Introduction In the fifth century, Augustine argued that “the wise man will wage just wars” 1 at the direction of the government. 2 Nine hundred years later, in the Summa Theologica, Aquinas built upon this argument. Formalized by Grotius in the seventeenth century, 3 propositions Aquinas articulated with lucidity have matured and crystallized to be fundamental to just war thinking. Accepting war as an evil, which might be defensible only when just, Aquinas's reasoning remains central and important to global political theory and public policy. But, arguing that a sovereign might identify a cause and declare war without reference to the nation's soldiers, 4 Aquinas defines a condition of just war—the doctrine of legitimate authority—that no longer obtains. This paper argues against the claims of legitimate authority, to the extent that the doctrine implies a concerning inattentiveness to the rights of soldiers, and an unsafe confidence in the political bureaucracy. The paper agrees with Aquinas that peace may be breached only in the cause of justice. But this paper argues that the jus ad bellum assertion of rightfulness by political authority alone is not sufficient. Reflecting upon foundational argument in the just war tradition, this paper argues that without the moral confidence of the soldiers, no war can be just. Contesting the persistent and essentially medieval doctrine of legitimate authority, this paper suggests an approach to thinking about war, which is more responsive to the claims of individual soldiers to justice. This paper argues that if democracies are to exert a constructive effect upon world affairs, then the democratic system must itself be wholly just. The democracy cannot abide by proverbial and comfortable conventions: habitually and unreasonably curtailing the rights and dignities of the soldiers who aspire to advance democratic ideals. No such corrupt instrument can advance justice. The paper looks for practical expression in public policy. By and large, instruments such as legislation and military doctrine speak to politically realist needs for security. The policy they articulate tends to be insufficiently attentive to growing demands for justice. 5 That public policy is unmindful of justice is significant—because just institutions are essential to just societies, which in turn are critical to global justice. As the publicist Geoffrey Robertson observes: “At the beginning of the twenty‐first century, the dominant motive in world affairs is the quest—almost the thirst—for justice. [This thirst is] replacing even the objective of regional security as the trigger for international action.” 6 This paper proceeds in three sections. Part I reviews the accepted wisdom about war derived from the Thomistic position, and the significance of these inherited ideas. In Part II, discussion explores the idea of the state, which is seen to obscure the moral claims of soldiers to justice. In the third part, the paper explores the moral responsibilities of soldiers. The paper claims that when soldiers lack conscientious commitment to justice, their killing is merely political and analogous to murder.

I. The War Convention The argument for just war, which Aquinas makes in the Summa Theologica, is critically important as part of a thought tradition described by the philosopher Michael Walzer as the war convention: the “norms, customs, professional codes, legal precepts, religious and philosophical principles and reciprocal arrangements that shape our judgments of military conduct.” 7 James Turner Johnson describes a similar body of belief “including many individual doctrines from various sources within the culture and various periods of historical development and representing variations in content.” 8 Johnson describes an evolving tradition—a convention responsive to the contemporary world, while yet mindful of significant inherited ideas. Notwithstanding the resonance of the Just War Tradition in the treaties and conventions of international law, 9 there is no one part of the received approach which contains all there is to say about war, its moral limits and its justifications. Yet, despite ambiguity, interrogating the thought tradition is indispensable since as Johnson argues, theorizing about war builds “a fund of practical moral wisdom.” 10 Informed by inherited philosophical and cultural beliefs, and by actual challenges, theorizing about war shapes practice and public policy. To illustrate the need of conceptual frameworks, Johnson asks: What might replace such concepts as justice, proportionality, the need to protect non‐combatants, the requirement that force be a last resort and so on. There may be other concepts that are more adequate, but that is like saying there may be life in the fifth dimension; we simply cannot know because our knowledge is limited by the circumstance of our existence. People in our culture cannot escape thinking about morality and war in terms like these. 11 The moral ideas embraced by the war convention constitute the foundation of moral decision and action. Since war is not a random event, but a devastating deliberate choice, this reasoning is critical. Disarticulated from ideas of justice, military force is merely brute, politically realist, and, judging from the historical record, unlikely to end in anything but tragedy. Accepting that the justification of war depends upon contestable standpoints regarding necessity, this paper appreciates war as more than a purely political phenomenon. Besides the grounds of political justification, this paper understands war in terms of human values and ideals. Interrogating the doctrine of legitimate authority, this paper argues that the determination of a just cause by political authority alone, without reference to the soldiers, is not right and not a foundation for justifiable war. Without the moral confidence of the soldiers who serve, no conflict can be justified. Moral confidence is a term of art. The reference is to understanding, consensus, or sufferance. The meaning recalls Kant who argued that “the consent of the subjects is required to determine whether there shall be war or not.” 12 The sense of this claim is not rigorist. Kant does not mean unanimous accordance or agreement. Rather, the idea of consent speaks to a deliberate, considered, and conscious decision and to formal expression of collective opinion or choice. This type of decision is denied when political authority is arbitrary and overstated. But this is precisely the idea of legitimate authority advanced by Aquinas and perpetuated in the precepts, codes, and customs of the Just War Tradition.

The Thomistic Position Engaged with the traditions of Christian pacifism, Aquinas takes for granted that the burden of proof favors non‐violence. Nevertheless, Aquinas rejects absolute pacifism as unworkable. His underlying presumption is not against war, but in favor of justice. For Aquinas, military force was the proper means by which secular authority might claim peace. Morality was compatible with armed force used justly, in the aim of justice, and when commanded by a right authority. In Summa Theologica, Aquinas queries, “Whether It Is Always Sinful to Wage War?” 13 Presuming war is usually wrong, this question concedes occasions may arise when it will be justified. Similarly, Aquinas asks, “Whether some kind of war is lawful?” 14 His question foreshadows that war is not an absolute evil, but rather a difficult phenomenon, sometimes evil and sometimes not. Aquinas accepts non‐violent values. Nevertheless, he acknowledges the imperative of justice, and the probability that war will present as political necessity. Yet Aquinas's late‐medieval political theology overstates the nature and capacity of political authority, inciting conclusions that persist to impede justice. Recognizing war as a regrettable fact of political life, a worldly evil justified by political necessity to advance justice, Aquinas is insufficiently attentive to the claims of soldiers, and he overstates the claims of political authority. Depicting war as rightful when waged by temporal authority to protect societies and restore peace, Aquinas presents a highly structured epideictic argument. 15 Arguing against Matthew, that it is only to take the sword “without the command or permission of a superior or lawful authority” which is wrong, Aquinas recalls St. Augustine: To have recourse to the sword (as a private person) by the authority of the sovereign or judge or (as a public person) through zeal for justice, and by the authority, so to speak, of God is not to “take the sword” but to use it as commissioned by another, and so it does not deserve punishment.” 16 This claim finds unabridged expression in the Sed Contra to Question 40. 17 Integrating his reasons in a formula part of medieval argumentation, Aquinas affirms non‐violent ideals and articulates conditions essential for war to be just. Among these conditions, Aquinas claims that decisions concerning the justice of war are the sole responsibility of the sovereign, to whom soldiers must be submissive. Making this argument, Aquinas establishes a keystone of the Just War Tradition, setting in place the logical separation between two sets of principles: the ideas of jus ad bellum—when it is right to go to war, and the ideas of jus in bello—what it is right to do in war. Expanded by later scholars, these ideas continue to inform the discourse of just war. This claim finds unabridged expression in theto Question 40.Integrating his reasons in a formula part of medieval argumentation, Aquinas affirms non‐violent ideals and articulates conditions essential for war to be just. Among these conditions, Aquinas claims that decisions concerning the justice of war are the sole responsibility of the sovereign, to whom soldiers must be submissive. Making this argument, Aquinas establishes a keystone of the Just War Tradition, setting in place the logical separation between two sets of principles: the ideas of—when it is right to go to war, and the ideas of—what it is right to do in war. Expanded by later scholars, these ideas continue to inform the discourse of just war. Thinking back to Augustine, Aquinas argues that since those in authority are responsible for “the common weal of the city, kingdom or province subject to them […] it is lawful for them to have recourse to the material sword in defending that common weal against internal disturbances (and) against external enemies.” 18 This reasoning is supported by reference to Paul's Letter to the Romans 13:4, wherein the Apostle writes: Everyone must submit himself to the governing authorities, for there is no authority except that which God has established. The authorities that exist have been established by God. Consequently, he who rebels against the authority is rebelling against what God has instituted…Do you want to be free from fear of the one in authority? Then do what is right and he will command you. For he is God's servant to do you good. But if you do wrong, be afraid, for he does not bear the sword for nothing. He is God's servant, an agent of wrath to bring punishment on the wrongdoer. 19 Drawing his ideas together, Aquinas cites Augustine: “the natural order conducive to peace among mortals demands that the power to declare and counsel war should be in the hands of those who hold the supreme authority.” 20 Taking the metaphysical foundation of civic government for granted, Aquinas presumes an extramundane political power. For Aquinas, unquestioning obedience to temporal authority was a metaphor attesting to submission to God. On the basis of this analogue, temporal authority was supreme. One observed the civic power as one obeyed God; to disobey was irrational, rebellious, and to court terrible punishment. Drawing his ideas together, Aquinas cites Augustine: “the natural order conducive to peace among mortals demands that the power to declare and counsel war should be in the hands of those who hold the supreme authority.”Taking the metaphysical foundation of civic government for granted, Aquinas presumes an extramundane political power. For Aquinas, unquestioning obedience to temporal authority was a metaphor attesting to submission to God. On the basis of this analogue, temporal authority was supreme. One observed the civic power as one obeyed God; to disobey was irrational, rebellious, and to court terrible punishment. Though there is no standard‐pattern ecclesiastical statement of just‐war criteria, the notions of omnipotent political power familiar to Aquinas reverberate in the 1562 Articles of Religion, 21 and politically in the assumption that democracy's public sanction increases the state's coercive influence. Brought together in the condition of legitimate authority, ideas of political latitude and prerogative exercise determine influence upon the consensual opinion of the war convention. Now secularized, they are ideas that have coalesced within the common body of western culture. But, broadly accepted though they may be, the ideas of legitimate authority are not morally benign. Discussion in the following part explains how the doctrine of legitimate authority entails an essentially unjust insensitivity to the rights of soldiers, and an unsafe confidence in the political bureaucracy.

II. Legitimate Authority and Just War Thinking Summarizing the underpinning hypothesis of just war theorizing, Michael Walzer argues: War is always judged twice; first with reference to the reasons states have for fighting, secondly with reference to the means they adopt…. The two sorts of judgement are logically independent. It is perfectly possible for just war to be fought unjustly and for unjust war to be fought in strict accordance with the rules. But, this independence, though our views of particular wars often conform to its terms is nevertheless puzzling. 22 But more than puzzling, the technical separation of jus ad bellum reasoning from jus in bello thinking is deceiving; overemphasizing political ideas of legitimate authority while understating the claims of soldiers to justice. But more than puzzling, the technical separation ofreasoning fromthinking is deceiving; overemphasizing political ideas of legitimate authority while understating the claims of soldiers to justice. As a political entity, “the state” is a device that affords an expedient excuse and obscures the moral claims of soldiers to justice. Walzer himself refers to political reasons states have for fighting and the means “they” adopt. His anonymous phrasing obscures people and underlines the artificial separation of states from the citizens who volunteer to serve as soldiers. Walzer describes “the protagonists of war, and of combat, its central experience,” 23 as though war was an exclusively political concept, unrelated to the people who suffer it. But this view of war is, as James Turner Johnson would have it, a myth. Johnson argues against the conceptualization of war as a purely political occurrence and cites Paul Fussell's account of the Great War, asking rhetorically: “is this how we expect war to be now: senseless, out of control, massively destructive of human lives and values, producing harmful consequences that linger to effect mankind long after the formal end of fighting.” 24 Johnson underlines how soldiers have claims upon society to be treated fairly. His position recalls the important argument of John Rawls.

Public Policy and Moral Autonomy Articulating his basal concern for the equal liberty of conscience, John Rawls described: “one of the fixed points in [a] considered judgment of justice.” 25 Rawls recognized that a just society will take the moral convictions of citizens seriously, and enable individuals to examine and to act upon these deeply held beliefs. He gives insight into the critical obligations of the state to structure institutions, regulatory frameworks, and articles of public policy, so as to safeguard the critical freedoms of citizens. Observing Rawls' formative contribution to philosophy, Thomas Pogge wrote that, in his work A Theory of Justice, Rawls: Firmly established social institutions as a distinct domain of moral assessment and marked this domain terminologically by associating it with the term (social) justice. This terminological innovation has taken hold, by and large, at least in Anglophone philosophy. So the term justice is now predominant in the moral assessment of social rules (laws, practices, social conventions and institutions) and used only rarely in the moral assessment of the conduct and character of individual and collective agents. In the wake of Rawls the distinction between institutional and interactional moral analysis has come to be marked as a distinction between justice and ethics. 26 Arguing for fairness and against unreasonable government intrusion upon the moral lives of citizens, 27 and describing the equal liberty of conscience as a primary good and constitutional essential, 28 Rawls illuminates the obligations of jus in exercitu: the responsibility of the democracy to ensure “right in the army.” Accepting the claims of soldiers to justice, this idea underpins the contract between the democratic state and the citizens who volunteer to protect and to advance justice in her name. Arguing for fairness and against unreasonable government intrusion upon the moral lives of citizens,and describing the equal liberty of conscience as a primary good and constitutional essential,Rawls illuminates the obligations of: the responsibility of the democracy to ensure “right in the army.” Accepting the claims of soldiers to justice, this idea underpins the contract between the democratic state and the citizens who volunteer to protect and to advance justice in her name. These ideas of individual moral autonomy and responsibility are critical to democratic society which, Locke argued, rests upon the premise that: Men being […] by nature, all free, equal and independent, no one can be put out of this estate, and subjected to the political power of another, without his own consent. 29 Locke explained how individuals are free and equal by nature. He argued that people have inalienable rights independent of the laws of any particular social order. For Locke, political society entailed a contract by which people devolved some of their independence to the government in order to assure their enjoyment of liberty and property. However, Locke was mindful that this devolution was conditional, and did not entail the impoverishment of individuals or the surrender of inalienable individual freedoms. Locke explained how individuals are free and equal by nature. He argued that people have inalienable rights independent of the laws of any particular social order. For Locke, political society entailed a contract by which people devolved some of their independence to the government in order to assure their enjoyment of liberty and property. However, Locke was mindful that this devolution was conditional, and did not entail the impoverishment of individuals or the surrender of inalienable individual freedoms. These ideas echo in the work of John Rawls, who explained the obligation of social institutions to impose nothing more than the obligations to which people would assent voluntarily. Illuminating justice as critical to human activity, Rawls argued, “laws and institutions no matter how efficient and well‐arranged must be reformed or abolished if they are unjust.” 30 He maintained that each person: Possesses an inviolability founded on justice that even the welfare of society as a whole cannot override. For this reason justice denies that the loss of freedom for some is made right by a greater good shared by others. [Justice] does not allow that the sacrifices imposed on a few are outweighed by the larger sum of advancement shared by many. 31 In a just society, Rawls argued that individual moral freedom is paramount. 32 This idea resonates within modern democracy that, in the words of Robin Williams, is more than a system of government and might be understood as “a culturally standardized way of thought and evaluation, a tendency to think of rights [and] a deep aversion to acceptance of obviously coercive restraint.” 33 Beyond philosophy, these ideas have found clear and compelling expression in Australian parliamentary debate. During the Vietnam War, Dr. Cairns argued in the Parliament: There must be room in a free and civilized community for an individual to decide for himself what's right and wrong […]. If conscience is to amount to anything, the individual whether he happens to be wrong or right according to my standards or those of the Government…should have his right to exercise his conscience protected. If conscience is to mean anything, it must be based upon the right of the individual to say what he believes is right and wrong […]. 34 In the Australian Senate 15 years later, Senator Tate argued similarly that: “As legislators we ought to be reinforcing the individual conscience—an activity which culturally marks us as a free society where the common good cannot be relentlessly pursued by means which destroy the individual's personality.” 35 And, in 1985, the Report of the Australian Senate Standing Committee on Constitutional and Legal Affairs held that: “Australia, as a democracy, even when engaged in armed conflict [should recognise] conscientious belief in order to protect the integrity of the individual against the coercive power of the State.” 36 Serving as Secretary of State in 1948, George Marshall put this reasoning in a nutshell, arguing before the General Assembly of the United Nations that “[g]overnments which systematically disregarded the rights of their own people were not likely to respect the rights of other nations and other people, and were likely to seek their objectives by coercion and force in the international field. 37 General Marshall appreciated the need for enduring peace to be established on fundamental human freedoms. His remarks recall Grotius who, setting down a foundation stone of international law, reasons in his 1625 De Jure Belli ac Pacis that good faith should be preserved: Lest all hope of peace be taken away…for, according to Cicero, not only is each State held together by good faith, but even that greater society of nations. And Aristotle truly says that if be taken away all human intercourse ceases. 38 These ideas are replayed in the Preamble to the Universal Declaration, which articulates the hope that: Every individual and every organ of society…may strive…to promote respect for these rights and freedoms, and by progressive measures, national and international, to secure their universal and effective recognition and observance both among the peoples of member states themselves and among the peoples of territories under their jurisdiction. Accepting that a just society will take the moral convictions of citizens seriously, and understanding the risks and limitations of political authority, discussion now considers the moral narrative which informs western democracy and the western military tradition.

Service, Not Servitude Choosing to serve, the citizens who volunteer as soldiers freely embrace martial ideals and social obligations. Nevertheless, volunteers retain citizenship and the rights of citizens. Volunteers are not indentured in military servitude, their lives are not nationalized. Soldiers do not surrender the right to refuse service in a cause they find unjust, and they retain the right to decline morally insufferable orders. Soldiers volunteer (or at least they should volunteer) to advance the cause of justice, justly. In the words of Michael Walzer: “democratic states suffer whenever conscience is coerced.” 39 These ideas are significant because the character of western arms should reflect the character and aspiration of western ideals. Serving to protect the democratic liberties of individual conscience, justice, to restate Rawls, should be the first virtue of the military institution. However, ideas of jus in exercitu—right in the army—are overshadowed by the received claims of realism. The realist is largely blind to the actuality that people fighting under duress are denied the critical liberty of their conscience: “their battles are no longer theirs.” 40 Unmindful of critical democratic ideals, realism disregards the claims to justice, which soldiers have upon the state they serve. In consequence, the realist treats the soldier discriminatorily and offers a misleading description of military service. The realist is correct to assert that soldiers have consented, explicitly by taking an oath and tacitly by dutiful conduct and acceptance of a public salary, to the obligation to obey. The difficulty is in understanding how far consent to the requirements of military service might bind soldiers. Huntington offers the conventional realist response. He argues: When the military man receives a legal order from an authorised superior, he does not argue, he does not hesitate, he does not substitute his own view, he obeys instantly. 41 Colm McKeogh takes a more uncompromising view, arguing the role of soldiers turns people who volunteer into “non‐persons, instruments, things.” McKeogh goes no to say: [Once in the role of combatant, it is accepted that a person's life can be treated as of instrumental value, both to his commanders and to the enemy…soldiers…. may be treated not as humans but as things.] 42 These claims ask the tacit idea of the state to do too much work. Deducible as a rhetorical device, “the state” minifies soldiers, taking them to be the henchmen of political objective. The society that would treat its soldiers this way may be safe, but like the Omelas conceived by Ursula le Guin, it would be fatally corrupted. James Turner Johnson underlines this point when he cites Paul Fussell's critique of the Great War memoirists, and their tragic sense that “war is not a human enterprise, but something controlled from afar by a remote, abstract, impersonal force that has no regard for human lives or values.” 43 Fussell depicts, and Johnson recognizes, the human sensitivity and autonomous sense of virtue, which is trampled by the political interpretation of war. Obedience is a military virtue and a military necessity. But the realist forgets that obedience should be informed by deliberative moral autonomy and circumstantial reasonableness. Military accomplishment depends upon moral legitimacy, and relies upon soldiers whose idea of service is informed by more than ideas of unthinking pliability. The soldier who achieves success will associate ideas of duty and service with concepts of justice and proportionality. The soldier who achieves success will not be fighting under duress as the morally unconscious instrument of political ambition. Underlining this point, John Rawls explained that individuals are “always accountable for their deeds,” and unable to divest themselves of responsibility and transfer the burden of blame to others. 44 Thus, Rawls acknowledged the importance of self‐respect and personal virtue, and the importance of acting to avoid moral shame. 45 He envisages a soldier who is not blindly obedient, but awake to moral obligations. A democracy can expect soldiers to be properly mindful of their obligations, to be obedient, and to fulfill their duties. But this expectation should not extend to the degree that soldiers are assumed to be passive or powerless to exert constructive moral influence upon policies they enact. The state might expect soldiers to serve obediently, but it may not rightly expect soldiers to behave like slaves. And neither should soldiers understand their enlistment as an excuse. By enlistment, soldiers take upon themselves a significant moral obligation. But this obligation is rendered imperfectly in public policy instruments. These are instruments that take the doctrine of legitimate authority for granted. These are instruments that presume militaries—and military people—are subject to government direction without qualification. They are instruments that respond insufficiently to the proclivity of officials and politicians to use moral language while avoiding the burden of moral responsibility, and their effect is to enable the military to be mired in political cupidity and seduced away from ideas of justice. In her essay, Lying in Politics, Hannah Arendt identifies the “commitment to untruthfulness” which has opened an abyss of deception and critically undermined politics. 46 Describing the moral jobbery of public life, Arendt observes the especially terrible results of deception “undertaken by those in possession of the means of violence.” 47 Disguised in principled messages, political deceit is particularly damaging to the relationship between the political apparatus and the nation's soldiers. As Thomas Pogge wrote: Moral language is all around us—praising and condemning as good or evil, right or wrong, just or unjust, virtuous or vicious. In all too many cases, however, such language is used only to advance personal or group interests. 48 Public policy must recognize that when public officials habitually demonstrate moral insolvency, the burden upon soldiers to be morally responsible is increased. Policy must acknowledge and enable the moral obligations that accompany military service in the modern age. Public policy must recognize that when public officials habitually demonstrate moral insolvency, the burden upon soldiers to be morally responsible is increased. Policy must acknowledge and enable the moral obligations that accompany military service in the modern age. Revealing intelligence agencies adept in the composition of artful evidence, and senior authorities practiced in calculated deception, the infamous 2002 September Dossier demonstrates why it is difficult for soldiers to place unquestioning confidence in the political establishment. 49 Illustrating the misuse of the military by politics, this document exposes the legitimate authority doctrine as an imperfect foundation for public policy. As well, the September Dossier points to the complexity of the soldiers' obligation to act rightly, and for right: an obligation that is stifled by the legitimate authority dogma.

III. Who Answers Recognizing the imperative of peace, Aquinas affirmed justice as the only morally sufficient reason for conflict. This view lives on in the modern war convention. But the idea of justice Aquinas articulates is medieval and imperfect, since he claims states may rightly decide the justice of the cause without reference to the soldiers. Excluding soldiers from jus ad bellum decisions, the war convention is insufficiently attentive to the fact that when soldiers lack conscientious commitment to justice, their acts are merely political and analogous to murder. In modern democracy, citizens who volunteer to bear arms accept the obligation to bear arms justly and for justice, or they should. In modern democracies, ideas of military obligation ought to be larger than notions of disciplined obedience. Soldiers ought not be excused conscienceless acceptance and obedience. Rather, they ought to be expected and trusted to exert constructive moral influence upon the political policy they are commanded to enact.

The King is Not to Answer for It Exaggerating legitimate authority, the war convention presumes soldiers serve without moral agility, without a mind to justice or human dignity, as morally mute instruments in any cause the state decrees. The war convention anticipates that soldiers might rightly close their minds to jus ad bellum thinking, which contextualizes individual martial acts and informs the moral commitment of soldiers to serve at all. The upshot is that so long as soldiers abide by the positivist laws of armed conflict, as expressed in operation‐specific rules of engagement, they are presumed to have done enough. This position is difficult because it presumes that any fight is the same and that soldiers will take life and risk their own lives just because they are told to. Famously, Shakespeare illustrates the weakness of the war convention (King Henry V, Act IV, scene 1) when he has King Henry V going secretly among his soldiers on the eve of Agincourt. King Henry V [in disguise]: “Methinks I could not die anywhere so content as in the King's company, his cause being just and his quarrel honourable.” Michael Williams [a soldier]: “That's more than we know.” John Bates [a soldier]: “Ay, or more than we should seek after; for we know enough if we know we are the King's subjects, if his cause be wrong, our obedience to the king wipes the crime of it out of us.” But the convention forgets the caution of Michael Williams, who reminds Bates: “Tis certain, every man that dies ill, the ill upon his own head, the King is not to answer for it.” The moral sensitivity of this Shakespearean soldier is in tune with the philosopher Jeff McMahan, who asks rhetorically: How can certain people's establishment of political relations among themselves confer on them a right to harm others, when the harming or killing would be impermissible in the absence of [those] relations? How could it be that merely acting collectively for political goals, people can shed the moral constraints that bind them when they act merely as individuals […]. 50 McMahan challenges the Hobbesian excuse, “inter arma silent leges.” 51 It's not all fair in love, and especially not in war. McMahan recognizes war as a destructive and deliberate course of action. Normal moral standards are not, pace Nicholas Fotion, 52 magically suspended. McMahan appreciates that acts of war in an unjust cause are not excused on the grounds of obedience. The justice of acts is contextualized by the rightness of the cause. Soldiers who act with disregard for the justice of the cause in which they serve do not have the same moral status as those soldiers who act with conscientious assurance that their acts serve just aims. Whenever a soldier acts merely obediently, solely in accord with political direction, and without heed for the rightness of the cause in which he serves, he acts in some ways unjustly. Soldiers bear an individual responsibility to act deliberately for right, and rightly. The military obligation, which soldiers assume upon enlistment, is larger and more nuanced than a simple promise to be obedient. Enlistment does not offer soldiers an excuse for acts, which despite adherence to jus in bello prescripts, serve a wicked cause. Rather, enlistment imposes upon soldiers a responsibility to act rightly in the cause of justice. Expecting soldiers to obey government direction without demurral, the war convention establishes conditions, which enable soldiers to be taken for granted and denied proper expression of their conscience. Soldiers do have a duty to be obedient, but not a duty to be obliviously or irresponsibly compliant.

Democracy and the Duty to Obey Presuming individually responsible judgment, and the ultimate right of conscientious refusal, 53 Rawls did not hold that people should be wanton or heedless of civic obligations, but that people should be properly mindful of moral responsibilities. He maintained that individuals are “always accountable for their deeds,” and unable to divest themselves of responsibility and transfer the burden of blame to others. 54 Rawls acknowledged the importance of self‐respect and personal virtue, and the importance of acting so as to avoid moral shame. 55 To refuse an unjust law would, for Rawls, be justified only in order to advance the greater cause of justice and to avoid moral guilt; not for hedonistic or egotistical reasons. These notions, which informed Rawls' ideal theory, also inform our understanding of the soldiers' obligation to obey. Recognizing the foundational obligation of soldiers to act conscientiously to advance the cause of justice in the world, the basis of public policy ought to be more sophisticated than the expectation of legitimate authority that soldiers do well enough if they do as they are told. Neglecting the obligation of the state to safeguard the moral integrity of individual soldiers, public policy based on ideas of legitimate authority contravenes critical democratic ideals to make soldiers the small pawns of politics. The war convention dislocates soldiers from decision concerning the justice of the cause. Doing so, the convention suggests the soldier stands to the army as his weapon does to him. This position is unsafe because soldiers must make morally significant decisions, applying complex criteria of proportionality and necessity. Du Picq argues famously: It often happens that those who discuss war, taking the weapon for their starting point, assume unhesitatingly that the man called to serve it will always use it as contemplated and ordered by the regulations. But such a being, throwing off his variable nature to become an impassive pawn, an abstract unit in the combinations of battle, is a creature born of the musings of the library, and not a real man. 56 Du Picq acknowledges that soldiers are not impassive. Soldiers are soldiers, but also people who retain absolute responsibility for what they do. Military enlistment entails an obligation to act deliberately for justice: not a pretext to abandon enlightened scruples. Neither the rights nor the obligations of citizenship are surrendered by the assumption of military responsibility. Citizens do not surrender their conscience upon enlistment. This is not to suggest that soldiers should be recklessly autonomous, deciding for themselves what they would prefer to do and what not. Volunteer soldiers accept that the discipline of the State will—and must—be imposed. But State authority can only go so far. The State's obligation to maintain order does not mean the State has license to do whatever it wants. As Beccaria argued in his 1764 Essay on Crimes and Punishments, the protection of public security does justify some measure of imposition, but “every act of authority of one man over another for which there is not an absolute necessity, is tyrannical.” 57 In consequence, the smallest encroachment beyond that which is strictly necessary is “abuse, not justice.” 58

Proportionality The moral reality of war must take in the theoretical wholeness, which informs soldiers' moral decisions. Acknowledging this theoretical unity, Rawls argued that justice of the cause affects the means with which war can be prosecuted. 59 Similarly, Walzer argues that in cases of supreme emergency, utilitarian calculation can sustain the escalation of force, though some principles are inviolable. 60 Bridging the technical separation between jus ad bellum and jus in bello thinking, inexplicit moral principles relate closely to ideas of proportionality. Operating in precarious and ambiguous situations, soldiers do best when empowered to determine and apply intricate standards of proportionality. Typically indeterminate, ideas of proportionality are understood as matters of honor intrinsic to the profession. These are ideas that concern rightness, and they are linked unavoidably to the cause beyond the immediacy of the fight. Soldiers ought to appreciate this; they ought not be morally inert. Yet, the just war convention denies soldiers must make moral judgments framed by the justice of the cause; ultimately declining to fight when holding conscientious belief the cause is unjust. 61 Justice requires a new interpretation of legitimate authority. Soldiers are no longer poorly educated or ill informed, as were the medieval peasants who served in the ranks when Aquinas wrote Summa Theologica. Yet the soldiers of modern democracies are, like medieval peasants, politically isolated; disenfranchised by bureaucracy and by the military discipline and obedience culture. Considering the decisions of parliaments to go to war, Kant offers a significant argument that the democratic state should heed the opinion of the citizens and the soldiers who serve. 62 Kant understood that soldiers, realizing the price paid in blood and treasure, would deliberate the necessity of conflict seriously. However, isolated by bureaucracy, acculturated to obey without second thought and swindled by dishonest political speechifying, soldiers are almost powerless to take a properly constructive part. Institutional structures mean that for soldiers, it is very difficult to give fully formed consent to the killing they commit in the name of their country. Institutional structures mean that for soldiers, it is difficult to speak, and almost impossible to refuse. However, soldiers cannot avoid personal responsibility for what they do.

Conclusion Rooted in medieval political theology, the idea of legitimate authority continues to exert decisive influence on western moral understanding of war. The doctrine accepts that a political power might identify a cause as just and declare war without reference to the nation's soldiers. The present paper has argued that justice requires a new interpretation of legitimate authority. Agreeing with Aquinas that peace may be breached only in the cause of justice, this paper argued that the assertion of justice by a political authority alone is not sufficient. The justice of war—typically considered only in relation to the adversary—must be absolute: understood by all, applied to all. Determining to embark upon war, political authorities cannot rightly ignore the soldiers who serve. Volunteering military service, soldiers promise—or they should—to act conscientiously to advance just causes by just means. Yet, the doctrine of legitimate authority emphasizes the coercive power of the state, and denies soldiers their part in jus ad bellum decisions. This is significant, since no soldier can act for justice yet commit to action he or she considers evil. And, no soldier acting obediently but heedlessly acts entirely justly. This is to say, no soldier, acting without attention to the rightness of the cause, will act as an agent of justice—but merely as a political device. Though the practical efficiency of the military may be ensured by the doctrine of legitimate authority, justice is not. This paper contends that even in the non‐ideal world, certain minimal ideas of justice must be acknowledged and advanced. As a bare minimum, public policy instruments should enable soldiers to conscientiously refuse service they consider unjust. No longer can “the state” be construed as omnipotent and unerring. Neither society nor the military is well served by policy based upon medieval ideas of political prerogative, which perpetuate, as Wilfred Owen would have it, “that same old lie” 63 for those who “die like cattle.” 64