Understanding Conscientious Objection

La Nef: You have published an essay on conscientious objection and human rights, how did you approach this topic?

Grégor Puppinck: I have been working with the ECLJ on this topic for many years alongside the European institutions and those of the United Nations, where we have reinforced the guarantee of freedom of conscience when faced with morally controversial practices, for example through participating in the composition and the adoption of a resolution in the Council of Europe devoted to “the right to conscientious objection in lawful medical care” in 2010.

Throughout these encounters, it appeared to me that it would be equally as absurd as it would be counterproductive to achieve success only through political sway, and that a steadfast recognition of the law on conscientious objections was required to fully realize the legitimacy of such a right. Yet, I must admit that I personally had doubts about the merit of such an endeavour for quite some time, having thought that conscientious objections was perhaps too subjective a concept for it to be fair and reliable. However, in the current political situation, marked by a disappearance of spiritual and moral direction, it is necessary to protect people against being forced to partake in immoral practices, for lack of being able to achieve a ban on such practices. Therefore I felt the protection of the right to conscientious objections appeared fragile in substance, but politically expedient.

Furthermore, the principal argument of those against conscientious objections is not entirely unfounded: no society could function properly if citizens were able to avoid the application of the law in the name of their beliefs. Faced with diverse beliefs which divide society, those opposed to a right to conscientious objections cite the benefit of a common law and in this way try to confine those who reject abortion to the same place as religious extremists.

As a result of the growing diversity of society, judges are faced with numerous instances of people who, on account of their beliefs, refuse to complete various actions. There is a danger that overwhelmed with varying demands; judges may be inclined to refuse all of them in the name of maintaining equality before the law. In fact, the study of jurisprudence shows that judges have difficulty understanding the jurisdiction for refusal and that, if they do recognize the need for criterion when making decisions in this area, they appear inherently incapable of identifying them on account of both the restriction on judges deciding issues on the basis of religion and the confusion that exists between religion and morality. Accordingly, a clarification of the concept of conscientious objections appeared necessary to me, not in order to expand its scope and risk making it indefensible, but moreover to define it better so that it can be protected to a fair extent. That is the ambition of this essay.

La Nef:  What were the main difficulties?

GP: The root of the difficulties can be found in the incorrect understanding of the conscience. According to the common view, this is an abstract type of superego, a sphere of autonomy situated in an individual’s inner character. This black box would produce a mix of desires, convictions, opinions, and beliefs. Yet all of these ideas are used in the field of law without our understanding them entirely anymore. Therefore it is a question of rediscovering their definitions as well as their relationships with one another in moral philosophy, because it is a concept which is fundamental to the foundation of law. When this concept becomes confused the foundations should be sought after, and, moreover, positive law should be reconstructed from them. The approach of this study which is based in philosophy is to produce rational solutions which are applicable in practice. It uses them to highlight the rationale of conscientious objections, entailing a detachment from excessive subjectivity and positivity which give too much, or too little legitimacy to individual conscience. Between positivity and subjectivity, the aim is to investigate the objectivity of justice. This aim may appear out of reach in a society which has renounced, at least partially, the public opinion that a common good exists. However to refuse to make an effort would effectively abandon the logic of justice and resign it to disorder.

La Nef: What are these keys to understanding which best uncover the issue of conscientious objections?

GP: Three tools allowed me to understand the objection.

The first, outlined by Saint Thomas of Aquinas, lies in the difference which exists – and which can be found also in the Ten Commandments – between positive and negative guidelines, that is to say between the positive obligation to do good, which obliges people semper sed non ad semper, and the negative obligation not to do bad, which obliges people semper et ad semper. This difference highlights the imbalance between good and evil, seeing as good is a matter of proportion, while evil is a matter of principal. As a result it is worse to force somebody to do evil than it is to stop them from doing good, because forcing somebody to do evil doesn’t affect the completion of the act, but the act itself. Conversely a good deed can be partially performed, but a bad deed is always whole, even if it can be reduced.

This distinction allows conscientious objections to be confined only to circumstances where a person is forced to accomplish an act which they deem bad or is punished for refusing to comply. On the contrary, a case in which the authorities ban people from realizing all or part of a good deed (Antigone’s case), is part of the regular regime of limitation of the demonstration of convictions.

The second tool can be found in the distinction between faith and reason, Fides et Ratio, between religion and morality, and accordingly between the objections, depending on whether they are founded on religious or moral beliefs. If an objection, either moral or religious, always constitutes a conscientious objection as we only have one conscience, the difference between moral and religious objections is comprised of the first one being able to claim it is objectively fair: this claim involves fairness. On the contrary, a religious objection cannot in itself claim to be fair , and the claim involves the freedom of the person to conform to their religious beliefs. Undoubtedly, the authorities must, insofar as possible, tolerate this religious freedom. However, if the refusal opposed to a religious objection can be a violence, it may not necessarily be unfair in itself. On the contrary, faced with a genuine moral objection, the authorities cannot infringe upon it without committing an injustice or violence. The difficulty is found in recognising a genuine moral objection: the study gives some criteria to this end.

The third tool relates to the existence of two levels of morality in liberal societies, which are characterized by the declaration of tolerance, that is to say by the illegitimacy of all moral judgement ad extra: the morality of an individual action can only be judged by the concerned party, and not by society nor other individuals. This results in a difference between public and private morality which leads people to publicly  tolerate practices which they disapprove of in private.

Yet, if this tolerance is trouble-free for the majority of citizens, it is not so for the minority directly concerned by the carrying out of the practice in question; because, to use a concrete example, it is one thing to tolerate euthanasia, but it is another to have to practice it oneself. If it is possible to make two moralities coexist within a society, it is not possible within a single person. In this way, the “freedom” that liberal society offers individuals with regard to practices which are morally debatable can only be fair if they guarantee those who disapprove the right to not be forced to take part in it. It is particularly unjust to ask a person, in the name of tolerance, to agree to the legalization of a practice, then be intolerant towards that person, once the practice is legalized, by forcing them to participate in it. It is however the natural tendency of all societies, which remain driven by the search for unity, even if it claims to have renounced that of reality. However unity without truth is violence.

Interviewed by Christophe Geffroy.

Source: La Nef N°286 de novembre 2016

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« Objection de conscience et droits de l’homme, Essai d’analyse systématique », Société, Droit et Religion, CNRS Ed°, July 2016. Grégor Puppinck has a PhD in law. He is the director of the European Center for law and Justice, and a  member of the ODIHR panel of experts on freedom of religion or belief. A digital copy of the study, in French, can be requested from secretariat@eclj.org.