god, war, and conscience - SSRN papers

GOD, WAR, AND CONSCIENCE Christopher J. Eberle

ABSTRACT Many military officers believe that they morally ought to obey legal orders to fight even in unjust wars: they have a moral obligation to exercise indiscriminate obedience to legal orders to fight. I argue that officers should not be required to exercise indiscriminate obedience: certain theistic commitments to which many citizens and officers adhere prohibit indiscriminate obedience to legal orders to fight. This theistic argument constitutes adequate reason not to require officers to exercise indiscriminate obedience. However, this raises a further question: namely, whether it is appropriate to rely on such a theistic argument when shaping the moral requirements of military officership. I argue that citizens and officers have good reason to make public decisions solely on religious grounds and so are free to follow my theistic argument when shaping the requirements of military officership. KEY WORDS: religion and politics, selective conscientious objection, just war tradition, religion and the military, doctrine of restraint

The entire aim of military training is to reduce the foot soldier [to an automaton], to eliminate any traces of ego, and to assure, through extended exposure, an internalized acceptance of military authority. —Stanley Milgrim (1974, 181) “We are your soldiers, emperor,” they said, “but as we freely confess, we are nevertheless God’s slaves. To you we owe military service, to him we owe innocence. From you we take the wages of labor, from him we have received the beginning of life. We cannot follow the emperor in these matters so as to deny God, our creator. If we are not by some deadly cause compelled to offend, we will still obey you as we have done until now, but otherwise we will obey him rather than you. We offer our hands against any enemy, but we think it wicked to stain them with the blood of innocents. Our right hands know how to fight against the wicked and against enemies, but not to butcher good men and fellow citizens. We have always fought for justice, goodness and the safety of the innocent. These things were until now our reward for the dangers. We have fought faithfully. How may we keep faith

JRE 35.3:479–507. C 2007 Journal of Religious Ethics, Inc.

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with you if we do not show faith to God? We swore first allegiance to God, and thence we swore allegiance to the king.” —Response of the “Blessed Martyrs of Thebes” to the Emperor Maximian’s demand that they aid in the extirpation of Gaullic Christianity1 Men who take up arms against one another in public war do not cease on this account to be moral beings, responsible to one another and to God. —Francis Lieber, General Orders No. 1002

1. Introduction Here is a puzzle I have encountered while teaching prospective military officers at the United States Naval Academy. Every midshipman is required to take a course on ethics, “Moral Reasoning for Naval Leaders,” the culmination of which is a module on the Just War Tradition (JWT). It seems (to me) that the midshipmen are encouraged—though certainly not required—to accept some variant of that tradition. However, it is not clear (to me) why they are encouraged to do so. It is particularly unclear what relevance the JWT is supposed to have to a midshipman’s future professional responsibilities: if some midshipman accepts a variant of the JWT, and is subsequently commissioned as an officer in the United States Navy or Marine Corps, then what is he supposed to do with the tradition he has embraced? The cynical answer to this question is that he is expected to use the JWT as a recipe for rationalizing war: if he is ordered to fight in a war, then the JWT provides him with ample resources for convincing himself of the legitimacy of that war, and so of the order to fight, and so of his fighting. If that is the use to which officers are to put the JWT, then encouraging midshipmen to embrace that tradition is understandable—a clean conscience is no mean achievement. However, such an “achievement” would be deeply troubling. After all, the JWT assumes that some wars are just, that others are unjust, and purports to help adherents distinguish between the two. Surely, an officer who sincerely adheres to the JWT cannot assume that the wars in which he is ordered to fight will square with the JWT. Expecting adherents of the JWT to arrive at a uniform result, particularly when the result uniformly legitimates war, seems to be a clear misuse of that tradition and—much more importantly—to encourage a very troubling deficit of moral seriousness in military officers. Do we really want our military populated by officers 1 Quoted in William of Ockham 1992, 83–84. The response is apocryphal; see Adolph Harnack 1981, 96. 2 Quoted in Gregory Reichberg 2006, 568.

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prone to rationalize their participation in what they take to be morally unjust activities? Well, suppose that this cynical answer is wrong, that military officers are not expected to use the JWT as a recipe for rationalizing war. In that case, a given officer might find himself in quite a difficult spot; he is ordered to fight in a war, evaluates that war by relying on the resources of the JWT, and responsibly concludes that the war in which he has been ordered to fight is unjust. What is he to do in that case? May he refrain from participating in that war, say, by tendering his resignation, and, if his resignation is not accepted, by an outright refusal to comply? Or ought he to soldier on, fighting in a war that he privately disavows but that he, as a public servant, must prosecute? Many favor the latter option: military officers cannot “pick and choose the wars they will fight,” even if their pickings and choosings are guided by the JWT. They have a role-specific moral and legal obligation to obey lawful orders, including lawful orders to fight in a particular war. I will defend a contrary view, namely that military officers should be allowed to exercise discriminating obedience to legal orders to fight: they need not fight in wars that they are responsibly convinced are unjust, even if ordered to do so by the appropriate civilian authorities. Note that I will focus exclusively on the moral responsibilities of military officership and am, for my purposes in this article, agnostic about the legal status of discriminating obedience.3 I should warn the reader that I will be engaged in a thoroughly parochial affair. I intend to reflect on the moral obligations associated with military officership in the United States, and am agnostic about the obligations of military officers in other countries and other forms of government. This narrow focus has a number of important implications for the ensuing argument. First, the argument that I articulate against indiscriminate obedience has a salience in our country that it would likely lack in a more secular society. Many in the U.S. military are theists, typically Christian by conviction: “nearly half of Americans serving in the armed forces identify themselves as Protestant, and one-fourth as Roman Catholic” (Washington Post 2003a). Many of them take seriously the bearing of their religious commitments on their conduct. It seems to me that some of the most fundamental and therefore nonnegotiable theistic commitments imply that indiscriminate obedience to legal orders to fight is anathema: the 3 There is a substantial literature on the legal status of discriminating obedience or—as it is often (pejoratively) called—“selective conscientious objection.” Much of that literature bears on Gillette vs. United States, in which the Supreme Court denied that citizens have a constitutional right to exercise discriminating obedience. Particularly helpful on this topic is Kent Greenawalt 1971, 31–94.

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argument I offer against indiscriminate obedience is a religious—indeed, theistic—argument. Given that many officers in the U.S. military are theists, and so have good reason to object to indiscriminate obedience, the question whether we should require officers to exercise indiscriminate obedience has a practical relevance to Americans that it probably lacks for citizens in some other countries. Second, my argument against indiscriminate obedience is open to a kind of objection to which it would not be vulnerable (or not vulnerable in the same way) were the United States not a liberal democracy. Some political theorists have claimed that citizens and public servants in liberal democracies should not rely on religious arguments when making decisions about public matters and, most relevantly, that religious qualms should not shape the normative contours of public roles such as military officer, judge, or legislator. Given my interest in identifying the moral responsibilities of officers in the U.S. military, given that the United States is a liberal democracy, and given the crucial role of religious claims in my argument against indiscriminate obedience, I will address some of the concerns political theorists have raised regarding the proper role of religious reasons in a liberal polity. I will argue that there is good reason for both citizens and military officers to make decisions about public matters on religious grounds. Finally, by focusing on the responsibilities of officers in the U.S. military, I substantially increase the difficulty of making the case for discriminating obedience. Why? I take it that an obligation to fight in an unjust war is a very onerous burden. Onerous burdens are easier to defend if they are voluntarily assumed than if they are acquired as a consequence of coercion. So an obligation to fight in an unjust war will be easier to defend if that obligation is voluntarily assumed than if it is acquired as a consequence of coercion. However, the U.S. military is now and will in the foreseeable future be an all-volunteer force; nobody is legally required to be commissioned in the U.S. military. This makes the requirement that officers exercise indiscriminate obedience much easier to justify: volunteers have nobody to blame but themselves should they find themselves having to fight in a war they responsibly regard as unjust. Nevertheless, I will argue that even volunteers should not be required to exercise indiscriminate obedience. There is one further respect in which my aims are parochial: I intend to articulate a theistic rationale in support of discriminating obedience, but I do not articulate a secular rationale for discriminating obedience. That is because I am not sure that there is a comparably powerful secular rationale for that claim. Perhaps there is, but I am not sure. If there is, then all is well and good: two arguments are better than one, particularly for a contentious claim such as the one I am interested in defending. That said, let me be clear that, in my view, even if there is no adequate


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secular rationale for the claim that military officers should be permitted to exercise discriminating obedience, the permission for which I argue applies to military officers whether religious or secular. That is, there is a sound theistic argument for the claim that military officers who are ordered to fight in an unjust war need not fight in that war whether or not they have any religious commitments (and so even if they reject my theistic argument).

2. In Support of Indiscriminate Obedience I take it (from a very informal and selective sampling) that many officers in the U.S. military are deeply hostile to discriminating obedience: for them, it is a matter of personal honor and moral duty that, when required by the civilian authorities to fight in a given war, they obey, whatever their estimation of the overall moral propriety of that war and whatever the personal sacrifice that obedience involves. From their perspective, to disobey a legal order to fight is to violate an exceedingly important requirement of the moral code of military officership: “to refuse a combat assignment is to commit the most serious offense against one’s military honor and to break faith with one’s peers” (Wakin 2000, 72).4 Samuel Huntington reconstructs this moral code in his well-known tome on civil-military relations, The Soldier and the State (1957): The military profession exists to serve the state. To render the highest possible service the entire profession and the military force which it leads must be constituted as an effective instrument of state policy. Since political direction comes from the top, this means that the profession has to be organized into a hierarchy of obedience. For the profession to perform its function, each level within it must be able to command the instantaneous and loyal obedience of subordinate levels. Without these relationships military professionalism is impossible. Consequently, loyalty and obedience are the highest military virtues: “the rule of obedience is simply the expression of that one among the military virtues upon which all the others depend . . . .” When the military man receives a legal order from an authorized superior, he does not argue; he does not hesitate; he does not substitute his own views; he obeys instantly [73; see also 55–58, 258].5 4 This opinion is not held only by military officers, but by citizens as well. So, for example, William Safire, commenting on the refusal of some Israeli soldiers to participate in the forced withdrawal of settlers from Gaza, claimed that discriminating obedience is “beyond the pale” (Safire 2005). 5 Huntington’s emphasis on the importance of obedience in military service is widely affirmed. A British parliamentarian of the eighteenth century noted, “[Soldiers] are a body of men distinct from the body of the people; they are governed by different laws, and blind obedience, and an entire submission to the orders of their commanding officer, is their only principle” (quoted in Cohen 2002, 241). Similarly, Father William Corby, C.S.C., chaplain

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Although Huntington here employs descriptive language, I take him to be articulating a set of normative standards for military professionals: he is laying out for us not how military professionals in fact conduct themselves, but how they ought to. The normative standards he articulates seem to prohibit discriminating obedience: if, to gloss Huntington, “when the military man receives a legal order from an authorized superior . . . he [ought] not substitute his own views; he [ought to] obey . . . instantly,” then it seems that we should take quite a dim view of an officer who refuses to comply with a legal order to participate in a given war on grounds that that war is unjust. What else could that be but to substitute one’s own view for a legal order by an authorized superior? That many officers, politicians, and political theorists are hostile to discriminating obedience is a fairly safe bet. But why are they hostile? Many officers are, I think, persuaded that they morally ought to exercise indiscriminate obedience by something like the following argument. It is a moral truism that promises generate obligations: under normal conditions, those who solemnly promise to pursue some course of action thereby obligate themselves to pursue that course of action. A person is commissioned to serve as an officer in the U.S. military only if she takes what is known as the Oath of Commissioning, in which she promises “without any mental reservation” to “support and defend the United States Constitution” and so promises to comply with the directives of the civilian authorities in the manner specified by the Constitution. Among the directives officers promise to obey are legal orders to fight in the wars declared by the civilian authorities—period. Therefore, each and every officer ought to comply with the directives of the civilian authorities to wage war. Officers ought to exercise indiscriminate obedience because they have promised to do so—what could be more straightforward?

during the United States Civil War stated, “Among officers and veterans, it is an axiom to obey first and if there be a supposed injustice, to speak of it afterward; not, however, before showing absolute obedience to the order given, be it right or wrong” (quoted in Baxter 2004, 262). This position was operationalized in various militaries: British army regulations in 1871 provided that “every order given by a superior must be obeyed at once and without hesitation. Its propriety must not be disputed or questioned at the moment” (Osiel 1999, 218). The thoroughgoing obedience of soldiers to superiors can be (and is by Huntington) closely associated with military professionalism. So, for example, “Robert Graves believed that ‘troops serving in the Pas de Calais loathed the French.’ Despite this, however, the professionals in the army got on with the job in hand. Major Tom Bridges went to war with the 4th Dragoon Guards in 1914, summing up the cavalry’s motto as ‘We’ll do it; what is it?’, and admitting that they would as soon have fought the French or Belgians as the Germans. ‘Their job was to kill us,’ said one British warrant officer, ‘ours to kill them’” (Holmes 1985, 286).


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It is reasonably clear, however, that this argument will not do. How so? As with other social roles, military officership is defined by a set of statuses, rights, and responsibilities. To be a military officer is, for instance, to have a certain rank, to be located in a particular chain of command, and to have a specific set of responsibilities by virtue of that rank and location in the chain of command. Now this nexus of status, rights, and responsibilities is not a “natural,” fixed reality; the contours of military officership are not limned by the fiery finger of God. Rather, military officership is a social and political construction, an edifice built by those who have the capacity to alter what they have constructed. That role might have been, and can be, constructed differently than it in fact is. Most pertinently, the obligations now generated by those who take the Oath of Commissioning are a function of what that oath is understood to involve—but we can change that understanding. And so, therefore, we can change the obligations of those who inhabit the role of military officer. Not only can the extant understanding of the Oath of Commissioning be altered, but it is an open question whether it ought to be altered. Whatever the travails of the is/ought distinction, it is serviceable enough for us confidently to assert that facts about how a social role is constructed do not imply anything in particular about how that role ought to be constructed. If we want to determine which responsibilities ought to be attached to military officership, we cannot just identify how that social role has in fact been constructed. More particularly, we cannot appeal to the fact that military officers are now required to take an oath understood to preclude discriminating obedience as a basis for the claim that officers should be required to take such an oath. So far as I am concerned, that is the crucial question: is it reasonable and wise to require officers to make that promise? That question should be put more precisely: is it reasonable and wise for the citizenry of the United States to require indiscriminate obedience of military officers? In our democratic political system, the role of the military officer is decisively shaped by the citizenry: although the legislative and executive branches of government play a crucial role in regulating the military, this regulatory role ultimately depends on compliance with the will of the citizens who elect them. As those who ultimately determine the responsibilities of military officership, we—the citizens of the United States—must reflect on what it is reasonable and wise for us to require of those vocationally dedicated to our protection. And if we decide that officers need not promise to exercise indiscriminate obedience, then, of course, our longstanding commitment to the civilian control of the military implies that officers should not be required so to promise. Moreover, if an officer does not promise to exercise indiscriminate obedience, then she has no role-specific obligation to exercise indiscriminate

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obedience.6 So we face the question: should we require officers to take an oath that is understood to require indiscriminate obedience?7 I will now explain why we should not.

3. A Theistic Argument in Support of Discriminating Obedience There are some things theists just cannot do—although theists have differed vociferously about just what those things are. Some theists object to oath taking as such: some Christians, for example, believe that the taking of oaths is explicitly prohibited by Jesus Christ and so is never permissible. Others have objected not to the taking of oaths as such, but to the taking of oaths with objectionable content. So, for example, Roman soldiers were required to take an oath to the emperor “to whom faithful devotion should be given . . . as if to a present and corporeal deity” (quoted in Brown 2003, 101). Many Christians (and Jews and Muslims as well) would find such an oath objectionable: to take an oath that construes a political authority even if only “as if” a deity is thereby to betray God— whether or not “faithful devotion” to that authority actually requires the oath taker otherwise to disobey God. Now if the Oath of Commissioning is objectionable to theists, it need not be objectionable by virtue of its being an oath, or by virtue of the explicit content of that oath, but by virtue of what it requires oath takers to do. So, for example, there has been a long history of theistic reflection on the moral propriety of war: theists have disagreed with one another regarding the moral propriety of the intentional destruction of human persons that is an unavoidable part of war. For those theists who conclude that it is never morally permissible intentionally to destroy another human being, it is plausible to suppose that taking an oath to wage war is morally prohibited. They cannot take the Oath of Commissioning because they believe themselves to be morally prohibited from performing the very actions that taking the Oath of Commissioning would oblige them to perform. However, not many theists are pacifists and so not many theists will object to the Oath of Commissioning on such grounds. To the contrary, many theists believe that it is sometimes 6 This is not necessarily true: it is possible that officers have a role-specific obligation to exercise indiscriminate obedience but that that obligation is not a promise-generated obligation. 7 There are various arguments that support the conclusion that we should require officers to exercise indiscriminate obedience. The most powerful, I think, is that a great moral good—our liberal democratic form of government—requires officers to exercise indiscriminate obedience: our liberal democratic form of government functionally requires effective civilian control of the military and that effective civilian control of the military requires that officers exercise indiscriminate obedience. However, I do not think that that argument is successful. See Jeff McMahan 2004, 693–733.


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morally permissible—even obligatory—for them intentionally to destroy other human beings. Theistic advocates of the JWT are a pertinent case in point.8 Nevertheless, even they have good reason to refuse to promise to exercise indiscriminate obedience. My intention is to articulate that reason and then to explain why it is reasonable for them to shape the social role of a military officer in such a way as to permit officers to exercise discriminating obedience. The result will be a theistic argument for discriminating obedience.9 3.1 Why theists cannot promise to exercise indiscriminate obedience I do not believe that those who promise to exercise indiscriminate obedience must be unfaithful to theism, or defective in their understanding of theism, or anything of that sort. Surely the bearing of theistic commitments on the moral propriety of indiscriminate obedience is a matter about which there is reasonable disagreement among morally sensitive and adequately informed persons. Nevertheless, some very common theistic commitments seem to me to provide good reason to refuse to exercise indiscriminate obedience. Here is the argument. (1) In any conflict between God’s demands and a legitimate government’s demands, God’s demands must take precedence. Fundamental to theism is the conviction that God—a maximally excellent Person—is worthy of unconditional allegiance: although theists are free to make and to honor all manner of commitments—to parents, friends, spouse, nation, and the like—theists also believe that, in cases of conflict, commitment to God must win out over any and all competitors. Therefore, if God demands that I perform action A, then I am thereby morally obliged to perform A and no competing moral considerations can defeat that obligation. Moreover, no competing normative considerations can defeat that obligation: if God commands me to perform A, then I must so act whatever the epistemic, legal, aesthetic, egoistic, or communal considerations that count against that action. In short, nothing can successfully compete with a genuine divine command—divine commands are overriding. 8 Although many advocates of the JWT are theists, I do not regard the JWT as necessarily theistic or secular. Some theists reasonably adhere to the JWT, as do some secularists. 9 The argument is theistic in the sense that the argument is sound only if some claims about God are true. It is not theistic in the sense that it supports a conclusion for which only theists have adequate reason. So far as I am concerned, it is possible that there are sound non-theistic arguments for the conclusion that officers ought not to be required to exercise indiscriminate obedience. Whether or not that is the case does not, so far as I can tell, have any bearing on the soundness of my theistic argument.

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Journal of Religious Ethics This is a very common view, I think. It is rooted in biblical documents: ordered by the Sanhedrin to cease and desist from preaching about Jesus, St. Peter declares, “We must obey God rather than men” (Acts 5:29)—a principle pregnant with implications not just for what one preaches, and one endorsed in various formulations in various traditions, of which the following is a small selection: “Nothing is to be believed or obeyed in preference to God’s command” (Augustine 1998, 611).10 “Man is subject to God absolutely, in all things both inward and outward, and so is bound to obey Him in all things” (Aquinas 2002, 69–70). “The supreme, infinite, and all-comprehending Being requires a supreme regard to himself; and insists upon it, that our respect to him should universally rule in our hearts, and every other affection be subordinate to it” (Edwards 1960, 21). “Since the right to command is required by the moral order and has its source in God, it follows that, if civil authorities pass laws or command anything contrary to the will of God, neither the laws made nor the authorizations granted can be binding on the consciences of the citizens, since God has more right to be obeyed than men” (John XXIII 1963, 18). The list could go on. The claim that God’s commands are overriding is not a trivial point. It seems to me very natural for theists to believe that the demands of justice are overriding by virtue of the fact that God demands that we act with justice: if some action is, all things considered, the just act to perform, then we should perform that action, whatever the competing normative considerations (practical, legal, aesthetic, communal, and so on) because God demands that we act with justice. Divine supremacy translates into the supremacy of justice by way of God’s demand that we act with justice.11 Moreover, absent this connection between God’s supremacy and justice, it is an open question whether considerations of justice are in fact

10 “A king has the right to command that something be done in the state over which he reigns, even if neither he nor any of his predecessors has ever ordered it before. To obey him in such an instance does not undermine that community; indeed, to disobey him would harm it, for a general contract to obey its rulers holds good in human society. How much more, then, are we bound unhesitatingly to serve God, the Ruler over all creation, in any matter where he commands us! As in the hierarchy of human society a more powerful official is placed above one of lesser rank and is to be obeyed, so God stands above all” (Augustine 1997, 87). 11 I am not assuming here that God’s demands make for justice; the claim that the overridingness of justice considerations depends on divine demand does not depend on the claim that God’s demands determine what is just. It is possible that what makes for justice is fixed even for God but that absent God’s demand that we act with justice, justice considerations lack much by way of normative weight.


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overriding. In fact, to lay my cards on the table, I think that the claim that all-in moral obligations override competing legal, communal, prudential reasons for action is itself a theistic holdover—a claim that I find dubious absent a rather robust theistic rationale. This is not to say, of course, that, absent theism, the claim that all-in moral obligations are overriding is incoherent. As far as I can tell, that claim is not incoherent but difficult to ground; it is a claim for which I can espy no adequate secular rationale and which does not seem “inherently” plausible just on reflection.12 (2) God demands that we refrain from intentionally participating in unjust projects, such as the waging of unjust war. Theists regard God as demanding justice: as a maximally excellent Person, God cannot expect anything less from us than due respect for the rights and deserts of human beings. Moreover, theists commonly take there to be just and unjust wars: wars fought to extirpate the faithful, for personal fame, for the glory of the empire, or to compel the unconverted to convert, are commonly regarded as unjust wars. And not only unjust but egregiously unjust: there are few things worse than killing, maiming, and uprooting human beings in pursuit of such ends. It will seem, therefore, to many a theist that she cannot intentionally participate in an unjust war.13 (3) Even legitimate governments might demand that an officer fight in an unjust war. I believe that a liberal democratic system of government is morally superior to the alternative systems of government. Also, I believe that the system of government we now enjoy in the United States is a reasonably decent approximation to a liberal democratic ideal: at the very least, it is a reasonably decent and just system of government. However, even reasonably decent governments can, and do, wage unjust wars: public offices are invariably inhabited by persons afflicted by pride, cowardice, 12 Interestingly, some who address matters regarding the proper conduct of war seem able to recommend certain actions because they deny (or assume) that moral claims are not overriding. Thus, for example, in defending his doctrine of supreme emergency, Michael Walzer claims, “There are no moments in human history that are not governed by moral rules; the human world is a world of limitation, and moral limits are never suspended— the way we might, for example, suspend habeas corpus in a time of civil war. But there are moments when the rules can be and perhaps have to be overridden. They have to be overridden precisely because they have not been suspended” (2004, 34). On the general issue of overridingness, see Ishtiyaque Haji 1998, 161–80. 13 I think that this claim is most plausible when a given war lacks just cause, and less plausible when a given war fails to satisfy various other criteria associated with the JWT—last resort or right intention, for example. I am open to the claim that theists cannot promise to obey legal orders to fight in wars that lack a just cause, but that they can so promise to fight in wars that fail to satisfy other criteria for a just war. My thanks to Jeff McMahan for raising this point in correspondence.

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(4)

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Journal of Religious Ethics greed, and other such vices and so are more than capable of using their public office to wage unjust war. Given that fact about the human condition, we cannot reasonably deny that there is a realistic prospect that our government will wage war unjustly. In any conflict between God’s demand that we refrain from participating in unjust projects and a legitimate government’s demand that a military officer fight in an unjust war, God’s demand must take precedence. Given her unconditional allegiance to God, given that God demands that we abstain from fundamentally unjust projects, and given a command of the governing authorities to engage in an unjust war, a theist naturally concludes that God’s demand takes precedence. Like the Blessed Martyrs of Thebes, she is a slave to God and cannot wage war on the innocent even if ordered to do so by the powers that be: slaves to God cannot allow themselves to become mere instruments even of legitimate and just governments. One ought not to promise to do that which one intends not to do. This strikes me as a moral truism. Theists cannot intend to obey a legitimate government’s demand to fight in an unjust war. Given the realistic prospect that even a just and legitimate government such as the United States government will wage war unjustly, any theist who contemplates being commissioned as an officer in the U.S. military must take seriously the prospect that she will be ordered by her government to fight in an unjust war. If she is so unfortunately circumstanced, her theistic commitments provide her with ample reason to believe that she cannot obey such an order. Should she recognize this, she will, other things being equal, intend not to obey an order to fight in an unjust war and so not to exercise indiscriminate obedience. Hence, theists ought not to promise to obey the demands even of a legitimate government to fight in an unjust war. If one ought not to promise to do that which one intends not to do, and if a theist knows that she cannot sincerely promise indiscriminately to obey legal orders to fight, then she ought not to promise to exercise indiscriminate obedience.14 Hence, theists cannot in good conscience take the Oath of Commissioning. As I noted earlier, the Oath of Commissioning is understood to oblige those who sincerely take it indiscriminately to obey legal orders to wage war. Given that understanding, only those may take the Oath of Commissioning who sincerely intend indiscriminately to obey legal orders to wage war; otherwise they take

14 Of course, this line of argument applies to any promise that a theist might contemplate making, not just to the Oath of Commissioning.


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the oath in bad faith. However, theists cannot in good conscience intend indiscriminately to obey legal orders to wage war. Hence, they cannot take the Oath of Commissioning. That is, if they are to take the Oath of Commissioning, then they cannot understand that oath to bind them to fight in unjust wars.

3.2 Four clarifications My experience is that this argument is typically—almost always— met with deep skepticism. There are surely many plausible reasons to doubt that it is sound—I will shortly address one such objection in detail. However, some of that skepticism is misplaced, I think, as it is premised on various misunderstandings of what my argument purports to show. Hence, I will now try to anticipate some of those misunderstandings by making four comments. First, to claim that a theist cannot in good conscience obey a legitimate government’s demand that she fight does not commit her to the very different claim that she, rather than the legitimate government, has the authority to wage war. The latter is a claim about which agency has the authority to determine that a war is to be fought; the former is a claim about whether particular individuals have to help that agency to prosecute that war. The latter permits private wars; the former permits not fighting in a publicly authorized war. Given this distinction, theists who cannot promise to exercise indiscriminate obedience are free to affirm that the governing authorities have exclusive right to declare and to wage war; for example, they can coherently claim that officers may disobey legal orders to fight in an unjust war while also denying that officers may rebel against an unjust and tyrannical government. Discriminating objectors need not be rebels— much less anarchists or revolutionaries. Indeed, it is not just that theists who reject indiscriminate obedience can coherently affirm that only the governing authorities may wage war; it is natural that they do so. After all, many of the theists who cannot exercise indiscriminate obedience will do so because they adhere to the JWT.15 According to many prominent formulations of the JWT, waging war is the exclusive prerogative of legitimate governments: neither private citizens nor individual officers may wage war on their own authority. Therefore, the JWT can motivate hostility to indiscriminate obedience and also motivate commitment to the claim that legitimate governments have the exclusive prerogative to 15 This is not to say that those who adhere to the JWT have ordinarily affirmed the propriety of discriminating obedience. Many have not; some have. See R.H. Russell 1975, 22, 147–54.

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wage war. Indeed, this seems to me a very natural position for theistic advocates of the JWT to take. Second, it might seem that if we grant that a legitimate government has the exclusive authority to wage war, then those over whom a legitimate government has such authority are morally obliged to obey that government even when it misuses its authority. After all, as William of Ockham claims, it can be the case that “the superior sins mortally in commanding, and yet the subordinate merits in obeying” (1992, 19). Therefore, for example, since parents have the authority morally to oblige their children by way of commanding them, then it is possible for a parent to command a child to perform an unjust act and yet for that child to be morally obliged to perform that act. If I command my son, eight-year-old Nate, to lie to his Grandmother about our whereabouts, then it is plausible to suppose that he is morally obliged to lie. I have acted wrongly, but he has not; I am guilty, he is blameless. Similarly, for legitimate governments and in particular for governments that order a military officer to wage an unjust war: in such a case, the governing authorities “sin mortally” but the officer “merits in obeying.” However, this will not do. No doubt, there are all sorts of legitimate authorities that can obligate others by way of commanding them to act in some way: governments, parents, perhaps even philosophy professors. Also, it is plausible to suppose that there are circumstances in which subordinates ought to obey the unjust orders of those in authority over them. However, subordinates ought not to obey the orders of those in authority over them when they are ordered to commit an egregious injustice. Therefore, although it is true that children are sometimes morally obliged to obey the unjust demands of their parents, no child can be obliged by a parent’s command to torture a sibling, to murder a neighbor, or the like. Similarly, although it is true that a legitimate government will sometimes oblige a military officer to commit an injustice, even a legitimate government cannot oblige a military officer to commit an egregious injustice, and to fight in an unjust war is to participate in an egregious injustice. Vitoria notes, “If [a given] war seems patently unjust to the subject, he must not fight, even if he is ordered to do so by the prince. This is obvious, since one may not lawfully kill an innocent man on any authority, and in the case we are speaking of the enemy must be innocent” (1991, 307). Third, I have been assuming not just that theists cannot intentionally participate in what is in fact an unjust war, but also that theists cannot intentionally participate in what they responsibly believe to be an unjust war. As a practical matter, these come to the same thing: if it is the case that a person ought never to participate in an egregious injustice, then the only responsible way for a person to act on that maxim is to do her level best to ferret out egregiously unjust acts and then to refrain


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from performing those acts that she sincerely concludes are egregiously unjust. Similarly, if a theist ought unconditionally to comply with God’s demands, then, as a practical matter, she does that by making the best use of her cognitive resources to determine what God demands of her and then to obey what she sincerely concludes are God’s demands. However, this raises a further question. That a theist ought to make the best use of her cognitive resources in determining what God demands of her does not by itself imply anything about how she goes about determining what God demands of her. There are, after all, all sorts of ways in which theists might go about identifying God’s demands. Given that, perhaps the best way for a theist to determine whether a given war is unjust is for her to defer to the determinations of the state on that matter. After all, we often rely on moral authorities when determining how we ought to act and, so long as our system of government is fairly just and open, might not theists agree to abide by the determinations of their government regarding the moral propriety of waging war? If so, then perhaps a theist may promise indiscriminately to obey legal orders to fight: because she reasonably relies on her government’s judgment regarding the justice of the wars in which she is ordered to fight, she can be reasonably confident that she will never be in a position to conclude that she has been given an order to fight in an unjust war, and so can promise indiscriminately to obey all legal orders to fight. There is some merit to this argument. Appeals to moral authority play an important and salutary role in our moral determinations. And there is no reason why a legitimate government should not function as an epistemic authority in an officer’s moral deliberations. Indeed, given the kind of information often relevant to a reasoned judgment regarding the justice of a given war, it would be both foolish and wrong for an officer to deny the government any role as an epistemic authority in her deliberations. However, the moral judgment of a legitimate government is only one among a number of reasons that bear on the moral propriety of a given war and it is feasible that the overall balance of reasons tilts decisively against the justice of a given war. For example, it might be the case that a Catholic officer reasonably accords great epistemic weight to the moral determinations of her church’s teaching authority, and that authority clearly and persuasively articulates a rationale in support of the claim that a war in which she has been ordered to fight is unjust. In such a case, I see no reason to believe that she must defer to the determinations of her legitimate government: perhaps the epistemically responsible course of action is for her to accord greater weight to the religious authority. More generally, as long as there is a reasonable prospect that an officer responsibly concludes that a war in which she is ordered to fight is unjust even after giving the appropriate epistemic weight to the government’s determinations, theists have good reason to

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refuse indiscriminately to obey legal orders to fight, and I see no reason to doubt that there is such a prospect. Fourth, if I am correct in assuming that a theist cannot fight in what she responsibly concludes is an unjust war, and if responsibly concluding that a given war is unjust requires the theist to take into due consideration the various extant reasons for and against the justice of a given war, then what epistemic standard must an officer’s conviction that that war is unjust satisfy? Must it merely be the case that she has better reason to believe that a given war is unjust than that it is not unjust? Must the overall balance of reasons tilt decisively against the justice of a given war? Or must she take her conclusion to satisfy an even higher epistemic standard—such that it is certain that a given war is unjust? Some advocates of the JWT take the latter tack. According to Vitoria, it is only when a war “seems patently unjust” to a subject that she may not participate in that war; in cases of doubt, by contrast, she should obey legitimate orders to fight: “there is no doubt that in defensive [and offensive] wars, subjects are not merely permitted to follow their princes into battle even where the justice of the case is in doubt, but are indeed bound to do so” (1991, 311). Similarly, Luther contends, “If you know for sure that [your lord] is wrong [in going to war], then you should fear God rather than men, Acts 4 [5:29], and you should neither fight nor serve, for you cannot have a good conscience before God. But if you do not know, or cannot find out, whether your lord is wrong, you ought not to weaken certain obedience for the sake of an uncertain justice” (1967, 130). Both Vitoria and Luther seem to be of the opinion that refusing to obey a legitimate authority’s demand to fight is permissible only if those who disobey are certain that the war in which they are ordered to fight is unjust. I gather that Vitoria and Luther were not familiar with an allvolunteer military, and so it takes some modification to apply their position on appropriate disobedience to officers in the U.S. military. I take their position to apply to the contemporary situation in the following way: when officers take the Oath of Commissioning, they are understood to obligate themselves to obey all legal orders to fight in wars, save those they, on due reflection, regard as obviously unjust. Officers who are agnostic, uncertain, or even confident that a given war is unjust have promised to obey legal orders to fight in that war. However, I think this position is too restrictive. As I see the matter, officers must sincerely believe that a given war is unjust, and they must arrive at that belief responsibly, but they need not be certain that that war is unjust. Why? The heart of the theistic argument is that a theist cannot intentionally participate in an egregious injustice—such as the intentional destruction of innocent persons. Hence, a theist should do what she can to determine whether obedience to a given order would implicate her in such an


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egregious injustice. If she does, on reflection, so conclude, then she has sufficient reason not to obey that order. If she actually thinks that a given war is unjust, and if she has fulfilled her epistemic responsibilities in arriving at that conclusion, then she has all the reason she needs not to fight. Her lack of certainty is not decisive: what is critical is that she responsibly believes that fighting violates God’s demands, not the fact that fighting is obviously against God’s demands. That said, if she does not conclude that a given war is unjust, if she is agnostic whether it satisfies the relevant standards of justice, then she morally ought to obey a legal order to fight. (There is much more to be said by way of explicating and defending this position, but I hope that the position itself is reasonably clear.) 3.3 Excluding discriminating objectors from military officership? Suppose that theists cannot in good conscience promise to exercise indiscriminate obedience. This claim alone does not show that the citizenry should permit officers to exercise discriminating obedience. In fact, it might show only that theists are thereby unfit for military service. Just as the religiously grounded pacifism of the Mennonite disqualifies the Mennonite from military officership, as I believe it should, so also might the theist’s unconditional obligation to obey God’s demands for justice render the theist unfit for military officership. We need to say more: why should we conclude, not that the theist’s fundamental convictions disqualify her from officership, but that military officers should not be required to exercise indiscriminate obedience? Consider a prospective military officer—a Midshipman at the United States Naval Academy, for example—who takes herself to be called to enter military service, but who cannot in good conscience promise to exercise indiscriminate obedience. The only way for her to act as God requires (so she thinks) is to serve in the military without also promising to exercise indiscriminate obedience. Since it is obviously of critical importance to theists that they comply with God’s demands, our Midshipman will naturally advocate that we ought not to lay down as a condition of military officership that candidates promise to exercise indiscriminate obedience. Surely she has powerful reason to advocate that we do not require military officers to exercise indiscriminate obedience. However, not just her: even those who do not take themselves to be called to serve as military officers might have reason to permit discriminating obedience. How so? Other theists will reasonably believe that God had called some of their compatriots to serve as military officers even if they have not been so called. Those theists will naturally want to shape the social role of military officer in such a way as to permit their compatriots to comply with all of God’s demands. It is true, of course, that there will be plenty

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of others who are utterly unmoved by claims on the part of prospective officers that they are called to military service: those who do not think that God exists likely will not believe that those who claim to be called to military service have in fact been so called. This implies, not that such claims are false, but that an argument that employs such claims will not convince everyone—an all too common feature of political argument. Here, then, we have a theistic argument against indiscriminate obedience. First, theists have good reason to use their modicum of power to challenge practices that prohibit people from faithfully serving God: if faithful service to a maximally excellent Person requires a person to act in a certain way, then theists have good reason to shape public institutions so that they do not prohibit her from acting in that way. Second, faithful service to God requires the just defense of the nation but not at the cost of promising to obey legal orders to participate in what they responsibly take to be an unjust war. Hence, theists have good reason to challenge the requirement that officers in the U.S. military promise to exercise indiscriminate obedience.

4. Religious Conviction in Citizenship and Officership There are all sorts of plausible and important objections to my theistic argument for discriminating obedience. For example, many military officers with whom I have discussed this topic have raised very practical concerns about the ill consequences for military preparedness or civil-military relations of permitting officers to exercise discriminating obedience. Such concerns should be taken with utmost seriousness. However, I will not address any of them in this paper. Some might be tempted to address my argument by trying to show that God does not exist, that God does not in fact merit unconditional obedience, or that God does not call any theists to military service. However, I want to put such concerns to the side as well. I do so in order to articulate a very different kind of objection: some will be inclined to reject my argument, not because the theistic claims on which the argument depends are false or irrational, but because they are theistic. Why would they do that? Recent years have witnessed much discussion among political theorists about the proper public use of religious reasons, not by military officers, but by citizens. Some have advocated for a doctrine of restraint regarding religious reasons: citizens have a role-specific moral obligation to refrain from making public policy decisions on religious grounds. Hence they claim that if a citizen lacks a widely appealing secular rationale for a public policy, then she ought to refrain from supporting that policy, even if she takes it to have a compelling religious rationale. This doctrine of restraint has been articulated by some in the wider political culture. Thus for example, Senator Santorum (Republican, Pennsylvania)


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was widely reported as advocating the criminalization of homosexual sodomy on religious grounds (“Catholic Natural Law” theory) and was duly excoriated by Richard Cohen in the Washington Post as a “moron” who “serves as a warning” against the danger of mixing religion and politics and whose religiously grounded public advocacy Cohen regards as “polarizing” and “frightening” (Cohen 2003). Perhaps Cohen was doing his level best to follow Richard Rorty’s admonition that responsible citizens do what they can to make it seem like “bad taste” to bring religion into politics (1994, 2). The doctrine of restraint has two relevant implications for our topic. First, citizens, who partly determine the moral responsibilities that attach to military officership, ought not to make that determination solely on religious grounds. Since the theistic argument depends for its soundness on the truth of certain claims about God, citizens ought not to rely solely on that argument when deciding how to shape the role of military officer. Therefore, we can afford to ignore my theistic argument and focus on whatever secular arguments favor discriminating obedience: that is where the real action occurs, as it is only if there is a decent secular rationale that we may permit discriminating obedience. Second, the doctrine of restraint has important implications for the proper role of religious reasons in military decision making. After all, if citizens ought to refrain from relying solely on religious convictions when making public decisions, then surely military officers—who are, after all, public servants—should be held to at least that standard when they discharge their public responsibilities. For example, many will regard the prospect of military officers making professional decisions on religious grounds alone to be every bit as polarizing and frightening as they find Senator Santorum’s religious advocacy. (Witness the recent flap over General Boykin’s comments on the war on terrorism, Islam, and religious war [Washington Post 2003b].16 ) They will therefore naturally decry military officers who make professional decisions solely on religious grounds: the “code of honor” by which officers govern their conduct forbids officers to make professional decisions solely on religious grounds. This general constraint on religious reasons has direct implications for the particular matter at issue. Suppose that we permit officers to exercise discriminating obedience. We then face a further question: on what grounds may an officer decide to exercise discriminating obedience? May she decide to exercise discriminating obedience on religious grounds—even religious grounds alone? Consider, for example, the case of an officer who believes that Muslims may not wage war against an 16 A similar controversy erupted over the activities of General Ralph E. Haines, Commander of the Continental Army Command. See Anne C. Loveland 1996, 180–93.

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Islamic country. May that officer refuse to fight on such grounds? If the doctrine of restraint is correct, and if it applies to officers, then it seems not: even if an officer responsibly believes that fighting in a given war violates God’s demands, that reason is not by itself an appropriate basis for professional military decisions, and so she should not disobey a lawful order to fight solely for that reason. For what it is worth, I suspect that very many military officers (theistic and otherwise) adopt a vulgarized version of such a view—they, with many other Americans, believe that religion is a “private” matter and so not properly to be relied upon when making professional or public decisions.17 So, then, the upshot of the doctrine of restraint for our topic is, first, that citizens should not be moved solely by my theistic argument to permit officers to exercise discriminating obedience and, second, that officers should not decide solely on religious grounds to exercise discriminating obedience in particular cases. 4.1 Religious conviction and citizenship What should we make of this response to the theistic argument for discriminating obedience? I will begin by discussing the claim that citizens should not rely solely on my theistic argument—or any religious argument—when making public decisions. Let me alert the reader to my limited goals here. I intend to identify certain moral goods to be achieved by citizens who make public decisions solely on religious grounds and in so doing indicate the moral good to be achieved by permitting citizens to make public decisions solely on religious grounds. By contrast, I do not intend to show that allowing citizens to make public decisions solely on religious grounds enables us to avoid important moral evils. So for example, one might argue that citizens have a moral right to make public decisions on religious grounds alone, and that the doctrine of restraint impinges upon that right—particularly when those who exercise their right are stigmatized for so doing. Whatever one makes of this argument, there is far more to be said in favor of permitting citizens to make public decisions solely on religious grounds than merely by identifying various bad things associated with the doctrine of restraint: not only do citizens have a moral right to make public decisions on religious grounds alone, it is good that they exercise their moral right to make public decisions on religious grounds alone. A liberal democracy is better off when citizens freely and without stigma make political decisions on the basis of their deepest normative commitments and therefore their religious 17 My suspicions are grounded on many conversations with many officers on this topic. To my surprise, even officers who otherwise reject a general policy of privatizing religion nevertheless advocate quite a thoroughgoing privatization of religion in the military.


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commitments. What are the goods to be achieved by permitting citizens to make public decisions on religious grounds alone? In a democratic polity, citizens are policymakers: each citizen has some modicum of influence over the policies that the government is authorized to pursue, whether by voting or by public advocacy. There are better and worse ways for citizens to exercise this authorizing power. Here is one moral good that citizens can achieve when exercising that power, viz., they can further what they sincerely and responsibly take to be the cause of justice and the common good. They can act as conscience dictates.18 For example, when a citizen decides to support or oppose a given war, she can make that decision carelessly or insincerely—she can flip a coin to determine what her position on that matter will be. Alternatively, she can evaluate the various considerations relevant to that decision and then make the very decision that she believes to be morally best. Now it seems to me that these two ways of deciding whether to support or to oppose a given war differ in their moral worth: citizens who make that decision on the basis of what they have responsibly concluded regarding the justice or injustice of that war achieve moral goods forsaken by their coin-flipping counterparts. After all, the responsible exercise of moral judgment is itself an important moral excellence: other things being equal, it is morally good and proper for citizens to support those public policies that they responsibly believe to be morally good and proper. Now, it is beyond doubt that responsible citizens will differ as to their evaluation of the various considerations that bear on many policy decisions and will differ in their estimation of which decision is morally best. In some cases, citizens will responsibly conclude that a religious rationale provides compelling support for a given policy decision. In such cases, our conviction that citizens properly make those policy decisions that they actually believe to be morally best should lead us to expect— indeed, encourage—them to make the relevant policy decision on religious grounds. In short, since each citizen properly makes that policy decision that conscience dictates, and since some citizens will in good conscience conclude on religious grounds that a given policy decision is morally best, it will sometimes be the case that citizens properly make policy decisions on religious grounds. This general position on the importance of convictions of conscience has direct implications for our topic: even if the theistic argument is a citizen’s only reason for permitting officers to exercise discriminating obedience, it is morally good that she 18 I do not have any particular account of “conscience” in mind here: I mean only that citizens employ their cognitive capacities to arrive at moral claims that they take to have significant normative weight. So far as I can tell, all properly functioning, adult human beings “have a conscience,” although what they believe in conscience varies considerably.

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permits officers to exercise discriminating obedience, since that is the policy she responsibly thinks is just and good. It is important to be clear about what this argument shows—and what it does not show. I take the position I have just articulated to establish a presumption in favor of the moral propriety of a citizen’s making political decisions solely on religious grounds. However, that there is a presumption against the doctrine of restraint by no means implies that we should reject that doctrine. After all, presumptions can be overridden so long as advocates of the doctrine of restraint can marshal sufficiently powerful arguments, and advocates of the doctrine of restraint have articulated various arguments in support of their proposed restrictions on religious argument. They have argued that adherence to the doctrine of restraint manifests the respect due to other persons and furthers healthy political discourse, as well as that violation of that doctrine risks sectarian conflict and generates division among a pluralistically committed citizenry. Now I doubt that these arguments succeed: permitting citizens to make public decisions solely on religious grounds achieves important moral goods and that policy neither inhibits us from achieving equally important goods nor engenders sufficiently important evils. However, a lot more discussion is required to vindicate that claim and since I want to address other matters, I will leave that discussion for some other time. I refer the reader to a voluminous literature on that topic.19 4.2 Religious conviction and military officership The rationale I have just articulated for allowing citizens to make public decisions on religious grounds has ramifications for the proper role of religious reasons in military decision making. These are, of course, distinct matters. It is possible, I suppose, that citizens may make policy decisions on religious grounds but that citizens should not extend that permission to military officers. However, I do not think so: simply put, although citizens have the power to shape the moral contours of military officership, they should not use that power to lay down a general restriction on the use of religious reasons by officers. Let me clarify what I have in mind here. Military officers should not be given the same freedom to follow the dictates of conscience as are citizens. Candidates for military officership must be willing to abide by the moral and prudential determinations of the citizenry and of the governing authorities to whom citizens grant exclusive right to make decisions regarding the waging of war. Those who are unwilling to subordinate themselves by allowing the moral and 19

I have tried to make this case in Eberle 2002.


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prudential determinations of the citizenry to delimit the options morally open to them are unfit for public service. This subordination of the military to its civilian masters is a crucial component of a long-standing American commitment to the civilian control of the military and there are powerful moral and prudential arguments in its favor. For example, if the citizenry decides to build a duty to indiscriminate obedience into the role of military officer, as I believe they should not, then candidates for that role ought to promise to fulfill that duty. If they cannot in good faith so promise, then they are morally obligated not to serve as military officers, and, of course, my view is that theists cannot in good faith promise to exercise indiscriminate obedience. That said, obedience to the dictates of conscience is an important moral good when exhibited by the citizenry, and it is no less good when exhibited by the inhabitants of other social roles, including that of military officer. Hence, when citizens determine the constraints that military officers must obey, they should give officers the greatest latitude for abiding by the dictates of conscience consistent with an officer’s fulfilling her vocational responsibilities. Just as the moral excellence of conscientious decision making counts in favor of a citizen’s relying on her religious convictions in public decision making, the same moral excellence also counts in favor of allowing an officer to rely on her religious convictions when discharging her professional responsibilities. We have good reason to encourage officers to discharge their professional responsibilities conscientiously and are therefore reasonably loath to demand that they bracket what they in fact take to be their fundamental, normative, and therefore religious, commitments. Hence, we have good reason not to lay down any universal prohibition on the use of religious reasons in military decision making. In so doing, the citizenry accords to military officers the same regard for their convictions of conscience that favors our relying on our convictions of conscience when we decide on matters of public import. For example, an important responsibility of a naval officer is that of conducting “Captain’s Mast,” an administrative, non-judicial process whereby the Commanding Officer (CO) determines whether to levy punishments for (relatively) minor infractions. During a Captain’s Mast, the CO interviews witnesses, evaluates guilt, and decides on the appropriate punishment. This process is subject to all manner of legal regulations: COs are restricted with respect to the kind of infraction they may adjudge as well as the kind of punishment they may levy on the guilty. Officers have a role-specific moral obligation to comply with those regulations: an officer in the United States Navy has a role-specific moral obligation not to keelhaul anyone under her command, whatever her reasons for doing so, and irrespective of whether those reasons are religious or

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secular. However, the regulations that govern Captain’s Mast offer plenty of room for discretion: whether or not, for example, to show mercy to guilty parties in a given instance. The latitude COs are given regarding such decisions forces them to rely on their own cognitive resources to reach a judgment. Those resources might very well be religious in content: an officer might very well adhere to theological claims about the importance of showing mercy to the repentant that play a crucial role in her decision not to punish a guilty party. I see no reason why officers should be prohibited from relying on theological claims in such cases: if a CO responsibly believes that mercy is the appropriate outcome in a particular case, and her reasons for so believing depend on theological claims about the proper relations between mercy and repentance, then the importance of allowing her to make the decision she in good conscience believes to be correct counsels us to allow her to act in accordance with her theological rationale. So long as a CO violates no extant regulations, why would we want her to punish those whom she responsibly believes ought not to be punished just because her reasons for that judgment are religious in content? What is true of the bases on which officers may reach a judgment in Captain’s Mast is also true of the bases on which officers may decide whether to comply with a legal order to fight. So long as the citizenry permits officers to exercise discriminating obedience, then officers are permitted to exercise discriminating obedience. So long as the citizenry decides to permit officers to make professional decisions on religious grounds, then officers are in fact permitted to make professional decisions on religious grounds and so may decide to exercise discriminating obedience on religious grounds. I have already explained why citizens should both permit officers to exercise discriminating obedience and why they should permit officers to make professional decisions on religious grounds. That being done, there are all sorts of ways in which religious reasons might play a role in an officer’s decision to disobey a legal order to fight. First, and most obviously, she might conclude that a given war is unjust when evaluated in light of certain religious criteria: for example, the claim that Muslims may not wage war against other Muslims. Second, an officer might believe that a given war is unjust for secular reasons (such as those constitutive of the JWT), but have religious reasons for according those secular reasons the force that she does: she has religious reason to believe that moral considerations override competing normative considerations, such as that unjust war furthers her country’s long-term economic or political interests. Third, she might have religious reasons to believe that secular criteria for a just war have not been satisfied, as when a believer relies on the testimony of a reliable religious authority that the secular criteria for a just war have been violated.


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4.3 Summary of the response In my response to advocates of the doctrine of restraint, I have been pursuing two distinct, but intimately connected, lines of thought, so in the interests of clarity, let me sum up my argument. That citizens make public decisions that they responsibly regard as morally best is an important moral good. Consequently, there is good reason to allow citizens to make public decisions on religious grounds, and even solely on religious grounds. This implies that citizens may rely solely on religious grounds when shaping the social role of military officer and therefore may be moved by my theistic argument to allow officers to exercise discriminating obedience. The moral excellence of responsible decision making also provides citizens with good reason to permit officers to make military decisions on religious grounds, so long as those decisions are consistent with the constraints imposed on military officers by the appropriate civilian authorities. That being done, officers would be free to decide on religious grounds to exercise discriminating obedience. Notice the interplay of secular and religious reasons in this argument. There are good “secular” reasons in support of the claim that citizens may make public decisions on religious grounds—the appeal to a widely shared conviction that responsible obedience to the dictates of conscience is a moral excellence being a paradigmatic “secular” reason. Given that citizens are so permitted, citizens may rely on religious reasons—my theistic argument—to shape the social role of military officer in such a way as to permit officers to exercise discriminating obedience. Citizens also have secular reasons—again the appeal to conscience—to permit officers to make professional decisions on religious grounds. Finally, should the citizenry act as I have recommended, officers would then be free to exercise discriminating obedience on religious grounds—say, by appeal to the commands of Allah or the moral determinations of a religious authority. (Of course, officers would also be free to decide on secular grounds to exercise discriminating obedience.)

4.4 Secular reasons for discriminating obedience I have been at pains to articulate a theistic rationale for discriminating obedience as well as to defend the moral propriety of relying on religious arguments in public decision making. However, from the moral propriety of relying on religious arguments in public decision making it does not follow that those who rely on religious arguments actually lack corroboratory secular reasons or even that those who rely on religious arguments may make public decisions without even attempting to discern corroboratory secular arguments. In fact, although I believe that citizens and officers may make public decisions solely on religious grounds, they

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ought to do their best to identify and articulate secular reasons for public decisions.20 And so this raises a question: are there any secular grounds that corroborate my theistic argument for discriminating obedience? Perhaps there are—certainly, nothing I care to defend depends on there being no such arguments. Since my main contention is hardly likely to be popular among those to whom it most directly applies, I am happy for whatever help I can get. Two arguments are better than one! Moreover, if there is a plausible or sound secular argument for the claim that we should permit military officers to exercise discriminating obedience, then one main objection to my argument is easy to address—the objection that we should not make public decisions solely on religious grounds. However, are there sound or plausible secular arguments? Perhaps the religious argument I have articulated can be transmuted into a secular argument by way of a familiar alchemy—by replacing claims about God’s commands with claims about what conscience requires. How so? The case for discriminating obedience that I have articulated depends on a claim about what faithfulness to God actually requires: military service but not at the cost of indiscriminate obedience. Now you might deny that God exists, or believe that God exists but deny that God calls anyone into military service, and yet recognize that many citizens believe that God exists and calls some to military service. You might argue that we should do what we can to fashion our social institutions, so not as to permit citizens to comply with God’s demands, but so as to permit them to act as they believe (perhaps falsely) that God demands them to act. According to this line of thought, it is not the theistic argument that constitutes good reason to permit officers to exercise discriminating obedience; it is the sincere belief on the part of many citizens that the theistic argument is sound that does the argumentative work. (To be sure, any argument from conscience to discriminating obedience depends on there being citizens who accept something like my theistic argument: only if some citizens actually believe themselves to be morally required to enter military service but forbidden to exercise indiscriminate obedience can an appeal to conscience even get off the ground.) Given the widespread American commitment to respect for individual conscience, perhaps this argument would have some persuasive power. I have to say, however, that I am skeptical that this argument will do the work required of it: replacing my appeal to our unconditional obligation to obey God with an appeal to conscience fatally weakens the argument, for the good of acting in accord with conscience, although weighty, is just the kind of moral achievement that military professionals might have to forego in order to fulfill their military responsibilities. It is

20

See Eberle 2002, 84–151.


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one thing to claim that we should not require a military officer to wage an unjust war because doing so violates her conscience and quite another thing to claim that so requiring violates the demands of a maximally excellent Person. The considerations of conscience can and must give way to other important moral aims. Not so for arguments that appeal to God’s demands. This difference in normative weight seems to me to be crucial. Of course, that just raises a prior question. Some (many?) secularists will claim that all-in moral obligations have overriding normative weight, and hence that my theistic argument can be reformulated so as to remove any and all reference to God. That is no doubt a possibility: secularists who so believe are able to articulate an argument for discriminating obedience that parallels my own in important respects. As I have said, however, I suspect that the claim that moral obligations are normatively overriding is a theistic holdover and so I am skeptical of that argument. Let me make clear, though, that my argument for discriminating obedience in no way implies that only theists should be permitted to exercise discriminating obedience. All-in moral obligations are normatively overriding, whether or not secularists can articulate a persuasive argument for that claim, and so a secular military officer who is ordered to fight in an unjust war does in fact have compelling reason to refrain from obeying that order. Therefore, my theistic argument licenses theists and secularists alike to exercise discriminating obedience. 21

REFERENCES Aquinas, St. Thomas 2002 Political Writings. Edited by R.W. Dyson. Cambridge: Cambridge University Press. Augustine 1997 Confessions. Translated by Maria Boulding. Hyde Park, N.Y.: New City Press.

21 My thanks to Robert Audi, Patrick Brennan, Linnel Cady, Stanley Carlson-Thies, Christiane Carlson-Thies, Oliver Crisp, Terence Cuneo, LtCol Joanne Eberle, Tom Flint, Shannon E. French, Chris Green, LtCol Steve Hall, Jeffrey Harter, VADM Mike Haskins, Tom Kennedy, Lawrence Lengbeyer, George Lucas, CDR Jeffrey Macris, Jeff McMahan, Peter de Marneffe, Jeffrie Murphy, Michael Pace, Myron Penner, Michael Perry, Mike Rea, CAPT Rick Rubel, LtCol Gary Slyman, Steve Smith, Nick Wolterstorff, George Wright, and two anonymous reviewers for the Journal of Religious Ethics. This paper was first delivered at the Arizona State University Conference on War and Philosophy. Revised versions were given at Calvin College and Valparaiso University and discussed in detail at several meetings of the Philosophy of Religion Colloquium at the Center for Philosophy of Religion at Notre Dame.

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City of God. Edited by R.W. Dyson. Cambridge: Cambridge University Press. Baxter, Michael 2002 “In Place of an Afterward.” In The Sword of the Lord: Military Chaplains from the First to the Twentieth Century, edited by Doris Bergen, 251–69. Notre Dame, Ind.: University of Notre Dame Press. Brown, Peter 2003 The Rise of Western Christendom, 2nd ed. Oxford: Blackwell Publishers. Cohen, Eliot 2002 Supreme Command: Soldiers, Statesman and Leadership in Wartime. New York: Anchor Books. Cohen, Richard 2003 “A Voice for Inclusion.” Washington Post, May 1, A29. Eberle, Christopher 2002 Religious Conviction in Liberal Politics. Cambridge: Cambridge University Press. Edwards, Jonathan 1960 The Nature of True Virtue. Ann Arbor, Mich.: The University of Michigan Press. Greenawalt, Kent 1971 “All or Nothing at All: The Defeat of Selective Conscientious Objection.” In The Supreme Court Review, edited by Philip B. Kurland, 31–94. Chicago: University of Chicago Press. Haji, Ishtiyaque 1998 “On Morality’s Dethronement.” Philosophical Papers 23.3: 161–80. Harnack, Adolph 1981 Militia Christi: The Christian Religion and the Military in the First Three Centuries. Philadelphia, Pa.: Fortress Press. Holmes, Robert 1985 Acts of War: The Behavior of Men in Battle. New York: The Free Press. Huntington, Samuel 1957 The Soldier and the State: The Theory and Politics of Civil-Military Relations. Cambridge, Mass.: The Belknap Press. John XXIII 1963 Pacem in Terris. Boston: Pauline Books and Media. Loveland, Anne C. 1996 American Evangelicals and the U.S. Military 1942–1993. Baton Rouge, La.: Louisiana State University Press. Luther, Martin 1967 “Whether Soldiers, Too, Can Be Saved.” In Luther’s Works: The Christian In Society, edited by Robert C. Schultz, 87–137. Philadelphia, Pa.: Fortress Press.


507

MacMahon, Jeff 2004 “The Ethics of Killing in War.” Ethics 114: 693–733. Milgrim, Stanley 1974 Obedience to Authority. New York: Harper and Row. Osiel, Mark 1999 Obeying Orders: Atrocity, Military Discipline and the Law of War. New Brunswick, N.J.: Transaction Publishers. Reichberg, Gregory, Henrik Syse, and Endre Begby, eds. 2006 The Ethics of War. Oxford: Oxford University Press. Rorty, Richard 1994 “Religion as a Conversation-Stopper.” Common Knowledge 3.1: 1–7. Russell, R. H. 1975 The Just War in the Middle Ages. Cambridge: Cambridge University Press. Safire, William 2005 “Two Internal Splits.” New York Times, January 5, A23. University Press. Vitoria, Francesco de 1991 “On The Laws of War.” In Vitoria: Political Writings, edited by Anthony Pagden and Jeremy Lawrence, 293–328. Cambridge: Cambridge University Press. Wakin, Malham 2000 Integrity First: Reflections of a Military Philosopher. Lanham, Md.: Lexington Books. Walzer, Michael 2004 Arguing About War. New Haven, Conn.: Yale University Press. Washington Post 2003a “Most in Armed Forces Are Religious.” Washington Post, April 6, C11. 2003b “Wrong and Divisive.” Washington Post, October 21, A24. William of Ockham 1992 A Short Treatise on the Tyrannical Government. Edited by Arthur Stephen McGrade and translated by John Kilcullen. Cambridge: Cambridge University Press.