Does the Just War Tradition Need Selective Conscientious Objection?

American Union

INTRODUCTION

It is dangerous to attempt an article on a topic so relevant and current. As I drafted this article, President Obama has recently ordered air strikes on ISIS, and troop levels are again rising in Iraq. We are in a challenging position, considering the Just War Tradition (JWT) in such a context. We could go through the typical just war ad bellum checklist for each war, or we could analyze battles based on in bello criteria. However, at this point I’m more interested in taking a step back to question our entire framework.

JWT has enjoyed a remarkable resurrection in the West in the 20th century. As a society, we are troubled by the world’s evil and probably a little scared of the power we wield. We have in general turned to JWT to guide us—not only in whether to go to war or not but how to go to bed at night during war and after war.

Yet as I’ve considered the rhetoric of JWT I’ve been troubled. I remember once walking the few blocks from Marquette University’s library to my pacifist friend’s car for our drive home, lamenting the way that I felt torn between the tendency of JWT to justify “just war” in the sense of “Let’s just go to war!” and pacifism, which I wasn’t completely sold on either. (Now I recognize the absurdity of dramatizing the qualms I experienced in a—globally speaking—relatively safe few blocks of an American city.)

The question I wrestled with was whether I would counsel a Christian to enlist in a military that required him to bind his conscience to the collective conscience of a militaristic society. If the United States would recognize selective conscientious objection (from here, SCO), it would at least prevent us from depending on presidents and other politicians—whom we are so quick to judge for their decisions about health care, taxes, etc.—to do our just war theorizing for us.

In the words of Shaun Casey, SCO is “simply the right of individuals to dissent from a country’s specific use of force, not based upon a moral rejection of war in any form, but based on a judgment against a specific case of war in which one judges one’s participation in the war as immoral because the specific war is immoral.”[1] It is the right of a Christian soldier to say no to a particular conflict based on his notions of JWT as taught by his church.

ARGUMENTS FOR SCO

Arguing for SCO is not new. Especially around the Vietnam War, theologians and ethicists wrestled with the idea. Faced with a war that so many considered unjust, the need for a mechanism for selective objection seemed clear. In the late 1960s, the US government officially took up the case via the Marshall Commission, which considered the past, present, and future of selective military service. The commission included such theological luminaries as Jesuit theologian John Courtney Murray and renowned Protestant ethicist Paul Ramsey. It took up a proposal to recognize SCO, but the majority ultimately opposed it. Moral opposition to war would only be recognized when it was based on moral opposition to all wars. The report gave five responses:[2]

  1. It is one thing to recognize moral opposition to all killing and another thing to recognize moral opposition to killing in some circumstances but not others.
  2. “Selective pacifism” is essentially a political question of supporting a war or not and cannot be considered in terms of moral imperatives.
  3. Legal recognition of “selective pacifism” could lead to selective disobedience to other laws.
  4. The majority did not agree with the idea of allowing someone to do noncombatant service in a war they determined to be unjust.
  5. A legal recognition of selective objection might disrupt the morale and effectiveness of the military

In the end, the Marshall Commission’s logic was rooted primarily in the practicality of its implications. Responses 2-5 seem to be variants of this logic, and the first response simply asserts a difference between absolute moral opposition and selective moral opposition.

The Supreme Court weighed in on the issue in 1971 in Gillette v. the United States. The court ruled against a young Catholic named Louis Negre, who refused to be inducted into the war based on Just War principles. As one scholar reflects on the decision, “the difficulty of administering SCO outweighed the constitutional right to freedom of religious practice and expression.”[3]

This snapshot of the United States government’s decisions about SCO in light of the Vietnam War helps us to identify the main level that the logic works against SCO. It isn’t practical to have SCO. It is a realist argument. Responses to this logic primarily follow two streams. On the one hand, we can argue that religious freedom requires SCO. If the United States is going to protect religious freedom, it must protect those from fighting who do not wish to do so because of religious and moral reasons, whether those reasons lead to absolute rejection of violence or selective rejection of violence. These arguments can be rooted in Constitutional interpretation.

On the other hand, we can argue that JWT itself requires SCO. This takes a step back from the more specific American question bound up with Constitutional interpretation and instead looks at JWT itself. For instance, in a 1992 article, Lutheran theologian Reinhold Hütter insisted that “Only by taking Selective Conscientious Objection seriously both in theory and in practice are we taking the Just War Tradition seriously.”[4] This argument could follow early work done by scholars such as LeRoy Walters, whose “A Historical Perspective on Selective Conscientious Objection” gives an historical overview of the main theorists of JWT and their attitude toward SCO.[5] Walters argues that “according to the majority view in the classic just-war tradition, the citizen’s presumptive duty was to obey his prince’s call to arms. The primary reasons for this presumption against SCO was the theorists’ concern for the preservation of the state as a viable agent of justice.” But Walters continues, “Grotius, on the other hand, was the chief spokesman for the minority view which, if it did not reverse the presumption in favor of obedience, at least seemed to provide an expanded theoretical basis for SCO.”[6] In the end, Walters concludes, “several of the major just-war theorists discussed the circumstances in which SCO was morally justified. There was general agreement among the theorists that no citizen was obliged to participate in a war that was clearly unjust. Vitoria and Grotius added two refinements to this general consensus. They asserted unequivocally that the subject had a moral duty not to take part in a clearly unjust war. Second, according to Vitoria and Grotius, a citizen’s sincere conviction that a particular war unjust obligated him to abstain from military participation.”[7]

These two well-traveled approaches do give us significant reason to explore SCO as a viable option. It would help protect religious freedom, and it does seem to be a required element of JWT. However, I want to pursue a third angle of consideration. It is not an approach divorced from these first two, but one that stems from both and ends up serving both.

In recent years, JWT has gained more attention as Christians have wrestled with specific American wars. Daniel Bell has written an excellent book called Just War as Christian Discipleship: Recentering the Tradition in the Church rather than the State.[8]  In the book he contrasts two approaches to JWT. The first, “JW as Public Policy Checklist,” emphasizes the state’s concerns and how JW fits into those. In this approach, JW can end up being manipulated to fit with the will of the state. The second approach, “JW as Christian Discipleship,” locates its concerns within the church and its mission to make disciples and bear witness. Bell claims that “just war lived out as a form of faithful Christian discipleship may be substantially different from the way just war is understood and used in the public policy approach that is so popular today.”[9]

Taking a cue from Bell, we can say that JWT is not just about being sure the state checks the right boxes before going to war. JWT, when properly situated within Christian discipleship and the accompanying Christian worldview, can help to challenge the powers of this world and the grip they have on our moral imaginations. Christian JWT equips Christians not only to determine whether a specific war is just but to see all wars through a lens unavailable outside of the gospel.

In Bell’s words, “the purpose of just war is finally no different from the purpose of the rest of the Christian life, which is to faithfully follow Christ in this world, loving God and serving our neighbors.”[10]

In what follows I want to pursue an argument that I think runs parallel to—and therefore sheds explanatory light upon—JWT’s need for SCO. Consider this a promissory note that I will connect the dots.

A PARALLEL ARGUMENT: THE RIGHT TO SECESSION

Political philosopher Donald Livingston argues that the notion of secession provides a litmus test of sorts for modern options for political vision. Secession simply means an act of withdrawal. Today it carries negative political connotations. These connotations are not inevitable but instead depend upon a certain political vision and an accompanying political myth. Secession has recently been in the news with the vote in Scotland. In addition, recent works such as Rethinking the American Union for the Twenty-First Century (2012) and The Secessionist States of America (2014) have tried to change the way Americans view secession.[11] But it is still a concept that most Americans misunderstand or fail to appropriate to their political thinking.

Taking up Livingston’s argument about secession in particular will help us think about SCO. The mythic nature of secession’s negative connotations might sound surprising—and the fact that it does surprise us plays a role in Livingston’s argument—but the argument is rooted in a reading of American history related to two key political thinkers: Johannes Althusius and Thomas Hobbes. In short, Althusius’ work Politica envisioned a federal model in which smaller social units join together to form larger social units, with each higher social unit operating at the consent of the unit from the next level down. And each unit had its own telos, something good of its own to pursue and enjoy and defend.[12] Hobbes’s Leviathan, on the other hand, promotes a simpler vision:  the sovereignty of the nation-state depends on the consent of autonomous individuals. Once that consent is given, it cannot be removed. So for Hobbes, a nation-state is a collection of autonomous individuals, while for Althusius the nation-state is not a group of individuals at all, but a voluntary group of associations one level down (whether that be cities, principalities, or others). That one-level-down association isn’t even made up of individuals either: it is made up of associations from one more level down. And so on and so forth, until one arrives as the social unit of the family, which is made up of individuals (but not in a voluntary manner).

We seem to have gone far afield from questions of SCO, but please bear with me, because I think Livingston’s insight about the role of secession in our political vision parallels one way to think about SCO.

As Livingston relates his Althusian and Hobbesian visions to the United States, he begins by arguing that the United States was originally constituted with a political vision that differs starkly from what it is today. American polity had a decentralized character. Individualism and substantial moral communities were reconciled “on a continental scale by a union of self-governing political societies held together by compact. Whereas the central governments of Europe were heavily in debt and imposed oppressive taxes, the central government of the United States was restrained in its power.”[13] In the antebellum period, the Constitution was viewed as a compact between sovereign states creating a central government with a few powers (defense, regulation of commerce, and foreign treaties).

Next, Livingston explains when the shift from an Althusian vision to a Hobbesian vision took root: “The antebellum United States was the perfect Althusian regime. Yet, in 1861-65, with prosperity at home and no enemies abroad, the regime suddenly turned in upon itself and began to devour its own substance. When the smoke cleared America emerged as another French-style unitary state, aggressively nationalist and in the service of a universalist liberal ideology. The Union veterans took the French revolutionary name of the Grand Army of the Republic. What has been called the ‘Civil War’ was in fact America’s French Revolution.”[14] (Now, he is not oblivious to the issue of slavery but provides an in-depth analysis of the type of cause slavery was in relation to racial attitudes throughout the United States at the time. Going into these arguments would take us too far afield, but Livingston does argue in detail in his work about the relationship between racial prejudice, slavery, and the war.[15])  Livingston sees the Civil War not as a war to preserve the Union but to forge a different type of Union.[16] A Union of the Hobbesian, unitary state sort rather than the Althusian, federal sort.

Then, Livingston shows why secession is an absurd notion in a Hobbesian vision but necessary in an Althusian one. Before the Civil War, “secession was considered an option available to an American state… and the section that first and most often considered secession was New England: over the Louisiana Purchase in 1803, the embargo in 1808, over war with England in 1814, and over annexation of Texas in 1843.”[17] Secession was simply part of what made the Union work. Any of the smaller units could choose to leave, not by seeking to destroy the government (as in a true revolution) but through removing themselves from its purview, via secession. In the Althusian vision, the right to secession is bound up with the fact that each unit of organization has its own telos to pursue. When that telos is violated, or if the unit decides it can pursue it better through another association, it is free to adjust. In a Hobbesian unitary state, however, the only bond is between isolated individuals and the sovereign state. Other associations are reduced to mere “intermediate associations,” associations that ultimately serve to advance the state’s project or to fail. For if the intermediate associations lack their own true telos, they have no telos to serve but that of the state. In fact, “Secession is treason against the Hobbesian state.”[18]

Finally, Livingston urges his readers to consider the prospect of altering our political vision. Many of the problems of the modern state are problems of the structure of the state itself.[19] While he doesn’t see an Althusian state as a problem-free alternative, Livingston does insist that “Our problem is that, although secession, pursued with prudence, is a remedy to the evils of the modern state, it is ruled out a priori by self-congratulatory ideologies such as the contract theory, natural rights, and the project of universal human emancipation that hide from view the spectacular destruction of traditional societies and of human life carried out almost continuously since its inception.” He continues, “But the modern state is not a fated existence. It is a human artifact only two hundred years old…And there is no reason why, given a clear-eyed perception of its barbarous history, we should continue to follow that path today.”[20]

So what is our takeaway from this focus on Livingston? Livingston argues that the state that we assume we are a part of is not exactly the state that it was meant to be, or that it could be. At one point in our history, a new type of state was forged. While the official story is one of freedom and fighting slavery, in reality that conflict decisively—though not independently—shifted the United States from an Althusian vision to a Hobbesian one. Secession, then, serves as a theoretical practice that brings this reality to light. Secession has fallen out of favor because of this shift and in order to serve this shift. Reclaiming the language of secessionism, then, would serve as a check on the large, unitary state. If secession were actually possible, the Hobbesian state could begin to shift to a more Althusian vision, for its own survival and in better response to what actually makes up the state—a complex mixture of groups and concerns.

But how does this help us think about SCO?

EVALUATING THE PARALLEL

In short, I am arguing that SCO as a theory and a practice could serve a similar function as secession serves for political vision. Just as secession as a possibility serves to discipline the state and its claims, SCO as a possibility could serve to discipline the state’s claims. Both secession and SCO emphasize the moral significance (if not moral preeminence) of the “lower levels”—of the family, the city, the federal state, etc.

Secession and SCO would not only serve to discipline the state. Sure, as possibilities they would make the state more carefully evaluate its decisions based on a desire for its own survival. If that were the only extent that these two practices would take us, I think they would still be valuable. It would be a good thing if the state thought harder about its actions and the way they influence moral communities. (In a way SCO would help the state honor other associations much like most evangelical denominations honor the individual church—the association between churches is voluntary and can be dissolved by the local church because of doctrinal or ethical error in the denomination.)

But there is more to it than that. You see, the unitary state not only functions unchecked in many ways, but it also influences the way the church thinks about itself. Our political imagination, which is so bound up with how we understand our state, influences our ecclesiological imagination, whether we like it or not. Both types of imagination are vital for proper Christian discipleship.

SCO and secession both call into question the state’s self-narrative. William Cavanaugh’s work has shown how the state makes soteriological claims—telling the story of humanity’s ills in a way that makes it the necessary hero. In “Killing for the Telephone Company,” Cavanaugh asks the question of why it seems so self-evident that the state can ask its members to kill for its vision of survival. Secession disciplines this bloodlust of the modern state by reminding the state that it is not simply made up of autonomous individuals but represents moral communities on lower levels, moral communities with their own inviolable purposes and callings. SCO reminds the state that while lower-level moral communities may not ask individuals to draw the sword on their behalf, those lower-level moral communities can certainly forbid individuals from drawing the sword on the state’s behalf when the state’s project is not just.

OBJECTIONS/FURTHER QUESTIONS

My argument here certainly does not establish an open-and-shut case. The following objections or further questions still require addressing:

  1. Impractical: SCO would make it impossible for the state to prosecute wars.
  2. Illogical and Unncessary A: JWT yields legitimate authority to the state, not to individuals, so it is unnecessary for individuals to worry about moral culpability. This assumes that the issue is primary one of ultimate moral culpability. I do not think the issue is that simple. We also have the issue of discipleship, moral imagination, and how the state’s prosecution of war and our attitude to that possibility subtly form us to love certain things and believe certain stories.
  3. Unnecessary B: There isn’t conscription right now, so those who would be SCO should simply not enlist. This solves the problem of them fighting, but not the larger imagination problems. Also, it assumes that someone who would be SCO would not desire to enlist in a just conflict.
  4. Unrealistic: SCO relies on a quantity of information and a quality of decision making that is not really present or available in our present “state” because of “National Security.”
  5. Negative Consequences: SCO would just lead to more propaganda and manipulation of the public.

CONCLUSION

So can SCO help JWT be more just? I think the answer is yes, but I also think we need to be careful about that question. On the one hand, JWT itself seems to require the ability for a person to object to a war that a state proposes. CO status right now is only available for those against all wars, for pacifists. There is no solution for just warriors who do not want to entrust their conscience entirely to whoever happens to be President or in Congress. JWT seems to need SCO; that isn’t that new.

At the same time, we need to be careful about that question, “Can SCO help JWT?.” Before we answer the question of making JWT just, we need to remember that there is more in play in these decisions than simple individual moral culpability for acts done in battle. That is certainly part of it, but another part is the fact that moral formation and discipleship extend beyond isolated acts. Whatever we think and teach about JWT and SCO—however we develop our political imaginations—we must grapple with the fact that the political and ecclesiological are intertwined. We may wish that it were always as simple as a Two Sword Theory would propose, but it isn’t. The nation-state has a story that it tells, and its decisions to go to war are bound up with that story. And as Christians we are devoted to another story. The way we think about and enact our relation to the state’s story shows what we really think about the church’s story, about the kingdom God promises.

I guess what I am getting at is that there are certainly moral reasons to support SCO; ethical arguments can be made. But there are also eschatological implications. Our nation’s self-narrative has always been bound up with notions of cities on hills and God’s chosen people. If we are not careful, we can start to think that the cause of defending democracy or capitalism is the most consequential task of the church—or at least the task we get most excited about. But the church bears witness to the fact that God has done something and is doing something. Now, what he is doing is certainly related to issues of economics and war and everything else, but when we too easily relate these all together we can end up with misplaced eschatological hopes and expectations. Our imaginations can easily be manipulated, and we can find ourselves passionate about all the wrong stories for all the wrong reasons. SCO, like secession, can help with that, because it is a theory and a practice that reminds us that the state’s story isn’t the biggest story—or even the most consequential one. Other loyalties to other stories must reign supreme. We need a mechanism for those loyalties to be primary in questions of war, and that mechanism can also help us remember the priority of our greatest loyalties.

[1] Shaun A. Casey, “A Contemporary Case for Selective Conscientious Objection,” in And the Word Became Flesh: Studies in History, Communication, and Scripture in Memory of Michael W. Casey (Eugene, OR: Pickwick, 2009), 286.

[2] Casey, “Contemporary Case for SCO,” 291-293.

[3] Logan Mehl-Laituri, “The Right to Refuse to Bear Arms,” Sojourners Magazine (December 2010): 10.

[4] Reinhold Hütter, “Be Honest in Just War Thinking! Lutherans, the Just War Tradition, and Selective Conscientious Objection,” Dialog 31 (1992): 283.

[5] LeRoy Walters, “A Historical Perspective on Selective Conscientious Objection,” JAAR XLI/2 (June 1973): 201-11.

[6] Ibid., 206.

[7] Ibid., 209.

[8] Daniel M. Bell, Jr., Just War as Christian Discipleship: Recentering the Tradition in the Church rather than the State (Grand Rapids: Brazos, 2009).

[9] Ibid., 21.

[10] Ibid., 76.

[11] Donald Livingston, ed., Rethinking the American Union for the Twenty-First Century (Gretna, LA: Pelican, 2012) and Douglas MacKinnon, The Secessionist States of America: The Blueprint for Creating a Traditional Values Country…Now (New York: Skyhorse, 2014).

[12] Donald W. Livingston, “The Very Idea of Secession,” Society (July/August 1998): 39.

[13] Ibid., 40.

[14] Ibid.

[15] For instance, see Donald W. Livingston, “Why the War Was Not about Slavery,” Confederate Veteran (September/October 2010): 16-22, 55-59.

[16] Livingston, “Idea,” 42.

[17] Ibid., 40.

[18] Ibid., 43.

[19] Ibid., 47.

[20] Ibid., 48.

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