Section — Bucceroni, Commentaries (1910)
XVII. On the Obligation of Performing Military Service
208.
- Civil society has the right and obligation of conserving itself for the common good of citizens. But it cannot conserve itself without military force, by which it may defend itself against internal and external enemies who endeavor its damage and ruin. Hence there is the right and obligation of the prince of constituting soldiers, by establishing, in some way at least, an army. For unless the army is stable and always prompt and ready for protecting the commonwealth, there would almost continually be, especially at present, internal disturbance of order and invasion of an external enemy; and the loss of proper autonomy will certainly have to be feared, as is clear also from continual fact itself.
209.
- An army can be had in a twofold way. For soldiers can be taken from their spontaneous offering; and they are voluntary soldiers, or mercenaries, because they are freely hired for a determined time by an agreed wage. And this first mode is altogether lawful. Besides, soldiers can be taken by a law of conscription, and they are called conscript soldiers. This mode also is lawful if voluntary soldiers are not had, because they are altogether necessary for the security of the commonwealth. Whence it is clear that so many ought to be taken for performing military service as are necessary for the safety of the commonwealth; otherwise either the safety of the fatherland would not be sufficiently consulted, or a most grave burden would be imposed on citizens without sufficient reason of the common good. Wherefore, according to the varying necessity of the commonwealth, conscription can be universal, of all young men fit for military service, or particular, of those chosen by lot among all fit young men. Judgment concerning the necessary number of soldiers certainly pertains to the moderators of society. There are those who hold that conscription, whether universal or particular, is unjust; but as it is easy to assert this, so it is impossible to prove it; for the reason of the common good renders a stable and well-instructed army altogether necessary. But what is said, that it is opposed to distributive justice because only families having fit young men would undergo such a burden, has no value. Could families not having fit sons also undergo such a burden? If they cannot, then it is not opposed to distributive justice, since this imposes burdens proportionate to powers. Otherwise one would have to say also that all taxes are unjust, because those who have nothing pay no tax. And is there not, beforehand, an equal hazard for all, since it can happen to all families either to have or not to have fit sons? And if, as regards families, some having, others not having sons fit for military service, distributive justice is injured, would not this also be injured as regards the young men themselves, of whom some are apt, others altogether inept for military service? And then, military service having been removed, the nation surely will not endure one day in its own being, and will be absorbed by a more powerful nation which seeks to extend its domination.
210.
- The obligation of performing military service is from commutative justice for hired soldiers, who consequently are bound to restitution and to repairing damages if they themselves do not observe the conditions of the contract entered. But for conscript soldiers it must be observed only from legal justice, since it arises by reason of the common good. Yet there are not lacking those who also have the laws of military service as merely penal laws. If somewhere this truly is the common interpretation of these laws, even of the timorous, since custom is a legitimate interpreter of laws, they can in fact be had as penal. But clerics will always be immune from following military service, by reason of the privilege of their state, and sons of a family who are necessary for sustaining the family by the natural law itself.
211.
- Therefore, as designated soldiers are bound to undergo the burden of military service, so deserters are bound per se to return to camp from obedience or from legal justice. Per se; for except: 1. if they would meet excessive danger of salvation, as regards faith and morals; 2. if, on returning, they would be punished with death, the galleys, or other most grave penalties; 3. if the war is evidently unjust, or the usurpation of the kingdom evidently unjust. - But deserters are certainly bound to no restitution whenever the law does not require others in their place, because they in no way injure commutative justice, nor do they inflict damage on any other. But it is otherwise if from the law others would have to undergo the burden of military service because of them. For they are not only the occasion of a burden of this kind, but the true cause; namely cause together with the law. The law alone is not the cause of that damage; if they had observed the law, others would not be conscribed. Therefore the law and their deed against the law are the true and efficacious cause of that damage inflicted on others.
212.
- To what are those bound who hired themselves for others and then deserted military service? - Per se they are bound to restore the price received to him from whom they received it, because the reason is lacking for them to receive money, which is paid out only on account of the burden of military service. Yet this holds only where he who hired a soldier in place of himself is exposed to the danger of undergoing military service. For this danger being excluded, although the deserter does not undergo the burden of military service, he freed the hirer from this burden of military service, which the hirer truly intended in that hiring.
213.
- To what are those bound who, not yet enrolled for military service, withdraw themselves from it without just causes? - Hired soldiers who by contract and an agreed wage obligated themselves to military service are bound from commutative justice to follow it. But if they do not furnish it, they are bound to restitution and reparation of damage. - Conscript soldiers who corrupt magistrates or physicians so that they may be declared unfit by them are certainly bound to restitution if others therefore must undergo military service in their place. For they are cooperators as mandating, or counseling, or in any other way, in injustice; for magistrates and physicians are obligated from quasi-contract. - Those who deceive magistrates by lies, frauds, or previous mutilation, according to the more common opinion, are obligated to restitution. The reason is that other exempt young men have a strict right that such means not be employed to their detriment; and those required by lot cannot decline the burden of military service, legitimately imposed on them, without strict injury, since the law, or lots established by law, constitutes a strict right, requiring some and exempting others from military service. Bouvier, de Restitutione, quaest. 2, art. 2. - Therefore they are not bound to restitution if by law all fit young men are assumed for military service; because then they themselves inflict damage on no one. - Practically speaking, restitution often is not to be urged in the preceding cases, either because those who employ the aforesaid frauds do not believe that they sin against justice and are by no means persuaded of the obligation of restitution, or because it is morally impossible to repair the damage inflicted. - One who would betake himself to another fatherland to escape military service, so that he would pass his life there, would sin in no way, because while absent he would not be bound by the law of his fatherland, since a law cannot be extended outside its own territory. But those already designated for military service who withdraw themselves from it, or obtain exemption without true causes, if no one is to be required by law in their place, sin against legal justice, yet they are bound to no restitution. - Gousset 1002.