Refusals: Neglected Aspects

Israel Law Reviewhttp://journals.cambridge.org/ISR

Additional services for Israel Law Review:

Email alerts: Click hereSubscriptions: Click hereCommercial reprints: Click hereTerms of use : Click here

Refusals: Neglected Aspects

Asa Kasher

Israel Law Review / Volume 36 / Special Issue: Refusals to Serve - Political Dissent in the IsraelDefense Forces 03 / September 2002, pp 171 - 180DOI: 10.1017/S002122370001801X, Published online: 04 July 2014

Link to this article: http://journals.cambridge.org/abstract_S002122370001801X

How to cite this article:Asa Kasher (2002). Refusals: Neglected Aspects . Israel Law Review, 36, pp 171-180doi:10.1017/S002122370001801X

Request Permissions : Click here

Downloaded from http://journals.cambridge.org/ISR, IP address: 132.64.31.253 on 04 Jan 2015

REFUSALS: NEGLECTED ASPECTS

Asa Kasher'

The purpose of the present paper is to draw attention to some neglectedaspects of refusal, in public and professional discussions of refusal to serveas conscripts or on reserve duties in the IDF.

Some people refuse to serve as IDF conscripts in general, while somerefuse to serve in certain territories in which the IDF carries out militaryactivities. Among those who tried to justify their refusal or their willingto refuse, some attempted to argue on grounds of a commitment to pacifismor to another form of conscientiousness. Many have voiced politicalopposition to governmental policies with respect to occupation of certainterritories and settlements built there. Principles of civil disobediencehave not been explicitly invoked as grounds of refusal, but some crudeversions of them have seemed to be implicit in attempted justifications ofsome forms of refusal. Some principles of conscientious refusal have beenmentioned in common deliberations of refusal. The present paper willshow that claims in favor of refusal to presently participate in IDF militaryservice neglect moral, ethical and conceptual elements of the situation incrucial ways.

As will be apparent to any reader of the present issue, our paper isdirected against some of the claims and arguments made in paperspublished here.

I. Civil Disobedience

Our starting points are several major components of John Rawls'conception of civil disobedience1.

* Laura Schwarz-Kipp Professor of Professional Ethics and Philosophy of Practice, TelAviv University, and Academic Advisor, IDF College of National Defense.

1 It is presented in detail in the first edition and the revised second edition of his A Theory ofJustice (Harvard University Press, Cambridge 1971 and 1999, respectively) sec. 55,57-59.

172 ISRAEL LAW REVIEW [Is.L.R. Vol. 36

First, an act of civil disobedience is an attempt to defend the democraticideal of the state, when and where some of its fundamental principleshave been violated by the regime. Sending conscripts or reserve troops tocarry out military missions, in which they jeopardize their life, for reasonsthat are not confined to self-defense of the citizenry and its state, is anexample of such a violation.

Secondly, an act of civil disobedience is, in a sense, both a symbolic actand an instrumental one. When one participates in a demonstration,carrying a banner that manifests a stance, one performs a symbolic act ofexpression. However, demonstrations and acts of civil disobedience areintended to draw the attention of some people, persuade them, and providemotivation for activities on their part. Such acts are instrumental vehiclesof expression.

Thirdly, an act of civil disobedience involves a violation of the law.Indeed, for an illegal act to count as one of civil disobedience the twoprevious conditions should also obtain. Hence, the illegality of the actshould be compatible with its being a symbolic and an instrumental actperformed in an attempt to defend the democratic ideal. Since the rule oflaw principle is part of the democratic ideal, and acts of civil disobediencedo not follow it, acts of civil disobedience are, by their very nature, primafacie punishable.

Acts of civil disobedience are justified only under certain circumstances.To grasp the nature of those necessary preconditions, it would be helpfulto use the "contract model", which anyway underlies much of the assumedtheory of justice. The question, for the contract analogy, would be as follows.Given that you are party to a contract that is fair and reasonable, whatmay you do, when you fulfill your contractual duties and would very muchlike the contract to stay binding and effective, whereas some of the otherparties to the contract breach it, in a major way? Particularly, on whatconditions, would it be reasonable for you to breach the contract in anattempt to bring it about that the other parties do not breach the contractin a major way anymore?

Rationality requires for planned acts to be "most effective" andperformed "at least cost". Since acts of civil disobedience have the objectiveof defending the ideal of democracy and enhancing its embodiment, theyare required to be effective in their prospects of changing the situation in

No. 3,2002] REFUSALS: NEGLECTED ASPECTS 173

the right direction. Moreover, since acts of civil disobedience involveviolations of the law, which is a "cost" in terms of the democratic form oflife, they are also required to involve the "least cost" in those terms. Actsof refusal and theories of refusal that cannot be shown to fulfill thoseconditions of "most effective" (or even "quite effective") and "at least cost"are morally wrong. A shadow is cast even on their rationality, as long asthey are portrayed as acts or theories of civil disobedience. As will bepresently shown, under current circumstances, these two preconditionsof civil disobedience are not obtained.

II. Democratic Infrastructure

The fully-fledged democratic ideal involves not just a moral conception ofhuman liberties and rights, but also some necessary practices and suitableinstitutions that make it a viable possibility for the citizen to enjoy one'sliberties and exercise one's rights. An adequate family of practices andinstitutions constitutes the infrastructure of a democratic regime. Suchan infrastructure is required both on the theoretical level of idealdemocracy and on the practical level of familiar democratic regimes, whichare all approximations to the ideal democracy. Without the requiredinfrastructure, a democratic regime is never viable. In particular, civilliberties are bound to be very restricted and civil rights insignificant.

Consequently, in the affairs of a democracy, attention should be paidnot only to the proclaimed adherence to some conception of civil libertiesand rights, but also to the current conditions of the democratic practicesand institutions of the required infrastructure. Institution, maintenanceand enhancement of a democratic regime all involve firm and constantprotection and development of the democratic infrastructure of the regime.

Two elements of every democratic infrastructure are of particularimportance under the present conditions. Under usual circumstances, acitizen is always a possible victim of criminal attempts to render him orher unable to enjoy some liberty to the fullest extent prescribed by thefair arrangements of a just state. Under belligerency circumstances, acitizen is always a possible victim of hostile attempts to kill him or hisbeloved ones, destroy her property, or oppress some or all of the citizens.


Facing the first, internal threat, a democratic regime would provide itscitizenry with various means of protection. One of them is the practice ofthe rule of law, as supported by an effective system of law enforcement.The end of such a practice is to create around each citizen a secure spherein which one is able to enjoy one's liberties and exercise one's rights, atleast to a very significant extent. The means of such a practice are three.First, a legal system, which sets the formal confines of behavior, accordingto the moral principles of democracy; secondly, a system of professionallaw enforcement bodies, e.g., police forces and courts; and thirdly, aconsensual practical commitment of the citizens and the authorities to belaw abiding.

Facing the second, external threat, a democratic regime would renderits citizenry defense services, by another variety of means, includingeffective professional intelligence and military forces. Peace is, indeed,most desirable, being an effective if not the ultimate way of protectingthe citizens from horrors of war, and it is, therefore, the moral duty ofeach regime and government to pursue it. However, as long as there is anexternal threat, on the life, welfare or independence of citizens, it is themoral duty of a democratic state to maintain an effective system ofintelligence and military forces.

Accordingly, to inflict a significant damage to the practice of the rule oflaw, which is a necessary element of the internal defense system of thecitizenry, is to significantly weaken the democratic regime. Similarly, toinflict a significant damage to the effectiveness of the intelligence andmilitary forces, which is a necessary element of the external defense systemof the citizenry, is to significantly weaken the democratic regime in anotherway.

m. Damage to the Rule of Law

A premeditated violation of the law is often not only an endpoint of aprocess of planning, evaluation and performance, but also a starting pointof a process of influence and propagation. An act can set a conspicuousexample, enhance attitudes to behave in certain ways and diminishadherence to common practices.


An act of civil disobedience is, by its very nature, a premeditatedviolation of the law. When it is publicly presented as directly related to apolitically debated issue, it is bound to create the danger of setting aprecedent or yet another example of apparently legitimate violation ofthe law on political grounds. Hence, an act of civil disobedience enhancesdisregard and contempt towards principles and institutions of democracy,and weakens adherence to democratic practices of common decisionmaking.

Describing an act of civil disobedience that is performed in a certaincontext as an example of an "apparently legitimate violation of the law onpolitical grounds" is not self-evident. People who perform such acts andsome of those who try to provide them with theoretical justification fortheir acts often insist on using alternative descriptions, such as "apparentlylegitimate defense of democracy" or "apparently legitimate expression ofadherence to basic moral principles". The difference between usage of theformer description and that of any of the latter ones is crucial. Assumingthat performing an act under a certain description rests on the assumptionthat in general acts of the same type are legitimate, the difference betweendescriptions reflect a difference between the underlying rules, which areof utterly different moral value. A rule that allows "violation of the lawfor political grounds" undermines democracy, while a rule that sanctions"defense of democracy" does the opposite.

IV. What Description Should, Then, Be Used?

This is not an easy question to answer. On the one hand, attempts todepict a crude act of refusal as an example of some intricate sophisticateddescription seem rather concocted and even pathetic. On the other hand,even a crude act can reflect a moral sense that should not be ignored. Ourtheoretical view of civil disobedience acts is that moral evaluation shouldnot rest on a single depiction of the act, but on at least two. Consequently,not one single implicit rule should be evaluated but at least two suchrules. First, there is the description that appears in the reasoning thatpurportedly justifies the act in the eyes of its performer. Secondly, thereis a description that is broadly expected to naturally dominate public


Accordingly, the tests a planned act should not fail in order to be morallyjustified involve both a rule in terms of the intended justification of theact and a rule in terms of the expected public perception of the act. Whereasa carefully concocted depiction of a crude act can help it pass one test,nothing of the sort can save it from failure in the other test.

The political culture of Israel is by and large democratic, however it isevidently not strongly so. A few years ago, it enabled an ordinary citizento assassinate the prime minister and minister of defense Rabin. In theyears that have elapsed since then, the attitude to use violations of law,including violence, within the framework of an internal political debatehas not disappeared. In certain respects it has even become stronger.

Hence, a movement that tries to justify its activities on grounds of civildisobedience, being a movement that practices or at least endorsesviolation of law on political grounds, contributes to a dangerous socialdrift that weakens the democratic defense system of the rule of law ratherthan strengthen it.

V. Damage to Effective Military Defense

Military victory cannot be gained without troops and officers willing toparticipate in jeopardous combat activity. Thus, effective military defenseis possible only when and where there are sufficiently many courageouscitizens ready to face fatal danger in pursuit of military victory.

What are the roots of courage that soldiers manifest in their behaviorin battle? Naive answers ascribe courage to some general motivation,such as patriotism or military formalities and customs, or to someparticular motivation, such as revenge. Although such mental andemotional forces can play a role in combat behavior, they are neithernecessary nor sufficient for manifestation of courage. Comradeship withinthe confines of a military unit plays the major role in nurturing therequired atmosphere of courage.

Comradeship is an essential value of military ethics. (It is one of the 11values of the 1994 IDF Code of Ethics.) The essence of comradeship is anattitude of mutual trust of utmost depth. The soldier entrusts his life inthe hands of his comrades, when he is under enemy fire. In the life of a


the hands of his comrades, when he is under enemy fire. In the life of asoldier, comradeship means he is never alone, in the battle field (andelsewhere too), come what may. Hence, damage to the common sense ofcomradeship among troops and officers is a blow to the very ability ofmilitary combat units to act as such and accomplish their missions. Sucha weakening of the military ability to gain victory in a war of self-defenseis a weakening of the defense with which the state can provide its citizenry.It is, therefore, a weakening of the democratic regime.

Self evidently, Israel is in need of maintaining a strong military force.Acts of civil disobedience that take the form of refusal of reserve officersand NCOs to serve within the framework of their combat units causedamage to the necessary sense of military comradeship. Thereby theyinflict damage on the democratic regime, which owes its citizenry aneffective military force of self-defense.

VI. Minimizing Costs

An act of civil disobedience is intended to be in support of the relateddemocratic regime. Therefore, since it involves a violation of the law, whichas such inflicts damages on the democratic regime, it should be plannedand performed with a manifest effort to minimize the inflicted damages.

Under the present circumstances, a refusal to serve in a military combatunit as a reserve officer or NCO is not an act that minimizes damages.First, there is no reason to assume that citizens who are reserve officersor NCOs cannot perform acts of civil disobedience outside the confines oftheir military units and the military in general. In the Vietnam War period,acts of civil disobedience took different forms, many of them not withinthe framework of military activity. Such alternative acts of civildisobedience do not harm in any way the necessary sense of militarycomradeship. Secondly, acts of civil disobedience can be performed on adistinctly individual level, dissociated from any movement or organizationthat support or even preach disobedience. The contribution of an individualact of civil disobedience to a public attitude of weakening the rule of law,when political topics are being discussed, is significant. However, it isless significant than that of an organized group that nurtures a conception


the law for political purposes. Finally, on some occasions, an act of civildisobedience can have more dangerous effects, even mortal ones. If a personrefuses to serve within the framework of his combat unit, the unit is notgoing to be sent home and the mission is not going to be called off. Thesoldier who did not report is going to be replaced by another one. Sincetheir missions are of a dangerous nature, it may happen that since onesoldier refused to serve, it was another one who was injured or even fellin action. Acts of civil disobedience should never cast a shadow on anyone'slife, all the more so, when their issue has to do with matters of life anddeath.

Thus, presently acts of civil disobedience fail the tests of having to be"most effective," or even "sufficiently effective" in defense of democracy,and of having to be performed "at least cost".

VIE. Conscience and Conscientious Refusal

Conspicuous cases of conscientious refusal to serve in the IDF or othermilitary forces of democratic states used to be of two major types, both inIsrael and elsewhere. Many cases were presented as directly related tocertain convictions or precepts of certain religious denominations. Otherones invoked some conception of pacifism. Naturally, then, theoreticalarguments and practical decisions with respect to acts of conscientiousrefusal used to rest on constitutional considerations of religious freedomand its limits or on moral evaluations of the societal importance of havinga practical manifestation of rejection of all forms of violence. Since newkinds of act of refusal, such as refusal to participate in certain militaryactivities but not in all of them, started being couched in terms ofconscientious refusal, attempts have been made to extend previoustheoretical considerations and practical arrangement to incorporate thenew kinds as well.

Such attempts usually reveal a significant weakness of manydeliberations of conscientious refusal, namely that they do not rest onany clear and reasonable conception of conscience. On grounds of noresponsible conceptual framework for discussing conscientious acts ingeneral, claims and arguments with respect to alleged new kinds of


conscientious refusal seem, therefore, weak, on a theoretical level, andirresponsible, on a practical level.

Traditional usage of some notions of "conscience" and analysis of themhave led to several insights regarding the nature of any reasonableconceptual framework for understanding "conscience" discourse. Here areseveral of them:

(a) Conscience is a human capacity of clear inner awareness;(b) Conscience's "inner voice" distinctly marks the differences between

right and wrong;(c) Conscience is a fundamental ingredient of a person's form of life;(d) Conscience is related to reason, but is also involved in creating strong

sentiments;(e) Conscience appears in different kinds, such as good and tender,

scrupulous and hardened.

On the background of such a cluster of conceptual ingredients of"conscience", it becomes clear that attempts to introduce new types ofconscientious refusal are bound to involve conceptual tensions andinconsistencies. One example, totally neglected in common deliberations,is that of the tension between any narrow delineation of a sphere of refusaland the very nature of one's conscientious acts. Such acts have to reflectthe fundamental principle of one's form of life and to be closely related toone's strong sentiments of approbation and condemnation. The narrowerthe sphere of conscientious refusal, the less reasonable it is to depict it asreflecting fundamental principles of a viable form of life and as creatingvery strong sentiments. Other examples abound.

VIII. Conclusion

On grounds of certain philosophical conceptions of civil disobedience,democratic infrastructure and military ethics, conscience andconscientious refusal, we tried to show that acts of civil disobedience thattake the form of refusal to presently serve in the IDF cannot be justifiedunder the present circumstances of Israel. Major considerations of how to


"most effectively and at least cost" serve democracy have been usuallyneglected. Similarly, attempts to justify certain acts of refusal by depictingthem as acts of conscientious refusal face conceptual difficulties that havealso been utterly neglected.**

** The views expressed in the present paper are personal and not ofEcial in any way.

Refusals: Neglected Aspects

Documents

Transcript of Refusals: Neglected Aspects