Moral Equality of Combatants and the Legacy of Unjust Causes: The Problem of the Confederacy and Rommel

Consider these questions:

  • What are we to make of the debates over the status of public displays of the Confederate Flag? A symbol of sedition, white supremacy and terror? A symbol of Southern pride, states’ rights, autonomy and resistance to tyranny?
  • To what extent is it appropriate to honor ‘heroes’ of the opposing side in a conflict? Should military bases (for example) be named for Confederate soldiers and leaders? Should those names now be changed as we are reassessing #1 above?
  • What about military and other cemeteries and war memorials to the Confederate dead? Should they be honored? Or do we want to say that is inappropriate as well?

All of these questions, in different ways, get to the question of how we deal with the legacy of those who were our adversaries/enemies in war and who we judge had an unjust cause.  What are we to make of Robert E. Lee and Erwin Rommel, for example, as military leaders and their legacy? What are we to make of soldiers who fought in Vietnam or the Gulf Wars, since some thought those were unjust causes?

To do this, I want to look at the idea in the Just War Tradition of the Morality Equality of Combatants, which holds that in their office as soldiers, combatants have roughly moral equal status provided that the follow the requirements of Just Conduct (jus in bello including Proportionality of Means and Discrimination).  Recall the famous scene in Shakespeare’s Henry V where the right before the battle, the soldiers and King Harry (in disguise) debate what happens to them and their immortal souls if it turns out that the king’s cause is not just. (Act 4. Scene 1)

Bates: 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.

Williams: But if his cause be not good, the King himself hath a heavy reckoning to make….I am afeared there are few die well that die in a battle; for how can they charitably dispose of anything, when blood is their argument?

King: …The King is not bound to answer the particular endings of his soldiers…Besides there is no king, be his cause ever so spotless, if it come to the arbitrament of swords,  can try it out with all unspotted soldiers….Every subject’s duty is the King’s; every subjects soul is his own.

Note that they are debating the classical question for who bears the responsibility of the crime of war, who is responsible for murder committed if it turns out the cause of the war cannot be morally justified (jus ad bellum).  The classical view holds that it is the State (in this case the King) who bears the responsibility for the crime if the cause of war is unjust, and King Harry essentially makes this case both in the argument and in his monologue that follows. In the argument, he insists that how each soldier fights in the battle cannot be the responsibility of the King, but of the individual soldier.  This is the classical Separation Thesis in JWT that the State is responsible for jus ad bellum and the soldier for jus in bello.  The soldier acts, not under his or her own will, but as the agent of the State or the King, and so cannot be responsible for the cause, only the actions of war that are under his or her own will.

As we shall see in a moment, there are critiques of this view, but let’s hold off. What is the reason for this view? Francisco de Vitoria in the 16th noted that both sides could in good faith think that they both have a just cause, and many commentators have noted that more often than not (for a variety of reasons) could think and have reasonable justifications for the justness of their cause. Now the two sides might reject the justice claims of the other side as well, so in the absence of a higher court of appeal (like the Pope or International body) we are at an impasse.  Therefore, the Moral Equality of Combatants. We can recognize this issue and address it if we maintain the Separation Thesis and restrict the responsibility of soldiers to jus in bello, absolving them of jus ad bellum responsibility, except in their capacity as a private citizen (and not as an agent of the State.)

If these arguments hold, then we have grounds to respect the combatants on the other side as fellow combatants and agents of their State, under the same or similar constraints as our soldiers.  We can see a moral equality in terms of the brotherhood (sisterhood) of the profession of arms (loosely construed) under the same commands as our soldiers.  This means seeing combatants as agents in this way, and not personally agreeing (they may) or being responsible for the cause/justification of the war.  We might think here about the Christmas Truce in No Man’s Land in WWI or George Patton’s professed admiration for Erwin Rommel’s tank strategies and warrior prowess.

What does this mean in the case of the US Civil War and the Confederacy? Putting aside the objection that it is a civil war and so JWT does not apply (the Confederacy was a declared and recognized State at least in a minimal way), I would argue that Confederate soldiers a la Victoria to a large degree believed in the cause and fought in good faith. There are also stories of Confederate soldiers who felt conflicted about the cause, but fought out of duty, familial obligation or because they were commanded.  I think a similar case could be made for German soldiers (especially Wehmacht) in World War II fighting on the side of the Nazi cause and American soldiers in Vietnam.  They were acting in good faith as agents of their State, and were responsible for the jus in bello aspects of the war, but cannot and should not be held to account for jus ad bellum, that is the domain and fault of their respective states.

(I have written elsewhere on the issue of collective responsibility, but you might also want to consider Bin Laden’s 1998 Fatwa Bin Laden if you want make those sorts of arguments. It cuts both ways)

Jeff McMahan, a revisionist Just War theorist, argues that the classical view I have been advocating is wrong. (see his article “The Morality of War and the Law of War or his book The Ethics of Killing.)  He argues that soldiers do not cede their moral agency and are in fact responsible and culpable to harm if they fight on the side of an unjust cause, and further that their use of violence while fighting for said cause cannot be morally justified. (Recall the classical view holds that both sets of combatants are equally morally justified in their use of force provided they are not violating the jus in bello requirements.)  So on this view, Confederate and German soldiers fighting for unjust causes are in fact morally responsible for their part in the jus ad bellum issues not just as private citizens, but as soldiers and their use of force was not morally justified. To be blunt, they committed murder. (McMahan does not quite put it that bluntly.)

In other places, I have noted my multiple objections and problems with this line of argument, so I will not go into them here except to say I think McMahan is not taking seriously the idea that soldiers are agents of the State in important ways. That is not to say they abdicate all their moral agency (which no one actually argues) but that their moral agency is limited and constrained in certain very important ways. (There are also huge practical problem which McMahan has acknowledged, but does not think undermine his argument; I disagree.)

What I think all of this means is that we have to be very careful in how we think through the 3 questions I began with, and the implications of whatever we decide in terms of the dealing with the legacy of soldiers fighting and dying for an unjust cause.  Can these combatants, fighting in good faith but for a cause we judge to be unjust but relatively within the requirements of jus in bello, be honored? And in what ways?

In short, I think they can and should be, although we probably disagree about the ‘in what ways’.  A beginning to the discussion might go as follows. I think valorizing the leaders of these militaries will be problematic, except in the way Patton did for Rommel; I do think that there is a place for valorizing the sacrifice (especially of the average soldier) and acts of courage and military prowess in certain ways. These ways will be subject to our collective moral judgment, but I think we should have these discussions.  We may well decide that naming a college after Lee or a base after other Confederate generals is now inappropriate and that those should be changed.   It does seem appropriate to have war memorials, cemeteries and other public displays to acknowledge and record sacrifices, military feats and other important moments as they are part of our shared history together. Erasure of the dead seems morally untenable and cruel; the ethics of war requires we not inflict unnecessary suffering and they are already dead.

But what of the Confederate flag then? Is that in the same category? I actually do not think so. We are in the midst of an important, communal, if heated at times, discussion about the flag and especially its symbolism. To the extent that we come to agree that it symbolizes an unjust cause, slavery, Jim Crow, white supremacy and rebellion, I think we would be justified in limiting how it is used, especially in official public displays. I think many have come to this conclusion on the Nazi flag and symbols for the same reasons.  That does not mean you can erase them entirely, but then they become a matter of private free speech, subject to our legal discourse around those matters.

I do think that we can have this discourse and move forward on this issue without casting every Confederate soldier as an immoral traitor and murderer; these are separate issues.  It is possible to say that we should not have the symbolism of the Confederate flag in public displays because of its symbolism and acknowledge the right of Confederate soldiers to be honored at Gettysburg and Vicksburg for their sacrifice and place in the narrative of our collective and shared history. I would go further and argue we have a basic obligation to respect and honor the dead – an obligation recognized throughout the ages. Recall the sin of Achilles with respect to Hector.

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