ATbar Civil Disobedience, Rebellion, and Conscientious Objection
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Civil Disobedience, Rebellion, and Conscientious Objection

26/02/2001 | by Bin Noon, Chemi  

This article is part of a book soon to be published by the author.

Rabbi Yochanan says: Jerusalem would not have fallen had they fixed their dealing on the regulations of the law. (Talmud: Baba Mezia, 30)

Good men must not obey the laws too well. (Ralph Waldo Emerson, On Politics) Ius summum saepe summa est malitia . (Terence)

Introduction

“Civil disobedience” is a term which has recently gained in popularity, both in this country in the context of the Intifada and the refusal of soldiers to serve in the territories, and further afield, particularly pertaining to the developments in Eastern Europe. In many cases, however, the usage of this term is wrong and often misleading.

A common example of the abuse of this term is the claim that the Intifada is civil disobedience. This is a serious mistake: in the West Bank and the Gaza Strip there is no civil disobedience, but rather a rebellion—a violent struggle against the occupation, law and rule of the State of Israel. Whoever says that the Intifada is civil disobedience has no idea what civil disobedience actually is. In fact, it is the action of some of the people who refuse to serve in the territories, and Abie Nathan’s willful defiance of the law, which truly exemplify civil disobedience. There are, of course, cases which are less clear-cut than these. Was, for example, the settlers’ resistance to the Israeli withdrawal from the Sinai civil disobedience? Can some West Bank settlers’ contempt for Israeli rule, and their breaking of the law be considered civil disobedience?

In the twentieth century the subject of civil disobedience has often come to the attention of the public: the Nuremburg trials; Martin Luther King; the burning of call-up papers during the Vietnam War—all these attracted attention to the subject. Much ink has been spilt in the argument between the supporters of total obedience to the law and their opponents. The argument really took off in the sixties and acquired at that time the form in which it is still discussed. Most of the discussions are about one’s duty to obey the law, the justification or otherwise of civil disobedience, and attempts to turn civil disobedience into a legally recognized right. Among the more important research questions which arose are: whether there exists a primary obligation to obey the law; what obeying the law essentially is; and especially, whether there are conditions or circumstances in which there is a right to exercise civil disobedience, and, if so, what these conditions or circumstances might be.

This last question will start our present discussion. The answers to the question as it is phrased present the basic controversy. There are two basic positions. Some claim that one’s duty to obey the law is total. In other words, there are no conditions or circumstances in which there is a right to civil disobedience. Others claim that one’s duty to obey the law is not total. In other words, there are conditions or circumstances in which there is a right to civil disobedience.

Among those researchers in the field who recognized a right to civil disobedience, some justified or even advocated civil disobedience in certain circumstances, and others even went so far as to claim that in certain circumstances the individual had a legal right to civil disobedience.The debate which developed concerned the “permitted” forms of civil disobedience and ways of limiting them, but it proved to be rather pointless since, on the one hand, the law denied the claim that civil disobedience was a right while, on the other hand, civil disobedience was fast becoming part of the political map, a common and familiar event. In effect, the form and nature of civil disobedience were decided by events and not by academic discussion.

Paradoxically, the discussion in this field was not particularly affected by the fact that the law did not recognize civil disobedience, and many researchers even tried to accommodate it within the law by setting conditions and limitations to civil disobedience by which the law could recognize it. They saw the right to civil disobedience as a moral right attempting to become a legal right. In defining and justifying civil disobedience, they sometimes confused its justification with its definition. Since, however, civil disobedience is not normally justified, nor justified law-breaking necessarily civil disobedience, the debate did not get very far in this direction.

Joseph Raz’ book, The Authority of the Law[1], published in 1979, apparently ended the debate about the legality of civil disobedience. Like other researchers, Raz examined the hypothesis that if there was a moral right to disobey the law, one could base a legal recognition of civil disobedience on it. But Raz showed that there cannot be a legal right to civil disobedience. This conclusion was drawn from an analysis of the concept of “right” and the realization that even if civil disobedience is justified and sometimes necessary, it is a unique political category which is beyond the bounds of tolerance. Civil disobedience cannot be recognized by the law because, if it were recognized by the law, there would no longer be any need for civil disobedience. A right to civil disobedience, therefore, is legally impossible. Raz’ argument slowly trickled down and the discussion about the legal right to civil disobedience began to die down. At the same time, the distinction between moral right (which is not legally recognized) and legal right became clearer.

It is true that a legal right to civil disobedience does not exist, but I maintain that the legal system could recognize civil disobedience if only indirectly, for example, in cases where it seems that someone has not broken the law because he wanted to per se, but because he wanted the law to recognize his cause. This recognition might appear at various stages of the criminal process, from determining the charge to considering the motives and intentions of the convicted person when passing sentence. The reference to motive and intent which arises through examining the way in which the offence has been committed allows a different legal treatment, whether harsher or more lenient, of those who break the law for ideological reasons.[2]

In view of all the above, it seems pointless to search for definitions of civil disobedience or a general justification of it. I think we should give up the attempt to accommodate it in moral or legal systems and we should leave it in its natural habitat, the political field. An act of civil disobedience can only be judged to be so with hindsight. It is worth examining such an act since, if the conclusion is reached that this was a politically justified act of civil disobedience, the act and its perpetrator may be cleared and treated accordingly.

We cannot predict where, when, or why someone will rise up and say “Enough!” but we may agree that there are situations in which the individual should refuse to obey the law. I would add that the perpetrator of civil disobedience does not intend to solve his own personal moral problems, but acts for the common good and for the well being of the state and the socio-political order.

Civil disobedience, then, is a political act: its perpetrator aims to obstruct with his body a law or policy which he finds reprehensible. Among the motives for this action there may be some whichmay be called moral; but since these cannot be justified legally and since the discussion about civil disobedience is conducted with hindsight, a merely moral or merely legal discussion is pointless. In fact, the most important issue seems to me to be civil responsibility. This is a term that raises the following questions: What is civil responsibility, and what characterizes it? Who is a responsible citizen, and what is his place in a democratic society? What prevents a citizen from being responsible? I believe that civil disobedience and civil responsibility are interconnected, and that one cannot be discussed without the other.

Civil disobedience is a paradoxical term because its perpetration, which involves breaking the law, seems to transgress the bounds of citizenship. I, however, do not think that there is a real contradiction in terms here, since a responsible citizen may have to break the law in order to remain a responsible citizen—that is, in order to safeguard the integrity of the government, the legal system and democracy. Therefore, the perpetrator of civil disobedience does not necessarily forfeit his claim to citizenship.

In the future we can expect riots over a possible Israeli withdrawal from the West Bank. Would Jewish religious extremists who might adopt violent measures against the government and its decisions be considered rebels? Of course they would, because these people give priority to their dreams over the law, governmental decisions and social integrity. But what of those with extreme views on security? They would claim that the territories are a necessary condition for the existence and security of the State of Israel. So they, too, would fight violently against the security forces trying to remove them. Isn’t it a civil responsibility to guard the territories? Could their actions not be regarded as civil disobedience? And what if their political opponents used force against them? A civil war between two groups who are realizing their version of civil responsibility is a threatening but not unrealistic script. Therefore, the discussion of civil disobedience in the light of civil responsibility is important with regard to the very existence of the state.

One element of civil responsibility is the constant political debate on important questions arising from a law or policy which might lead to political law breaking when it is clear that legal protest will not help. The result of this debate might be surprising: instead of the common claim that in a democracy there is a primary obligation to obey the law, we will find the counterclaim that there is a primary obligation not to obey the law unless it is rooted in justice, freedom and equality. It would follow that civil responsibility, and not necessarily obedience to the law, is the basis for democracy.

This being the case, the justification for civil disobedience is political—the civil responsibility of the agent—and not legal or moral. A responsible citizen gives obedience to the law priority over his personal values: obeying the law is a need, the necessity of which is not subject to moral debate and is not a value which can be judged and compared with other values.[3]The responsible citizen, however, does not obey the law blindly. In certain circumstances he may ask himself, for example: Should I break the law in order to safeguard democracy? Should I break the law in order to warn against an irrational policy destructive to the state? Should I break the law in order to save the legal system from a destructive law?

It is not always clear whether the law-breaking did actually safeguard democracy, rescue the state from a destructive law, or was a wild protest against the policy which the perpetrator considered irrational. These things can be evaluated, if at all, only later, and usually many years later! Therefore, civil disobedience cannot usually be defined in advance, but only characterized. This strange situation makes life difficult for the potential perpetrator of civil disobedience, and actually helps his enemy—the political establishment. Politicians tend to present civil disobedience as a danger to the regime, and in this way can destroy civil responsibility, leaving two alternatives:
  1. Passivity and apathy, whereby the citizens of the state are prepared to obey every law just because a legally elected body legislated it.
  2. Rebellion, aimed at replacing a corrupt system.

In my opinion, civil disobedience, with all its unpleasantness, is preferable to these two alternatives.

This is not to say that breaking the law out of civil responsibility is the only answer to a faulty law or policy. All that is claimed is that sometimes law-breaking which does not cause the destruction of society and the legal system is preferable to a castrated and subjugated citizen who obeys every command just because it is legal. The policeman, the judge and the legislator defend the law, each in his own way, but the responsible citizen also has an obligation to protect the legal system, even from itself. Civil disobedience per se is not a positive action, but a necessary evil which is justified in the name of civil responsibility.

It is important to stress that this book does not supply a formula for civil disobedience: one should not necessarily react to an event with an act which worked against a similar event in the past, and which was later adjudged by public opinion to be civil disobedience and was rehabilitated accordingly. Each act must be assessed within its own context, its own set of facts. Given a certain set of facts, an individual may decide to break the law, and the law-breaking will refer only to that set of facts.

Misunderstanding the essence of civil disobedience or deliberate abuse of these words affects public opinion and creates a negative attitude towards acts of civil disobedience and their perpetrators. Especially in view of the power of the print and broadcasting media which bring a word with all its connotations into the public domain, there should be a thorough debate on the meaning of civil disobedience. Such a debate would, I feel, clarify the term and bring about a recognition of its importance in a democratic system.

Rebellion, Protest, and other Creatures

A full and comprehensive discussion on the meaning of civil disobedience must start with a clarification, if only a basic one, of the terms concerned. To this end, we shall begin with several rough definitions and characteristics of the terms to be used. At the beginning of the book I stated that the Intifada was not civil disobedience but a rebellion, and this raises the question whether civil disobedience and rebellion are mutually exclusive terms or partly overlap. An answer to this question would serve as a partial answer to the more general question whether civil disobedience, rebellion, conscientious objection, legal protest, coups and revolutions are all merely different facets of the one thing, protest, and therefore not distinctly differentiated from each other (either partly overlapping, or distinguished by the level of the protest, the manner of its expression, the level of tolerance to it, etc.), or whether they are actually distinct in essence. My answer to this question is that civil disobedience, rebellion, conscientious objection, legal protest, coups and revolutions are distinctly differentiated from each other.

Rebellion

Rebellion is an organized group act of law-breaking politically motivated, the purpose of which is to change—directly or indirectly—the regime or the existing constitutional arrangements. A rebellion usually occurs when there is an extreme disparity between the expectations of the rebelling group and the actual situation. When it occurs, it does not recognize the existing law of the state, and its ways of action are not necessarily limited. Rebellion may take the form of terrorism, guerilla warfare, or political protest of various types.

Some distinguish rebellion from a coup or a revolution: if the purpose of the rebellion is not necessarily to create drastic changes in the regime or in the existing legal and social arrangements, then it is not a revolution, wpurpose is to bring about sudden drastic changes. If the purpose of the rebellion is not necessarily to depose the leader, then it is not a coup, because this is the purpose of a coup.[4]

Some include in the term “rebellion” the meanings of “coup” and even “revolution” as well. This inclusion almost totally excludes civil disobedience from the realm of rebellion, and creates a clear distinction between the two terms. Since the act of civil disobedience respects the law in principal and attempts to change a certain law or policy, there is a border line between civil disobedience and rebellion although there is no empirical measure to decide how many laws must be broken to turn civil disobedience into rebellion.

Protest

Legal political protest is also different from civil disobedience, because it does not break the law, and therefore it does not present a problem (at least, not in a democracy). Protest is a public response to a certain situation created by a law or policy which the protestors feel harms them or their environment. The various forms of protest are created mainly by individuals or groups which lack political power—or lack significant political power—when a routine political activity on their part failed, was ineffective, or proved to be impossible. In these cases, the protest is directed against bodies, persons, laws, occurrences, processes and general policies which receive establishment, social or political support. Protest is recognized as political activity whose purpose is to express an opinion in a blatant manner, and it serves as a means of releasing tensions and frustrations or of bargaining or coercing to achieve political objectives.

Legal protest is normally expressed in an extra-parliamentary way, involving activities permitted under the rules of democracy. This form of protest can be expressed in demonstrations, strikes, parades, petitioning, public debates, picketing, “legitimate” breaches of the peace (those that would not entail prosecution), and a direct appeal to the media. On the other hand, illegal protest involves breaking the law or “illegitimate” breaches of the peace. This form of protest does not follow the accepted rules of a democracy, and can involve snubbing the government in various ways: refusing to receive public services, refusing to fulfil civil duties (military service, payment of taxes, failure to appear in court, etc.), hunger strikes, and even violent actions (blocking roads with burning tyres, threatening to plant bombs, etc.).

It is hard to decide exactly where to delimit obviously democratic protest (civil disobedience) between legal political protest on the one hand, and anti-democratic protest on the other. It is commonly accepted that when a protest involves illegal steps which do not constitute a denial of the rule of law, the legitimacy of the democratic regime, or the existing government, the illegal steps are not anti-democratic, and that the protest is not then a real rebellion but civil disobedience. But civil disobedience might border on legal political protest.[5]

It is acceptable today—at least, in Western society—to see political protest as a form of expression rooted in basic human rights. Since it fits democratic and liberal principles, protest is not regarded as negative in essence, and its purpose is to alert the government and its satellite organizations to public mistakes such as a misguided or distorted policy. Protest can be a safety valve for tensions, guaranteeing the well-being of society, the regime, and the legal system. Therefore, it is “worthwhile” for the government not to crush a protest which might be damaging in the short term, but beneficial in the long term by guaranteeing the government’s stability.

The opponents of civil disobedience use the permitted protest activities as a figleaf: they claim that democracy allows a protest whose rules are clear, and which is therefore legitimate and legal. If a law or policy is unjust, there are legal ways to influence public opinion, and so there is no need for civil disobedience. There are three counterclaims to this argument:
 

  1. There might be certain circumstances in which any form of legal protest would be useless, and this would leave an illegal form of protest, such as civil disobedience, as the only democratic option available.
  1. The government is used to familiar forms of protest, and knows how to prepare for them, so they are not as effective as civil disobedience.
  1. The public is sick and tired of protests, most of which fail to grab their attention; on the other hand, civil disobedience might grab their attention and change things before the situation worsens irrevocably.

Conscientious Objection

The distinction between civil disobedience and conscientious objection is important because many people confuse the two. They actually belong to separate categories and deserve different treatment.[6] Conscientious objection is law-breaking for moral reasons. This is a private act of an individual aiming to prevent, in his opinion, an immoral act which would result from obeying a partly or wholly morally bad law. The conscientious objector believes that he has a moral injunction to disobey that law; in other words, he subsumes obeying the law to a higher moral principle. This higher principle might be religious or humanist/atheist. In any case, the conscientious objector believes that the state is subservient to the same higher principle and therefore cannot be the highest authority in adjudicating the values of the individual. He believes that the source of state laws is merely an agreement between the individual members of a human collective, and that these laws cannot therefore claim absolute authority.

Civil disobedience may also arise from moral considerations, amongst other things; but as its name testifies, it is first and foremost an act of civil, public protest stemming from civil responsibility, the purpose of which is to change a law or policy with which the objector disagrees. Preserving personal moral integrity may be one of the reasons for civil disobedience, but it is not a necessary motive; preserving this integrity is inherent in the very objection of a conscientious objector. In addition, the perpetrator of civil disobedience does not presume a value system different or contrary to that of the existing law and order, and in this he is clearly different in essence from the conscientious objector.

Civil disobedience being a political act—a public act aimed at a political result—is distinguishable from conscientious objection, which is a private moral act. Moreover, a conscientious objector acts directly against the law which harms him, while the perpetrator of civil disobedience does not necessarily act against the law or policy which he finds unreasonable: he might break a reasonable law in order to raise awareness about the unreasonable law or policy.[7]

Civil Disobedience

At this point I do not intend to define civil disobedience exactly, but the term does require a rough outline. As we have already noted, civil disobedience is characterized by being a political act which contravenes a certain law; but the purpose of civil disobedience is not to break the law—quite the opposite—the perpetrator would have preferred to remain within the limits of the legal system and to have the legal system recognize the legitimacy of his actions. We find that while breaking the law is an essential element of civil disobedience, it is only a means to an end. It is an extreme tool by which to express protest and a wish to change a law or policy which the perpetrator thinks should be changed; or it is an expression of dissension from a certain law or policy. The wish to remain within the legal system and the request for legitimacy for breaking a certain law are essential characteristics of civil disobedience which distinguish it from rebellion. Civil disobedience is not intended to change the regime or the constitutional arrangements in general, but rather to influence and protest about a specific matter. It may exert influence as part of a plan of action which is supposed to lead to a change in a law or po, and it expresses the pof an individual or a sector of the public against that law or policy.

Civil disobedience (also known as civil refusal or civil non-compliance) borders on legal political protest on the one hand, and rebellion on the other. Civil disobedience may be expressed in a great variety of forms, some of which have already been mentioned. Attempted definitions of civil disobedience have consequently been too narrow in scope and are not usually accurate. So, for example, many tend to see civil disobedience as a non-violent act; but this is not necessarily so. Others see it as a last resort after all the legal avenues have been explored; but often an immediate, effective and dramatic action is needed, and there is not enough time to wait until all legitimate means have been exhausted. As we shall see later, most of the definitions of civil disobedience so far offered will not stand criticism.

An act of civil disobedience is intended to cause the law or policy against which it is directed to be reexamined. Such extreme protest may cause the legislators to wonder whether the law or policy is indeed faulty. Although the law was passed democratically and seemed reasonable, it has even so caused civil disobedience and should be reexamined. If it is now found to be unreasonable, the act of civil disobedience will be found to have been justified, and its perpetrators should be rehabilitated. Past experience proves that sometimes an extreme action at the limits of democracy has been necessary; but civil disobedience should not be assumed to be appropriate for every regime and every occasion in which the need for an extreme protest arises. Perhaps civil disobedience is a luxury which only a strong regime can afford.

Civil Responsibility

In a democratic regime, the citizens give their elected leaders certain powers including the arrangement of the form of government, and the preservation and enforcement of the law. In such a regime, the government is supposed to guard the rights of its citizens while maintaining its own integrity. The public is not supposed to be passive, but is expected to show its involvement by expressing an opinion on certain matters of internal and external policy, and to protest to the government if it does not fulfil its obligations or if it exceeds the resources allocated to fulfilling these obligations. If the government oversteps its authority, the public has a right to protest by all legal means, including changing the government. But if a citizen feels that this overstepping of authority is so serious that it could endanger the state, the rule of law or the citizens themselves, and that emergency action is called for, he might perpetrate an act of civil disobedience as an extreme expression of his protest and as a means to change the situation about which he is protesting.

This individual is a responsible citizen. He does not wish to harm the political legal system in general, and he supports the existing system of law and order; but, as far he is aware, his law-breaking not only will not damage the system but will even strengthen it. The responsible citizen in a democratic regime supports this regime and believes in it. He does not want a rebellion or a revolution. He would like to use legal steps to protect the principles in which he believes, but he would perpetrate civil disobedience as a necessary evil justified by his civil responsibility. This responsibility gives priority to obeying the law and the state legal system over other values; obeying the law is a need which is not subject to moral question. Since civil responsibility disregards all other values, including “higher values”, it cannot be a tool of interests or ideology. Civil responsibility itself is an ideology.

In fact there is no way of deciding in advance if a citizen who has perpetrated civil disobedience is a responsible citizen or not, and there is no way of knowing in advance the limits of obedience of a population—but the basis of civil responsibility is in obedience which is not blind or apathetic. This also means that we cannot predict when an individual will stand up and declare his refusal to obey a certain law, in protest at, or to arouse public opinion against, a faulty law or policy. His responsibility is declared in advance but receives confirmation only with hindsight.

Jose Ortega y Gasset, in his book, The Revolt of the Masses, distinguishes two components of human society: “the mass-man” and “the select man”. The mass-man is totally satisfied with himself as he is, and considers his own qualities to be good. “On the contrary the select man, the excellent man is urged, by interior necessity, to appeal from himself to some standard beyond himself, superior to himself, whose service he freely accepts.”[8] This man demands a lot from himself while the mass-man demands nothing from himself. The select man feels that his life is meaningless unless he places it in the service of some transcendental value.

It seems that this definition might broadly characterize the responsible citizen—for many injustices occur and fail to grab the public’s attention when suddenly, without prior warning, an injustice occurs and somebody is forced by an internal need to give expression to his protest. This person cannot be the mass-man, since the mass-man demands nothing from himself; so it would follow that it is the select man who can become a responsible citizen, because he is the man who is forever concerned about the society in which he lives and asks himself penetrating questions—When is it possible to break the law in order to save society from brutalization? Is there at this moment no escape from breaking the law in order to save democracy?[9]

The criteria of the select man are not necessarily free from error, nor is it true to claim that every citizen who feels himself responsible is permitted to break the law. But the history of the last century has proved that civil disobedience out of civil responsibility—that which with hindsight proved to be politically necessary—strengthens, not weakens, democracy and the institutions of government. Therefore, a citizen who, feeling that the rule of law or democracy is threatened and that legal protests would be ineffective, commits an act of civil disobedience would appear to be a responsible citizen. Only with hindsight can we decide if the intentions and actions of that citizen were justified and to what extent he was a responsible citizen.

Democracy

A democratic regime is a political order which is intended to give maximal expression to the will of the citizens within the framework of the rule of law, while safeguarding human rights.[10] Democracy is not just a formal expression of a form of government, but also the expression of a moral outlook whereby the individual should form his personal public and political destiny himself. Democracy is based on the idea that the majority will decide who will stand at its head and in what way, and it includes legally recognized rights and values protected by law (e.g., certain freedoms of the individual, freedom of expression, organization, movement, occupation).[11]

Later on we shall discuss and criticize various opinions on the definition of democracy; even so it seems worthwhile to present at this stage one central idea in democracy which Professor Leibowitz thinks does not receive its due in most states of the world—the existence of values which are above democracy.[12] These values should be independent of the majority and the government. The American Constitution, for example, limits itself: it is forbidden to legislate any law which would infringe freedom of expression; even if a majority of the people and a majority of the legislature are opposed to a certain form of expression, it would not be possible to pass a law infringing or restricting that form of expression. Therefore, this constitution recognizes certain values which are above political rule, values which no government can harm. Therefore, the simplistic and inaccurate definition of democracy as “the rule of the majority”, and its formal definition as “the rule of the people fulfillein the will of the majority of the people” do not reflect the existence of values above democracy. A more accurate definition of democracy would be “the rule of the people restricting itself against the tyranny of the majority of the people”. Tyranny is not necessarily dictatorship—a tyrannical regime can certainly exist in a democratic framework. Since democracy aims to be a regime of freedom, it should be conducted in the light of values which are independent of the majority and the government because democracy per se does not guarantee the fulfillment of these values.

One should remember that law, created by men, is an expression of the needs of the situation, period and government into which it is born. A certain law can be democratic and humanistic or it can be democratic and evil, but the values at the heart of the legal system should be universal and unchangeable. Infringing these values, even when expressing the will of the majority of the people (no matter in which regime) is what leads a responsible citizen to protest, this protest sometimes involving civil disobedience. A democracy should restrict itself and protect itself from harming the values which form it, and a responsible citizen should ensure that this is so by legal or illegal means. In a democratic regime—and that is what this book is about—the role of civil disobedience is to safeguard proper democracy: that democracy which gives maximal protection to the values which form the laws that it legislates.

Obeying the law is not a value in itself, but a simple everyday technical duty, as long as it conforms with the social order and the correctness of the regime. But since every political establishment is the potential enemy of civil liberties[13]—and even of the rule of law itself—one should be on one’s guard, and if necessary, the technical duty of obeying the law should be replaced with a duty whose purpose is to change the law. As we have said, obeying the law is not the result of moral deliberation but a necessary condition for safeguarding the values which are at the heart of democracy and the delicate balance in the relationship between government and citizen. This being so, a responsible citizen would normally give priority to obeying the law, and in an emergency, to breaking it.

Looking Back

The statute book in all democratic states is forever changing. Laws are added, removed, modified and replaced. We may assume that not all the laws in the statute books nor all the instructions and orders issuing from them are necessarily democratic in character, or, in other words, conform with the basic values of democracy. A few of them may be non-democratic and even anti-democratic. In such circumstances, protest activities may annul these laws or modify them to conform with the basic values of democracy. The same may be said with regard to policies. Some of them change in normal democratic ways, and others may be changed by protest activities. Since not all ways of protest are legal, there are laws and policies which change as a result of illegal protest. Thus there can be in a democracy illegal activities which conform with the spirit of democracy.[14] Modern history is full of breaches of the law by groups or individuals which have caused changes to the law or public policy. People who have been described, both by others and by themselves, as loyal to their country and its laws have broken the law with acts of civil disobedience and brought about changes which were later to receive public acclaim and even the government’s blessing.

Let us examine some cases from this century which demonstrate the necessity of civil disobedience in the democratic system.

Martin Luther King

Martin Luther King is considered by many to be the hero of the struggle for civil rights.[15] During his campaign for equal rights for the blacks in the United States, King broke the law quite openly, and was imprisoned several times. He first became famous when he led an embargo on an Alabama bus company which discriminated between blacks and whites. Later, he managed campaigns for equality in the fields of work and education, and this involved breaking the law. His activities included an economic embargo, mass demonstrations, sit-ins, and freedom marches.

The highlight of King’s struggle was a mass protest march to Washington which became a turning point in the history of the civil rights campaign. He challenged the then popular opinion in the United States according to which the inequality between whites and blacks was natural and that therefore any legislation which perpetuated it was legitimate. King’s struggle against the discriminatory legislation and the idea which nurtured it, was conducted among other things by means of civil disobedience: he broke “legitimate” laws, not in order to destroy the legal system and break the law per se, but to protest, warn, rouse public opinion, and bring about a change in the discriminatory legislation. Had King not broken these laws and had he been satisfied with protest or waited for a normal democratic change in the law, it is doubtful whether the law would have changed as it did, or at the same speed.

An important fact is that King and his supporters recognized the American constitution and its basic values, and emphasized the contrast between these and the discriminatory legislation of some of the southern states of the United States. The fact that these people were prepared to pay with their freedom for their struggle over the principles of the constitution proves their loyalty to the constitution and its basic values.[16] King and his supporters understood that acts of civil disobedience with due respect for the law[17] have greater power than protest; their acts of civil disobedience were perpetrated out of a recognition and belief in the general system of the regime and the law, which was regarded as changeable. They were in effect asking the politician and the legislator to recognize the legitimacy of their actions.[18]

King’s activities strengthened those who believed that one should not blindly obey the law; moreover, it could be shown that passive acceptance of the law may damage the rule of law and the proper functioning of the regime. The fact that King was a responsible citizen who fought for the rule of law proves that this is not just an act of disobedience but an act of demonstrative protest. The fact that serious and law-abiding people have with hindsight described his law-breaking as important leads us to the conclusion that breaking the law as civil disobedience is a political act which might be controversial but is important and necessary.

The Vietnam Objectors

During the Vietnam War, different types of civil disobedience were perpetrated by the civilian population of the United States: students and young people demonstrated violently, tried to stop trains of recruits and publicly burned their call-up papers. In this way, many young people protested at the pointlessness and absurdity of that war. At the time, these acts of civil disobedience were considered illegal, so many emigrated beyond the borders of their state; others were caught and imprisoned, or managed to hide from the arms of the law which wanted to arrest them for contempt of Federal Law.[19]

The arguments of the members of the protest movement against the Vietnam War were aimed at the president and the government, claiming that the War was declared and conducted in contravention of the American Constitution and binding international conventions. The members of the protest movement thought that since the government itself was breaking the law—the involvement of America in Vietnam went against important democratic principles—it should not be obeyed, and furthermore, an individual should not join the army or sacrifice himself for a doubtful war.

Cuzar claims that the reaction of the American democracy to the end of the Vietnam War was instructive:

Almost immediately after the withdrawal from Vietnam a general pardon was declared for all those who had deserted. This was quite a direct admission, with hindsight, that the war had been incompatible with the values of large sectof the American public at that time, which had been radically expressed in the anti-war struggle. The pardon was an indirect admission of error. Nowadays, the protest against the Vietnam War is considered one of the turning points in American democracy, so that Jesse Jackson could state in his speech that it was part of the democratic heritage of the United States and none of his listeners objected.[21]

The conclusion from this episode must be that there can be transgressions of the law which may be justified with hindsight, even by the body which legislated the law—and there is no obligation to obey every order given by a legal authority just because it was “legal” or “democratic” when it was issued.

Some compare the protest against the Vietnam War with the actions of those Israeli soldiers who refused to serve in Lebanon, and even with those who refuse to serve in the West Bank. It is at present hard to judge the similarities and differences between these events because history has not yet had the last word on this subject. The main difference between the two types of dissent is that the American refused to serve in the army at all, while the Israeli is selective in his refusal to serve. I totally agree with David Hed that the moral deliberation of the man who refuses to serve on the West Bank is different from that of the man who refused to serve in Vietnam. Hed says that the Israeli “is torn between his (sometimes deep) commitment to the State and to the military service necessary for its existence, and his objection (no less deep) to the use of force by the army on the West Bank”.[22] This deliberation is much harder than that of the American: he did not feel “a general commitment” to serve in the United States Army. He did not “face the dilemma that his country’s deterrent effect might be weakened in other conflict areas where he totally agreed with his government’s policy”.[23]

Dissent in Israel

Even though it is difficult to compare the situation in Israel with similar historical cases, it should undoubtedly be discussed in public. We should try to understand the roots of the behaviour of an Israeli who refuses to serve, and seriously examine his protest to see if it is justified.

Historically, the refusal to serve in the army in Israel was once a minority activity, and concentrated on the refusal to serve in the occupied territories. During the Lebanon War, the refusal movement grew with the claim that that war was unnecessary. Those who refused to serve in Lebanon withheld their moral and political support from the war by not participating in it. The main public group which supported the refusers was the “Yesh Gvul” (“There is a Limit”) movement. This movement was founded at the beginning of the war by a group of reserve soldiers who organized a petition addressed to the defence minister and the prime minister asking for permission to fulfil their service obligations within the State of Israel and not in Lebanon. Those signatories who were called up for service in Lebanon and refused to go were tried and sent to military prisons.

The members of “Yesh Gvul” did not refuse to serve in Lebanon out of pacifism. They are selective in their refusal, being prepared to fight in an unavoidable war, but not in a war which could have been avoided. Moreover, the members of “Yesh Gvul” thought that “the fact that a certain government was democratically elected does not allow it to decide on making war while ignoring the basic principles of the democratic system.”[24] These refusers committed the act of refusal publicly: they wanted to “rouse Israeli society from its apathy, challenge the opinion which puts the army and military service at the top of the list of national duties, and form public opinion against the war in Lebanon.”[25]

The activity of the “Yesh Gvul” movement aroused strong opposition and a fierce political debate. Many saw the refusal to obey orders as a serious breach of values which are considered absolute in Israeli society. Even people who saw the Lebanon War as unnecessary and protested against it by legal means, condemned the activity of “Yesh Gvul” members and the support it received.

Meanwhile the Lebanon War has come to an end and the movement now supports those who refuse either to serve in the occupied territories or to police the inhabitants of those areas.[26] Because of this support, many people from all parts of the political spectrum are harshly critical of the movement. Some accuse it of treason, even though many of the members are soldiers and reserve officers who have often served their country with dedication. Others claim that members of the movement should accept the decision of the majority, even if they do not agree with them, since that is the essence of democracy. The members answer this claim with historical arguments, some of which have been mentioned above, to show that an individual may draw the line and refuse to obey a “democratic” majority decision and later be adjudged correct in his action. Moreover, they claim that every democratic society should safeguard civil rights, one of which is the right not to participate in actions considered repugnant. The military government in the territories creates a sector deprived of elementary human rights, and obliges the occupying force to execute immoral actions. It is this situation which “Yesh Gvul” members consider more harmful to democracy than disobeying the law.[27]

Even among the Israeli left wing, some oppose the “Yesh Gvul” movement, claiming that their dissent sets a precedent for breaking the law which the extreme right wing and West Bank settlers can follow and use to legitimize their violent behaviour.[28] The members of the movement, of course, object to the comparison, and say that there is a meaningful difference between their dissent and the actions of the extreme right, and that the claim that the activities of “Yesh Gvul” give legitimacy to the actions of “Gush Emunim” (The West Bank Settlers’ movement) is absurd. “Yesh Gvul” claim that:
“Extreme breaches of the law, including setting up illegal settlements, criminal use of weapons, using massive force against Israeli soldiers, setting up an underground resistance force... were the bread and butter of right wing activity years before “Yesh Gvul” was founded, and without legitimacy from it. By the way, no member of “Gush Emunim” has ever used this argument to justify their violent law-breaking.”[29]
To the claim that their activities weaken the Israeli Defence Force, “Yesh Gvul” members reply:

In the entire modern history of selective dissent there is no example of any real weakening of the army. The refusal of French soldiers to serve in Algeria and of American soldiers to serve in Vietnam are two well known examples. In both cases, the dissent helped the wide and varied public pressure to end both those unjustified and bloody wars. Both armies continued to function efficiently afterwards. Therefore, the facts of historical experience can teach us that selective dissent can have positive influence in situations of national crisis involving military adventures and unnecessary occupation. No army was destroyed by the dissent, and the democratic regimes were only strengthened by the crisis.[30]

There were also people who supported the activities of “Yesh Gvul”: Professor Funkenstein, for example, claims that there are two major arguments for refusing to serve in the occupied territories; one practical, and one based on principle. The practical argument is based on simple arithmetic—to refuse in advance before going on active service in the occupied territories might cost a short spell in prison, while refusing to obey an order during active service on the West Bank might result in a long prison sentence. The argument from principle is based on a comparison of Israel under the British Mandate with the occupied territories under Israeli occupation. Funkenstein considers the Israeli occupation to be incomparably more oppressive than the British occupation, although resistance to British occupation was much more violent than Palestinian resistance to Israeli occupation. Also to be takeninto account in this argument is the fact that occupation nurtures the most corrupt elements of society, and gives them a social function. Funkenstein concludes that the alternative to participating in the occupation is to refuse to serve.[31]

Ron Cuzar, as we have seen, regards the refusal to occupy as a democratic political act. He aims at removing two fundamental assumptions common in Israeli society. He considers this vital if we are to build a solid conceptual basis for supporting dissent. The first fundamental assumption is that the law is absolute, and the second, that dissent is a matter of moral conscience, since the problem of occupation is a moral problem.

The refutation of the first assumption is based on a historical point of view which sees the particular legal system of Israel in a wider context of the development of law and democracy. Cuzar shows that Israeli society is distancing itself from the basic values it set down in the Declaration of Independence, is legislating draconian and undemocratic laws, and that the judgements of some of Israel’s judges show a tendency toward conservative, religious and nationalist values. He also contends that the institutionalization of occupation and the machinery of repression which Israel has developed are anti-democratic and even illegal from the point of view of international law. From all these observations Cuzar concludes that the legality of occupation should not be recognized and should be acted against politically. As he says, “Not recognizing the legality of occupation includes the option of breaking the law”.[32] The refutation of the second assumption is achieved through claiming that this political argument is to be preferred to any moral one. Relieving society of these two assumptions would result in a general acceptance that the occupation is illegal and that one should act against it by political protest, including illegal protest.[33]

Civil War—A Hypothetical Script

Some think that the State of Israel is heading towards a state of civil war. The first signs of this war appeared in the evacuation of the city of Yamit (evacuated when the Sinai was returned to Egypt). The behaviour of the opponents of withdrawal ranged from total passivity on the part of some, which ended with them being physically dragged over the border from the Sinai, to the violent assault of others on the soldiers who were called in to accomplish the evacuation. Among the opponents were a few responsible citizens—those who protested non-violently. With hindsight we can see that their civil disobedience did not achieve its aim. It is those who attacked the soldiers in various ways—and even stated that they did not recognize the law of the State if evacuating the Sinai was its policy, and would fight it and its agents (although they did not fulfil this threat)—who are the dangerous ones.

A civil war occurs between groups of civilians of the same state who each hope to gain political ends for their group. It usually breaks out when a subtle protest like civil disobedience or a more blatant protest like terrorism does not achieve the aims of a certain group. Each one of the groups in the war believes that its ideology is right and that it is justified in taking the lives of those who do not recognize its particular ideology.

When the time comes to return the occupied territories, a serious civil war may break out. The spread of firearms around the country combined with the ideology of some of the people who have access to these firearms might make the ideological divide more extreme and facilitate bloodshed. Because of this danger, we must try to predict the behaviour of the potential participants in this war.

As we have already stated, it is easy to present as rebels those who believe in preserving at all costs the unity of Israel (that part of the British Mandate of Palestine west of the Jordan river), because they give priority to their dreams over the State, law, and social order. And what about those who object to returning the territories for reasons of national security? They might claim that part of their civil responsibility is to resist by force the return of the territories because they are necessary for the security of the state.

If they were told that the territories do not belong to the State of Israel, and therefore lie beyond the realm of their civil responsibility, they would answer that even if the territories do not belong to Israel, they must be kept to ensure the security of Israel. A further objection could then be that their struggle ignores the rule of law, and disrupts the social order, to which the extreme supporters of security would answer that when the security of a country is endangered there must be a state of emergency which overrides the supremacy of the rule of law and social order, putting security first.

It seems that without further data, it will be difficult to establish whether the emergency actions of those who support state security are to be considered acts of civil disobedience or rebellion. In order to decide, we would have to examine the level of responsibility in their law-breaking activity by means of a couple of tests.

The first test is that of normal behaviour: we should see whether up to the moment of actual law-breaking this group of people had respected the law and the social order. If they had, the event in question is a special case and likely to be an act of civil disobedience; on the other hand, if this is a group which had regularly broken the law, had scorned the rule of law and social order, and had consistently ignored the decisions of government, then the event in question must be considered an act of rebellion.

The second test is the distortion test: do the members of the group present their group interest as a general interest and claim that any opposing view is like a national stab in the back? If they do so, the group is not presenting to the public all the relevant points by which to assess the question at issue. Therefore, their act is not civil disobedience, and it is definitely not responsible.[34]

I wonder whether the potential sides in this hypothetical civil war would even consider the question of civil responsibility.

The Nuremberg Trials

The Nazis tried at Nuremberg were charged with war crimes and crimes against peace and humanity.[35] Among other things, individuals and organizations were tried for breaking the law in the course of their duty, and it was ruled that one should not obey an immoral order. This judgement has subsequently been expressed in international conventions and in the legislation of many states. In Israel, some of these principles have been expressed in criminal and military law. In addition, these principles were expressed in the “Kafr Kassem” case which dealt with an obviously illegal order.[36]

We learn from the Nuremberg Trials that the accused should have refused to obey their orders. In other words, the Nuremberg Trials resulted in the creation of a new international legal norm according to which one should not obey a particular law or order, even if it has been legally and democratically accepted into the statute book, if objectively (in legal terminology) it is illegal. Moreover, any soldier obeying an illegal order, even during war, is a war criminal because he should have realized when he received the order that he could not hide behind a dubious duty to obey which he might now claim was inherent in the order he received.

Professor Agassi claims that the solution advanced in the Nuremberg Trials is not possible:

If in principle every citizen must first consult his conscience, there is no place for the law except where there can be no question of conscience, and no legal system is possible with that legal limitation, and no society can exist without a more or less acceptable legal system. Therefore, we should change our attitude to laws which seem to us immoral, both in international law, and in any national framework. Professor Yoram Dienstein has dealt with this question in international law... About the conflict between morality and law in a given national system, the matter is simpler. The noris... that one should respect the law while struggling in parliament to change it. Moreover, it is nowadays accepted, and rightly so, that in borderline cases, personal disobedience is preferable when the individual is prepared to pay for his disobedience with imprisonment and punishment while hoping to awaken the public to the immorality of a particular law, assuming that this awareness would hasten the process of changing the law.[37]

Professor Leibowitz thinks that there is no problem with an illegal order; one should obviously refuse to obey. The problem is to know when to disobey a legal order. He says that Hitler was a legitimate ruler of Germany and that the Third Reich was democratic: Hitler was supported by the vast majority of the German people. The problem was that Hitler was given unlimited powers, which allowed an abuse of the rules of democracy. Therefore, Eichmann was hanged not necessarily for obeying illegal orders; the orders he received—even though it is hard to accept this—were legal and democratic in Germany at that time. But an international constellation was later created which saw these democratic laws of Germany as laws which should not be obeyed and should never have been obeyed because they led to atrocities.[38]

In light of these criticisms, we can affirm that the solution advanced in the Nuremberg Trials is not feasible. One should develop civilian or moral sensitivity in order to decide when one should disobey an order or a law even though it is legal. A comparable sensitivity is required when a certain law contradicts the fundamental values of democracy—those values considered the highest in every system of rules made by man or regime.[39]

Summary and Historical Lessons

There is confusion between civil disobedience and non-violent action; and between both of these and rebellion. Many think, for example, that the non-violent activities of Gandhi were acts of civil disobedience; but Gandhi refused to accept British law in India, and therefore his activity was a non-violent rebellion, not civil disobedience. Often mentioned in the same breath with Mahatma Gandhi’s movement is another non-violent movement, the civil rights movement in the United States, led by Martin Luther King. This movement, unlike Ghandi’s, perpetrated clear acts of civil disobedience. Its activity, partly illegal, was successful and brought an end to the discrimination of the blacks. Moreover, the movement helped create a modern technique for illegal protest aimed at bringing about a change in the law.

Both Mahatma Gandhi and Martin Luther King used the slogan of passive resistance; but while King emphasized law-breaking, Gandhi emphasized passivity, and he never raised the question of law.[40] This distinction allows us to see something of historical note—the adoption of the techniques of rebellion for the purposes of civil disobedience. An action which was previously aimed at destabilizing a foreign regime became an action aimed at changing the laws of the state. It seems that civil disobedience is a technique developed historically within a liberal framework in order to correct distortions which do not require changing the government or the regime. Civil disobedience is a “mini-rebellion”—a hybrid of two duties: the duty to obey and the duty to break the law. Because of its similarity to a rebellion, and because it harms the delicate balance between citizens and state, perhaps civil disobedience is a luxury which only a strong regime can allow itself.

As a development of the techniques of non-violent action, the events of the fifties and sixties in the United States raised social awareness regarding the possibilities of changing the law in unparliamentary ways. The course of action initiated by King became established in the activities of the anti-Vietnam War movement. But although the activities in both instances were acts of civil disobedience, they should still be distinguished.[41] The civil disobedience of King and his people was motivated by their belief in the integrity of the American legal system while the objectors to the Vietnam War lacked this belief. King and his people thought that their actions might be considered acts of law-breaking, but that they were still protected by the constitution. The decision of the United States Government to fight in Vietnam was, according to the objectors, arbitrary, illegal, and unjust, and so they felt that their actions were “democratic” even if they were illegal (they claimed that the legal and political systems did not act in accordance with the constitution).

The pardon which the Vietnam War objectors received lead us to the conclusion that sometimes we can decide with hindsight that it was not necessary to obey a legal order. This conclusion also matches the spirit of the Nuremberg Trials. The similarity between the two situations is the notion that the individual has the power to choose whether to obey the instructions of a legal order.[42]

Despite the cases mentioned above, which were decided with hindsight to be justified, there is still an almost complete consensus against refusal to serve in the occupied territories. This consensus prevents objective public debate. It is not clear who is right—the majority or the refusers—so the matter will have to wait for the judgement of history which may prove with hindsight that one of the sides was right. It seems that there is also a consensus against civil war, but this might be broken in certain conditions and circumstances, and there have already been in the history of the Jewish nation bloody civil wars. Even so, there is no doubt that obeying the law is fundamental to the relationship between citizens and state. But:

Keeping to the well-trodden path and clinging to accepted norms lead most citizens to obey the law, sometimes even blindly and indiscriminately. So it happens that the law becomes a value in itself which should be served and kept instead of being a tool for achieving liberty, equality and well-being. Many insignificant examples of blind obedience, along with others which have shocking results, are scattered around us... while their justification is law and democracy. Therefore... we must keep repeating to ourselves that we are not just people who live in a society and obey its laws and orders, but full partners, and therefore also responsible for society’s actions.[43]

Civil disobedience is a modern political phenomenon. It is difficult to reach global conclusions about its effectiveness or its contribution to democracy since these can be measured, if at all, only with hindsight and with a wide historical perspective. Indeed, the cases in this chapter are not a historical background to civil disobedience, but at most a chance collection of events which are or may yet prove to be acts of civil disobedience. It is hoped that we may still learn something from them.
 

Notes:
  1. Joseph Raz, The Authority of the Law: Essays on Law and Morality (Oxford 1979).
  2. Of course one should aim at a situation in which there will not be undemocratic laws in the law-book; but since such laws still exist, the ultimate solution would be to separate the verdict from the sentence, allowing a different legal treatment of law-breakers.
  3. Some see obeying the law as the highest value outweighing all other values. Personally, I prefer not to call obedience to the law a value.
  4. The Lexicon of Citizenship, Society and State (edd. Schatz and Ariel, Dvir, 1989) 232. [Hebrew]
  5. Ibid. 452.
  6. For more about the distinction between civil disobedience and conscientious objection, see W.A.Herr, “Thoreau: A Civil Disobedient?” Ethics 85 (1974), 87. In the context of refusing to serve in the Israeli army, see David Hed, “Refusal - Political or Conscientious” in About Democracy and Obedience (ed. Ishai Menuchin, “Yesh Gvul”/Siman Kri’a Books, 1990), 87. [Hebrew]
  7. A reasonable law, for example, is the law forbidding the disruption of the flow of traffic. Disrupting traffic in order to protest that the road is faulty and causes loss of life and property is disobeying a reasonable law in order to raise awareness regarding unreasonable policy. An unreasonable law, for exa, is “the meetings law” (i.e., of Israeli citizens with the P.L.O.). The direct breaking of an unreasonable law itself would seem to be a form of protest against that law, but it is also possible for protesters to block roads, for example, in protest at the meetings law. See further examples in Joseph Raz, “The Right to Civil Disobedience” in The Limits of Obedience (edd. Ishai and Dina Menuchin, “Yesh Gvul”/Siman Kri’a Books, 1985), 51. [Hebrew] See also Hed’s article mentioned above.
  8. Jose Ortega y Gasset, The Revolt of the Masses, (Mentor, New York 1932), 44. See also Yigal Eilam, The Obeyers of Orders (Keter, 1990), 179. [Hebrew]
  9. Albert Camus thought that every political establishment is the potential enemy of civil liberties and should be regarded with suspicion at all times. So the responsible citizen has a duty to oppose his own oppression and that of others by evil men and laws. See Albert Camus, The Rebel - An Essay on Man in Revolt, tr. by Anthony Bower (Vintage, New York 1956).
  10. Schatz (n.1), 182, 583.
  11. Further to what has been said, in a democracy, every qualified citizen has a right to be elected; there is a possibility, and sometimes a duty, to replace the people in high office in the state; there is a formal equality between citizens in their duties and rights; and also many other elements which go beyond the scope of this book.
  12. The democratic state is supposed to allow its citizens and the rest of the citizens of the world maximal personal and moral development. Every individual is entitled to develop his personal potential in harmony with others; obstructing the realization of this potential is the reason for the reaction of a responsible citizen qua responsible citizen.
  13. See n.6 above.
  14. See Ron Cuzar “The Refusal of Occupation - A Democratic Political Act” Iton 77 (108-9) 22. [Hebrew]
  15. See D.L. Lewis Martin Luther King (Penguin 1970), which contains a historical critical sketch of King and his activities. A summary of historical events may be found in Gene Sharp The Politics of Non-Violent Action (Boston 1973).
  16. Leon Sheleff “Disobeying the Law for Reasons of Conscience” in Civil Rights in Israel an anthology of articles in honour of Haim Cohen (ed. Ruth Gabison, the Association for Civil Rights in Israel, 1982), 117, 129. [Hebrew]
  17. The matter of respecting the law is one of the elements distinguishing Mahatma Ghandi from Martin Luther King (Joseph Agassi Between Religion and Nation {Papyrus 1984}, 59) [Hebrew]: but another element distinguishes the activities of the two men. As opposed to the view of those who see the activities of Mahatma Ghandi and his people as civil disobedience, I see their activities despite their non-violence as an actual rebellion. They struggled against a foreign rule, and did not recognize British law. But a perpetrator of civil disobedience accepts the law of the state in general while objecting only to a specific law or policy. The non-violent way adopted by Ghandi and his followers is a characteristic, but not a necessary one, of civil disobedience. On Ghandi and King, see David L. Sills (ed.), International Encyclopedia of the Social Sciences (Macmillan 1968), s.v. Civil Disobedience, 480-2.
  18. Because of his refusal to live passively under a rule of law which perpetuated inequality and because of the nature of his struggle, King was awarded the Nobel Peace Prize. This award legitimized his activity and its character with hindsight. See Lewis (above, n.2), 259-61, the words of Dr. Gunar Jahn, who was at that time the chairman of the Norwegian parliamentary Nobel Prize committee.
  19. See International Encyclopedia of the Social Sciences (above, n.4),482-3.
  20. Jeffrie G. Murphy (ed.) Civil Disobedience and Violence (Belmont California 1971), 64. For more about the anti-Vietnam War Movement, see Lawrence Baskir & William Strauss Chance and Circumstance (New York Vintage 1978).
  21. Ron Cuzar (see n.1 above).
  22. David Hed “Refusal - Political or Conscientious” in About Democracy and Obedience (ed. Ishai Menuchin, “Yesh Gvul”/Siman Kri’a Books, 1990), 87, 91. [Hebrew]
  23. Ibid.
  24. See the introduction to The Limits of Obedience (edd. Ishai and Dina Menuchin, “Yesh Gvul”/Siman Kri’a Books, 1985), 8. [Hebrew]
  25. Ibid.
  26. Their assumption is that serving in the occupied territories condones the policy of occupation, and the coercive, violent and continuing rule over the Palestinians.
  27. The Big Right to Say No (“Yesh Gvul” 1989), 6. [Hebrew] In this matter it is worth mentioning a phrase coined by Dr. Yehoyakim Stein about the r?gime of the State of Israel - “Democtatorship” [coined in Hebrew]
  28. Dan Margalit wrote, “The refusal to serve in IDF units on the West Bank is a criminal phenomenon with the potential to become a widespread political plague. This is an attempt to uproot the democratic majority decision, to fragment the IDF, and to deny the supremacy of the rule of law. To a certain extent the refusers are the representatives of the Phalangists in Israeli society. One day they will be an example for the West Bank extremists to imitate, by taking the law into their own hands and setting up a private army, relying on the precedent of “Yesh Gvul” and others.” In “Laundering the Objectors”, Ha’aretz 25 Sept. 1988 Yossi Sarid said, “If I were ‘Gush Emunim’ I would give the publishers, the editors and the writers of The Limits of Obedience a big party. They have given the Council of Judaea, Samaria and Gaza the perfect platform for secession and civil disobedience... Now it will be absolutely clear to them why they are allowed to commit civil disobedience for their justice and why civil disobedience can be violent...” “‘Gush Emunim’ thanks ‘Yesh Gvul’“ Ha’aretz 2 Jan. 1986. [Hebrew]
  29. The Big Right to Say No (see n.14 above), 7. From this we learn that the right wing breaks the law actively and in many different ways, while the members of “Yesh Gvul” refuse to obey an order - a selective, specific, and single breach of the law - passively.
  30. Ibid.
  31. Ronit Matalon, “A Monologue on Refusal: An Interview with Professor Amos Funkenstein” Ha’aretz 9 Dec. 1988, 11. [Hebrew]
  32. Ron Cuzar, see n.1 above, 23.
  33. Another conclusion of this discussion is that civil disobedience is a civil matter rather than a moral matter. David Hed has referred to the distinction between a moral act and a political act. He claims that there is no valid distinction between civil disobedience and conscientious objection concerning the refusal to serve in the occupied territories: “The lack of certainty whether to categorize the refusal to serve in the occupied territories as civil disobedience or as conscientious objection stems from the moral struggle of the refuser who is torn between his (sometimes deep) commitment to the State and to the military service necessary for its existence, and his objection (no less deep) to the use of force by the army on the West Bank.” in “Refusal - Political or Conscientious” (see n.9 above), 91.
  34. There are of course other tests but a fuller discussion is beyond the scope of this book.
  35. On the Nuremberg Trials and their consequences, see Y. Meltzer, The Concept of Just War (C.A.W. Sijthoff, 1975); see also Sills (ed.)above, n4., s.v. civil disobedience, 485.
  36. During a curfew in the Arab villages within the Green Line in the fifties, an officer gave the order to shoot anyone caught outside after dark. Soldiers shot indiscriminately at Arabs returning from work.
  37. Joseph Agassi (n.4 above), 59.
  38. See H. Arendt, Crises of the Republic (New York, Harcourt, Brace & World 1972).
  39. See n.23 above.
  40. Joseph Agassi ( n.4 above), 59-60.
  41. Ibid.
  42. David Hed sees a difference between objectors in Israel and in the United States: “Unlike the American refuser in the Vietnam War, most of the Israelis who refuse to serve in the territories would be willing to participate in a war of defence against an Arab state, and are prepared to play their part in the IDF’s deterrence force by serving instead within the Green Line or in areas where the IDF is not in close contact withe population of the occupied territories.” in Yerach Tal “Between Civil Disobedience and Conscientious Objection” Ha’aretz 8th April 1990,p.4b. [Hebrew]
  43. See n.11 above, 9-10.