Conscience - Conscientious Acts and The Law

Conscientious Acts and The Law

Further information: Conscientious objector, Civil disobedience, Natural law, Natural rights, Nonviolence, and Prisoner of conscience

A conscience vote in a parliament allows legislators to vote without restrictions from any political party to which they may belong. In his trial in Jerusalem Nazi war criminal Adolf Eichmann claimed he was simply following legal orders under paragraph 48 of the German Military Code which provided: "punishability of an action or omission is not excused on the ground that the person considered his behaviour required by his conscience or the prescripts of his religion". The United Nations Universal Declaration on Human Rights (UDHR) which is part of international customary law specifically refers to conscience in Articles 1 and 18. Likewise, the United Nations International Covenant on Civil and Political Rights (ICCPR) mentions conscience in Article 18.1.

All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of brotherhood —United Nations, Universal Declaration on Human Rights Article 1 Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance —United Nations, Universal Declaration on Human Rights Article 18 Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching —United Nations, International Covenant on Civil and Political Rights Article 18.1

It has been argued that these articles provide international legal obligations protecting conscientious objectors from service in the military.

John Rawls in his Theory of Justice defines a conscientious objector as an individual prepared to undertake, in public (and often despite widespread condemnation), an action of civil disobedience to a legal rule justifying it (also in public) by reference to contrary foundational social virtues (such as justice as liberty or fairness) and the principles of morality and law derived from them. Rawls considered civil disobedience should be viewed as an appeal, warning or admonishment (showing general respect and fidelity to the rule of law by the non-violence and transparency of methods adopted) that a law breaches a community's fundamental virtue of justice. Objections to Rawls' theory include first, its inability to accommodate conscientious objections to the society's basic appreciation of justice or to emerging moral or ethical principles (such as respect for the rights of the natural environment) which are not yet part of it and second, the difficulty of predictably and consistently determining that a majority decision is just or unjust. Conscientious objection (also called conscientious refusal or evasion) to obeying a law, should not arise from unreasoning, naive "traditional conscience", for to do so merely encourages infantile abdication of responsibility to calibrate the law against moral or human rights norms and disrespect for democratic institutions. Instead it should be based on "critical conscience' – seriously thought out, conceptually mature, personal moral or religious beliefs held to be fundamentally incompatible (that is, not merely inconsistent on the basis of selfish desires, whim or impulse), for example, either with all laws requiring conscription for military service, or legal compulsion to fight for or financially support the State in a particular war. A famous example arose when Henry David Thoreau the author of Walden was willingly jailed for refusing to pay a tax because he profoundly disagreed with a government policy and was frustrated by the corruption and injustice of the democratic machinery of the state.

"Unjust laws exist; shall we be content to obey them, or shall we endeavour to amend them, and obey them until we have succeeded, or shall we transgress them at once?...A man has not everything to do but something; and because he cannot do everything, it is not necessary that he should do something wrong...It is for no particular item in the tax bill that I refuse to pay it. I simply wish to refuse allegiance to the State, to withdraw and stand aloof from it effectually. I do not care to trace the course of my dollar if I could, till it buys a man, or a musket to shoot one with-the dollar is innocent-but I am concerned to trace the effects of my allegiance...Must the citizen ever for a moment, or in the least degree, resign his conscience to the legislator? Why has every man a conscience, then?"

— Henry David Thoreau. Civil Disobedience. 1848. reprinted Signet Classic, New York. 1960 pp. 228, 229, 236.

In the Second World War, Great Britain granted conscientious-objection status not just to complete pacifists, but to those who objected to fighting in that particular war; this was done partly out of genuine respect, but also to avoid the disgraceful and futile persecutions of conscientious objectors that occurred during the First World War.

Amnesty International organises campaigns to protect those arrested and or incarcerated as a prisoner of conscience because of their conscientious beliefs, particularly concerning intellectual, political and artistic freedom of expression and association. Aung San Suu Kyi of Burma, was the winner of the 2009 Amnesty International Ambassador of Conscience Award. In legislation, a conscience clause is a provision in a statute that excuses a health professional from complying with the law (for example legalising surgical or pharmaceutical abortion) if it is incompatible with religious or conscientious beliefs. Expressed justifications for refusing to obey laws because of conscience vary. Many conscientious objectors are so for religious reasons—notably, members of the historic peace churches are pacifist by doctrine. Other objections can stem from a deep sense of responsibility toward humanity as a whole, or from the conviction that even acceptance of work under military orders acknowledges the principle of conscription that should be everywhere condemned before the world can ever become safe for real democracy. A conscientious objector, however, does not have a primary aim of changing the law. John Dewey considered that conscientious objectors were often the victims of "moral innocency" and inexpertness in moral training: "the moving force of events is always too much for conscience". The remedy was not to deplore the wickedness of those who manipulate world power, but to connect conscience with forces moving in another direction- to build institutions and social environments predicated on the rule of law, for example, "then will conscience itself have compulsive power instead of being forever the martyred and the coerced." As an example, Albert Einstein who had advocated conscientious objection during the First World War and had been a longterm supporter of War Resisters' International reasoned that "radical pacifism" could not be justified in the face of Nazi rearmament and advocated a world federalist organization with its own professional army. Samuel Johnson pointed out that an appeal to conscience should not allow the law to bring unjust suffering upon another. Conscience, according to Johnson, was nothing more than a conviction felt by ourselves of something to be done or something to be avoided; in questions of simple unperplexed morality, conscience is very often a guide that may be trusted. But before conscience can conclusively determine what morally should be done, he thought that the state of the question should be thoroughly known. "No man's conscience", said Johnson "can tell him the right of another man...it is a conscience very ill informed that violates the rights of one man, for the convenience of another."

Civil disobedience as non-violent protest or civil resistance are also acts of conscience, but are designed by those who undertake them chiefly to change, by appealing to the majority and democratic processes, laws or government policies perceived to be incoherent with fundamental social virtues and principles (such as justice, equality or respect for intrinsic human dignity). Civil disobedience, in a properly functioning democracy, allows a minority who feel strongly that a law infringes their sense of justice (but have no capacity to obtain legislative amendments or a referendum on the issue) to make a potentially apathetic or uninformed majority take account of the intensity of opposing views. A notable example of civil resistance or satyagraha ("satya" in sanskrit means "truth and compassion", "agraha" means "firmness of will") involved Mahatma Gandhi making salt in India when that act was prohibited by a British statute, in order to create moral pressure for law reform. Rosa Parks similarly acted on conscience in 1955 in Montgomery, Alabama refusing a legal order to give up her seat to make room for a white passenger; her action (and the similar earlier act of 15-year-old Claudette Colvin) leading to the Montgomery Bus Boycott. Rachel Corrie was a US citizen allegedly killed by a bulldozer operated by the Israel Defense Forces (IDF) while involved in direct action (based on the non-violent principles of Martin Luther King and Mahatma Gandhi) to prevent demolition of the home of local Palestinian pharmacist Samir Nasrallah. Al Gore has argued "If you're a young person looking at the future of this planet and looking at what is being done right now, and not done, I believe we have reached the stage where it is time for civil disobedience to prevent the construction of new coal plants that do not have carbon capture and sequestration."

Conscientious non-compliance is a private (non-public) refusal to obey a law perceived as incoherent with foundational social or professional virtues or principles; to be ethically justifiable such an act should be altruistically motivated and the person performing it must be willing to ultimately offer a public justification of his or her actions according to those fundamental virtues and principles. A pertinent contemporary example is a medical professional in a privatised managed care health system who covertly orders additional diagnostic tests or a longer hospital stay (contrary to 'over-servicing' prohibitions in his or her employment contract) because his or her "critical conscience" considers such legal obligations impact adversely on patient safety, contrary to virtues and principles of the Hippocratic Oath or international human rights concerning egalitarian and beneficent treatment; but that public interest disclosure is not a practical option due to the repeal or ineffectiveness of legislation protecting whistleblowers. A notable historical example of conscientious noncompliance in a different professional context was the manipulation of the visa process in 1939 by Japanese Consul-General Chiune Sugihara in Kaunas (the temporary capital of Lithuania between Germany and the Soviet Union) to allow Jews to escape almost certain death. Ho Feng-Shan the Chinese Consul-General in Vienna in 1939, defied orders from the Chinese ambassador in Berlin to issue Jews with visas for Shanghai. John Rabe a German member of the Nazi Party likewise saved thousands of Chinese from massacre by the Japanese military at Nanking. The White Rose German student movement against the Nazis declared in their 4th leaflet: "We will not be silent. We are your bad conscience. The White Rose will not leave you in peace!" Conscientious noncompliance may be the only practical option for citizens wishing to affirm the existence of an international moral order or 'core' historical rights (such as the right to life, right to a fair trial and freedom of opinion) in states where non-violent protest or civil disobedience are met with prolonged arbitrary detention, torture, forced disappearance, murder or persecution. The controversial Milgram experiment into obedience by Stanley Milgram showed that many people lack the psychological resources to openly resist authority, even when they are directed to act callously and inhumanely against an innocent victim.