In my country hardly any of us thinks that it is wrong to volunteer for military service

IMMORAL MILITARY SERVICE

& SELECTIVE CONSCIENTIOUS OBJECTION

DRAFT

Peter Tramel

USMA Dept. of English & Philosophy

604 Collum Rd.

West Point, NY, 10966

(845) 938-2771

peter.tramel@usma.edu

We almost never hear that it is wrong to volunteer for military service. Yet there are striking reasons to think so, at least given the usual sort of contract, by which volunteers bind themselves during some years to kill on command, even if when such a command comes they will be convinced that the killing is wrong -- even if they will know that it is wrong.

In order to bring some of these reasons to light, I will take up the position that volunteering for military service is culpably irresponsible, and thus wrong, if (a) the service is potentially combatant, i.e., it obliges the service member to kill on command, and (b) the service includes no right of selective conscientious objection, i.e., it affords the service member no legal right to refuse to kill if he is convinced that his side's cause or conduct are immoral.

I begin with some context and clarification; then I provide a skeletal master argument, the basic plan of each of my arguments to follow; then I give what I will call the argument from moral responsibility; then I consider and reply to some objections. In closing I briefly consider the policy implications of my position, and I suggest that the best response to the soundness of my argument would be to give volunteer soldiers a right of selective conscientious objection.

1. Context and Clarification

Almost exclusively, this paper is about volunteer, potentially combatant military service.[1] That is what I will mean by military service whenever I do not say otherwise. When the contractual conditions of military service matter, I will only consider current contractual conditions in the United States services. However, most countries offer their volunteers the same deal, in every relevant sense, as does the U.S. [2]

U.S. volunteers bind themselves to obey all “lawful” orders. Everyone understands, or should understand, that these may include orders to kill people. Exactly which orders are “lawful” is a difficult question. For now let’s understand it the way most service members do: an order is lawful if the service does not teach its members otherwise. This is almost certainly too permissive – since governments, courts, and military services sometimes ignore or misinterpret international law and even their own treaty obligations – but that will not be a problem for my argument.

My particular interest in military service is with conscientious objection. While my arguments may well have wider implications, I will focus narrowly on conscientious objection in which

(a) the objection is to orders to kill people, or orders to enter a situation in which the objector is likely to be ordered to kill people;

(b) the objector is sincerely convinced that killing those people is morally impermissible because

i. his side is fighting in an unjust cause, or

ii. his side’s rules of engagement (in principle or practice) are unjust;

(c) the objector is not convinced that the killing is legally impermissible, at least not in a sense that his current government would acknowledge; and

(d) the objector is not a pacifist: i.e., he is not convinced that it is always morally impermissible to kill in (non-divinely-commanded) war.

Legally speaking, the U.S. services respect conscientious objection only when feature d is absent, i.e., only when the objector is a pacifist. Pacifists who persuade a military board of their sincerity gain official status as conscientious objectors, and can no longer be assigned combatant duty. On the other hand, selective conscientious objectors, such as those who fit the complete description above, have no legal right to refuse to kill on command. Therefore, when they join they promise to do so even if when the command comes they will conscientiously object, in the full sense described above.

2. Master Argument

With this much understood, I can make plain a master of the plan of my arguments to follow.

(1) If it is wrong for someone to do something, then it is wrong for him to promise to do it if commanded.

(2) It is wrong for someone to kill people while he conscientiously objects to killing them.

(3) So it is wrong for someone to promise to kill people if commanded while he conscientiously objects. [from 1 and 2]

(4) If someone volunteers for military service without a right of selective conscientious objection, then he promises to kill people if commanded while he conscientiously objects.

(5) So it is wrong for anyone to volunteer for military service without a right of selective conscientious objection. [from 3 and 4]

I think that we can learn much by carefully considering this argument. Below, I try to exhibit some of what it teaches with arguments that add flesh to it, mainly in terms of the sorts of wrongness involved.

3. Argument From Moral Responsibility

Suppose that as the U.S. geared up to invade Iraq in 2003 an Army Lieutenant, call him Lieutenant Maverick, looked carefully at the alleged reasons for the war and consequently became convinced that a U.S. invasion of Iraq was under the circumstances unjust. Then, when the U.S. invaded, he got orders to lead an infantry platoon in the spearhead of the invasion, an order that would almost certainly involve him in killing Iraqis, although by this time he conscientiously objected to doing so, in the full sense described above.

When he accepted his commission, LT Maverick promised to obey such orders, even if he would conscientiously object (unless his objection would be pacifist, which, we are supposing, it is not). I think that Maverick now faces a real moral dilemma: he would be wrong to refuse and wrong(er) to obey his order.

By “wrong” I mean morally culpable, or blameworthy. In this sense, even if not in others, it is possible to be faced with all and only wrong choices. Suppose that a zookeeper must shoot an attacking bear in order to save her own life. In that case she should shoot the bear. But suppose that it is this zookeeper’s fault that the bear is loose: she slept through cage-closing class in zookeeper school, say, and so she failed to correctly close the bear cage. While she can only wrongly (culpably) shoot the bear, she still ought to shoot it – she would be wrong(er) not to shoot it. Paradoxically, she ought to wrongly shoot the bear.

The obvious explanation for how the zookeeper wound up in her dilemma causally involves a previous wrong on her part: inattentiveness during a crucial part of her training. Similarly, I think that the best explanation for how LT Maverick, wound up in his dilemma causally involves a previous wrong on his part: volunteering for military service, without a right of selective conscientious objection.[3] Hence my argument from moral responsibility (MRA), in a nutshell:

(1) (a) Maverick was wrong to refuse his order to go fight in Iraq, and (b) he would have been wrong(er) to obey it.

(2) So he was wrong to volunteer for military service. (best explanation of 1)

(3) If he was wrong to volunteer for military service, then it is wrong for anyone to volunteer for military service.

(4) So it is wrong for anyone to volunteer for military service. (from 2 & 3)

Before I turn to objections, replies, and further arguments, I devote a section each to the elaboration and defense of premises 1.a, 1.b., 2, and 3.

4. Wrong to Refuse

Defense of MRA Premise 1.a

Now suppose that our hypothetical Maverick decides to refuse to obey his order. In that case he will likely be criticized in the Seattle Times: an editor at that paper had this to say about Lieutenant Ehrin Watada, an actual army officer who in 2006 refused deployment to Iraq on “...moral and legal grounds”.

Soldiers have to go where they are ordered. That is the rule here and everywhere, and for reasons of military necessity. Watada was a volunteer, and knew that when he signed up.[4]

The editor is correct, I think, provided that Watada’s legal objections were without merit. Watada violated his contract, and that was wrong. Indeed, he broke the kind of promise upon which other people stake fortunes and lives.[5]

However, if Watada’s legal objections have merit, if his order was unlawful – say because the U.S. invasion of Iraq was a violation of the U.N. Charter, to which the U.S. is signatory, or because the U.S. rules of engagement in Iraq violated the Geneva Conventions, to which the U.S. is signatory – then the Editor is wrong. It is not only Watada’s right, it is his contractual duty, to disobey unlawful orders.

Maverick, on the other hand, meets all of the conditions of conscientious objection I laid down above (in Section 1). He therefore has no conviction that the order he refuses is unlawful; he is only convinced that it is immoral. He has no good defense against the Seattle Times editor, so far as I can see. He understood, or should have understood, that when he joined he promised to obey orders even if he would believe, as he believes in this case, that they are immoral. This is what it means to join without a right of selective conscientious objection, plain and simple. By refusing he breaks that promise, and he betrays his service, its members and its client (his Nation) by failing to provide what they depend upon and have every right to expect from him.

5. Wrong to Obey

Defense of MRA Premise 1.b

So Maverick wrongly (i.e., culpably) violated his contract. I still think that he made the best choice that he could make under the circumstances. To kill people while being convinced that killing them is wrong is worse than to violate a (circumstantial) contractual obligation, even if others stake their fortunes or lives on the fulfillment of that contract.

Once he became convinced, despite his orders, that it would be wrong to kill the people he was ordered to probably kill, Maverick had to choose between two kinds of potential victims: Americans who count on him to obey, and Iraqis who count on him to do nothing wrong to them. The problem is that, as he understands it, in order to give either party what he owes it, he must fail to give the other what he owes it.

What happens to those he decides to shortchange? If he shortchanges the Iraqis, that means that he tries to kill some of them. If he shortchanges the Americans, some of them may die as a result. The main moral considerations involved seem to be two, and both count in favor of choosing to shortchange the Americans. First, it likely that fewer Americans will die as a result of Maverick’s failing them, since they are the better armed, more powerful party. Second, and I think more importantly, he will not intend the deaths of any Americans if he shortchanges them; if, on the other hand, he chooses to shortchange the Iraqis, he necessarily intends to kill innocent people (even if he is wrong and they are not innocent people in any relevant sense).

One does not have to accept the controversial doctrine of doing and allowing (i.e., roughly, that it is worse to do a bad thing than to allow an equally bad thing to happen), to think that Maverick does the right thing by choosing to shortchange the Americans. Instead, one could accept what we might call the doctrine of limiting damages to stakeholders: when failing in a contractual obligation, we should prefer to limit the damage to stakeholders. Those who count on Maverick to fight gambled that his conscience would permit it, and they lost. Those who simply count on Maverick to obey his conscience gambled on nothing. So he should prefer, at least ceterus parabus, the interests of the latter.

Now Maverick could be wrong. Although he is convinced that it would be wrong for him to try to kill Iraqis when in reality his doing so is okay, or even morally required. But what is that to him, unless we can give him reasons he cannot non-culpably reject? From the point of view of moral theory this is a difficult question. Without trying to fully address it, let’s distinguish these two (of the many) senses of “wrong”:

-It is wrong¹ for S to A means that S is culpable for it if she A’s.

-It is wrong² for S to A means that S objectively, or all-things-considered, ought not to A.

I think that it was wrong¹ for Maverick to disobey his order and it would have been both wrong¹ and wrong²for him to have obeyed it. Now we’re asking: what if it was not really wrong² for him to have obeyed? My answer is that this changes nothing: both are still wrong¹, which is enough for the basic argument. Culpability must take the subjective situation of the agent into account. If he has moral belief B, and he is not culpable for having moral belief B – it is not the case, for instance, that he ought to know better – then he is culpable if he acts as if B is false, even if B is false. So Maverick would be wrong¹ if he acted against his conviction that it would be wrong for him to kill Iraqis, even if it would not really be wrong for him to kill Iraqis – assuming, of course, that he is guilty of no culpable ethics of belief sin for having that conviction.[6]

I can think of no reason why Maverick would have to be guilty of any relevant ethics of belief sin in order to have become convinced that the invasion of Iraq was unjust. We might put him well above the average service member, even the average officer, in relevant capacity, in relevant knowledge, and in intellectual integrity, and still we can imagine that his conviction that the invasion was unjust was the result of his best effort, meeting every standard for the ethics of belief that we could put forward without condemning humanity as a whole.[7]

6. Wrong to Volunteer

Defense of MRA Premise 2

How did Maverick wind up confronted with his terrible dilemma. Most people would give one of the following three explanations. (a) Bad moral luck: through no fault of his own he wound up confronted with only wrong choices. (b) Culpably poor performance: he was wrong to permit himself to become convinced that invading Iraq was unjust, and (c) Culpable volunteerism: he was wrong to join the Army in the first place. Of these, c is by far the best explanation.

Let’s begin with bad moral luck. Because relatively few U.S. service members have found themselves in Maverick’s position, one might argue that when he joined he was justified in assuming that the chances of it happening in his case were statistically insignificant. Thus he was not wrong to risk finding himself in his present predicament, it was just his bad luck that it happened.

I suspect that the dilemma is not as rare as this explanation must suppose: many probably avoid the dilemma only through wishful thinking, and we probably never know of the majority of cases, since most who face it probably cannot bear to face the criticism they would face if they came out of the closet, so to speak, and comfort themselves, as Kant recommends, with the thought that they could be wrong, a consolation that I will consider as an objection, below.[8]

Nevertheless, let’s suppose that service members very rarely find themselves in the dilemma. Can this be so rare as to be relevantly “statistically insignificant”? Surely not. We are talking about risking what one will take, in the event, to be committing murder. How rare, say would it have to be for employers to command murder before it would be okay to promise to do anything they ask, including murder? If it happens at all that employers command murder, then that is too much. So the bad moral luck explanation is a poor one.

Now for culpably poor performance. The idea here is that service members have a duty not to become convinced of the immorality of their orders.

The first problem with this is that it may require the impossible: I can easily imagine circumstances in which I, and indeed most people, would not be able to help becoming convinced of the wrongness of a lawful order. But suppose that some people are capable of such moral epistemic deference to other human beings (and suppose that they can somehow know that they will never grow out of it). It would be craven for them to resign themselves to it: they would have to set aside their rationality and turn themselves into weapons in the hands of other human beings, at the expense of being full human beings, themselves. Moreover, it would be wrong of us to accept their deference, since it would make them too irrational for us to accept them as fellow citizens: how for instance could we allow them to vote in elections, since whether and how to make war is one of the most important issues in elections, and they have foresworn their relevant rationality. Perhaps not allowing them to vote is a feasible alternative; but how could that fail to damage our regard for them as fellow human beings, since it is hardly plausible that someone can put down his rationality for a period of years without permanently damaging it.

So a and b are very poor explanations of how Maverick found himself in his dilemma. Explanation c – he was wrong to volunteer for military service – is a much better explanation. Indeed, to speculate just for a moment, I think that most of us would go for explanation c first, were it not for our just admiration for the selflessness of volunteer military service and our just horror of conscription. However, the justice of these attitudes does nothing to diminish the plausibility of c, and it does nothing to rehabilitate a and b.

7. Wrong for One and All

Defense of MRA Premise 3

Maverick was the sort of person who could become convinced of the wrongness of one of his country’s wars. Therefore, I have argued, it was wrong for him to volunteer for military service. What about him made it possible for him to become convinced of the wrongness of one of his country’s wars? I think only that he was a moral agent, qualified for military service. That is something no relevant others lack, since for non-moral-agents nothing can be wrong, and the unqualified cannot volunteer, at least not successfully. So since it was wrong for Maverick to volunteer for military service, it is wrong for anyone to volunteer for military service.

In countries like the U.S., where volunteer soldiers are allowed to vote, my case is already mostly made: voters owe it to other voters to be reasonable, and therefore rational. But rational voters will judge the morality of their country’s wars on the evidence, and therefore it is possible for any one of them to become convinced of the wrongness of one of those wars.

Could there be rational people who hold principles upon which all of their countries’ wars must be just, or that sufficient evidence against their countries’ wars is always impossible for them? Although the question mostly tempts me to imagine people in tinfoil hats, there is I suppose a kind of chance. In Europe some people used to believe in something called the Divine Right of Kings: the sovereign ruled by God’s will and so it was always a religious duty to do as he or she commanded. A similar, even stronger doctrine long prevailed in Japan, where the Emperor was a kind of divine being. Suppose that someone could be rational and accept such a principle. We could not, of course, be talking about a country in which people relevantly have the right to vote. But were there such countries, then assuming that their citizens could rationally embrace such principles, premise 3 would be false. It is worth noticing, however, that wherever such principles have prevailed, being openly critical of them has been punishable by death, usually in some particularly gruesome form. So it is not clear whether believers in them could have qualified as volunteer service members in any relevant sense. So the conditions that give rise to this seem to also make it irrelevant.

We could accept that volunteer soldiers should not have the right to vote, in order to try to save the morality of volunteering. We would add the right to vote to the already impressive list of noble sacrifices that volunteer soldiers make for their countries. When we tell them why, the volunteers could hardly complain: “Since you agree”, we can say, “not to allow yourself to become effectively convinced of the moral wrongness of any killing we will command you to do, and since being capable of such conviction is something that voters owe to voters, we must ask you to leave your right to vote at the door. We will give it back when you are done, provided that you can regain your rationality”.[9]

But our candor, which is appropriate – since volunteers deserve the truth about why we cannot let them vote – only proves that we thus fail to save the morality of volunteering. What we say to volunteers is that, since you agree to surrender your moral agency – not all of it, just the most important bits – we cannot let you vote: that would not be fair to the moral agents in your country who vote. We may of course allow soldiers to keep some of their moral agency. They can still choose what Rawls calls a thick conception of the good, a religion, moral theory, or whatever, so long as it is consistent with their oath -- which could, incidentally, severely limit their options. They can decide which house to rent or buy, whether and how much to give to charity, where to spend their leave time, where their kids will go to school, and so on. They retain something of moral agency, therefore. It is just not up to them whom they will not kill.

However, with the possible exception of choice of religion, there is no more important part of moral agency than deciding, rationally, whom we will not kill. It is wrong to voluntarily surrender the essence of moral agency, even for a while, whatever accidental parts one retains.

8. An Objection

Some soldiers sharply distinguish their professional and moral obligations, claiming that in cases of immoral but not unlawful orders their professional obligations trump, or override, their moral obligations. Such a soldier might argue that since we accept that this can happen in other professions, for instance the legal and medical professions, without thinking that therefore volunteering for those professions is immoral, we ought to accept it in the military profession, too.

Let’s consider a legal case. Of two accomplices in a murder, A got a death sentence and B got a short prison sentence. This was because B was the first to offer to cooperate with the authorities, eventually testifying at A’s trial that the murder was A’s idea and that A did the actual killing. All B did, according to her testimony, was help A cover up the crime, and she did that only because she was terrified of A. Now suppose that, afterwards, while A is on death row with his appeals nearly exhausted, B, in privileged conversation with her attorney, Z, reveals something that convinces Z that B herself did what her testimony got A condemned to death for doing. She does not admit it, but she says something that should, and does, convince him of it. Z now has a moral obligation to try to stop the unjust execution of A. But Z cannot do this without violating professional obligations: he cannot save A without violating attorney / client privilege and, indeed, incriminating B.[10]

Some would say that Z’s professional obligations in this case trump his moral obligation. If he cannot get B to come forward on her own, and nothing she says points to any evidence that he could independently discover to the court, without violating privilege or jeopardizing her legal status, then he must keep quiet and let A unjustly die. Most of those who will disagree, saying that Z should go with his moral obligation in this case, will not convict Z of wrongly volunteering for his profession. Instead, they will think that Z, through no fault of his own, got caught up in a situation where the right thing for him to do is to choose civil disobedience, even if that means accepting disbarment, being sued for malpractice, etc. They might, but needn’t, think that the real culprit is bad law concerning attorney / client privilege. If they do not think that, they may simply accept that sometimes there will be Zs as a consequence of the best justice that we can have in a morally broken world.

Whether Z should go with his professional or his moral obligation, why should we not understand Watada’s case on the same model, so that whether he was wrong to go with his moral obligation or not, he was not wrong to join the profession in the first place: if he was a victim, he was a victim of bad legislation, bad legislators, or simple bad luck?

8. Reply, Part I

This seems like a powerful objection because, first, the analogy between cases like Z’s and cases like Watada’s is close in many ways, and, second, we should admit (I think) that Z was not wrong to volunteer to be a defense attorney. Nevertheless, the analogy is not close at a crucial point: the point at which we would consider whether Z’s professional obligations trump his moral one, or vice versa. I will argue that the analogy breaks down at that point, failing to support the objection. The argument is somewhat different, however, depending on whether we think Z’s professional obligations trump his moral one, or vice versa.

Let’s begin with the side that thinks that Z’s professional obligations trump his moral one. How could we defend taking this side? The answer seems straightforward: we could point to the many goods that a strong, inviolable attorney/client privilege, and strong client-loyalty, can do in the adversarial legal context, and the many harms that weakening it, making it violable in some cases, can do. In order to conduct a vigorous defense, attorneys need all of the candor they can get from their clients. Clients rarely know the relevant law and, worse, they usually think that they know more about it than they do. So their attorneys already face an uphill battle teasing relevant information out of them – the information that merits consideration in court. Make their clients liable for incriminating themselves in the eyes of their lawyers and we could make their lawyers’ job impossible in many cases: it could become arguable whether it is even worth giving criminal defendants a right to legal representation. Therefore the good that Z’s professional obligations, as universal policy, can do trumps any good that his violating them for rare, case-specific moral reasons can do. “Hard cases make bad law”, as legal scholars like to point out.

Two things about this argument particularly stand out. First, the argument makes it clear that this is not a case of a professional obligation, as a kind of non-moral obligation, trumping a moral obligation; it is, rather, a case of an allegedly stronger moral obligation trumping an allegedly weaker one: the argument turns the professional obligation into a moral one. The same would go for any argument that might establish that a professional obligation – a lawyer’s, a physician’s, a professor’s – trumps a moral obligation: either we will establish that the professional obligation is (also) an overriding moral obligation or we will fail to establish that it trumps another competing moral obligation. But this unravels the relevance of the conclusion that Z should go with his professional over his moral duty to Watada’s kind of case. For when someone is convinced that a war is wrong, what could be the overriding moral weight behind preserving the principle that soldiers follow legal orders no matter what? It is not even clear that this principle, universally applied, does more good than harm. Why even think that, when all is said and done, good causes will have profited more from universal adherence to this principle than bad ones? Yet even if we could establish that, we would not have proved that universal adherence will in the end produce more good, or less evil, than universally allowing selective conscientious objection.

Second, for related reasons, the analogy breaks down at the level of the client’s role. It is straightforward who Z’s client is, it is B, and it is straightforward in what sense his profession requires that he regard her interests: he is to get the best legal deal he can for her, even if that means she gets away with murder. If this is morally acceptable, it is morally acceptable because it is in the interest of the public, at large, to embrace a principle that occasionally will fail the public, at large, in the interest of the client. We will sometimes allow a client to get away with murder (and someone else to be executed for it[11]) because we must in order to preserve everyone’s right to a vigorous defense if they should happen to be accused of a crime. We will come as close to justice as we, imperfect beings that we are, can come in criminal matters, by following this recipe to the letter. However, we cannot offer this kind of argument in the Watada case because in his case the client, and the public at large, are one and the same. If he does wrong, as he believes that he will if he follows his orders, the public at large is not well-served, not even in principle. So he cannot regard his professional duty as an overriding moral duty in cases where he is convinced that a war is unjust.

Next let’s consider the view of those who think that Z, although not wrong to sign up as a defense attorney, should violate his professional duty for the sake of his moral duty: he should choose civil disobedience (suffering disbarment, malpractice suits, whatever), in the form of doing what he can to save A. Watada and his attorney, incidentally, seem to view his case as analogous to this: at least they describe his disobedience as “civil disobedience” [12] – and so far as I know they do not admit that Watada was culpably wrong to join the Army (although I do not think that he can reasonably believe, now, that it was a good decision).

Where I think that the analogy breaks down in this case is like, but not exactly like, where I think it breaks down in the case where Z’s professional obligation is supposed to win. The relevant, objection-destroying disanalogy between Z and Watada, here, is, although ex hypothesi both should violate their professional obligation in favor of a competing moral one, Z is not morally culpable for violating his professional obligation, as is Watada. Z is in his predicament through no fault of his own; so we don’t need to look for an explanation of it in the wrongness of some prior wrong decision of his, as in Watada’s case.

I argued in Section 3 that Watada was culpable for violating his professional obligation: which was to obey his order (although I argued in Section 4 that he should violate it, anyway). But why would what I said in Section 3 fail to prove that Z is also culpable for violating his professional obligation? Two differences stand out, and the second is the topic of the next section., so I will leave it until then. Either difference, on its own, destroys the analogy in the objection. The first, a bit oversimply, is this: Z can give all of his victims what T.E. Scanlon would call reasons that they cannot reasonably reject. Watada cannot.

If Z’s (non-culpable) appraisal of his situation is true – i.e., B either wants to kill A or B is trying to get away with murder at the expense of A’s life – then Z can give reasons for his action that B cannot reasonably reject. What is B going to say? That A does not deserve to live? That her life is so important that A should go sacrifice for her wrongdoing? None of this will be reasonable. That none of it will be reasonable will, ex hypothesi, add up to reasons that the court and the bar cannot reasonably reject: for, ex hypothesi, Z’s moral obligation overrides his professional one.[13]

Nothing like this is true in Watada’s case. Even if his assessment of his situation is true – i.e., the Iraq war is unjust – he cannot give reasons that his victims cannot reasonably reject.

9. Reply, Part II

There is a greater point of disanalogy between Watada and Z than any that I have so far mentioned. I think that it is decisive. Soldiers following orders to kill are supposed to be combatants. This status has no parallel in legal, medical, or other professional cases. Yet it is a morally relevant status: it implies certain moral rights and duties for soldiers that someone with Watada’s beliefs, were he to follow the same order, could not possess or fulfill. Not only does getting clear about this destroy the objection, it leads to a new argument for my conclusion.

Not all combatants fight in just causes. Indeed, if the justice of one cause implies the injustice of opposing causes – a prerequisite for making sense of the idea of a just cause in the first place, I think – then any time there is a war with combatants on both sides, some combatants fight for unjust causes. Do the combatants who fight for unjust causes therefore deserve punishment? Most writers say no. Qua combatants, even in an unjust cause, they deserve no punishment, although combatants on the other side have a right to kill them so long as they are combatants, and vice versa. Combatants deserve punishment if they fight unjustly, say by committing war crimes, not if they merely fight justly in an unjust cause. After WWII we prosecuted German and Japanese soldiers for specific war crimes, but we did not prosecute typical German or Japanese soldiers, even ones who fought us very effectively. Lots of us think that this was the right way to go.

But why? The answer must be, as just war theorist Michael Walzer says, we recognize that soldiers who fight for unjust causes (and many who fight for just ones, perhaps) are coerced or misinformed. Walzer makes this the ground of his much discussed doctrine of the “moral equality of soldiers”, which says that combatants on all sides of a conflict are moral equals, in the sense that they all have the same rights and duties, with respect to their friends and enemies. This is why it is wrong to punish prisoners of war for their cause, even if it is very evil and they were very enthusiastic and very effective in their support for it.

The doctrine is controversial, not least because Walzer overstates both the doctrine and its grounds, as if it is reasonable to suppose that true volunteers can never be expected to know better than to believe in the justice of their causes. That they are “invincibly ignorant”. I think that this is not reasonable, frankly. But it is reasonable to suppose that many soldiers, even those who fought for such manifestly unjust causes as the German one in WWII, could not have been expected to have known better, and that is enough for Walzer’s practical conclusions: there should be a nearly invincible presumption in favor of the innocence of combatants fighting for unjust causes because it is not the case that all of them (who were not simply coerced) should have known better and we could never sort out which are which.[14]

Side-stepping the controversy, at least in part: in order to fight morally, and thus fulfill his professional obligations as a soldier, one must be a combatant, and that means that one is honestly entitled to the benefit of Walzer’s doctrine, either by being a conscript (and thus sufficiently coerced to deserve no blame) or by, at least, being incapable of knowing better than to believe in the cause if the cause is unjust. Someone who fights without either of these protections, as Maverick would if he follows his orders, cannot escape blame for fighting in an unjust cause. He can hope to escape punishment for his culpability, if he is captured by an enemy who observes the doctrine of the moral equality of soldiers, as all powers should, only because it will be impracticable for that enemy to sort him out from his more invincibly ignorant comrades. So, so far from there being a worry that Maverick has a professional obligation to fight that might override his moral obligation not to fight, he has a professional obligation not to fight, since he has a professional obligation to fight as a combatant, a status he cannot deserve as someone who believes in the injustice of his cause.

10. For A Policy of Permitting

Selective Conscientious Objection

I have argued that it is wrong to volunteer for military service without a right to selective conscientious objection. However, this may not prove that governments owe their volunteer service members such a right. Nor do I know how to prove that, now. Nevertheless, suppose that my argument above is sound and the vast majority of potential volunteers suddenly become aware that it is sound, so that most of them now refuse to volunteer. Governments would then have no choice but to either grant volunteers a right to selective conscientious objection or fill their military needs through conscription. In this final section I argue that making them choose one of these would not, on balance, be a bad thing.

Countries with normally volunteer armies have never been able to fight big, or even medium-sized, wars without resorting to conscription. For instance the U.S., which tends as much as any country to prefer a volunteer military when possible, resorted to conscription in its Revolution, War of 1812, Mexican War, Civil War (both sides), Spanish-American War, World War I, World War II, parts of the Cold War, Korean War, and Vietnam War.[15] As I write this the U.S. is in its fifth year of the occupation phase of its 2^nd Iraq War: easily the most difficult conflict that it has tried to tackle with an all-volunteer military. That war has so far gone badly for the U.S., at least in part because of insufficient numbers of troops during crucial phases. My point: volunteer militaries are not an alternative to conscript militaries in serious cases; they are at best an alternative to conscription in times of peace and in short “brush-fire” wars.

So if conscription is a deplorable way to fill the ranks, as many think, it is still the only way to fill them, except in the best of times. This ought to loom large in any discussion of how bad it would be to offer volunteers a right to selective conscientious objection.

But what of conscripts? Someone might argue for parity of relevant rights between conscripts and volunteers. After all, we give pacifists of both sorts a right to conscientious objection, why not selective conscientious objectors? Suppose for a moment that there is no good answer. Then for policy makers the following two arguments come to the fore.

1. If we should offer a right of selective conscientious objection to volunteers, then we should offer it to conscripts.

2. We should offer it to volunteers.

3. So we should offer it to conscripts.

1’. If we should offer a right of selective conscientious objection to volunteers, then we should offer it to conscripts.

2’. We should not offer it to conscripts.

3’. So we should not offer it to volunteers.

Someone might choose 2 for reasons such as those I give above, or for reasons of fairness, such as a moral demand for legal parity between pacifists and selective objectors, or because she thinks that it would serve as a good deterrent against unjust or imprudent wars. Someone might choose 2’ because she thinks that many service members, perhaps especially conscripts, would use it to opt out of just wars for bad, even insincere, reasons, or because, at least in the sorts of crises that call for conscription, we need a military culture of “no matter what” loyalty to win.

I begin with the latter, i.e., she who chooses argument II. She cannot have her 1’ and her 2’ too, since the parity argument that might establish 1’ is not available to the kinds of consequentialist arguments that might establish 2’. The reasons for 2’ appeal solely to alleged bad consequences of offering SCO to conscripts. But no such reasons for accepting 1’ exist. Indeed, as the U.S. learned in WWI, pacifists can almost never be coerced into fighting; selective objectors, as the U.S. learned in Vietnam, usually can be coerced into fighting. So if we are consequentialist enough to find the reasons for 2’ enticing, we are too consequentialist to accept 1’.

Perhaps worse, the consequentialist reasons that tempt people to believe 2’ are empirical hypotheses, empirical hypotheses that don’t fit the empirical data that we have. During the first half of WWII British service members had a right to selective conscientious objection. It was rarely exercised. Indeed, none of the victorious powers in WWII enjoyed a greater loyalty from their troops during the first half of WWII than Great Britain. On the other hand, during the Vietnam War U.S. service members had no right to selective conscientious objection. During the second half of that war many U.S. service members fought only to stay alive: towards that end not a few were indifferent about whether it required killing the enemy or killing their own officers.

So the recent empirical evidence seems to show that service members will be effective and loyal if and only if they are convinced of the justice of their cause, whether or not they have a right of selective conscientious objection.

Now let’s turn to 1. I am not sure whether 1 is true, frankly. A personal contract, such as volunteers make with their governments, and the social contract, such as we all (arguably) have with our governments, are very different things. If I doubted the justice of a war, I would not volunteer for military service in it even if the contract guaranteed that my service was strictly limited to that war (a guarantee which the U.S. has refused to grant any service member for almost 100 years). But if I only doubted the justice of the war – I wasn’t convinced that it was wrong – I would face a tough decision if drafted. It seems to me like I owe my country at least as much soul searching as I can do, in that case, and if after that I can offer nothing but suspicion and doubt, then I would serve.

This is not just autobiography. I think that I am describing a reasonable position – the most reasonable position: we may be required to do what our country demands that we do, even when it would not have been permissible for us to have put ourselves voluntarily at our countries’ disposal to do it.

It is therefore doubtful whether 1 / 1’ is true. If it is true the evidence for 2’ is negligible, at best. On the other hand, besides my argument in this paper, fairness seems to demand parity between pacifists and selective objectors. No principle that I am aware of says that opponents of war deserve more rights than opponents of particular wars. Finally, the empirical evidence of recent human history suggests that the justice or injustice of a war is much more important to its outcome than how we trick or cajole people into fighting it.

Best draft as of 1/7/08

NOTES