In all-voluntary militaries like those in the UK and US, soldiers seem to have a moral duty to follow orders. Their promising to perform the tasks of their office can seem like a moral game-changer that makes it obligatory for them to do things that would otherwise be wrong.
First, not only have they become soldiers voluntarily, but they’ve presumably done so with their eyes open in the knowledge that they may be commanded to fight in unjust wars or to follow unjust orders in otherwise just wars.
Second, following orders seems necessary to sustain a functioning political system and to honour democratic decisions about the scale and activity of the military.
Third, following orders seems necessary to ensure that, collectively, a society acts on the basis of good information. Soldiers have limited access to relevant information and limited time to make decisions, and so it seems they should defer to the better-informed, legitimate institutional processes that seek to determine whether wars are just.
The problem is that promising to follow orders in war only gets us morally so far.
Although soldiering is voluntary (in the US and UK), it can be difficult for soldiers to extricate themselves once they’ve joined up. They can lose benefits or have to repay loans if they resign, which casts doubt on the voluntariness of continued enlistment.
And promising does not always lend moral weight to our actions. Suppose I promise you that I will kill Sam. This lends no moral weight to my killing Sam. (If it did, it would be highly convenient for me. If I wanted to kill Sam, all I would have to do to get moral support for my act is promise you that I will do it.)
Even when promising does lend moral support to our actions, it is never so well informed that it can morally bind us to follow every order we get from that point on. In promising to carry out the tasks of a soldier, a person may have his eyes open, but that won’t enable him to see into the crystal ball.
The soldier who best fulfils his office may also not be the one who slavishly follows orders, but the one who exercises his moral judgement to object when his orders are unjust. He would not need special information to make this judgement. He would have good reason to believe, for example, that any war he is asked to fight in that is not clearly self-defensive is an unjust war. And, he would have good reason to believe any order that used biological weapons or sexual violence is an unjust order.
In refusing to fight unjustly, a soldier does less injustice. He also may prevent his society from doing injustice. Rutgers philosopher Jeff McMahan observes that soldiers who refuse to fight unjustly may benefit their country’s institutions in the long run by setting a precedent that may deter leaders from starting other unjust wars. And, they may prompt their country’s institutions to shield themselves by adapting to anticipate and accommodate conscientious refusals to fight.
McMahan argues that militaries should adopt legal provisions that allow voluntary soldiers as well as conscripts to conscientious object selectively. Essentially, soldiers should have a legal right to refuse, which gives them a third option other than wrongfully obeying an order to fight unjustly or submitting to punishment.
Such protection of conscientious refusals to fight is not the same kind of protection as the right to conscientiously object, which we find in other domains like healthcare, criminal justice, and education. In those domains, the right to object protects us when we want to act wrongly, just as the right to free expression protects us when we want to say offensive things. In healthcare, a doctor can exercise a right to refuse to perform abortions on the grounds that it clashes with her moral convictions or religious beliefs, and she does not have to show that her beliefs are sensible or sound.
By contrast, the soldier who refuses to fight may not appeal to the word of God to shield his act from judgement. Instead, he must give reasons for why he believes his orders are unjust. In short, any legal protection he might have for his refusal would not give him the freedom to act wrongly as part of his protected sphere of autonomy in which to act as he wishes. Legal protection would only protect the soldier who has good reason for thinking his orders are unjust, and it would essentially give him a legal duty to refuse to fight.
