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Published online by Cambridge University Press: 02 January 2018
‘One afternoon, near the end of the first summer, when I went to the village to get a shoe from the cobbler’s, I was seized and put into jail, because, as I have elsewhere related, I did not pay a tax to, or recognise the authority of, the state which buys and sells men, women and children, like cattle at the door of its senate-house. I had gone down to the woods for other purposes. But wherever a man goes, men will pursue and paw him with their dirty institutions, and, if they can, constrain him to belong to their desperate odd-fellow society. It is true, I might have resisted forcibly with more or less effect, might have run ‘amok’ against society; but I preferred that society should run ‘amok’ against me, it being the desperate party. However I was released the next day, obtained my mended shoe, and returned to the woods in season to get my dinner of huckleberries on Fair-Haven Hill”
* The authors wish to thank Prof Dr Heike Jung and Anthony Wheelan for useful comments
1 Thoreau, Henry D Walden (Princeton, 1971) p 171 Google Scholar.
2 It is also possible to find instances of indirect insumisión by (not so young and not necessarily male) citizens ie where a town or city mayor refuses to provide the military administration with the list of young men of military age who reside in the council of her or his jurisdiction. Indeed, there have been some such cases recently (1995) in the Basque Autonomous Community and in the Autonomous Community of Navarre.
3 Indeed, we are aware that some insumisos would be willing to serve in a Basque army.
4 Crimes related to the breach of the duty to comply with the alternative social service (section 3, Chapter IV, Title XXI, Book II, Criminal Code of 10/95, of 23 November 1995).
5 During the parliamentary discussion of the draft Penal Code, Izquierda Unida, Partido Nacionalista Vasco, Coalición Canaria, Esquerra Republicana de Catalunya, Eusko Alkartasuna, called for decriminalisation, and on 19 April 1996, the Basque Parliament has called for the decriminalisation of insumisión and has publicly supported the mayors and local councillors who have refused to cooperate with the Spanish Defence Ministry.
6 Similarly, Raz, J The Authority of Law. Essays on Law and Morality (Oxford, 1979)Google Scholar ch 14 distinguishes between civil disobedience in the framework of a liberal state and in a non-liberal state. Likewise, Black, V ‘The Two Faces of Civil Disobedience’ (1970) 1 Social Theory and Practice, 18–20 CrossRefGoogle Scholar speaks about disobedience under despotism and disobedience under democracy. Bickel, A M The Morality of consent (New Haven, 1975) p 96)Google Scholar points out that the very definition of civil disobedience must reflect the nature of the legal system, especially whether it is the system of a unitary state or of a federal state. Kriele, M Recht und Praktische Vernunft (Göttingen, 1979) p 122 Google Scholar distinguishes between disobedience under democratic states and disobedience under totalitarian states. Arguably, Rawls, J ‘Definition and Justification of Civil Disobedience’ in Bedau, H A (ed) Civil Disobedience in Focus (London, 1991)Google Scholar implicitly draws on some similar distinction when speaking about disobedience in a ‘nearly just society’.
7 James, G G speaks about an orthodox theory of civil disobedience, ‘The Orthodox Theory of Civil Disobedience’ (1973) 2 Social Theory and Practice 475–498 CrossRefGoogle Scholar as exponents of which he mentions definitions put forward by Bedau, H A ‘On Civil Disobedience’ (1961) 58 Journal of Philosophy 653–661 CrossRefGoogle Scholar; Rawls, J A Theory of Justice (Cambridge, Mass, 1971) p 364 Google Scholar, or ‘Definition and justification of civil disobedience’ in Bedau, H A (ed) Civil Disobedience in Focus (London, 1991)CrossRefGoogle Scholar; Weingartner, R ‘Justifying Civil Disobedience’ (1996) 9 Columbia Forum 327–335 Google Scholar; C H Bay ‘Desobediencia civil’ op cit; Martin, R ‘Civil Disobedience’ (1970) 80 Ethics CrossRefGoogle Scholar; Betz, J ‘Can Civil Disobedience Be Justified?’ (1970) 1 Social Theory and Practice CrossRefGoogle Scholar; W T Blackstone Jr ‘Civil Disobedience: Is It Justified?’ (1970) 8 Southern Journal of Philosophy; Cohen, C Civil Disobedience: Conscience, Tactics, and the Law (New York: Columbia University Press, 1971)Google Scholar. For an example of less narrow definitions see Zinn, H Disobedience and Democracy (New York, 1968) p 119 Google Scholar, who defines civil disobedience as ‘the deliberate, discriminate violation of law for a vital social purpose’.
8 Bedau, H A ‘On Civil Disobedience’ (1961) 58 Journal of Philosophy CrossRefGoogle Scholar.
9 In the Spanish Constitution, eg the majority of the provisions deal with such secondary questions: of all 169 articles and 14 clauses, only arts 1 (paras 1 and 2). 9, 10 and 14–29 together with art 53, would come close to the constitutional core.
10 Communal as opposed to numerical. See Dworkin's plenary lecture to the Bologna 1995 World Congress of the IVR.
11 See Dreier, Ralf ‘Derecho y Moral’ in Valdes, Ernesto Garzón (ed) Derecho y Filosofía (Barcelona, 1985) p 74 Google Scholar.
12 Of course, we are here inspired by Ronald Dworkin Law's Empire (London, 1986).
13 In this sense, see, amongst others, Velvel, L R ‘Protecting Civil Disobedience under the First Amendment’ (1967) 37 George Washington Law Review 464–484 Google Scholar and Katz, B J ‘Civil Disobedience and the First Amendment’ (1985) 32 UCLA Law Review 904–919 Google Scholar.
14 Thus, when there is a breach of pre-positive individual rights against government ( Dworkin, R Taking Rights Seriously (London, 1978) ch 8Google ScholarPubMed) or of rights that are essential to democracy ( Singer, P Democracy and Disobedience (Oxford, 1973) part IIGoogle Scholar). See also Zwiebach, B Civility and Disobedience (Cambridge, 1975) ch 5Google Scholar; Walzer, M ‘The Obligation to Disobey’ (1967) 77 Ethics 163–175 CrossRefGoogle Scholar; Harris, P ‘Introduction: The Nature and Moral of Civil Disobedience’ in his reader, Civil Disobedience (Lanham, 1989)Google Scholar.
15 See Dworkin, R ‘On Not Prosecuting Civil Disobedience’ (1968) 10 New York Review of Books 14–21 Google ScholarPubMed, and Greenawalt, K Conflicts of law and Morality (New York, 1989)Google Scholar part IV.
16 This negates in some way the claims of the closure of law made by some followers of Luhmann's theories and autopoiesis.
17 Resolución de sobreseimiento de diligencias previas 2314/94.
18 For a detailed discussion of this judgment see Atienza, M ‘Un dilema moral. Sobre el caso de los insumisos’ (1992) 25 Claves 16–30 Google Scholar.
19 There are over 3,000 cases of registered insumisión in Spain. The insumisos in question have made it plain that their aim is to fight against a law that is unjust, discriminatory, militarist, etc. It is worth noting, in this regard, that the Spanish Conscientious Objection Movement, MOC, which represents the greatest number of insumisos held a press conference following the order of the San Sebastian judge. The movement praised the reasoning of the judge but reminded him that their main objective was not to be personally exempt from military service but rather to achieve demilitarisation.
20 In this connection the third considérant of the order mentioned above (20 December 1994) reads: the development of the personality of the individual in a framework of liberty is not sufficiently safeguarded by the conscientious objection as foreseen in Article 30.2 of the [Spanish] Constitution and as regulated in Statute 48/1984 of 26 December. This right is much more complex and affects many other fundamental rights and freedoms, and is difficult to reduce to pure motives of conscience as contained in Article 1.2 of the said Statute, notwithstanding the “numerus apertus” formula adopted by the legislator. Besides, the procedure leading to the declaration of conscientious objector, provided for in Chapter I1 of the Real Decreto 551/1985 of 24 April does not contain the necessary guarantees, the examination of the objector's conscience being an extremely difficult matter and the need to avoid fraud and deceit leading to a very restrictive interpretation of the freedom of conscience which affects the principle of equality. The substitute or alternative social service, as regulated in the Real Decreto 20/1988 of 15 January, thus becomes a type of penal sanction hidden behind the ideological alibis of social utility or the common good to which it is oriented.’.