Dr. Erica Weiss, Tel Aviv University anthropologist and author of “Conscientious Objectors in Israel: Citizenship, Sacrifice, Trials of Fealty”, tackles the concept of conscientious objection in Israel – a democratic society that honors the freedom of conscience while fighting for its survival.
“…at the end of the day, what we are fighting for is our existence.”
–the interviewer
“[Conscience is] thinking for yourself … while in dialog with the collective.”
–the interviewee
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When James Madison submitted a draft bill of rights to the first US Congress, he provided language more expansive than his native Virginia Declaration of Rights, that declared at opening of rebellion against Great Brittan. The latter says
“religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence; and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practise Christian forbearance, love, and charity toward each other.”
and there resides “conscience” as helpmeet to worship. But Madison’s draft to Congress free stands “conscience” beyond worship:
“The civil rights of none shall be abridged on account of religious belief or worship, nor shall any national religion be established, nor shall the full and equal rights of conscience be in any manner, or on any pretext, infringed.”
Congress declined the language, creating the First Amendment’s terse
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof…”
While “prohibiting the free exercise thereof” might include conscience as a religious act, Madison’s draft to Congress, severing “religious belief or worship” from “full and equal rights of conscience” into distinct clauses, opens the possibility of conscience absent religion. To some extent the difference is pointless for the time, where internal conversation with the Creator–emphasized earlier in Great Brittan by dissenting Puritans, refusing attendance at public worship in the State Church of England (“recusants”), thereby truncating social standing and opportunity save at the margins of power–was all the conscience one could imagine. One can see conscience as the machinery of worship in the Independence War constitution of Pennsylvania, home of the pacifist Quakers:
“Nor can any man, who acknowledges the being of a God, be justly deprived or abridged of any civil right as a citizen, on account of his religious sentiments or peculiar mode of religious worship: And that no authority can or ought to be vested in, or assumed by any power whatever, that shall in any case interfere with, or in any manner controul, the right of conscience in the free exercise of religious worship.”
Conscience was a religious sense, just as, in Buddhism, thought is not an outcome or process but sense–thoughts happen to you, just as visual images appears to you, none of your doing as such. Conscience was dialogue with God or, rather, God speaking to one in one’s acts to speak to the community. It was not an isolate choice independent of discourse; rather, it induced discourse by placing the speaker at risk.
This same sense can be found in Socrates as channeled by Plato. At trial Socrates describes a small voice telling him not what to do but what not to do upon event. He sees this as quite pious, and he devotes his hours asking others to do the same, questioning the presumptions of daily discourse; reverence is not declaring what is pure, but avoiding what one can see impure. Yet he is convicted of impiety and the corruption of youth, sentenced to die as sophist who employs words to confuse for gain. In Crito he is offered opportunity to escape, but declines. The laws, he says, have nurtured him, providing the material basis through which he came to devote his life to the highest goal, searching for the nature of the Good in Man. To escape would be to confirm the sentence upon him, for he would be abandoning the only platform of progress toward that end, a charlatan after all. He must rather face his sentence as final appeal of his conscience, for others to decide after his exit.
As the interviewer says, a fight for existence; as the interviewee says, in dialog with the collective. Conscience is not isolate man but dialogue through act with Man. It is not an immunity, but risk inherent, either direct from another, or gamble of lost opportunity through recusal.
The severance Madison makes in his draft right to Congress is made stark in the Israeli Declaration of Independence which says
“THE STATE OF ISRAEL … will guarantee freedom of religion, conscience, language, education and culture…”
leaving no doubt that religion does not subsume conscience.
I have long wondered how to operationalize conscience in law and think the answer lies in dialogue. Constitutionally, conscience is an individual refusal of law to accept punishment in law; as in Socrates, conscience definitionally cannot run. The refusal may be a breaking of legal prohibition or declination to execute an act required by law, but in either case willingly present for punishment. Gandhi did this, intentionally breaking law without running, accepting punishment. Yet Gandhi also shows that conscience is not limited to the breaking of law: his fasts were not in themselves against statute, some outside of prison. But his fasts were final declaration of compatibility with the collective: he would, he said, exist the world, so collective only though which we know of it, if his view is refused, or he not convinced otherwise. He would say, as I have read by him, that he did this in chance he was wrong, he thereby assuming all risk to harm no other, a Jainist of sociality. But, I venture, he would as well exit the collective because if so allowed he does not belong there. There is no sense of having to belong elsewhere; it is not a choice of better, just compatibility.
This latter, I suggest, can be found among people across culures. Palestinians fasting to near the point of death in Israeli prisons are asking to exit if conditions do not change (one asked for trial rather than repeated administrative detention where no charge is declared). Tibetan immolates exit the world for fundamental incompatibility, as did some Buddhist monks and nuns in the Vietnam war. Women fighting for the vote in Great Brittan were force fed for refusing food; so too were imprisoned members of the IRA; so too were “enemy combatants” culled in the American invasion of Afghanistan after being placed in Guantanamo Bay.
Including Gandhi, these examples are ideologically quite diverse; exit for incompatibility in a way harming no other is a social option across ideologies. Another form of such exit is refusal of all medical intervention, refusing pain, incapacity, or place in the world. Such exists disturb us greatly, this their power, albeit not a power everywhere. US comedian Dick Gregory fasted during the Vietnam war; few noticed, either fast’s start or ending. Yet Gandhi’s fasts moved millions.
Exit for incompatibility is enmeshed in culture. Which brings me back to the question of a constitutional right of conscience. Risked conscience is theatrical; it requires communication with an audience (the pela to the collective), perhaps with feedback leading to changing conscience response. The audience may decide to exit the theater, leaving conscience as in a movie which acts although no one will see (except in the movies), a null outcome upon which success otherwise rides, just as a gamble must risk loss to win big. I submit what a constitutional right of conscience requires is access to the theater: the actor must be able to communicate even while punished. Gandhi enjoyed this. The British often allowed him to write and publish while he was in prison–a tactical mistake on their part, surely, but implicitly honoring a right to conscience. Honoring a right of conscience risks those honoring as well as those so honored. The death of early feminists by fasting could speed constitutional change; the death of Palestinians or IRA fasting could ignite rebellion.
Conscience as constitutional right creates a tipping point risking both State and, shall I say, penitent. If you consider the evolution of such a right from religious dissent, jeopardizing both individual salvation and social stability, this should not be surprising. The right evolves from the wins of dissent. It did not exist on the European continent during the Reformation and Counter-reformation, but emerged upon the exhaustion of that conflict. In England, it emerged after the Civil War to avoid the polarization which helped trigger that war. This withdrawal of conscience from persecution has, when applied to contemporary law, the effect of creating recurrent structural constitutional risk, but risk which measures what society can create and what it can bear–not the same things at all.
Conscience would not be applicable to most infractions of the law. One in conscience neither runs nor hides a violation, but proclaims it outright, turning over one’s body to the law. Most illegal acts would fail its protection by their own character. Further, conscience assumes all harm into itself; one cannot murder someone and turn oneself in pleading constitutional conscience. On this view, Nelson Mandela was not acting on conscience before his arrest–for he had to be found. Conscience is restraint on what political beliefs may actuate. Mandela did act on conscience after imprisonment, which makes another point: conscience often emerges when options dwindle, the very constraints of law grounding its flower. I appeal to you because there is naught else. It is, then, a reticulated evolution of the law and society: the harder to escape the snare of society, the more likely conscience will appear; a wilderness recusant is not acting on constitutional conscience.
A court affirmed plea of constitutional conscience in no way ameliorates punishment. If one is sentenced to death, one will still die. But public communication, an audience, is granted as mandated by the right. To the end, of life or term, such an individual speaks their position to the world, it to hear or not. A right to conscience prevents its silencing; one may speak to the world while isolated from it, imprisoned. Not much of a right, really. Unless you are all alone in that cell, wanting to say how and why you are there.
And that, I suggest, is what the Israeli Conscientious Objector wants, both affirming the protective essentials of the State while advocating policy change through refusal.