Let the general say no: an argument for morally better law

If we are going to take the moral claims of military service seriously, and if we are going to expect our generals to act at anything except a modest administrative level of responsibility, then we must reform laws that make generals the unresisting pawns of politics. In this thesis I argue for reform of section 8 (2) of the Defence Act 1903 (Cth), which stipulates: “the Chief of the Defence Force must comply with any directions of the Minister.” I offer three reasons. First, I say the law should be reformed in order to accommodate the special moral responsibilities of the general. The entire spread-out chain of command is unified in the general. It is the general who offers the only connection between the military and politics. Only the general might turn political direction into military command and thus capacitate the undertaking of war. Since Nuremberg people have understood generals cannot plead as a defence that since they were in uniform, they had a duty to comply with any political direction. Generals do have a duty to obey. But this duty is pro tanto, overridden by the moral obligation to act rightly. Second, I argue that by voluntary enlistment, citizens who serve as generals have chosen to accept the burden of service to the state. This burden is onerous. But it is not unlimited. I accept democracy has significant moral value worth protecting, and democracy must impose on citizens who serve as generals. But there are limits; the state’s authority can only go so far. Third I argue law cannot capture the whole human responsibility for war’s violence. I say for people in our culture, beyond law’s explicit terms, war is a moral undertaking. There is something measly about using law and lawyerly language to characterise war’s dreadfulness. On my account, moral perspective might be integrated within law through the creation of a specific exception. In conclusion I say there will be moments when generals must comply. Hard-edged political realities will oblige and constrain individual choice. But the occasional real-life moment does not justify legislation’s emphatic and illiberal proscription of conscience