Obedience to Orders and the Structure of the Morality and Law of War
Ian Fishback, University of Michigan
Abstract: According to the most widely accepted beliefs about the morality of war, there is a conceptual distinction regarding duties to obey orders. On one hand, politicians are morally responsible for ordering combatants to resort war, but combatants are not morally responsible for following politicians' order to resort to war. On the other hand, combatants are almost always morally responsible for following orders to commit crimes during the conduct of war. In other words, there almost always a respondeat superior (let the commander answer) justification for a combatant's participation in war even though there is almost never a respondeat superior justification for a combatant's conduct during war. I will challenge this conceptualization of a combatant's duty to obey orders, arguing that the respondeat superior defense is often available to combatants who violate rules that regulate conduct in war. In situations were the law and morality are unclear, (1) commanders who issue orders almost always bear sole moral and legal responsiblity and (2) subordinates almost never bear legal or moral responsibility. Rather than being revisionist, my view is actually represented in case law and moral judgments about particular cases. Therefore, many of the most widely accepted moral beliefs about combatants' duties to obedience are contrary to legal and historical precedent.