Political Justification through Democratic Participation: The Case for Conscientious Objection

Forthcoming in Social Theory and Practice, 41(1), 2015 1

Political Justification through Democratic Participation:

The Case for Conscientious Objection∗

Emanuela Ceva Associate Professor of Political Philosophy Department of Political and Social Sciences University of Pavia (Italy) E-mail: [email protected] Abstract On a proceduralist account of democracy, collective decisions derive their justification—at least in part—from the qualities of the process through which they have been made. To fulfill its justificatory function, this process should ensure that citizens have an equal right to political participation as a respectful response to their equal status as agents capable of self-legislation. How should democratic participation be understood if it is to offer such a procedural justification for democratic decisions? I suggest that, in order to overcome the structural procedural disadvantages affecting the actual, effective opportunities that citizens who hold nonmainstream views have to exercise their right to political participation, the enhancement of such opportunities requires securing space for contestation. Against this background, I vindicate the (currently underestimated) role of conscientious objection as a form of political participation.

Keywords

Democracy, participation, conscientious objection, civil disobedience, respect, justification.

1. Introduction

One of the most debated claims in democratic theory concerns the capacity of the democratic

process to justify collective decisions, whatever their content. Call this the “proceduralist

account of political justification.” To fulfill this justificatory function, the democratic process

∗ Earlier versions of the paper were presented at the 7th ECPR General Conference (Sciences Po, Bordeaux) and at workshops and seminars at the Technical University of Darmstadt, the University of Rijeka, University College Dublin, the University of Turku, and the University of Geneva. I am grateful to the audiences for their comments on those occasions. I also thank Enrico Biale, Kimberley Brownlee, Andrea Fracasso, Federico Zuolo, and the journal’s anonymous reviewers for their written comments. Section 2 builds on ideas sketchily presented in E. Ceva, “Why Toleration is not the Appropriate Response to Dissenting Minorities’ Claims,” European Journal of Philosophy, forthcoming.


must grant citizens equal rights to participate in the production of public rules. This is

required as a respectful response to citizens’ equal status as agents (rather than mere patients)

capable of self-legislation (a person’s capacity to form and pursue a life plan articulated

through rules of which she can regard herself as both the author and the addressee).1 As

Jeremy Waldron has bluntly put it, when a decision is reached through an egalitarian

democratic process, disobeying such a decision is an act of unreasonableness and arrogance

denoting overconfidence in one’s own judgment in disregard of the circumstances of

reasonable disagreement.2

This position may come in two variants, depending on the kind of justification, either pro

tanto or all things considered, that the equal treatment of citizens as agents is thought to

provide for democratic decisions. We should immediately notice that claiming that

democratic participation offers an all things considered justification for democratic decisions

is a position to which, to my knowledge, no proceduralist theorist of democracy is seriously

committed. On a moderate proceduralist view, by contrast, democratic decisions produced

through a process capable of treating all citizens with equal respect acquire a pro tanto

justification, notwithstanding the possibility of disagreement with their content. This means

that, although there may be reasons to question the moral acceptability of the content of

democratic decisions that retain their force, insofar as such decisions are made through a

respectful democratic process, citizens have procedural reasons to accept them.3 Although

these reasons may be overridden by countervailing considerations under special conditions

(for example, when the basic liberties of an individual are endangered), they are generally

valid in normal circumstances and ground a presumption against noncompliance with

democratic decisions.4 This is the respect-based proceduralist argument for political

justification through democratic participation.


The most common form of democracy that we know, electoral democracy, allows only an

indirect kind of coauthorship of public rules; citizens have control, through elections and

other instruments of accountability, over the actual authors of public rules. The challenge for

a respect-based proceduralist account of political justification through democratic

participation is to enhance the space for coauthorship by maximally extending the actual,

effective opportunities for citizens’ direct political participation on a baseline of equality.

To be sure, these opportunities may be hampered for certain classes of citizens during

decision making as well as agenda setting, in violation of the egalitarian demands grounded in

the principle of equal respect for persons. Specifically, as argued more extensively in what

follows, the democratic decision-making process—especially in its standard majoritarian

form—is burdened by some significant structural disadvantages that affect the actual,

effective opportunities that citizens who hold nonmainstream views (grounded either in social

justice or in their own personal morality) have to exercise their right to political participation.

During majoritarian decision making, citizens who hold such views, especially if particularly

controversial and unpopular, are likely to have a very hard time gaining proper consideration

of their views and informing on that ground the political agenda on an actually equal footing

with their fellow citizens, as is necessary for the decision to be procedurally justified to them.

Plainly, citizens holding views that are outside the mainstream are likely to need more time

and to have to make a much larger effort to build consensus around their views, or just to

make themselves understood correctly (dissolving all prejudices that their fellow citizens may

have against them) or, at least, to persuade others of their significance.5 Think, for example,

of such situations as those in which citizens who hold prochoice convictions make a case for

the legalization of euthanasia against a Catholic mainstream, or the very hard time supporters


of a universal health care reform would experience in getting their concerns through to a

deeply individualistic and libertarian citizenry.6 So even if no individual citizen or class of

citizens is formally disenfranchised, some may encounter more obstacles than others in

exercising their right to political participation.

We may infer that some are at such a disadvantage by checking parliamentary debates,

existing court cases, public petitions, and even the coverage granted to certain issues in the

media. Should it become apparent that certain views, although actually held by some

individuals, have been systematically excluded from or even marginalized within the political

agenda, other things being equal, we can infer that the bearers of those views have suffered

some relevant procedural disadvantage in exercising their right to political participation.

Admittedly, these are approximate means to pin down relevant disadvantages and flesh out

what it means for citizens to have equal, actual, effective opportunities to exercise their right

to political participation. By virtue of the very nature of these issues, one can give no univocal

account of what form the relevant citizens’ opportunities may take in practice, as they involve

several different instances of political participation, including voting, public debates, and—I

will argue—various forms of political protest. In other words, this multifaceted problem

requires an equally multifaceted discussion.

In Sections 2 and 3, I offer an explanation of what equal, actual, effective opportunities for

political participation amount to by building on a discussion a negativo of the most obvious

forms in which relevant procedural disadvantages undermine the realization of the general

principle that all citizens should have equal, actual, effective opportunities to exercise their


right to political participation. I present the necessary and sufficient conditions for the

maximal realization of the principle in Section 5.

For the time being, what is important to emphasize is that the procedural disadvantages that I

bring to light are morally troublesome, as they are disrespectful of certain citizens’ equal

status as agents capable of self-legislation who are, as such, entitled to have an equal voice in

the formation of collective decisions. Should this requirement be unfulfilled, the whole

project of political justification through democratic participation would be undermined.

Hence the question at the heart of this paper: how should we understand democratic

participation, if it is to offer such a procedural justification for democratic decisions?

I address this question as follows. In Section 2, I present what I take to be the standard

proceduralist approach to political justification through democratic participation based on

majority vote. I argue that the structural procedural disadvantages affecting the actual,

effective opportunities for political participation by citizens who hold nonmainstream views

seriously undermine this approach. In Section 3, I consider more inclusive models of

deliberative democracy and show that, although they fare better than their majoritarian

counterpart, they are still inhospitable to the holders of nonmainstream views. In Section 4, I

suggest that supporters of the respect-based proceduralist argument should cherish the

contestatory turn that Philip Pettit suggests and consider the contestation of democratic

decisions as an extension of the citizens’ right to political participation. In Section 5, I argue

that we should also pay attention to unlawful forms of protest as a form of political

participation. Although the claim that civil disobedience could have this important function is

not new,7 scholars have paid too little attention to the communicative role of conscientious

objection, which I set out to defend. Thus presented, my argument rebuts Waldron’s


wholesale condemnation of disobedience and carves out some specific space within which

conscientious law breaking is morally justified and outside which it may indeed be dismissed

as a minority’s act of arrogance.

Before getting started, let me emphasize that nowhere in the paper shall I advance a defense

of the respect-based proceduralist position; rather, I take this position as a starting point and

offer a set of considerations aimed at clarifying its normative implications for a theory of

democratic participation that have never been discussed in a joint and comprehensive manner

thus far.

In particular, the discussion of these implications revolves around two interdependent issues,

a broad one and a narrow one, that roughly correspond to the first and the second halves of

the paper (Sections 2, 3, 4 and Section 5). The broad issue concerns the fleshing out of the

role that unlawful means of protest have in maximally realizing citizens’ actual, effective

opportunities to exercise their right to political participation on a baseline of equality. The

narrow issue concerns exactly what forms of unlawful protest can have such a role and, more

precisely, whether the consideration of civil disobedience alone and to the detriment of

conscientious objection, which liberals have typically defended, is warranted.

Addressing the narrow issue is important not only for conceptual clarity but also, and more

significantly, to offer a fully fledged account of the normative implications of the respect-

based proceduralist argument for political justification through democratic participation—

which include a proceduralist case for a moral right to conscientious objection—that have

gone unnoticed in the debate so far.8


2. The Standard Respect-Based Proceduralist Argument for Political Justification

through Democratic Participation

Jeremy Waldron has presented what I take to be the standard respect-based proceduralist case

for political justification through democratic participation. For Waldron, the principle of equal

respect for persons is instantiated in the democratic process to the extent that this process

“does not require anyone’s sincerely held view to be played down or hushed up because of the

fancied importance of consensus.”9 Specifically, the capacity of a democratic decision-

making process guided by majority rule to coordinate action in circumstances in which such

coordination is necessary to pursue individual plans in circumstances of disagreement, and to

do so in a respectful way, is indicated by Waldron as the source of authority of democratic

decisions.

For Waldron, granted these procedural conditions, when citizens dissent from the outcome of

a democratic decision-making process, they are making a claim, against the prevailing view,

that their own minority view should prevail instead. In this light, their claim is regarded as an

act of arrogance and unreasonableness that disregards the circumstances of disagreement.

Waldron’s position does not seem to consider the structural disadvantages limiting the actual,

effective opportunities that citizens who hold nonmainstream views have to exercise their

right to political participation. As I have shown elsewhere,10 there are some minority claims

that emerge after a decision is made that deserve serious consideration as demands of respect.

Such claims, which cannot be dismissed on Waldron’s terms, are made by citizens who hold

nonmainstream views who challenge, through their act of dissent, the prevailing view on the

ground that their reasons in support of an alternative view have not been given equal


consideration during agenda setting, decision making, or both. Claims to this effect have

featured prominently in such debates as those concerning the 2004 French ban on religious

symbols in state schools (on the part of Muslim communities), the prohibition of abortion in

Ireland (on the part of prochoice activists), as well as those regarding the permissibility of

same-sex marriage almost everywhere across Europe and the United States (on the part of

LGBT associations). I think that these are claims that deserve serious attention because they

indicate the structural procedural disadvantage affecting citizens who hold nonmainstream

views when they exercise their right to political participation during agenda setting and

decision making. The procedural disadvantage they suffer constitutes an undercutting reason

for the procedural justification of democratic decisions.

Notice that the structural disadvantage that affects citizens who hold nonmainstream views

does not concern their chances of final success; that certain unpopular and controversial views

stand a lower chance of determining democratic decisions than those endorsed by the majority

of citizens is part and parcel of the democratic game, whose outcomes cannot possibly be

responsive to all views in society. The disadvantage affecting this class of citizens, which is

morally troublesome from a respect-based proceduralist perspective, concerns their actual,

effective opportunities to exercise their right to political participation both as regards agenda

setting and decision making. It is a distinctively procedural kind of disadvantage that fails to

treat citizens commensurate with their equal status as agents capable of self-legislation.11 This

subset of citizens has neither substantive nor procedural reasons to regard democratic

decisions as justified. Granted the likelihood that disagreement with the content of democratic

decisions is there to stay, how can the procedural disadvantage they suffer be corrected in

order to give them at least pro tanto procedural reasons to recognize democratic decisions as

nevertheless justified?


It must be said that several attempts have been made to correct such a disadvantage within a

majoritarian approach to democratic equality, by enhancing the terms and conditions of

political participation in the electoral system.12 This requires, for instance, posing constraints

on the private funding of electoral campaigns to avoid conferring upon the wealthiest an

advantage in their actual, effective opportunities to exercise their right to political

participation. But consider also the establishment of quotas for the special representation in

electoral institutions of minority groups (e.g., ethnic or linguistic minorities) or classes of

citizens with a history of lack of political voice and as subjects of discrimination (e.g.,

women). These promise to correct the problem with the decision-making process. However,

for reasons that will become apparent in what follows, such improvements are an insufficient,

albeit important and—perhaps—necessary, step to make up for the structural procedural

disadvantages affecting the actual, effective opportunities to exercise the right to political

participation of those who hold nonmainstream views.

3. Democratic Participation in Decision Making Revisited: Deliberative Democracy

Deliberative approaches to democracy have been typically concerned with the actual,

effective opportunities to exercise the right to political participation of citizens who hold

nonmainstream views. Deliberative democracy is animated by a commitment to fostering

cooperation and mutual understanding between the holders of different views through a

process of deliberation that gives citizens an equal opportunity to air their views by

exchanging reasons that, to be acceptable, must be accessible to others. Deliberation should

therefore be regarded as an ongoing process through which the divide between majorities and

minorities is always open to revision, and disagreement is publicly articulated.


The spirit of a respect-based account of deliberative democracy is well captured by Rainer

Forst. Building on the basic moral right to justification to which all persons are entitled, Forst

characterizes deliberative democracy as a process through which reasonable citizens exchange

reasons, thereby showing respect as authors and addressees of collective decisions.13 In line

with the main tenets of a proceduralist approach to democracy, Forst thinks the justification of

a democratic decision depends primarily on its being the outcome of a deliberative process in

which all relevant voices are heard on an equal footing. Should the deliberative process

exclude some relevant agents or reasons, its outcomes should be revised in the light of an

improved procedure.14

So far, so good. However, the devil is not in the general motivating principles of deliberative

democracy, but in the details of the arrangements proposed to realize them. According to

Forst, a respectful democracy should guarantee parliamentary procedures designed to make

the force of the better argument win and encourage the constitution of a public sphere

entrusted with the role of checking the correct operation of procedures of public deliberation

and their inclusiveness of all relevant voices. Forst insists that, in this respect, it is especially

important to uncover possible exclusions and distortions regarding the claims of certain

minority groups.15 Along these lines, he briskly suggests in a footnote that “the moral right to

justification thus goes beyond positive law to also form the basis for justifying

disobedience”—but he does not spell out his views on this point.16 So, what forms of

contestation should find a home in a respect-based proceduralist theory of political

justification through democratic participation? And what function could public deliberation

have from this perspective?


Let me start by taking up the last question; I devote the remainder of the paper to addressing

the first one. Many of the problems that have emerged with respect to majoritarian democracy

apply to the deliberative model too, albeit in an attenuated manner. First, there seems to be no

reason to think that the procedural disadvantages affecting the opportunities to exercise the

right to political participation of citizens with nonmainstream views dissolve during

deliberation. Doubts about the virtues of deliberation in this sense have been supported by

numerous empirical studies.17 Such studies suggest that nonmainstream views

systematically—and by no means accidentally—tend to disappear and conform to those of the

majority during deliberation. The procedural problem with such a scenario does not concern

the chances that those who hold nonmainstream views have to win the argument; it concerns,

rather, the actual, effective opportunities they have to participate in deliberation and have their

views considered, if only for addressees to explain why the nonmainstream cannot win.

Second, significant epistemic limits can be expected to affect the participation in deliberation

by citizens who hold nonmainstream views. As Meira Levinson notices, “even if members of

groups from across the political and social spectrum are present in a deliberative body, and

even if the participants all ‘enter’ their ideas by speaking up, it is not clear that everything that

is said will be heard and understood.”18 A further concern, introduced by Lynn Sanders and

developed by Iris Young, regards the limits of the epistemic authority of deliberation.19

Asking epistemic minorities to conform to the main strategies of rational deliberation seems

to place too high a cost on their exercising their right to political participation, thus

undermining the egalitarian connotation of the deliberative process by introducing additional

structural disadvantages to their detriment. As a consequence, Young urges that we think of

other such nonmainstream ways to articulate one’s claims as instances of storytelling and

testimony.


Efforts to correct the procedural disadvantages of deliberation have included the use of

minipublics (e.g., through deliberative polling) and the provision of special rights of

representation and veto powers to minority groups.20 However, the former effort is affected

by serious problems of self-selection bias,21 whereas the latter is able to target only those

citizens who are disadvantaged in virtue of their belonging to some formal minority—

preconstituted and legally recognized—group.22 The drawback of this approach is its being

incapable of targeting those situations of disadvantage that do not derive from group

belonging in any meaningful sense, but from citizens’ own individual convictions (which they

may happen to share with others—consider the case of parents opposing compulsory

vaccination for their children or of pacifists protesting the military invasion of a foreign

country; no relevant group dimension applies to these cases).

Finally, it is unclear what deliberative democrats expect of citizens who find themselves in a

minority position after a decision is made when deliberation is reopened on a majority-

supported decision. Should they conform to it (even though in the absence of an appropriate

justification for doing so), or should they refuse to comply with it until a decision is made? As

Daniel Markovits argues, the democratic order is characterized by some antidemocratic

inertia; once a decision is made, democracies have all sorts of mechanisms to prevent citizens

from easily subverting the decision.23 This inertia risks causing a certain resistance to change

that may be particularly worrisome for those who find themselves in a minority position.

Deliberative democrats are aware of these problems.24 There has been, for example, much

discussion concerning the role of informal, noninstitutional channels citizens may use to

enhance their actual, effective opportunities to exercise their right to political participation,


especially as concerns agenda setting.25 These channels include actions by citizens’

associations and civil-society movements. However, as much as such remedies should be

regarded with some favor, to address such widely known problems to a satisfactory extent,

democrats cannot rely on the internal resources of deliberation alone, but should avail

themselves of other means to enhance citizens’ actual, effective opportunities to exercise their

right to political participation on a baseline of equality. This requires, as I argue in what

follows, that we concentrate on contestatory forms of democratic participation.

4. A Larger Room for Democratic Participation: Contestatory Democracy

Just as deliberative democracy may be seen as an expansion of majoritarian democracy (for it

concentrates on debates preceding the vote, but does not replace it),26 we may take what

Philip Pettit calls “contestatory democracy” as an expansion of deliberative democracy.27

Pettit builds his argument for democracy on the idea of republican freedom as nondomination:

the absence of mastery by others. According to Pettit, electoral majoritarian democracy is

justifiable from this point of view as it gives the governed an instrument (universal vote)

through which they can exercise control of their governors. However, for Pettit, majoritarian

democracy cannot realize freedom as nondomination because it is often used as an instrument

by some governing elites to dominate minorities.28 Pettit’s suggestion is that we should aim at

realizing freedom not only as freedom to participate in decision making but also as freedom to

oppose collective decisions. This is the idea of contestatory democracy.29

Specifically, for Pettit, to counteract “false positives: that is, misperceptions or

misrepresentations of what public valuation supports,” electoral institutions in a democracy

should be paired with contestatory institutions through which citizens may challenge a


government decision and ask for its revision or repeal.30 To this end, such institutions as

courts and ombudsmen should act as facilitators for contestation. Moreover, provisions should

be made to forestall contestation, for example through constitutional constraints on

government action (enacted by constitutional courts), procedures of consultation (opinion

polls), and arm’s-length appointments.31

Although many proceduralist accounts of political justification through democratic

participation do not share Pettit’s conviction regarding the centrality of freedom as

nondomination, I think they could nevertheless share the spirit of Pettit’s suggestion. An

analogous case may be built on the premises of respect for citizens’ status as agents capable

of self-legislation. Recall the discussion in the previous sections highlighting the structural

procedural disadvantages affecting the actual, effective opportunities of citizens who hold

nonmainstream views in society to exercise their right to political participation. In keeping

with that discussion, it is quite easy to see how, from the perspective of respect-based

proceduralism, there are good reasons to share Pettit’s wariness of the idea that participation

in majority-driven decision making and in deliberation is enough to secure what equal respect

for persons requires; that each citizen may regard herself as the coauthor of public rules on an

equal footing with everybody else.32

With the exception of a brisk reference to the role of civil disobedience as a form of

opposition to the law “within the system,”33 Pettit seems to be concerned with placing

political control through contestation under legal constraints (for example through

“constitutional procedures and restrictions”).34 He insists on the importance of the activism of

social groups to ensure that the realization of republican ideals is not confined to the realm of

laws but extends to social norms—and this requires the recognition of rights of protest and


demonstration.35 However, Pettit fails to specify whether such rights extend also to unlawful

forms of protest.

I agree that lawful means of protest are important components of a healthy democracy and

that the courts are important allies in this respect. But the way in which minorities’ claims get

to courts, for example, cannot rely only on lawful resources, which are often exposed to the

same power disequilibria and biases that affect political processes. As argued in what follows,

in order to count as an enhancement of the actual, effective opportunities that citizens have to

exercise their right to political participation in an egalitarian sense, catering to a pro tanto

respect-based procedural justification of democratic decisions, contestation should include

such unlawful acts as civil disobedience and conscientious objection. This is important to

make sure that citizens who hold nonmainstream views may speak up in their own voice even

if they are very small in number and their views are too unpopular in society to make it to the

courts. This is crucial, in turn, to make up for the disadvantages that affect the actual,

effective opportunities for participation by this class of citizens, as discussed above.36

Unlawful means of protest, appropriately constrained, give these citizens a direct channel of

communication with the governing majority, thus enhancing their opportunities to exercise

their right to political participation and to contribute actively to the coauthorship of

democratic decisions.

5. One Last Step: Democratic Participation through Unlawful Means of Protest

So far I have argued that the exercise of the right to political participation in decision making

(through public deliberation and majority voting) cannot provide a procedural pro tanto

justification for democratic decisions unless it is supplemented in ways capable of correcting


the procedural disadvantages affecting the actual, effective opportunities to exercise such a

right on the part of citizens who hold nonmainstream views. In order to fulfill its justificatory

function, the democratic process should ensure not only that citizens participate in

deliberation and voting, but also that they have equal, actual, effective opportunities to contest

majority-supported decisions once they have been made. We have already seen what role

contestatory lawful channels may play from this perspective. One important question still lies

unaddressed: what morally acceptable forms could unlawful protest take within such an

account?

Let me start by presenting the key passages of an argument recently put forward by David

Lefkowitz in defense of civil disobedience.37 Lefkowitz argues for a moral right to civil

disobedience as a way for citizens of a liberal democracy to discharge their disjunctive duty

correlative to a legitimate state’s right to rule. That any single person finds herself in a

majority or in a minority position in society is largely a matter of luck. But, Lefkowitz

notices, it should be a priority for a legitimate state to reduce as much as possible the impact

of luck on the exercise of individual autonomy, that is, on the capacity citizens have to be the

coauthors of the collective decisions binding on them. On this ground, Lefkowitz argues,

those who were unfortunate enough to find themselves in a minority position should either

endorse the majority’s view or engage in public acts of disobedience to express their

disagreement and try to modify the contested decision. The state therefore has the duty not to

punish public disobedience as a part of its efforts to remove obstacles to the political

participation of citizens and their equal standing in influencing collective aims.

In a similar vein, Daniel Markovits has suggested a proceduralist argument presenting civil

disobedience as justifiable because decision-making processes display a “democratic


deficit.”38 The argument is built on a parallel between civil disobedience and judicial review

as two means to overcome political inertia and initiate “a democratic reengagement with

issues that the status quo has kept off the political agenda.”39 Therefore, civil disobedience is

presented as not at all a challenge to democracy, but as having an important function in

enhancing it.

For many defenders of civil disobedience, conscientious objection is more of a matter of

private nature. Conscientious objection consists in a person’s appeal to her individual

conscience, her personal morality (rather than general considerations of justice, as is the case

with civil disobedience), in order to be discharged from compliance with a decision

incongruent with her own inmost ethical convictions—action in contrast with which would

risk jeopardizing her moral integrity.40 Given such an alleged private, self-regarding nature,

conscientious objection—unlike civil disobedience—is rarely “encouraged,” but is at most an

object of “forbearance.”41

But is this all there is to conscientious objection? I do not think so; appropriately interpreted,

conscientious objection may function as a means through which citizens who hold

nonmainstream views grounded in their personal morality, and on that basis conscientiously

dissent with a democratic decision, communicate publicly their refusal to comply with such a

decision. This mimics cases of civil disobedience, although the reasons for noncompliance are

of a different kind (personal moral integrity vs. justice for society), as are the political aims

pursued by the two kinds of dissenters (legal exemption vs. policy change).

My endeavor for the remainder of the paper is to explain why those committed to a respect-

based proceduralist argument for political justification through democratic participation must


be ready to regard conscientious objection, alongside civil disobedience, as an instrument to

bypass the procedural flaws affecting democratic decision making. This explanation is needed

in order to flesh out the political character of, and role of, conscientious objection. I regard

this move as important for two reasons. First, it contributes to rescuing conscientious

objection from the unwarranted relegation to the private sphere that is typical of liberal

thought; and, second, it qualifies the plausibility of regarding a moral right to engage in this

form of protest as a direct implication of the liberal commitment to extend maximally the

scope for the actual, effective exercise of citizens’ right to participate politically as equals.

This completes (and draws out the furthest implications of) the argument outlined in the first

half of the paper.

Let me begin this endeavor by pausing to ask why the political role of conscientious objection

has been underestimated. A response to this question may be found by looking at Kimberley

Brownlee’s crystal-clear formulation of the difference between civil disobedience and

conscientious objection as the difference between “conscientious communicative

disobedience” and “personal disobedience.”42 The main difference between the two unlawful

forms of protest resides in the communicative nature of the former compared to the

noncommunicative, private nature of the latter. For Brownlee, civil disobedience consists in

“a conscientious communicative breach of law motivated by steadfast, sincere, and serious,

though possibly mistaken, moral commitment.”43 A civil disobedient is driven by both

backward-looking and forward-looking purposes as she aims at communicating her

condemnation of a provision she deems unjust as well as at bringing about a lasting change in

the disputed provision. On the other hand, Brownlee sees conscientious objection as “a refusal

to follow an injunction, directive, or law on grounds of perceived personal conviction.”44

Brownlee submits that a conscientious objector has no intended communicative aim as she


operates “merely” to avoid external interference with her acting in accordance with her

convictions.45

We can illustrate the difference between the two unlawful forms of protest by comparing such

cases as those of pacifist activists either burning their draft letters in public or breaking into a

military base to spray-paint tanks (instances of direct and indirect civil disobedience) with

those of a pharmacist failing to provide emergency contraception or a member of some

religious group wearing religious symbols in public places despite their being banned

(instances of passive and active conscientious objection).

Brownlee’s idea is that because it expresses a claim for the revision of a provision deemed

unjust for the society at large, civil disobedience can be regarded as making an overt

contribution to decision making in a way in which conscientious objection cannot.

Specifically, for Brownlee, civil disobedience is performed for the purpose of communicating

disavowal of a certain provision. The primary aim of a conscientious objector, though, is to

act on the basis of her conscientious conviction without external interference; the

communicative aim is neither primary or secondary—it is incidental or accidental, at most.46

I think Brownlee is wrong to characterize conscientious objection in these terms, unless she

were prepared to claim that what she calls personal disobedience corresponds to conscientious

evasion (a claim that, in fact, she explicitly rejects).47 To see this, we need to consider the

difference between conscientious objection and conscientious evasion. Cases of conscientious

evasion include those in which parents try to elude the authorities’ control of whether their

children have been vaccinated, or in which Catholic pharmacists pretend that emergency

contraception is out of stock in their shop. But antivaccine parents and Catholic pharmacists


may also act as conscientious objectors in a different manner; they may publicly declare

themselves as objectors and explicitly reject the calls for vaccination or make it clear that

emergency contraception is not on sale in their pharmacy on principled grounds. By acting

publicly as conscientious objectors, such dissenters communicate to their fellow citizens the

impossibility of their complying with a democratically enacted decision that demands

something of them that goes against their moral integrity; therefore they ask to be exempted

from it.

When it comes to conscientious evaders, Brownlee is right in taking their actions as a

contestation of the state’s authority to regulate such matters as, for example, one’s own (or

one’s children’s) health. Insofar as conscientious evaders ignore democratic decisions, their

act is indeed a claim for immunity, as Brownlee characterizes it. Conscientious evaders make

no contribution to collective decision making; their actions cannot count as a claim for

enhanced actual, effective opportunities to exercise their right to political participation.

Essentially, they disregard the state’s general authority to regulate the issue that prompts them

to disobey. By contrast, conscientious objectors—as characterized above—are caught in a

conflict between the (pro tanto) reasons for compliance derived from their recognizing the

state’s general authority to regulate certain issues and those for noncompliance grounded in

their conscience, which tells them not to conform to the specific way in which one particular

issue has been regulated. In this sense, a conscientious objector cannot content herself with

saving her conscience, while continuously breaking the rule in secret; her aim is, rather, to

resolve the conflict by claiming a legal exemption from the contested rule. Hence the public

aspect of her act.


So, on my characterization, we would have a case of civil disobedience when a person

publicly burns his draft letter with the aim of raising awareness against the military draft and

hopefully prompting a general review of the policy on the grounds of justice. The case would

be one of conscientious evasion, however, should a person ignore a draft call in secret

because he thinks the state has no authority to draft citizens to go to war and, in fact, should

not be in the war business at all. Finally, we would be facing a case of (communicative)

conscientious objection should a person publicly refuse to respond to the draft, as he thinks

that serving in the military would jeopardize his own moral integrity and, therefore, although

he does not challenge the general tenability of the policy, he asks to be legally exempted from

it.48

Thus specified, we can see the sense in which conscientious objection may have an inbuilt

communicative dimension and can be regarded as a contribution to decision making—like

civil disobedience, yet in different terms. The rediscussion of the extent of the demands that

the authority can make of citizens under certain circumstances seems an important, and by no

means incidental, contribution to decision making. Conscientious objection, as a

communicative act, is a request for the state to exempt objectors from compliance with a

decision incongruent with their personal morality, a plea for an amendment of an existing

provision to accommodate moral pluralism. Of course, nothing I have said makes the primary

objective of an act of conscientious objection that of communicating disapprobation of a

public decision. However, the communicative connotation of acts of conscientious

objection—stripped of its evasive components—is a constitutive dimension of such acts.

On this account both civil disobedients and conscientious objectors act on a backward-looking

and a forward-looking aim, but while the civil disobedient wants to communicate the


disavowal of a certain provision on the grounds of justice and tries to change it, the

conscientious objector wants to communicate the impossibility of her complying with a

certain provision on the grounds of her own personal morality and seeks a legal exemption

from it. What is important from the proceduralist perspective adopted in this paper is that the

participation of citizens in lawful channels of decision making and contestation is not a

sufficient reason for vindicating the procedural pro tanto justification of the disputed

provision against either of the challenges above.

A firmer grasp of this distinction can be reached by looking at Brownlee’s formulation of

what she calls the “communicative principle of conscientiousness,” to which relevant acts of

unlawful contestation must respond. It is articulated by the following conditions:

(1) A consistency condition that holds between our judgements, motivations, and

conduct to the best extent that we are able. (2) A universality condition that holds

between our judgements of ourselves and our judgements of others. (3) A non-

evasion condition that we bear the risks of honouring our conviction, which

means that we not seek to evade the consequences for reasons of self-protection

[…] (4) A dialogic condition that ceteris paribus we be willing to communicate

our conviction to others so as to engage them in reasoned deliberation about its

merits.49

I think that conditions (1), (3), and (4) necessarily apply to conscientious objection. In

accordance with condition (1), the provision that someone has a lifestyle consistent with the

claims she makes through her protest seems to be as important for a doctor (who must not

have voluntarily interrupted her own pregnancy) refusing to perform abortions as for activists

(who must not buy products produced by firms experimenting on animals) liberating animals


from laboratories where vivisection is performed. The publicity of acts of conscientious

objection and civil disobedience tells us about the importance of condition (3) and implies

that both pharmacists refusing to sell emergency contraception and environmentalists sitting

on rail tracks to prevent the circulation of nuclear waste must be prepared to accept the risks

of legal and social sanctions. The legal aims pursued by civil disobedients and conscientious

objectors, albeit different, fall under condition (4). It is not enough for Muslim women that

they be grudgingly tolerated when they walk on the streets wearing a niqab; when they act as

conscientious objectors, they aim at a legal exemption from the public-security norm that

people in public places must be recognizable. They can easily be taken as aiming to persuade

their fellow citizens of the soundness of their claims, just like animalists, environmentalists,

and pacifists engaged in civil disobedience.

This is not to deny that significant differences emerge in relation to condition (2).

Conscientious objectors may well think that an act is wrong for them without thinking that it

is (pro tanto) wrong for anyone else to do it. This may be the case because their conscientious

conviction is grounded in religious obligations binding only on members of that religion (a

Muslim thinks it is wrong for her to uncover her head in public but does not have to think that

it is similarly wrong for any other woman), or because they are committed to reasonable

pluralism and accept the burdens of judgment (a prolife doctor thinks it is wrong for him to

perform abortions but, as he recognizes the uncertainties concerning the status of the fetus, he

may not think this is equally wrong for any other doctor). This is the reason why the claims

originating out of acts of conscientious objection are claims for legal exemptions rather than

for a general revision of the disputed provision.


To be true, this characterization should not efface the universalizable component of

conscientious objection that concerns the claim to moral integrity on which this form of

protest is grounded. When conscientious objectors act to communicate the impossibility of

their complying with a democratic decision, as compliance would undermine their moral

integrity, they appeal to a generalizable principle, pro tanto valid for anyone, according to

which no one should be forced to go against her moral integrity. This suggests that

conscientious objection has two components: (a) the specific objection raised against the

content of a provision (a physician refuses to participate in providing abortions because she

sees abortion as a murderous practice), and (b) the general claim that compliance with this

provision is impossible, as it would undermine the objector’s integrity. While the content of

the former falls short of the universality condition, as argued above, the principle

underpinning the latter is universalizable indeed and can, therefore, be taken as a marker of

the conscientiousness of the act of dissent alongside the satisfaction of the abovementioned

conditions (1), (3), and (4).

This specification may be taken to entail that what conscientious objectors ultimately want to

communicate is a “second-order objection” that has not so much to do with their

disapprobation for the content of the disputed provision as with the risk that compliance with

the provision interferes with the preservation of their moral integrity. Now, the following

challenge may arise. If we think that the preservation of someone’s moral integrity is a moral

principle of value to anyone in her capacity as a moral agent, then the act of dissent could be

read as a sophisticated act of civil disobedience appealing to a general and universalizable

moral principle. Why should we need to preserve the category of conscientious objection? My

sense is that such a challenge could easily be reduced to a semantic dispute that, however,

risks muddling some important differences (as illustrated by the three different interpretations


of the draft dodgers above) that are worth preserving to establish with precision what forms,

grounds, and aims for dissent follow from the proceduralist respect-based argument for

political justification through democratic participation. In other words, semantics aside, I

think there is conceptual space to differentiate, first, between acts of private evasion of public

control and public but unlawful contributions to decision making and, among these latter,

between justice-based forms of protest seeking a policy change and morality-based forms of

protest seeking legal exemptions for those engaged in it.

From this perspective, it is important to recognize the twofold character of the contribution

that unlawful forms of protest may make to democratic decision making. Insofar as unlawful

forms of protest are seen as postdeliberative contributions to democratic decision making and

are, therefore, justified as an extension of citizens’ respect-based right to political

participation, there seems to be no reason to restrict their consideration to justice-based forms

of protest as liberal advocates of civil disobedience have typically done; if someone’s views

have been excluded, or not equally considered during decision making, this is equally

problematic whether such views articulate claims of justice or personal moral convictions

(unless there is a specific underlying theory of public reason at work—but this would need a

separate argument). What matters is their unequal treatment and exclusion, which is at odds

with what the principle of equal respect for persons demands in politics. Such an unequal

treatment and exclusion may equally well affect the bearers of views grounded in claims of

justice and those grounded in claims of personal morality on the basis of which different acts

of contestation may be performed.

An implication of my position that is worth emphasizing concerns the moral relevance of all

claims, regardless of their content. The views of a male chauvinist refusing to hire women on


the basis of his convictions about their lack of trustworthiness in business are entitled to be

aired as much as those of a parent refusing to vaccinate her child in compliance with her

religious convictions. It is a basic democratic requirement that all voices be aired to honor the

commitment to freedom of thought and expression. Insofar as such a commitment applies

during deliberation, it must equally apply in the postdeliberative phase. Notice, however, that

this position does not imply that all views that are aired should be mirrored in public decisions

(some reasons are bad reasons and will lose). A full treatment of the point requires an account

of public deliberation that I am not able to offer here. My position is compatible with different

substantive accounts of the reasons that should have an influence on decision making. The

debate on hate speech is of course relevant as well. But I think these substantive aspects,

albeit important, may be left for subsequent specification with no impact on the cogency and

plausibility of my general argument.

Clearly, the acceptability of unlawful acts of protest thus understood largely depends on

establishing conditions at the satisfaction of which acts of civil disobedience and

conscientious objection may be read as extensions of citizens’ rights to political participation.

For example, it seems reasonable to follow the common practice of presenting these acts of

contestation as last resorts and limiting their expression to nonviolent means. This is an

important task for political philosophers to carry out but not one that, for the reasons above, I

can take on in this paper.50

To summarize, in this section I have made two claims: (1) Stripped of their evasive

components, acts of conscientious objection are communicative acts and their performance

can, therefore, be seen as offering a minority’s contribution to agenda setting and decision

making grounded in the objector’s personal morality. (2) The communicative nature of acts of


conscientious objection makes them justifiable, alongside acts of civil disobedience, as an

extension of the citizens’ right to political participation, recognition of which is required in

those cases where conscientious dissenters have suffered procedural disadvantages in their

actual, effective opportunities to exercise such a right during agenda setting and/or decision

making.

Taken together, these intertwined claims make a case for recognizing a moral right to

conscientious objection (alongside civil disobedience) as an entailment of the commitment to

removing the procedural obstacles to ensuring that all citizens have equal, actual, effective

opportunities to exercise their right to political participation so that they can regard

themselves as sharing the coauthorship of democratic decisions as required by their equal

status as agents capable of self-legislation. Failing the recognition of such a right, democratic

decisions cannot be fully justified.

In keeping with the characterization of conscientious objection offered above, citizens’

exercise of their moral right to conscientious objection (which may consist either in an act or

an omission, depending on the nature of the contested rule) must be public in the sense that it

must be known to the authorities and the wider public and must be accompanied by an

explanation of the procedural nature of the disadvantage that makes the exercise of this right

justified as an extension of citizens’ right to political participation (courts are possible loci

when such an explanation may be provided—more on this below).

So, in order for citizens to enjoy equal, actual, effective opportunities to exercise their right to

political participation, societies must ensure that citizens have access on an egalitarian basis to

the following channels: (i) inclusive formal and informal deliberative fora where citizens can


present, exchange, and probe their views (this requirement affects both parliamentary and

civil-society debates); (ii) voting procedures that encompass the representatives of all relevant

voices in society (this may require the institutionalization of quotas); (iii) formal and informal

lawful contestatory channels (including a right to protest and such institutions as the judicial

review); (iv) a moral right to unlawful forms of protest that covers both civil disobedience and

conscientious objection. If and only if all such channels are actually open to citizens on an

egalitarian basis, the justification of democratic decisions can stand on respect-based

procedural grounds.

These indications are admittedly pitched at a high level of abstraction and we should surely

expect any respect-based proceduralist theory of political justification through democratic

participation to specify the exact workings of this mechanism. For example, such a theory has

to reply to such questions as whether citizens must necessarily go through (i) to (iv) in that

order or whether some steps (notably iii) may be skipped over. I cannot take on any such

specific question from the general standpoint I have adopted in this paper. However, two

qualifications regarding point (iv) are required. First, that citizens in a democracy have a

moral right to conscientious objection does not entail that they have a right to be exempted

from the contested provision. As I have noticed elsewhere, the concession of conscientious

exemptions is not a matter for principled argumentation, but an issue whose case-by-case

evaluation must be open to consequence-sensitive considerations concerning the impact that

any given exemption could have on the rights of others.51 In keeping with this, my case has

been for the role of conscientious objection as an act against the law; the discussion of the

conditions for granting conscientious exemptions requires a separate treatment.


Second, and relatedly, nothing I have said entails that conscientious objection (or, in fact, civil

disobedience) must be made lawful (for example, by enshrining a legal right to resistance into

the Constitution). My point has been, rather, to argue for a moral right to civil disobedience

and conscientious objection as an extension of the respect-based right to political participation

in the postdeliberative phase. The correlative duty on the part of institutions does not consist

in legalizing such acts of protest; it consists rather in treating conscientious dissenters in a

way that differs from that in which ordinary offenders are treated, for instance by allowing a

specific form of “conscientious defense” (analogous to the cultural defense for culturally

motivated crimes).

From this perspective, the trial during which a conscientious dissenter is prosecuted may be

fruitfully regarded as a locus where the dissenter’s claims are aired, taken into consideration,

probed, and—if rejected—reasons for compliance are given to her. Courts become democratic

loci just like parliaments and public squares. And, what is more, they are loci where citizens

may exercise their right to political participation directly, in the first person, by pursuing the

consequences of their act of contestation. In an electoral democracy, the exercise of this right

is most of the time indirect; it is political representatives who directly vote on collective

decisions in parliament, with the exception of referenda. Forms of contestation bring the

exercise of the right to political participation back into the hands of individual citizens who

can act in the first person when, for example, they appeal to a court, organize public acts of

disobedience, or refuse to comply with a legal obligation.

A possible objection to my argument goes as follows. It is easy to see how we can regard civil

disobedience and conscientious objection as external correctives to democracy, but how and

why should we regard them as integral parts of a democracy?52 I think that civil disobedience


and conscientious objection can be regarded as external correctives to democracy as long as

we adopt an outcome-oriented approach. On this view, the reason why we should favor

democracy over other forms of government is its capacity, as a decision-making procedure, to

lead to better-quality decisions in terms of their ability to track citizens’ preferences and

protect their rights. Should democratic procedures fail, civil disobedience and conscientious

objection can work as extrademocratic remedies to enhance the quality of collective decisions.

I think this is a perfectly sensible way to regard the role of unlawful means of protest in a

democracy, but one that presupposes an outcome-oriented understanding of political

justification. However, the respect-based account of political justification is a proceduralist

one. By enhancing citizens’ actual, effective opportunities to exercise their right to political

participation, civil disobedience and conscientious objection are an integral part of what

democracy demands to be justified on the grounds of respect. On the proceduralist account,

the justification of a moral right to civil disobedience and conscientious objection should be

seen as an extension, in the postdeliberative phase, of the right to political participation to

which all citizens of a democracy are equally entitled. This extension is necessary as a remedy

for the procedural disadvantages affecting the actual, effective opportunities certain citizens

have to exercise such a right on equal terms with their fellow citizens.53

6. Conclusion

My main claim has been that if supporters of the proceduralist approach to the justification of

democratic decisions want to present such an outlook as worth defending qua the maximal

realization of the principle of equal respect for persons as agents capable of self-legislation,

they should enhance the actual, effective opportunities citizens have to exercise their right to


political participation beyond decision making to incorporate a significant space for lawful

and unlawful means of contestation (including conscientious objection).

Insofar as procedures ensure equal, actual, effective opportunities for all citizens to exercise

their right to political participation through deliberation, decision making, and contestation of

democratic decisions (through lawful and unlawful means), citizens of a democracy have pro

tanto procedural reasons to regard democratic decisions as justified. This does not entail that

the substance of such decisions could not be challenged any more on any ground; but such

challenges will have to be regarded on their merits and could not be given a procedural

justification. Any further contestation of democratic decisions on procedural grounds would

indeed count as an act of unreasonableness and arrogance on the part of a minority.

1 Colin Bird, “Mutual Respect and Neutral Justification,” Ethics 107 (1996): 62–96; James W. Boettcher,

“Respect, Recognition and Public Reason,” Social Theory and Practice 33 (2007): 223–39; Charles Larmore,

The Autonomy of Morality (Cambridge: Cambridge University Press, 2008).

2 Jeremy Waldron, Law and Disagreement (Oxford: Clarendon Press, 1999). For a similar point see Thomas

Christiano, The Constitution of Equality (Oxford: Oxford University Press, 2008), p. 250. Lurking in the

background are questions about how to think of noncitizens’ rights to political participation. Important as they

are, such questions will be bracketed for the purposes of this paper.

3 Thomas Christiano, “The Authority of Democracy,” Journal of Political Philosophy 12 (2004): 266–90; Henry

Richardson, Democratic Autonomy (Oxford: Oxford University Press, 2002). For a discussion see Corey

Brettschneider, Democratic Rights (Princeton: Princeton University Press, 2007) and David Estlund, “Beyond

Fairness and Deliberation: The Epistemic Dimension of Democratic Authority,” in Philosophy and Democracy,

ed. Thomas Christiano (Oxford: Oxford University Press, 2003).

4 The claim concerning the pro tanto justification of collective decisions reached through an egalitarian

democratic process is only arguably sufficient to ground a general case for political obligation. There is an

extensive literature on political legitimacy (see, among others, Allan Buchanan, “Political Legitimacy and

Democracy,” Ethics 112 (2002): 689–719) that questions such a case on solid grounds. The plausibility of the


case will of necessity depend on the details of the proceduralist view of democracy that one holds. I do not wish

to make the plausibility of my considerations dependent on any such views. On the moderate proceduralist view

I have assumed, what matters is the general tenability of the claim that the procedural pro tanto justification of

democratic decisions is a necessary component to argue that citizens, who participate in egalitarian decision-

making procedures, have reasons that speak against noncompliance with such decisions. But, given the pro tanto

nature of such reasons, this is only arguably sufficient to hold citizens under a political obligation. I am grateful

to an anonymous reviewer for urging me to clarify this point.

5 Bertrand Russell, Autobiography (London: Routledge, 1998), p. 635.

6 Denouncing these problems does not presuppose that a certain subset of citizens persistently finds itself in a

minority position across time and issues, although this may well be possible. The problem of persistent

minorities aggravates the assessment of the structural disadvantages that affect citizens holding nonmainstream

views (meaning that members of permanent minorities are even more vulnerable to the inhospitality towards

their views characterizing decision-making processes). Their treatment should be included in the general

provisions for enhancing citizens’ opportunities for political participation (for a discussion, see Christiano, The

Constitution of Equality, pp. 290ff).

7 See, among others, Daniel Markovits, “Democratic Disobedience,” Yale Law Journal 114 (200): 1897–1952

and William Smith, Civil Disobedience and Deliberative Democracy (London: Routledge, 2013).

8 I am indebted to an anonymous reviewer for pressing me to clarify the exact nature of my contribution along

these lines.

9 Waldron, Law and Disagreement, p. 109.

10 Emanuela Ceva, “Why Toleration is not the Appropriate Response to Dissenting Minorities’ Claims,”

European Journal of Philosophy (forthcoming), DOI: 10.1111/j.1468-0378.2012.00563.x.

11 Throughout my discussion I take political constituencies as a given and do not, therefore, engage in a specific

manner with the procedural disadvantages deriving from either the exclusion or the marginalization of certain

members of society during the process of constituency formation. Although these kinds of disadvantages may

pose morally relevant problems for the legitimacy of democratic institutions, I limit myself to more-ordinary

problems of structural procedural disadvantage affecting citizens who hold nonmainstream views, which occur

in any democratic society and cut across different specific histories of constituency formation. I am grateful to

Gustaf Arrhenius for a discussion of this point.


12 Ronald Dworkin, Is Democracy Possible here? (Princeton: Princeton University Press, 2006).

13 Rainer Forst, The Right to Justification (New York: Columbia University Press, 2012), p. 115.

14 Ibid., p. 186. See also Thomas Christiano, The Rule of the Many (Boulder: Westview Press, 1996) and

Christiano, The Constitution of Equality; for a discussion, see Richardson, Democratic Autonomy, chapter 6.

15 Forst, The Right to Justification, p. 181.

16 Ibid., p. 298.

17 See Michael X. Delli Carpini, Fay Lomax Cook, and Lawrence R. Jacobs, “Public Deliberation, Discursive

Participation, and Citizen Engagement: A Review of the Empirical Literature,” Annual Review of Political

Science 7 (2004): 315–44; Tali Mendelberg, “The Deliberative Citizen: Theory and Evidence,” in Political

Decision Making, Deliberation and Participation, eds. Michael X. Delli Carpini and Robert Shapiro

(Greenwich: JAI Press, 2002).

18 Meira Levinson, “Challenging Deliberation,” Theory and Research in Education 1 (2003): 23–49, p. 27.

19 Lynn Sanders, “Against Deliberation,” Political Theory 25 (1997): 347–76; and Iris M. Young, Inclusion and

Democracy (Oxford: Oxford University Press, 2000).

20 Iris M. Young, Justice and the Politics of Difference (Princeton: Princeton University Press, 1990).

21 Archon Fung, “Recipes for Public Spheres: Eight Institutional Design Choices and Their Consequences,” The

Journal of Political Philosophy 11 (2003): 338–67.

22 Ceva, “Why Toleration is not the Appropriate Response to Dissenting Minority Claims.”

23 Markovits, “Democratic Disobedience,” pp. 1923–7; see also Emanuela Ceva, “Self-Legislation, Respect and

the Reconciliation of Minority Claims,” Journal of Applied Philosophy 28 (2011): 14–28.

24 See, for example, Holloway Sparks, “Dissident Citizenship: Democratic Theory, Political Change, and

Activist Women,” Hypatia 12 (1997): 74–109 and Young, Inclusion and Democracy.

25 See Joshua Cohen and Joel Rogers, “Secondary Associations and Democratic Governance,” Politics & Society

20 (1992): 393–472.

26 See Simone Chambers, “Deliberative Democratic Theory,” Annual Review of Political Science 6 (2003): 307–

26.

27 Philip Pettit, Republicanism (Oxford: Oxford University Press, 1997) p. 187.


28 Pettit, Republicanism, p. 62; Pettit, “Republican Freedom and Contestatory Democratization,” in Democracy’s

Value, ed. Ian Shapiro (Cambridge: Cambridge University Press, 1999), pp. 174–6; Pettit, On the People’s

Terms (Cambridge: Cambridge University Press, 2012) pp. 209–15.

29 Pettit, Republicanism, p. 185. See also Pettit, On the People’s Terms, pp. 207ff.

30 Philip Pettit, “Depoliticizing Democracy,” Ratio Juris 17 (2004): 52–65.

31 See Pettit, Republicanism, chapter 6.

32 This suggests that the procedural disadvantages discussed in this paper should concern liberal and republican

theories of democracy alike and that the role of contestation to correct them should appeal to scholars in both

camps, albeit for different reasons.

33 Pettit, On the People’s Terms, p. 138.

34 Pettit, “Republican Freedom and Contestatory Democratization,” p. 185.

35 Pettit, Republicanism, p. 193.

36 Joseph Raz has famously argued against this position by refuting the moral justifiability of civil disobedience

on the ground that liberal societies embody, almost by definition, adequate channels for legal participation

(Joseph Raz, The Authority of Law [Oxford: Oxford University Press, 1979], Section IV). I do not have the space

to engage directly with Raz’s argument at any sufficient length in this paper. I trust that the reader will be

familiar enough with Raz’s view to appreciate my argument in what follows as an alternative to it, along the

lines of those provided contra Raz in Kimberley Brownlee, Conscience and Conviction (Oxford: Oxford

University Press, 2012), and David Lefkowitz, “On a Moral Right to Civil Disobedience,” Ethics 117 (2007):

202–33.

37 Ibid.

38 Markovits, “Democratic Disobedience.”

39 Ibid., p. 1933.

40 Mark R. Wicclair, Conscientious Objection in Health Care: An Ethical Analysis (Cambridge: Cambridge

University Press, 2011), pp. 4–5.

41 Stephen Macedo, Liberal Virtues (Oxford: Clarendon Press, 1990), p. 111.

42 See Brownlee, Conscience and Conviction.

43 Ibid., pp. 23–4, emphasis in original.

44 Ibid., p. 27.


45 Ibid., pp. 149ff.

46 See Kimberley Brownlee, “Conscientious Objection and Civil Disobedience,” in The Routledge Companion to

Philosophy of Law, ed. Andrei Marmor (London: Routledge, 2012).

47 Brownlee, Conscience and Conviction, pp. 28–9.

48 I am grateful to Kimberley Brownlee for prompting me to make this distinction explicit. Of course this is an

idealization and “mixed” cases may be found in practice. For example, consider justice-based claims which turn

out to be unsuccessful in their attempts to bring about legal revisions and, as a consequence, boil down to

requests for individual exemptions (e.g., the case of doctors against abortion). On the other hand, consider those

requests grounded in someone’s personal morality which may obtain at first an exemption, but then bring about

such pervasive societal changes as those resulting in an overall revision of the disputed provision (e.g., the case

of conscientious objection to the military draft that has resulted in an abolition of conscription throughout

Europe). Notwithstanding this casuistic evidence, I think that the analytical distinction I offer in the paper may

play an important normative function; it can suggest the conditions under which each type of minority

contestation is justified and clarify the nature of the specific contribution each may make to democratic decision

making. I revisit the importance of preserving this category distinction below. For an extensive discussion see

Emanuela Ceva, “The Appeal to Conscience and the Accommodation of Minority Claims,” in Diversity in

Europe. Dilemmas of Differential Treatment in Theory and Practice, eds Gideon Calder and Emanuela Ceva

(London: Routledge, 2010).

49 Brownlee, Conscience and Conviction, pp. 29–30.

50 See ibid. and Ceva, “Self-Legislation, Respect and the Reconciliation of Minority Claims.”

51 Ceva, “Self-Legislation, Respect and the Reconciliation of Minority Claims.”

52 The claim that civil disobedience is an antidemocratic act is central to the criticisms of its justifiability in

Jeremy Horder, Excusing Crime (Oxford: Oxford University Press, 2004) and Raz, The Authority of Law.

53 I am grateful to Elvio Baccarini for a discussion of this point.

Date post:	07-Feb-2023
Category:	Documents
Upload:	affective-sciences
View:	0 times
Download:	0 times

Political Justification through Democratic Participation: The Case for Conscientious Objection

Documents