I have a question from the mail bag, relevant to current news that Bush plans to send additional troops to Iraq.
To paraphrase the letter: Assuming that an individual joined the military because he believed that his leaders would only have him fight for just causes, what should a soldier do if he believes that he is being ordered to do something that is unjust?
The writer remarked that he should obviously refuse an order to slay a bunch of children. However, he also correctly pointed out that there would be serious problems if soldiers were permitted to refuse any order that caused them any moral qualms at all.
As it turns out, even permission to refuse orders that could maim and kill children would cause problems. Military actions in the modern age inherently create ‘collateral damage’. (Note: This was less of a problem back in the days when you actually had to stab somebody.)
Not Just the Military
I want to note that this is not just a problem for soldiers. Many professions require that people sacrifice a certain degree of moral autonomy.
Police officers, for example, cannot pick and choose which laws to enforce. Judges, as well, must follow guidelines handed down by the legislature – even when they feel that the law or its particular application is unjust.
Many of this nation’s early Presidents took an oath to protect and defend the Constitution of the United States – even when that Constitution protected slavery.
The law may even require private citizens to make a choice between obedience and injustice – such as the fugitive slave laws that made it mandatory to report any information one may acquire on the whereabouts of an escaped slave. Another set of famous examples involves Nazi laws that required citizens, even those not in uniform, to participate in the Holocaust by making the failure to report certain pieces of information a crime.
So, we are dealing with a somewhat larger issue than soldiers in the military.
As the letter writer pointed out, we have many good reasons (many strong and powerful reasons for action – desires – exist) recommending that we not have institutions where people unquestioningly follow people in authority no matter what those people in authority command.
We are well aware of the possibility that people in authority are not always noble people. They are prone to use their power to promote their own interests at the expense of others. Because of the nature of their position, their abuses tend to result in horrendous evils. That is to say, the private evil of a serial killer is insignificant compared to the harms of an evil political or military leader.
To prevent these evils (and we all have reason to seek to prevent these evils) we need to place checks and balances on unlimited power. One of those checks and balances is to tell our neighbors, “Serve the leader as long as he is fair and just, but do not serve him blindly. If he becomes a despotic tyrant, side with us – your neighbors – over him.)
Efficiency of Command Systems
On the other hand, command systems can be exceptionally efficient. When they are used as a tool to fulfill desires, they can do a great deal of good.
We can see an example of this in the primitive hunt. A hunt will tend to go a lot further if there is not a great deal of debate during the hunt as to who does what and when. The time for debate is either before the hunt (to come up with the best plan) or after the hunt (to use the data from the experience to modify techniques) – not during the hunt. Even if a hunter thinks that the leader is making a mistake, it is better to follow the leader during the hunt and discuss the failure later, then to disrupt the hunt with questions and debate. This is all the more prevalent in military actions, where one must coordinate the activities of even more men in even more complex and chaotic situations.
Of course, whether this coordination ultimately tends towards good or tends towards evil depends on what the coordinators are trying to do. If they are trying to exterminate all of the Jews, this coordination may allow them to do so more efficiently, but it does not make the activity right.
In many cases in ethics, we employ the joint doctrines of ‘assumption’ and ‘reasonable doubt’ to take care of these types of cases. The accused gains the benefit of an ‘assumption’ that he is innocent unless he can be proved guilty beyond a ‘reasonable doubt’. Speech is presumed to be protected unless compelling it can be shown that there are compelling state interests in prohibiting certain speech, such as the publication of military secrets or prohibitions against using somebody’s likeness to sell a product without that person’s permission.
The same doctrine of “reasonable doubt” seems useful when it comes to obeying orders as well. In these cases, and individual who is working for an institution such as the military or law enforcement should be willing to admit that he or she probably does not see “the whole picture”. In some cases, this simply involves a lack of access to the relevant data. Division headquarters knows things that the company commander does not know. The legislature in a substantially just society spent its time doing research and listening to experts when it came to designing legislation that the cop and the judge had no time to collect or evaluate. This argues for giving the decision makers (commanding officers and legislators) the benefit of the doubt.
This assumption is not unquestioning obedience. Where it can be shown beyond a reasonable doubt that the legislators or superior commanders are basing decisions on something other than the welfare of the public at large, there may be grounds for a complaint. It is not up to the decision makers to justify their actions. There is often not time or opportunity to do so. However, if evidence beyond a reasonable doubt suggests a less-than-honorable motive with innocent victims being made to suffer, the standard of “reasonable doubt” that the order was morally legitimate can be met.
Love of the Institution
Still, there are a great many times where the ‘reasonable doubt’ standard falls short. There are times when a soldier, judge, cop, or private citizen can know that a law is unjust beyond a reasonable doubt and still be compelled to help to enforce it.
The second issue that make this possible is a love for the institution itself, where the institution has proven itself reliable at promoting the public welfare. Judges, following the law as written, help to keep the legal system and its enforcement uniform and predictable. This uniformity tends to promote desires. So, a devotion to the institution can outweigh the aversion to do harm to the institution in those few instances where it promotes injustice instead of justice.
In these cases, there is still and opportunity – and even a duty – to speak up and say that the institution should be changed – but not destroyed. If the institutions are fair and just, giving people a desire to follow the rules and procedures of the institution will gend to fulfill desires – more so than if people had no interest at all in the decisions reached under an institution.
Levels of Punishment
Still, there will be times when this assumption that the institution has produced fair and impartial agents can be challenged, where the individual has reasonable doubt (and not just a hunch or a bad feeling) that he is being told to do something morally legitimate where the institution itself seems not to be interested in justice.
These cases are not always clear cut. There may well be irregularities and complications that make it reasonable to believe that one is being asked to perform a highly immoral act – or that the leaders of the institution lack moral scruples that would otherwise restrict how they would wield the power entrusted to them.
Against this possibility, a fair and just society would not restrict responses to narrowly defined options. Those who would determine punishment or reward should be given some flexibility to match the difficulty in knowing the right answer at times. It would be fundamentally unjust to allow only two options – complete freedom or execution. At times, a punishment of days or weeks will be best. This indicates that the agent was wrong, but not far wrong.
Strict guidelines in sentencing often ignore the fact that the distinction between rightful and wrongful acts, as well as different degrees of wrongfulness.
So, here you are. You are a soldier. You have been ordered to commit an act that you think is immoral.
First, you need to give your superior officers the benefit of the doubt. There is reason to give soldiers an aversion to disobeying a direct order. Such an aversion keeps the system running in a smooth and orderly manner.
Second, even if you know beyond a reasonable doubt that the acts that you have been ordered to perform are unreasonable and unjust, if the institution itself is fair and just and tends to promote good decisions on average, then there is a reason to promote a desire to uphold the institution.
If the institution can be shown to be basically fair and just.
Third, if this reasonable doubt tells one to disobey an order, then the system should recognize the need not to demand unquestioned obedience from those who serve within the institution. This argues against any draconian penalty for disobeying an order. If the defendant can make a good case in favor of his decision (or lack of a decision), then the institution itself should have the freedom to punish the behavior to a degree that is proportional to the offense.
All of this assumes, of course, that the institutions themselves are basically just and tend to promote the desires those who live under them. The situation becomes quite differentd when the institutions themselves tend towards tyranny and injustice.
What obligations did the Nazi soldier have to uphold and defend the Nazi regime?
I will have more to say on this topic in a future date.