Professional Obligation and Conscientious Objection:

Professional Obligation, Conscientious Objection, and the Military: A Kantian Approach

Andrew Fiala, Ph.D.

Associate Professor of Philosophy

Department of Philosophy

California State University, Fresno

2380 E. Keats Ave. M/S MB 105

Fresno, CA 93740

(559) 278-2124

afiala@csufresno.edu

This paper considers the question of what military “professionals” (not conscripts—but those who sign up of their own free will) should do when they have a principled moral disagreement with the wars they are asked to fight. I approach this topic as a question of professional ethics.[1] A non-conscript military consists of professional soldiers who are obligated by the standards and commitments of their profession. In our system of government, this profession is regulated by the principle of civilian control: professional soldiers in a democracy have a duty to obey the orders of democratically elected civilian leaders. A useful principle in thinking about this issue is Kant’s idea that in a republic, political professionals should “argue but obey.” The Kantian approach requires faith in the institutions and procedures of deliberative democracy. Deliberative democracy is not perfect: but it is less pernicious than the alternatives—either the blind and silent obedience of authoritarianism or the radical disobedience of revolution. “Argue but obey” makes sense so long as one has faith that the state is, in Kant’s sense, enlightened.

My focus here is disagreement about the application of ad bellum principles. I am not focusing on questions of orders within a war that violate principles of jus in bello. It is fairly obvious that a soldier should disobey an order to shoot infants, poison a water supply, or engage in rape. But it is not so obvious what a soldier should do when he disagrees with the ad bellum judgment about the overall justness of the cause and of the war. The difficulty of this question has to do with the general difficulty of making judgments about jus ad bellum. Such judgments are based upon imperfect information. And they are fraught with political complication, historical complexity, and uncertainty.

My thesis is that professional soldiers should—for the most part—obey but argue. Their obedience should be based upon their faith in republican structures of governance and in the closely allied principle of civilian control of the military. Indeed, it is this very democratic structure that allows them to argue against mistaken decisions about jus ad bellum. Their ability to argue should be seen as justifying their faith in the potential for self-correction in the democratic system. A soldier’s professional duty requires obedience. But in a democratic system that emphasizes civilian control of the military, a soldier’s obedience is grounded in his faith in the moral sensitivity of the procedures of deliberative democracy to the rights of citizenship. It is this democratic system, after all, that commands his allegiance.

The Paredes and Watada Cases

This question is made concrete in recent cases like those of Army Lieutenant Ehren Watada and Naval Petty Officer Pablo Paredes—both of whom refused to serve in the Iraq War. Paredes refused to board his ship as it left San Diego for the Persian Gulf in December of 2004. He claimed that a soldier has a duty to disobey illegal orders—and he based this argument upon his understanding of principles that were articulated in the war crimes tribunals at Nuremburg and Tokyo. In the statement he read to the court, Paredes explained himself as follows: “In all I read I came to an overwhelming conclusion supported by countless examples that any soldier who knowingly participates in an illegal war can find no haven in the fact that they were following orders, in the eyes of international law.”[2] The basic idea here is that after Nuremburg (and in the U.S. after My Lai), soldiers are presumed to have a moral responsibility to disobey immoral orders.[3] And he extends this responsibility beyond jus in bello questions such that it includes a soldier’s response to ad bellum questions.

The difficulty of Paredes’ argument is that the U.S. invasion of Iraq was not strictly analogous to the Nazi or Japanese war crimes that provide the modern basis for this principle. Even Paredes admits this—saying explicitly that he is NOT comparing American policies to German or Japanese atrocities. Nonetheless, Paredes grounds his conscientious refusal in the basic principle guiding the tribunals in Nuremburg and Tokyo. In Paredes’ words, this principle is “that a service member must not participate in random unprovoked illegitimate violence simply because he is ordered to.”[4]

Watada’s refusal to go to Iraq in June of 2006 was similar to Paredes. Watada also claimed that he did not want to participate in “war crimes.” This way of putting the disagreement is important. Watada and Paredes have both argued that the U.S. invasion of Iraq was criminal and that for a soldier to participate in an illegal war is a war crime. Both refused to engage in a war that they claimed violated principles of the U.S. Constitution as well as principles of international law. And they claim that civil disobedience by soldiers is necessary as a response to this illegal war. As Watada put it in an interview on “Democracy Now!”: “We all have a duty as American citizens for civil disobedience, and to do anything we can within the law to stop an illegal war.”[5] Watada’s claim contains a contradiction that points to the heart of the problem: civil disobedience is—by definition—illegal and so it is not “within the law.” Argument and protest are, of course, within the law. And the Kantian view maintains exactly what Watada says here: that one should have recourse to legal means for combating bad policy. But conscientious refusal by military professionals is not one of those legal means.

Perhaps Watada simply misspoke in making this off the cuff remark in his interview with Amy Goodman. But he points to a deeper problem here. If the war we are fighting is illegal, then the law that requires obedience becomes illegitimate. And so when soldiers (or anyone else for that matter) are confronted with the choice of disobeying an unjust law or violating a criminal policy, the very idea of what is “within the law” is in question. The decision to disobey an apparently legal order indicates a profound lack of faith in the legitimacy of the law. And so once one has decided that a war is immoral or illegal, the answer is obvious: there is no legal duty to fight in an illegal war and no moral duty to fight in an immoral war.

Indeed, our obligations can shift rapidly once we judge the cause to be wrong. John Rawls puts this point quite strongly. According to Rawls, not only may a conscript refuse to fight in a war that he judges to be unjust but also: “If the aims of the conflict are sufficiently dubious and the likelihood of receiving flagrantly unjust commands is sufficiently great, one may have a duty and not only a right to refuse” (emphasis added).[6] Rawls continues to say that in this day and age (he is writing in the midst of the Vietnam War), large and powerful states are “so likely to be unjust that one is forced to conclude that in the foreseeable future one must abjure military service altogether.” And he concludes that systematic conscientious refusal would be pragmatically useful since it would make the continuation of an unjust war “impossible.”

But how does one know that an entire war is illegal or immoral? And how do we know that we not only have a right to refuse but also a duty to refuse, as Rawls puts it? There are no easy answers here. There appears to be a sort of sliding scale here: the more we suspect immorality the stronger our duty to resist. The obvious model is the Nazi one: German soldiers should have refused to carry out Nazi orders. But what about wars that are not exactly Nazi wars? Although I believe that the Iraq war was not justified, the difficulty is that the case of Iraq is not as obviously unjust as Nazi aggression. The Iraq war had as one of its justifications the humanitarian argument that aimed to end tyranny. The ad bellum judgment with regard to Iraq is more complex than either critics or defenders of the war often want to admit.

But how much certainty is needed before a soldier jumps into the abyss of conscientious refusal? I use the word “abyss” here in the sense of existentialists like Camus. Ultimately we are on our own and each of us must decide for ourselves what we think is right even to the point of rejecting our professional obligations and allegiance to the state. We do have a radical sort of autonomy to choose to be neither a victim nor an executioner. Each man’s conscience is his own. Even Huntington admits this: “for the officer this comes down to a choice between his own conscience on the one hand, and the good of the state, plus the professional virtue of obedience, upon the other.”[7] Thus I must admit that I am compelled by the sort of existential courage it took Paredes and Watada to make their decision.

But I am also troubled by the implications of allowing soldiers the freedom to choose when to fight. I am frankly frightened of the idea that soldiers should be able to subvert the principle of civilian control and take matters into their own hands. Thus I find myself profoundly ambivalent about these cases, even though I am, for the most part, a pacifist and a critic of war. The problem is that prior to that utopian time in which we dismantle our armies, we need soldiers to obey the orders of civilian authorities; the alternative is a military that could run amok. Democratic peoples should not encourage military professionals to make their own judgments about war. Rather, we want those sorts of judgments to rest in the hands of elected officials like the Congress and the President.

Paredes is right to advocate the basic principle that a service member must not participate in “random unprovoked illegitimate violence” simply because he is ordered to. But the difficulty is in applying this principle to the concrete case. Is Iraq really a case of “random unprovoked illegitimate violence”? While Watada and Paredes can mount persuasive arguments to justify conscientious refusal based upon this sort of principle, these arguments can be rebutted by equally persuasive arguments on the other side. In other words, it is quite difficult in this case to come to final conclusions about the application of the principles of jus ad bellum. Some wars are obviously unjust and they should be resisted. German officers should have refused to obey Nazi orders. But aside from this sort of case, things are much more complicated.

My reluctance to whole-heartedly affirm Watada’s and Paredes’ refusals is further influenced by the fact that these soldiers were volunteers who joined the service freely and who at one time believed that their service was justifiable. These are not conscripts but professional soldiers who signed up to defend the Constitution (please note, by the way, that Rawls’ discussion is primarily about conscript armies). When soldiers volunteer, they willingly oblige themselves to obedience. And this obedience is grounded in the faith that the American political system is, for the most part, just and worth defending.

When professional soldiers take the step into civil disobedience they make a political claim about the illegitimacy of this very political structure. These soldiers lost faith in the deliberative democratic processes that provide civilian control of military decisions. In a system that cherishes civilian control, soldiers do have the opportunity to rectify bad decisions about jus ad bellum by working through the political process. It is important to note that this sort of democratic remedy was not available to German or Japanese soldiers. In taking the step into disobedience, these soldiers implicitly indicated (occasionally explicitly said) that they thought the republican process had been corrupted to such an extent that there was no redress for injustice save in breaking the law. There may be times that professional soldiers should take this step—say when the Nazi party rose to power in Germany. But one must be clear about the moral and political significance of this step—it is one that should be taken only when the republican system itself has been shown to be essentially corrupted.

The Kantian Background

My approach draws on Kant’s idea that professionals should “argue but obey” (as articulated in Kant’s essay “What is Enlightenment?”). The principle of “argue and obey” makes best sense in the context of an “enlightened” state, i.e., a just “republican” state, or what we now call “deliberative democracy.”[8]

In this context, even though “political professionals”—soldiers, diplomats, and even public school teachers—might disagree with a policy, their professional duty is to remain obedient. The remedy for bad policy is found in the political right to question and criticize that is the hallmark of the “enlightened” state. An enlightened state, in Kant’s terms, will allow extensive “freedom to make public use of one’s reason in all matters,” including the freedom to criticize the government. But Kant recognizes that “private” reason—by which Kant means the speech and activities of professional life—is different: a professional must obey. Kant directly addresses soldiers and maintains that they must do what their “private” or professional obligations require. But Kant also recognized that soldiers should be free to engage in public debates about the merits of the policies they were obeying. Kant’s conclusion is: “argue as much as you like about whatever you like, but obey.” The important caveat is that this holds only as long as the state is enlightened, i.e., so long as it actually allows the free exercise of public reason as the remedy for bad policy.

This idea has much in common with an argument made recently by David Estlund regarding a soldier’s duty to obey orders if he has reason to believe that there are sufficient institutional safeguards in place to ensure that wars are, for the most part, just. Estlund’s argues that “when the political and institutional process producing the commands is duly looking after the question whether the war is just, the soldier would be wrong to substitute his own private verdict and thwart the state’s will.” [9] Estlund further argues that the soldier needs to think hard and long about whether the state is actually interested in fighting a just war. This requires deep reflection into the question of whether the institutions of republican political life are functioning and healthy. Estlund seems to believe that the U.S. has mostly fought just wars: and so the burden of proof rest on the proponent of disobedience. Paredes and Watada appear to make a different assumption about American military power: one more influenced by critics such as Noam Chomsky, Howard Zinn, and Chalmers Johnson.

This leads us toward some deep and vexing question about whether there actually are just wars and whether the American military has fought just wars. I won’t discuss this here.[10] Rather, I want to focus on the question of whether the constitutional system is legitimate and whether soldiers should keep faith in the procedures of civilian control. The hope of scholars such as Doyle and Rawls is that democracies tend to fight just wars. But there is no guarantee here: democracies produce demagogues and demagogues can use war to consolidate power. Nonetheless, deliberative democracy and civilian control of the military are the best set of procedural safeguards we have. To give up faith on these procedures is to take a radical step into revolutionary politics.

Sometimes we must take the step into revolution. Soldiers have no professional obligation to obey in an unjust political system; and indeed, citizens in an unjust political system should engage in civil disobedience and even revolution to change the system. This principle allows us to criticize the “professional” German soldier for following Nazi orders (although one should note that Nazi soldiers were not free from coercion). But we should note that the basic problem behind the injustice of the German invasion of Czechoslovakia was the corruptness of the authoritarian Nazi regime that engaged in this war. In other words, the question of a professional soldier’s obedience with regard to ad bellum questions points to a deeper question about the constitutional order itself. By disobeying the order to deploy Watada and Paredes were both indicating that they had given up hope on the constitutional order they had pledged to defend: they believed that the remedies of ordinary political life were insufficient to ensure the justice of the decision. This step rests on judgments that go much deeper than the ad bellum question of whether the Iraq war was a just one; these judgments are about the legitimacy and efficacy of republican government.

The Kantian approach reminds us that one has a duty to obey as a professional but that as a citizen one has a duty to work for a just social order. The implications of the Kantian idea extend to a variety of professions, especially those professions that are linked to political life: teaching, civil service, police, and the military. These “political professionals” are those who work for the state and whose work helps to support the state. The analysis presented here might thus also apply, for example, to the issue of whether diplomats could be forced to serve in Iraq—as was suggested by the State Department in October of 2007; or whether teachers should obey the policies of “No Child Left Behind.”

Political professionals have a duty to obey legitimate civilian authorities and to conform to the standards of their professional service. But in an enlightened republican state, these professionals remain citizens and as citizens they retain the privilege of arguing against the state. When a soldier suspects that a war is unjust his duty as a citizen is to exercise the prerogatives of citizenship, while his duty as a soldier is to obey. There is substantial tension here. But this tension is productive of political activity. If soldiers and their friends, families, and neighbors took this tension seriously, it would help to ensure that wars are fought justly because it would help to increase the political effort that is made to change the war policy.

There is a substantial amount of political work to be done before a professional soldier resorts to conscientious objection and civil disobedience. As in the ad bellum principle of “last resort,” one cannot just leap into war or into disobedience: other less radical methods must be used and used more then once before the radical last resort can be employed. Disobedience, violence, and war are extreme measures for extreme situations. To disobey is to express a profound loss of faith in the legitimacy of government as a whole. Professional soliders—in the U.S. at least—swear obedience to the principles of republican government, including the ideal of civilian control. It is only when a soldier fears that these principles themselves are in jeopardy that he can disobey. But nota bene, no solider can be obligated to remain silent: professional soldiers cannot be required to give up the privilege of citizenship. If they were forced into silent acquiescence, this would be a sign that the system was no longer worth defending.

Moderate Republicanism and Civil Disobedience

The Kantian hope is that, in the long-run, democratic deliberation will produce just outcomes. This approach does not advocate radical revolution. Revolutions begin with conscientious objection and civil disobedience. [11] Kant’s ideal of “argue but obey” is not revolutionary. Rather, it rests within the mainstream of republican politics and is a sort of pragmatic compromise between the rival extremes of authoritarian politics and radical revolution. The following chart attempts to map the terrain here.

Radical/Revolutionary	Republican/Democratic	Authoritarian/Totalitarian
Argue and Disobey	Argue but Obey	Obey without Argument

There are good reasons to stick to the middle path. Totalitarianism is an obvious evil. And we should also fear the anarchy that would be introduced by a radical revolution in which military professionals took matters into their own hands. There is continuum from conscientious refusal to the military coup. It is dangerous to allow military professionals to decide for themselves about when and who to kill.

Now some situations do call for conscientious refusal and even revolution. But this is primarily when there is an absence of republican political remedies for injustice. In general, the republican ideal is the moderate position which allows for critique and progress while also ensuring stability. Revolutionary activity aims at progress but brings about instability. Thus there are good pragmatic reasons to avoid the radical step into revolution—especially so long as we have faith in the responsiveness of republican institutions. A gradual or moderate approach to reforming the institutions of social and political life is needed. This is especially true if the basic structure of society is grounded in just constitutional principles that are not in need of radical change.

Hope that the system will respond to critique is a closely tied to this gradualist approach. For Kant, hope for progress within the system is one of the things that causes the system to make progress.[12] The hopeful idealism of the “argue but obey” approach gives us a further practical incentive to make sure that our institutions are just. If obedience to the institutions of professional life—including the military—is morally required, then citizens should aim to ensure that these institutions are as just as possible. In the end, this approach is grounded in Kant’s commitment to the Enlightenment’s basic faith in the rationality of human nature and our potential for melioristic improvement (not perfection but progress). Kant believes that free public discourse will ultimately lead us toward truth and goodness.[13] And for Kant, this process is “self-developing” and “self-fertilizing.”[14] Faith that republican institutions are reasonable helps to make them so.

Conscientious objection and civil disobedience are thus only of use when one has given up hope in the power of deliberative democracy to create just outcomes and to correct injustices. But one must bear in mind that the hope discussed here is a long-run faith. Justice is about the overall trajectory of the ship of state. As long as one remains hopeful that the overall course is just, it is not justified for political professionals to turn to conscientious objection and civil disobedience.

Conclusion

Professional life does not require blind and silent obedience. In a democracy, professionals always retain the rights of citizenship. In the U.S. even soldiers can vote for Congress and for the President. Unlike other professionals, however, military professionals are exposed to grave moral and physical risks: their professional duties ask them to kill and to be killed. One might think that this means that a military professional should be free to consult his or her own conscience. But the obligations of political professionals such as the military are special. A doctor in private practice may refuse to perform abortions without any threat to the political order. But we do not want soldiers to make their own decisions about war, since such decisions threaten the stability of the political order. In the same way, we do not want diplomats to make their own decisions about diplomacy or teachers to make their own decisions about what to teach.[15]

An important principle in democracy is “civilian control” of the military. We want soldiers to obey the legitimate policies of the Department of Defense, the Congress, and the Commander-in-Chief. If soldiers disagree with these policies, they have recourse to the “public” use of their reason: they can argue and protest. But they must also obey.

One important objection to the view presented here is that it places too much faith in our democracy. Throughout the later half of the 20th Century, critics such as Herbert Marcuse argued that our “one-dimensional” society tends toward conformity and the path of least resistance. Such critics worry that passive acquiescence to the military-industrial complex is one small step away from authoritarianism. This sort of criticism goes back to Marxist critiques of the Kantian faith in republican principles. Kant’s solution can appear to be rationalization for a timid sort of bourgeois complacency that is simply afraid of revolution.

In response I argue that a revolution against an authoritarian regime is not ruled out by this approach. One certainly wishes that German soldiers would have staged a revolution against Nazism. But there are good reasons to restrict the revolutionary response only to times when republican principles have been subverted. Soldiers such as Paredes and Watada have argued that recent history including the U.S. invasion of Iraq represents such a crisis. Empirical and historical evidence is needed to make such a judgment. Although I agree that the invasion of Iraq was not justified, there is a qualitative difference between this invasion and the German invasion of Czechoslovakia and a qualitative difference between the American constitutional system under George W. Bush and the Nazi regime under Adolph Hitler.

We should not encourage soldiers and other political professionals to disobey since this would mean that they would take the law into their own hands. Civilian control of the military is essential in a democracy. Rather than disobedience, then, the solution is more and better deliberative democracy: private (i.e., professional) obedience for political professionals and military personnel; but more and better public argument. There is no panacea here. Deliberative democracy is not perfect—but it is less bad than the other alternatives: authoritarian politics or the anarchy of revolution.

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NOTES