MEDICINE, LAW & SOCIETY 
Vol. 18, No. 1, pp. 1–32, April 2025  
 
https://doi.org/10.18690/mls.18.1.1-32.2025 
CC-BY, text © Cerar, 2025 
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CONSCIENTIOUS OBJECTION 
(GENERAL ASPECTS AND THE SLOVENIAN 
REGULATION OF CONSCIENTIOUS 
OBJECTION TO ABORTION) 
  
Accepted  
18. 9. 2024 
 
Revised 
19. 10. 2024 
 
Published 
11. 4. 2025 
MIRO CERAR 
University of Ljubljana, Faculty of Law, Ljubljana, Slovenia 
miro.cerar@pf.uni-lj.si 
 
CORRESPONDING AUTHOR 
miro.cerar@pf.uni-lj.si 
 
Keywords 
civil disobedience,  
moral consciousness, 
morality, 
ethics and law,  
medical conscientious 
objection to abortion 
Abstract This article discusses the theoretical aspects of 
conscientious objection. It is primarily a moral category. In 
relation to law, it is the disobedience of an individual to certain 
legal norms (principles and rules) that conflict with the 
individual's moral conscience. Conscientious objection differs 
in several respects from other forms of disobedience to 
authority, such as civil disobedience. As a moral phenomenon, 
conscientious objection is first and foremost the inner moral 
obligation of an individual to resist a particular political, legal 
or other norm of authority or behaviour. Conscientious 
objection may also be permitted by law, but to a very limited 
extent. Conscientious objection can only be defined as a right 
in a rationalized reflection of morality and, above all, in the 
sphere of law which is based on the dualism of rights and 
duties (attributive-imperative character of law). In the article, 
some important factors for the legal assessment of the (right 
to) conscientious objection and some fundamental aspects of 
the Slovenian constitutional and legal regulation of the right to 
conscientious objection to abortion by a physician are 
presented in more detail. 
 
 
2 MEDICINE, LAW & SOCIETY Vol. 18, No. 1, April 2025   
 
1 Introductory Explanation 
 
This article discusses some theoretical aspects and questions of conscientious 
objection. The focus is primarily on the description of its authentic moral character, 
its relationship to the law, and the legal regulation of conscientious objection. The 
article then explores the Slovenian legal regulation of a physician's conscientious 
objection to abortion as an illustration. 
 
2 Conscientious Objection and Other Forms of Disobedience 
 
Conscientious objection is one of the forms of disobedience or rejection of certain 
legal and/or political norms and practices. According to the traditional classification, 
morally, politically, and otherwise motivated forms of disobedience can generally be 
divided into the following three categories (Raz, 1986, p. 263): 
 
1. Revolutionary disobedience or revolution is a politically motivated radical 
violation of the foundations of the legal order aimed directly or indirectly at 
changing the government and the constitutional system; 
2. Civil disobedience is a politically motivated violation of the law resulting 
from dissatisfaction with the law and government policy, where the demand 
for a change in law and policy is generally expressed in the form of a public 
protest; 
3. Conscientious objection is a violation of the law by a person who believes 
that he or she is morally prohibited from acting in accordance with a 
particular legal norm, either because of the general nature of that norm (e.g., 
a person acts as an absolute pacifist and opponent of military service) or 
because the person believes that the norm extends to particular cases to 
which it should not apply (e.g., relative pacifism, euthanasia). 
 
This classical classification results primarily from the criterion of the intensity of 
disobedience. In a social context, the most intense form of disobedience is 
revolution, while the least intense is conscientious objection. This classification can 
be further illuminated by one that characterizes different forms of disobedience on 
the basis of the same criterion and also in a general form, but somewhat more 
differentiated and descriptive (Hanson & Fowler, 1971, pp. 173-174): 
 
M. Cerar: Conscientious Objection (General Aspects and the Slovenian Regulation of 
Conscientious Objection to Abortion) 3.   
 
 
1. At the first level, we can talk about permissible legal forms of non-
conformity with the existing regulation. In this case, the legal entity opposes 
a particular legal norm but expresses its disagreement within the permissible 
legal framework; 
2. At the second level, it is possible to identify disobedience that is clearly 
(intentionally) illegal. Still, the person expressing their disagreement does 
not agree to any legal punishment for their behaviour. In such cases, the 
person is convinced that certain legal norms, government policies or some 
of the state institutions are unlawful, unjust, etc; 
3. At the third level, there are forms of dissent that do not relate to a particular 
norm or area of law or policy but are aimed at a general reform of social 
institutions. In these cases, it is much more difficult to justify the reasons 
for resorting to this form of disobedience, given the complexity of the 
reform demanded; 
4. At the last level, there is revolutionary disobedience, which is no longer just 
about the desire for reform but about the desire for a radical transformation 
of society based on alternative principles and values. 
 
3 Conscientious Objection and Civil Disobedience  
 
The concept of conscientious objection is best illustrated by comparing it with the 
concept of civil disobedience. Bay (1971, p. 226) points out that at least the following 
five meanings of the term "civil" are equally legitimate for the context under 
consideration: 
 
1. The term "civil" can refer to the recognition of the general duties of citizens 
and, thus, to the legitimacy of the existing legal order as a whole. Sanctions 
that are used to limit the disregard of individual legal norms or state policies 
and to prevent violence can, therefore, (but need not) be justified as an 
affirmation of general civic duties. 
2. The term civil can be the opposite of the term military in the broader sense. 
In this respect, civil disobedience is usually understood as an expression of 
the principle of non-violence. 
3. The term civil can also be understood as the opposite of uncivil or 
uncivilized, resulting in the requirement that acts of civil disobedience must 
embody the ideals of civilized and moral behaviour of citizens. 
4 MEDICINE, LAW & SOCIETY Vol. 18, No. 1, April 2025   
 
4. The term civil can refer to the public as opposed to the private. This gives 
rise to the principle of the public practice of civil disobedience. 
5. The term civil may also lead to the conclusion that disobedience is aimed at 
such changes in the political system that affect not only individual or group 
freedoms, but the freedoms of all citizens. 
 
Taking into account the above and also the views of other authors, civil disobedience 
can be narrowly defined as individual or group-based conscious, public, reasoned 
and non-violent resistance to legal regulations or official decisions with the desire to 
enforce illegal but legitimate social values, while at the same time consenting to the 
legal consequences of such disobedience (cf. Rawls, 1989, p. 64; Perenič, 1990, p. 
704; Bedau, 1971, p. 205; Bay, 1971, p. 225). Looking at the individual structural 
elements of this phenomenon in more detail (Rawls, 1989, pp. 64-66; Raz, 1986, p. 
269; Bedau, 1971, pp. 197-205; Bay, 1971, pp. 225-228), civil disobedience can be 
defined as: 
 
1. Illegal act (an act that violates the Constitution and/or the law). In this 
case, a disputed legal provision may be directly violated or a legal 
provision that is not the subject of a protest may be violated (e.g., a 
group of citizens publicly expresses their opposition to a particular 
criminal or administrative law provision by violating traffic regulations); 
2. conscious conduct, which means that all elements of civil disobedience 
are the result of a conscious decision by the actors; 
3. public action carried out in a public place and in a way that appeals to 
the public; 
4. reasoned action because without a reasoned explanation of the purpose 
and meaning of a particular act of civil disobedience, it is not possible 
to adequately legitimize it; 
5. usually a political action by which a socially weaker group (a minority 
or a majority subordinate to a stronger minority group) seeks to enforce 
its political demands by exerting pressure on authorities or other bodies 
with decisive political power; 
6. a value-oriented act, because those involved in civil disobedience 
invoke a general social sense of justice or another general social value 
that they believe the existing legal order and political authorities do not 
sufficiently take into account; 
M. Cerar: Conscientious Objection (General Aspects and the Slovenian Regulation of 
Conscientious Objection to Abortion) 5.   
 
 
7. usually an act of last resort, which means that all legal means and 
measures must have been exhausted (unsuccessfully) beforehand in 
order to achieve the desired changes; 
8. usually a non-violent action, which means that citizens prevent the 
enforcement of certain legal regulations in the form of so-called passive 
resistance. Non-violence can also be defined more broadly, namely in 
such a way that an action that is in itself non-violent must not be 
intimidating; 
9. an action whose aim is to achieve the required change in the legal order 
or the political activity of the state authority. 
 
At this point, the problematic character of some of the elements mentioned should 
at least be briefly pointed out. Raz (1986, p. 275), for example, is of the opinion that 
civil disobedience is not only justified when it is an act of last resort, a public and 
non-violent act, and so on. According to him, in certain circumstances, it is not 
essential that civil disobedience be practiced only as a last resort because it may be 
justified earlier in support of a just end, as it is often even less socially harmful than 
certain legally permissible acts of dissent (e.g., a prolonged strike in an important 
branch of national industry or service). According to Raz, even the claim that civil 
disobedience must necessarily be public, non-violent, etc.,1 can only mean an 
attempt to routinize this phenomenon and a tendency to transform civil 
disobedience into a regular form of political action to which everyone would be 
(legally) entitled. The exceptional character of civil disobedience is exactly the 
opposite because in a democratic state governed by the rule of law it is a political act 
to which individuals and social groups have no legal claim (Raz, 1986, p. 275). The 
latter position is particularly controversial (e.g., Dreier, 1981, pp. 200 ff.). However, 
one should generally be aware that civil disobedience and conscientious objection 
are only politically and legally tolerated to a considerable extent in a democracy. In 
a democratic system, the political and legal reaction of the authorities to such 
behaviour by civil society groups and individuals in a spirit of non-violence and 
partial tolerance towards the excesses of civil society and free individuals is not 
radical. In contrast, in authoritarian and totalitarian systems, where free individuals 
and civil society associations are virtually non-existent, such actions are usually 
 
1 Bay (1971, p. 228) is of the opinion that civil disobedience can also be violent, provided, of course, that the methods 
and means of force used are carefully selected and limited. 
6 MEDICINE, LAW & SOCIETY Vol. 18, No. 1, April 2025   
 
suppressed with extreme violence and cruelty using police or military force, and 
dissidents are usually also subject to very severe criminal sanctions. 
 
If we now turn to the central concept of this article, we see that conscientious 
objection is similar to civil disobedience in some elements but also differs from it in 
many respects and thus represents a relatively specific phenomenon. In general, 
conscientious objection is the individual's rejection of legal (constitutional, statutory 
or administrative) commands and prohibitions (Rawls, 1989, pp. 66-67), whereby 
the similarity of this concept to that of civil disobedience lies above all in the 
conscious and non-violent behaviour, which is usually also an "ultima ratio" 
behaviour. In contrast to civil disobedience, conscientious objection is characterized 
above all by (ibid.; cf. Sagi & Shapira 2002, pp. 186-182): 
 
1. that, as a rule, it is not an appeal to the majority social sense of justice 
or any other general social value, because here the individual acts 
primarily according to his individual moral conscience, regardless of 
whether or not this agrees with the morality of the larger community; 
2. for this reason, conscientious objection is not usually a public act, which 
of course does not mean that such an act is always hidden from public 
view, but rather that the individual does not intend to draw public 
attention to it; 
3. conscientious objection is not necessarily or predominantly based on 
political principles or demands, as it is generally based on the 
individual's personal moral, religious and other convictions. 
 
There is, therefore, no particularly sharp distinction between civil disobedience and 
conscientious objection, as some of their structural elements often overlap to a 
certain extent. One of the things they have in common is that in both cases, people 
who express their rejection of the legal order or policy agree to legal sanctions. 
However, despite the similarities and affinities between the two concepts, it should 
be emphasized that the above-mentioned differences between the two phenomena 
are important and, to a considerable extent, essential distinguishing features that 
require the two phenomena to be treated separately and, in some cases, with 
different criteria. 
  
M. Cerar: Conscientious Objection (General Aspects and the Slovenian Regulation of 
Conscientious Objection to Abortion) 7.   
 
 
4 Nature of the (Right to) Conscientious Objection 
 
For a deeper understanding of conscientious objection, it is not enough to define its 
essential elements analytically, but it is necessary to delve deeper into the actual 
nature of this phenomenon, in which all the elements mentioned and others are 
interwoven into a complex unity. Within this complex unity, the personal morality 
of the individual is usually of decisive importance. Therefore, we will refer to this 
complex whole in a broader sense as morality. By its very nature, the right to 
conscientious objection is not a legal right but a human (natural) moral right,2 
whereby illegality is, by its very nature its basic element. Conscientious objection is, 
principally, a moral rejection or protest against a legal regulation to which the 
individual's morals are firmly opposed. Only in exceptional cases is a situation 
possible and viable in which a politically and legally organized society permits 
conscientious objection to certain legal norms to a very limited extent, thus enabling 
their unsanctioned implementation. 
 
If, for example, we define conscientious objection as a human natural right, we mean 
only the legitimacy of that natural necessity of every individual to oppose his moral 
postulates to positive (valid) legal norms. As said before, conscientious objection 
can be recognized to a very limited extent by positive law as a permissible exception 
to general legal norms, but it is by no means possible to understand conscientious 
objection as a fundamental human legal right. The reason why the right to 
conscientious objection in the rational sense is primarily a moral right arises from 
the fact that conscience as such is a moral phenomenon, which makes it possible to 
define conscientious objection authentically only in terms of morality.3 
 
 
2 As will be explained below, from the perspective of authentic morality this »right« is actually a »moral duty«, 
because in the dimension of morality the right is only a rational reflex of moral duty. 
3 The distinction between conscientious objection and conscientious objection on principle is not discussed in this 
article, as this question would require special treatment. A basic and framing explanation is contained in the 
summarized definition of the distinction between the two phenomena in Black's Law Dictionary (1990, p. 304), 
where it states: "A conscientious scruple against taking an oath, serving as a juror in a capital case, doing military 
duty, or the like, is an objection or repugnance growing out of the fact that the person believes the thing demanded 
of him to be morally wrong, his conscience being the sole guide to his decision; it is thus distinguished from an 
'objection on principle', which is dictated by reason and judgment, rather than the moral sense, and may relate only 
to the propriety or expediency of the thing in question." 
8 MEDICINE, LAW & SOCIETY Vol. 18, No. 1, April 2025   
 
Moral conscience is the moral inclination and ability of a person to feel and judge 
the good and the bad (evil).4 Since moral conscience responds to and extends to 
legally regulated dimensions as well as ethical, political, religious, and other 
normative dimensions, it seems to some extent that conscientious objection is also 
part of these other dimensions. On the surface, then, moral conscience extends to 
those normative human dimensions that are existentially more externalized than 
morality (e.g., law, politics, practical ethics, custom) on the one hand and to 
normative dimensions that are existentially even deeper than the moral dimensions 
(e.g., spirituality, religion) on the other. However, if the phenomena are viewed 
strictly analytically (discriminatively), moral conscience in its authentic essence is 
exclusively a moral phenomenon. Therefore, the objection of conscience is, by its 
origin and fundamental nature, a moral phenomenon and concept. 
 
At this point, it should be pointed out that from the broadest and deepest 
philosophical-ontological perspective, moral conscience itself is not really authentic 
as a moral category, since as such it is only an artificially (rationally) isolated section 
of the all-encompassing Reality. From a holistic perspective (as far as the limited 
human mind can conceive it), consciousness is an inseparable part of the whole of 
existence. But in the sensory-rational reflection of man, who perceives the Oneness 
or Unity of all that exists (monistic concept) only indirectly, i.e. through many 
particularities and individualities (dualistic/pluralistic concept),5 the part of 
consciousness that defines good and evil is the main carrier of the human moral 
dimension. In this sense, the part of a person's consciousness that triggers the 
 
4 Various philosophical, religious and other views on the concept of conscience are presented, for example, by Sruk 
(1985, pp. 211-212). See also LaFollette (2017, pp. 48-53), who discusses when someone should act according to 
their conscience. 
5To illustrate the "relationship" between monistic and pluralistic concepts, we can use the well-known example of 
the relationship between the ocean (the Whole) and the drops of water and groups of drops of water in it, which 
represent innumerable individualities and particularities. Each individual drop or group of drops forms an awareness 
of its separate and rounded identity (being), while temporarily losing the awareness of its actual fusion with the 
Whole. With the help of this simile, we can perhaps more easily understand that in a subjective and relative sense 
there are innumerable individual and collective dimensions of consciousness, which on the one hand exist only 
apparently, being an inseparable part of the Whole, and on the other hand are real at the level of the consciousness 
that is not aware of the Whole. In this sense, the parts of our relative and subjective social reality are also many 
different kinds of individual and collective human consciousness expressed through various social norms, such as 
religious, moral, ethical, customary, political and legal norms. Since all these normative aspects of consciousness are 
in fact part of the same and indivisible Reality (the Whole), all these social norms are inherently interrelated and 
interdependent. But due to the different needs of society at the present stage of civilizational development, where 
individual and collective social consciousness is still deeply rooted in individuality and particularity (drops and 
groups of drops), it is theoretically and practically necessary to distinguish between moral, legal, religious, political 
and other types of particular normative consciousness and to maintain an appropriate dynamic balance and 
coherence between them. 
M. Cerar: Conscientious Objection (General Aspects and the Slovenian Regulation of 
Conscientious Objection to Abortion) 9.   
 
 
recognition of good and evil in an individual and his reactions to it is authentic as 
such only as moral formation. 
 
In such a perspective and context, conscientious objection is torn between the moral 
and legal spheres, which are separate in the rational view, but in the holistic sense 
are inseparable parts of the same Whole. When a person enters the world of law 
within the framework of a dualistic or pluralistic view of the human world, they leave 
the world of morality and, thus, the original dimension of the abode of moral 
conscience. If we start from our everyday rational, i.e. differentiating perspective, in 
which morality and law are predominantly or completely separate normative areas 
(dimensions), we find that the moral dimension creates conscientious objection, 
while the legal dimension generally prohibits it systematically. Only in exceptional 
cases can conscientious objection be legally permissible to a limited extent in some 
areas. 
 
For a true understanding of conscientious objection, it is not only important to know 
its authentic moral nature, but above all to know that conscientious objection in its 
authentic manifestation is not a moral "right" as it appears in rationalized (reflected) 
morality or ethics, but in its authenticity is the moral duty of the individual. In fact, 
the individual must express his rejection of the law when he is prompted to do so 
by a moral necessity arising from his moral conscience. As a rule, people are of 
course, aware that we must obey legal norms even if our morals contradict them. 
However, if the moral imperative and the resulting inner sense of duty of the 
individual are so strong in a particular case that the individual assesses and decides 
that he or she must follow their personal moral imperative and not the law, this leads 
to an objection of moral conscience, which manifests itself in the disregard or 
violation of one or more legal norms. In such a case, the tension between the 
unacceptable legal norm and his personal moral attitude is so strong and unbearable 
for the individual that he decides to resolve this inner conflict in favour of his own 
morality, even though he knows that he will receive a legal sanction as a result. In 
this context, the concept of morality is to be understood in a broader sense, which 
also includes various philosophical, religious and other values or world views that 
are essentially linked to and conditioned by the moral core of the human being, i.e. 
his moral conscience.6 
 
6 By way of illustration, it should be noted that, for example, conscientious objection to military service in the United 
States and also in other Western democracies was initially only recognized on the basis of individual religious 
grounds (Bay, 1971, p. 238). 
10 MEDICINE, LAW & SOCIETY Vol. 18, No. 1, April 2025   
 
As soon as we get to the moral core of a person, we can no longer identify individual 
rights and duties in this core separately and correlatively7 because both merge here 
into a unity for which it is impossible to find a completely adequate term in the 
established terminology. In the following, I call this unity of right-duty "moral duty", 
which is the inner tendency of an individual to act in accordance with his moral 
conscience in such a way that he must and may act in a certain way at the same time. 
From a moral point of view, the individual feels and understands his moral duty to 
conscientious objection as his moral right, which from his subjective point of view 
justifies his disagreement with the law and thus, his individual rebellion against the 
legal norm even more strongly. Thus, if in the sphere of law, right and duty are seen 
as two separate and correlative phenomena,8 in the deeper cognitive spheres of the 
human world (e.g., morality, intuition, belief in God) the relationship between right 
and duty is increasingly one of interpenetration, fusion and ultimately even identity. 
 
5 Consequences of Conscientious Objection 
 
Regarding the question of the consequences of an individual's behaviour according 
to his moral conscience, the question arises whether actions based on moral 
conscience are to be evaluated subjectively or objectively. From the monistic-holistic 
sense, the answer is superfluous, because the differences between phenomena and 
perspectives are transcended in the unified Whole. However, since our discussion 
must naturally be considered within the context of an interpersonal, emotional-
rational and social framework, it makes sense to find an answer within this 
framework that best corresponds to the nature of morality and law in their 
confrontation brought about by the objection of moral conscience. 
 
In such a context, three criteria must be considered in order to understand and judge 
the permissibility of acting according to conscience. First, a subjective criterion is 
crucial for understanding conscientious action, for only if we know the subjective 
impulses and motives of a person's moral conscience can we understand his reaction 
to them. However, regarding the question of the permissibility of a person's 
 
7 The correlativity of rights and duties is particularly characteristic of law (various forms of this correlativity are 
described, for example, by Hohfeld, 1923, pp. 23 ff., 65 ff.), which, as a predominantly rational formation, is also 
based on many other dualisms or correlations, such as creditor - debtor, plaintiff - defendant, conviction - acquittal. 
8 Leonid Petražicki, one of the pioneers of the psychological conception of law, states that the imperative-attributive 
(duty-right) dualism is one of the essential elements of law as such, while in the dimension of morality only 
imperative emotions appear in people (quoted by Podgorac, 1981, pp. 64, 79). 
M. Cerar: Conscientious Objection (General Aspects and the Slovenian Regulation of 
Conscientious Objection to Abortion) 11.   
 
 
behaviour based on their moral conscience, we encounter two situations in which 
we must apply two additional criteria: 
 
a. At the level of legal judgment, the decisive objective criterion is the one that 
informs us whether such conduct of an individual is in accordance with the law, 
or, if we are in an area where the law allows greater leeway for the free conduct 
of legal subjects, whether such conduct of an individual is at least not contrary 
to the law. In this case, the subjective aspects of the individual's moral thinking 
and feeling may be relevant as accompanying circumstances that may affect the 
aggravation, mitigation or even waiver of a legal sanction. As a rule, however, 
they cannot change the objective fact that the individual has violated one or 
more legal norms by refusing to act for reasons of moral conscience. 
 
b. At the level of objectified moral judgment, which is formed within the 
framework of an externalized collective morality (e.g., village morality, worker 
morality, student morality or a morality formed on the basis of a particular 
professional code of ethics), the objective criterion is also decisive. In a 
community or a professional group or an organization, the moral judgment of 
the majority is decisive. However, this objective criterion is naturally much more 
strongly interwoven with the subjective evaluations and prejudices of the social 
group that accepts moral judgment than in law. Unlike in law, where, for 
example, a judge judges the illegality of conscientious objection on the basis of 
officially published and content-specific legal and other rules, in the field of 
collective morality, there are generally far fewer clear criteria (even ethical codes 
are generally shorter and less explicit and unambiguous than legal and other legal 
norms) on that a social group or its representatives can rely to decide whether 
or not conscientious objection is genuinely moral. 
 
In the following, the consideration of conscientious objection as such will be limited 
mainly to the relationship between the moral and the legal dimension. In this 
relationship, law and a person's moral conscience can either coincide in content (e.g., 
legal and moral condemnation of murder) or be indifferent to each other (e.g., legal 
regulation of units of measurement or a critical moral reaction to a friend's 
unfulfilled promise of a family visit), or they can be in conflict with each other (e.g., 
a person's moral conscience opposes a legal prohibition, commandment or 
sanction). Freedom of conscience, which is highly legally recognized in democratic 
12 MEDICINE, LAW & SOCIETY Vol. 18, No. 1, April 2025   
 
political systems where human rights and the rule of law are respected, includes the 
moral conscience of the individual, but in any legal system, freedom of conscience 
is also limited by the rights and freedoms of other subjects, as well as by the public 
interest and similar legally protected values. 
 
If an individual violates legal norms by acting out of conscience, this must be 
punished with a prescribed legal sanction, unless the law expressly provides for other 
possibilities. Even if an individual claiming conscientious objection still sincerely 
believes that he is acting (morally) right and that the legal norms are unjust, 
unacceptable, etc., that individual implicitly agrees to respect the legal norms of that 
(state-organized) society by his conscious participation in organized society. If we 
agree to a different logic, i.e. the logic of the legal arbitrariness of individuals, we 
thereby deny the possibility of a legally organized society. The latter is imperfect in 
many ways (like everything in this world) and causes many frictions between the 
personal moral views of individuals and the positive legal regulation, but for a 
sustainable and civilized life in society such a solution is necessary. Of course, a 
particularly authoritarian or totalitarian, and therefore downright inhumane and 
violent, law can at some critical point lead to wider and more serious collective forms 
of discontent and even rebellion by members of society. 
 
The conflict between personal morality and the legal system can be vividly illustrated 
by the example of infanticide. If, for example, a mother voluntarily takes the life of 
her mentally and physically severely handicapped newborn child, she does so 
because she (subjectively) believes that this is the best solution for her and, above 
all, for the newborn child. The mother's moral assessment is that this action has 
more good than bad (evil) consequences. Her conscience, which has dutifully led 
her to such an act, is a central moral criterion for her, so the mother has a 
predominantly "clear conscience", at least from a subjective point of view,9 even if 
she has committed murder (infanticide) according to legal and ethical standards. 
According to the legal criteria under which infanticide is a criminal offence, it is 
 
9 Of course, the mother's moral conscience, in conjunction with her rational consciousness, is usually internally torn 
in such a serious case, as she is aware of the pronounced value bipolarity of such an act, which represents "rescue" 
on the one hand"and the arbitrary killing of another human being, even her child, on the other. In such and similarly 
difficult cases, "clear conscience" therefore only means that the mother's subjective balance of emotion and rational 
judgment was predominantly oriented towards infanticide, even if she was aware that such a decision would be 
judged as unacceptable and reprehensible, at least predominantly, from the perspective of collective (communal, 
social) morality. 
M. Cerar: Conscientious Objection (General Aspects and the Slovenian Regulation of 
Conscientious Objection to Abortion) 13.   
 
 
indisputable that the mother has to bear the criminal responsibility for this act and 
must be punished accordingly. Her legal status as a natural person gives her the right 
and the duty to be treated in accordance with the law of the state to which she 
formally belongs. If, for example, a medical doctor were also to assist the mother in 
killing the child, he would not only be acting unlawfully but also against medical 
ethics, whereas on his intimate personal moral level, his own moral conscience 
would also be decisive as a criterion for him. 
 
Remaining at the level of comparing morality and law, we can say that authentic 
morality (as opposed to ethics and law) is essentially individualistic. Of course, 
morality is strongly socially conditioned, since the individual inevitably forms his 
moral attitudes through the process of socialization. However, every moral decision 
that an individual makes is always the result of their personal (intimate, subjective) 
judgment. In contrast to morality understood in this way, law is by its nature and 
essence a social, collective phenomenon. For this very reason, law also assumes, to 
a certain extent, the function of an enforced collective moral or ethical evaluation of 
the individuals’ actions. If the individual cannot be instructed or convinced that, for 
example, murder, theft and lying are immoral actions because his moral conscience 
is not sufficiently developed in this respect or is deformed due to various social and 
other factors, at least the majority of such actions must also be prohibited by law 
(e.g., as criminal acts such as murder, theft or slander), whereby it is logically and 
institutionally assumed that every psychophysically sufficiently developed (adult) 
individual must be subject to such legal norms. 
 
Kant and Hegel were among the first to systematically reflect in legal philosophy on 
such a necessity of the subordination of a member of society to the law of that 
society and in their specific way provided a legal philosophical basis for the legal 
principle of generality and consequently the principle of legal equality in modern law. 
Hegel (1989, p. 100) believed that the legal sanction imposed on a criminal is not 
only just in itself, but is simultaneously the right of the criminal himself, grounded 
in his existing will, in his behaviour. It follows from the criminal's mental act that 
the legal punishment is something general, that with it a certain law is established 
which he has recognized for himself and under which he can therefore be subsumed 
under his right (Hegel, 1989, p. 100). 
 
14 MEDICINE, LAW & SOCIETY Vol. 18, No. 1, April 2025   
 
Hegel's conclusion, which refers to the objection of conscience, also fits in with this. 
Hegel describes those groups of people (above all certain religious communities) 
who do not agree with the fulfilment of a state-imposed legal duty to defend against 
the enemy as active members of civil society. Concurrently, however, Hegel believes 
that they cannot be members of the state because of their failure to recognize state 
obligations (Hegel, 1989, p. 389). To a certain extent, the state is tolerant towards 
these people and allows them to fulfil their civic duties in other ways (Hegel, 1989, 
p. 389). This is in line with the above statement that such disputants do not enter 
the dimension of (national) law in this respect, but remain only within the framework 
of morality according to their own view. In such a case, legal punishment is not their 
right because, from their authentic moral point of view, external punishment is not 
relevant to them. This does not mean that the community or society cannot punish 
them, but it does mean that they cannot punish them in an authentic moral way, 
because the only truly authentic moral sanction (punishment) is only the suffering 
of their (own) guilty conscience. 
 
Thus, in such a Hegelian spirit, when we consciously enter the dimension of law, the 
legal sanction for our illegal action becomes not only our right, but also a 
corresponding duty for the one who is obliged to determine and guarantee it. This 
is vividly illustrated by Kant's (1967, p. 139) hypothetical case of society's self-
dissolution. Even if a society decided to dissolve itself (e.g., all its members would 
leave the island on which they lived and scatter all over the world), according to 
Kant, every murderer awaiting execution in prison should be punished beforehand 
(with the death penalty), for only then would everyone get what he deserved by their 
deeds, and the blame would not fall on the collective people. In this respect, we must 
agree with the findings of Zupančič (1985, p. 62), who says that the criminal has 
violated the norm in concreto and the society that would refrain from punishing this 
criminal would violate the norm in abstracto, and the latter violation deserves a much 
stronger condemnation. An abstract violation of a norm has a generalizing effect pro 
futuro, while a concrete violation is an individual act irretrievably lost in the past 
(Zupančič, 1985, p. 62). The individual act of a criminal should not be condemned 
until the abstract norm is generally respected by society (ibid.). 
 
As indicated above, the essential difference between a legal and a moral sanction is 
that the former can only be imposed on a person "from the outside" (which does 
not mean that the punished person cannot internalize it, i.e. accept it autonomously), 
M. Cerar: Conscientious Objection (General Aspects and the Slovenian Regulation of 
Conscientious Objection to Abortion) 15.   
 
 
whereas an authentic moral sanction can only act "from the inside" - i.e. as an auto-
sanction in the form of suffering under a guilty conscience. The only authentic moral 
sanction is therefore one that man imposes on himself10 after he has realized that 
his thinking or behaviour violates his own moral conscience and duties. A moral, 
ethical or legal sanction imposed on him "from the outside", i.e. by other individuals 
and the wider community or social institutions, is not actually a moral sanction for 
him in the proper sense, but only a more or less expected external reaction of others 
to his thinking or behaviour. If an individual acts morally according to his own 
judgment, his own moral conscience and his own duty, then everything that 
contradicts this is extra-moral (a-moral) for him. In other words, it is not anti-moral 
(which is usually referred to as immoral), because, from an individual subjective 
point of view, a person can only be anti-moral if they themselves act in contradiction 
or disagreement with their own moral conscience. A morally acting person therefore 
judges the morality of another person not only from the perspective of his own 
morality but also, as far as possible, from the perspective of the morality of this 
specific other person. This does not mean that a morally acting person will not act, 
e.g. admonish, criticize or otherwise take verbal or physical action against someone 
whom they themselves judge to be acting immorally, but in doing so they will only 
be fulfilling their moral, ethical or legal duty and not denying from the outset the 
fact that the perpetrator of the immoral behaviour may also be acting entirely in 
accordance with their own moral conscience. Although it may sound paradoxical, a 
person who acts sincerely in accordance with his moral conscience should be 
respected in this regard, even if simultaneously we do not respect him or even 
strongly condemn him from the point of view of our different personal morality, the 
morality of the community and ethics or law. 
 
From the point of view of the dualistic and pluralistic ontological conception 
mentioned above, morality is also only one of many normative dimensions of an 
infinitely plural world and is also infinitely dual (plural) in itself. The fundamental 
dualism of morality manifests itself in the distinction between good and evil and 
then in the positive and negative definitions of the innumerable manifestations of 
good and evil. Since the balance of good and evil never rests in man as an imperfect 
 
10 The suffering of a guilty conscience as an inner moral punishment of a person manifests itself in the human 
psyche in various ways, but can also manifest itself externally in various forms, e.g. when a person inflicts physical 
pain on himself due to feelings of guilt, verbally condemns himself in front of others, renounces certain advantages, 
isolates himself from society, etc. 
16 MEDICINE, LAW & SOCIETY Vol. 18, No. 1, April 2025   
 
and, at the same time dual and plural being, it happens repeatedly with every 
individual that he doubts his moral convictions and attitudes and the moral actions 
he performs and experiences them, especially in rational reflection, at one time as 
moral and at another time as immoral. This can be illustrated by the opposing 
principles of yin and yang as they are understood in Chinese Taoist thought (Kjels, 
1990, pp. 43-71), which is characterized by the fact that each of them, even in its 
greatest intensification, always contains a part of the opposite principle. On the one 
hand, this reminds us that each individual's authentic moral values and attitudes can 
change over time depending on social, personal and other circumstances, and on the 
other hand, it tells us that each person's authentic moral choice carries at least a hint 
of uncertainty or doubt that it is definitely right. 
 
There are also many collective (communal, etc.) moral codes that represent 
established (objectified) average moral values and norms in a given time and space. 
But any territorial, class- or group-based or otherwise socially bounded collective 
morality is in fact inauthentic, so it can somehow be categorized between authentic 
morality and law. It is inauthentic because not all its members share common moral 
values and attitudes. Even if, for example, in a village, a religious community, a 
student organization or in the field of public administration, there are shared moral 
values and norms among the members of such a social community or organization, 
this does not generally mean that all these members inwardly (subjectively) fully 
identify with these values and norms. In fact, some or many of them may have 
completely different personal moral views, but for fear of being criticized or 
excluded from the community or organization, they submit to the prevailing moral 
values and views, which are either an expression of the moral views of the majority 
or the imposed views of the leading members of the community or organization. 
Such collective morality is on the one hand consensual, a compromise, but it can 
also be imposed by dominant individuals or leading groups, so that it cannot be 
defined as authentic morality. On the other hand, such a collective morality differs 
in many respects from law, which is characterized by many formal and substantive 
peculiarities. 
 
There is a genuine collective morality only to the extent that the individual moral 
concepts are clearly similar in their value and rational content. Although they have 
the same deepest origin, which is intuitively perceptible, they are only markedly 
similar at the level of the cognitively limited and, therefore subjective superficial 
M. Cerar: Conscientious Objection (General Aspects and the Slovenian Regulation of 
Conscientious Objection to Abortion) 17.   
 
 
feeling and thinking of individuals. Therefore, (every) authentic moral community 
comprises people who value, feel and think in a markedly similar (related) way. Such 
a community can be called an authentic moral community. This does not mean that 
the morality of such a community is objectively or absolutely correct, for each such 
community defends its own morality. Nor are such true moral communities 
territorially or functionally rounded, for moral kinship knows no spatial, social-
organizational or temporal boundaries. The common denominator of true moral 
communities is therefore a similar (related) moral evaluation, thinking and 
behaviour, so that these communities are not connected to each other, e.g. 
territorially (village community, etc.), class-wise (farmers, workers, townspeople, 
etc.), profession-wise (physicians, judges, civil servants, journalists, etc.) or within 
another territorial, functional or institutional framework. 
 
It is also important to understand that no code of professional ethics can correspond 
to an authentic morality since it is the product of an agreement within such 
communities, in which there can be no real (complete) moral consensus due to the 
diversity of its members.11 A code of ethics is merely an expression of a certain 
objectified morality, which usually comprises average existing and agreed 
(compromise) moral norms, which are also supplemented by certain formal 
elements, such as the adoption and publication of the code in written form, the 
formal definition of certain bodies (e.g., ethics committees) and procedures and 
sanctions for cases of breaches of ethical norms. Significantly, the content of ethical 
codes naturally influences the development of authentic moral views of individuals, 
especially those who are (professionally) bound by the respective code, just as, on 
the other hand, the authentic moral views of individuals influence the content of the 
codes and also the law. 
 
Finally, in this context, we do well to remember that authentic morality is the most 
internalized compared to collective (communal) morality and law, since its values 
and views are most closely linked to the deeper psychological and spiritual layers of 
a person (intuition, emotions, sense of distinction between good and evil and other 
psychological feelings), while collective morality and, to an even greater extent, law 
 
11 Thus, for example, we can in principle agree with the argument that a conscetious objection is unethical when 
healthcare practitionars treat patients only as means to their own spiritual ends (Dickens, 2009, p. 337), but this 
objective approach is not persusasive for objector who according to his or her spiritual view sincerely morally feels 
and beleives that his or her concrete treatment of patients, which others condemn as unethical, is morally justified. 
18 MEDICINE, LAW & SOCIETY Vol. 18, No. 1, April 2025   
 
are based on rational and other more external human and social factors. This means 
that authentic, personal morality is a much stronger inner motivating factor for a 
person than collective morality, ethics and law. This can often be seen in 
conscientious objection. For example, conscientious objectors who justify their 
disobedience on personal moral, moral-religious and similar grounds (e.g., regarding 
issues of euthanasia, abortion or pacifism) are much more persistent in their 
behaviour and willing to make greater personal sacrifices than those objectors who 
justify their behaviour in the more external spheres of worldview. 
 
6 Some Basic Guidelines for the Legal Judgment of the (Right to) 
Conscientious Objection 
 
Here, the focus is on six basic guidelines that are important for the legal evaluation 
or assessment of conscientious objection. All these guidelines must be considered in 
the interrelated and wider context of all the factors and circumstances of each 
specific case. 
 
First, conscientious objection is only legally permissible to a limited extent. The state 
can indeed eliminate the need for conscientious objection if it regulates social 
conditions through legal acts in such a way that the goods for which potential 
conscientious objectors stand up are generally protected. For example, there is no 
need for conscientious objection to military service if the state does not prescribe or 
abolish general service. However, if a legal act directly guarantees the right to 
conscientious objection, then such a right can only have the character of an 
exception to the rule. The general legal authorization of conscientious objection 
would be inherently contradictory from a legal standpoint, since conscientious 
objection is by its very nature directed against the law. The law must therefore limit 
the right to conscientious objection, if it is expressly defined as such, at least by a 
relatively restrictive definition of the scope of its enforcement and by prohibiting 
the objector from interfering with the rights of other legal subjects. 
 
In the Constitution of the Republic of Slovenia, such a restrictive approach is found 
directly in the second paragraph of Article 123, which restricts conscientious 
objection only to the performance of military duties,12 and indirectly and in principle 
 
12 Article 123 (Duty to participate in national defence) of the Constitution reads: ”(1) Participation in the national defence 
is compulsory for citizens within the limits and in the manner provided by law. (2) Citizens who due to their religious, philosophical, or 
M. Cerar: Conscientious Objection (General Aspects and the Slovenian Regulation of 
Conscientious Objection to Abortion) 19.   
 
 
in Article 46,13 whose provision restricts the right to conscientious objection by 
prohibiting interference with the rights and freedoms of other persons, but generally 
leaves it to the legislator to define the concrete cases in which conscientious 
objection may be invoked. The legislator is, therefore, responsible for correctly 
assessing the nature of conscientious objection and defining its scope. 
 
Second, in the concrete assessment of the sincerity, factual basis and legal 
admissibility of a conscientious objection, in cases where such an objection is 
generally legally admissible under certain conditions, it is appropriate for the 
representative of the authority to decide in favour of the individual's expressed 
(subjective) point of view in cases of doubt and to recognize his right to 
conscientious objection. The sincerity and subjective validity of the conscientious 
objector's expressed point of view cannot, of course, be entirely reliably and 
truthfully verified. Thus, the person deciding on the refusal must, on the one hand, 
endeavour to understand and take into account the individual's (subjective) reasons 
for the refusal and, on the other hand, prevent a possible deliberate deception and 
dissimulation of the individual.14 
 
The point of the individual on which he bases his conscientious objection must of 
course also be assessed in the light of all legal criteria, in particular the relevant 
provisions of legal acts and established legal practice, and only a conscientious 
objection which meets these criteria should be upheld. In case of doubt, if the 
competent person is not sure whether the conscientious objection is authentic and 
meets the legal criteria, he or she must, as stated, give precedence to the statements 
or interpretation of the objector.15 Such a position sensibly follows the general 
democratic norm of the recognition of freedom, according to which the individual 
in a democratic system and in a state governed by the rule of law is in principle 
 
humanitarian convictions are not willing to perform military duties, must be given the opportunity to participate in the national defence 
in some other manner.” 
13 Article 46 (Right to conscientious objection) of the Constitution reads: ”Conscientious objection shall be permissible in 
cases provided by law where this does not limit the rights and freedoms of others.” 
14 To find out whether a conscientious objection is authentic (true) in a particular case, we should not be satisfied 
only with the superficial assertions of the person concerned, but we must find out why and to what extent an 
individual's belief in the rightness of his behaviour is central to his personal dignity or self-respect, according to Raz 
(1986, pp. 280-281). 
15 Murray (1971, p. 334), for example, thinks along the same lines when he says, with regard to selective conscientious 
objection, that the right to (selective) conscientious objection must also be guaranteed for the possible mistaken 
belief of the individual, because otherwise it cannot be said that this right is guaranteed at all (this statement can 
also be applied to conscientious objection in general). 
20 MEDICINE, LAW & SOCIETY Vol. 18, No. 1, April 2025   
 
permitted any conduct that is not expressly prohibited by law and that does not 
interfere with the rights and freedoms of other subjects. 
 
The objective (more precisely: objectified) criteria for assessing the validity of 
conscientious objection, which result from legal acts and established interpretations 
and norms of the competent state authorities, appear at first glance to be even more 
important than the subjective criterion, i.e. the will of the objector. This appears 
particularly convincing if one subscribes to the view that the individual's claim to the 
rightness of an act is always also the demand for permission or even authorization 
of this act by others (Prosch, 1971, p. 218). In this case, the universalistic tendency 
of an individual's expression or behaviour may pose a threat to a certain part of the 
legal order (e.g., if it leads a large number of like-minded individuals to behave 
illegally). However, the fallacy of such a position is revealed by the fact that in such 
a case - according to the definition presented in the introduction – it is no longer 
conscientious objection, but one or another form of civil disobedience by which an 
individual calls for general criticism or rebellion against the existing system. As 
explained in the introduction, conscientious objection does not in itself have such a 
universalist and activist tendency, so it does not in itself threaten the existence of a 
valid legal regime. Considering these and other characteristics of conscientious 
objection, it is therefore more appropriate, in general and especially in cases of 
doubt, to emphasize a subjective criterion in its assessment, i.e. the identification and 
evaluation of the authentic will of the objector. However, the subjective criterion 
should not prevail if the person making the conscientious objection is insincere and 
manipulative, or if his or her justification for the conscientious objection is clearly 
exaggerated or unreasonable. 
 
Third, when deciding on the permissibility of conscientious objection, certain limits 
of principle must always be taken into account in addition to the limits expressly laid 
down by law. It necessarily follows from the previous discussion that the right to 
conscientious objection cannot encompass those phenomena which, although 
related to this form of protest, are nevertheless substantially different, such as 
various forms of civil disobedience. It has also already been explained that the right 
to conscientious objection cannot be a general human right in the sense that it would 
legally allow the individual to assert conscientious objection in all legal relationships 
and that it must not interfere with the rights of other people as legal subjects. In 
M. Cerar: Conscientious Objection (General Aspects and the Slovenian Regulation of 
Conscientious Objection to Abortion) 21.   
 
 
addition, the following two general restrictions on the right to conscientious 
objection must be considered: 
 
a) A behaviour or position that compels a person to conscientious objection must 
be imposed on him in whole or at least in part (a typical example is the obligation 
to serve in the army), otherwise, the objection cannot be invoked. For example, 
if someone voluntarily and knowingly chooses the profession of judge and the 
role of criminal judge, they cannot claim conscientious objection to imposing 
more severe criminal sanctions without an explicit legal basis, even if their 
objection may be morally understandable and acceptable in individual cases. Of 
course, exceptional or complex situations are also possible in such cases, for 
example if only a narrower and outstanding area of a judge's powers is morally 
unacceptable to him or if, for example, a severe penalty (e.g., life imprisonment 
or the death penalty) was only imposed by law after he took office. It is therefore 
necessary to resolve such cases by considering all specific characteristics and 
circumstances, of course, taking into account the applicable legal regulation. 
b) The individual's conscientious objection must be based on his conviction that 
he is protecting the highest values, such as life, health, safety, freedom or 
privacy. In this case, the subjective criterion (the value judged by the individual) 
is the main criterion in the evaluation, but the reasons of the conscientious 
objector for the refusal must not be false or, manifestly exaggerated or 
unreasonable. 
 
Fourth, conscientious objection can be expressed both actively and passively.16 For 
example, the objector may actively oppose the regulation through certain outwardly 
recognizable conduct (e.g., protesting in writing or orally against his conscription 
into the army) or passively express his objection (e.g., a physician who, without 
justification but clearly consciously and knowingly, refrains from providing medical 
care to a terminally ill patient). The indication that conscientious objection can be 
expressed actively or passively is of practical importance, especially if the objector is 
 
16 This distinction must not be confused with the difference between negative and positive conscientious objection 
(see Saporiti, 2015, pp. 420-423), where negative conscientious objection consists in the faculty of neglecting a 
prescribed legal duty for reasons of moral conscience (for example, the physician’s conscientious objection to an 
abortion), whereas positive conscientious objection can consist in the capacity to perform an act prohibited by law, 
or in the power to enact a valid legal act for reasons of conscience, even though the law would not normally uphold 
the effect of the act - such a power could be attributed, for example, to the Constitutional Court in the context of 
constitutional review (Saporiti, 2015, p. 422-423). 
22 MEDICINE, LAW & SOCIETY Vol. 18, No. 1, April 2025   
 
passive in that he does not wish to explain his objection. In such cases, it is important 
to check whether the objector is concealing their true reasons for refusal due to 
shame, prejudice, fear or similar reasons. 
 
The principle of recognizing the possibility of passive conscientious objection 
obliges us, in the case of a violation of the legal norm, to treat an accused at least 
potentially as a possible objector on the basis of his moral conscience. We must do 
so despite his passive behaviour if there are indications that his moral conscience 
may be a reason for such behaviour. The competent official who decides in such a 
case must therefore use all permissible and appropriate means and methods to 
determine, on the basis of the circumstances of the case and an appropriate 
discussion with the person concerned, whether his conduct is to be regarded as a 
conscientious objection. Of course, no one may force a person to define an act as 
conscientious objection, even if there are convincing external indications of this. 
 
From a legal point of view, in cases where an explanation (justification, reasoning) 
for the objection on the part of the opponent is completely lacking (such cases are 
of course rare in practise), it is decisive whether the legal acts expressly prescribe 
admissible grounds for the objection and their justification. If the regulations are 
silent in this respect, it makes sense, in the spirit of acting in favour of the individual's 
freedom of conscience as already explained, to legally take into account an objection 
of conscience for which the objector has not given any explanation, if there are 
convincing external indications that it arises from his moral conscience. 
 
Fifth, in interpreting the right to conscientious objection, a distinction must be made 
between the moral and the legal understanding of conscientious objection. In 
addition to what has already been said, it should be emphasized here that the law 
always presents its own concept of conscientious objection. This can be seen in the 
already mentioned example of the second paragraph of Article 123 of the 
Constitution of the Republic of Slovenia, according to which citizens who are not 
willing to perform military duties due to their religious, philosophical or 
humanitarian convictions17 must be given the opportunity to participate in the 
national defense in other ways. This provision has not been relevant in Slovenia for 
 
17 As I said, in a broader sense, the (value) intersection of these views relevant to conscientious objection can be 
characterized by a common denominator: morality. Only when the various forms of these views are differentiated 
as the moral conscience of a concrete individual can such views be asserted as conscientious objection. 
M. Cerar: Conscientious Objection (General Aspects and the Slovenian Regulation of 
Conscientious Objection to Abortion) 23.   
 
 
a long time, as compulsory military service was abolished more than 20 years ago. 
But this example of a legal regulation clearly shows how the legal norm (in this case 
a constitutional provision) refers to extra-legal sources to justify a legally permissible 
conscientious objection, while the concrete relevance of these sources is ultimately 
defined by the law, more precisely by legal decisions accepted by competent state or 
other authorities or authorized individuals.18 
 
In the event that the declaration or conduct of a person asserting a conscientious 
objection is not decided by an authorized person, commission or state body that 
would expressly legally permit or deny that objection, it must be assumed that the 
declaration or conduct of the holder expressing the conscientious objection is the 
individual legal act on the basis of which he exercises that specific right. For example, 
in order for a healthcare worker's conscientious objection to be taken into account 
in Slovenia, it is sufficient under the law for the healthcare worker to inform the 
institution in which he or she works (more on this below). In the event of a legal 
dispute over a particular conscientious objection, the final decision on the 
admissibility of such an objection will of course always lie with the person or 
institution responsible, with the court deciding in the last instance. 
 
Despite the fact that the authentic moral understanding of conscientious objection 
is subjective, this understanding is objectified in law, since it is based on legal criteria 
which naturally take moral criteria into account to a large extent. This does not 
contradict the point that the subjective view of the individual takes precedence in 
law when it comes to assessing the validity of conscientious objection, because this 
subjective view is already a priori placed in an objectified (legal) context within the 
framework of the law. 
 
Sixth, if conscientious objection is legally impermissible, the objector must be found 
guilty by operation of law, unless it is a case of minor social importance in which the 
state waives its legal consideration. After the conviction, it is then possible and 
 
18 At the time when general (compulsory) conscription was still in force in Slovenia, against which conscientious 
objection was permissible, according to Article 43 of the then valid Conscription Act (Official Gazette of the 
Republic of Slovenia, No. 108/02 - official consolidated text), the validity of each specific conscientious objection 
was decided by a special commission in which a social worker, a psychologist, a doctor and representatives of 
administrative bodies responsible for internal affairs, defence matters or protection and rescue made decisions. Their 
concrete decision on conscientious objection meant the legal recognition of conscientious objection and thus the 
reduction of concrete moral conscientious objection to a common denominator which represented an intersection 
of the various professional, legal and personal criteria of the members of the commission. 
24 MEDICINE, LAW & SOCIETY Vol. 18, No. 1, April 2025   
 
appropriate, if the particularities of the individual case permit or require it, to apply 
mitigating mechanisms to the legal sanction. If the judge were to acquit the 
conscientious objector in the case of conscientious objection, he would thereby deny 
him his existence within the framework of the law. With Hegel, one can 
philosophically say that, on the one hand, the judge would deprive him of 
condemnation and punishment as his legal rights; on the other hand, he himself 
would violate the law (the latter violation could also mean a legally inadmissible 
conscientious objection by the judge under the conditions mentioned). 
 
In the liberal and humanistic spirit of modern law, this categorical position of Hegel 
must admittedly be softened, for in the case of an inadmissible objection, a legal 
conviction suffices for "fulfilment in the world of law", while the penalty may or 
may not be imposed (the judge may also acquit the convicted person of the penalty). 
This view, which sees at least part of the sanction (punishment) already in the 
conviction itself, is controversial. Still, it makes sense in cases in which the exercise 
of conscientious objection does not lead to harmful consequences or these are 
minor. It, therefore makes sense for the judge or another state authority to condemn 
the unlawful conscientious objection legally but only impose a mild penalty for it or 
not impose the penalty at all if the legal system permits this. Of course, remission or 
mitigation of punishment for conscientious objection should not be a fundamental 
legal guideline or principle but only an option in specially justified cases. 
 
7 The Refusal of Artificial Abortion on Grounds of Conscience in the 
Slovenian Constitutional and Legal System 
 
The last part of this paper will consider the case of conscientious objection to 
artificial abortion in the Slovenian legal system. Article 55(1) of the Slovenian 
Constitution stipulates that the decision to give birth to a child is free, and this 
provision also includes the right of women to an artificial abortion.19 A doctor's 
refusal to perform an abortion on grounds of conscience is therefore a refusal against 
a constitutional legal norm (and not only against a legal norm) in the Slovenian legal 
 
19 Although the constitutional text itself does not explicitly mention the right to abortion, this right is included in 
this provision. The official explanation of the draft constitution of the Republic of Slovenia of December 19, 1991, 
states that the freedom in Article 55 "also includes ... the right of women to an artificial termination of pregnancy." 
It also states that the State must ensure the availability of medical and other services for the exercise of this and 
other rights covered by this freedom. This interpretation of Article 55 of the Constitution has been consistently 
followed in practice by the relevant government bodies, health institutions and individuals. 
M. Cerar: Conscientious Objection (General Aspects and the Slovenian Regulation of 
Conscientious Objection to Abortion) 25.   
 
 
system. Concurrently, the legal basis for such conscientious objection in Slovenia is 
already enshrined in the Constitution, as Article 46 of the Constitution states that 
conscientious objection is permitted in cases defined by law if it does not restrict the 
rights and freedoms of other persons.20 Despite the fact that physicians’ right to 
conscientious objection is more precisely defined at the legislative level (according 
to the law, conscientious objection is also allowed for other healthcare workers, but 
for the purposes of this article, the focus will be only on physicians’ conscientious 
objection), the legal and general legitimacy of this institute21 is much stronger due to 
its explicit general constitutional basis.22 
 
Article 56 of the Health Care Act stipulates23 that a physician or other health care 
professional may refuse to perform a medical procedure if he/she considers that it 
is "not in accordance with his/her conscience and the international rules of medical 
ethics." This is a general right (entitlement) of the physician to invoke conscientious 
objection in relation to his/her medical activity, which means that the physician is 
thus given a legal basis for refusing an artificial termination of pregnancy on grounds 
of conscience. Article 56 also stipulates that the doctor must inform the medical 
institution of his or her conscientious objection. The latter must take the doctor's 
decision into account, while at the same time giving patients the opportunity to 
exercise their healthcare rights, which means that a woman who wishes to have an 
artificial abortion must be provided with the services of another doctor in the 
exercise of her constitutional right. Article 56 also stipulates that a physician (medical 
worker) may not refuse to provide emergency medical assistance. 
 
20 Some general observations on the conditions and limits of medical conscientious objection as an expression of 
the physician's freedom of conscience are presented by Ciuca (2017, pp. 23-24). 
21 As the right to an induced (artificial) abortion is always controversial in a society, the legal right of the physician 
to refuse such or any other medical intervention may also be controversial (see, e. g., Campbell, 2011). Munthe & 
Nielsen (2017) present arguments for and against a legal right to conscientious refusal for healthcare professionals 
and take the position that the idea of a legal right to conscientious refusal in medicine or any other profession is 
either fundamentally incompatible with elementary legal-ethical requirements or implausible because it undermines 
the functioning of a related professional sector (healthcare) or even a society as a whole. On the consequentialist 
and deontological arguments for and against conscientious objection by physicians see e.g. Cummins (2021, pp. 
249-250). 
22 The explicit legal basis for the legal regulation of conscientious objection in Slovenia, as a member of the European 
Union, is also given at international level, in the second paragraph of Article 10 of the Charter of Fundamental 
Rights of the European Union (18 December 2000 – 2000/C 364/01), which states: “The right to conscientious 
objection is recognised in accordance with the national laws governing the exercise of this right. 
23 Healthcare Act (Official Gazette of the Republic of Slovenia, No. 23/05 - official consolidated version, 23/08, 
58/08 - ZZdrS-E, 15/08 - ZPacP, 77/08 - (ZDZdr), 40/12 - ZUJF , 14/13, 88/16 - ZdZPZD, 64/17, 1/19 - odl. 
US, 73/19, 82/20, 152/20 - ZZUOOP, 203/20 - ZIUPOPDVE, 112/21 - ZNUPZ /21 - ZDUPŠOP, 100/22 - 
ZNUZSZS, 141/22 - ZNUNBZ, 76/23 - ZNUZSZ-A, 196/21 - ZDOsk - ZDOsk-A, 84/23 - ZDOsk-1, 136/23 
- ZIUZDS, 35/24). 
26 MEDICINE, LAW & SOCIETY Vol. 18, No. 1, April 2025   
 
This regulation is supplemented by the provisions of the Medical Service Act,24 
which only apply to physicians (medical doctors) and not to other health workers. 
According to Article 49 of this law, a physician may refuse a medical intervention if 
he considers that it is both not compatible with his conscience and that it is not an 
emergency medical aid. This law therefore does not mention the international rules 
of medical ethics as a possible legal basis for the refusal of a medical intervention 
(i.e. for the refusal on grounds of conscience), which is incompatible with Article 56 
of the Healthcare Act. Thus, the question remains open whether in this case, 
according to the principle of lex specialis, only the provisions of the Medical Service 
Act for physicians are to be observed, or whether the provisions of the Healthcare 
Act, which apply to all health care workers, also apply to physicians, which would of 
course be logical and reasonable from the nature of the matter, because it is difficult 
to imagine that physicians in particular, unlike all other health care workers, should 
not refuse a medical intervention that they consider to be a violation of the 
international rules of medical ethics. 
 
The statutory regulation does not expressly provide for a special review of the 
validity of the physician's conscientious objection, e.g., by the doctor's superior or 
another superior organ of the institution or a special commission. Of course, this 
does not preclude the possibility that, if the physician is employed by a healthcare 
institution, his or her superior could not or should not assess the validity of the 
physician's conscientious objection because it would be manifestly insincere, false or 
otherwise objectionable in principle (e.g., if a physician refuses to perform a medical 
procedure on a patient by invoking his or her own conscience when he or she has 
previously performed the same medical procedure on other patients on a regular 
basis). 
 
The legal regulation takes into account a subjective criterion, namely the doctor's 
own assessment of what is consistent with his conscience or medical ethics. It is only 
a genuine (authentic) conscientious objection if the doctor refuses the medical 
intervention in accordance with his moral conscience.25 However, if he does so in 
 
24 Medical Service Act (Official Gazette of the Republic of Slovenia, No. 72/06 - official consolidated text, 68/06 - 
ZSPJS-F, 58/08, 15/08 - ZPacP, 107/10 - ZPPKZ, 40/12 - ZUJF, 88/16 - ZdZPZD, 40/17, 64/17, 49/18, 66/19, 
203/20 - ZIUPOPDVE, 206/21 - ZDUPŠOP, 199/21, 141/22 - ZNUNBZ, 136/23 - ZIUZDS, 35 /24). 
25 Theoretically, this concept overlaps with the concept of identity, according to which one retains one’s moral 
integrity if and only if one’s actions are consistent with one’s core moral convictions. Wicclair (2017) notes that the 
concept of identity is subject to a number of criticisms and objections, such as that it lacks a social component and 
M. Cerar: Conscientious Objection (General Aspects and the Slovenian Regulation of 
Conscientious Objection to Abortion) 27.   
 
 
accordance with the provisions of Article 56 of the Law on Health Care out of the 
conviction that a certain medical intervention is incompatible with the international 
rules of medical ethics, objective criteria already appear in the assessment, since the 
norms of international medical ethics are objectified as common ethical 
denominators and as such are already a matter of rational interpretation. This 
interpretation must take into account the established professional norms and 
standards that are considered compatible or incompatible with international medical 
ethics in medical doctrine and practice. In doing so, the individual does not act 
exclusively according to his (intimate, authentic) moral conscience, but also 
according to rational professional considerations in relation to the objectified criteria 
mentioned above. 
 
At the same time, the question arises as to whether the provision of the Healthcare 
Act sets moral conscience and international ethical rules as a cumulative or 
alternative condition for conscientious objection. The conjunction "and" suggests 
the cumulative conditionality of conscientious objection with both conditions, but 
the logical and purposive (teleological) interpretation of this provision argues rather 
for an alternative standard, because if conscientious objection were always to be 
directed simultaneously against both the physician's (moral) conscience and the 
international medical ethical rules, this would in many cases make the physician's 
authentic objection, i.e. objection solely on the basis of his or her own conscience, 
impossible. At the same time, it could trigger procedures to determine whether a 
conscientious objection is really justified in the case of conduct that is incompatible 
with international medical ethics. In the event of a medical intervention that does 
not comply with the international principles and rules of medical ethics, an even 
more serious problem arises, because in such a case all physicians would naturally 
have to refuse the medical intervention, as they are all bound by international 
professional ethics. In such a case, it would be practically impossible to exercise the 
statutory obligation to ensure the desired medical intervention by another physician. 
 
Since this article focuses primarily on the fundamental theoretical aspects of 
conscientious objection, a more detailed discussion of the legal issues mentioned 
above would go beyond the purpose and scope of this article. Therefore, in 
 
is a concept of subjective rather than objective integrity, etc., but argues that none of the objections establish the 
unsuitability of the concept of identity in the specific context of responding to health professionals’ conscientious 
objections and their requests for accommodation.  
28 MEDICINE, LAW & SOCIETY Vol. 18, No. 1, April 2025   
 
conclusion, I wish to briefly draw your attention to the provisions of Articles 31 and 
81 of the Medical Service Act. Article 31 provides that a physician's declaration of 
conscientious objection must be included in the medical register, while Article 81 
provides that a physician who does not make a declaration of conscientious 
objection under Article 31, but later claims such objection, must be punished with a 
fine of EUR 650 - 1,200. Such a legal regulation is clearly unconstitutional (cf. Šturm, 
2019), as it contradicts the essence of the right to conscientious objection, which is 
a constitutional category and has a permanent and dynamic character, which means 
that it cannot be waived in advance. Conscientious objection cannot be accurately 
predicted in advance, since both medical activity and the moral conscience of the 
individual are by their very nature dynamic, changing phenomena. A physician 
cannot reliably predict which medical interventions his or her conscience will reject 
in the future. There are exceptions, including a physician's conscientious objection 
in the case of an abortion, where such a prediction is usually possible. The latter only 
applies if the physician is absolutely opposed to an abortion, i.e. in any case, but not 
only under certain conditions, which may also depend on unforeseeable life 
situations (e.g., if a physician is prepared to perform an artificial abortion on a 
woman who has been raped, the decisive factor for him will be whether it really was 
a rape, whereby the criterion of his conscience will not necessarily be legal criteria, 
and the physician will also not be able to wait for the final judgment of the court in 
such a case).  
 
8 Conclusion 
 
Conscientious objection is primarily a moral (and not an ethical or legal) category. 
In relation to law, it is the rebellion of an individual against certain legal norms that 
conflict with his moral conscience. Conscientious objection to military service 
differs in several respects from other forms of disobedience to authority, such as 
civil disobedience. As a moral phenomenon, conscientious objection is principally 
the moral duty of an individual to resist a particular political, legal or other norm of 
authority or behaviour. Conscientious objection can only be defined as a right in a 
rationalized reflection of morality (e.g., from the standpoint of community or other 
collective morality or from the standpoint of ethics), and above all in the sphere of 
law, which is based on the dualism of rights and duties (attributive-imperative 
character of law). 
 
M. Cerar: Conscientious Objection (General Aspects and the Slovenian Regulation of 
Conscientious Objection to Abortion) 29.   
 
 
When assessing the (right to) conscientious objection, the following guidelines must 
be taken into account. First, conscientious objection may be legally permissible, but 
only to a very limited extent. Second, in the specific assessment of the sincerity, 
factual justification and legal admissibility of a conscientious objection, the 
subjective view of the objector should generally be given preference in cases of 
doubt. Third, in addition to the limitations expressly laid down in the legislation, 
certain guiding principles must be considered when deciding on the admissibility of 
conscientious objection, including (i) the finding that the situation compelling a 
person to conscientious objection is at least partly imposed on that person, and (ii) 
the finding that conscientious objection is based on the individual's conviction that 
he or she is thereby protecting important life values (such as life, health, safety or 
liberty). Fourth, conscientious objection may be expressed in an active or passive 
form. Fifth, when interpreting the right to conscientious objection, a distinction 
must be made between the (subjective) moral and the (objectified) legal 
understanding of conscientious objection. Sixth, if conscientious objection is legally 
impermissible, the objector must at least as a rule be sentenced to a legal penalty, 
and then it is possible and sensible, if the particularities of the individual case permit 
and require it, to apply mitigating mechanisms to the legal sanction. 
 
In Slovenia, according to the Constitution and laws, a physician can (also) oppose 
performing an abortion on grounds of conscience. In this case, the subjective 
criterion for evaluating his decision is given priority. As a rule, his declaration is 
sufficient for the legal recognition of this decision, even if this does not mean that 
the sincerity and validity of this a person's decision need not be examined at all if 
there are obvious doubts about the credibility of this declaration. In the event of a 
physician's conscientious objection, the medical institution must provide the patient 
with access to another doctor who will perform the desired and permissible medical 
intervention. Concerning the legal regulation of a doctor's conscientious objection, 
a number of legal issues arise, among which the unconstitutional provision of the 
Medical Service Act should be highlighted, according to which a doctor is punished 
with a fine if he invokes a conscientious objection to a medical intervention that he 
has not already invoked in advance by making a general declaration in the medical 
register that he would exercise conscientious objection in such cases. 
 
  
30 MEDICINE, LAW & SOCIETY Vol. 18, No. 1, April 2025   
 
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Povzetek v slovenskem jeziku 
 
Zadevni članek govori o teoretičnih vidikih ugovora vesti. Primarno gre za moralno kategorijo. Z vidika 
prava, gre za posameznikovo neupoštevanje določenih pravnih norm (načel in pravil), ki so v konfliktu 
s posameznikovo moralno vestjo. Ugovor vesti se od drugih oblik neupoštevanja oblasti, kot je denimo 
civilna neposlušnost, razlikuje v več vidikih. Kot moralni pojav je ugovor vesti, najprej in predvsem, 
notranja moralna obveznost posameznika, da se upre določeni politični, pravni ali drugi normi oblasti 
ali vedenja. Ugovor vesti je lahko dovoljen tudi z zakonom, vendar v zelo omejenem obsegu. Ugovor 
vesti je lahko definiran kot pravica samo v racionaliziranem zrcaljenju morale in predvsem v sferi prava, 
ki temelji na dualizmu pravic in obveznosti (atributivno-imperativni značaj prava). V članku so 
podrobneje obravnavani nekateri pomembni dejavniki za pravno presojo (pravice do) ugovora vesti in 
temeljni vidiki slovenske ustavne in pravne ureditve pravice do ugovora vesti pri splavu na strani 
zdravnika. 
 
  
32 MEDICINE, LAW & SOCIETY Vol. 18, No. 1, April 2025