For a General Legal Theory of Conscientious Objection

From a descriptive perspective, conscientious objection may be considered as a form of individual resistance, shared or sharable by others, nonviolent, and “apolitical”, towards a specific law, considered to be unjust. The injustice of a law descends from its incompatibility with the fundamental ethical convictions of the objector. In recent decades, this kind of resistance has undergone a profound transformation. It has acquired a specific legal dimension. In cases in which the ethical requests of objectors have been increasingly considered to be deserving of legal protection by political power holders (as in the case of military service or abortion), the scenario has changed completely. There has been a transition from conscientious objection as a request to conscientious objection as a positive right. The right to conscientious objection is now a fundamental subjective right,instrumentally linked to freedom of conscience in the contemporary constitutional rule of law. In this scenario, that emerged after World War II, conscientious objection is no longer an illegal form of resistance, but, in many cases, a legal instrument to respect individual beliefs. What is the structure of this right? Is there a general right to object in democracy? Can we find specific limits for the claiming of this right? This paper addresses the issue by proposing a general theory of conscientious objection as a fundamental right, under the constitutional rule of law. Only by understanding its logic and goals is it possible to accept or reject specific requests on the part of conscientious objectors. With reference also to the Italian legal system, this paper will try to show how a general but limited right to conscientious objection could be implemented within the pluralistic structure of contemporary democracies.