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Spring 2005, Volume 4.2Printable Version

Selective Conscientious Objection
History, Theology, and Practice

by The Staff of the Catholic Peace Fellowship

Franz Jagerstatter, the Austrian farmer who was martyred on August 9, 1943 for refusing to participate in the war being waged by Nazi Germany and its surrogate, the Austrian government, can rightly be considered a conscientious objector. But he was not a total conscientious objector. He did not refuse to participate in any and all wars. He was a selective conscientious objector, one who refused to participate in wars that are unjust.

We don’t know how Franz Jagerstatter learned about the Catholic Church’s teaching on just war. Perhaps he heard about it in a homily. Perhaps he read about it in a catechism. Perhaps he came across it in some other book on Catholic teaching. In any case, we know that Jagerstatter refused to join the Austrian military because, as he wrote to his godson, it was “an unjust war.” The implication is that he would have participated in a just war. One gets the sense from his letters and personal reflections in his diaries that he would have readily fought in a war in 1938 against Nazi Germany had the Austrian government called upon its citizens to resist instead of buckling under pressure to erect a puppet regime and serve Hitler’s expansionist purposes. So Jagerstatter provides us with an object lesson: those who espouse just-war theory can serve as a powerful form of resistance to the warmaking of modern nation-states.

We thought it would be worth explaining selective conscientious objection (SCO), its theory and practice, its history and current status, its vexing problems and its promise of being, for Catholics and others in the United States, an important part of our call to make peace in a time of war.

SCO: Its Basis in Just War Theory
As far as we know, it wasn’t until late in the second century that Christians served as members of the Roman military. But as time went on, they did serve in increasing numbers and so had to discern what form their service would take. For example, Roman military life was interwoven with religious rites seeking guidance and assistance from Roman gods. Not surprisingly, many Christians refused to participate in these rites for fear of worshipping false gods, and, as some accounts show, they were martyred for it. But not all Christians left the military; some stayed, and thus had to face the task of discerning to what extent they would participate in Roman religious rites. Taking the life of another was a matter of conscientious discernment as well. Here too, many Christians left the military to avoid shedding blood. But others did not leave, and they had to decide how to avoid egregious violence. In this sense, participation in the military has long been a matter of careful, conscientious discernment, not only whether or not to be in the military at all, but also, what form that military service may, or may not, take. Repeat: a matter of careful, conscientious discernment.

With Emperor Constantine’s Edict of Milan in the year 313, Christianity was legalized throughout the Roman Empire; no longer would it suffer persecution. By the end of the fourth century, Christianity became the official religion of the Empire; legal restrictions were placed on all other religions. The military was now comprised mainly of Christians. Thus, in keeping with the moral seriousness with which Christians had long approached the matter of military service and the taking of human life, the Church sought to clarify what forms of warfare were just and what forms were not. One early instance of this kind of “clarification of thought” (to use Peter Maurin’s famous phrase) came in the year 390, when Ambrose, Bishop of Milan, instructed the Emperor Theodosius I to do public penance for a punitive massacre he had ordered in Thessalonica. This penance was an instruction about the Christian obligation to refrain from injustice even in war. In this sense, Ambrose was an early practitioner of what we now call just war theory, which grew out of the healthy insight that waging an unjust war is an act from which a Christian must repent. Repeat: waging unjust war is an act from which one must repent.

It was this insight, in part, that shaped the thinking of Ambrose’s famous protege, Augustine (354-430), widely regarded as the primary articulator of Christian just war theory. Like his predecessor, Augustine believed that war was sometimes necessary in order to defend or restore justice, owing to the fallen nature of humanity and its propensity, even after Christ, to sin. In other words, war is a tragic necessity; and yet, even so, it must be waged in accord with certain principles. Augustine never actually set forth a “just war theory” in one place; rather, his viewpoint comes for the most part in the form of letters sent to those who had turned to him for moral guidance. Neverthe-less, it is possible to glean from his letters a coherent just-war position that can be summarized as follows: war may be waged if it is done so by a legitimate authority, in order to punish crime or uphold the peace, and if the combatants intend to establish or re-establish justice rather than take vengeance on their enemies in a hateful manner. Thus, although it is true that Augustine gave legitimacy to the notion of Christians taking up arms in war, he also laid down clear conditions under which going to war would be just, and would be unjust.

In the centuries following Augustine, Church leaders and civil authorities continued to sort out the conditions under which war may be waged justly. For example, war was not permitted in certain places that had some kind of spiritual significance, such as churches, cemeteries, hospitals, and monastic lands. These spatial restrictions came under the label “The Peace of God.” Then there was “The Truce of God,” which set down restrictions relating to time. Hostilities were not to occur, for example, on Sundays, holy days, or during Lent. Other restrictions emerged as well. Some weapons were considered too hideous, too lethal, such as the crossbow, which was revolutionary because it could pierce armor. Also, much discernment about the justice and injustice of war arose out of the context of the sacrament of confession. Soldiers on the battlefield in danger of death, or returning from military campaigns and wrestling with their consciences, needed to know if what they had done in war was immoral, so they could then be forgiven their sins. Thus it became important to identify immoral acts done in war, such as robbing civilians of food or property, taking the lives of non-combatants, or killing out of anger or in vengeance rather than for military purposes. It was also felt that returning soldiers should carry with them a general sense of remorse, even if they were fighting in a just war, simply because it involved bloodshed. This was in keeping with the ancient principle: Ecclesia abhorret a sanguine. Repeat (in translation): the Church abhors bloodshed.

  In the modern period (from the seventeenth century on, which is often called, quite misleadingly, the Enlightenment), the modern nation-state assumed increased power and authority over the lives of Christians, so that, more than evern, Christians thought of themselves first and foremost in terms of citizens of a particular nation-state, and then, secondarily, as members of the Body of Christ.
In the Middle Ages, the most important single formulator of just war theory was, of course, Thomas Aquinas (1225-1274). Gathering together the principles that over the course of centuries had been developed in civil and canon law, Aquinas formulated a conception of just war theory that included the following conditions: war must be waged by a competent authority, for the sake of peace, and with a proper intention, that is, with the intention of defending the good. Regarding these conditions, Aquinas was clearly working in continuity with his predecessor Augustine. But in one respect, Aquinas went further in clarifying a crucial principle that was implicit in Augustine’s thought, the principle that it is always wrong to intentionally take the life of the innocent. This principle is spelled out explicitly in the Summa Theologiae, Aquinas’s massive three-part summary of theology set forth in a question-and-answer format. To the question, “is it ever permissible to kill an innocent person?” Aquinas answers, “there is . . . simply no justification for taking the life of an innocent person” (ST 2, 2, 64, 6). Repeat: simply no justification for taking the life of an innocent person.

Catholic Neo-Scholastic Thinkers on SCO
In the centuries after Aquinas, just war theory developed through the work of two key Catholic neo-scholastic thinkers, Franciscus de Vitoria (1492-1546) and Francisco Suarez (1548-1617). Vitoria was acutely concerned with the deplorable treatment by European explorers and colonists of the indigenous peoples of the New World. In calling a halt to these atrocities, he appealed to the common law of nature which, he noted, imposes the obligation to protect the rights of “Indians” as well as Europeans. Suarez also appealed to natural law to point to the natural community of nations and the law of all peoples, which laid the theoretical basis for international law.

What is important to note for our purposes is that both of these early modern thinkers argued for the necessity of individual soldiers to follow their consciences, even when it conflicted with the policies of political leaders or the orders of military commanders. In such an important practical development, it is worth quoting the relevant texts at length.

In On The Laws of Wars, Vitoria addressed the duty to refuse to carry out unjust orders with these words:

If the injustice of a war is clear to a subject, he ought not to serve in it, even on the command of his prince. This is clear, for no one can authorize the killing of an innocent person… Again a prince sins when he commences a war in such a case. But “not only are they who commit such things worthy of death, but they, too, who consent to the doing there of” (Romans 1:32)… Again, it is not lawful to kill innocent fellow citizens on the prince’s command.

In a work entitled On Charity, Suarez writes:

Just as one is not allowed to pro- ceed to an unjust war, neither is he allowed to undertake the obli- gation of serving in such a war, nor even in any war indiscrimi- nately, whether just or unjust; and the reason for these discrim- inations is that to fight in an unjust war is to act unjustly.

Both of these quotations show that Christian thinkers of the early modern period considered Christ-ian participation in unjust wars to be a serious problem, so serious that they took the position that Christians should disobey the law rather than take part in an unjust war. This position is summed up nicely by James T. Johnson (himself a proponent of just-war theory) in his book Ideology, Reason, and the Limitation of War.

Referring to the neo-scholastic thinkers, Johnson writes, “When the prince’s cause is manifestly unjust, subjects may not serve in his war.” Johnson then notes, “Suarez even pushes the issue back one step: when arguments have been advanced that raise some doubt in the consciences of the subjects, they must inquire into their prince’s cause. If they discover that the cause is unjust, they may not serve.” For Johnson, “Suarez and Vitoria offer a clear justification for individual conscientious objection to particular wars….It is emphatically the subject’s responsibility to dispel any doubt…and if doing so results in certainty on his part that the war is unjust, he must in conscience refuse.” Repeat: he must in conscience refuse.

SCO and Total War
And yet, despite the calls of these voices in the Church, the idea of Christians conscientiously objecting to participating in unjust wars remained only that—an idea. Moreover, it remained an almost entirely unheard of idea, one that could be found in learned treatises by Christian scholastics but rarely in the actual practice of Christians. This is because the primary allegiance of the preponderance of Christians was not to the dictates of justice, nor to the natural law, nor to ancient Church tradition, nor to the Gospel, but—and this is a crucial point—to the State. In the modern period (from the seventeenth century on, which is often called, quite misleadingly, the Enlightenment), the modern nation-state assumed increased power and authority over the lives of Christians, so that, more than ever, Christians thought of themselves first and foremost as citizens of a particular nation-state, and then, secondarily, as members of the Body of Christ. With the French Revolution and the emergence throughout Europe of the secular state, this pattern of Christians identifying themselves as citizens first became more prevalent. And this made it less likely that a Christian would object to participating in a particular war being waged by their political and military leaders.

This diminished ability of Christ-ians to practice selective conscientious objection in the modern period was especially unfortunate because, in the same period, the waging of war became increasingly difficult to control. Several factors were operative here: the increase of industrial capacity, advances in transportation on land (e.g., the locomotive), at sea (e.g., the steam ship), and in the air (e.g., the air balloon, the airplane), and advances in communication (e.g., the telegraph), all of which made it possible for nations to wage war at a greater scale and pace, with greater efficiency and flexibility than ever before. As a result, all sectors of the population, especially those engaged in war-related economic production, were considered to be legitimate targets. Add to that the trend, dating back to the French Revolution, of governments conscripting entire populations for military service, and what we have is the advent of unlimited or “total” war.

The first instance of total war is marked by scholars as having occurred when the General William Tecumseh Sherman of the Union Army commanded a scorched-earth mission through Georgia and North Carolina, his infamous “March to the Sea.” From there, the waging of war became, so to speak, ever more “total.” The First World War brought unprecedented numbers of peoples and nations into armed conflict, leaving 9,000,000 soldiers and civilians dead and an entire continent devastated. The Second World War subjected soldiers and civilians alike to the wide scale use of obliteration bombing; first with the Axis bombings of England, then with the Allied fire-bombings of Dresden and Tokyo, and finally with the atomic bombings of Hiroshima and Nagasaki. Not long after came the Cold War and the emergence of nuclear weapons. By the end of World War II, it was a legitimate part of military strategy to destroy entire population centers.

SCO: The Church’s Response to Total War

It was in response to the advent of total war that the Catholic Church articulated with increasing urgency the necessity of waging war according to the dictates of justice. One thinks, for example, of Pope Benedict XV, the “Peace Pope,” whose papacy, beginning only weeks after the guns of August sounded, was dedicated to alleviating the suffering brought about by the World War I and calling all nations back to peace. One thinks also of Elizabeth An-scombe, the great English philosopher who wrote a pamphlet published by the Catholic Truth Society claiming that Great Britain’s going to war against Germany in the fall of 1939 was unjust and that people of good conscience should not participate in it. One thinks as well of Fr. John C. Ford, S.J., the moral theologian who argued cogently in a lengthy article published in Theological Studies (1944) that the U.S. and British policy of obliteration bombing of German cities was immoral and must be resisted. And one thinks of Popes Pius XII, John XXIII, and Paul VI, who condemned with increasing urgency the construction and use of nuclear weapons.

But more than any of these statements, one thinks of the Second Vatican Council, and the paragraphs in Gaudium et spes, the Pastoral Constitution of the Church in the Modern World, that deal with the matter of war (paragraphs 77-82). Probably the most widely known passage in this section comes in paragraph 80, entitled “Total War,” which makes the following declaration: “any act of war aimed indiscriminately at the destruction of entire cities or of extensive areas along with their population is a crime against God and man himself” (Gaudium et spes, n. 80). Here, the Council Fathers were clearly addressing nuclear weapons, a pressing concern in the mid sixties at the height of the Cold War. But it is important to read this condemnation in light of the previous paragraph, where, in response to “the savagery of war,” the Council pointed to “the permanent binding force of universal natural law and its all-embracing principles. Man’s conscience itself gives ever more emphatic voice to these principles. Therefore,” the Council declared, “actions which deliberately conflict with these same principles, as well as orders commanding such actions, are criminal. Blind obedience cannot excuse those who yield to them.” After listing examples of such criminal actions, the Council stated that “the courage of those who openly and fearlessly resist men who issue such commands merits supreme commendation” (Gaudium et spes, n. 79). Repeat: orders conflicting with the principles of the natural law are criminal, and those who refuse to obey such orders merit supreme commendation.

In Gaudium et spes, then, the Council issues both a moral prohibition and a moral commendation. The moral prohibition is rooted in the principles of the natural law. The moral commendation points to those who have adhered to these principles over against the instructions of political and military authorities. Writing only two decades after the end of World War II, the Council Fathers surely were mindful of people who refused to acquiesce in the unjust waging of war perpetrated by Nazi Germany. Here we see a crucial development in the Church’s teaching on conscientious objection to war. Rather than reiterating the assurances of Augustine and Aquinas that the moral responsibility of soldiers in war falls to their commanders, the Council placed the moral responsibility on soldiers themselves, who are obligated to follow the authority of their own consciences rather than the authority of the state. Accor-dingly, when the Council states, in reference to military personnel, that “those who are pledged to the service of their country as members of the armed forces should regard themselves as agents of security and freedom on behalf of their people,” it qualifies this statement in the very next sentence: “As long as they fulfill this role properly, they are making a genuine contribution to peace” (Gaudium et spes, n. 79).

In sum, the teaching of the Second Vatican Council, based on insights developed over centuries and confronting the crisis of modern states waging total war, affirmed the duty of Christians to wage war justly and, if and when that is not possible, to become, in effect, selective conscientious objectors. Selective conscientious objection is thus based not on the whims of individual soldiers, nor on some fanciful wish for peace, nor on some pie-in-the-sky ideals. It is based, as the Council states, on “the permanent binding force of universal natural law and its all-embracing principles.” Repeat: the binding force of universal natural law.

SCO and Vietnam
After the Council made it clear that its “evaluation of war with an entirely new attitude” (Gaudium et spes, n. 80) includes supporting those who refuse to participate in unjust wars and in unjust actions within wars, Catholics in the United States insisted that the rights of selective conscientious objectors (SCOs) be recognized by law.

Perhaps the most prominent voice along these lines was John Courtney Murray, the Jesuit theologian and political theorist who had a key role in the Second Vatican Council’s Declaration on Religious Freedom. In the mid sixties, he was appointed to serve on the National Advisory Commission on Selective Service. As a long-time exponent of just-war theory and a supporter of U.S. intervention in Vietnam, Murray was certainly not a pacifist, not a “dove” (to use the parlance of the day). And yet he strongly disagreed with the majority of the Commission in its rejection of any legal right to SCO, so as to forestall, in the Commission’s words, “selective disobedience to the law.” Shortly before his untimely death in 1967, Murray denounced the findings of the Commission and called for legal recognition of SCO “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.” He also insisted that “the public argument goes on and must go on. . . . The issue is before the country and it must be kept there.”

  Rather than reiterating the assurances of Augustine and Aquinas that the moral responsibility of soldiers in war falls to their commanders, the Council placed the moral responsibility on soldiers themselves.

The following year, another prominent voice came forth to support SCO, the collective voice of the National Conference of Catholic Bishops. In their pastoral letter Human Life in Our Day (1968), the bishops recommended “modification of the Selective Service Act, making it possible, although not easy, for so-called selective conscientious objectors to refuse—without fear of imprisonment or loss of citizenship—to serve in wars which they consider unjust or in branches of service…which would subject them to the performance of actions contrary to deeply held convictions about indiscriminate killing” (Human Life in Our Day, n. 152). Three years later, in their Resolution on Southeast Asia (1971), the U.S. Catholic bishops judged that the Vietnam War was unjust on grounds of proportionality, that it was causing more harm than the good it was supposed to protect. This marked a crucial turning point for Catholic SCOs. Finally they could turn to the hierarchy of their Church for support.

The Catholic Peace Fellowship had a role to play in this development. From the mid sixties on, Tom Cornell and Jim Forest had been counseling young men considering conscientious objection. One phenomenon they ran into was that Catholics, formed in the just-war teaching of their Church, objected to fighting in Vietnam, not because they were opposed to war in any form, but because they were opposed to this particular war on just war grounds. The problem, as we have seen, was that there was no legal recognition for SCO. As a result, the CO claims of Catholics who refused to participate in the war because it was unjust were routinely turned down. One claimant associated with the Catholic Peace Fellowship, Stephen Spiro, argued in court that this violated his First Amendment right to free exercise of religion, specifically, his right to adhere to the teaching of his Church regarding conscientious objection to unjust wars. The case went up the Federal Court system but the Supreme Court refused to hear it. In 1971, the Supreme Court agreed to hear a similar case, but the plaintiff’s right to SCO was turned down on the grounds that SCO would compromise the manpower needs of the military (see “The Forgotten Case of Louis Negre,” p. 10). The dictates of conscience and the needs of the military were at an impasse.

SCO: An Impasse Between Church and State
The impasse remains to this day. On the one hand, the U.S. Catholic bishops reiterate their support of SCO on a regular basis, as they did in their Statement on Registration and Conscription for Military Service (1980), in their pastoral letter The Challenge of Peace (1983), and in their follow-up to that letter, The Harvest of Justice is Sown in Peace (1993), as well as in all their letters on the Iraq War. On the other hand, these calls go entirely unheeded in civil and military law because they could undermine the mission of the military. What we have here is a classic conflict between Church and state, the state claiming that the freedom of its citizens rests first and foremost on military security, and the Church claiming a freedom of a different sort, the freedom of its members to act in accord with the binding principles of the natural moral law. As the war in Iraq and elsewhere drags on, this conflict will only be exacerbated.

So when it comes to SCO, what is to be done? For one thing, the Church needs to continue calling for the legal recognition of SCO. For another, theologians, philosophers, and legal scholars need to articulate with greater clarity and force the moral urgency of attaining such recognition. And then there are SCOs themselves, whose consciences put them in the middle of this conflict. Some SCOs eventually discern their way into seeing that what they originally considered to be a conscientious objection to unjust wars is actually an objection to wars as they are fought in this day and age, to modern war. Some SCOs refuse to participate in nuclear wars. Other SCOs believe that the nation can and does wage just wars and that they should participate in them, but they also believe that the nation wages unjust wars in which they refuse to participate. They would rather break the civil law than violate the natural law. As it stands now, such a refusal will entail suffering for their selective conscientious objection. But it will also put them in a long line of conscientious objectors whose lives embody the principle uttered by Peter and the other apostles to the Sanhedrin, “we must obey God rather than men” (Acts 5:29).

Our work on the GI Rights Hotline has brought us at the Catholic Peace Fellowship into contact with soldiers, many of whom are going to or coming from Iraq. They tell us that they do not think that this particular war is just and that they do not want to participate in it. They tell us that they believe the President lied about the reasons for going to war. They tell us horrible stories about what they saw and did while in Iraq. For these reasons they have concluded that this particular war is being waged un-justly. And they want out. But their options are limited. They can act contrary to their consciences and remain in the military. They can try to come up with a reason to be discharged. Or they can refuse to fight and go to jail. This was the choice made by Franz Jagerstatter, who is now regarded by the Catholic Church as a Servant of God and is being considered for canonization. In refusing to serve in an Austrian military allied in battle with Nazi Germany, Jagerstatter followed the light of his conscience and thus himself became a light in that time of great darkness.

See also related articles...
The Forgotten Case of Louis Negre
An Interview with Louis Negre
An Interview with Judge Noonan

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