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Society for Applied Philosophy Annual Conference 2014

St Anne's College, Oxford University, Oxford, United Kingdom

Friday, June 27 2014 - Sunday, June 29 2014

Shlomit Asheri-Shahaf

Mind the Gap: From Liberal to Anti-liberal

Justifications of Conscientious Objection to Military Service

In the majority of democratic states today, conscientious objection (henceforth

CO) to military service is legal when it appears as a principled objection, such as

pacifism. However, CO is generally illegal when it appears as a resistance on specific

and political grounds, for example, out of objection to what is defined by the resisters

as an 'unjust war'. It should be mentioned that specific and political CO is legal today

in several states, such as Denmark and Holland and was legal in England during the

Second World War.1

Liberal philosophy has been much preoccupied with justifications of

disobedience, including illegal CO.2 But what about justifications as they emerge in

public debates over CO to military service? I argue that ignoring arguments that do not

conform to liberal theoretical definitions does not accurately reflect the full complexity

of the empirical argumentation existing in public debates on CO. In other words, this

paper focuses on showing the full argumentative picture in purpose of arriving at a

precise understanding, not only of the familiar liberal arguments, but of all the

1 P., Singer, 1973. Democracy and Disobedience. Oxford: Clarendon Press, 101; C., Moskos, and

Chambers, J., 1993. The New Conscientious Objection. Oxford: Oxford University Press, 36, 109, and

224. 2 Traditionally, liberal philosophy has regarded resistance to military service either as a type of

conscientious objection or as synonymous with it. Later on, some forms of resistance to military service

came to be seen as similar to civil disobedience. For definitions of conscientious objection, see: Rawls

(1990, 368-371), Raz (1979, 263-264), Walzer (1970, 12), Moskos and Chambers (1993, 5). For

definitions of civil disobedience, see: Bedau (1961, 661), Rawls (1990, 363-368), Raz (1979, 263),

Walzer (1970, 24-25), Zinn (1968, 281), Singer (1973, 72-92), Greenawalt (1987, 232-240), Lefkowitz

(2007, 204-205). For a different definition of civil disobedience, see: Bedau, ed. (1991. Kimberley

Brownlee claims that there is no use in trying to hone the existing definitions any further, and instead

suggests that an appropriate paradigm be sought (Brownlee 2004, 337-351).

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arguments arising from public debates on CO to military service. By presenting all

kinds of arguments, my aim is to show the gap between justifications of CO as they are

known to us from liberal philosophy and argumentation of CO that was found in public

debates.

My argument that empirically there is such a gap surely does not surprise

liberals, for liberalism is committed to tolerance, including to non-liberal ideas. The

question is would a theory of disobedience, addressing all kinds of argumentation,

including non-liberal and non-philosophical arguments, be more comprehensive and

precise than liberal theories of disobedience? The answer is affirmative, provided that

such a theory would be able to justify the moral intuitions of objectors whose arguments

are based on diverse, not necessarily liberal worldviews.

Let me start by explaining why it is important that the philosophical discussion

of CO takes into consideration all arguments. The assumption is that a theory in political

philosophy that takes public intuitions and theories into account will be unable to ignore

the multifarious arguments made by the public. That is, when discussing the illegal CO

dilemma, we will find different kinds of justifications - some very familiar to

philosophical discourse and others less so - which originate from and preoccupy the

public.

Ignoring arguments that do not comply with liberal theoretical stipulations has

two consequences. First, it puts into relief the limitations of the theory, which is only

capable of dealing with arguments that adhere perfectly to the definitions and

justifications of liberal philosophy. Arguments that do not meet these criteria are

deemed irrelevant or erroneous and remain outside academic discourse. In this way, the

theoretical discussion is doomed to incompleteness at best, or to focusing on the

marginal aspects of the dilemma at worst. Can any philosophical discussion that

engages a political issue be thorough and complete if it excludes some of the relevant

arguments? Of course not.

A second consequence of ignoring some of the arguments is that the

philosophical discussion may be occluded precisely with respect to (more) important

and pivotal arguments, at least in the eyes of those who partake in public debates. For

people who are preoccupied with the CO dilemma not just as a philosophical issue, but

as a question that bears directly on their lives (for example, soldiers who are

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contemplating whether to refuse, engaged citizens, public figures, community leaders,

public opinion leaders and politicians—as a matter of fact, everybody), a theory that

ignores major arguments they make, may render itself irrelevant and incapable of

contributing to public debates. These are sad news if one believes that political theory

should be, to some extent, relevant and helpful when people face moral and political

dilemmas.

Therefore, it has been argued that a good theory in political philosophy would

be one that meets the twofold requirement of both internal and external consistency

and coherence. Internal weakness is a lack of coherence or consistency within the

theory itself, and it may arise from a tension or contradiction between different elements

of the theory (definitions, justifications), or from a sense that these elements are

counter-intuitive. External weakness, as was shown by Jonathan Wolff and Avner de-

Shalit, exists when the theory is inconsistent with empirically existing intuitions,

theories, actions or situations which are external to the theory. Hence, they can serve as

a mirror from which the degree of its external validity is reflected back to it. External

weaknesses exist when it is difficult to make use of the theory in real cases of CO,

rendering it irrelevant to the political reality.

In order to meet the twofold requirement of both internal and external

consistency and coherence, I chose to use the 'Public Reflective Equilibrium'

methodology (henceforth PRE) that makes it possible to bring non-philosophical

arguments into the philosophical discussion (de-Shalit 2006). External strength may be

achieved by employing the principle of PRE, which highlights the importance of public

intuitions and theories.

It should be stressed that it is not my intention to claim that every argument

uttered by the public is accepted as justified once the process has been completed and

PRE has been attained. Rather, a 'good' argument is one that can put into relief the

limitations of liberal theories of disobedience. This may be achieved in two ways: (1)

if arguments are found which do not, and cannot, appear in liberal theoretical literature;

(2) if the application of liberal theories to argumentation found in public debates over

CO which have existed in reality, yields an incompatibility between the justifications

on the one hand and moral intuitions on the other.

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The theories and intuitions of the public with respect to CO were drawn from

texts and in-depth conversations with refusers, supporters and opponents of CO, from

three public debates. The purpose of collecting the arguments was to present as many

arguments as possible, for or against CO.

All of the arguments were subjected to critical scrutiny according to the criteria

of PRE (namely, internal consistency and coherence, external consistency, that is,

faithfulness to the intentions of those making the claims beyond the given claim at hand

and consistency with other theories and intuitions held by the same people, and the

ability to justify the position of those making the claim (de-Shalit 2006). Then, the

arguments were classified into 25 types. These types were then divided into five

primary categories, according to the value or values from which each argument derives.

The five primary categories of Justifications of CO are:

A. Liberal justifications: arguments defending liberal values, such as

majority restraint, violation of basic liberties, tolerance of minorities, violation of

property rights, and utilitarianism.

B. Democratic justifications: arguments defending the democratic

system, such as the democratic procedure or democratic rules of the game (democratic

arguments) or commitment to democratic values (arguments from democracy).

C. Mixed-liberal justifications: arguments defending liberal and other

values, though compatible with liberalism, simultaneously.

D. Non-liberal justifications: arguments that do not defend liberal values

but defend other values that are not necessarily (but can be) in contradiction with

liberalism.

E. Anti-liberal justifications: arguments defending values that contradict

liberal values.

As for the difference between categories C and D: a mixed-liberal argument

stems from a mutual commitment to universal and particular values at the same time,

such as liberal nationalism, whereas a non-liberal argument has no commitment to

liberalism.

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As for the difference between categories D and E: Not every non-liberal

argument is perforce anti-liberal. For an argument to be classified as anti-liberal it must

be demonstrated that it derives from an anti-liberal ideology. At the same time, it should

not be inferred from this insight that all arguments are of equal standing from a moral

or value standpoint. In my view, Anti-liberal arguments are morally unacceptable and

cannot serve as the basis for justifying CO. Nevertheless, two distinctions must be

made. First, not every particularistic value is necessarily in conflict with liberal values.

Second, not every non-liberal value is necessarily also non-universal (universal values

that do not derive from liberal values can be, for instance, democratic values).

The classification shows that in the actual public debates over CO, the

argumentation was not divided dichotomously between liberal and other values.

Furthermore, when CO is defined as a dilemma between democracy and liberalism, an

inner tension exists between two universalistic views. Yet the CO argumentation

articulated in public debates shows that the CO dilemma is not exclusively internal to

the sphere of universal values, but may also emerge due to a tension between

universalistic and particularistic values, or as a tension internal to the sphere of

particularism. Therefore, a theory of CO that fails to take particularistic values into

account is bound to be irrelevant to refusers and to participants in the public debate over

CO.

The classification also shows that liberal theories of disobedience suffer from

internal and external weaknesses stemming from their difficulty in coping with modes

of argumentation that are not purely liberal. Therefore, the question is whether a theory

of CO addressing all kinds of argumentation be more comprehensive and precise than

liberal theories of disobedience?

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The 'patriotic theory of resistance to military service'

CO challenges a social convention considered by many to be a central

manifestation of citizenship and patriotism, namely, military service. CO, therefore,

poses a unique challenge to liberal thought, beyond the difficulties arising out of the

more general discussion on disobedience. CO differs from other dilemmas of

disobedience primarily in its questioning of certain (but common) conceptions of

patriotism.

Therefore, unlike other liberal theories of disobedience, I argue that CO is not

necessarily a dilemma between freedom of conscience and the duty to obey the law, but

above all, is a dilemma between two conflicting patriotic motivations: the patriotic

obligation to serve in the military versus the patriotic obligation to resist service in the

military. In other words, there are military resisters who wish to serve in the military

primarily because they are patriotic, and not primarily because they are legally

obligated to do so (or from other reasons). But sometimes it is their patriotic obligation

that tells them not to serve. Furthermore, one of the main accusations leveled against

military resisters, insofar as they are military resisters, is that of lack of patriotism, and

not necessarily that of disobedience.

It may be argued against the formulation of the dilemma in terms of a tension

between two patriotic motivations that there are reasons other than patriotism for which

citizens enlist. Nevertheless, when other motivations are involved (say, a military salary

or the prospect of social mobility or fear of social sanctions), then the tension is neither

between different values, nor between conscience and values. Of course, one’s

willingness to enlist and to fight (or to resist service) may stem from a variety of

reasons. I argue that military service, and even the willingness to die in battle, can also

be driven by non-patriotic reasons (albeit not unpatriotic either), such as the wish to be

a hero or to attain official national commemoration. Hence, just as the refusal to military

service can be compatible with patriotism, military service - including the willingness

to die in battle - does not necessarily testify exclusively to patriotism. Thus, my

argument is applicable to cases in which the primary motivation for conscription and

for resisting military service is patriotism.

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The 'patriotic theory of resistance to military service' (henceforth PRMS) is

characterized and therefore differs from other theories of disobedience by the following

four elements:

(1) It is based on empirical argumentation found in public debates and subjected to

critical scrutiny, according to the PRE methodology (and not only on arguments made

by professional philosophers)

(2) Its justifications stem primarily from patriotism, namely, from love of country

(and not primarily from justice or rights)

(3) It justifies PRMS based not only on liberal or universal values

Let me elaborate. PRMS stems from and can be justified on the basis of what

Stephen Nathanson defined as 'moderate patriotism', namely, a form of patriotism that

is committed to universal and particular values at the same time. The argument that

mutual commitment to universal and particular values simultaneously is not

contradictory to liberalism, is well known, and can be found in the works of, for

example, David Miller, Charles Taylor, Cecile Laborde, Maurizio Viroli, Charles

Blattberg, Yael Tamir and others.

The moral justification of PRMS is patriotism. However, there is more than one

conception of patriotism. For example, one approach to patriotism is identified with

Alasdair MacIntyre, who contends that patriotism and the loyalties it involves are not

just ordinary virtues, but primary virtues (MacIntyre 2003). This approach regards

patriotism as a virtue, justifies it and gives it preference over other values, even if

patriotism, according to this conception, is a fundamentally particularistic value.

Another approach, identified with Jürgen Habermas and others, offers a

cosmopolitan conception of patriotism, namely, one which rather than being based on

national identity, is based on exclusive commitment to universal principles (Habermas

1996; Nathanson 1997; Primoratz 2002b; Taylor 1996; Cronin 2003). The claim is that

patriotism justified in terms of a particularistic moral duty towards a specific

community, nation, or state, is dangerous due to its moral proximity to chauvinism,

nationalism and even extreme nationalism. That is, particularistic patriotism is

illegitimate, given the assumption that it is perforce antagonistic to universal values

(Will Kymlicka 1995; Martha Nussbaum 2010).

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A third approach criticizes both the particularistic and the universalistic

approaches, claiming that both fail to reflect the complexity of reality and the diversity

of commitments held by most people. Nathanson has formulated the 'moderate'

conception of patriotism, which assumes that commitment to particular, alongside

universal values, is an inextricable part of the lives of most people, and therefore a

moral theory that disregards it would be inadequate. The moderate character of this

patriotism is achieved by restraining the particularistic dimension and balancing it with

universal commitments. In other words, moderate patriotism enables people to promote

particular values and interests of their country while taking into consideration the values

and interests of other countries, and as long as compatibility with universal morality is

maintained.

Now, my aim is not to develop a discussion on different conceptions of

patriotism, but to focus on the conception of 'moderate patriotism' which, in my view,

is the most relevant for justifications of PRMS.3 Hence, without developing here my

argument why the 'moderate patriotism' is the most suited for PRMS, I will say that

what makes both particularistic and cosmopolitan patriotism almost irrelevant to PRMS

is their absolute or partial rejection of universalism, as well as particularism.

Moderate patriotism is characterized by the following four qualities: Special

affection for one's country, a special identification with it, special concern for its well-

being, and a willingness to sacrifice to promote the country's good. Patriots, according

to this definition, can differ widely from each other as long as they meet these four

criteria.

A moderate patriot is obligated to act for one’s country within the framework

of universal morality, i.e., not only are criticism, resistance, and protest during wartime

by no means unpatriotic, but patriots, precisely because of their patriotism, are in fact

3 For a discussion of patriotism, see: M. Dietz, 2002. Patriotism: A Brief History of the Term in I.

Primoratz, ed., Patriotism. New York: Humanity Books, 201-215.; M. Viroli, 1995. For Love of Country:

An essay on Patriotism and Nationalism. Oxford: Clarendon Press, Chap. 1-3; D. Bar-Tal, and Staub E.,

eds., 1997. Patriotism In the Lives of Individuals and Nations. Chicago: Nelson-Hall, 45-54; I.,

Primoratz, 2002b. Patriotism: A Deflationary View. The Philosophical Forum, 33 (4), 444. See also R.,

Schatz, and Staub, E., 1997. Manifestations of blind and constructive patriotism: Personality correlates

and individual-group relations in D. Bar-Tal and E. Staub, eds., Patriotism In the Lives of Individuals

and Nations, 229-245; J., Sullivan, Fried, A., and Dietz, M., 1992. Patriotism, Politics, and the

presidential elections of 1988. American Journal of Political Science, 36, 200-235.

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morally obligated to express their criticism for the sake of the country (and of others)

(Nathanson 1993).

Moderate patriotism, just like democracy and liberalism, obligates citizens to

voice their criticism. If they decide to make their criticism heard by PRMS, the resisters

must meet the four criteria of 'moderate patriotism', including the requirement of

personal sacrifice for one’s country. If they meet the criteria of 'moderate patriotism',

then this is a justified and legitimate form of resistance to military service.

In discussing PRMS, the element of willingness to make sacrifices for one’s

country (that is, a willingness to be punished, to be put to trial, jailed and socially

stigmatized) is central, for it constitutes a robust expression of patriotic sentiments

(love, identification, belonging, pride, concern, responsibility) among military resisters.

Many regard the willingness to enlist, to fight, to kill and be killed for one’s

country as the highest expression of the willingness to self-sacrifice, hence of

patriotism. This widespread conception of patriotism posits a necessary link between

itself and military conscription and fighting for one’s country. If there is a necessary

link of this kind, then a pacifist cannot be a patriot. Yet if such a necessary link does

not exist, but rather the willingness to make personal sacrifices for one’s country can

also be expressed in other ways, then patriotism is not conditional upon just one type

of sacrifice, but upon the willingness to make sacrifices in general.

Therefore, Nathanson argues that according to the moderate patriotism

approach, a pacifist can be a patriot.4 My claim is that, logically, if a pacifist who refuses

military conscription on principled grounds can be a patriot, then patriotism is all the

more applicable to non-pacifist military resisters. In other words, a willingness to make

personal sacrifices for one’s country is possible and justifiable on the basis of patriotism

even if it falls short of an unconditional willingness to kill and be killed for it.

The willingness to make personal sacrifices for the country’s sake manifests

itself at two levels, the social and the legal. Sacrifice in the social sense means being

willing to be exposed to public and media criticism, to be denounced and slandered, to

find oneself outside the consensus and so on. This sacrifice may be accompanied by

paying an economic price, for example, in the form of difficulty in finding a job,

4 Nathanson 1997.

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compromising on a job that falls below one’s real earning potential, and even being

fired or finding one’s professional career to be blocked. Sacrifice in the legal sense is

the willingness to be put to trial, punished, and jailed (sometimes recurrently).

When the PRMS is illegal, the willingness to sacrifice is present in both senses

(social and legal). When PRMS is legal, the willingness to sacrifice is present only in

the social sense. It should be mentioned that there are resisters who, while making

personal sacrifices in both senses, believe that the social cost is the most difficult part

of the sacrifice.5

(4) The fourth characteristic of the PRMS theory is that it based on the distinction

between legal legitimacy and political legitimacy (and not on the distinction between

legal and illegal CO)

Liberal philosophy tends to begin its discussion on disobedience by making a

distinction between legal and illegal protest and has been much preoccupied with

justifying illegal civil resistance, in purpose of rendering it political legitimacy.6 That

is, if PRMS is morally justifiable, it follows that this act is politically legitimate, even

if not legal.

However, the history of legalization of CO shows that obtaining legal

legitimacy did not necessarily lead to political legitimacy. In other words, legalization

is not enough, for CO to military service is, primarily, a dilemma of conflicting patriotic

obligations and not of obedience to the law. Therefore, in the case of CO to military

service, the distinction between legal and illegal CO weakens liberal theories of

disobedience.

5 J., Le Meur, 1959. Histoir D`un Acte Responsable – Le Cas Jean Le Meur. Esprit, 2, 690; Jamail

2009. 6For definitions of conscientious objection, see: Rawls (1990, 368-371), Raz (1979, 263-264), Walzer

(1970, 12), Moskos and Chambers (1993, 5). For definitions of civil disobedience, see: Bedau (1961,

661), Rawls (1990, 363-368), Raz (1979, 263), Walzer (1970, 24-25), Zinn (1968, 281), Singer (1973,

72-92), Greenawalt (1987, 232-240), Lefkowitz (2007, 204-205). For a different definition of civil

disobedience, see: Bedau, ed. (1991). Kimberley Brownlee claims that there is no use in trying to hone

the existing definitions any further, and instead suggests that an appropriate paradigm be sought

(Brownlee 2004, 337-351).

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Conclusion

The gap between justifications of CO as they are known to us from liberal

philosophy, and argumentation of CO that was found in public debates, exposes

liberal theories of disobedience to internal and external theoretical weaknesses.

It seems to me that the PRMS theory overcomes at least some of these

weaknesses.

If PRMS is morally justifiable, it follows that this act is politically

legitimate, being legal or not.7 If so, then the state can also acknowledge the

political legitimacy of patriotic military resisters: if the law has been breached,

the state may take the accepted juridical steps, putting the resisters to trial and

even punishing them, not as criminals or traitors or non-patriots, but as those

who have breached the law out of a sense of love, belonging, responsibility and

concern for the country. Resisters out of patriotism may obey or disobey the

law, but they are patriots nonetheless. Thank you!

7 It should be emphasized that this argument does not necessarily imply that patriotic RMS is politically

legitimate only when it is illegal, nor does it necessarily imply that a different form of RMS, one not

based primarily on patriotism (but, for example, on justice or religious belief) is not legitimate. For a

discussion of political legitimacy, see: B., Manin, 1987. On Legitimacy and Political Deliberation.

Political Theory, 15, 338-368; T., Nagel, 1987. Moral Conflict and Political Legitimacy. Philosophy and

Public Affairs, 16 (3), 215-240; A., Buchanan, 2002. Political Legitimacy and Democracy. Ethics, 112

(4), 689-719; J. M., Coicaud, 2002. Legitimacy and Politics: A Contribution to the Study of Political

Right and Political Responsibility. Cambridge: Cambridge University Press.

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