The Obligation of Furnishing Military Service

319. On military laws. 1. To political authority belongs the right of providing the means which are necessary for preserving and defending the republic. To this right in citizens there corresponds the obligation from legal justice of contributing those things which are necessary for defending the republic from internal and external enemies. Since this end of preserving and defending the republic cannot be obtained without military force, political authority can by right establish military laws, which citizens of themselves ought to obey from legal justice, provided they are just.

2. The mode by which political power provides for itself the necessary military force depends upon the conditions of times and peoples, and in fact was diverse in diverse times. Since today nearly all great republics sustain standing armies (stehende Heere), there can chiefly be distinguished a threefold diverse mode of obtaining soldiers. For soldiers either are hired, that is, volunteers, who are assumed for an agreed wage for a definite time, or are conscripted, and this either by a law of universal conscription, by which all suitable young men must follow military service, or by a law of particular conscription, by which from suitable men some, usually chosen by lot, are assumed for military service.

3. In order that military laws be just, chiefly a twofold condition is required: a. as to the number of soldiers, that no more be assumed for military service than are truly necessary for the security of the republic; for if more are ordered to furnish military service, the money of the citizens is vainly lavished in supporting an army greater than is fitting, and soldiers are exposed in barracks without necessity to great moral dangers. b. As to the mode of gathering the army, that compelled soldiers not be conscripted where volunteers can be had and at the same time suffice for the necessities of the republic; for otherwise citizens are deprived without necessity of their liberty of providing for domestic affairs and of embracing whatever state they prefer.

It is clear that the justice of military law requires this especially, that those be exempted from the obligation of furnishing military service who are exempt either by ecclesiastical, that is, divine, law, as clerics and religious, or by natural law, as sons who are necessary for supporting a family. For the higher law prevails over the lower law.

¹ Theod. Meyer, Institutiones iuris naturae, II, n. 615 ss.; Vict. Cathrein, Moralphilosophie^4, II, p. 628; A. Vermeersch, Quaestiones de iustitia, n. 129 ss.

320. On the obligation of military law. The opinion does not seem improbable which affirms that in most regions military laws, especially where universal conscription flourishes, are merely penal laws; for the common judgment even of prudent and timorous persons interprets their force in this manner, and there are added extraordinarily grave punishments by which transgressors of these laws are punished. But if military laws somewhere are preceptive laws, they must be obeyed from legal justice.

a. There are those who say that military laws which command universal conscription are certainly unjust, and that those which require particular conscription are probably unjust.¹ From the things said above it is clear that they are unjust if so many soldiers are not necessary for protecting the security of the country, or if the necessary number of soldiers can be obtained through soldiers hired for pay. Since very many social and political matters must be known for forming an equitable judgment in this very difficult matter, it cannot be demanded from the confessor that he himself define the question; but he can prudently hold the law to be just if those to whom it belongs, after considering all circumstances, affirm that in a determinate republic so great an army, and indeed one compelled by conscription, is necessary.

b. What is added, namely that a law of military service which calls all suitable persons to the service of arms is contrary to distributive justice, because only the families which have sons suitable for military service are forced to undergo this burden, is true unless care is employed that upon the families of the rich who do not have sons fit for military service another burden be imposed. But from that reason, that military law forces young men to celibacy for several years, it is not demonstrated to be unjust; for, once the necessity of so great an army has been supposed, the reason of the common good rightly demands from them that they defer marriage for some time.

¹ I. Aertnys, Theologia moralis^7 (Paderbornae: Schoningh, 1898), I, n. 380.

321. Obligations of soldiers. Since the mode of obtaining an army is diverse in three ways, it is useful to determine more accurately the obligations of soldiers according to these diverse conditions, with the true obligation of these laws supposed.

1. Hired soldiers are bound from commutative justice to follow military service and to observe the promised conditions; for by entering a contract and agreeing to a wage they obligated themselves to furnishing military service, and therefore they are bound from justice to observe the conditions of the military contract. Therefore if they do not furnish those things which according to the agreement they ought to furnish for the stipend, they are bound to restitution of the stipend, except in the case in which the republic which hired them does not itself observe the conditions of the contract.

2. Soldiers conscripted by particular conscription: a. are bound to undergo the danger of the lot; if they withdraw themselves from the drawing of lots, they offend against legal justice. b. Those designated by lot are bound to follow military service; if they withdraw themselves from it, they injure legal justice, but not commutative justice, neither as to those who are assumed into military service in their place, nor as to the republic.

Not as to those, etc., both because they are not the cause but the occasion of the damage which those persons suffer, for the efficacious cause of the damage is the military law, and because they are not bound from justice to impede this damage, since none of them has a right that he be immune from military service. Not as to the republic, because the republic obligates them only from legal justice to furnishing military service.

3. Soldiers conscripted by universal conscription are bound to follow military service from legal justice. Therefore he who withdraws himself from military service, where all suitable persons are assumed for military service, certainly does not injure commutative justice; this is clear already from the fact that from his manner of acting no one else suffers damage, since all suitable persons are assumed.

322. Resolutions. 1. Since clerics are immune from following military service, they can licitly withdraw themselves from it and, already conscripted, licitly flee, even if they have taken the military oath; for they are not bound to obey an unjust law. The same of itself holds also concerning those who are necessary for supporting a family, since by natural right they are immune from following military service.

2. Those who employ artifices to exempt themselves from military service, for example, by weakening the eyes or procuring for themselves a defect, sin neither against justice nor against another virtue, provided the means which they use is licit; for they are prohibited by no law from exempting themselves from a burden as grave as possible to themselves.

3. Those who on the occasion of military service undergo grave danger in faith or in morals which they cannot forestall can withdraw themselves from military service or licitly desert it, even if they have taken the oath, provided that by fleeing they do not expose themselves to graver dangers. The same must be said about those who deservedly fear that on the occasion of military service they will fall away from a clerical or religious vocation.

4. Those who desert military service without just cause sin gravely both against justice and against religion, and of themselves are bound to return, and indeed both from the oath and from commutative justice if they are hired for pay, or from legal justice if they are conscripted. But from this obligation they are for the most part excused, both on account of the very grave punishment which awaits those returning, and on account of the great moral dangers which threaten soldiers in barracks; from the obligation of the oath they can be freed by dispensation.

1. Nicasius is accustomed to transport by cart grain, wine, and other goods on which taxes are imposed. But lest he pay them, he passes by a hidden road, or by night, avoiding the officers of the treasury. But sometimes, by the straight road, by day, he passes securely before those very officers of the treasury, carrying nothing that is subject to tax; and he does this so that on other occasions he can likewise pass securely, since he is already known to the officers of the treasury, yet carrying hidden prohibited goods, tobacco, sugar, etc.

Q. 1. Does the law of taxes oblige in conscience? 2. What as to the case?

R. To the first, cf. I. M. 232. To the second: the matter indeed is controverted among the doctors. Thus St. Alphonsus, l. 3, n. 616, reports the doctrine of Sanchez and others, without handing down his own opinion: "Sanchez thinks that no one who openly passes by the straight road is held to pay tolls, by reason of passage through a gate or bridge, which are imposed for the securing of roads; for it would be most harsh to oblige strangers to know these statutes, at gates or bridges. And Sanchez, with others, thinks this probable even if someone hides the goods or himself; because taxes of this sort are so received that they are not owed unless demanded. But speaking generally of all tolls, Lugo thinks that peoples are to be admonished to pay taxes, but after the fact they are not to be compelled to restitution of the tax defrauded, if they probably persuade themselves that amid so great a multitude of tolls they have paid some unjust tax, or have contributed competently to public necessities." "A prudent confessor," says Struggl 32, "ought not so easily to condemn those who evade as guilty of mortal sin; and much less ought he to oblige them to restitution; for this could scarcely be persuaded to one in a hundred. Besides, the opinion which teaches that the laws of taxes and tolls are universally purely penal is defended by many doctors, and is commonly acknowledged to be truly probable." And Fr. Gury 751 says: "There is no doubt to anyone that the faithful are to be exhorted to pay all taxes diligently. Nevertheless the confessor is not held to ask penitents whether they are guilty of some defrauding; for this is altogether alien from common practice. The confessor has not been constituted like an officer of tolls or a public collector. But as regards the forum of conscience, generally the faithful, even the God-fearing, do not think that they commit sin, at least grave sin, nor that they are held to restitution, if they sometimes omit paying tolls, if they hide the goods on account of which the tax is demanded, if they avoid the officers. For the most part the confessor would accomplish nothing if he should attempt to shake them out of their good faith. Furthermore, the matter is subject to the greatest controversy among theologians, nor does it pertain to the confessor to settle it."

2. Sabas, a subdeacon, in order that he may be exempted from the law of military service, offers a certain moderate sum of money to Sabanus, a physician. Sabellus, noticing this, recently made a doctor in both laws and preparing himself for exercising the profession of advocate, offers a doubled sum of money to Sabanus. Sabinus, present in the hall of medical examination, since he is poor but an astute young man, feigns and assertively affirms an interior and hidden disease. And thus all are freed from the burden of military service.

Q. 1. Is the law of military service a merely penal and just law? 2. What as to the case?

R. To the first, cf. I. M. 171, 4; 228, 232, 1386. To the second: Sabas the subdeacon is by no means held by the law of military service. Wherefore he by no means sins by offering a gift to the physician, so that he may be declared incapable of military service. Sabanus the physician, since the law is unjust as regards Sabas, by declaring him incapable by no means sins. Nor indeed does Sabanus seem to be disturbed on this account, that he accepted from Sabas a moderate gift of money spontaneously offered to him.

Sabellus, corrupting the physician with money, cooperates in true injustice on the part of the physician, who is obliged from quasi-contract and office. Whence it is that, speaking in itself, both Sabellus and the physician are held in themselves to compensation of the damages which come to the other youth called to military service in his place. Speaking in itself; for in practice it is difficult to persuade this obligation; for often many act in good faith in this matter from ignorance, or hold the law as unjust. But Sabanus is not held to restore anything to Sabellus, since he has already declared him invalid: since, although the contract was illicit, nevertheless, the thing promised having been fulfilled, it probably is valid. But it would be otherwise if he had not yet declared him invalid. I. M. 959.

Sabinus, feigning and affirming a disease which he does not have, certainly sins against truth. He also sins gravely against legal justice, since there is question of a law directly regarding the public good, and altogether necessary for it; and therefore just; namely, speaking in itself. But does he also sin gravely against commutative justice, so that he is held to restitution? It seems more probable that it must be affirmed. For the law establishing that necessary soldiers be designated by lot, which can favor all equally, and consequently does not appear unjust from this head, constitutes a strict right, and confers it indiscriminately and equally on all, namely that those designated by lot be enrolled for military service, while others remain free; and if this right is injured by lies and frauds, consequently commutative justice is injured. Nevertheless, there are not lacking many who assert that the law is unjust, since only families having young men fit for military service sustain so great a burden. But this in reality does not seem to prove the injustice of the law. For on the contrary the law should rather be called unjust if such a burden were imposed even on those not fit. But it is by accident that this or that family has young men not fit. Furthermore, if the law had to be held as unjust, then concerning Sabinus and others similar to him it would have to be said that not only does he not sin against commutative justice, but also that he does not sin against legal justice. Indeed it would also have to be said that he does not sin against truthfulness by thus lying, but uses a legitimate mental restriction; and this in reality seems rather hard. - I. M. 1386; G. 757-761; Frassinetti tr. 10, diss. 7; Gennari, Consultaz. Mor. Can. Lit., Cons. 22.

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.

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.

¹⁹⁶ Cod. iur. can. cc. 121, 141, § 1, 188, n. 6.

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.

632. The burden of undergoing military service is a special personal tax. They are bound to undergo it from obedience owed to law and from legal justice, on account of necessity, namely, the defense and conservation of the republic; unless someone is exempt by natural law, for example, on account of illness, or by ecclesiastical law, or by a just privilege of civil law, or is compelled to fight in a manifestly unjust war. Hence they sin against legal justice:

1. Who exempt themselves from the burden of military service by illegitimate means, for example, by mutilation of themselves, lies, corruption of a physician or magistrate;

2. Those designated for military service who desert it, unless they have a just cause for deserting, for example, grave danger to health; hence per se they would be held to return to military service, but often they are excused on account of the great penalties which await them;

3. But if they have freely enrolled themselves in military service by contract, those deserting or exempting themselves also sin against commutative justice.

633. A special question can be posed: whether, by those who in this way liberate themselves from military service, injustice is committed toward others to be substituted in their place? This has force in the case in which not all are called to military service, or de facto are not bound to it.

Response: a) They certainly violate commutative justice and are obligated to restitution who, by unjust means, for example, by corrupting physicians, directly act against a third person, namely, so that one apt may be declared who otherwise would be exempted. For anyone has a strict right not to be deprived of the good of liberty by an unjust action.

b) According to almost the common doctrine, those likewise are held to restitution who corrupt publicly hired physicians or magistrates by gifts, so that they themselves may be exempted without true causes and others consequently enrolled in military service: for thus they cooperate in the injustice of those who are bound by office to act according to the laws. He who is exempted by thus cooperating is held to restitution in the first place, since he himself receives the benefit of the injustice; then, however, magistrates and physicians also are held to it. In other words, those themselves who receive the gain and are holders of the gain, as holders of another's thing, are held to restitution; but if these do not restore, the magistrates and physicians are held because they are an efficacious cause of the damage, and thus they are held in solidum.

c) Probably they also hold as guilty of injustice those who liberate themselves by mutilation, feigned illnesses, or frauds, because, given a law of military service which does not enroll all, they cannot furnish this without necessarily transferring the burden onto others, and therefore they are an efficacious cause of the damage. Yet this is probably denied by others, because the whole obligation arises from the disposition of the law; hence they are only the cause of damage by accident; nor is it established that exempt youths have a strict right against those designated, that these should go to military service.

d) The same is commonly held for deserters from military service, namely, that they must restore nothing, even if another is substituted in their place, because another does not have a strict right that they not desert military service.

634. Observation. He does not sin against commutative justice who seeks only the benevolence of the physician, for he uses his own right. Likewise, if someone, in doubt concerning fitness or concerning a legitimate cause of exemption, were to corrupt physicians, he could not certainly be obligated to restitution, for the restitution to be made is doubtful, and in doubt officials can choose the exemption of someone. Indeed, he who withdraws himself from military service by emigrating does not seem to sin, because it is not a fraudulent but a legitimate withdrawal.