Civic Conscience, Selective Conscientious Objection and Lack of Choice

• Published date: 01 December 2017
• DOI: http://doi.org/10.1111/raju.12184
• Author: Yossi Nehushtan
• Date: 01 December 2017

Civic Conscience, Selective

Conscientious Objection

and Lack of Choice

YOSSI NEHUSHTAN

Abstract. Most democratic states tolerate, to various extents, conscientious objection.

The same states tend not to tolerate actsof civil disobedience and what they perceive

as selective conscientious objection. In this paper it is claimed that the dichotomy

between civil disobedience and conscientious objection is often misguided; that the

existence of a “civic conscience” makes it impossible to differentiate between consci-

entious objection and civil disobedience; and that there is no such thing as

“selective” conscientious objection—or that classifying an objection as “selective”

has no significant moral or practical implications. These claims are supported by a

preliminary, more general argument according to which conscientious objection is

and should be tolerated because the objector lacks the ability to choose his con-

science and to decide whether to act upon it. The lack-of-choice argument, it is

claimed, applies equally to all types of conscientious objection, including those that

are mistakenly called “selective” objection. It also applies to one type of civil disobe-

dience. As a result, if a state is willing to tolerate non-selective conscientious objec-

tion, it may and at times must alsotolerate selective conscientious objection and (one

type of) civil disobedience and to a similar degree (all other things being equal).

1. Introduction

Most states do not tolerate civil disobedience and what they perceive as selective

conscientious objection. Yet many states that do not tolerate civil disobedience and

selective conscientious objection do tolerate (to various degrees) what they perceive

to be non-selective conscientious objection. In this paper it is argued that all too

often there are no prevailing justifications for tolerating only non-selective consci-

entious objections. That is, if a state is willing to tolerate non-selective conscientious

objections, it may and at times must also tolerate civil disobedience (which relies

on what I shall call “civic conscience”) and selective conscientious objections—to a

similar degree (all other things being equal). This is so because there is one com-

mon justification for tolerating conscientious objection, civil disobedience (which

relies on a “civic conscience”) and selective conscientious objection. This justifica-

tion is grounded in the lack of ability of the dissident to choose the content of their

conscience and to choose whether or not to act in accordance with their conscience.

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C2017 The Authors. Ratio Juris V

C2017 John Wiley & Sons Ltd.

Ratio Juris. Vol. 30 No. 4 December 2017 (433–450)

Specifically, the lack of ability to choose one’s conscience as well as the lack of

ability to choose whether to act upon it means that the dichotomy between civil

disobedience and conscientious objection is often misguided. It also means that

there is no such thing as “selective” conscientious objection, or rather that concep-

tually, all conscientious objection—even the type mistakenly labelled “absolute”

conscientious objection—in fact is selective conscientious objection.

Moreover, even if the conceptual distinction between selective conscientious

objection and non-selective (or absolute) conscientious objection is sustainable, I

argue that this distinction has no significant moral or practical implications and

that ultimately, all kinds of conscientious objection should be treated equally (all

other things being equal).

In the second section I lay out a number of definitions of the central concepts

(conscientious objection, selective conscientious objection and civil disobedience) in

order to avoid misconceptions. In the third section I argue briefly that a common

justification for tolerating all types of conscientious objection involves acknowl-

edgement that conscientious objectors do not have real choice when they acquire

their conscience and act upon it. In the fourth section I rely on the lack-of-choice

argument and offer a new understanding of the differences between conscientious

objection and civil disobedience. In the fifth, sixth and seventh sections I rely on

the lack-of-choice argument in order to explain why selective conscientious objec-

tion is merely a form of conscientious objection and should therefore be treated the

same.

2. Conscientious Objection, Civil Disobedience and Selective

Conscientious Objection

For the purposes of this paper, and without trying to defend this assertion, I will

frame “conscience” as a source of “higher moral demands” to which a person sees

himself as subordinate. I will assume that a person’s conscience consists of his

deepest moral beliefs which provide uniquely strong or weighty reasons for doing

X or refraining from doing X. These “conscientious reasons” are normally conclu-

sive and are rarely overridden by conflicting reasons or excluded from the balance

of reasons by exclusionary reasons. Conscientious reasons can in fact be perceived

as exclusionary reasons themselves. Exclusionary reasons exclude first-order rea-

sons from the balance of reasons, which now rests upon the non-excluded reasons

and sometimes also on the exclusionary reason itself.

1

It may be the case that when

one has conscientious reasons for doing X or refraining from doing X, at least some

conflicting first-order reasons are excluded from the balance of reasons by the con-

scientious reasons and thus do not have any effect on the decision-making balanc-

ing process. It can also be the case that conscientious reasons simply override most

other reasons without excluding any of them from the balance of reasons. For the

purposes of this paper there is no need to decide whether conscientious reasons

are uniquely strong and weighty first-order reasons or exclusionary reasons, as

according to both perceptions—and as I apply them here—conscientious reasons

are “trump cards” in the sense that they almost always determine the final

1

For the differencebetween first-order andsecond-order reasons see Raz1994, 35–6, 39–40.

434 Yossi Nehushtan

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C2017 The Authors. Ratio Juris V

C2017 John Wiley & Sons Ltd. Ratio Juris, Vol. 30, No. 4