Section — Prümmer, Manuale Theologiae Moralis
§ 2. On the civil law which commands military service to be performed
295. The civil law concerning military service to be performed obliges per se in conscience, because military service is necessary for the defense of the fatherland. Military service seems to be nothing other than a personal tax, or, as others say, a tax of blood.
By accident such a law does not oblige, namely 1. if it is unjust, for example, if even clerics are compelled to serve as soldiers, or 2. if soldiers are compelled to fight in a manifestly unjust war. Modern theologians teach rather commonly that the law concerning military service to be performed is neither merely penal nor obliges from commutative justice, but from legal justice alone.195 But in three cases this law obliges from commutative justice, namely: 1. if someone freely and by contract has enrolled himself in military service; 2. if someone by his own deceitful withdrawal has caused that another determinate citizen be compelled to serve as a soldier; 3. if he has corrupted physicians or other officials by gifts in such a way that he is declared unfit for military service. But in this last case there is not always a certain injury of commutative justice, as will be said below in n. 298.
195 So also Bouquillon, Theol. fund. n. 226; Gopfert, Moraltheol. II, 184, and others.
296. Fuller explanation. 1. Without any doubt there lies upon public authority the burden of defending and preserving the republic. But since from the beginning of the world even to our days that defense cannot be had sufficiently without soldiers, public power is bound to procure soldiers; and this indeed can be done by hiring or by conscription. Which method is more suitable depends on many circumstances. The hiring of soldiers still exists today in few regions (Fremdenlegion), and it is often an insufficient method, at least for great kingdoms. - The hiring of soldiers is an onerous contract, and therefore concerning its conditions and injury all those things hold which hold concerning other contracts of hiring. Hence a hired soldier is bound to restitution if he abandons the military service undertaken without serious reason. But he does not abandon the military service undertaken without serious reason, but licitly, if contrary to the stipulations entered into he is treated badly, or if urgent dangers of religion and morals threaten him. - The conscription of soldiers is universal or partial. In universal conscription all suitable young men ought to undertake military service, but in partial conscription only a part of the suitable young men is chosen. When partial conscription is in force, it is sometimes permitted that a young man conscripted for military service substitute another in his own place, a price having been paid. Such a substituted soldier is a hired soldier, and therefore the same things hold which were said above concerning the hiring of soldiers.
2. Rigorously universal conscription, which exempts from military service absolutely no young man physically fit, is unjust. For both ecclesiastical and natural law are then injured: ecclesiastical law indeed, which forbids clerics and religious to perform military service,196 and natural law, which commands that sons be bound to support parents existing in grave necessity. Moreover, if any young man whatever is bound to serve in the military for a long time, it happens that parents oppressed by poverty and infirmity lack the necessary assistance of their sons.
3. Universal conscription which nevertheless exempts clerics and sons who are absolutely necessary for the support of parents is per se a just law. For military service is, as it were, a personal tax or tax of blood necessary for the common good (cf. above). But just as all citizens endowed with fortune are obliged to real taxes, so all citizens fit in bodily constitution and not exempt by a higher law are bound to the personal tax of military service. Nor should anyone say that the number of soldiers is excessive, for no private man can prove this assertion with certainty, since he does not know sufficiently the true dangers which threaten the republic from other kingdoms. By accident forced military service is unjust, namely if grave scandal against religion and good morals is offered to soldiers.
297. 4. The law concerning universal or partial conscription seems to oblige from legal justice, but it is not a merely penal law. Genicot197 and Aertnys198 teach that laws by which citizens are commanded to provide military service are in most regions merely penal. But Vermeersch199 says: "The persuasion of the people itself sometimes, as in Belgium, is inclined to hold laws of this kind as merely penal, while elsewhere an opinion which denies a direct obligation of conscience offends the minds of the pious. Now custom is the best interpreter of laws. Therefore we think that in his own region each one ought to consult approved authors of his own country, and cautiously accept what is defined in this matter by foreigners." These things indeed are true, if it is really established concerning the common persuasion of the people. Otherwise, however, the presumption stands for an obligation of legal justice.200 For just as we did not recognize the law of taxes as a merely penal law, so similarly it seems one must say concerning military conscription. For on both sides there is the same reason, namely the necessity of the republic. Hence, just as an obligation of restitution does not easily arise from defrauded taxes, so a fortiori nothing per se is to be restored if someone illicitly withdraws himself from military service. But I say per se, because by accident an obligation of restitution can arise, as will be said below. - The reasons which are brought forward to prove that the law of conscription is a merely penal law, indeed that it does not oblige in conscience, do not seem to be solid. For they say: a) Conscription is not necessary; the hiring of soldiers suffices, as in the Middle Ages. - With almost the same right someone could say that modern weapons of war are not necessary; the weapons used in the Middle Ages suffice. b) By military service the most dangerous burden of forced celibacy is imposed on young men, which is against natural right. - The answer is: forced perpetual celibacy is indeed against natural right; but by no means so, if the compulsion is only temporal. Otherwise six hundred other offices which require temporal celibacy would be against natural right. c) In this personal tax the proportion among persons is not preserved, since only families having young men suitable for military service must undergo so grave a burden. - The answer is: with the same right the rich can call direct taxes unjust, since these burden only possessors themselves, while the poor remain free. Certainly all personal and real taxes are to be distributed equally among individual citizens, but it is altogether impossible to avoid every hardship and inequality of burden. Therefore taxes are not immediately to be called unjust if they seem to burden one somewhat more than another.
197 Theol. mor. I, 576.
198 Theol. mor. I, n. 836. The new editor Damen mitigates this opinion somewhat, saying: "By accident today, unless the mind of the legislator is otherwise established, it seems to be a purely penal law." Noldin (De praec. n. 320) asserts: "The opinion affirming that in most regions military laws, especially where universal conscription is in force, are merely penal laws, does not seem improbable."
199 Quaest. de iust. n. 127.
200 Cf. Lehmkuhl, Theol. mor. I, 1175.
298. 5. In kingdoms where universal conscription is in force, fraudulent withdrawal from military service does not oblige to restitution. The reason is that legal justice alone is injured,201 but not commutative justice. For: a) no real damage is inflicted upon the republic, because sufficient soldiers remain for the defense of the fatherland, since the case in which, because of the withdrawal of one or another soldier, the security of the fatherland is truly endangered seems almost impossible. b) Nor is injury done to other citizens, since all who are suitable are compelled to military service, and no one is substituted if another has withdrawn himself. - Whether an obligation of restitution arises if someone has corrupted a physician or other officials and so has been freed from military service is controverted. Several authors affirm it, because he has cooperated in the injury of commutative justice which that unfaithful physician or official committed because of his office badly fulfilled. Thus Aertnys.202 Other authors, such as Lehmkuhl,203 Gopfert,204 even in this case excuse such corrupters from the obligation of restitution, because notable damage has been caused neither to the republic nor to other conscripted soldiers. This second opinion seems more probable if truly no damage has arisen from the corruption, as almost always happens in universal conscription. But the matter stands otherwise in partial conscription.
201 If a soldier leaves the military service to which he obligated himself by oath, the virtue of religion also is injured (cf. below II, 451).
202 Theol. mor. I, n. 837. The new editor Damen seems to have changed this opinion.
203 Theol. mor. I, 1177.
204 Moraltheol. II, 184.
299. 6. In kingdoms where partial conscription is in force, so that from all suitable young men those who are bound to serve in the military are determined by lot, fraudulent withdrawal more probably is not only illicit, but also induces an obligation of restitution toward him who is then unjustly compelled to military service. Thus Marres,205 Bucceroni,206 Berardi,207 Tanquerey,208 and authors commonly, while some contradict, for example, Vermeersch,209 Ballerini,210 Ballerini-Palmieri,211 Lehmkuhl.212 We suppose that the law of conscription is not manifestly unjust; likewise we suppose that the young man has not emigrated from the kingdom in which he ought to have served. For in these two cases the withdrawal would not be fraudulent but legitimate. But in other cases, when a conscripted young man has withdrawn himself from military service to be performed, whether by falsely alleging disease or by mutilating himself or by corrupting physicians or officials, he truly is not only the occasion but the efficacious cause that another young man exempt by lot is now unjustly compelled to military service. And truly that other young man is deservedly and reasonably unwilling to be compelled in this way to undergo a grave burden by the illicit action of another. Therefore there seems to be present a true injury of commutative justice and consequently an obligation of restitution. Gury, who calls this opinion more probable, concludes in these words:213 "Whatever may be the case, in practice it will be most wise, even in the first [i.e., in this] opinion, not to urge very strongly young men who have freed themselves from military service by the aforesaid means. For most think that injustice is by no means committed, and otherwise they would rarely obey admonitions." - Moreover, in our times this partial conscription has almost everywhere been changed into universal conscription, in which a strict obligation of restitution from fraudulent withdrawal does not seem to be present, as was said above.
205 De iustitia n. 225.
206 Inst. Theol. mor. II, 1386.
207 Prax. Confess. II, n. 418.
208 De iustitia n. 566.
209 De iustitia n. 130.
210 Note in Gury, De iustitia I, n. 749.
211 De iustitia n. 184.
212 L. c. I, n. 1176-1177.
213 L. c.
300. 7. Soldiers who, having already been legitimately enrolled in military service, flee away (especially in time of a just war), sin gravely, because a) they expose themselves to most grave and most disgraceful penalties, for example, death, spoliation of all goods, etc.; b) they gravely injure legal justice or even commutative justice (if they had been freely hired); c) they give a very bad example to others. Nevertheless the confessor ordinarily should not impose on them the burden of returning to the camps, since deserters of this kind are neither accustomed to obey nor strictly bound to return because of the most grave penalties threatening them. For no one ought freely to suffer such grave penalties.