Selective Conscientious Objection

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Selective Conscientious Objection ¹

John Courtney Murray, S.J.

In a 1958 address on nuclear deterrence, Murray admitted the partial validity of a relative nuclear pacifism, partially valid in that it pointed to the extremely deadly potential of a full scale nuclear war, partially invalid because it did not take into account the valid insights of two other viewpoints (WHTT, p. 250). The other two were the recognition that a tremendous gulf between the East and West (suggesting to some the possibility of a Holy War), and the insight of others that an international order of law, embodied in the United Nations, ought to make war impossible. While Murray had, in 1944, called for just such an international order of law, and criticized some Roman Catholics for opposing the U.N., in this 1958 article he commented that the U.N. was at present too weak to morally outlaw defensive war for the sake of justice. He then proceeded through a tortured argument that Pius XII, in the latter's application of the principle of proportionality, had not ruled out limited nuclear war (p. 259). He continued that Pius had prohibited any Catholic pacifism (p. 264). He finally concluded that the church must help break the American temptation of thinking of war in terms of either total surrender or total defeat, or the temptation of thinking of the use of force in all cases as amoral or immoral. Murray's main point once again was the need to construct a social environment where the nation could distinguish between force and violence, limited and total nuclear war, that is, to think morally about the issue across the present polarization of viewpoints.

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The following article was an address, given at Western Maryland College on June 4, 1967, just weeks before Murray's death. Here he affirms the moral validity of selective conscientious objection. Once again his preoccupation rests on the quality of debate that ought to result from the Conscientious Objector's obligation to defend his position in the public forum. Amid the sharpening polarities brought on by that war, he had his doubts whether such a public debate could be effected—Editor.

The nation is confronted today with the issue of selective conscientious objection, conscientious objection to particular wars, or as it is sometimes called, discretionary armed service.

The theoretical implications of the issue are complex and subtle. The issue raises the whole question of war as a political act and the means whereby it should be confined within the moral universe. The issue also raises the question of the status of the private conscience in the face of the public law and national policy. In fact, the whole relation of the person to society is involved in this issue. Moreover, the practical implications of the issue are far reaching. Selective conscientious objection, as Gordon Zahn has pointed out, is an "explosive principle." If once admitted with regard to the issue of war, the consequences of the principle might run to great lengths in the civil community.

My brief comments on this far-reaching principle are here directed, for reasons that will appear, both to the academic community, especially the student community and to the political community and its representatives.

A personal note may be permissible here. During the deliberations of the President's Advisory Commission on Selective Service, on which I was privileged to serve, I undertook to advocate that the revised statute should extend the provisions of the present statute to include not only the absolute pacifist but also the relative pacifist, that the grounds for the status of conscientious objector should be not only religiously or non-religiously motivated opposition to participation in war in all forms, but also to similarly motivated opposition to participation in particular wars.

This position was rejected by the majority of the Commission. No Presidential recommendation was made to the Congress on the issue. There is evidence that the Congress is not sympathetic to the position of the selective objector and is not inclined to accept it. This

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does not mean that the issue has been satisfactorily settled. The public argument goes on and must go on. It is much too late in the day to defend the theory of General Hershey that "the conscientious objector by my theory is best handled if no one hears of him." The issue is before the country and it must be kept there.

It is true the issue has been raised by a small number of people, chiefly in the academic community—students, seminarians, professors, not to speak of minister of religion. But this group of citizens is socially significant. It must be heard and it must be talked to. I recognize that in many respects the issue has been raised rather badly, in ways that betray misunderstanding. Moreover, mistakes have been made about the mode of handling the issue. Nevertheless, the student community is to be praised for having raised a profound moral issue that has been too long disregarded in American life.

The American attitude toward war has tended to oscillate between absolute pacifism in peacetime and extremes of ferocity in wartime. Prevalent in American society has been an abstract ethic, conceived either in religious or in secularized terms, which condemns all war as immoral. No nation has the jus ad bellum. On the other hand, when a concrete historical situation creates the necessity for war, no ethic governs its conduct. There are no moral criteria operative the control the uses of the force. There is no jus in bello. One may pursue hostilities to the military objective of unconditional surrender, and the nation may escalate the use of force to the paroxysm of violence of which Hiroshima and Nagasaki are forever the symbols, even though they were prepared for by the fire-bomb raids on Tokyo and by the saturation bombing of German cities. And all this use of violence can somehow be justified by slogans that were as simplistic as the principles of absolute pacifism.

These extreme alternatives are no longer tolerable. Our nation must make its way to some discriminating doctrine—moral, political, and military—on the uses of force. Perhaps the contemporary agitation in the academic community over selective conscientious objection may help in this direction. It has contributed to a revival of the traditional doctrine of the just war, whose origins were in Augustine and which was elaborated by the medieval Schoolmen and furthered by the international jurists in the Scholastic tradition and by others in the later tradition of Grotius.

This doctrine has long been neglected, even by the churches. Now we begin to witness its revival. We are also beginning to realize that it is not a sectarian doctrine. It is not exclusively Roman Catholic;

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in certain forms of its presentation, it is not even Christian. It emerges in the minds of all men of reason and good will when they face two inevitable questions. First, what are the norms that govern recourse to the violence of war? Second, what are the norms that govern the measure of violence to the used in war? In other words, when is war rightful, and what is rightful in war? One may indeed refuse the questions, but this is a form of moral abdication, which would likewise be fatal to civilization. If one does face the questions, one must arrive at the just war doctrine in its classical form, or at some analogue or surrogate, conceived in other terms.

The essential significance of the traditional doctrine is that it insists, first, that military decisions are a species of political decisions, and second, that political decisions must be viewed not simply in the perspective of politics as an exercise of power but of morality and theology in some valid sense. If military and political decisions are not so viewed, the result is the degradation of those who make them and the destruction of the human community.

My conclusion here is that we all owe some debt of gratitude to those who, by raising the issue of selective conscientious objection, have undertaken to transform the tragic conflict in South Vietnam into an issue not simply of political decision and military strategy, but of moral judgment as well.

The mention of South Vietnam leads me to my second point. The issue of selective conscientious objection has been raised in the midst of the war in Southeast Asia. Therefore, there is danger lest the issue be muddled and confused, or even misused and abused. In South Vietnam we see war stripped of all the false sanctities with which we managed to invest World War I and World War II, and to a lesser extent even Korea. The South Vietnamese war is not a crusade. There is not even a villain of the piece, as the Kaiser was, or Hitler, or Hirohito. Not even Ho Chi Minh or Mao Tse-tung can be cast in the role of the man in the black hat. We have no easy justifying slogans. We cannot cry, "On to Hanoi," as we cried "On To Berlin" and "On To Tokyo." This war does not raise the massive issue of national survival. It is a limited military action for limited political aims. As we view it in the press or on television it almost seems to fulfill Hobbes' vision of human life in the state of pure nature, "nasty, brutish, and short"—except that the war in South Vietnam will not be short. In the face of the reality of it, all our ancient simplisms fail us. The American people are uncomfortable, baffled, and even resentful and angry.

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To state the problem quite coldly, the war in South Vietnam is subject to opposition on political and military grounds, and also on grounds of national interest. This opposition has been voiced, and voiced in passionate terms. It has evoked a response in the name of patriotism that is also passionate. Consequently, in this context, it is difficult to raise the moral issue of selective conscientious objection. There are even some to whom it seems dangerous to let the issue be raised at all.

At this juncture I venture to make a recommendation in the common interest of good public argument. The issue of selective conscientious objection must be distinguished from the issue of the justice of the South Vietnam war. If this distinction is not made and enforced in argument, the result will be confusion and the clash of passions. The necessary public argument will degenerate into a useless and harmful quarrel. The distinction can be made. I make it myself. I advocate selective conscientious objection in the name of the traditional moral doctrine on war and also in the name of traditional American political doctrine on the rights of conscience. I am also prepared to make the case for the American military presence and action in South Vietnam.

I hasten to add that I can just about make the moral case. But so it always is. The morality of war can never be more than marginal. The issue of war can never be portrayed in black and white. Moral judgment on the issue must be reached by a balance of many factors. To argue about the morality of war inevitably leads one into gray areas. This is the point that was excellently made by Mr. Secretary Vance in his thoughtful address to Annual Convention of the Episcopal Diocese of West Virginia on May 6, 1967. It is evident here that our national tradition of confused moral thought on the uses of force does us a great disservice. It results in a polarization of opinion that makes communication among citizens difficult or even impossible. As Mr. Vance said, "In America today one of the greatest barriers to understanding is the very nature of the dialogue which has developed over the issue of Vietnam. It is heated and intolerant. The lines on both sides are too sharply drawn." I agree.

By the same token rational argument about selective conscientious objection will be impossible if public opinion is polarized by all the passions that have been aroused by the South Vietnam war. The two issues, I repeat, can and must be separated.

Another difficulty confronts us here. The issue about conscientious objection seems to have been drawn between the academic

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community and the political community—if you will, between poets and politicians, between scientists and statesmen, between humanists and men of affairs, between the churches and the secular world. It is, therefore, no accident that the dialogue at the present moment is in a miserable state. One may seek the reason for the fact in the differences in the climate of thought and feeling that prevail in the two distinct communities, academic and political. In consequence of this difference in climate each community, in a different way, can become the victim of the intellectual and moral vice that is known as the selective perception of reality.

It has been observed that the commitment of the intellectual today is not simply to the search for truth, but also to the betterment of the world—to the eradication of evil and to the creation of conditions of human dignity, first among which is peace. One might say that he has assumed a prophetic role, not unlike that of the churches.² This is most laudable. The danger is lest the very strength of the moral commitment—to peace and against war—may foreclose inquiry into the military and political facts of the contemporary world—the naked facts of power situations and the requirements of law and order in an imperfect world, which may justify recourse to the arbitrament of arms. The problem is compounded if the so-called "norms of nonconformism" begin to operate. In that case opposition to war becomes the test of commitment to the ideals of the academic community.

On the other hand, the politician is no prophet. He may and should wish to shape the world unto the common desire of the heart of man which is peace with freedom and justice. But he is obliged to regard the world as an arena in which historical alternatives are always limited. He must face enduring problems, which may seem intractable, and which demand continuing decisions and acts. His actions cannot be based on [absolute certainties or on considerations of the ideal, but on] a careful balancing and choosing between the relativities that are before him.

In a word, for the prophets and for the intellectual, war is simply evil. For the politician it may well appear to be the lesser evil. This too is a conscientious position—the choice of the lesser evil is part of

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the human pursuit of the good. But it is very different from the prophetic position. In any event, it is not surprising that the politician and the prophet fail to communicate. It must also be remembered that the politician creates the situation within which the prophetic voice may be safely heard. There is much wisdom in the statement of Paul Ramsey: "The right of pacifist conscientious objection can be granted for the fostering of the consciences of free men, only because in national emergencies there are a sufficient number of individuals whose political discretion has been instructed in the need to repel, and the justice of repelling, injury to the common good."

I might add a practical point. The intellectual, whether he be student or professor, sets a premium on being provocative. His task is to challenge all certainties, especially easy certainties, and therefore to challenge the authorities on which certainties may depend. He wants evidence, not authority, and besets a high value on dissent. All this is excellent and necessary. But there is danger in thrusting this scale of evaluation into the political community. It is not merely that the intellectual provokes reaction; he provokes an over-reaction on the part of the representatives of the political community, and thus he may easily defeat his own cause.

The advocacy of selective conscientious objection in the midst of the South Vietnamese war is provocative, and the political response to it has been an over-reaction. If you want the evidence you need only read the record of the hearings in Congress, both Senate and House, on the revision of the Selective Service Act, when the issue of conscientious objection was brought up. The claim that the selective objector should be recognized was met with response that all conscientious objection should be abolished.

All this amounts simply to saying that we face a most difficult issue. It might be of some value to try to locate some of the sources of the difficulty. Strictly on grounds of moral argument, the right conscientiously to object to participation in a particular war is incontestable. I shall not argue this issue. The practical question before all of us is how to get the moral validity of this right understood and how to get the right itself legally recognized, declared in statutory law. (I leave aside the question whether the right is a human right, which ought to receive sanction in the Bill of Rights as a constitutional right.)

I have made one practical suggestion already. The issue of selective conscientious objection must be argued on its own merits. It is not a question of whether one is for or against the war in Vietnam, for

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or against selective service, much less for or against killing other people. The worst thing that could happen would be to use the issue of conscientious objection as a tactical weapon for political opposition to the war in Vietnam or to the general course of American foreign policy. This would not be good morality and it would be worse politics. Perhaps the central practical question might be put in this way: Do the conditions exist which make possible the responsible exercise of a right of selective conscientious objection? The existence of these conditions is the prerequisite for granting legal status to the right itself.

There are two major conditions. The first is an exact understanding of the just war doctrine, and the second is respect for what Socrates called "the conscience of the laws." I offer two examples, from among many, where these conditions were not observed.

Not long ago a young man in an anti-Vietnam protest on television declared that he would be willing to fight in Vietnam if he knew that the war there was just, but since he did not know he was obliged to protest its immorality. This young man clearly did not understand the just war doctrine and he did not understand what Socrates meant by the "conscience of the laws."

Similarly, in a statement issued by a Seminarians' Conference on the Draft held not long ago in Cambridge, there appears this statement: "The spirit of these principles [of the just war doctrine] demands that every war be opposed until or unless it can be morally justified in relation to these principles." Socrates would not have agreed with this statement nor do I. The dear seminarians have got it backward.

The root of the error here may be simply described as a failure to understand that provision of the just war doctrine which requires that a war should be "declared." This is not simply a nice piece of legalism, the prescription of a sheer technicality. Behind the provision lies a whole philosophy of the State as a moral and political agent. The provision implies the recognition of the authority of the political community by established political processes to make decisions about the course of its action in history, to muster behind these decisions the united efforts of the community, and to publicize these decisions before the world.

If there is to be political community, capable of being a moral agent in the international community, there must be some way of publicly identifying the nation's decisions. These decisions must be declared to be the decisions of the community. Therefore, if the

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decision is for war, the war must be declared. This declaration is a moral and political act. It states a decisions conscientiously arrived at in the interests of the international common good. It submits the decision to the judgment of mankind. Moreover, when the decision-making processes of the community have been employed and a decision has been reached, at least a preliminary measure of internal authority must be conceded by the citizens to this decision, even by those citizens who dissent from it. This, at least in part, is what Socrates meant by respect for the "conscience of the laws." This is why in the just war theory it has always been maintained that the presumption stands for the decision of the community as officially declared. He who dissents from the decision must accept the burden of proof.

The truth, therefore, is contrary to the statement of the seminarians. The citizen is to concede the justness of the common political decision, made in behalf of the nation, unless and until he is sure in his own mind that the decision is unjust, for reasons that he in turn must be ready convincingly to declare. The burden of proof is on him, not on the government or the administration or the action as a whole. He does not and may not resign his conscience into the keeping of the State, but he must recognize that the State too has its conscience which informs its laws and decisions. When his personal conscience clashes with the conscience of the laws, his personal decision is his alone. It is valid for him, and he must follow it. But in doing so he still stands within the community and is subject to its judgment as already declared.

Only if conceived in these terms can the inevitable tension between the person and the community be properly a tension of the moral order. Otherwise, it will degenerate into a mere power struggle between arbitrary authority and an aggregate of individuals, each of whom claims to be the final arbiter of right and wrong.

This is the line of reasoning which led me to argue before the National Advisory Commission on Selective Service that one who applies for the status of selective conscientious objector should be obliged to state his case before a competent panel of judges. I was also following the suggestion of Ralph Potter that the concession of status to the selective objector might help to upgrade the level of moral and political discourse in this country. It is presently lamentably low. On the other hand, Paul Ramsey has recently suggested that the matter works the other way round. "A considerable upgrading of the level of political discourse in America is among the conditions of the possibil-

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ity of granting selective conscientious objection. At least the two things can and may and must go together." He adds rather sadly: "The signs of the times are not propitious for either." I agree.

Those who urge the just war doctrine as the ground for selective conscientious objection must understand the doctrine itself. They may not naively or cynically employ it as a device for opting out from under the legitimate decisions of the political community, or as a tactic for political opposition to particular wars. Rightly understood, this doctrine is not an invitation to pacifism, and still less to civil disobedience. There is a further requisite for legal recognition of selective conscientious objection. It is the prior recognition of the difference between moral objection to a particular war and political opposition to a particular war. This seems to be the sticking point for the political community. It brings into question the whole ethos of our society in the matter of the uses of force.

Historically, we have been disposed to regard the intuitive verdict of the absolute pacifist that all wars are wrong as having the force of a moral imperative. The same moral force is not conceded to the judgment of the conscientious man, religious or not, who makes a reflective and discriminating judgment on the war in front of him. The general disposition is to say that objection to particular wars is and can only be political and, therefore, cannot entitle anyone to the status of conscientious objector.

Here again there is a misunderstanding of the just war doctrine. In fact there seems to be a misunderstanding of the very nature of moral reasoning. The just war doctrine starts from the moral principle that the order of justice and law cannot be left without adequate means for its own defense, including the use of force. The doctrine further holds that the use of force is subject to certain conditions and its justice depends on certain circumstances. The investigation of the fulfillment of these conditions leads the conscientious man to a consideration of certain political and military factors in a given situation. There is the issue of aggression, the issue of the measure of force to be employed in resisting it, the issue of probable success, the issue of the balance of good and evil that will be the outcome. The fact that his judgment must take account of military and political factors does not make the judgment purely political. It is a judgment reached within a moral universe, and the final reason for it is of the moral order.

There is some subtlety to this argument. But that is not, I think, the reason why the political community refuses to assimilate or

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accept it. The reasons are of the practical order. The immediate reason is the enormous difficulty of administering a statute that would provide for selective conscientious objection. The deeper reason is the perennial problem of the erroneous conscience. It may be easily illustrated.

Suppose a young man comes forward and says: "I refuse to serve in this war on grounds of the Nuremberg principle." Conversation discloses that he has not the foggiest idea what the Nuremberg principle really is. Or suppose he understands the principle and says: "I refuse to serve because in this war the United States is committing war crimes." The fact may be, as it is in South Vietnam, that this allegation is false. Or suppose he says, "I refuse to serve because the United States is the aggressor in this war." This reason again may be demonstrably false. What then is the tribunal to do?

Here perhaps we come to the heart of the difficulty and I have only two thing to say. First, unless the right to selective objection is granted to possibly erroneous consciences it will not be granted at all. The State will have to abide by the principle of the Seeger case, which does not require that the objection be the truth but that it be truly held. One must follow the logic of an argument wherever it leads. On the other hand, the political community cannot be blamed for harboring the fear that if the right to selective objection is acknowledged in these sweeping terms, it might possibly lead to anarchy, to the breakdown of society, and to the paralysis of public policy.

Second, the reality of this fear imposes a further burden on the consciences of those who would appeal to freedom of conscience. Selective objection is not a trivial matter. As Ralph Potter has said: "The nation is ultimately a moral community. To challenge its well-established policies as illegal, immoral, and unjust is to pose a threat, the seriousness of which seem at times to escape the critics themselves, whether by the callowness of youth or the callousness of usage." It must be recognized that society will defend itself against this threat, if it be carelessly wielded.

The solution can only be the cultivation of political discretion throughout the populace, not least in the student and academic community. A manifold work of moral and political intelligence is called for. No political society can be founded on the principle that absolute rights are to be accorded to the individual conscience, and to all individual consciences, even when they are in error. This is rank individualism and to hold it would reveal a misunderstanding of the very

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nature of the political community. On the other hand, the political community is bound to respect consciences. But the fulfillment of this obligation supposes that the consciences of the citizens are themselves formed and informed.

Therefore, the final question may be whether there is abroad in the land a sufficient measure of moral and political discretion, in such wise that the Congress could, under safeguard of the national security, acknowledge the right of discretionary armed service.