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.

Hate (6): Hate Crime

Practically all crime is “thought crime” in the good ol’ common law sense of the Latin phrase actus non facit reum nisi mens sit rea – the act does not make guilt unless the mind be guilty. If we were to take a strict liability approach to all violent crime we would be obliged to place wrongful death on a par with premeditated murder. (After all, it’s not as though the lives of those killed accidentally are worth less.) John Holbo (source)

This nicely debunks the claim that hate crime laws – laws which make the punishment for an existing crime more severe when the crime was motivated by hate for the segment of the population to which the victims belongs – institute “thought crimes” and make thoughts, opinion and beliefs illegal. I believe that hateful motives are aggravating circumstances that should make a penalty more severe. A hate crime is not only a crime against the immediate victim, but is intended to terrorize a whole segment of the population. It creates therefore more victims than is apparent at first sight.

When you mistakenly believe that hate crime laws create thought crimes, you have to conclude that proponents of hate crime laws do not want to punish behavior but want to eradicate hate, or at least reduce the levels of hatred in a society. And then you have a cheap shot: how stupid to want to eradicate hate! Haha! (There’s an example of this kind of reasoning here*).┬áIndeed, that would be stupid, if that’s what proponents of hate crime laws would propose. But they don’t. They simply want to punish crimes, and want to punish a specific kind of crime in a specific – and especially tough – way. They know that there will always be hate, that hate is the price to pay for a free society. Maybe hate crime laws can reduce the amount of hate in a society, but that’s not the main purpose. Hate crime laws want to punish behavior and want to protect people from fear. And they want to signal that society has understood the difference between hate crimes and other types of crimes, even if these other types of crimes have the same material results.

* The article linked to also irresponsibly blurs the differences between hate speech and hate crime. When you do that, it’s of course much easier to attack hate crime laws because then it becomes much more “obvious” that hate crime laws are “in fact” thought crimes.

Hate (5): Why Do We Need Hate Crime Laws?

We punish the crimes of murder, kidnap, and battery. Why isn’t that enough? … It strikes me as weird that the mere utterance of a racial slur during a violent act automatically makes it worse. Ta-Nehisi Coates (source, part of this quote is actually Coates citing someone else)

Doesn’t the concept of hate crime imply a punishment of expression and thought? And isn’t it therefore essentially a thought-crime, and as such objectionable to people who cherish freedom of thought and speech? Shouldn’t someone’s convictions and expressions be immaterial to their punishment? And shouldn’t we just focus on what someone did rather than what he or she was thinking or saying when he or she did it?

Not really. Intent, motive and state of mind have always been crucial to punishment, hence the difference between premeditated murder and manslaughter. Killing or hurting someone because of race, gender or sexual orientation is worse than mere killing or hurting, and should incur a more severe punishment because it is meant not only to harm the victim but to terrorize an entire community.