will seems to imply that had there been a federal majority in support of slavery and racial discrimination, then both Thoreau and King would have owed allegiance to the laws which established the slavery and racial discrimination.

¹² Avineri, supra n. 10, at 171.

¹³ Ibid. For a similar argument, see Rubinstein, Amnon, “Selective Disobedience” Ha'aretz, 25 02, 2002 [Hebrew]Google Scholar. 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.

¹⁴ This article is not an appropriate forum for Kant scholarship, nor am I a Kant scholar. Nonetheless, it must be pointed out that Avineri falls into one of the basic errors that tend to plague those who apply Kant's universalization test. The practical moral instructions to be derived from this test depend on the description of the action for which moral guidance is required. Since all actions may be described in an infinite variety of ways, appropriate application of the universalization test requires choosing the relevant description of the act being considered. If a person considering refusal to serve in the Territories justifies his potential act by stating that “I will disobey a legal order supported by the majority, if I don't agree with it”, then it could correctly be argued that the universalization of this maxim would jeopardize the viability of the entire democratic political order. But this is not the justification for refusal to serve in the Territories, which is generally presented by dissenters. Their objection is premised on the maxim I formulated above: “I will disobey a legal order supported by the majority which commands me to oppress foreign peoples”. As I argued, the universalization of this maxim accommodates both the survival and even the flourishing of democratic regimes. In fact, it is acts that are motivated by the opposite maxim that endanger the very existence of the democratic regime. The choice of the relevant act description for purposes of universalization is a fundamental problem in Kant's moral theory, the discussion of which constitutes an important element of Kant scholarship. The prevalent view among contemporary Kantian scholars (at least among the Anglo-American scholars whose writings I have read) is that the relevant description of an act for universalization purposes is the description which emphasizes the agent's basic intentions in his actions, or his reason for his particular acts. Objectors to service in the Territories are therefore justified from a Kantian perspective if the central motivating intention is their refusal to participate in the oppression of a foreign people. This solution to the issue of the relevant description of the act to which the universalization test should be applied is not free of problems, but this article is not the appropriate forum for their discussion.

¹⁵ In my comments above, I did not intend to argue that the rule: “it is forbidden for any person to participate in acts of Occupation and oppression of other nations, even if these acts enjoy democratic majority support”, is necessarily the one which those objecting to serve in the Territories follow or ought to follow. The rule admits of certain qualifications, for example, a rule whereby “it is forbidden for any person to participate in acts of occupation and oppression of foreign nations, even if such acts are supported by a democratic majority, unless failure to participate in the occupation will cause a greater injustice, which can only be prevented by participating in the occupation.” This discussion does not purport to determine the particular rule to be adopted, but rather to show that such a rule need not be ideologically neutral in order to satisfy the test of universalization. This point is important with respect to comments made later in this article, primarily in section III. A. below.

¹⁶ It could obviously be argued that this presentation is simplistic because the real choice confronting Israelis is far more complex than just a choice between these two alternatives. This view presents the choice as one of security versus oppression, i.e. waiving security in order not to rule over and oppress another people, or ruling over another people as the necessary price which must be paid in order to preserve security. In my opinion however, even if the problem was reducible to the dichotomy of security versus oppression, with whatever is implied thereby, (depending on a person's political views) such a presentation cannot be made in good faith for as long as the settlement of the Territories continues to increase, and for as long as Israel does not declare that it is prepared to forego the entire settlement project in the event of being guaranteed security. The claim that the rule over the Palestinians is necessary for security can only be claimed honestly and in good faith if the control is not accompanied by the permanent expropriation of lands that will reasonably be required for the constitution of Palestinian selfdetermination when the security problem is solved. It should be emphasized that the possibility of making a good faith security claim in the absence of the settlements does not mean that such a claim would necessarily be an appropriate claim. That discussion however exceeds beyond the scope of the present article.

¹⁷ 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 (Gans, Chaim, Philosophical Anarchism and Political Disobedience (New York, Cambridge University Press, 1992) 94–161CrossRefGoogle Scholar. My conclusion there ultimately was the same as it is here. Consequently I will not discuss the possible complication here.

¹⁸ MC 3/57 Military Prosecutor v. Milenki, PM 17 90.

¹⁹ Ha'etzni, supra n. 10, at 171.

²⁰ Obviously, these remarks do not apply exclusively to Avineri. Whoever believes that civil disobedience (even in a democracy) is not always forbidden, must establish a criterion for distinguishing between justified disobedience and non-justified disobedience. Such distinctions must be made in the name of morality. The much sought after ideal of neutrality, can only be achieved at the price of holding the opinion that disobedience is always forbidden, brooking no exceptions. The history of laws adopted in different states in the last century democracies indicates that such a view can no longer be treated with any degree of seriousness.

²¹ This question is discussed in far greater detail in Singer, Peter, Democracy and Disobedience (New York, Oxford University Press, 1973)Google Scholar and Gans, supra n. 17, at 94–119.

²² These values too have an important Kantian expression, based on the version of the categorical imperative which prohibits treating people as if they were only means, and demands that they be treated as ends in themselves.

²³ In more abstract terms, a conclusive justification of particular acts of disobedience requires balancing between the systemic harms to the political and legal systems likely ensue from the damage caused by the particular violation of the law, and the intensity of the damage expected to be caused to the value violated by obedience in that particular instance. The intensity of the systemic damage is determined, among other things, by the degree to which the system optimally enforces the values of democracy and equality and the likelihood of disobedience actually compromising the degree to which these values are enforced. In other words, assessment of the degree of harm expected to be caused to the value which is violated by obedience in that particular occasion, involves an assessment of the importance of that value, and the chances that it will actually be damaged as a result of the obedience to the law.

²⁴ For a discussion of the Sikh example see Barry, Brian, Culture and Equality (Cambridge, Harvard University Press, 2002) 53–54, 152Google Scholar.

²⁵ The issue of conscientious objection is discussed further in: Raz, Joseph, The Authority of Law (Oxford, Clarendon Press, 1979) 262–289Google Scholar; Gans, supra n. 17.

²⁶ Concededly, theocratic and religious positions could permit conscientious objection to laws commanding the commission of acts which lose their value if performed without the proper intention. For example, they could permit a person opposed to prayer to violate orders commanding him to pray if in accordance with those religious positions, prayer without the proper intention is devoid of any religious value.

²⁷ I discuss this issue in greater detail in Philosophical Anarchism and Political Disobedience, supra n. 17, and there is a particularly detailed, important discussion in Raz, supra n. 25.

²⁸ H.C. 4062/95, Epstein v. Minister of Defense (unpublished 26.7.95); H.C. 2700/96, Barnovsky v. Minister of Defense (unpublished 29.4.96); H.C 1380/02, Ben-Artzi v. Minister of Defense, 56(4) P.D. 476; H.C 470/80, Algazi v. Minister of Defense (unpublished); H.C. 630/89, Michnas v. Chief of General Staff (unpublished 17.10.89)

²⁹ H.C. 7622/02, Zonshein v. Judge Advocate General 57(1) P.D. 726. [hereinafter: Zonshein]. 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.

³⁰ Gillette v. United States 401 U.S. 437 (1971).

³¹ Zonshein, supra n. 29, at 11.

³² Barak's distinction between selective objection and universal objection should not be understood as indicating that Israel adopts a tolerant attitude to universal objection, as opposed to selective objection. Quite the opposite, only five percent of applications for exemption from service on the grounds of conscientious (i.e. universal) objection are approved. In other countries with compulsory conscription that recognize exemption for conscientious reasons, 60–95% of the applications are accepted. The contemporary case of Yonatan Ben-Artzi is an unfortunate reminder of the tightfisted rigidity that characterizes the Israeli establishment's approach to conscientious objection. When this article was written (August 2003) he had already spent over a year and a half in prison and in an open military detention. Officially, Ben Artzi's application for exemption on grounds of conscience was rejected because his refusal to serve was not “sincere”. That justification was both spiteful and empirically and legally questionable. Even on the first few occasions, when indicted for disobedience in the disciplinary court, Ben-Artzi presented the committee dealing with his case with irrefutable evidence of his prolonged identification with pacifist causes, from his high school days and until his conscription. However, the establishment's position became even more questionable and malicious to the extent that the disciplinary decisions to imprison him became more and more frequent. When giving these decisions, the Military Authorities offered to exempt Ben-Artzi from military service on psychiatric grounds. Ben Artzi rejected the offer, being prepared to pay a heavy price for his disobedience in the name of pacifism. Ultimately, Ben-Artzi was put on trial before being court marshalled and was convicted for refusing to obey a military order. The court recommended another hearing of his plea for conscientious objection before a special tribunal designated for that purpose.

³³ Zonshein, supra n. 29 at 14.

³⁴ Ibid,, at 15.

³⁵ Ibid., at 14.

³⁶ Ibid., at 14.

³⁷ For a detailed analysis of these points in Marshall's decision in the Gillette case, see the excellent article of Malament, David, “Selective Conscientious Objection and the Gillette Decision,” (19721) 1(4) Philosophy and Public Affairs 363Google Scholar. Malament's critique of Marshall also applies to Barak.

³⁸ See Zonshein, supra n. 29, at 14.

³⁹ It should be stressed that if Barak's argument is valid, it precludes the establishment of army units which consist exclusively of Hesder Yeshiva graduates.

⁴⁰ I have discussed this issue in detail in the past. See Gans, supra n. 17, at 138.

⁴¹ 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, supra n. 25). According to Raz's claim the tolerance and recognition of a right to civil disobedience can be justified by the value of political participation. This value is politically neutral in the sense that it can be endorsed by all citizens who support the principle of participation in the political process (within certain limits) irrespective of their divergent political views on a wealth of other topics. The non-democratic political regimes, by definition, do not confer legal recognition to the value of political participation. Accordingly, in those regimes it is morally justified to disobey the law for political purposes, irrespective (within certain limits) of the political content of these purposes. On the other hand, the legal recognition that democracies confer to the value of political participation (by way of freedom of expression, association, electing and being elected), precludes any recognition of (within their frameworks) a moral (and certainly not legal) right to breach the law for political purposes, irrespective (also within certain limits) of the content of those purposes. Nonetheless Raz argues that the non-recognition of a right to civil disobedience within a democratic regime does not imply that there is no possibility of justifying certain particular actions of civil disobedience. It all depends on the substantive goals of those particular acts and the question of whether in the particular circumstances, civil disobedience is a justified means of attaining those goals.

⁴² See Sagi, Avi and Shapira, Ron, “Conscientious Objection – A Critical Examination of the Refusal of Service in the Territories Under Current Circumstances”, position paper, dated 25 07 2003, appended to the Respondents file in the Zonshein case, at 1Google Scholar. (unpublished). See also Sagi, Avi and Shapira, Ron, “Civil Disobedience and Conscientious Objection,” (2002) 36 Israel Law Review 181CrossRefGoogle Scholar.

⁴³ 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 Heyd, David, “Objection – Political or Conscientious (or: Is there a Border between Civil Disobedience and Conscientious Objection)?” in Menuchin, Yishai, ed., Democracy and Obedience (Jerusalem, Siman Kria, 1990) 99–110Google Scholar. [Hebrew].

⁴⁴ 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. See also Sagi and Shapira” Civil Disobedience and Conscientious Objection“, supra n. 42.

⁴⁵ 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 Harel, Alon, “Unconscionable Objection to Conscientious Objection: Notes on Sagi and Shapira,” (2002) 36 Israel Law Review, 219CrossRefGoogle Scholar. Also see Harel, Alon “A Critical Examination of a Critical Examination of the Refusal to Serve in the Territories under Current Circumstances, Is it Conscientious Objection”, p. 7http://mishpatim.mscc.huji.ac.il/newsite/segel/harel/pub/brief2.pdf)Google Scholar, argues that it should be regarded as an act of conscientious objection and not of civil disobedience. 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, supra n. 17). 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.

⁴⁶ 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, supra n. 17.

⁴⁷ In part 4 of their position paper (see supra n. 44), Shapira and Sagi rely extensively upon my comment in Gans, supra n. 17, 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.

⁴⁸ Nonetheless, if it is correct to assume that a tolerant attitude on the part of the authorities will expand the scope of the objection phenomenon – that might provide them with a reason to prefer a tolerant attitude.

⁴⁹ However, conceivably, the Supreme Court too had second order reasons for relying on faulty arguments in order to reach its specific conclusion. These second order reasons derive from the politics between the Supreme Court and the other branches of government. The court's support of the position adopted by the government and the army in this case could conceivably allow the court to reject their position in other cases while retaining its balanced and objective image. Furthermore, the “Courage to Refuse” case enabled the court to appear balanced at a rather low cost, given that these particular objectors do not enjoy substantial public support, even from among the relevant elites, and the violation of their right to conscientious objection is not regarded as a flagrant violation of human rights. (They received light sentences of 28 days detention only). It must be noted, unfortunately, that while the Supreme Court may have accumulated credit for being balanced by adopting decisions in favor of the executive authorities, (as evidenced in Zonshein) it has not exploited that credit in order to adopt decisions against the authorities, and in favor of ordinary citizens, when the damage caused by executive decisions is particularly grave. The case of Ben Artzi mentioned above (Ben Artzi, supra n. 28) is a case in point, and there are also other, more prominent examples.

⁵⁰ See Sagi and Shapira, supra n. 42. The argument of Sagi and Shapira described there appears in part 2 of their position paper (mainly in section “C”).

⁵¹ This is also true of the universality version of the categorical imperative, in addition to being true of the generalization principle. Universalization for purposes of applying the categorical imperative must be sensitive to circumstances. This is indicated by the question: Is it morally right for a person to consume more food than he produces? Clearly, if all were to act according to a rule allowing them to do so, no one would be able to continue acting according to this rule. A non-sensitive reading of the circumstances to which the categorical imperative is applied, leads to the conclusion that most of us are acting immorally, since most of us do actually consume more food than we produce. However, nobody seriously thinks that the fact that he and many others consume more food than they produce is morally reprehensible. This is because for as long as there are enough people producing enough food, there is no problem with those who consume more than they produce. (I borrowed this example from the British philosopher Derek Parfit).

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.: Lyons, David, Forms and Limits of Utilitarianism, (Oxford, Oxford University Press, 1965)CrossRefGoogle Scholar.

⁵³ Obviously there may be other perspectives too, for example the question of fair allocation of the burden, which could pose serious problems for dissenters. However, there are alternative forms of service that could minimize the problems of unequal allocation of burdens. Furthermore, the identity of the soldiers concerned – soldiers who until the moment of their refusal had displayed maximum willingness to sacrifice, as in the case of “Courage to Refuse” soldiers and the pilots – renders it doubtful whether anyone would dare to reproach them regarding the unequal sharing of the burden.

⁵⁴ A version of consequentiality morality that does not consider the expected results of people's actions in view of the expected conduct of other persons, but rather in view of the desirable behavior of other people, is one version of rule-utilitarianism. According to this version of rule-utilitarianism, actions are right if they are prescribed by a set of rules which, when universally complied with, lead to overall consequences that are better than the overall consequences of universal compliance with any alternative set of rules. If the universality relied upon by Shapira and Sagi belongs to this type of rule-utilitarianism, then, as stated in the text accompanying this footnote, they cannot derive conclusions regarding the desirable behavior of potential dissenters on the basis of the consequences of the refusal of all the soldiers to serve in the Territories, while isolating these consequences from the consequences of the appropriate behavior of all other people too. The inner logic of this version of rule-utilitarianism requires consideration of the consequences of the conduct of all people in accordance with the rules that should apply to all people.

⁵⁵ In the text accompanying this footnote I referred to two major possible interpretations of an argument of the type adduced by Shapira and Sagi: (a) the logical and normative principle known as the principle of generalization, which states that if a person is obliged (or entitled) to perform a particular action, then there is a duty (or a right) for all those who are in the same circumstances as he is, to do the same action and (b): a particular version of rule-utilitarianism (see previous note). A third possible interpretation, referred to in note 14 above, is based upon the generalization which is the basis of the universality version of Kant's categorical imperative, namely that our actions must be consistent with rules, which if performed by all, would not create a situation which involves logical or moral contradictions. I am not certain if this interpretation can be attributed to Shapira and Sagi. For the generalization underlying the categorical imperative has nothing to do with the undesirable social consequences of the generalized act, whereas Shapira and Sagi refer to those consequences. However, as I clarified in the note, above, even if they had relied upon that generalization, it would have been of no assistance, because it suffers from the formalism and vagueness characteristic of the generalization principle. It is also dependent on circumstances in the same way. The position adopted by Shapira and Sagi can also be interpreted in accordance with the popular argument: “What if everyone did that”, which in the philosophical jargon is referred to as the generalization argument (which should not be confused with the generalization principle referred to above). According to this argument, an action should be avoided if its universal performance would lead to disastrous consequences. I avoided interpreting their comments on the basis of the generalization argument, because of its potentially absurd results. Unqualified use of the generalization argument can disqualify almost every human endeavor. Legitimate use of the generalization argument is restricted, inter alia, to cases where we have reasons to suppose that all or most people would in fact want to do what we are doing. (For an enlightening discussion see Ullman-Margalit, Edna, The Emergence of Norms, (Oxford, Oxford University Press, 1977) 53–58Google Scholar.) Refusal to serve in the Territories does not satisfy that condition.

⁵⁶ It should be stressed: objectors to service in the Territories, may act on the basis of complex motives and purposes, and view themselves in different ways. They may be modest, attempting just to preserve an iota of morality in their society. More ambitiously, they can attempt to become an avante-guard group, trying to catalyze public and political processes. They may also hope that their actions will change the face of Israeli society, improving its moral standing and its security. They can conceive of their objection as having a dynamic and varying effect. This kind of dynamic conception was presumably also one of the foundations of the illegal settlement movement at its inception, as it is today. Imagine a right wing Shapira and Sagi telling the settlers at the very beginning, or the Noar Gevaot today “when you breach the provisions of the law by way of illegal settlement, you must logically (for reasons of moral generalization) desire that all Israelis, or at least all Jewish Israelis follow in your path. This path however would be disastrous, for it would empty the Israeli cities of their residents, allowing the Arabs to take control even without committing suicide. Consequently, it is forbidden for any of you to violate the provisions of the government by settling in the Occupied Territories.” Evidently, the right never made such an idiotic argument, and this is not because there are no right-wingers familiar with Kant, the generalization principle or rule-utilitarianism, etc., who are liable to exercise them in untenable ways. The right wing has never made such an argument against the settlers because the settlers were regarded as an avante-guard group initiating actions that were worthy of support of the entire camp, but not as individuals whose actions should be emulated by the entire world.

⁵⁷ Avineri, Shlomo, “Not in the Name of Gandi and Martin Luther King”, in Ha'aretz, 5 08 1995 [Hebrew]Google Scholar.

⁵⁸ A few pages after his chronicle of civil disobedience in Israel, Ha'etzni (See Ha'etzni, supra n. 1) 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”.

⁵⁹ The precedent argument discussed here, which can be called “the future precedent argument”, must be distinguished from the legal precedent argument, which is a “past precedent argument”. According to the legal precedent argument, at least in its extreme form, we may be required to do an action which is unjustified on its merits purely because similar actions were already performed in the past. When a judge confronts a legally binding precedent, he must act in accordance with the established rule, even if he is of the opinion that there is no moral justification for doing so. In other words, he is required to rule against his better judgment, only because a similar ruling was given in the past in the same circumstances. The future precedent arguments require precisely the opposite: the avoidance of certain actions which are justified on their merits, only because they may cause others to execute unjustified actions in the future.

⁶⁰ Resolving the paradox of the past precedent argument referred to in the previous note is far more difficult, and it is doubtful whether it can be resolved. For it is would be sheer stupidity to abide by a particular wrong path of action, purely because it was the path adopted in the past. And in truth, in a number of places (including Israel) which practice the rule of binding precedent, the system has been modified; bad precedents can be overruled by the Supreme Court which is not bound by precedents, and can therefore change its own rulings. The principle of the binding precedent only applies to the legal forums beneath the Supreme Court in the legal hierarchy. The normative superiority of Supreme Court decisions over decisions of lower judicial forums could be rationally premised on the presumption that the Supreme Court has greater wisdom, knowledge and experience than the other courts.

⁶¹ The future precedent argument under discussion in this section interprets claims such as: “the left-wing objectors laid the ideological framework for the expected disobedience of the settlers in Judea and Samaria”, as causal claims. However, the precedent argument also has other versions or formulations. One is based on consistency or fairness. The claim is that considerations of consistency and fairness compel ideologically motivated left wing dissenters to recognize the parallel right of ideologically motivated right wing dissenters. I dealt with this interpretation in part I.A above (Disobedience and Ideological Neutrality). This interpretation may derive its attractiveness from the fact that from the institutional perspective, as opposed to the perspective of the individual considering disobedience, the prohibition of left wing dissension does in fact dictate the parallel prohibition of right wing dissension and vice versa. While I largely supported this conclusion when discussing the appropriate attitude of the authorities to conscientious objection, I also argued that it does not entail specific conclusions regarding the justifiability of objection from the perspective of individuals considering whether to disobey. Another version of the argument that “the left-wing disobedience laid the ideological framework for the expected disobedience of the settlers in Judea and Samaria”, is that the moral distinctions between the justness of left wing objection as opposed to right wing objection are too subtle and complex for purposes of convincing the public at large. (The fact is that even Professors of Law and Political Science were apparently unaware of the distinction, as my comments against them indicate, testifies to the present point). Consequently, at least in the public perception, left wing objection would be regarded as legitimizing right wing objection, as would the reverse. This claim is a serious one, but the question is whether it constitutes a conclusive argument against disobedience. I think that the answer is in the negative. First, the reasons for rejecting the causal version of the precedent argument are equally applicable here. The intensiveness of the rightwing disobedience and its history of political success, as well as the structure of Israeli politics, provide grounds for predicting that the significance of the legitimization effect conferred by the left wing disobedience to the right wing disobedience, as a catalyst for future right wing disobedience, will be negligible. For the same reasons, it is also unlikely that withholding legitimization from right-wing disobedience by left wing obedience would hold much sway in deterring right wing disobedience. The second reason for rejecting the contention that the present version of the precedent argument justifies refraining from left-wing disobedience is the second reason I give in the text following this footnote for the rejection of the consequentialist version of the precedent argument (namely, the deontological reasons for left-wing disobedience).

⁶² The significance of the concept of following a principle is particularly well understood by the right-wing. They know that when it comes to a principle, there are certain kinds of reasons that will never justify refraining from performing actions prescribed by that principle. I am almost convinced that no right wing leader ever seriously told his audience that they must obey an order to evacuate Hebron just because disobedience would set a precedent for the left wing not to serve in the Territories. Even when they express an argument reminiscent of the precedent argument, they are quick to qualify that it cannot provide a reason for breaching their principles. The Ma'ariv daily, 30 June 2003, quotes Rav. Dudi Dudkevitch: “The problem of disobeying orders is problematic because it could legitimate similar refusal of people who refuse to serve beyond the Green Line, or to serve at all. However it must be understood that the laws of the T'nach take precedence over the laws of the State and of the Army.” For persons for whom the laws of the T'nach are the final word, such comments are to be expected. However, a similar position (structurally) is logically required for those for whom the laws of morality and humanism are the last word, and for the public intellectuals of the left, (against who I am arguing) humanism and the laws of morality, and not the law of the State, are the last word. After all, they too do not justify their compliance with the law, by resorting to the law itself. Their plea for obedience is ostensibly based upon moral (democratic and other) considerations as opposed to legal considerations. The very need to resort to these considerations presupposes that morality precedes the law, for otherwise there would be no reason for adducing moral reasons for fealty to the law.

⁶³ Sagi and Shapira, position paper, supra n. 42, at part 3.

⁶⁴ I am speaking of utilitarianism. For criticism on this point, and the surrounding controversy, see Mackie, John, Ethics Inventing Right and Wrong, (London, Penguin, 1977) 129–134Google ScholarSmart, J.J.C. and Williams, Bernard, Utilitarianism, For and Against, (Cambridge, Cambridge University Press, 1973), 77–150CrossRefGoogle Scholar. See also Scheffler, Samuel, The Rejection of Consequentialism, (Oxford, Clarendon Press, Revised Edition 1994)CrossRefGoogle Scholar.

⁶⁵ See for example, Kant, Immanuel, Groundwork to the Metaphysics of Morals, trans. Gregor, Mary, (New York: Cambridge University Press, 1996)Google Scholar.

⁶⁶ See Smart, Williams, supra n. 64, at 98–99.

⁶⁷ See Sagi and Shapira, position paper, supra n. 42, at part 3. In fact, Sagi and Shapira oscillate between two arguments. The first is: even if the occupation prior to the Intifada was unjust, the Intifada legitimized its continuation, because it is a necessary means in the just war Israel is waging against the Intifada. But Sagi and Shapira avoid adopting the argument in full. For according to this argument, inasmuch as it is a just war and within the boundaries dictated thereby, those enlisted to serve have the ordinary moral obligation, imposed upon all people, to participate in just wars of their country. However, while discharging that obligation, they may be subjected to additional obligations, of avoiding unjust orders during the conduct of war (according to the rules of jus in bellum). This argument in support of service in the Territories does not belong to the family of arguments that are primarily concerned with showing that even though there are justifications for refusing to serve, one must still serve. This argument denies the existence of any justification for refusing to serve in the Territories, for such arguments presuppose that the occupation is unjust from the perspective of jus ad bellum.

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” Ibid. Since the pertinent evils are those which the army is expected to commit, Shapira and Sagi's comments lead to the absurd conclusion that the obligation to serve in places where a just war is being conducted derives from the obligation of young men to prevent particular evils which their country's army might commit in the framework of its just wars, and not the evils being perpetrated against their country. It is clear that resorting to the general obligation to prevent evils as a justification for being enlisted into the army, (when the issue is one of evils which it is anticipated that the army will commit), is superfluous and secondary at best, if the war is justified from the perspective of jus ad bellum. In order to avoid this absurd implication of Shapira and Sagi's argument, one is forced to interpret it as meaning that the Occupation is unjust in terms of jus ad bellum. The conclusion, according to Shapira and Sagi, must therefore be that the only justification for collaborating with the unjust occupation is that “despite” its injustice, there is nonetheless an obligation to reduce evil done by others.

⁶⁸ Mention should perhaps be made here of a very popular argument in Israel justifying the continuation of the Occupation: the magnitude of the concessions that Barak was prepared to offer in Camp David 2000 in return for peace with the Palestinians. For purposes of my argument here, I will not discuss whether these concessions were sufficient, despite their magnitude vis-a-vis the concessions that other Israeli Prime Ministers were prepared to make. I will assume for the sake of argument that they were sufficient. But even then, the Israeli (or Barak's) readiness to make far reaching concessions do not justify the continued settlement policy in the manner in which it continues to be conducted, i.e. the expansion of the settlements accompanied by no expression of willingness to give them up. The Palestinian rejection of Barak's concessions may justify the continued Occupation, but it does not justify its continuation in the form of expansion of the settlements and other actions that forestall any possibility of terminating the Occupation. The Palestinian rejection of Barak's concessions may perhaps justify the continued Occupation, but not the failure to declare an ongoing willingness to terminate it and withdraw altogether the moment peace is achieved. See also supra n. 16.

⁶⁹ In the list of leftist public intellectuals who expressed their opinion against disobedience at the beginning of this article I also mentioned Asa Kasher. Concededly, Kasher stated that “the moral assessment of the act of disobedience is philosophically complex”. However, immediately after paying lip service to the philosophical complexity of the topic, he claims rather simplistically that “against the background of the general atmosphere following the Rabin assassination, any organized delinquency on the basis of viewpoint, weakens the democracy, as opposed to strengthening it.” (This quote is taken from a letter to the Ha'aretz newspaper, published 3.1.03, in which Kasher sums up his own comments in a Symposium Evening on Security and Human Rights). As far as I remember, Kasher has repeated this view in other forums too. It is not discussed in detail in the present article because I did not find anything but the telegraphic rendition of the argument, cited above. In its current form, it reminds one of the other arguments which were discussed in this article, mainly the precedent argument [“first this party will disobey then the other party and then the first party again and the result will be altogether bad: the destruction of the democratic procedures”. 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, supra n. 17. However, a properly reasoned, articulated response would require a more detailed presentation of his position.

⁷⁰ 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 supra n. 17.

⁷¹ See Ha'aretz, 11 September 1988 Ha'ir, 16 June 1989, p. 33 [Hebrew].

⁷² Shlomo Avineri, Yediot Acharonot, 10 November 1995, p.22 [Hebrew].

⁷³ I am not accusing them of making this claim in full cognizance of its morally defective nature. It may have been more of a gut response. But either way, their statements disclose no hint of systematic thought and an informed conception of the meaning of the refusal to serve in the Territories.