Jeff McMahan proposes a right to selective conscientious objection based on revisionist just war theory. I share his position on the proper treatment of selective objection, but I’m not convinced that his argument for it is successful.
The problem McMahan presents is simple. Individuals, presumably, should not engage in acts of grave injustice. Since unjust wars constitute such injustice, one should not participate in them. Enlisting for military service significantly raises the chances that one will participate in unjust wars. Therefore, people should refrain from volunteering for military service. Yet armies are still necessary for many states. How will countries guarantee their security if enlistment is morally objectionable? McMahan’s solution is to give those who enlist a way out by adopting provisions for selective conscientious objection.
Both problem and solution rest on questionable assumptions. The assumption underlying McMahan’s dilemma is that there is an obligation to avoid moral risk. One ought to avoid enlistment because one ought to avoid the risk that one will participate in unjust wars. Whether there is an obligation to avoid moral risk is an important question that has been under-explored by philosophers. I cannot properly address it here, but I doubt that such an obligation obtains. Moral risk is not unique to military service. Physicians, politicians, and educators all incur moral risk, yet it would be absurd to avoid these occupations in order to escape moral risk. Given the uncertainties of parenting, having children involves a frightening variety of risks. Getting married creates the risk of betraying one’s partner. The risks involved in these pursuits cannot be disentangled from the benefits.
Just war theory is easily distorted at the hands of the military.
To be an engaged citizen is to take moral risks. The existence of moral risk, I suggest, is not necessarily a reason to refrain from choosing a course of action. On the contrary, it is often what makes actions matter and why we need morality in the first place. This doesn’t mean that moral risk is never an issue. But regarding it as a conclusive reason against engaging in otherwise significant personal or social pursuits can be a kind of cowardice.
So I am not convinced that there is a problem. But to the extent that there is, I don’t think McMahan’s proposal solves it. McMahan thinks selective objectors should be punished, but relatively leniently. He assumes that the severity of punishment for noncompliance is the main cause of obedience and therefore that even partially alleviating it will significantly mitigate the moral risk of enlistment. But there are other, arguably more powerful obstacles to conscientious objection. First, evidence suggests that the main factor inhibiting objection is not formal punishment but social sanctions. A vast literature on obedience shows that soldiers are motivated more by feelings of camaraderie and responsiveness to social expectations than by moral convictions. The consequences of violating one’s bonds with fellow soldiers can be more daunting than any court-martial.
Second, as McMahan notes, a serious obstacle to resisting unjust war is epistemic—recognizing injustice as such. Elsewhere McMahan has offered a number of suggestions to enhance soldiers’ abilities to identify unjust wars, such as teaching combatants just war theory and setting up institutions to adjudicate and pronounce the justness of wars. I think he exaggerates the power of both theory and international institutions. My own experience as a combatant suggests that just war theory is easily distorted at the hands of the military and the experts it employs. I served in the Israeli military, where the operative view, one developed by Israeli philosopher Asa Kasher with General Amos Yadlin, justified erosion of the obligation not to harm enemy civilians. Similar doubts apply to the efficacy of international tribunals. Having spent most of my life in a country that has continually violated international law and the dominant views among moral and legal experts for more than four decades, I’m skeptical about the potential of such institutions to overcome public passions in times of conflict or perceived threat. One need only recall the run up to the invasion of Iraq after 9/11 to appreciate the force of inflamed fear and hatred.
That McMahan’s solution—a clear option of selective conscientious objection, with minimal punishment for those who exercise it—rests on shaky assumptions doesn’t mean there is no right of selective conscientious objection. There are other reasons to offer such provisions. To the extent that the right to conscientious objection rests on the idea that states should not force individuals to violate their deepest moral convictions, moral objection to a specific military campaign is on a par with pacifist opposition to all wars. Both are a matter of personal conscience and should enjoy the same protections.