¹ Kasher, Asa, “Refusals: Neglected Aspects,” (2002) 36 Israel Law Review 171CrossRefGoogle Scholar. Medina, Barak, “Political Disobedience in the IDF: The Scope of Soldiers' Right to be Excused from Taking Part in Military Activities in the Occupied Territories,” (2002) 36 Israel Law Review 73CrossRefGoogle Scholar. Sagi, Avi and Shapira, Ron, “Civil Disobedience and Conscientious Objection,” (2002) 36 Israel Law Review 181CrossRefGoogle Scholar.

² Gans, Chaim, “Right and Left: Ideological Disobedience in Israel,” (2002) 36 Israel Law Review 19CrossRefGoogle Scholar.

³ See Sagi and Shapira, supra n. 1, at 192 and 203. That Sagi and Shapira conflate the two normative issues (whether acts of disobedience are morally justified, and what is the morally justifiable way for the state to treat those performing such acts) is somewhat surprising, given that the distinction is emphasized even in this very issue, in Gans' article to which they refer in other contexts. See Gans, supra n. 2, at 24.

⁴ In fact, I think that this way of putting things is misleading. The considerations that prevent the conscientious objector from obeying the relevant legal norm are typically not egocentric. She refuses to obey simply because she takes the relevant action to be immoral, or contrary to her religion, or something of this sort. The considerations described in the text only get into the picture, as it were, further down the motivational road, when the conscientious objector tries to justify or explain herself to those of us who do not share her views regarding the moral or religious status of the action she is being asked to perform. In the text I avoid this complication and use a characterization of conscientious objection that is similar to the one used by other contributors to this issue. Nothing in my argument, it seems to me, will depend on this simplification.

⁵ For some of the relevant references here, see Sagi and Shapira, supra n. 1, at fns. 3 and 7. Notice that both conscientious objection and civil disobedience are to be clearly distinguished from revolutionary disobedience, the kind of disobedience that aims at overthrowing the government and destroying the current legal and political order. At times, Sagi and Shapira conflate even this distinction. See Sagi and Shapira, supra n. 1, at 198–199: “A person committing an act of civil disobedience, who, as such, questions the legitimacy of the legal system…”. See also Sagi and Shapira, supra n. 1, at 215.

⁶ A point completely missed (or ignored) by Sagi and Shapira: When “interpreting” some refusal-supporting texts, they seem to assume (section III) that publicity (or at least seeking publicity) entails classification as civil disobedience.

⁷ Sagi and Shapira, supra n. 1, at 183 seem to think that a commitment of the objector to the generalizability or universalizability of the relevant act is a good mark of civil disobedience rather than conscientious objection. But this is simply false: Someone who – in a paradigmatic act of civil disobedience – illegally blocks roads in order to draw attention to the disputed legal norm need not commit herself to the claim that everyone should block roads. And a Catholic who refuses to kill in a paradigmatic case of conscientious objection does not become any less of a conscientious objector if he thinks that everyone ought to be Catholics, and so to refuse to kill (in similar circumstances).

⁸ Neither Sagi and Shapira, nor Kasher nor Medina mention this characteristic difference between paradigmatic cases of conscientious objection and paradigmatic cases of civil disobedience, even though it is often mentioned in the literature. See, for instance, Heyd, David, “Refusal – Political or Cosncientious?” in Menuchin, Yishai, ed. On Democracy and Obedience (Jerusalem, Siman Kria, 1990) 89 [Hebrew]Google Scholar. As will become clear in the next few paragraphs in the text, I do not think it is a coincidence that these writers do not mention this often-mentioned characteristic difference between conscientious objection and civil disobedience. (At one point, Kasher, supra 1, at 177–178 seems to indicate that other cases of civil disobedience – ones violating norms other than the disputed ones – may be easier to justify. But even if this is so – and I am not sure it is – still this does nothing to undermine the point about to be made in the text.)

For a reason that is entirely unclear to me, Sagi and Shapira seem to think that another characteristic difference between conscientious objection and civil disobedience is that moral persuasion (understood by them as necessarily universalizable or general) cannot play a part in the motivations of paradigmatic conscientious objectors. This, of course, is a misunderstanding of conscientious objection, for one can protect one's soul from the moral disintegration involved in the violation of one's deepest (and perhaps also perfectly universalizable) moral beliefs. Perhaps this misunderstanding is why they find it necessary to introduce a further distinction, one between “moral” and “private” conscientious objection. See Sagi and Shapira, supra n. 1, at 182–186. I find the introduction of this further distinction unhelpful, and indeed, later in their arguments Sagi and Shapira treat the “moral conscientious objector” as they do the person engaging in civil disobedience,

⁹ For related suspicions see Heyd (though Heyd is ultimately more sympathetic to the distinction and its significance than I am). Medina too expresses doubts about the normative significance of the traditional distinction between conscientious objection and civil disobedience. See Medina, supra n. 1 at 79–80.

¹⁰ It seems to me that this is the only kind of consideration that is relevant to the discussion of the proper attitude of the state towards (specific cases of) conscientious objectors, seeing that the state necessarily thinks such objectors to be substantively wrong (or else the state would have changed its policy). In this context, then, Medina's discussion (in section II) of possible justifications of toleration towards objectors that are grounded in the attempt to prevent wrong actions by the army seems misguided. But there is a delicate matter here: While the state is committed to the unjustifiability of each case of disobedience, the state need not be committed to the unjustifiability of all cases of disobedience. In other words, the state may acknowledge its own fallibility (though it cannot, on pain of pragmatic inconsistency, acknowledge any (present) instances of such fallibility). And this opens the door for something like Medina's discussion – tolerating disobedience (of whatever sort) may be thought of as a way in which the state acknowledges its own fallibility, and attempts to diminish the related harm. I cannot here address the details of this part of Medina's paper, but I briefly return to Medina's discussion below.

¹¹ See, for example, Andrei Marmor, “On the Forms and Limits of Political Dissent in a Liberal Democracy” available at http://lawweb.usc.edu/users/amarmor/work/political.html

¹² See Gans, Chaim, Obedience and Disobedience (Tel Aviv, Hakibbutz Mamuechad, 1996) 121–122 [Hebrew]Google Scholar.

¹³ A point that is – perhaps surprisingly – completely ignored by Sagi and Shapira.

¹⁴ For a critique of this distinction, see Gans, supra 2 at 31–34 and Amir Paz-Fuchs and Sfard, Michael. “The Fallacies of Objections to Selective Conscientious Objection,” (2002) 36 Israel Law Review 111Google Scholar. Medina's suggestion to amend the global-selective distinction or replace it by what he calls the political-nonpolitical distinction suffers, I think, from many of the difficulties highlighted by Paz-Fuchs and Sfard and by Gans.

¹⁵ H.C. 7622/02, Zonshein v. Judge Advocate General, 57 (1) P.D. 726. For the English translation of the Zonshein case, see this issue of the Israel Law Review: “Zonshein v. Judge Advocate General,” (2002) 36 Israel Law Review 1CrossRefGoogle Scholar. Citations below refer to the English translation in this issue.

¹⁶ For this point see also Gans, Obedience and Disobedience, supra 12, at 121; and Medina, supra 1, at 92.

¹⁷ I think Gans believes that this is indeed the case, at least with regard to cases of coercive civil disobedience. See Gans, supra 2, at 47.

¹⁸ President Barak's analysis applies, I think, also to Medina's political-nonpolitical distinction.

¹⁹ Briefs and letters by Sagi and Shapira, Harel, Heyd and Raz, submitted to the High Court in the case of Zonshein. Some of these briefs have been submitted to the military court in some other recent cases as well.

²⁰ Even Sagi and Shapira seem to grant this much. See supra n. 1 at 192, though given their misunderstanding of what over-determination consists in (to which I return below), it is not clear to me what exactly they intend to be granting here.

²¹ Harel, Alon, “Unconscionable Objection to Conscientious Objection: Notes on Sagi and Shapira,” (2002) 36 Israel Law Review 219CrossRefGoogle Scholar. Harel raises an interesting question –whether legal or moral protections that apply to actions performed from certain motivations automatically apply also to actions that are motivationally over-determined, with one protected and one unprotected motivation. I am not sure what the answer to Harel's question is in general, but the above arguments regarding the applicability of autonomyrelated considerations convince me that at least in our case the protection to which conscientious objectors are entitled applies (prima facie) to cases that are motivated both by conscientious-objection-like motives and by other, presumably unprotected ones.

²² And that's a good thing, too, for this allows me not to address their sketchy discussion of the objectivity of sociological facts (or lack thereof) (See Sagi and Shapira, supra n. 1, at 186–191), one that is as philosophically amateurish as it is irrelevant.

²³ The example loosely follows one Korsgaard gives in a very different context. See Korsgaard, Christine, The Sources of Normativity (Cambridge, Cambridge University Press, 1996) 26CrossRefGoogle Scholar.

²⁴ Sagi and Shapira's discussion presupposes that motivational over-determination requires that the distinct motives be independent, and at one point they say so explicitly. Sagi and Shapira, supra n. 1 at 194–195. Nowhere do they argue for this claim.

²⁵ I know this is true of my own refusal several years ago, and from informal conversations with many current refuseniks I get the feeling this is true of all of them as well. Indeed many of them have the belief described in the text.

²⁶ See Sagi and Shapira, supra n. 1, at 197.

²⁷ Though I couldn't find an explicit statement by Kasher to this effect, this seems to me a natural understanding of his discussion, especially when he voices doubts regarding the proper understanding of conscience in our context. See Kasher supra n. 1, at 178–179.

²⁸ But see note 4, above. For the point in the text made in the context of cases of Israeli refusal, see Heyd, supra n. 8, at 92.

²⁹ This is true also for most – though not all – of the considerations Medina employs in arguing that political refusals – unlike nonpolitical ones (in the sense he stipulates for these terms) – should not be tolerated. See Medina, supra n. 1, at 95–104.

³⁰ It may be thought that civil disobedience is harder to justify than conscientious objection because of other considerations as well, like perhaps considerations having to do with fairness and democracy. I briefly consider this line of thought in the concluding section.

³¹ This is a central theme for Kasher. Kasher, supra n. 1, at 176–177. See also Medina, supra n., 1 at 95–100.

³² This is a central theme for Medina, supra n., 1 at 95–100.

³³ Zonshein, supra n. 15, at 14.

³⁴ For instance, Kasher, supra n. 1, at 174–175. Notice that all of Kasher's arguments – about, for instance, the requirement to inflict as little harm as possible on the democratic infrastructure of the state – crucially depend on such arguments from consequences. If the consequences he envisions (weakening the army, harming the rule of law) are unlikely to occur, or if the consequences of alternative courses of action are even worse, such arguments do not get off the ground. So even those of Kasher's arguments that do not look like arguments from consequences collapse under the pressure of the objections to arguments from consequences in the text.

³⁵ See, for instance, Sagi and Shapira's claim. Sagi and Shapira, supra n. 1, at 198–199. that the consequences of mixed-motives-refusal are more severe than those of civil disobedience proper.

³⁶ For similar points made in the current context (as a criticism of the Israeli Supreme Court's decision in the case of Zonshein), see Gans, supra n. 2, at 42–43.

³⁷ Medina explicitly acknowledges that for the arguments against refusal to be complete such support must be supplied. Medina, supra n. 1, at 98.

³⁸ MT 151/03, The Military Attorney General v. Matar et. al. (unpublished) (section IV 8 (iii); page 87).

³⁹ It may be argued that though cases of principled disobedience are common and welldocumented, there are hardly any (documented) cases of states tolerating such disobedience, and so here – when assessing the consequences of such state policy – we are after all in the position of having to engage in armchair sociology, and just do the best we can. (I thank Barak Medina for this suggestion.) Let me make the following two points, then: First, my best attempt at armchair sociology of this type leads me to think that such state policy will not have the dreaded consequences described in the text. Second, and because I am not competent to evaluate the historical claim that this objection takes as a premise, I want to note that to the extent it is true, the point in the text applies much more strongly to the evaluation of the disobedience itself rather than the evaluation of the state's response.

⁴⁰ Medina repeatedly uses formulations that suggest this line of thought.

⁴¹ See Medina , supra n. 1, at 95–100.

⁴² For a related point, see Gans, supra n. 12, at 114.

⁴³ See Medina, supra n. 1, at 82–86.

⁴⁴ If I was right to say – in note 10 above – that this part of Medina's discussion should be seen as an acknowledgment by the state of its own fallibility, then Medina's argument here fails for another reason as well: For Medina relies on the claim that Israeli policy with regard to its army's actions in the occupied territories is by and large defensible. Even if this is true – and I think it is not – still one cannot rely on this claim while responding to an argument that is supposed to grant the state's fallibility.

⁴⁵ See Gans, supra n. 2, at 34–38 and 25–31.

⁴⁶ Gans' discussion in this context is purely a negative one – it does not attempt to justify current refusals, but to undermine certain objections that have been raised to them. Sagi and Shapira consistently ignore this dialectical point and as a result misrepresent Gans' views. I do not have the space here to discuss these – and other – misrepresentations of Gans' views in detail, so let me just urge the reader not to rely on Sagi and Shapira's presentation of Gans' views.

⁴⁷ There are others, also discussed by Gans. Here I focus on the one Sagi and Shapira pursue.

⁴⁸ In fact, I think that many refuseniks do want everyone to refuse. That is, they want the refusal movement to gain momentum, to gradually become more and more influential, and eventually to convince the state – and perhaps even to compel it, or at least to give it a very strong incentive – to end the occupation. But if asked about the fantastic possibility of everyone refusing right now – I suspect most refuseniks (myself included) would not want that everyone refuse.

⁴⁹ See Gans, supra n. 2, at 52, footnote 51.

⁵⁰ Sagi and Shapira's claim that this point by Gans “chillingly compares soldiers serving in Judea, Samaria and Gaza with suicide bombers” (Sagi and Shapira, supra n. 1, at 208–209) is thus not only philosophically groundless, but also rather clearly made in bad faith.

⁵¹ Harel makes a similar point his brief submitted to the High Court of Justice in the Zonshein case.

⁵² Sagi and Shapira, supra n. 1, at 201–207.

⁵³ Sagi and Shapira, supra n. 1, at 204–205.

⁵⁴ Gans' truck example – where given that no one else will stop to help push the truck, and that one cannot push it by oneself, one has no duty to stop and try (hopelessly) to help – is an example of a case where one is entitled to take into account the expected violations of the very duty under discussion. Gans, supra n. 1 at 53–54. The example that follows here is one where one is required to take into account the expected violations of the very duty under discussion.

Sagi and Shapira's discussion of the truck example is another example of gross misunderstanding, intentional misrepresentation, or both. They write: “Passers by who listen to Gans' advice … will avoid giving assistance with the excuse that each one of them cannot remedy the situation by himself. The owner of the truck will obtain assistance, in Gans' world, only if coincidentally four people happen upon the spot simultaneously.” Sagi and Shapira, supra n. 1, at 207. This is, of course, false. Gans argues that if you know others won't stop to help, then given that you alone cannot push the truck you are under no obligation to try. For your obligation to assist the truck driver to kick in all that is necessary is that it is at least somewhat likely that if you stop to assist her so will sufficiently many others to make the help effective. There is no requirement that the four people required for effective help “happen upon the scene simultaneously”, and if your very stopping will increase the likelihood of others stopping, you should take this too into account.

⁵⁵ Notice, by the way, that this example also shows how tendentious Sagi and Shapira's choice of terminology is. For clearly, there is nothing egoistic or egocentric about taking into account in my deliberation the fact that the other person is not likely to attempt a rescue herself. Indeed, nothing is more altruistic than my jumping into the water to save the drowning child. Relatedly, at one point. Sagi and Shapira say that according to Gans, refuseniks must hope that others will violate their duty to refuse (for otherwise they – the refuseniks – will have acted wrongly). Sagi and Shapira, supra n. 1. at 204–205. This is, of course, false: A refusenik need only believe, not hope, that others will violate their duty to refuse, just as in the example in the text I need only believe, not hope, that the other person will violate her duty to rescue.

⁵⁶ That this is so exempts me from addressing the version of the universalizability requirement that Sagi and Shapira think is more respectable in our context, the one that leads to claims about disjunctive duties to obey or to disobey (a result which, one would have thought, should suffice to raise suspicions about the plausibility of this version of a universalizability requirement).

⁵⁷ It will perhaps not be entirely pointless to reemphasize the need to avoid ambiguities stemming from unclarities about the scope of the relevant quantifiers and modal operators: We can consistently accept that it is not morally desirable that everyone refuse, and also that (given the circumstances) everyone is under a moral duty to refuse. More precisely, ∼❨∀ xRx (it's not morally required that all persons refuse), and even ❨∼∀xRx (it's morally required that not all persons refuse), are perfectly consistent with ∀x ❨Rx (every person is morally required to refuse) so long as others are expected not to comply.

⁵⁸ For a consequentialist-friendly attempt to provide such an account – one that, to an extent, entitles one not to give to famine relief more than one would be required to give had everyone given their share – see Murphy, Liam, Moral Demands in Nonideal Theory (Oxford and New York, Oxford University Press, 2000)Google Scholar. For one discussion of the accusation (addressed at Kantians) of utopianism, of not taking proper account of the immoral behavior of others, see Hill, Thomas, “Kant's Utopianism,” in his Dignity and Practical Reason (Ithaca and London, Cornell University Press, 1992), 67Google Scholar.

⁵⁹ Sagi and Shapira, supra n. 1, at 214.

⁶⁰ Indeed, if following Sagi and Shapira's advice will make my refusal more effective as a means to what I think of as the proper ends here, then it will ipso facto make my refusal more dangerous from the point of view of the state, enabling Sagi and Shapira to demand yet harsher sanctions to be imposed on me, sanctions which (following their advice) I will not object to, thus becoming even more effective, and more dangerous, and so subject to sanctions that are harsher still, and so on, ad inifinitum.

For somewhat similar advice – this time offered in good faith – and some relevant discussion, see Gans, supra n. 2, at 49–50.

⁶¹ Ironically, this is a prediction Sagi and Shapira and other critics rely on when urging the state not to treat refuseniks leniently. This prediction perhaps gains some support from the declining numbers of refuseniks – at least of those explicitly refusing military service altogether for moral-political reasons – in Israel in the past couple of years.

⁶² At one point Sagi and Shapira, supra n. 1, at 197 write that “by the very act of refusal they [refuseniks] position themselves as accusers and not as persons desirous of protection or leniency.” The point in the text suffices to refute the implication that refuseniks cannot consistently be both. The same point suffices also to refute Sagi and Shapira's claim that willingness to pay the price serves as “a sign of their recognition of the fact that the change must be carried out by society as a whole” (ibid at 212), for even if there is room for this symbolic meaning of the willingness to pay the price, clearly it does not vindicate punishments of arbitrary severity.

⁶³ I think – though I am not sure – that the understanding of this thought I am about to suggest also better coheres with the body of literature on this point.

⁶⁴ They can, of course, argue against the authority of one instance or another within the system, as some of the refuseniks have argued against the authority of the military courts to decide their cases.

⁶⁵ At times, Sagi and Shapira, supra n. 1, at 183 write as if the relevance of the willingness-to-pay-the-price intuition is evidential in character – it gives spectators, and perhaps even the refusenik him – or herself, much needed evidence as to the sincerity of the act of refusal. But I see no reason to believe that no other evidence for such sincerity is available or sufficient, and even if this were the case still this would not suffice to undermine the justification of the refusal.

⁶⁶ Medina, supra n. 1, at 100–104 discusses such fairness-considerations, but he does so in the context of determining the proper reaction of the state to acts of refusal, not in the context of the evaluation of such acts themselves. And this complicates matters significantly: Citizens may be required by fairness to obey the law, but it seems to me much less plausible to claim that the state is required by fairness to punish citizens who do not

⁶⁷ See Gans, supra n. 12, at 108–111.