Political Minorities and the Right to Tolerance: The Development of a Right to Conscientious Objection in Constitutional Law
de Sousa e Brito, Jose, Brigham Young University Law Review
As a general rule, political minorities should obey the general will, which is in principle the will of the majority. However, they should not whenever a new law, deemed to be the expression of the general will, is unjust because it offends human rights, which are more "fundamental" than the pretended rights created by such a law. There is then a conflict between the democratic principle and the principle of the rule of law. But as these are both principles of democracy, as a system of principles, the conflict is resolved by considering the law invalid, subject to judicial review, exposed to civil disobedience or to a right of resistance, or even capable of justifying revolution. The law in such conflicting cases is not the true expression of the general will.
One hypothesis promoted by United States Supreme Court Justice Stone states that while a law is a just, untouchable expression of the general will, there are cases where the minorities should not "surrender . . to the popular will."1 It is the hypothesis of conscientious objection. Minorities in a modern constitutional state thus have a recognized right to tolerance. In earlier times they simply had the last resort right of political dissenters: the right to emigrate,2 which, in the context of the United States, could be easily translated into the right to travel from state to state.
The right to conscientious objection is indeed the right to refuse a legal duty in the name of individual conscience; the conflict is resolved when the principle of the inviolability of conscience prevails over the principle of generality of law. It is true that the conflict that exists, prima facie, is formally removed since the objection is generally recognized in the Constitution and is regulated in its exercise by general laws. But if the principle of generality of law is formally protected, it nevertheless remains true that the legal exception often arises for reasons which are not included in those that were the basis of the constitutional and legal deliberations that create the legal duty, but which instead directly and entirely oppose them. In other words, it is not, for example, because the reasons for the duty to military service do not apply to the conscientious objectors that this duty is removed; it is because the objectors are allowed to make their reasons prevail over those of the law-not because the law adopts them, but because the law tolerates them out of respect for freedom of conscience. The conscientious objection represents the transformation of the principle of tolerance, previous to the constitutional state in a human right.
As might be expected, the general right to conscientious objection is a very sensitive matter that has not yet gained general recognition. In this paper I show some of the problems of its definition in contemporary constitutional law. It will be an essay both on comparative constitutional law and on public reason. Public reason, I submit in Part II, is the proper method of comparative constitutional law. Part III discusses the general right to conscientious objection to military service. Part IV addresses limits to the right of conscientious objection. Part V explores the possibility of a right to conscientious objection to substitute duty.
II. THE METHOD OF COMPARATIVE CONSTITUTIONAL LAW
A. The Method of Comparative Law
The possibility of comparative constitutional law depends on the availability of a tertium comparationis; i.e., in a simple case of two different laws to compare, we need a third element common to both which reflects all the aspects of each law that will be compared. Such a third element allows us to compare two samples of the same kind of thing, where before we had things of different kinds which were altogether incomparable. Each feature of the kind is a possible point or measure of comparison. The more features the third element has, the richer the comparison. …