Friday, April 11, 2008

Question about the appropriate treatment of the conscientious objector

So, Raz points on 281-282 of The Authority of Law that a "right" to conscientious objection could be rooted in the notion of respect for persons, since a society that values autonomy must value pluralism, and such a society will presumably strive to be an environment in which people can pursue their tastes and inclinations in any way they like, subject to the constraints imposed by "the necessities of social cooperation and of securing similar opportunities to all." In that society, if one could explain how a person's freedom to avoid wrongdoing (by his own lights, even if he is wrong) is "central to his self-respect," one has grounds for a right (against society) not to have one's conscience coerced (albeit a prima facie right).

Could a right to "conscientious objection" in a society founded on natural law principles take this form? Perhaps one constituent of an individual's good is self-determination, requiring as a necessary condition a degree of freedom to act on one's own moral judgments. In that case, the argument that society ought to respect my freedom to act on my own conscience seems to take the same form (and be similarly pf, since the fact that the right can be overridden by other values or ideals is "inevitable, given that it is a right to do that which is in fact morally wrong which is given to people who will use it for that very purpose. To give it absolute importance is to prefer the morally wrong to the morally right whenever the act has misconceived moral ideas however wicked.").

But what if the right to act on one's conscience (however evil its dictates) is not a negative right borne of the importance of respect for my autonomy but is instead based on the fact that law has its authority only in virtue of my consent to it, on the basis of its service to the common good? So it's not that individuals' consciences being free from constraint is affirmatively valuable to society but that, lacking free consent from individuals' consciences, society has no authority over them.

Does this change the nature of the questions that need to be answered about CO? Could we still ask "when does the right not to have one's conscience coerced have to give way to other values and ideals?" (AKA, "is the right still prima facie"?) Or would conscientious objection be an absolute right, since the authority of any other legal requirements (including those that serve what might be regarded as "competing" values in a different system) depends on free conscientious consent? And wouldn't we have to consider how a society can maintain de facto authority over its citizens if it is broadly acknowledged that the legitimacy of its authority over any of its individual members is contingent upon her consent?

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