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\ql \li0\ri0\sl480\slmult0\nowidctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid3226595 \f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\b\f49\fs28\insrsid9641688 The case of John Rawls vs. the refuseniks}{
\b\f49\insrsid9641688 : A cautionary tale on liberalism\rquote s delegitimisation of conscientious civil disobedience}{\f49\insrsid9641688 
\par 
\par 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 \lquote neutrality\rquote 
 between conceptions of the good, is (allegedly) tolerant of religions, and of other \lquote comprehensive doctrines\rquote 
, 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\rquote s liberalism thereby \lquote }{\i\f49\insrsid9641688 privatises\rquote }{\f49\insrsid9641688 
 religion and morality makes its -- not infrequently }{\i\f49\insrsid9641688 desirable}{\f49\insrsid9641688  -- impact on the political sphere severely punishable, is through Rawls\rquote s influential sharp division between \lquote 
conscientious objection\rquote  (private, not supposed to influence state policy) and \lquote civil disobedience\rquote  (public, political). This distinction, especi
ally in roughly its Rawlsian form, has been enormously influential, including in courts of law.
\par \tab The claims and suggestions in the previous paragraph would take an entire paper to expand upon -- and}{\f49\insrsid343318 , more crucially,}{\f49\insrsid9641688  to support.}{\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain 
\ql \li0\ri0\sl360\slmult0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\cs16\super\insrsid9641688\charrsid8536369 \chftn }{\f4\fs20\insrsid9641688  See my \'93}{
\b\f49\fs20\insrsid9641688 On Rawls\rquote s failure to preserve genuine (freedom of) religion: confessions of an unreasonable religionist}{\f49\fs20\insrsid9641688 \'d3 (forthcoming), for such support and expansion; see also my \'d2Religion as sedition
\'d3 (forthcoming). For the basic Rawls discussion/distinction, see those papers, or p.363ff. of }{\f49\fs20\ul\insrsid9641688 A theory of Justice}{\f49\fs20\insrsid9641688  (Oxford: OUP, 1971).}}}{\f49\insrsid9641688 
 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 }{\i\f49\insrsid9641688 case-study}{\f49\insrsid9641688  of the impact Rawls\rquote 
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\rquote s doctrine on the conscientious objection vs. civi
l disobedience issue in relation to the \lquote Courage to Refuse\rquote  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.
\par \tab The case-study is pretty accessible: virtually every quotation I shall give is from one recent special issue of the }{\i\f49\insrsid9641688 Israel Law Review, }{\f49\insrsid9641688 \lquote Refusals to serve\rquote .}{
\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\cs16\super\insrsid9641688\charrsid8536369 
\chftn }{\f4\fs20\insrsid9641688  36: 3 (Fall 2002); unless specified, all page references alone, and citations of authors alone, in the remainder of this paper, are to this special issue of the }{\i\f4\fs20\insrsid9641688 ILR}{\f4\fs20\insrsid9641688 .}}
}{\f49\insrsid9641688 
 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 academic
s (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. Cruc
ially: because their arguments are based hook, line and sinker upon Rawls\rquote s conscientious objection vs. civil disobedience distinction.}{\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain 
\ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\cs16\super\insrsid9641688\charrsid8536369 \chftn }{\f4\fs20\insrsid9641688  }{\f49\fs20\insrsid9641688 
And, lest it be thought that the morals of this story \lquote only\rquote  apply to the case of Israel, think again. Much the same kinds of concerns are present in the contemporary U.S.A and U.K. For instance, }{\i\f49\fs20\insrsid9641688 Hansard}{
\f49\fs20\insrsid9641688 
 (www.theyworkforyou.com/debates/?id=2006-05-22b.1204.9) records that the British House of Commons debated the laws concerning desertion from the armed forces, on 22 May 2006. It overwhelmingly rejected arguments put by a few Labour left-wingers and Scots
 Nationalist that the maximum penalty for desertion should be reduced from life-imprisonment to some lesser amount. Among the arguments explicitly used by those Conservative and Labour MPs a
rguing against the proposed reduction was that no quarter should be given to those who \lquote selectively conscientiously object\rquote 
, deserting from the armed forces in the face of the specifics of the war on / the occupation of Iraq. The case of Flight-Lieutenant Kendall-Smith, recently court-martialled for his refusal to serve i
n Iraq, was several times explicitly mentioned. He now faces the possibility in effect (through indefinite prlongation of his detention, if he continues to refuse to serve) of life imprison
ment, similarly to the Refuseniks in Israel who in face in effect the very same possibility.}}}{\f49\insrsid9641688  
\par \tab 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 \lquote Refuseniks\rquote 
, and that this is a telling and deeply regrettable finding.
\par }\pard \ql \li0\ri0\nowidctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid3226595 {\f49\insrsid9641688 \tab 
\par }\pard \ql \li0\ri0\sl480\slmult0\nowidctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid3226595 {\f49\insrsid9641688 
\par The way in which the Introduction to \lquote Refusals to serve\rquote  frames the issue under discussion in this paper is quite striking, in this connection. The editors say:
\par 
\par }\pard \ql \li0\ri0\nowidctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid3226595 {\f49\insrsid9641688 \'d2
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 (
\'d2conscientious objection\'d3). On the other hand, they are also aimed at bringing about a change in the policies of the government (so-called \'d2civil disobedience\'d3).\'d3 (Medina and Weisburd, vii)
\par }\pard \ql \li0\ri0\sl480\slmult0\nowidctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid3226595 {\f49\insrsid9641688 
\par 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 \lquote coincidence\rquote 
.)  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.}{\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain 
\ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\cs16\super\insrsid9641688\charrsid8536369 \chftn }{\f4\fs20\insrsid9641688 
 Quoting now from the Supreme Couty judgement itself (p.6): \'93
Respondent supplemented his response with the opinions of Professors Avi Sagi and Ron Shapira which, he claims, support his position -- that the freedom of conscience and the right to object, as 
far as they stand, apply neither to the petitioners nor to the arguments upon which they base their request.\'94 In upholding the Respondent\rquote s claim, the Supreme Court ruled  (p.14-15) that \'93
it becomes difficult to distinguish between one who claims conscientious objection in good faith and one who, in actuality, objects to the policy of the government or the Knesset.\'94 My assertion is that it is notdifficult to see here Rawls\rquote 
s doctrine, as presented to the Court by Sagi and Shapira.}}}{\f49\insrsid9641688  In other words, what there is no room for is conscientious objection that }{\i\f49\insrsid9641688 is}{\f49\insrsid9641688 
 civil disobedience; or, perhaps more accurately still, where there is }{\i\f49\insrsid9641688 no clear conceptual space, so far as the practitioners of the thought/action in question are concerned, for even making the distinction}{\f49\insrsid9641688 
. 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 \lquote comprehensive doctrine\rquote  (e.g. a religion
 which is not purely a private affair; a (politically/ethically) \lquote engaged\rquote 
 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.
\par \tab For the Rawlsian liberal, one\rquote s \lquote comprehensive doctrine\rquote  is not permitted to enter into one\rquote 
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.}{
\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\cs16\super\insrsid9641688\charrsid8536369 
\chftn }{\f4\fs20\insrsid9641688  Rawls, ToJ, p.369: \'93[C]onscientious refusal is not an act in the public forum\'94.}}}{\f49\insrsid9641688 
 The Refuseniks in Israel are mostly Zionists, and Judaists; many of them believe that their religion allows for -- indeed, mandates 
\par -- defence of Israel; but NOT of \lquote Eretz Yisrael\rquote , i.e. not of Palestinian lands. Ironically, the more reasonable their views,}{\i\f49\insrsid9641688 
 the less tenable/acceptable those views appear, from the standpoint of the Rawlsian criterion of acceptable conscientious objection.}{\f49\insrsid9641688 
 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 vi
ew so as t}{\f49\insrsid9641688 o damage the operational efficie}{\f49\insrsid9641688 ncy of the army.}{\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 
\f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\cs16\super\insrsid9641688\charrsid8536369 \chftn }{\f4\fs20\insrsid9641688  Compare p.190 of Sagi and Shapira\rquote s paper, where they make absolutely clear that conscientious objectors
 are absolutely not allowed to want to }{\i\f4\fs20\insrsid9641688 win}{\f4\fs20\insrsid9641688 . This is a }{\i\f4\fs20\insrsid9641688 rigorous}{\f4\fs20\insrsid9641688  -- some would say an }{\i\f4\fs20\insrsid9641688 extreme}{\f4\fs20\insrsid9641688 
 -- }{\i\f4\fs20\insrsid9641688 privatisation}{\f4\fs20\insrsid9641688  of conscience: of morality, religion, etc., inasmuch as these are allowed to have}{\i\f4\fs20\insrsid9641688  no bearing}{\f4\fs20\insrsid9641688  on matters political.}}}{
\f49\insrsid9641688  
\par \tab The bizarre and deeply-ironic consequence of this is writ large at one point in Barak Medina\rquote s paper, as at several other points, I would suggest, in \lquote Refusals to serve\rquote ; the problem with the Refuseniks\rquote 
 case for being conscientious objectors is said to be that they are too mainstream, that they }{\i\f49\insrsid9641688 fail}{\f49\insrsid9641688  to \'d2}{\i\f49\insrsid9641688 defy the constitutive principles}{\f49\insrsid9641688 
 of the current Israeli society\'d3 (p.92), and thus cannot be entitled to the privileges accorded to \lquote permanent minorities\rquote . In other words: to qualify as conscientious objectors, the }{\i\f49\insrsid9641688 
Refuseniks ought to give up their \lquote moderate\rquote  Zionism, and become (e.g.) Judaist extremists/fundamentalists! }{\f49\insrsid9641688 
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): \'d2}{\i\f49\insrsid9641688 Somewhat paradoxically,}{\f49\insrsid9641688 
 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.\'d3
 (emphasis added)  Medina adds here, crucially and tellingly, that \'d2the }{\i\f49\insrsid9641688 form}{\f49\insrsid9641688  of these refusals fits the celebrated definition of \'d2conscientious objection\'d3 offered by Rawls.\'d3}{
\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\cs16\super\insrsid9641688\charrsid8536369 
\chftn }{\f4\fs20\insrsid9641688  Cf. also Medina\rquote s deeply-problematic assimilation of the refuseniks to purely \'93political\'94 acts of civil disobedience, on p.94 -- again, one can see here how the liberal }{\i\f4\fs20\insrsid9641688 categories}
{\f4\fs20\insrsid9641688  are deforming the very }{\i\f4\fs20\insrsid9641688 debate}{\f4\fs20\insrsid9641688 . For Rawls, civil disobedience appeals to shared principles of justice, it \'93invokes the convictions of the community\'94 (p.369): \'93
[C]ivil disobedience is a political act not only in the sense that it is addressed to the majority that holds political power, 
but also because it is an act guided and justified by political principles, that is, by the principles of justice whihc regulate the constitution and social institutions generally.\'94 (}{\i\f4\fs20\insrsid9641688 ToJ}{\f4\fs20\insrsid9641688 
, p.365). Civil disobedience is a \'93public act\'94 (p.366), an engagement in \lquote public reason\rquote .}}}{\f49\insrsid9641688  
\par \tab Thus the Israeli Supreme Court followed a precisely Rawlsian line, in confirming the illegality, in its view, of what it precisely called \'d2selective conscientious objection\'d3
, a category it deemed illegitimate for the very same reason that Rawls in effect proposed.
\par \tab In the remainder of this paper, I shall establish this case more firmly, by quoting and discussing the arguments made in \lquote Refusals to serve\rquote , by Sagi and Shapira, in their brief to the Court and afterward, and by others.
\par \tab 
\par \tab The case is fairly easily made.}{\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {
\cs16\super\insrsid9641688\charrsid8536369 \chftn }{\f4\fs20\insrsid9641688  And that is, even leaving on one side the many other places that others besides Sagi and Shapira rely on Rawls\rquote 
s thinking to frame the discussion for them. This is so over and over in Medina\rquote s writing in \lquote Refusals to serve\rquote  , for instance; the Introduction to the special issue sums up Medina\rquote s paper in the journal as follows: \'93
[he] arues that the [Israeli Defence Force\rquote s] current policy is actually based on a distinction between \'93non-political\'94 objections, which are claimed by members of a permanent minority based on views that are practically excluded from the
 political discourse, and \'93political\'94 objections, which are based on \'93political principles\'94 (in the Rawlsian sense), and that the policy of legitimising only the former type of refusals is justified.\'94 (p.vii)  In the paper itself, Medina
\rquote s making of the distinction is, naturally, indexed fully and explicitly to Rawls\rquote s work (p.79, n.26, n.27, n.35, p.93, n.54, n.55, n.56, n.74, n.80, n.86, n.89, & n.92).}}}{\f49\insrsid9641688 
 Take the following remark, at the very opening of the substance of Sagi and Shapira\rquote s main paper, called simply \'d2Civil disobedience and conscientious objection\'d3, in \lquote Refusals to serve\rquote : \'d2Following Rawls\rquote 
s footsteps, the philosophical literature commonly distinguishes between civil disobedience and conscientious objection.\'d3 (p.182) They go on to (try to) make out their claim that Rawls is indeed the person to follow on the issue: 
\par }\pard \ql \li0\ri0\nowidctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid3226595 {\f49\insrsid9641688 
\par \'d2Cons}{\f49\insrsid9641688 c}{\f49\insrsid9641688 ientious 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 }{
\f49\fs20\insrsid9641688 \'d2the very word \lquote conscience\rquote  implies a shared moral knowledge, and it is probably fair to argue not only that the individual\rquote s under
standing of god or the higher law is always acquired within a group but also that his obligation to either is at the same tim
e 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...\'d3}{\f49\insrsid9641688 
\par ...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 \'d2}{\b\f49\insrsid9641688 private conscientious objection}{\f49\insrsid9641688 \'d3. (Pp.183-5)
\par }\pard \ql \li0\ri0\sl480\slmult0\nowidctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid3226595 {\f49\insrsid9641688 
\par I would venture to suggest that the \'d2probably most writers on the subject\'d3 refers to liberals, and principally to broadly-Rawlsian liberals. Walzer\rquote s \lquote communitarian\rquote 
 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\rquote s line of thinking by contrast rigorously privatises conscience. (Thus, Sagi and Shapira\rquote s telling phrase: \'d2}{\b\f49\insrsid9641688 private}{\f49\insrsid9641688  conscientious objection\'d3.)

\par 
\par Thus armed, Sagi and Shapira go on to criticise Chaim Gans\rquote s tentative defence of \'d2selective conscientious objection\'d3 (e.g. in his \'d2Right and left: Ideological disobedience in Israel\'d3). They describe Gans\rquote 
s contention as follows: \'d2[Gans] argues that conceivably those refusing to serve have acted out of mixed motives, comb
ining motives of conscientious objection and motives of civil disobedience, and therefore they must be treated in the same way as private cons}{\f49\insrsid9641688 c}{\f49\insrsid9641688 ientious objectors are treated.\'d3 (p.186)  It ca
n be seen here how Rawls\rquote s ideas have biassed the pitch. Gans is onto a loser, in trying to speak of \'d2mixed motives\'d3. Sagi and Shapira have }{\i\f49\insrsid9641688 already}{\f49\insrsid9641688  claimed the \lquote high ground\rquote 
, in being able to hold that, }{\i\f49\insrsid9641688 prima facie}{\f49\insrsid9641688  at least, there is a disjunction, a clear and unproblematic conceptual distinction, between conscientious ob
jection and civil disobedience. On this view, conscientious objection }{\i\f49\insrsid9641688 should}{\f49\insrsid9641688  be \lquote merely\rquote  moral; it }{\i\f49\insrsid9641688 should}{\f49\insrsid9641688  have no public effects... This is an }{
\i\f49\insrsid9641688 individualised}{\f49\insrsid9641688  -- liberal -- vision of \lquote morality\rquote . The conscientious objector is allowed to be responsible for his }{\i\f49\insrsid9641688 own}{\f49\insrsid9641688 
 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 \lquote 
sharp conceptual distinction\rquote  between conscientious objection and civil disobedience is a good place to start.}{\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain 
\ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\cs16\super\insrsid9641688\charrsid8536369 \chftn }{\f4\fs20\insrsid9641688 
 The same is true even of Amir Paz-Fuchs and Michael Sfard (\'93Selective conscientious objection\'94). Their excellent paper too is hobbled somewhat (e.g. on p.134) by not being able to break the spell of the basic Rawlsian distinction between (\lquote 
private\rquote ) conscientious objection and (\lquote public\rquote ) civil disobedience.}}}{\f49\insrsid9641688  
\par \tab 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: 
\par 
\par }\pard \ql \li0\ri0\nowidctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid3226595 {\f49\insrsid9641688 \'d2
[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 v
alue-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 dis
obedience is value-based in addition to being politically motivated?\'d3 (pp.46-7)
\par }\pard \ql \li0\ri0\sl480\slmult0\nowidctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid3226595 {\f49\insrsid9641688 \tab 
\par \tab A useful prolegomenon to an answer to this question was provided to the Court, by Joseph Raz:
\par 
\par }\pard \ql \li0\ri0\nowidctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid3226595 {\f49\insrsid9641688 \'d2So-called \'d2selective\'d3 conscientious objection is just ordinary conscie
ntious 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 mor}{\f49\insrsid9641688 e or les sel}{\f49\insrsid9641688 ective. They are bound by their conscience, and cannot extend or contract their beliefs at will.\'d3 }{
\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\cs16\super\insrsid9641688\charrsid8536369 
\chftn }{\f4\fs20\insrsid9641688  Raz\rquote s letter to the Supreme Court, quoted on pp.132-3 of Fuchs and Sfard, \'93The fallacies of objection to selective conscientious objection\'94.}}}{\f49\insrsid9641688  
\par }\pard \ql \li0\ri0\sl480\slmult0\nowidctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid3226595 {\f49\insrsid9641688 
\par Fuchs and Sfard point out, further (p.132), that it should be just obvious that selective (religious, or \lquote political\rquote ) objection is justifiable, to any believer in the Just War Theory, which by definition sees }{\i\f49\insrsid9641688 some}{
\f49\insrsid9641688  wars as requiring to be objected to. \lquote Selective\rquote  objection is not \lquote content-neutral\rquote  between grounds for objection;}{\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain 
\ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\cs16\super\insrsid9641688\charrsid8536369 \chftn }{\f4\fs20\insrsid9641688 
 See p.142f. of Fuchs and Sfard, for discussion.}}}{\f49\insrsid9641688  and in any sane internationally-law-abiding society, this would be (seen as) a }{\i\f49\insrsid9641688 good}{\f49\insrsid9641688 
 thing. So why did the Supreme Court make the negative judgement on the refuseniks\rquote  case that it did? And how could Sagi and Shapira possibly have succeeded in seemingly legitimating -- and thus perhaps ensuring -- the Court\rquote s decision?

\par 
\par \tab I have clearly telegraphed my answer. It is because of the cultural cach\'8e of \lquote neutral\rquote 
 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 \'d2[f]ollowing Rawls\rquote s footsteps\'d3
 (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.
\par \tab 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 framewor
k itself, as it pre-exists the Court\rquote s judgement on the refuseniks\rquote  case. Take the following remarks of Sagi and Shapira (p.189): \'d2[A]ccording to Section 36 of the }{\i\f49\insrsid9641688 Defense Service Law}{\f49\insrsid9641688 
 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 }{\i\f49\insrsid9641688 Intifadah}{\f49\insrsid9641688 
 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.\'d3
\par \tab It is quite extraordinary here, how Sagi and Shapira have the }{\i\f49\insrsid9641688 chutzpah}{\f49\insrsid9641688 
 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...  }{\i\f49\insrsid9641688 Of course}{\f49\insrsid9641688  the refuseniks didn
\rquote t seek to be exempted from service}{\i\f49\insrsid9641688  on the grounds that the military has traditionally allowed,}{\f49\insrsid9641688  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 \lquote universal\rquote , pacifist etc. consc
ientious objection -- and so the refuseniks are condemned out of hand, as civil disobedients!}{\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 
\f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\cs16\super\insrsid9641688\charrsid8536369 \chftn }{\f4\fs20\insrsid9641688  Of course, civil disobedients are \lquote condemned\rquote 
 , following liberal political and legal philosophy, only in the sense that they are to be punished. Rawls (unlike Sagi and Shapira etc.) might perhaps think Refuseniks\rquote  civil disobedience politically }{\i\f4\fs20\insrsid9641688 justified}{
\f4\fs20\insrsid9641688 ; or he might at least }{\i\f4\fs20\insrsid9641688 sympathise}{\f4\fs20\insrsid9641688  deeply with their cause (though his not infrequent remarks about the importance of discipline }{\i\f4\fs20\insrsid9641688 in the armed forces}{
\f4\fs20\insrsid9641688  etc. suggest otherwise); but he would nevertheless think it civil disobedience, not meriting the lenience applied to conscientious objection. He would continue to endeavour to separate conceptually the two.}}}{\f49\insrsid9641688 
  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!}{\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain 
\ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\cs16\super\insrsid9641688\charrsid8536369 \chftn }{\f4\fs20\insrsid9641688  Compare al
so here the outrageous pretence of Sagi-Shapira to be condemning the refuseniks out of their own mouths, on p.188. When Sagi and Shapira go on to say, on p.191, that the statements that they have quoted from refuseniks \'93...speak for themselves; 
the conclusion that the individuals who refused to serve in the army committed either an act of moral conscientious objection or of civil disobedience is therefore a reasonable deduction from their actions\'94
, they commit furthermore an act of gross conceptual confusion. Far from being a \'93reasonable deduction from their actions\'94, this \lquote either-or\rquote  of Sagi and Shapira\rquote 
s is a purpose-chosen conceptual distinction of a highly dubious or biassed nature, being ludicrously presented, by Sagi-Shapira, as if it were a factual finding.}}}{\f49\insrsid9641688  
\par \tab Rawls provides an apologia for those legal codes that are institutionally biassed toward liberalism -- and thus, \lquote ironically\rquote 
, 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 consci}{
\f49\insrsid9641688 entious objection and civil diso}{\f49\insrsid9641688 bedience, a distinction that enforces a privatised individualised morality, religion and self-conception.
\par \tab 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 quotatio
n from the refuseniks\rquote  open letter that they quote contains this ringing line: \'d2When the elected government tramples over democratic values and the chances for a just peace in the region, }{\i\f49\insrsid9641688 
we have no choice but to obey our conscience}{\f49\insrsid9641688  and refuse to take part in the attack on the Palestinian people.\'d3 (emphasis added; p.190)
\par \tab 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 r
emark that \'d2It is admittedly conceivable, as a matter of logic, that people will act upon a mixed motive, in part private and in part political.\'d3 (p.19
2)  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 \'d2
[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.\'d3 As though those two things couldn\rquote t coincide by more than accident...  The articulacy of the \lquote perpetrators\rquote 
 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 \'d2redemption
\'d3...
\par 
\par \tab The upshot of our brief examination of this jurisprudential debate is as follows: The cultural cach\'8e of liberalism\rquote s sharp public vs. private distinction, intellectually founded nowadays upon the notion of state neutrality between c
onceptions 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) \lquote Courage to Refuse\rquote  }{
\i\f49\insrsid9641688 refuseniks}{\f49\insrsid9641688  in Israel impossible. Rawls\rquote s stance has been enormously influential in Israel as a tool with which the political Right (which now occupies the entire \lquote mainstream\rquote 
 of politics in Israel, including Ariel Sharon\rquote s and Ehud Olmert\rquote s new governing Party and most of the Labour Party) has argued successfully against any judicial viability in the stance of the }{\i\f49\insrsid9641688 refuseniks}{
\f49\insrsid9641688 . This is the political reality of how Rawls\rquote s prohibition on religion or any \lquote comprehensive doctrine\rquote  having a public face works: The Israeli Supreme Court has ruled against \lquote selective\rquote 
 conscientious objection (objection to serving in Israel\rquote s Occupation of Palestine), or conscientious objection that is also civil disobedience, leaning heavily, in effect, on Rawls\rquote s distinction, in the process.
\par 
\par       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.}{\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain 
\ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\cs16\super\insrsid9641688\charrsid8536369 \chftn }{\f4\fs20\insrsid9641688  Contrast p.88 of Medina\rquote 
s (problematically titled) \'93Political disobedience in the IDF\'94.}}}{\f49\insrsid9641688  In such a world, \lquote civil disobedience\rquote  comes from deep moral and spiritual conviction; and \lquote conscientious objection\rquote 
 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 t
he 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.
\par 
\par       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 \lquote conscientious refusers\rquote 
 are traducing Rawls. That they are simply poor interpreters of his liberal philosophy, which does not necessarily support their stance. 
\par \tab 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\rquote 
s most delicate, intelligent, reliable or subtle interpreters --, nevertheless I find this objection unconvincing. For the broad thrust of the anti-Refuseniks\rquote 
 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) n}{\f49\insrsid9641688 
ot punishable. The Refuse}{\f49\insrsid9641688 niks 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 }{\i\f49\insrsid9641688 distinction}{
\f49\insrsid9641688  between civil disobedience and conscientious refusal. 
\par \tab But can\rquote t Rawls accommodate that (the objection continues)? For at one point Rawls allows that \'d2there 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.\'d3 (p.371) }{\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain 
\ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\cs16\super\insrsid9641688\charrsid8536369 \chftn }{\f4\fs20\insrsid9641688 
 And moreover see also the foot of p.369, which might also seem to suggest a less sharp distinction between the two than I have alleged: \'93Conscientious refusa
l is not necessarily based on political principles; it may be founded on religious or other principles at variance with the constitutional order.\'94
 This seems to allow conceptual space for political conscientious refusal after all, and indeed, Rawls goes on to remark that \'93Conscientious refusal may...be grounded on political principles.\'94 But the example
 he gives suggests that this is simply a slip on his part, a weakening of the sharpness of the distinction that he would not on reflection sustain: \'93This woul
d be the case if, say, the law were to enjoin our being the agent of enslaving another, or to require us to submit to a similar fate.\'94 Does one really need }{\i\f4\fs20\insrsid9641688 political}{\f4\fs20\insrsid9641688 
 principles to show the wrongness of such a law, and to justify conscientious objection thereto? I submit otherwise. A case such as this would require only the most basic moral conscience. The level of argument engaged in by the Refuseniks is of a wholly 
\lquote higher\rquote  order -- their\rquote s IS plainly (at least among other things) a political and public ca
use. Thus it seems that the anti-Refusenik Rawlsians have at the end of the day not erred, in seeking to ally Rawls to their case, and in having urged that, by liberal lights, the \lquote Refuseniks\rquote 
 cannot be intelligibly understood as conscientious refusers.}}}{\f49\insrsid9641688  But Rawls clearly implies here that conceptually one can still sort out these different \lquote elements\rquote  one from the other. On the Refuseniks\rquote 
 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 ca
ses of distinguishing between the two. These moves, Rawls would indeed be quite happy with. No; }{\i\f49\insrsid9641688 they reject the distinction}{\f49\insrsid9641688 . I have suggested that the Refuseniks want}{\f49\insrsid9641688  }{
\f49\insrsid9641688 to say that much of what they do }{\i\f49\insrsid9641688 cannot be understood}{\f49\insrsid9641688  without understanding that they are wanting to engage in conscientious refusal that }{\i\f49\insrsid9641688 is}{\f49\insrsid9641688 
 simultaneously civil disobedience; or, better, that it just}{\i\f49\insrsid9641688  doesn\rquote t make sense}{\f49\insrsid9641688  to ask them to determine where \lquote one\rquote  starts and \lquote the other\rquote 
 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 \lquote conscientious civil disobedience\rquote  .
.. a line of thought which Rawls cannot and does not allow}{\f49\insrsid9641688  }{\f49\insrsid9641688 space for.)  The very distinction between conscientious objection and civil disobedience, I have argued, hobbles and handicaps the refuseniks\rquote 
 defenders.
\par \tab But doesn\rquote t Rawls allow specifically that the \'d2unwillingness of a soldier to obey an order that he thinks is manifestly contrary to the moral law as it applies to war\'d3 (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 atrocit
ies, war crimes, etc.}{\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {
\cs16\super\insrsid9641688\charrsid8536369 \chftn }{\f4\fs20\insrsid9641688  This is not to deny that such atrocities and crimes have been perpetrated by the Occupying IDF. They surely have been -- e.g. at Jenin, among many others.}}}{\f49\insrsid9641688 
 . 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 \'d2manifestly contrary to the moral law as it applies to war\'d3
; 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 }{\i\f49\insrsid9641688 based}{\f49\insrsid9641688 
 upon the sometime or likely commission of war crimes, of crimes in the course of war; it is based upon a \lquote selective\rquote  -- political-religiously motivated -- conscientious objection to a particular genre of war, of occupation. . .
\par \tab  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.
\par 
\par And so, the empirical conclusion one must draw from my case-study is highly disturbing. It is that Rawls\rquote s arguments have had an actual, tangible and not-unpredictable influence on preventing the \lquote Courage to Refuse\rquote 
 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\rquote s occupation of Palesti
ne is an indefensible violation of international law, and who believe the \lquote Refuseniks\rquote  to be heros, this result is deeply distressing -- and deeply revealing. Rawls\rquote 
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 \lquote sanctity\rquote  of the
 political sphere so as not to have it invaded by avowedly religious, spiritual, \lquote comprehensive\rquote  doctrines -- has biassed the pitch against the very idea of a conscientious objection that }{\i\f49\insrsid9641688 is}{\f49\insrsid9641688 
 through and through civil disobedience, or where the two are so \lquote internally related\rquote  that there are not two things here at all, but only one. Rawls\rquote s system of thought -- contemporary political liberalism\rquote 
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\rquote s most conscientious and indeed most law-abiding citizens.
\par \tab 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 b
y the state in the pre-Civil-Rights-movement American South. The non-violent resistance of a Gandhi, a King,}{\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain 
\ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 \f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\cs16\super\insrsid9641688\charrsid8536369 \chftn }{\f4\fs20\insrsid9641688  Compare and contrast Sagi and Shapira
\rquote s truly desperate efforts (p.212-3) (following Rawls\rquote s similarly desperate efforts, in his }{\f4\fs20\ul\insrsid9641688 Political Liberalism}{\f4\fs20\insrsid9641688 
) to present Gandhi and King etc. as practioners of civil disobedience, without conscience being meaningfully involved in their actions. Surely it is obvious that as David Enoch remarks (p.230 of his \'93
Some arguments against conscientious objection and civil disobedience refuted\'94): \'93...almost none of the interesting cases fall neatly on one side of the distinction. Clearly, Gandhi was out to change public policy, but didn\rquote 
t he engage in conscientious objection?\'94 Sagi and Shapira can\rquote t help noting themselves (in n.52, on p.212) that \'93The Indian term }{\i\f4\fs20\insrsid9641688 satyagraha}{\f4\fs20\insrsid9641688  means to adhere to }{\f4\fs20\ul\insrsid9641688 
truth}{\f4\fs20\insrsid9641688 \'94\'94 (underlining added). Adhering to the truth, to what one\rquote 
s conscience enforces upon one... Anyone looking with eyes not already closed can see that at the very least, the boundaries between civil disobedience and conscientious objection are systemically 
blurred, in most of what are historically the most powerful cases of either }{\f49\fs20\insrsid9641688 / both.}{\f4\fs20\insrsid9641688  But just this is what Rawlsians don\rquote t wish to allow, don\rquote t wish to see.}}}{\f49\insrsid9641688 
 a Mandela -- civil disobedience that }{\i\f49\insrsid9641688 was}{\f49\insrsid9641688  conscientious objection, utterly motivated by and manifested in moral, spiritual and religious teachings -- is rendered impossibly diffic
ult, 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 \lquote refuseniks\rquote 
 are locked up, courtesy of the Israeli Supreme Court, courtesy of John Rawls and his Israeli juri}{\f49\insrsid9641688 s}{\f49\insrsid9641688 prudential followers.
\par \tab The dark role played by Rawls\rquote s arguments in the dismal saga of Israel\rquote s repression of its own citizenry\rquote s conscientiously-motivated effort both to refuse consci
entiously 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 \lquote 
liberal democracies\rquote  have ever practiced.}{\cs16\super\insrsid9641688\charrsid8536369 \chftn {\footnote \pard\plain \ql \li0\ri0\widctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0 
\f8\fs24\lang1033\langfe1033\cgrid\langnp1033\langfenp1033 {\cs16\super\insrsid9641688\charrsid8536369 \chftn }{\f4\fs20\insrsid9641688  Thanks to Anat Matar and Phil Hutchinson, and to an anonymous referee.}}}{\f49\insrsid9641688  
\par }\pard \ql \li0\ri0\nowidctlpar\aspalpha\aspnum\faauto\adjustright\rin0\lin0\itap0\pararsid3226595 {\f4\fs20\insrsid9641688 
\par }}