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Unconscionable Objection to Conscientious Objection: Notes on Sagi and Shapira

Published online by Cambridge University Press:  04 July 2014

Alon Harel
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Israel Law Review , Volume 36 , Special Issue: Refusals to Serve - Political Dissent in the Israel Defense Forces 3 , Fall 2002 , pp. 219 - 226
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Copyright © Cambridge University Press and The Faculty of Law, The Hebrew University of Jerusalem 2002

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References

1 For a refutation of major themes in Sagi and Shapira, see Enoch, David ‘Some Arguments Against Conscientious Objection and Civil Disobedience Refuted,’ (2002) 36 Israel Law Review 227CrossRefGoogle Scholar.

2 For the full text of my brief in English, see http://law.mscc.huji.ac.il/law1/newsite/segel/harel/pub/brief2.pdf

3 After reading my own brief they wrote an additional brief attempting to respond to some of my own criticisms. It is only in this latter brief that they discuss this possibility.

4 Sagi and Shapira claim that my brief “errs in failing to pinpoint the requirement of over-determination as characterizing mixed motives, which may alleviate responsibility (in other words, the requirement that each one of the two motives comprises an independent sufficient reason for the refusal to serve)”: Sagi, Avi and Shapira, Ron, “Civil Disobedience and Conscientious Objection,” (2002) 36 Israel Law Review 181, at 194Google Scholar. Sagi and Shapira provided no support for this accusation and I concede that I fail to see why Sagi and Shapira arrived at this conclusion. My brief raised precisely this case and described it as follows: “Sagi and Shapira fail to discuss an even more interesting case in which a person who refuses to serve in the territories does it both because it conflicts with his values and in order to change the relevant norm or policy and each one of these reasons would be sufficient to motivate him to do so even in the absence of the other.”

5 Harel, supra n. 2.

6 Sagi and Shapira, supra n. 4, at 193 (emphasis mine, A.H.).

7 Sagi and Shapira, supra n. 4, at 193.

8 Ibid, ft 24, at 193. This is the full text of the footnote: For a review of the literature on this matter, see particularly Robinson, Paul H., “Stealing the Bomb-The Nature of Justifications,” (1999) 22 Tel Aviv University Law Review 65Google Scholar. [Hebrew], as well as the following sources, mentioned there. For the English discussion, see Gladstone William (1984) 78 Cr. App. R. 276; Dadson (1850) 4 Cox C.C. 358; Thain (1985) 11 NI 31. The American Model Penal Code makes use of formulae of “reason” in defining all the justification defenses: the perpetrator is justified if he believes that his acts are necessary for the purpose of the defense (Model Penal Code § 3.02(1), § 3.03(3)(a), § 3.04(1), § 3.05(1)(b), § 3.06(1) and § 3.07(1)). See also Corrado, Michael, “Notes on the Structure of a Theory of Excuses,” (1991) 82 Journal of Criminal Law and Criminology 465, at 489CrossRefGoogle Scholar, with attention to the argument for viewing the mental element as an essential component of the defense; Greenawalt, Kent, “The Perplexing Borders of Justification and Excuse,” (1984) 84 Columbia Law Review 144CrossRefGoogle Scholar, emphasizing that modern laws usually require subjective belief in the existence of a defense of justification; LaFave, Wayne and Scott, Austin, The Criminal Law (St. Paul, Minnesota, West, second edition 1986) 685Google Scholar arguing that in order to enjoy the benefit of the defense it is necessary to act upon achieving the particular purpose stated there; Hogan, Brian, “The Dadson Principle,” (1989) Criminal Law Review 679, 680Google Scholar. See the contrary opinion of Paul Robinson in his above article as well as Robinson, Paul H., “Competing Theories of Justification: Deeds vs. Reasons” in Simester, A & Smith, A.T.H., eds., Harm and Culpability, (Oxford, Clarendon Press, 1996) 45–70CrossRefGoogle Scholar.

9 See Dadson (1850) 4 Cox C.C. 358. For a good discussion of the Dadson case see Christopher, Russell L., “Unknowing Justification and the Logical Necessity of the Dadson Principle in Self-Defense,” (1995) 15 OJLS 229CrossRefGoogle Scholar.

10 See Robinson, Paul H., “Stealing the Bomb—The Substance of the Defenses of Justification,” (1999) 22 Tel Aviv University Law Review 65Google Scholar. [Hebrew]

11 Legal scholars who discuss the case of a person who acts under the circumstances of a defense but is not motivated by these circumstances or is even unaware of them often differentiate between justifications and excuses. Even those who acknowledge that a person can benefit from a justification under the circumstances that the justification applies (unbeknown to him) often deny that a person can benefit from the defense when the defense is an excuse (rather than a justification).

Sagi and Shapira apply this distinction to our context by asserting boldly that conscientious objection is an excuse and not a justification and consequently, they argue, conscientious objection is even less deserving of legal recognition than the case of self defense (which is classified as a justification, Sagi and Shapira, supra n. 4, at 194). I disagree with the claim that conscientious objection is an excuse. Given the irrelevance of this debate to the debate of double motive, I am not going to argue for it here but only to point out that their discussion could have benefited greatly by reading a recent comprehensive and thoughtful discussion devoted to this issue. See Kugler, Itzhak, “On the Possibility of a Criminal Law Defense for Conscientious Objection,” (1997) 10 Can. J.L. & Juris. 387CrossRefGoogle Scholar.

12 Some of the sources provided by Sagi and Shapira, e.g.,R. v. Thain deal with the case of a person who is aware of the defense but acts for a different motive. These discussions may be relevant to cases in which a person whose conscience conflicts with a legal duty refuses to obey for a motive other than the conflict with his conscience. This however is not a case of double motive.

13 I do not want to assert conclusively that this is impossible. Perhaps under the influence of narcotics a person may be temporarily unaware of the conflict between his conscience and the duty to serve. But even those who would support this possibility must concede that this is not the typical case.

14 For two exceptions in the Israeli literature, see Sangero, Boaz, Self Defense in Criminal Law (Jerusalem, Nevo, 2000) 272 [Hebrew]Google Scholar; Kugler, Itzhak, Purpose and Knowledge in the Criminal Law (Jerusalem, Sacher Institute, 1997) 340 note 365 [Hebrew]Google Scholar. The issue of double motive in the context of self defense is discussed in the Model Penal Code Tentative Draft no. 8 1958 p. 17. The Draft supports the position that an actor who is motivated by two motives ought to benefit from the defense. It justifies this position as follows: It should be added that while the actor must believe in the necessity of his defensive action for the purpose of his own protection, and thus cannot be privileged by accident, the draft does not demand that this be the sole motive of his action. The existence of other motives does not detract from the reason why the privilege is granted. Moreover, an inquiry into dominant and secondary purposes would inevitably be far too complex.”

15 In investigating the justifiability of conscientious objection in the Israeli context one also ought to be aware of another possibility mentioned in my brief. It is possible that as a matter of fact the only motive underlying refusal of the soldiers to serve is conscientious objection and that the public protest of the soldiers who refuse to serve (including their insistence to conduct a public trial) are simply methods of protesting the policy. Public protest which uses conscientious objection as a tool in political activity is clearly legitimate when it does not form the motivating factor underlying the refusal.

To illustrate this point assume that A and B protest a particular policy. Assume that A in addition happens to be a conscientious objector. Nobody would argue that B has no right to use A's conscientious objection in order to protest the relevant norm or policy. By using A's conscientious objection in order to promote B's political goals B does not thereby commit an act of civil disobedience (or any disobedience for that matter). But if B has such a right can this right be denied to A simply because she is the one who committed the act of conscientious objection? Endorsing such a view suggests that conscientious objectors lose their fundamental rights of political participation. I admit of course that in practice it would be evidentially difficult to substantiate such a claim but courts are not exempted from the duty to consider it.