The Ethics of Human Rights (57): Human Rights and Conscientious Objection

A conscientious objection is an objection to engage in conduct that you perceive as being incompatible with your religious or secular beliefs about morality, or, in other words, as being incompatible with your conscience. The conduct in question may be government imposed conduct, such as participation in a war, but may just as well be any other type of conduct like the termination of life support at the request of a patient.

The problem as I see it is the following. Conscientious objection can be necessary for the full protection of human rights in certain cases, and yet detrimental to human rights in other cases.

No doubt this ambiguity is the reason why conscientious objection has no formal basis in human rights law, neither explicitly nor implicitly. Not only is there no recognized right to conscientious objection; it’s also very difficult to derive such a right from other, existing human rights.

There is of course the right to freedom of conscience and thought (art. 18 of the Universal Declaration). However, conscientious objectors don’t claim the right to freedom of thought or to freedom of conscience; they want to be free not to do things that they believe violate their most basic beliefs and their conscience. They claim a right to act in accordance with their thought and conscience, not a right to be free in their thoughts and conscience.

If I’m a pacifist and I’m forced to fight in a war, neither my beliefs nor my conscience are violated. I’ll continue to believe that war is always wrong, and I can tell my conscience that I’m doing what I’m doing because I’m forced to do it. I need not have a bad conscience as a result. My freedom of thought and conscience is intact. My thoughts are still independent from others’ thoughts or actions. I can still make up my mind about the wrongness of war and my personal integrity – the coherence of my beliefs and actions – is not harmed in any way. If I’m forced to do something that I believe is wrong, that shouldn’t weigh on my conscience. Hence, the right to freedom of conscience and thought can’t be the source of an implicit right to conscientious objection.

Perhaps freedom of religion can be a more promising source, but only in extreme cases and for some people, as I’ll argue below. This means that a right to conscientious objection derived from religious liberty won’t cover most of the existing claims that are expressed in the language of conscientious objection: no non-religious claims are covered by such a right to conscientious objection, and only some religious claims are covered.

Take the example of the religious pharmacist refusing to sell the morning after pill. Imagine that we want to force her to do so because we believe that the rights and equal treatment of women require easy access to the morning after pill. Imagine also that we are able to force the pharmacist to sell. It’s not obvious that forcing someone to do something that is against her religious rules violates her religious freedom. Few would be willing to argue that forcing a Catholic pharmacist to sell the morning after pill makes it impossible for her to be a Catholic. She can still attend church unhindered and she can defend the integrity of her faith to her fellow Catholics by pointing out the forced nature of her actions. So, like in the case of freedom of conscience, the fact that we force someone to do something does not necessarily destroy her pre-existing right to freedom of religion. This right therefore is not a good basis of a right to conscientious objection.

However, the words “not necessarily” do a lot of work here. Imagine that the pharmacist, on being forced to sell the morning after pill, genuinely believes that she will face either severe divine punishment in the afterlife or ostracism from her church in this life. In both cases, her freedom of religion may be at stake. Hence, she may reasonably claim that her freedom of religion requires a derivative right to conscientious objection, and that she shouldn’t be forced to sell the morning after pill.

Not so fast, says the opponent of the right to conscientious objection: she can just decide to seek another profession, problem solved. Even if her freedom of religion is endangered by our insistence that she sells the morning after pill, that in itself does not create a right to conscientious objection. It merely creates a religious duty to stop being a pharmacist.

Maybe so, but only in examples such as these. Take another case of conscientious objection: refusing to enlist in the army. Conscription, especially in times of war, can’t be avoided as easily as the legal duties of a pharmacist. Hence, in this case, the argument for a right to conscientious objection based on religious freedom is pretty strong. Unfortunately, this argument only produces a right to conscientious objection in some cases, namely those cases in which a religious claim is involved and in which other means of preserving religious freedom – other means short of conscientious objection – are not available. Atheists can also have strong reasons to refuse conscription or the forced participation in certain transactions, but they won’t have a right to conscientious objection if we derive this right from freedom of religion.

Of course, the fact that a right to conscientious objection can’t be derived from existing rights – or only for some cases of objection – doesn’t mean that there are no good independent grounds for such a right. If we want to examine those independent grounds, we’ll also need to look at the other side of the coin, the side of those who are harmed by the conscientious objections of others.

Some argue that a supposed right to conscientious objection would be detrimental to other rights or the rights of others. Take again the example of the pharmacist: it’s not unreasonable to claim that a pharmacist refusing to sell the morning after pill can thereby violate the rights of her customers. Maybe her customers can simply go to the next pharmacy to get their stuff and secure their rights, but this just argues against a general right to conscientious objection. Such a general right would possibly make it very hard to find a willing pharmacist. The same is true for the military draft: your refusal to assist in the defense of your country can adversely impact the rights of your fellow citizens. Furthermore, granting exceptions to conscientious objectors imposes other costs: it can undo equality before the law, propagate a sense of unfairness etc.

However, possible negative effects of a right do not necessarily invalidate a right, just as the difficulty of deriving a right from other rights doesn’t necessarily invalidate it. All rights have negative effects and can possibly even lead to violations of other rights or the rights of others (free speech can violate privacy for example). These negative effects have to be balanced against the positive effects. And a right to conscientious objection would have some positive effects beyond those benefiting the claimant. I said before that conscientious objection can be necessary for the full protection of human rights. It can be a powerful tool against unjust laws or laws that violate human rights. And the alternative burdens that are usually imposed on conscientious objectors (e.g. community service as an alternative to the draft) can offer society a lot of benefits. These alternative burdens do not only weed out insincere cases of conscientious objection; they also restore a sense of justice and fairness in society and if they are correctly designed they can assist victims of rights violations (community service can mean going to work in a safe house for victims of domestic violence for instance).

So, the conclusion would be that even though it’s hard to derive a right to conscientious objection from other rights, there are some good independent reasons to grant such a right. One condition, however, is that there are alternative burdens imposed on objectors, and that these alternative burdens are designed to further the cause of human rights in general.

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Religion and Human Rights (19): Between Equality and Diversity – The Rule of Law, Except When…

One of the principles of liberal democracies is equality before the law. The law shouldn’t protect or harm some citizens more than others (and to some extent this even applies to non-citizens within the jurisdiction of the democracy). The law applies equally to all.

Diversity

This principle, however, can be put to the test by another principle that is important to liberal democracies, namely tolerance of diversity. Most democracies are multicultural in the sense that they are made up of many different groups that have often radically different and incompatible beliefs, customs and norms. Liberal democracies value this diversity and have mechanisms to protect it, such as rules on tolerance, religious liberty, freedom of association etc. They value this diversity and try to protect it for at least three reasons:

  • They believe that group identity is an important source of individual identity and well-being.
  • They believe that group diversity offers a plurality of perspectives, and that this is necessary if deliberations on fundamental issues are to progress towards the truth.
  • The believe that national unity isn’t only or primarily a matter of assimilation or convergence towards a single, national and official doctrine, but rather of peaceful coexistence in diversity.

Rules and exemptions

This tolerance of diversity can be burdened by equality before the law. Many liberal democracies have been forced to accept certain exceptions to the principle of the equal application of the law, and have exempted some groups from certain generally applicable laws. SomeĀ  examples:

  • Anti-discrimination laws: groups have been allowed to discriminate, for example regarding their membership rules, or their internal operating rules, on the condition that they allow a right to exit of members who come to find this unacceptable.
  • Because of their religious obligations, Sikhs have been exempted from the obligation to wear crash helmets for motorcyclists or safety helmets for construction workers, or from the prohibition to wear knives in public.
  • Certain indigenous peoples have been exempted from prohibitions to fish or hunt or to slaughter animals in a certain way.

The rationale for such exemptions is that a “neutral” law, which is by definition equally applicable to everyone, may not have the same effect on everyone. It may unintentionally place a relatively heavy burden on a very specific minority because it unintentionally prohibits or compels a certain practice which has special significance for that minority. Such exemptions may be deemed necessary to preserve the distinctive identity and way of life of the minority, and to preserve the diversity and harmony of society as a whole.

This opt-out right, which allows minorities – usually cultural or religious minorities – to not apply or respect the general law, is similar to the right of conscientious objection. In many countries, refusal to serve in the military – otherwise a general legal rule – is a legally recognized option. (However, the opt-out right is not the same as civil disobedience, which isn’t a legally recognized option and the disobedient usually accept the consequences of breaking the law. Breaking the law and publicly accepting the consequences is precisely their purpose. They want to create a public spectacle showing the injustice of the law).

Possible objections against the opt-out right

1. Illiberal consequences

Exemptions are often granted for rules that are not really intended to protect third parties (such as crash helmet rules) or that do not create substantial harm when occasionally they are not applied (e.g. hunting exemptions). However, if we accept the general possibility of an opt-out right, can we not end up in a situation in which minorities are allowed to disrespect fundamental rules such as human rights, either internally in the group or externally? The classic example is the possible right of Muslim minorities in liberal democracies to apply Shari’a law within their communities.

Obviously, such far-reaching exemptions sound outrageous to those of us for whom human rights are very important. Yet I believe that even those exemptions can be justified in certain cases: they would only be acceptable if the following three conditions are jointly met:

  • The groups in question do not violate the human rights of people outside of the group.
  • The groups provide the right to exit in a substantial way. “Substantial” means that they do not only provide the formal right to exit but also provide members the educational, intellectual, moral, financial and other resources necessary to make a free and conscious choice about staying or leaving. However, it’s often very difficult to say whether a particular group is a truly voluntary association and whether members have a real choice to leave. Only when this is indeed and obviously the case can such far-reaching exemptions be allowed. There’s also the case of group members that are incapable of making a real choice, e.g. children. Exemptions cannot be allowed to produce violations of their rights, since they cannot exit.
  • The rights violations are an essential part of the group’s identity rather than an opportunistic policy of the group’s leadership.

2. Exemptions for what?

This third condition leads to a second possible objection to the opt-out right: which elements of a group’s identity are strong and central enough to warrant an exemption from a generally applicable law? Who decides which are these elements? Do we trust the spokespersons of the group? But how are they appointed and do they speak for the group? Or is it not likely that they have some selfish reasons for exemptions and the possible rights violations resulting from them, given that they are likely to be in a position of power inside the group? If not the spokespersons, should it be outside elements, engaging in anthropology, or cultural exegesis?

3. Domino effect of exemptions

Another objection: every law puts more burdens on some citizens than on others. Smoking bans put a heavier burden on smokers, shoplifting laws on kleptomaniacs etc. If we provide exemptions for laws which burden cultural, ethnic or religious groups, why not also for kleptomaniacs? And if we would do so, wouldn’t the whole construction of the rule of law tumble under the weight of exceptions? Of course it would, but that’s not the reasons why we limit exceptions or exemptions (one can argue that these are not the same, but I’ll bracket that for the moment) to those which protect group identity. As stated before, group identity – contrary to kleptomania or other possible reasons for exemptions – is deemed to be a very important value in liberal democracies, and important enough to override in some cases the other important value of equality before the law.

Citizens who do not belong to a group that has received an exemption to a general rule may complain that they are discriminated against, compared to the members of the group. These citizens may also want to opt out of the rule – for example a rule imposing military service – not for religious or cultural reasons, but for other reasons, and not necessarily for opportunistic reasons. Indeed, it may seem arbitrary to limit exemptions to cultural and religious groups. But we have to admit that such groups are more likely to suffer fromĀ  special burden imposed by general rules, and that they are particularly important to the diversity of liberal societies.

4. Calcification of groups

Exemptions or the opt-out right require strict identification of group members. It must be possible to decide which individual citizens in a society are free to not respect a certain law, otherwise law enforcement becomes impossible. This may have consequences for the exit right. The state fixes group membership. Not only should the state not do such a thing, but it shouldn’t be done at all. The exit right is important, especially when we decide to allow controversial practices. And this right can be harmed if group composition is officially sanctioned.

Moreover, this strict identification of membership implies a simplification of human identity and group identity. Groups are often complex and internally contradictory. Opt-out rights fix not only membership but also group identity: the state decides once and for all, by granting a legal exemption for a certain practice, that this practice is typical of a group. Internal dissent within the group, and directed against the practice, is then stifled. The state has then sided with the most powerful factions within a group, and that’s not something a liberal state should do.

One could object to this objection by claiming that the “losers” of the internal struggle to determine the group’s identity still have the right to leave the group. However, that also isn’t a choice that the state should determine. It should allow dissenting group members – such as feminist Muslims or gay Catholics – to continue to dissent within the group, rather than impose the limited choice of either accepting the dominant doctrine of the group – a doctrine elevated to dominance with the help of the state and the opt-out right granted by it – or leave the group.

The effort to protect groups from external pressure can inadvertently promote internal pressure. In other words: the effort to protect a group from externally imposed change can stifle internally promoted change. By recognizing a practice as typical of a group and worthy of an exemption to a general rule, the state helps to cement this practice, perhaps against the wishes of minorities within the group that work against the practice.

5. Opportunism

It’s often difficult to tell if an exemption is demanded by a true group member for identity reasons, or by a wavering member for opportunistic reasons. Or, for that matter, by an individual who decided to join the group, not for substantial reasons but to escape the law.

Conclusion

I believe exemptions are sometimes justifiable, especially if the risk of harm created by the exemption is relatively small compared to the benefits for the groups enjoying the exemption. But there are many practical problems related to the decision whether or not to grant an exemption.