Lefkowitz: On conscientious objection (excerpt from prospectus for The Moral Duty to Obey the Law and Its Limits: Domestic and International)

Petitions for Conscientious Objector Status: Moral Right or Plea for Mercy?

(Draft: Please do not cite)

David Lefkowitz

January 7, 2008

Conscientious objection to law involves essentially an agent’s refusal to comply with a particular law or laws because they conflict with his or her deepest commitments. The paradigm example of such a conflict is that between some legal requirement and what a citizen (rightly or wrongly) believes to be her moral duty, as illustrated by the case of a pacifist who objects to military conscription. My focus in this paper, however, is not on the act of conscientious objection itself. Rather, my concern is with a distinct, though closely related, act, namely that of appeal to the state for recognition as a conscientious objector.

Typically, when a person petitions the state for conscientious objector status, he seeks an exemption from some particular legal requirement. Should the state grant his petition, then the agent’s failure to act as that law requires will be legally justifiable. Moreover, if the petitioner is a citizen of a morally legitimate state, and so has a moral obligation to defer to the state’s authority, this exemption enables the agent to avoid a conflict between fulfilling his moral duty to obey the law and upholding one of his deepest commitments.[1]

But what if the state denies conscientious objector status to those who seek it? In most cases, the petitioners are unlikely to act as the law requires. The state will often respond by punishing them for their disobedience, and even when it does not, it will claim a legal (and, implicitly, a moral) right to do so. The fundamental moral question with respect to the practice of conscientious objection to law, then, is this: when, if ever, are individuals morally entitled to the state’s exempting them from a legal requirement the fulfillment of which conflicts with fidelity to their deepest commitments? Or, more briefly, do subjects of a legitimate state enjoy an at least prima facie moral right to conscientious objector status? If they do not, then these individuals ought to obey the law even when doing so conflicts with upholding their deepest commitments, and should they fail to do so, as many likely will, the state is morally justified in punishing them for their disobedience. Conversely, if citizens of a legitimate state do have a right to conscientious objector status, then should a state fail to honor their petition for exemption from a particular legal requirement, it will treat them unjustly.[2]

Surprisingly, much recent discussion of conscientious objection fails to explicitly address this fundamental question.[3] For example, the on-going war in Iraq and the continued Israeli presence in the West Bank has led to a renewal of debates over selective conscientious objection to war: should the state exempt from military service only those who object to all wars, or must it also exempt from military service, or at least deployment to a particular conflict, those who believe that particular war to be unjust?[4] Likewise debate among philosophers and legal theorists over the “special” status of religion as a basis for exemption from particular legal requirements has revived discussion of the sorts of reasons the state should recognize as a basis for granting petitioners conscientious objector status.[5] Must petitioners seek exemption for religious reasons, or does it suffice if they believe that the law conflicts with what morality, goodness, or virtue truly requires?[6] What about cases where the petitioner concedes that obedience to a particular law is morally permissible, but asserts that carrying out the legally required act will prevent her from carrying out some project that is central to her conception of the good life?[7] Though these are all important questions, they all contain a critical ambiguity, for the kind of normative demand invoked by the term ‘should’ goes unspecified. Is it a moral duty or obligation that is at issue, one that correlates to a right to conscientious objector status? Or is it instead a call for the state to display some moral virtue such as compassion or mercy? Or is it instead an attempt to invoke the non-moral virtue of prudence, or an appeal to self- or national-interest?

If pressed to clarify their positions, I suspect that most contemporary discussants of conscientious objection will select the first of these three possibilities. For instance, those who dispute the issue of selective conscientious objection will claim that it is a matter of the proper scope of the right to conscientious objection (to war). My aim in this paper is to dispute the characterization of these disputes over the state’s proper response to conscientious objectors in terms of a moral right. Specifically, I contend that neither arguments premised on the necessity of respect for individual autonomy nor those grounded in the harm that results from an agent’s compromising her integrity provides a satisfactory rationale for a moral right to conscientious objection. It follows that a legitimate state does not act unjustly when it denies a citizen’s appeal for conscientious objector status, or when it punishes him for disobeying the law. However, in some cases such a denial exhibits a lack of virtue on the part of the state (or better, state officials), and I argue that states, like people, should seek to be virtuous as well as just. Thus to argue that a citizen of a morally legitimate state has no right to conscientious objection is not to say that the state should deny him this status, but only that an account of why the state should grant it must appeal to virtues such as compassion and mercy rather than to a moral entitlement.

Before I proceed to the task of defending this conclusion, I think it important to highlight one other assumption that goes unnoted in most discussions of conscientious objection. This is the fact that petitioning the state for conscientious objector status, and in many cases even the act of conscientious disobedience to law itself, has the moral significance it is thought to have only if the state or legal system is legitimate. A legitimate state, as traditionally understood, is one that enjoys a moral right to rule, where that includes not only the right to enact, apply and enforce directives (i.e. laws, administrative rules, court decisions, and official commands), but also a claim to obedience on the part of its subjects. In short, subjects of a legitimate state have a moral duty to obey its laws; the mere fact that the state directs them to act or not act in certain ways provides them with a special kind of moral reason to do so. That discussion of CO assumes the state’s legitimacy is as it should be, since a refusal to act as the law requires is morally fraught only if the agent has a moral duty to obey the law. Otherwise, the fact that the agent intends to act as her conscience dictates raises no special problem in virtue of its being a violation of law. Of course, the agent’s act may be morally problematic for other reasons – for example, it may involve the violation of a true moral principle. But most discussants appear to proceed on the assumption that the fact that some conduct is legally required entails that it is also morally required – an entailment that holds only in a legitimate state.

It may be that theorists (and practitioners) of conscientious objection often err in assuming the legitimacy of the state. This is true not only for authoritarian or undemocratic states, but even for those liberal democratic ones that are often characterized as legitimate. As I argue briefly below, the latter may well be legitimate (if they are sufficiently liberal and democratic), but many contemporary legal philosophers dispute this claim. Philosophical anarchism, the view that few if any contemporary states enjoy a morally justified claim to political authority, has many proponents. While this is not the place to settle the dispute between philosophical anarchists and defenders of (various theories of) state legitimacy, discussants of conscientious objection should note that the correct resolution of that debate has important implications for the validity of their own work.

Two types of argument for a moral right to conscientious objection

Typically, conscientious objectors refuse to comply with the law because they believe the legally required conduct is morally impermissible. But when they petition the state for conscientious objector status, they do not offer the immorality of the legally required conduct as a reason for the state to grant their appeal.[8] Rather, they point to their belief in the immorality of the law, and argue either that (a) the belief is of a special sort that a legitimate state must allow people to act on, even if it believes (correctly) that the belief is mistaken, at least as long as their doing so does not cause any harm to others (that have not consented to it), or impose an unacceptable risk of harm to others (that have not consented to it); or (b) that the personal cost to the agent of conforming to the law, and so acting in a way the agent believes to be immoral, is so great that the state ought to exempt the agent from the legal obligation in question (again, with a harm or excessive cost to others caveat). The personal cost at issue is usually a matter of compromise to an agent’s integrity, though I leave open the possibility that it may take some other form, such as a conflict with the pursuit of some project central to what the agent takes to be the good life. Henceforth I will refer to the first argument as the argument from autonomy for a moral right to conscientious objection, or more briefly, the argument from autonomy. The second argument I will call the argument from personal integrity for a moral right to conscientious objection, or for short, the argument from personal integrity.

Note that in either case, the conscientious objector claims that the state should permit him to act immorally. Of course, the conscientious objector will surely think his own moral belief correct, but he does not offer its correctness as a reason for the state to exempt him from a legal obligation to act contrary to that belief. Rather, at least for the sake of argument, he grants the falsity of his moral belief but maintains that the state ought to permit him to act on it despite its (supposed) falsity. Thus even if the truth of the conscientious objector’s moral belief plays a role in determining whether he acts rightly when he acts on the basis of it (and, possibly, in violation of the law), it does not play a role in justifying his claim that the state ought to grant him conscientious objector status.] While the conscientious objector offers either (or both) of the aforementioned arguments as a reason for the state to grant him conscientious objector status, we should not lose sight of the fact that what motivates him to seek it in the first place is his belief that morality does not permit him to act as the law requires.[9] Contrary to the impression the conscientious objector might create when he petitions the state for exemption from a particular legal requirement, he is not acting selfishly nor is he simply concerned with keeping his own hands cleans. Rather, what leads him to act is a moral belief regarding what he owes (certain) others.

The argument from autonomy for a moral right to conscientious objection

Consider, first, the argument from autonomy for a moral right to conscientious objection. This argument, the most frequently made (or at least implicitly hinted at) by contemporary legal philosophers, runs as follows:

1. All sufficiently rational creatures have the status of autonomous agents. As such, they have the capacity to organize their own lives, a task that includes the evaluation of ends as well as the means to them, and are in this sense self-governing. To be an autonomous agent is to be, to a considerable extent, the author of one’s own life.

2. Among other things, proper recognition of people’s status as autonomous agents requires that other agents, including the state, permit them to act on the basis of their beliefs, including moral beliefs, even if those beliefs are mistaken, at least as long as the cost or harm to others of their doing so is not too great. In other words, respect for the value of individual autonomy entails that agents have a limited right to do wrong, which consists at least of a claim against others that they not prevent them from acting in ways that are, as a matter of fact, immoral.[10]

3. But why think that respect for individual autonomy entails that sufficiently rational agents have a limited right to do wrong? There are two rival answers, both of which appeal to the non-instrumental value of agents exercising autonomous choice or authorship over their lives.

(a) The first holds that autonomous choice is not only non-instrumentally valuable – meaning valuable in itself, and not merely as a means to something else – but also unconditionally so. That is, autonomous choice has a positive value apart from the value of whatever consequences follow from that choice. On this account, respect for someone as an autonomous agent involves respect for their choices regardless of the effects they have, even if those choices are imprudent or immoral, at least if the cost to others is not too high. Agents enjoy a right to do wrong because in a range of cases the positive value of choice overrides the negative value of the chosen ends.

(b) The second answer to the above question also views autonomous choice as non-instrumentally valuable, but treats that value as conditional upon the choice of good or valuable ends. It may seem that this second account cannot justify even a limited right to do wrong, since in choosing some bad or valueless end, the agent’s choice fails to be non-instrumentally valuable. However, the only way to provide agents with opportunities to autonomously choose good or valuable ends entails granting them as well the freedom to choose bad or valueless ones. Thus this second account also entails that proper respect for the value of individual autonomy includes recognition of a limited right to do wrong.

4. The foregoing argument entails that the correctness of the state’s moral judgment, as expressed in law, does not provide a justification sufficient to override the agent’s right to choose his future course of action – that is the significance of autonomous agents enjoying a moral right to do wrong.

5. Moreover, advocates of the autonomy argument suggest that in many actual cases of conscientious objection to law, including both absolute and selective objection to (a just) war, or to the payment of taxes used to pay for the conduct of (a just) war, the cost or harm to others of allowing agents to act on their mistaken belief in the law’s immorality is not too great.[11]

6. Therefore, proponents of the argument from autonomy conclude that out of respect for their status as autonomous agents, the state should grant those who seek it conscientious objector status, unless doing so imposes too high a cost on others. That is, it should exempt those who (mistakenly) believe the law to be immoral from a legal obligation to obey it.

The argument from autonomy is fine, as far as it goes, but I contend that it does not go as far as its advocates believe. These theorists fail to distinguish between two crucial questions: first, as a matter of moral truth, what is the precise scope of the individual right to freedom of conscience, understood as a right to do wrong? This is a question of justice. Second, whose judgment regarding the precise scope of the right to freedom of conscience is authoritative? Specifically, do individuals enjoy a moral liberty to act on their own assessment of the scope of this right, one the state should recognize by granting them conscientious objector status? Or must these individuals defer instead to the state’s judgment, as reflected in law or judicial decision, regarding the scope of that right? This is a question of legitimacy. I maintain that in a legitimate state, individuals have a moral duty to obey the law, including those laws that demarcate the boundaries of the individual right to freedom of conscience, even if those laws diverge to some degree from what justice truly requires.

As I argue at length elsewhere, in the circumstances of politics – ones characterized by the moral necessity of collective action and reasonable disagreement over the form that collective action should take – only a liberal-democratic state enjoys the moral authority to settle, for action-guiding purposes, what morality requires of agents.[12] Only a democratic decision procedure recognizes each person’s equal status as an autonomous, or self-governing, agent by assigning each equal authority to settle disputes over the form that morally necessary collective action ought to take. Democratically enacted law spells out both the state of affairs to be realized by collective action and the form that each individual’s contribution to the collective enterprise ought to take. Yet the need to respect individual autonomy places constraints on the scope of even a democratic state’s authority. Individual rights indicate the limits of the compromises it is reasonable for the state to demand of people regarding their freedom to pursue what they believe to be the good life. Thus a state’s justifiable claim to legitimacy, to which correlates its citizens’ duty to obey the law, requires that it be both democratic and liberal, where the latter term indicates that it eschews on principle the deliberate or negligent violation of individual rights.

Among those individual rights that even a democratic state must respect if it is to be legitimate is the right to freedom of conscience. A state that denies its subjects any freedom of conscience lacks a morally justifiable right to rule them. So too, however, does a state that puts no constraints on its subjects’ freedom to act as their conscience dictates, since such a state will almost certainly be unable to facilitate the morally necessary collective action that is necessary to justify its rule. The question, then, is where between these two extremes does the true scope of the right to freedom of conscience lie? In what cases may agents act on their own moral judgment, even if those judgments are erroneous, and in what cases must these agents defer to the judgment of the state, even if they are erroneous (or, if they do not defer, be morally liable to punishment)? To take a more specific example, does an agent’s right to freedom of conscience extend to judgments regarding the moral justifiability of (a particular) war, or must he instead defer to the state’s judgment? This is a question over which people may reasonably disagree. When such disagreements take place amongst those who are citizens of a liberal-democratic state, they have a duty to duty to defer to the settlement reached via the state’s institutions – e.g. democratic law or judicial decisions. A culpable failure to obey the law of a liberal-democratic state, on the part of an agent with a right to participate in its governance, constitutes a failure to respect as autonomous the others with whom the agent must act collectively in order to fulfill his moral duties. Assigning less or no weight to others’ judgment regarding the design of a collective action scheme constituted by democratically enacted law implicitly denies their status as agents with an equal moral claim to determine the form collective action ought to take.

The foregoing argument stands in need of some unpacking. First, I am not claiming that as a matter of truth, freedom of conscience excludes the liberty to act on one’s mistaken judgment that (this particular) war is unjust. Rather, my claim is that in the circumstances of politics treating others morally requires deference to the settlements reached via the institutions of a liberal-democratic state, as expressed in its laws. The legitimacy of such a state, and so the duty of its subjects to obey its laws, does not follow from the substantive justice of its laws (though the requirement that such a state be a liberal one places some limits on how unjust those laws may be and yet the state still be legitimate). Rather, the state’s legitimacy follows from the substantive justice of the procedures created to address the special moral challenges to which the circumstances of politics give rise. Thus a conscientious objector to a particular law does have a claim to equal participation in the democratic decision procedure that, among other things, settles disputes over the precise scope of freedom of conscience. He does not have a claim that others accept his views on this issue, however. Should the democratic decision procedure endorse a different (though still reasonable) understanding of the scope of freedom of conscience, the conscientious objector has a moral duty to conform his conduct to it. This is so even if, as it happens, the conscientious objector’s beliefs regarding the scope of freedom of conscience are correct, while the settlement reached via the democratic decision procedure is, to some extent, incorrect.

Second, I do not claim that a liberal democratic state should deny those who conscientiously object to (a particular) war exemption from legal requirements to support its conduct in various ways. It may well be that the state should do so only in cases where it will be too costly to others to exempt someone from a particular legal duty to which he conscientiously objects. Regardless of whether this is so as a matter of true justice, as advocates of the autonomy argument claim, my contention is that such an account of the scope of freedom of conscience is morally binding only if it is arrived at via the proper procedures. Morally, in the circumstances of politics democratically enacted law – legitimate law – and not true justice controls.

It is highly unlikely, of course, that someone who conscientiously objects to contributing to the conduct of (a particular) war will choose to contribute should the liberal-democratic state of which he is a citizen determine that freedom of conscience does not entitle him to an exemption from service (or deployment). Nevertheless, the argument that a legitimate state enjoys a morally justifiable claim to the authority to determine the precise scope of the right to freedom of conscience has important practical repercussions. In particular, it follows that the state does not treat the conscientious objector unjustly if it denies him the legal exemption he seeks. It would treat him unjustly if he had a right to such an exemption, but if he is a citizen of a liberal democratic state then he has no such claim. Thus should this agent act contrary to the law to which he conscientiously objects, the state is morally justified in punishing him for his disobedience. Moreover, and contrary to the argument from autonomy, the state need not demonstrate that granting a petition for conscientious objector status will impose significant costs on others in order to justify rejecting that petition. Instead, the state’s judgment that the right to freedom of conscience does not include even a prima facie claim to exemption from some legal requirement, such as mandatory military service, provides a morally sufficient rationale for denying someone conscientious objector status.

Argument from integrity

Apart from the argument from autonomy, the argument from personal integrity is the rationale most frequently offered by both theorists and practitioners for granting those who seek it conscientious objector status.[13] Roughly, a person acts with integrity in a particular case if and only if she acts in conformity with certain standards that she believes truly apply to her in that case. To compromise one’s integrity, then, is to fail to conform to a certain standard in circumstances where one believes that is what one has most reason to do. The preservation of a person’s integrity is of special concern when what is at stake is that person’s ability and opportunity to uphold her core commitments. Core commitments, as I will understand them, are those that play a central role in an agent’s conception of what makes her life meaningful or worthwhile. Given this description of what a core commitment consists in, it follows that if an agent compromises her integrity with respect to her core commitments, she will no longer view her life as meaningful or worthwhile.

In a paradigm case of the argument from personal integrity, the petitioner claims that if she acts as the law requires she will fail to uphold a standard that she believes provides the weightiest reason for action in the circumstances she confronts, and that constitutes one of her core commitments. Given that this commitment plays a central role in her conception of what makes her life meaningful or worthwhile, the failure to uphold it will be extremely costly to her. At best, the agent will be wracked by guilt for having betrayed one of her deepest commitments, while in the worst case she will conclude that she no longer has any reason to go on living. For example, a conscientious objector to war may petition the state for exemption from military service on the grounds that were he to kill another he would betray one of his deepest commitments. He would, in the phrases familiar from many petitions for conscientious objector status, be unable to look himself in the mirror, answer to himself, or even live with himself.

Though the argument from integrity is sometimes thought to demonstrate a right to conscientious objector status, I maintain that it does not do so. The petitioner offers the cost compromising her integrity will impose on her effort to live a meaningful or worthwhile life as a reason for the state to exempt her from a particular legal requirement. Yet the fact that acting morally will be personally costly does not exempt a person from her moral duty, and by hypothesis, as a citizen of a legitimate state the conscientious objector has a moral duty to obey the law. Keeping a promise, telling the truth, and respecting others’ property rights can often be costly to me, but that does not justify betrayal, lying, and stealing on my part. Of course, the typical petitioner will believe that the conduct required by law is immoral, and should she choose to disobey it, it will likely be this belief, and not her desire to avoid the suffering that comes with compromising her integrity, that motivates her. If so, then she will not view herself as acting immorally in order to avoid some personal cost. Nevertheless, the reason she gives the state to exempt her from a certain legal duty is the cost to her of compliance, not the (supposed) injustice of the law, and from the state’s perspective, she is asking to be allowed to act immorally.

Someone might respond that there are costs and there are costs; that acting morally will prevent me from living the wealthy life to which I aspire is one thing, but that acting morally will render me unable to live with myself is another. But surely there are those who genuinely believe that any way of life other than a wealthy one is not a life worth living. I suspect, however, that few will argue that such people should be permitted to act immorally if doing so is necessary for them to live such a life. If the reason for this is that we think their belief mistaken, then the conscientious objector to war should likewise be denied permission to act immorally, since by hypothesis she too wishes to act on a false belief.

Perhaps some other basis can be found to distinguish between these two cases. For instance, it might be argued that what separates them is the harm inflicted on others if the agent is permitted to act immorally; the theft of someone else’s property is likely to cause them serious harm, while the failure to perform military service is not, at least insofar as it has little effect on the risk of harm borne by all those others who do serve in the military. Yet this line of argument seems unsatisfactorily contingent. I can steal millions from Bill Gates without causing him any serious harm, or to draw an even closer parallel to the case of objection to military service, I can steal a penny from every American without causing any morally significant change to their financial well-being. Alternatively, it might be argued that we (whoever exactly ‘we’ are) have greater confidence in our judgment that non-wealthy lives are still worth living than we do in our judgment that war is morally permissible. It is because there is a greater possibility that we could be wrong about the justifiability of war than about the worthiness of non-wealthy lives that agents have a right to conscientious objector status when it comes to military service, but not when it comes to adherence to property law. Even if this claim about the relative strength of our convictions is true, I do not think it provides a compelling basis for distinguishing these two cases. That is so because I think that most people are pretty confident in their belief that killing in a just war is morally justifiable, and rightly so. Morally and prudentially, human beings ought to exhibit a fair degree of epistemic modesty. But the demand for such modesty does not rise to the level of requiring that the state permit pacifists to act on their beliefs regarding the moral justifiability of war, rather than deferring to the state’s judgment. At least in the case of conscientious objectors to war, and perhaps other cases of conscientious objection as well, I conclude that a legitimate state does not act unjustly if denies the petition for conscientious objector status by those who claim that military service is incompatible with the preservation of their integrity.

Though I think the foregoing properly describes the way in which the argument from personal integrity is typically made, it is worth considering whether it could be modified so that it does constitute an argument for a right to conscientious objector status. Consider the following four such possibilities:

First, the argument from integrity may be a closeted form of the argument from autonomy. It is not the impact on the agent’s well-being of conformity to law that provides the state with a reason to exempt her from some legal requirement. Rather, the agent should be permitted to act with integrity, even though this involves acting in a way the state (correctly) believes to be immoral, because she is an autonomous agent. Were the state to permit her to act with integrity only in those cases where it approved of, or was indifferent to, the resulting actions, it would not be treating her with the respect she merits. Of course, so understood the argument from integrity fails to establish a moral right to conscientious objection for the reasons I set out in responding to the argument from autonomy.

Second, a petitioner might argue that the law treats her unfairly because while it provides the same benefits to all, it imposes a much greater cost on her than the one born by most of her compatriots. Whereas all those who serve bear the cost of certain forgone opportunities and a certain likelihood of harm, she bears the additional cost that follows from her compromising a commitment central to her understanding of what makes life meaningful or worthwhile. Or, perhaps more realistically, she bears the cost of punishment for having disobeyed the law, which may exceed the cost to those who fulfill their legal duty of military service. Though this argument is clearly a moral one, it fails for the same reason the non-moral version does: the agent cannot argue that she is treated unfairly if the only reason she bears a greater cost than others is because she acts immorally, and by hypothesis, she is doing so in this case.

Third, the argument from integrity might also be given a utilitarian interpretation, with the petitioner understood to be arguing that the state is more likely to maximize utility by granting her conscientious objector status. Though such a claim may be true in some cases, I believe we ought to reject Utilitarian moral theory, and so I will not pursue this line of argument any further here.

A fourth and final variation on the argument from integrity bears consideration. Suppose the state has a duty not only to see that its citizens (and perhaps all persons) are treated justly, but also has a duty to assist its citizens in their pursuit of what they take to be the good life. When a petitioner points to the cost she will bear if she either conforms to a law that requires her to act in an integrity compromising manner, or disobeys that law and is punished for it, she seeks to call the state’s attention to its duty to assist her in the living of a good life. At the very least, if the state can do so without appreciably reducing the ability of its other subjects to lead good lives, namely by granting her conscientious objector status, then it is morally obligated to do so.

This argument, too, should be rejected, for the initial supposition is false. States’ have no moral duty to assist their citizens in the pursuit of what they take to be the good life (unless they have voluntarily acquired such a duty). States have no such duty because the individuals that comprise them have no such duty (again, unless they have voluntarily acquired such a duty). Individuals do have a duty to see to it that all are treated justly, and in the circumstances of politics the state is a necessary mechanism for fulfilling this duty. Furthermore, being treated justly will often be conducive to leading a good life – or at least being treated unjustly is often the primary (or only) factor preventing people from leading good lives. But there is no guarantee that those who are treated justly will live good lives and no non-voluntary obligation on others to see to it that they do.

Conscientious objection and the virtuous state

If the arguments I have presented here are sound, then neither the argument from autonomy nor the argument from integrity demonstrate that a liberal democratic state is morally required to grant those who seek it conscientious objector status. The denial of such status does not constitute the unjust treatment of those who petition the state for an exemption from some particular law. In defending such a position, I break with the vast majority of contemporary legal and political philosophers. Nevertheless, I concur with them that in many cases a liberal democratic state ought to grant conscientious objector status to those who seek it. But whereas other theorists defend such a conclusion as a matter of justice, I contend that it ought to be understood as a matter of virtue.

States, like people, should seek to be virtuous as well as just. Virtue, as I understand it, includes a wide range of intellectual and affective excellences; in this respect, my conception of human virtues coincides with Aristotle’s. Where I differ from Aristotle and side with Kant, however, is in the belief that agents may act morally but not virtuously (and, at least with respect to some virtues, agents may act virtuously but immorally). Whereas Aristotle maintains that there is but one evaluative assessment to be made of an individual – has he or she acted virtuously – I contend that there are two: has he or she acted justly, and has he or she acted virtuously.

Though justice does not require that a liberal-democratic state exempt people from those laws conformity to which they find unconscionable, both the non-moral virtue of prudence and the moral virtues of mercy and compassion often will. Many of the instrumental arguments mistakenly thought to provide part of a moral justification for exempting those who conscientiously object to particular laws do provide a prudential justification for the state to do so. For example, adopting such a policy may result in a more efficient use of resources, while still enabling the state to achieve whatever end provides the rationale for the law in question, and at a morally acceptable cost to those who conform to it. The state may also find that its citizens’ loyalty increases as a result of their belief that it will seek to accommodate them if they believe that conformity to the law will require them to compromise their integrity.

As for compassion or mercy, I contend that the argument from integrity is best understood as a plea for such treatment by the state. Such an understanding makes sense of the petitioner’s focusing his appeal to the state on the cost to him of complying with the law. As the statements of many of those who have made such an argument before an official body illustrate, the aim is to give those who act in the state’s name a sense of the suffering the individual would experience were he to obey the law in question. The hope, I suggest, is that the vicarious experience or anticipation of such suffering will arouse in those officials (or the citizenry at large) feelings of compassion or mercy, which will lead them in turn to grant the petitioners the exemption they seek. Indeed, the virtue of mercy may be particularly appropriate here, as it involves a decision not to impose some loss on a person who is liable to it, and it is just such treatment that those who seek conscientious objector status desire from the state.

It may be that a shift of the sort I have advocated, from the understanding of conscientious objection as something to which people have a right to an understanding of it as something that a prudent, compassionate, and merciful state ought to grant its subjects, may seem to make little difference to actual policy. Whether as a matter of justice or as a matter of virtue, liberal democratic states may continue to exempt from military service those who object to all wars, but not those who object only to select wars. On the other hand, it may be that if conscientious objectors to law characterize their petitions as appeals for compassion or mercy, state officials may be more receptive to them. There are at least two reasons to think this might be so: first, and most importantly, such an appeal does not imply a challenge to the state’s authority, while the assertion of a right to conscientious objection most certainly does. Given how jealously states guard their authority, a plea for mercy may well be more effective than the claiming of a right. A second, related, point is that a grant of mercy does not establish a precedent in the same way that the acknowledgment of a right does. Insofar as states are concerned that such an acknowledgment might undermine their authority in the future in unforeseen and unintended ways, the grant of an exemption on grounds that do not create a precedent (because it is done entirely at the discretion of the state) may be more attractive to state officials.[14]

The point of these claims – which stand in need of empirical verification – is to indicate the ways in which the theoretical argument presented here might affect actual policy toward conscientious objectors. They do not, however, play a role in establishing the truth of that argument. That is, the fact that judges may be more open to petitions for conscientious objector status phrased as appeals for mercy does not entail that such petitions are correctly understood as such. Nevertheless, if I am right in thinking that they should be so understood, and in maintaining that states should aim to be virtuous as well as just, then it may be that the best, or most admirable, state will grant exemptions from law far more often than do present liberal democratic ones.

NOTES