Conscientious Objection through the Contrasting Lenses of Tolerance and Respect

Abstract

Scholars disagree on how the law should respond to conscientious objections. Among these scholars, some cast their arguments in terms of tolerance and respect. Yossi Nehushtan, for instance, favours the lens of tolerance, while John Olusegun Adenitire, among others, favours the contrasting lens of respect. In this article, I argue that we need both lenses—tolerance and respect—to make sense of how constitutional democracies (ought to) respond to conscientious objections. I begin by proposing a normative-conceptual argument, in which I map the contrasting lenses of respect and tolerance onto distinct categories of claims of conscience: rights-infringing and standard claims. I explain the normative argument with reference to conscientious objection to paying taxes, to military service, to abortion and to same-sex marriage. I then complicate the theoretical argument by discussing diverging legal responses to claims of conscience across less familiar constitutional democracies (Singapore, South Korea, Colombia, Sweden, Italy, South Africa, and the Netherlands). I conclude by proposing that, quite separate from any normative disagreement on these claims, there is a practical baseline that delineates the realm of possible legal responses to conscientious objections.