59 Pages Posted: 25 May 2005
Date Written: May 23, 2005
This Article examines the way legal systems respond to social problems through a discursive analysis of a unique and timely issue: conscientious objection to military service based on political and ideological grounds. It explores how legal systems, conducting criminal justice procedures under conditions of warfare and dissent, attempt to maintain balance between addressing the extra-legal challenges presented to them through conscientious objection, and preserving the prevalence of legal inner logic, classification and interpretation.
As opposed to the jurisprudential and philosophical literature about conscientious objection, this Article approaches the issue through an empirical analysis of legal and judicial discourse in a particular case study. It follows the fascinating story of the left-wing conscientious objection movement in Israel, following the escalation of the Israeli-Palestinian conflict beginning October 2000. It then examines the two cases that made it to Israeli military courts, analyzing the legal procedures and the verdict language, to learn how the legal system chose to construct its perception of the defendants, their actions, and the desired policy.
As the Article claims, while the court seeks to eventually preserve the ethos of military service and to discourage ideological dissent, it also strives to maintain legitimacy for its decisions under heavy media coverage, civilian scrutiny and political unrest. Therefore, it allows the objectors to bring up extra-legal, political, biographical and philosophical issues, and awards them exceeding procedural flexibility. The eventual verdicts, however, reflect the doctrinal-legal tendency to reduce complex personalities and situations into monolithic, mutually-exclusive categories, to facilitate a workable classification of the offenders for normative purposes.
Keywords: Law and society, systems theory, courts, criminal law, conscientious objection, military law, Israeli law
Suggested Citation: Suggested Citation
Aviram, Hadar, Discourse of Disobedience: Law, Political Philosophy, and Trials of Conscientious Objectors (May 23, 2005). UC Berkeley Public Law Research Paper No. 728743. Available at SSRN: https://ssrn.com/abstract=728743 or http://dx.doi.org/10.2139/ssrn.728743