Conscentious Objection

Philosophy of Law – 2015/2016

• According to natural law theory, jurist’s work is the positivisation of the needs of justice;

• Problem: when injustice elements are identified in positive law. How does one behave in front of an unjust law?

• Condition: is the acquisition of a critical awareness of the injustice of the law both by jurist and by citizen.

• Not passive/uncritical acceptation of law insofar as

being positive;

Jurists vs citizen

• Need to distinguish between

• jurist’s behaviour (formulates and applies positive law)

• and citizen’s behaviour (receiver of norms)

jurist

- Understand and identify injustice of positive law (elements do not sufficiently protect human dignity and symm and rel nature among men) judgerment not limited to validity of law

jurist

- moral duty to work for the repeal or the reformulation which adjusts the positive law to such ethical needs

- moral duty to abstain from cooperating in the formulation of such laws

citizen

conscientious objection: manifestation of dissent towards the order of authority or legislative prescription through an appeal to conscience

the ‘right to resistance’: the negation of the validity of the law of the state (illegality of the state authority)

‘civil or civic disobedience’: deliberate infringement of the law (often as a collective phenomenon), aims at causing the sanction by creating the reaction of public opinion for the purposes of reforming the legal system

Conscentious objection

• the personal choice (expressed by an individual or a minority) to publicly and non-violently disobey the ‘external law’ and to obey the ‘internal law’

• In philosophical debate various ways of understanding meaning of conscience and therefore also of coscientious objection with respect to law.

Natural Law Theory

• Objection corresponds to the duty of the moral conscience to refuse obedience to the unjust positive law in the name of the obedience to natural law

• Objection takes on an appeal to the legislator to the translation into the positive laws of the dictates of natural law

• witness (on a theoretical level) and denouncement (on a practical level) of a ‘bad’ use of power

Positive Law theory

the positivity of the law considered a dogmaan ‘apparent’ contrast between exterior and

interior normconscientious objection becomes a mere

neutralisation technique of dissent by the legislator or a mere pragmatic choice, induced by psychological and not really moral motivations

• Conscentious objection risks to become an impersonal , functional, contingent pragmatic choice, of mere opportunity , distorting its very sense , of axiological choice that puts at stake the objector as person, as a witness of the truth.

Care and Justice

Philosophy of Law- 2015

• Law and human rights guarantee conditions relization of human dignity and social co-existence

• Can law manage this task of guaranteeing the actual respect of human dignity?

• Well it can guarantee only external conditions necessary for social co-existence tha pave the way for the realization of human dignity

• Law is limited to coordinating social actions from an external point of view to avoid conflcits and overcome disputes but does not go into the sphere of interiority and personal relationality

• Law limited to formulating ways for the full realisation of man, for the perfecting of his coscience for the respect of other’s dignity

• Law coldly establishes equality symmetry and reciprocity

• Law and ethics are two normative systems (give rules) characterized by two different binary codes:

• Law: just/unjust code• Ethics: good/evil code

• Ethical thought, founded on respect of human being in itself (never a means but an end)enters interior shere which opens up to to inter-personal relations.

• In this direction in the phil of law wwe find concept of “care”besides “justice”

“Care”

• to recognise that the other person exists• To recognise that the relationship that is possible to

establish with others is not always on eqaul terms or symmetrical

• Care ethics• Born from awareness that if other eprsom needs

care, an asymmetry can inevitably be identified between the person caring and the perosn being cared for

• Person caring is in a psoition of strength • The person cared for is in condition of weakness

/vulnerability/difficulty/impossibility to defend himself alone needy of the help of others

• Care presupposes recognising the other’s existence and his/her value in a relation dimension(reciprocal relationship): taking caring means also being concerned about someone/interest in their vulnerable condition/sensing ethical duty towards their need of care with a sense of gratuity and an attitude of trust.

To take care

• Not an abstract concept or impersonal theory

• Care emerges from interior attitude translated into behaviour/action in reality in daily experience

• But non mere exterior/extrinsic practice but must be connected to interior practice of the agent involving feelings/empathy towards/for the care receiver

• Ethical duty originates spontaneously from inside cannot be imposed by external rules passively obeyed

• Taking care is practiced carried out over time:• Process• Task• Active commitment• Constant tension

• Virtue one acquires in habit of behaviour sustained and accompanied by strong personal motivation

• Practice of concern, attention,sollicitude • well-being of the other, doing good to

him/her, trascending one’s self-interest and independently of the reciprocation, in gratuitousness and disinterest in logic of beneficence with respect to otherness

Philosophical defintion

• “taking care”= interior attitude and active commitment of gratuitous responsible attention towards those who are vulnerable

Improper uses of care

• One self’s care as self-referential narcissism or the other’s care for themselves

• To affirm powerù• Dominion• Force• Excessive care becomes prolonged• Suffocation/oppression/interference/pushiness/

• Fact care can be used in a distorted and inappropriate way does not impoverish its authentic ethical sense

• Ethics of care is the pre-condtion of ethics: who ever does not take care of the other does not act ethically .

• If we do not have an attitude of care we impoverish our being.

Justice:

• give everyone his own, justice too presupposes relationality, in the recognition of equality-symmetry-reciprocity

Concept of care

• Care needs to be integrated with justice• Authentic meaning of care can be understood

as integration of the sense of justice

• 2 different concepts, but this diversity is not put in anti-ethical terms care does not subsitute or deny justice

• and does not identify with it: otherwise would be ethicalisation of law; structurally not possible;

• but integrates sense of justice by means of the recognition of the other not only rationally as a “socius”but also EMPATHICALLY paving the way from a social-rational abstract relationality to sentimental and inter-personal relationality.

• Care proves justice sense

Care beyond justice

• justice and care allow combination between abstract universalism and concrete specificity

• care recognises value of solidarity in a public and universal sense

• Justice limits itself to the minimal ethics of socio-institutional relationality, that forbids a dishuman use of law, as a means against human dignity and his coexistence with others.