Conscientious objection in the light of "Fides et Ratio"

Interview by ZENIT, 9 September 2016.

While the clause of conscientious objection is being debated, Grégor Puppinck publishes a study: Conscientious objection and the human rights. [1]

Grégor Puppinck is the director of the European Center for Law and Justice, PhD in Law and member of the OSCE/ODIHR on freedom of conscience or conviction.

He will soon give a conference in Rome about conscientious objection, in the Centro Studi Rosario Livatino.

One of the main inputs of this study is to underline the distinction between faith and reason, “fides et ratio”, and then between religion and morals, between the objections, whether they be founded on a religious or moral conviction.

Saint John-Paul II’s encyclical letter Fides et ratio, published in 1998, lost none of its striking actuality.

You just published an in-depths study on conscientious objection released by the éditions du CNRS. Can you reminds us of what is conscientious objection?

Grégor Puppinck – Conscientious objection is always a refusal, the refusal opposed by a person to execute an order he thinks is incompatible with a conviction formed by his conscience in the light of morals and, where required, by his religious convictions. Conscientious objection is hence not limited to military service, but can be used to oppose any action deemed contrary to morals or to a religious prescription.

Under the light of human rights, conscientious objection is a mode of exercise of freedom of conscience. Indeed, freedom of conscience guarantees, under certain conditions, both the positive freedom to express one’s convictions and to act in accordance with them, and also the negative freedom to not be constraint to act against one’s convictions. The legal framework of positive freedom is well known, but the one of negative freedom to not be constraint to act against one’s convictions is a more delicate subject and is about the following question: to what extent is it legitimate to constraint a person to take part in an act incompatible with his moral or religious convictions, or to sanction him because of his refusal to take part in this action?

Why did you feel the need to realise this “essay of systematic analysis”?

G.P. It it precisely because it is a complex question and that the respect of conscientious objection depends of its fair comprehension. The right to conscientious objection looks like a legal monster more and more claimed for under the effects of the increasing pluralism of society and of the disconnection between law and morals. Witnessing the width of the phenomenon, the European Court of Human Rights is referred to with numerous cases of people, who, in the name of their conscience, refuse to oblige to military service, to pay the tax corresponding to the public expenses on weaponry and abortion, to swear on the Bible, to register to social security, to perform same-sex unions ceremonies, to allow hunting on their properties, to take part in a surgical or medical abortion, to have their children vaccinated, to shave their beards, to have a blood transfusion, or to have their children attend the compulsory lessons on ethics, religion or sexual education.

If it is the legislator and the judge’s roles to decide on the legitimacy of each objection, but one may fear that, overwhelmed by so many cases, they might come to refusing them all, in the name of equality before the positive law, then reducing to nothing the guarantee of freedom of conscience and religion. A clarification of the notion of conscientious objection has to be made, not to widen its ambit to the point of making it undefendable, but on the contrary to better define it and hence allow it to be guaranteed in a fair measure.

Are all “objections” not on the same ethical level: what would the criteria of discernment be?

G.P. This is the precise object of the study: to propose criteria of evaluation. It does so in underlining the rationality of the notion of conscientious objection, which implies to renounce an excess both in subjectivism and in positivism which grant too much or too little legitimacy to individual conscience. After having clarified some concepts which are part of the notion of conscientious objection, such as conscience, convictions, objection, internal and external forum, this study identifies cases of conscientious objection recognised by the positive law, both under the prism of duty as of right to objection. On this basis, it then makes distinctions emerge, which allow to differentiate several types of objections, and hence to identify the criteria of assessment of the respect that each of these objection types deserve.

These criteria aim at distinguishing:

• whether the situation implicates positive freedom or negative freedom of conscience and of religion;
• whether the objection is made by a person or an institution;
• whether the objection is based on simple personal convenience or on a prescription of one’s conscience;
• whether there is a closeness between the act that is objected to and the content of the conviction.

Finally, based on this criteria, the study shows what are the rights and obligations of the State in front of different types of objection.

One of the main inputs of this study is to underline the distinction between faith and reason, “fides et ratio”, and then between religion and morals, between the objections, whether they be founded on a religious or moral conviction. In any case, if an objection, whether moral or religious, always constitutes a conscientious objection, the difference between moral and religious objection consists in the fact that the former can pretend to be objectively fair: its claim being based on fairness. A fair objection should be of law and no sanction or constraint should legally be able to oppose it.

On the contrary, a religious (or cultual) cannot pretend to be, in itself, fair and its claim then deals with the freedom of the person to conform to the judgement of his conscience as regards the application in the case of the precepts of his religion. As a result, the recognition of religious objection by the legal authority may rely on particular circumstances, notably its will to respect religious freedom and to tolerate religious minorities. Otherwise, the authorities must recognize a true right to conscientious objection when it is based on the sole moral and is opposed to committing an evil or injustice.

You can ask for a copy of the sudy directly at secretariat@eclj.org.

[1] "Conscientious Objection and Human Rights: A Systematic Analysis" published by Brill.