“If his cause be wrong, our obedience to the King wipes the crime of it out of us.”
(Bates, Act 4, Scene 1)

“Now, if these men do not die well, it will be a black matter for the King who led them to it.” (Williams)

“’Tis certain, every man that dies ill, the ill be upon his own head, the King is not to answer for it.” (Williams)

“Upon the King! Let us our lives, our souls, Our debts, our careful wives, Our children and our sins lay upon the King!”
(King)

The Problem

The brief selection of well-known lines above are excerpted from a classic scene in William Shakespeare’s Henry V that takes place the night before the Battle of Agincourt. The English soldiers, Bates and Williams, and the King (in disguise) debate the justness of the King’s resort to force (Just Cause) and to what degree they, as soldiers, are responsible – morally, spiritually – for these actions. The scene opens with the dispensation of Last Rites, which conveys the seriousness of the discussion and gravity of the actions that they are about to undertake. Are their actions murder? Or are they justified in killing in the Just Cause of the State? Who will be called to account for the answer to these questions?

In the course of the discussion, Williams questions the justness of the King’s cause, while Bates claims that since they are acting in the King’s name any sin committed is the King’s – the soldiers are merely acting in obedience to the King, which cannot be a crime. The King pushes back against the idea that all the responsibility lies with the King; he asserts the idea of individual moral agency and that each soldier is responsible for his own actions and conscience. The King cannot control whether his men are virtuous, whether they will die well or what their motives in fighting are. These are the domain, and therefore the responsibility, of each individual soldier: "Every subject's duty is the King's, but every subject's soul is his own."

At the conclusion of the debate, Williams relents and agrees with the King’s logic. Yet, it is more complicated, and the soliloquy following the discussion indicates the King is acutely aware of the responsibility placed upon him. He prays for strength and good conduct for his soldiers, as well as appealing to God for mercy and understanding; he hopes God will judge his motivation for the war as just. Despite his argument to Williams, he knows he will be viewed as responsible for what is about to happen.

This is a startling contemporary issue: what level of moral agency, judgment, and responsibility do individual members of the military bear in war? In 2006 Lt Ehren Wahtada tried to selectively conscientiously object to deploying to Iraq, while in 2013 service members appeared on social media to proclaim they would not fight in a war in Syria.[1] These are only two examples that illustrate the way in which this debate is live and permeates military culture. On the academic side, Michael Walzer and Jeff McMahan (and their proxies) have been engaged in this debate for quite some time, pitting individualist accounts against the conventional view that soldiers are instruments of the State. I want to examine this debate and put forward an alternative view to those typically espoused, expanding and advancing the ethical discussion in the process.

Walzer and the State

For Michael Walzer, members of the military have consented (or function as if they do) to being treated as objects of war; they are agents and instruments of the State acting not on their own behalf.[2] “The discipline of the state is not merely imposed on them; it is also a discipline they accept.”[3] Because of this, the ‘crime’ of war is not the crime of the individual acting in his or her own interest, but one acting as an instrument of the State.

The traditional Separation Thesis argues that the question of Just Resort (jus ad bellum) is the domain over which the State and its leaders exercise moral and political judgment, while Just Conduct (jus in bello) is the domain over which the military and individual members to exercise moral judgment. There is a moral division of labor here, so each may focus on their own roles and expertise. “Armed, he [enemy soldier] is an enemy; but he isn’t my enemy…the war itself isn’t a relation between persons but between political entities and their human instruments.”[4]

So, Walzer argues the atrocities committed in war are the responsibility of the individual soldier, while the war itself is not.[5] It is the agency of the soldier that brings about those crimes, whereas the soldier does not bring about the war itself; the agency for the war lies with the State. “Soldiers are not, however, entirely without volition. Their will is independent and effective only within a limited sphere, and for most of them that sphere is narrow.”[6] Therefore, within their limited sphere of agency and control, soldiers are morally and legally responsible, but only within that sphere.

McMahan and the Individual

McMahan, who is the foremost member of the Revisionist camp in Just War Thought, critiques Walzer’s State-centric view, claiming that individuals do not surrender any part of their individual moral agency or responsibility when they join the military; they retain all of the moral agency that they would have as private citizens. In addition, he argues the moral equality of combatants is based upon the view that “…those who pose a threat to others have no right against being attacked in self defense.”[7] He thinks this is the wrong question to ask, and we must instead look at whether the soldier is responsible for posing a just or unjust threat: “According to this criterion, just combatants cannot be liable to attack by unjust combatants.”[8] This line of argument effectively undermines the separation between jus ad bellum and jus in bello as distinct ethical domains with different parties responsible for each. Instead, what we have are individuals acting justly or unjustly and their actions must be considered in this individual, not a collective, context.

...what we have are individuals acting justly or unjustly and their actions must be considered in this individual, not a collective, context...

For McMahan, soldiers inherently function as individuals with full moral agency, judgement, and responsibility for both Just Cause and Just Conduct, disagreeing with Walzer’s idea that they are instruments or acting on behalf of the State. This undermines Walzer’s claims that members of the military are instruments of the State with liability and agency limited by their personal role and the intent of the State. According to McMahan, if the war is unjust, then a soldier’s participation in it and all his or her associated actions are also unjustified, and he or she is personally morally responsible for this fact; obedience to the State does nothing to change or mitigate that responsibility on McMahan’s view. This may mean that if the soldier believes the war is unjust, he ought not participate in the conflict; his actions will be immoral even if he follows Just Conduct and International Law to letter because of the unjustness of the war itself.

The Third Way

So what are we to make of this debate? Who is right? I am skeptical of McMahan’s attempt to jettison any sort of collective responsibility and his critique of the State centric model. While it may not be the same kind of responsibility as that ascribed to individual moral agents, there is some sense of responsibility that is collective and/or related to one’s role within the State.[9] At the same time, those who would use Walzer to argue that military members are simply or merely instruments or tools of the State and are only responsible for jus in bello are also wrong.

Members of the military act as agents for the State in the same fiduciary way CEOs act as agents for their shareholders, or that elected representatives act on behalf of those who elected them. They act not as individual moral agents considering only their own interests, but they do retain some measure of individual moral agency and judgment. That said, they must be careful about how and to what extent they assert this agency and judgment, and what motivates them in doing so.

In the case of the military, individual moral agency and judgment is informed by and limited by ideas of Military Professionalism, and the values and priorities of the military as a community of moral practice; this is delineated by best practices, Core Values, oaths, the Uniform Code of Military Justice or UCMJ, and other normative structures. Members of the military are expected to demonstrate and exercise expertise within relevant areas; my claim is that certain kinds of moral judgments about warfare and its conduct clearly fall within this idea of expertise. This is not the personal moral judgment of the private citizen (which could be based upon emotion, religion, membership in a group, or a whole host of other sources for moral claims), but an ethical judgment informed by a role and community of practice. We expect a certain kind of ethical expertise from the military – that is what is being exercised here. When Hugh Thompson acted at My Lai, it was not solely as an individual on personal moral grounds, but he was exercising ethical judgment within a community of practice in reference to the standards of that community (protecting the innocent, discrimination and regulation of other members of the Profession of Arms.)

We could call this the Representation Thesis, as opposed to the classic Separation Thesis mentioned in the discussion of Walzer above. This shifts the discussion away from soldiers being mere instruments of the State, and toward the idea that they are agents or representatives of the State carrying out a role even as they retain individual moral agency. The question remains: how much agency and therefore, moral responsibility do they retain?

To return to the discussion in the play, the soldiers are engaged in considering exactly the kind of Professional Judgment and Discretion I have discussed elsewhere; they are engaged in ethical reflection and discussion in relation to actions within their control and responsibility. This is particularly interesting as we might expect this discussion from the officers (the nobility), but given the context of medieval warfare, we might not expect it from more rank and file soldiers. But it is there, informing and provoking contemporary reflection and discussion! Williams concludes, “Tis certain, every man that dies ill, the ill be upon his own head, the King is not to answer for it” and Bates responds, “ I do not desire he should answer for me, and yet I determine to fight lustily for him.”

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Pauline Shanks Kaurin holds a Ph.D. in Philosophy from Temple University and is a specialist in military ethics, just war theory, social and political philosophy, and applied ethics. She is an Associate Professor of Philosophy at Pacific Lutheran University and a Featured Contributor on The Strategy Bridge.

Header image: Harry Judge as the lead character in Christopher Luscombe’s production of “Henry V” at Chicago Shakespeare Theater in 2014.

Notes:

[1] William Shakespeare, Henry V. ( New York: Bantam Books, 1980.)

[2] I will alternate language here to be as inclusive as possible. I use soldier as shorthand for members of the military with apologies to the Navy, Marines, Air Force and Coast Guard.

[3] Michael Walzer, Just and Unjust Wars: A Moral Argument with Historical Illustrations. (New York, Basic Books, 1977) , p. 35

[4] Ibid, p. 36.

[5] Ibid., p. 39.

[6] Ibid., p 40.

[7] Jeff McMahan, “ The Morality of War and the Law of War,” in Just and Unjust Warriors: The Moral and Legal Status of Soldiers. Eds. David Rodin and Henry Shue. (New York: Oxford University Press, 2010), p. 21.

[8] Ibid., p. 22.

[9] There is an interesting debate along the same lines in Business Ethics around the issue is who has Corporate Social Responsibility. Some argue (Nani Ranken) that only individuals can have social or moral responsibilities, and others (Matthews and Goodpaster, Peter French) argue the corporations are enough like a human person that it has these responsibilities.