The case of John Rawls vs. the refuseniks: A cautionary tale on liberalism’s delegitimisation of conscientious civil disobedience

Rawlsian liberalism, the dominant contemporary form of liberalism (which is in turn the dominant political philosophy of our time, the reigning -- presumed -- paradigm in the discipline), being centrally constituted by ‘neutrality’ between conceptions of the good, is (allegedly) tolerant of religions, and of other ‘comprehensive doctrines’, provided that such doctrines do not seek to achieve political power / to enact political ends in their own names. One of the ways however in which Rawls’s liberalism thereby ‘privatises’ religion and morality makes its -- not infrequently desirable -- impact on the political sphere severely punishable, is through Rawls’s influential sharp division between ‘conscientious objection’ (private, not supposed to influence state policy) and ‘civil disobedience’ (public, political). This distinction, especially in roughly its Rawlsian form, has been enormously influential, including in courts of law.
	The claims and suggestions in the previous paragraph would take an entire paper to expand upon -- and, more crucially, to support. My aim in the present paper is far more circumscribed. It is to endeavour to apply the suggestions just made so as examine one powerful real-life case-study of the impact Rawls’s philosophy has had upon the law and upon politics, so far as these matters are concerned. The case-study is the (outside Israel) surprisingly little-known significant impact of Rawls’s doctrine on the conscientious objection vs. civil disobedience issue in relation to the ‘Courage to Refuse’ movement in Israel/Palestine. That is, the movement of Israeli soldiers objecting specifically to orders to take part in the Israeli military occupation of Palestine.
	The case-study is pretty accessible: virtually every quotation I shall give is from one recent special issue of the Israel Law Review, ‘Refusals to serve’. This special issue conveniently collects together the key Israeli Supreme Court judgement against the Refuseniks with a series of learned commentaries upon this judgement, including commentaries by some of the parties to the case. Crucially, two academics (Avi Sagi and Ron Shapira) who submitted to the Court a brief arguing against the Refuseniks, and who are cited in the Supreme Court judgement itself by the President in his ruling (p.6), play a key role in the arguments of this issue of the journal. Crucially: because their arguments are based hook, line and sinker upon Rawls’s conscientious objection vs. civil disobedience distinction. 
	I will in this paper concisely present the key philosophical issues involved in the debate, and argue that Rawlsian liberalism does indeed undermine the tenability of the conscientious ‘Refuseniks’, and that this is a telling and deeply regrettable finding.

The way in which the Introduction to ‘Refusals to serve’ frames the issue under discussion in this paper is quite striking, in this connection. The editors say:

“The complexity of this issue results from the distinctive nature of [refusals to serve in the Israeli army in the Occupied Territories]. On the one hand, these are acts that are motivated by a deep conviction that certain military activities are wrong (“conscientious objection”). On the other hand, they are also aimed at bringing about a change in the policies of the government (so-called “civil disobedience”).” (Medina and Weisburd, vii)

What is precisely not allowed in the Rawlsian schema is for something to be intended to be both of these things at once. (To be both of these things at once, by more than ‘coincidence’.)  And it is this element of the Rawlsian schema that is exploited by Sagi and Shapira, in order to make their argument, an argument that appeared to impress the Supreme Court. In other words, what there is no room for is conscientious objection that is civil disobedience; or, perhaps more accurately still, where there is no clear conceptual space, so far as the practitioners of the thought/action in question are concerned, for even making the distinction. Such a view, such a stance, is, I will submit, precisely the sort of view/stance that would be / is taken by those who have a serious level of commitment to a ‘comprehensive doctrine’ (e.g. a religion which is not purely a private affair; a (politically/ethically) ‘engaged’ spirituality) which is actually worth holding to. A way of seeing the world / a way of living which, not merely wanting egocentrically to keep its hands clean, cares about others, has compassion, in such a way that it might find (say) the Occupation wrong, but not all army service; or, to give a hypothetical example for comparison, which might find war an evil, but force in defence of Mother Earth sometimes a good.
	For the Rawlsian liberal, one’s ‘comprehensive doctrine’ is not permitted to enter into one’s political doctrines and actions, in its own terms. The liberal thus allows conscientious objection only to the extent that the objector is aiming to salve his own conscience; not to the extent that he is aiming to have any political effect whatsoever. The Refuseniks in Israel are mostly Zionists, and Judaists; many of them believe that their religion allows for -- indeed, mandates 
-- defence of Israel; but NOT of ‘Eretz Yisrael’, i.e. not of Palestinian lands. Ironically, the more reasonable their views, the less tenable/acceptable those views appear, from the standpoint of the Rawlsian criterion of acceptable conscientious objection. To be an acceptable conscientious objector, for Rawls, one has to have a blanket -- extreme, un-nuanced, un-selective -- pacificistic or anti-militaristic view; and furthermore, one has to have no real chance of leading enough others to have a similar view so as to damage the operational efficiency of the army. 
	The bizarre and deeply-ironic consequence of this is writ large at one point in Barak Medina’s paper, as at several other points, I would suggest, in ‘Refusals to serve’; the problem with the Refuseniks’ case for being conscientious objectors is said to be that they are too mainstream, that they fail to “defy the constitutive principles of the current Israeli society” (p.92), and thus cannot be entitled to the privileges accorded to ‘permanent minorities’. In other words: to qualify as conscientious objectors, the Refuseniks ought to give up their ‘moderate’ Zionism, and become (e.g.) Judaist extremists/fundamentalists! An odd prescription, for a society wishing to save, help or better itself... Medina admits the point, through the way he frames the conclusion he himself draws from this (p.93): “Somewhat paradoxically, it is the political illegitimacy of the underlying reasons of these acts of refusals [viz. theologically-motivated refusals to enter the Israeli army on the part of Ultra-Orthodox Jews] that make them protected acts of conscientious objection.” (emphasis added)  Medina adds here, crucially and tellingly, that “the form of these refusals fits the celebrated definition of “conscientious objection” offered by Rawls.” 
	Thus the Israeli Supreme Court followed a precisely Rawlsian line, in confirming the illegality, in its view, of what it precisely called “selective conscientious objection”, a category it deemed illegitimate for the very same reason that Rawls in effect proposed.
	In the remainder of this paper, I shall establish this case more firmly, by quoting and discussing the arguments made in ‘Refusals to serve’, by Sagi and Shapira, in their brief to the Court and afterward, and by others.
	
	The case is fairly easily made. Take the following remark, at the very opening of the substance of Sagi and Shapira’s main paper, called simply “Civil disobedience and conscientious objection”, in ‘Refusals to serve’: “Following Rawls’s footsteps, the philosophical literature commonly distinguishes between civil disobedience and conscientious objection.” (p.182) They go on to (try to) make out their claim that Rawls is indeed the person to follow on the issue: 

“Conscientious objection is an act which aims to safeguard the conscience of a person. Michael Walzer and John Rawls are divided on the nature of conscientious considerations. Walzer is of the opinion that “the very word ‘conscience’ implies a shared moral knowledge, and it is probably fair to argue not only that the individual’s understanding of god or the higher law is always acquired within a group but also that his obligation to either is at the same time an obligation to the group and to its members... thus conscience can also be described as a form of moral knowledge that we share not with god, but with other men -- our fellow citizens...”
...Rawls -- and probably most writers on this subject -- reject this approach. They believe that an act of conscientious objection is one motivated by personal factors, which generally cannot be justified on universal grounds. ...In this paper, this thesis will be termed “private conscientious objection”. (Pp.183-5)

I would venture to suggest that the “probably most writers on the subject” refers to liberals, and principally to broadly-Rawlsian liberals. Walzer’s ‘communitarian’ alternative reading of conscientious objection provides some possibility of a constitutively shared sense of conscience; his line of thinking would naturally lead to the possibility of groups working together to see their deeply-held beliefs put into practice. Rawls’s line of thinking by contrast rigorously privatises conscience. (Thus, Sagi and Shapira’s telling phrase: “private conscientious objection”.)

Thus armed, Sagi and Shapira go on to criticise Chaim Gans’s tentative defence of “selective conscientious objection” (e.g. in his “Right and left: Ideological disobedience in Israel”). They describe Gans’s contention as follows: “[Gans] argues that conceivably those refusing to serve have acted out of mixed motives, combining motives of conscientious objection and motives of civil disobedience, and therefore they must be treated in the same way as private conscientious objectors are treated.” (p.186)  It can be seen here how Rawls’s ideas have biassed the pitch. Gans is onto a loser, in trying to speak of “mixed motives”. Sagi and Shapira have already claimed the ‘high ground’, in being able to hold that, prima facie at least, there is a disjunction, a clear and unproblematic conceptual distinction, between conscientious objection and civil disobedience. On this view, conscientious objection should be ‘merely’ moral; it should have no public effects... This is an individualised -- liberal -- vision of ‘morality’. The conscientious objector is allowed to be responsible for his own actions. Only. The idea that we have wider responsibilities -- to peace, to survival, to love, etc. -- is anethma. Gans has already as good as lost half the argument, as soon as he concedes to Sagi and Shapira that the ‘sharp conceptual distinction’ between conscientious objection and civil disobedience is a good place to start. 
	Even so, even despite hobbling himself in the manner I have just described, Gans makes a reasonably good fist of defending the refuseniks against the Rawlsian attack. He writes: 

“[A]ccording to the Shapira-Sagi formulation, conscientious objection and civil disobedience are mutually exclusive categories in the sense that one cannot simultaneously belong to both categories, i.e. one cannot perform an act motivated concurrently by value-based considerations as well as by political objectives. The reality however is that the breach of the law can indeed by concurrently motivated by both goals. // ...The question is: how should the political system treat dissenters/objectors whose disobedience is value-based in addition to being politically motivated?” (pp.46-7)
	
	A useful prolegomenon to an answer to this question was provided to the Court, by Joseph Raz:

“So-called “selective” conscientious objection is just ordinary conscientious objection. It is the government whose laws are broken which regards some conscientious objectors as selective, and others as non-selective. The distinction is meaningless to the objectors. They can only object to what they find objectionable, and they are bound in conscience to object to that. If they object to all war then that is what they must object to. If they regard a particular war, or the use of a particular weapon, etc., as morally illicit then this is what they object to. They cannot be more or les selective. They are bound by their conscience, and cannot extend or contract their beliefs at will.”  

Fuchs and Sfard point out, further (p.132), that it should be just obvious that selective (religious, or ‘political’) objection is justifiable, to any believer in the Just War Theory, which by definition sees some wars as requiring to be objected to. ‘Selective’ objection is not ‘content-neutral’ between grounds for objection; and in any sane internationally-law-abiding society, this would be (seen as) a good thing. So why did the Supreme Court make the negative judgement on the refuseniks’ case that it did? And how could Sagi and Shapira possibly have succeeded in seemingly legitimating -- and thus perhaps ensuring -- the Court’s decision?

	I have clearly telegraphed my answer. It is because of the cultural caché of ‘neutral’ liberalism, of an alleged state neutrality between conceptions of the good, that is most closely identified with the work of John Rawls. Again, Sagi and Shapira describe themselves as “[f]ollowing Rawls’s footsteps” (p.182), in their article, and the degree to which even their critics are unable to break entirely free from those footsteps correlates closely with the degree to which the Sagi-Shapira line retains any vestige of credibility.
	And perhaps the critics find it especially difficult to break free of Rawlsian liberal assumptions, given that such assumptions tend in any case (in modern Western liberal democracies) to be more or less in harmony with the legal framework itself, as it pre-exists the Court’s judgement on the refuseniks’ case. Take the following remarks of Sagi and Shapira (p.189): “[A]ccording to Section 36 of the Defense Service Law every citizen has a right to apply for exemption from military service. For this purpose a special committee was set up to examine the cases of conscientious objectors. The majority of Intifadah objectors did not apply to this committee and did not seek an exemption on personal grounds of conscience. Instead, they carried out and continue to carry out public acts aimed at coercing the political authorities to alter their decisions.”
	It is quite extraordinary here, how Sagi and Shapira have the chutzpah to use the very system that they are arguing in defence of in order to condemn those they are arguing against. In philosophy, such a move would be called begging the question...  Of course the refuseniks didn’t seek to be exempted from service on the grounds that the military has traditionally allowed, for those grounds excluded their own grounds! The permitted grounds left space only for complete pacifists, permanent extreme religious minorities, and a couple of  other designated minority groups. The system only permits ‘universal’, pacifist etc. conscientious objection -- and so the refuseniks are condemned out of hand, as civil disobedients!  The framework that is imposed upon them -- by the system, and by these authors -- is used to interpret them through, as if they were themselves speaking! 
	Rawls provides an apologia for those legal codes that are institutionally biassed toward liberalism -- and thus, ‘ironically’, toward state power, and against anything but a fully-privatised freedom of conscience. Unsurprisingly, the Rawlsian contribution to the debate, then, is intellectually to back up an exceedingly sharp conceptual distinction between conscientious objection and civil disobedience, a distinction that enforces a privatised individualised morality, religion and self-conception.
	Now Sagi and Shapira do actually, at one point, have the courtesy to let the refuseniks speak, to quote directly from them. Sagi and Shapira appear to think that what they quote helps their case; they somehow fail to notice that it pretty fatally undermines it. For the quotation from the refuseniks’ open letter that they quote contains this ringing line: “When the elected government tramples over democratic values and the chances for a just peace in the region, we have no choice but to obey our conscience and refuse to take part in the attack on the Palestinian people.” (emphasis added; p.190)
	But even such solecisms on the part of Sagi and Shapira as quoting this do not 100% discredit them, as long as they succeed in keeping intact the conceptual distinction between conscientious objection and civil disobedience. It is of course this that they wheel in, in their explicit effort to rebut Raz. They remark that “It is admittedly conceivable, as a matter of logic, that people will act upon a mixed motive, in part private and in part political.” (p.192)  Once again, we can see here how the presumption of the Rawlsian distinction, the starkness of the dichotomy, is part of the problem. They point out that “[t]he refusal [to serve in the army in the Occupied Territories] was reasoned by its articulate perpetrators, and their explanations clearly elucidated that they have no interest in redeeming themselves, but rather in changing the policy of the government of Israel.” As though those two things couldn’t coincide by more than accident...  The articulacy of the ‘perpetrators’ who refuse to serve is itself evidence of a crime, for Sagi and Shapira. This is revealing: conscientious objectors, you see, ought in effect to be dumb, mute, acting only from a self-regarding heart, with no intention beyond their private “redemption”...

	The upshot of our brief examination of this jurisprudential debate is as follows: The cultural caché of liberalism’s sharp public vs. private distinction, intellectually founded nowadays upon the notion of state neutrality between conceptions of the good, and refracted in particular through the lens of Rawls civil disobedience vs. conscientious objection distinction, has in effect made the position of the (of course mostly Zionist, Judaist) ‘Courage to Refuse’ refuseniks in Israel impossible. Rawls’s stance has been enormously influential in Israel as a tool with which the political Right (which now occupies the entire ‘mainstream’ of politics in Israel, including Ariel Sharon’s and Ehud Olmert’s new governing Party and most of the Labour Party) has argued successfully against any judicial viability in the stance of the refuseniks. This is the political reality of how Rawls’s prohibition on religion or any ‘comprehensive doctrine’ having a public face works: The Israeli Supreme Court has ruled against ‘selective’ conscientious objection (objection to serving in Israel’s Occupation of Palestine), or conscientious objection that is also civil disobedience, leaning heavily, in effect, on Rawls’s distinction, in the process.

      In a world in which we do not think of ourselves as isolated individuals, conscientious objection and civil disobedience are naturally one, rather than two. In such a world, ‘civil disobedience’ comes from deep moral and spiritual conviction; and ‘conscientious objection’ can be wide-ranging, other-involving (recall the Walzer quote, earlier in this paper), politically literate, etc. . But the world that liberalism has made in its own image is not such a world. It is, rather, a world modelled for instance around the figures of ideal contractors, autonomous and only self-regarding. It is a world that splits public from private, political from religious, and so on. It is a world not unlike the world that neo-liberal economies and polities are ever increasingly generating for us.

      Before I conclude, however, I must consider a last objection explicitly: that those who invoke Rawls to argue that the refuseniks cannot be justly characterized as ‘conscientious refusers’ are traducing Rawls. That they are simply poor interpreters of his liberal philosophy, which does not necessarily support their stance. 
	I have indicated in passing at a number of points in the above that -- while the likes of Medina, Sagi and Shapira are hardly Rawls’s most delicate, intelligent, reliable or subtle interpreters --, nevertheless I find this objection unconvincing. For the broad thrust of the anti-Refuseniks’ reading of Rawls is dead right: for Rawls, civil disobedience is an essentially public and political phenomenon that is punishable, whereas conscientious refusal is an essentially private phenomenon that is (normally) not punishable. The Refuseniks want to argue that their actions should not be punishable/punished. They have inextricably religious, moral and political reasons for their actions; they reject the distinction between civil disobedience and conscientious refusal. 
	But can’t Rawls accommodate that (the objection continues)? For at one point Rawls allows that “there is, of course, in actual situations no sharp distinction between civil disobedience and conscientious refusal. Moreover the same action (or sequence of actions) may have strong elements of both.” (p.371)  But Rawls clearly implies here that conceptually one can still sort out these different ‘elements’ one from the other. On the Refuseniks’ behalf, and going beyond what most of their legal defenders have argued, I have submitted that the Refuseniks do not merely reject the view that the distinction is always clear, or that there are no genuine borderline/hard cases of distinguishing between the two. These moves, Rawls would indeed be quite happy with. No; they reject the distinction. I have suggested that the Refuseniks want to say that much of what they do cannot be understood without understanding that they are wanting to engage in conscientious refusal that is simultaneously civil disobedience; or, better, that it just doesn’t make sense to ask them to determine where ‘one’ starts and ‘the other’ ends. (And many of them believe that it is their religion -- a politically-engaged, a Zionist Judaism, but not any kind of Fundamentalism -- that compels this ‘conscientious civil disobedience’ ... a line of thought which Rawls cannot and does not allow space for.)  The very distinction between conscientious objection and civil disobedience, I have argued, hobbles and handicaps the refuseniks’ defenders.
	But doesn’t Rawls allow specifically that the “unwillingness of a soldier to obey an order that he thinks is manifestly contrary to the moral law as it applies to war” (p.368) counts as conscientious refusal? Yes -- but this is mostly not the case that we are dealing with, in the Occupied Territories, as I have explained, above. The Refuseniks are not in the first instance objecting to particularly pernicious methods being used in war, they are not primarily objecting to the commission of specific atrocities, war crimes, etc. . Their primary objection is to the Occupation itself, and to the call upon them to serve as part of it. The mere brute fact of the Occupation could hardly be said to “manifestly contrary to the moral law as it applies to war”; it is rather manifestly contrary, so the Refuseniks say, to their deepest religious and political convictions. Refusal to serve in the IDF in Palestine is not based upon the sometime or likely commission of war crimes, of crimes in the course of war; it is based upon a ‘selective’ -- political-religiously motivated -- conscientious objection to a particular genre of war, of occupation. . .
	 The objection, therefore, fails. It is not at all unreasonable to interpret Rawls along just the lines that his anti-Refusenik followers in Israel have done.

And so, the empirical conclusion one must draw from my case-study is highly disturbing. It is that Rawls’s arguments have had an actual, tangible and not-unpredictable influence on preventing the ‘Courage to Refuse’ movement from getting a fair hearing in Israel. For those of us who believe (as virtually every country in the U.N. believes, for instance) that Israel’s occupation of Palestine is an indefensible violation of international law, and who believe the ‘Refuseniks’ to be heros, this result is deeply distressing -- and deeply revealing. Rawls’s doctrine of a sharp conceptual divide between conscientious objection and civil disobedience, a doctrine thoroughly grounded in the liberal private vs. public distinction -- and preserving the ‘sanctity’ of the political sphere so as not to have it invaded by avowedly religious, spiritual, ‘comprehensive’ doctrines -- has biassed the pitch against the very idea of a conscientious objection that is through and through civil disobedience, or where the two are so ‘internally related’ that there are not two things here at all, but only one. Rawls’s system of thought -- contemporary political liberalism’s system of thought -- leaves no conceptual space for same; with the consequence that more and more space has to be found in Israeli prisons for some of Israel’s most conscientious and indeed most law-abiding citizens.
	The practices of Israel in the Occupied Territories (and to some extent on its own territory), practices such as separate roads for Jews and Arabs, look more and more similar to those of apartheid South Africa, and are clearly worse than those practiced by the state in the pre-Civil-Rights-movement American South. The non-violent resistance of a Gandhi, a King, a Mandela -- civil disobedience that was conscientious objection, utterly motivated by and manifested in moral, spiritual and religious teachings -- is rendered impossibly difficult, by the excuses that Rawlsian liberalism provides the Israeli state with for the delegitimisation of the most important radical internal opposition that it has faced, in recent years. The courageous, conscientious ‘refuseniks’ are locked up, courtesy of the Israeli Supreme Court, courtesy of John Rawls and his Israeli jurisprudential followers.
	The dark role played by Rawls’s arguments in the dismal saga of Israel’s repression of its own citizenry’s conscientiously-motivated effort both to refuse conscientiously to undertake immoral and internationally-illegal actions themselves and (thereby) to struggle against that immorality and illegality reveals an unpleasant truth about the political philosophy of liberalism. Namely, that it provides a systematic excuse for some of the very most oppressive and illiberal governance that the alleged ‘liberal democracies’ have ever practiced.