Invincible Ignorance and the Moral Equality of … Lawyers?
Traditionally, soldiers have been expected to concern themselves with questions of jus in bello, but they are generally taken to be exempt from considerations of jus ad bellum. Yet the justification standardly given for this exemption strikes me as deeply unsatisfactory, if not utterly specious. That justification proceeds in terms of some notion of “Invincible Ignorance:” the idea is that soldiers simply are not privy to all of the information that goes into the decision to declare war, and that (therefore?) they ought simply to assume that those who do make such decisions are indeed making the right ones. Perhaps the powers that be know things the rest of us don’t, that justify the decision to go to war. From this is supposed to follow not just the exemption noted above, but, at least according to some authors, the moral equality of soldiers, and perhaps even an absolute duty on the part of military professionals to go to war when ordered to so.
I should say that I’m not sure that I really buy into the moral equality of soldiers, even when they observe the strictures of jus in bello. Surely there’s all the difference in the world – all the moral difference – between the GI fighting on the battlefields of WW II because his country called him to or because he believes in such ideals as duty, honor, country – or even his German counterpart – and the soldier who scrubbed out of the Waffen S.S. (and so perhaps never actually commits a war crime), but who nonetheless fights in full support of Hitler’s expansionist, imperialist, and genocidal ideals. Soldiers are, of course, subject to coercion of many different forms, and I do not want to minimize the power of governments in terms of propaganda and the control of information, but it is nevertheless silly to think that all soldiers are of the first type. I do not claim that we could ever be in a position to make the relevant determinations –that we would ever be able to tell who was who – after the war is over, so we may have no choice but to treat all the enemy soldiers as if they are all morally equal. But notice that while there is certainly ignorance here, it is ignorance on our part, not on theirs. Neither do I find it plausible that officers have an absolute duty to prosecute the wars their government tells them to. At least, I have a difficult time figuring as moral failures the German officers (if any there were) who refused to participate in the invasion of Poland (or Iraqi officers in the invasion of Kuwait), recognizing it for the aggressive act it was.
But in any case, my initial concern will be with neither of these issues directly, but with their justification in terms of Invincible Ignorance. For that notion is deeply problematic. First, as an empirical claim, it seems just plainly false. Surely it’s possible for a soldier – even the lowliest foot soldier – to know in a specific case that the war his government is prosecuting is unjust. Admittedly, there will always be information that the soldier lacks – information that perhaps his government does possess – but what’s required here isn’t all of the relevant information, just enough to form a justified true belief. And surely any individual might have that.
Of course, it will be objected that for all the soldier knows his leaders may yet be in possession of certain facts that establish the justice of the war. Thus, he is entitled to believe, and ought to accept, that the war is in fact just. This argument may raise interesting questions about the degree of subjective certainty that a soldier could ever attain, and how certain one would have to be before one were to, say, refuse to fight. But I think the importance of this worry is easily exaggerated. It seems that it should have been apparent to all but the most casual observer when Hitler’s tanks rolled across the border into Poland in September of 1939 (or Sadaam Hussein’s forces into Kuwait) that what was in the offing was an unwarranted act of aggression. Again, I don’t want to downplay the government’s ability to control information, and the effect that might have, but I also don’t think it’s unreasonable to expect some minimal degree of diligence or awareness, especially where the application of lethal force is involved. Sometimes, when people claim that “they didn’t know,” the only possible response is that they should have known. Ignorance itself can sometimes be culpable.
And in any case, this still wouldn’t solve the problem. Even if we grant that the government will always have access to information beyond that available to the rest of us, more would still be required before we were off the moral hook. Before we could rest secure in the morality of our nation’s wars, we would have to believe that our government would always interpret that information correctly, and would act on it from moral motives and for moral goals. And that, sadly, seems to me to be something that we all have ample reason to doubt.
Finally, I’m uncomfortable with the idea of Invincible Ignorance, because it seems to encourage a head-in-the-sand mentality and to be inimical to the idea of democracy. For if soldiers – who after all in this country are citizens – can never (be in a position to) know whether their country’s wars are unjust, it’s hard to see how or why ordinary citizens – the rest of us – should be better situated. All the arguments just given seem to apply with equal force to ordinary citizens, for nobody seriously thinks that an individual’s I.Q. drops precipitously as soon as he or she joins the armed forces. Admittedly, soldiers are busy people and don’t have a lot of time to worry about such things, but doctors and stock-brokers and plumbers are busy people too, yet arguably they have a responsibility to be aware of what their government is doing, and moreover, we think it’s possible for them to do so. And admittedly, given the speed with which decisions sometimes have to be made and the sensitivity of the information involved, we all of us sometimes simply have to trust that our government is doing the right thing. But ultimately, in our democracy, the responsibility for the wars we fight rests with each of us, and so a claim that we can never know whether those wars are just or not threatens seriously to abrogate that responsibility. And that’s a dangerous thing. I hope I’m not being naďve about the government’s need sometimes to control information given the squeamishness and fickleness of the American public about doing what needs to be done, but if ordinary citizens can’t know whether their nation’s wars are just, we’ve got a real problem. In the first place, they’re the ones who ultimately decide. And in the second, if this is denied, it scuttles the idea of government of, by, and for the people.
Of course, there are differences between what’s expected and required of soldiers and civilians in this regard. Soldiers, for example, are not allowed publicly to express political opinions. We do not allow officers to appear on the evening news and mouth off about which wars ought to be fought, and famously, officers have gotten in trouble for doing so. So one reason we do not require soldiers to stay informed about and do research on the decisions of their government, is that it is in some sense irrelevant what they think or know, for they are not allowed to act on it anyway.
This suggests a different way of understanding the claim of Invincible Ignorance. Rather than treating it as an empirical claim, perhaps we should treat it as a normative claim; that is, we should treat soldiers as if they are imbued with Invincible Ignorance. This may seem patently obvious; so much was probably already implicit in the name anyway. As much as those of us who spend a great deal of our time in the classroom are sometimes tempted to the opposite conclusion, no actual ignorance is truly invincible. Even the most benighted and recalcitrant student can occasionally stumble headlong into the truth, and thus, I suppose, into knowledge. So it may well be wondered why I have taken so long to come around to the point. I can only claim that there seems to be an almost inevitable tendency in the literature to conflate the two senses of the term, and that they need to be kept distinct.
Now, I am entirely in sympathy with this way of looking at things – that Invincible Ignorance should be understood normatively – but notice that it only pushes the problem back. For now we should want to know what justifies this normative attribution. Why should we treat soldiers as if they were in such a state? Ultimately, why should we treat soldiers as moral equals given that at least sometimes they’re not? The answer to this question will be what does the real moral work.
The justification for preventing soldiers from expressing political opinions is, I suppose, clear enough. We don’t want a military that’s allied, say, with any political party, and we think it’s frightfully important that the military do what the civilian authorities (we the people, I dare to hope) tell it to. Can a similar justification be given for attributing Invincible Ignorance to men and women in the service? Some authors have thought so, at least insofar as such an attribution underlies the professional obligations of officers. Thus Paul Christopher argues that “It is as though professional soldiers have taken the following oath: ‘Recognizing that I may never know in advance whether the use of force being contemplated is objectively just, I swear to respond as a soldier on behalf of my nation to all wars that are formally just;’” and that to “permit soldiers to leave military service whenever they do not agree with a political decision” would be to “make a mockery of the very notion of having a standing army”(212). But this is not obviously true. In the first place, while no one doubts the importance of obedience to a properly functioning military, (almost) no one thinks that the obedience required is absolute. Soldiers are generally allowed, even expected, to disobey when obedience would violate the strictures of jus in bello, and it is not obvious that the slope is any slipperier when we come to obedience re jus ad bellum. That is, it might be worried that if soldiers are allowed to opt-out in the case of a war they disagree with, obedience in general will be undermined, and they will be more likely to launch wars when we don’t want them to. But nobody really worries that the disobedience of orders that violate jus in bello will have such an effect, and I really don’t see the difference in this regard when it comes to jus ad bellum.
On the other side of this particular coin, Vitoria writes that “A prince is not able and ought not always to render reasons for the war to his subjects, and if the subjects cannot serve in the war unless they are first satisfied of its justice, the state would fall into grave peril.” But while the American people rightly want their military to go when it’s told to go, if we take seriously the idea of a citizen-soldier, then convincing one’s soldiery ought to be no different from convincing one’s citizenry, which is after all (part of) what is involved in civilian control of the military. And in any case, it would seem that if our government were prosecuting a war such that mass defections (resignations) from the military were a real concern, it might be just as well to rethink that war.
However that may be, this line of argument – that soldiers ought to be credited with invincible ignorance in order to secure their obedience – doesn’t obviously do much to support an attribution of Invincible Ignorance that bolsters or supports any notion of the moral equality of soldiers. Christopher says that “wars fought in accordance with [judgments made according to the accepted formal procedures of a nation] are formally just”(145), and that formal justice is “as close to objective justice as we know how to get”(212). But to whatever extent we can rest confident in such a belief, surely not every soldier in every land is equally entitled to be so sanguine. If you live under a despotic dictatorship, what would entitle you to believe that your nation’s formal justice was in general even close to objective justice? So while there’s something right about this, it needs to be made more precise.
There is at least one other area in society – one profession – where not only do we not expect the members of that profession to concern themselves with the justice of the particular causes they represent, we expect them not to so concern themselves. I’m thinking, of course, of the legal profession. When a criminal defense attorney, say, defends a client, there are certain rules she must follow – she may not knowingly suborn perjury, for example – but within those rules, she is expected – required – to defend her client zealously and to the best of her abilities – without regard for his actual guilt or innocence. The analogy with soldiers is immediate and obvious. Soldiers too are expected to fight within and according to certain rules – the strictures of jus in bello – but so long as they remain within those bounds, they are not expected to concern themselves with the justice of their (nation’s) cause. So you might think that a similar justification can be given in both cases. But as intriguing and suggestive as the analogy is – and it could obviously be deepened and extended in various ways – I’m not sure that it can really save the day. We have an advocacy system of law because we believe that it represents our best chance of seeing justice served. We have a certain amount of faith in the system, and we think it’s frightfully important. But it’s not clear what would be the analogous hope in the case of war. What is the system in which the invincible ignorance of soldiers would play a necessary role? Absent some fond belief that the good guys always win, or the cynical belief that might really does make right, there seems to be no good reason to believe that adopting such an attitude toward soldiers will really conduce to justice, even in the long run.
Well, if this can’t be said for attributing invincible ignorance to soldiers, what can? Is there some greater good in the service of which they play an ineliminable role? Surely it will be said that a military willing to fight for and to take direction from its government is necessary even for the survival of a state. So if we are going to have an international society of states at all, we have to provide for the necessary preconditions, one of which is militaries willing – and morally permitted – to fight. This of course presumes that such a society of states is in fact a good thing, or that states, like individuals, have fundamental rights. Much has been written about the importance of states, and of their role in preserving and safeguarding the rights of their members. But of course, while all men may be created equal, surely all states are not, and in any case I personally am worried about the hypostasization of states involved and the attendant degradation of individuals.
Nevertheless, one might still think that overall, the existence of states is a good thing, given their stabilizing effect, and that at least sometimes they do safeguard the rights of individuals. If so, and given that I feel some pressure to say something about terrorism given the subject of this conference, it should be noted that if any justification broadly along these lines will work – that is, in terms of the necessary preconditions for states – then it will apparently only extend moral equality to those soldiers – those fighters – who fight in the service of a state. I suppose it may be a tricky matter to decide what constitutes a state; is a formally constituted government or formal recognition, required, for example? But whatever we decide here, there will clearly be those entities that fail to pass muster, and those who fight outside of the umbrella of a sovereign state would be beyond the pale. This conclusion will be welcome news to some, while others will want to use its denial in the service of a modus tollens to disprove the justification on which it rests. I myself would be inclined to move rather in the opposite direction: to refuse to extend moral equality even to all those soldiers who do fight in the service of a state. It seems to me that the days of the polite fiction of the moral equality of soldiers have passed and it would be just as well to call a spade a spade.
Christopher, Paul. 1999. The Ethics of War and Peace. Upper Saddle River, New Jersey: Prentice Hall
Hartle, Anthony E. 1989. Moral Issues in Military Decision Making. Lawrence, Kansas: University Press of Kansas.
Nozick, Robert. 1974. Anarchy, State, and Utopia. New York: Basic Books.
Walzer, Michael. 2000. Just and Unjust Wars. New York: Basic Books.
 Actually, that justification often proceeds in terms of three types of considerations: (i) epistemological worries, (ii) worries about agency, and (iii) issues surrounding the notion of patriotism. I am here concerned primarily with worries of the first type, although issues of agency will surface at various points throughout the paper. Issues of patriotism, it seems to me, divide without remainder into issues of the first two types, although I do not argue for that claim here.
 Cf. for example Walzer (2000, 38-40 and passim); Christopher (1999, 211-12).
 As Walzer sometimes seems to. Cf. for example Walzer (2000, 39)
 Thus, as has just perhaps become clear, I’m explicitly worried about moral as opposed to, say, legal distinctions. One of the few advantages to being a philosopher, is that one doesn’t have to concern oneself with such niceties as practical considerations and empirical facts.
 I should perhaps admit that sometimes I fear this is all that can be said in favor of the moral equality of soldiers.
 We might distinguish three possible positions here: officers are never morally permitted to disobey their governments, even when their governments are wrong; officers are sometimes morally permitted to disobey their governments when their governments are wrong; and officers are morally required to disobey their governments when their governments are wrong. The first of these at least strikes me as rather too extreme a position.
 Given the sanctions usually attendant upon such a decision, the bar here is likely to be quite high – and considerably higher still before we should ever require such disobedience – but what often seems to be lurking in the background here is some sort of requirement that when people know something, they know that they know it. But this is not in general a plausible constraint on knowledge.
 It is of course a hoary question just what is required for knowledge beyond true belief, but it’s not a question I have to deal with here.
 (1999, 145). It actually seems to me that Christopher thinks here in terms of an empirical version of Invincible Ignorance. The claim that obedience (even re jus ad bellum) is necessary to the proper functioning of the military is quite common; thus see Hartle (1989, 28); Walzer (2000, 39).
 I suppose the overall idea here is that the military is the arm of the state, and one very much wants one’s arms to do what one tells them. But I’m not convinced that it would be an entirely bad thing if every time I was feeling ornery and decided to go out to beat up on old ladies and small children, my arms refused to obey – as long as they did obey whenever I needed to defend myself.
 Leaving aside such fantasies as philosopher-kings, and other figments of fevered philosophical imaginations.
 As Nozick points out, soldiers “are certainly not encouraged to think for themselves by the practice of absolving them of all responsibility for their actions within the rules of war”(1974, 100). And it may not be hopelessly naďve to think that in the long run we have a better chance of seeing justice on earth if we expect soldiers to take responsibility for the wars they fight. At any rate, I am inclined to agree with Nozick that to refuse to hold soldiers responsible for the wars they fight may be “morally elitist.” See the next note.
 Indeed, I incline to a suspicion that this view of soldiers as unable to adjudicate the rectitude of their nations’ wars is a holdover from a bygone age in which soldiers were considered to be little more than puppets, or perhaps extensions, of a monarch-as-state or state-as-monarch. But I lack the historical expertise fully to develop this claim.
 There may be a confluence here with the other major consideration that is often adduced in support of the moral equality of soldiers, viz., the power of the state to coerce or compel soldiers to fight. If a soldier is forced to fight we perhaps ought not hold him responsible, and while states are not the only entities with the power to compel, their ability in this regard is considerably greater.