Moral Equality and the Illusion of the Democratic Process

by Mitch Ullman

J. J. Miller, in his paper “Jus ad bellum and an Officer’s Moral Obligations: Invincible Ignorance, the Constitution, and Iraq,” runs a long gauntlet, filled with moral spears, at an attempt to get from jus ad bellum to jus in bellum. While the Constitutional/International law issues and the points concerning the morality/legality of the second invasion of Iraq are quite enthralling, I am not as concerned with them here as I am with the sticky situation that is moral equality. I would also like to state that the position I will take in this paper should not be confused with a conflation of is/ought but a raising of the question of whether the ought is good enough to compel a movement away from the is. Put more succinctly, I want to know (aside from the unidentified gnawing at my consciousness most would identify with an conscience) is why it is that if something is considered just or moral that it is what one ought to do. In this case, I am asking this question from within the context of the culpability of military personnel. The road I will be taking is Pragmatic in nature, so for those of you who know my past work and know me personally, bear with me.

This may actually be skirting the issue of jus in bello a bit, however it is important here in that normally the bellum problem is relegated to the legislators/executors of the government (ie. those who declare the war); however, for the purpose of this paper, we are primarily interested in the culpability of soldiers in respect to bellum. Shoonhoven’s paper “Invincible Ignorance and the Moral Equality of ... Lawyers?” makes this distinction from the very outset. For those that may not quite understand the idea of invincible ignorance, consider all those hokey movies where the President of the United States is never informed of some ‘black-ops’ mission that escalates to total war but the moral culpability of the President and therefore the nation at large are kept clean (read ‘plausible deniability’). I’m still not sure how this idea works itself into a phrase ‘moral equality,’ I would expect it to be called something along the lines of ‘lack of agency as pertains to the particular moral action’ but that’s another issue altogether. Miller makes the point early on, in his paper, that applying the moral equality doctrine to soldiers is almost certainly applied as easily to non-soldiers, rendering deliberative (read liberal, ‘of-the-people’ type) democracies inert. Let us keep this problem in mind for later, for now, we’ll start our queries into the general direction of the ‘soldiering art.’

Many of the scholars that Miller cites are, by his own admission, basically following in the footsteps of everyone’s second favorite medieval philosopher, Vitoria (the first, of course, being Aquinas... who’s work in JWT is mostly mimed by contemporary philosophers). Just as the colorful quotation from Henry V illustrates, soldiers are simply subjects of their rulers and as such should not question the justification for their heading off to war, according to the Vitoria’s invincible ignorance claim. And while, yes, it certainly seems plausible for that sort of excuse to fly in the middle-ages up through the Renaissance, things like the printing press, and a wider adoption of the democratic process should, in short, throw a wet towel on that mentality. The idea here is that with information being more readily available and an expectation of participation from both citizenry and soldiers in the democratic process (keep in mind, this isn’t Plato’s Republic), the soldiers should be well informed (especially the officers, by Miller’s account); therefore, the soldiers’ ignorance is no longer invincible defense against culpability of wars in which they participate that are, in reality, unjust or illegal. This is where, I think, the problem crops up.

I believe that Miller is making an assumption that doesn’t quite map onto reality, per se. The assumption that I mean is that of the purpose of government having changed as the form of government changed. Even worse, there is the possibility that there has never been a change, simply the appearance of a change in form so as to create something of an invincible ignorance for the whole of the governed people. By this, I mean to say that it is reasonable to expect that governments cannot give reasons for war that are full, just or unjust. While nationalism and propaganda will assist greatly in raising a military force, there remains the issue of culpability. Consider the possibility wherein we told our potential military personnel that they will be held accountable for fighting in wars found to be unjust because they knew what they were getting into. I imagine that our ability to garner enough soldiers would be quite hindered. This is as much a pragmatic concern as are Walzer’s “common causes” and patriotism. I believe this, along with the problems faced by the public citizenry, is the self-same point that Walzer was attempting to make when he discusses the obstacles to ‘bucking the official line.’

Now, I would like to approach the problem appearances or, if you prefer, the Noble Lie. I do certainly agree with Miller that the less information one has, the less agency one possesses as pertains to governmental affairs, the less like a democracy their government becomes. This, precisely, is what I believe we have been involved in and will continue to do so because we, for the most part, buy into the appearance of democratic processes within our own government. There is much attention paid to the analogy of the idea of a jury trial and the contemplation of a just war by the citizenry/soldiers. This, I think is an excellent analogy, but I believe is approached incorrectly or, to state it in another way, the issue of “best of their ability” is glossed over. The idea of a “jury of your peers” is, at best, a farce and, at worst, a method by which more and more guilty are allowed freedom from legal punishment. Jurors, at least most of those who get picked for service, do not understand the process in which they are taking part, much less the laws or the idea of justice that is at stake. What is worse is that most of the people that receive the opportunity to serve in this façade do everything within their power to avoid even participating. This should inform one just how little we, as a people, care about whether or not we have the Truth or simply the truth we are spoon-fed by our “dually-elected” leadership. We participate in the appearance of objective justice even when we do what we can to not participate in the process we have set up to simulate such a process. The citizens avoid participation and the soldiery are kept in a paralytic haze so as to guarantee their participation.

Miller touches on the issue in footnote number twenty-two when he describes the near-vertical slope toward tyranny that a lack of a deliberative process creates. What is interesting, to me at this point, is that in this ‘age of information’ we have the lowest rate participation in the established democratic process and the lowest level of trust for the leadership of that establishment we have seen in a long time (if not ever). I think Miller is absolutely correct that slope would exist; I fear that it is far too late to hope that it is a situation to avoid. The Leviathan is alive and well and expects its constituents to be invincibly ignorant. Whether this is the appropriate state in which we should be or whether this is a trend to buck is far, far beyond the scope of this paper and certainly this single class.