The Military #Profession

Lawyers, Ethics and the Profession of Arms

The Proprietor of ‘Carl’s Cantina’ is an Australian military officer who has served in Iraq and Afghanistan. The Proprietor is an Associate Member of the Military Writers Guild and is currently writing a thesis on Australian civil-military relations. The opinions expressed are his alone and do not reflect those of the Australian Defence Force.

The issue of military professionalism has been the subject of many books and papers by much more prolific and important people such as General Sir John Hackett in his seminal work, The Profession of Arms; and in the Lees Knowles Lectures at Cambridge. Nevertheless, I make these humble offerings in response to Dr. Shanks Kaurin’s questions, discussed at The Strategy Bridge.

Is the military a profession?

The military is a profession. It shares the characteristics that are commonly attributed to professional fields such as the law or medicine. As a lawyer and military officer, I am often reminded that I am the member of two professions and must uphold and observe the distinct codes applicable to each. Cicero’s observation that ‘laws are silent in time of war’ may suggest that these two professions are diametrically opposed (indeed, some would vehemently argue that there is no place for the niceties of the law while engaged a Clausewitzian primordial struggle, but that is a topic for another day). However, a determination of whether the military is a profession can be easily made when juxtaposed against a widely accepted professional field such as the law. A comparison of the fundamental characteristics of the legal profession and the profession of arms reveals a common framework:

• Practice in a highly specialised field based on a lengthy education, a system of indoctrination, and subsequent professional experience. As a result, members of the profession possess a monopoly over expertise or skill within a specialised field.
• The monopoly of expertise or skill means that members of the wider public who are not members of the profession (laypersons) must rely on members of the profession for their advice or the application of their skills — that is, the use of specialised skills and knowledge in the service of others.
• The profession’s monopoly over a body of knowledge or skills creates a position of advantage over laypersons, resulting in an imbalance in the relationship between the professional and the layperson.
• The imbalance in the relationship creates a relationship of trust between the professional and the layperson. This is a principal-agent relationship where the specialised skills and expertise of the professional (the agent) are relied upon to further the interests of a person or community (the principal).
• The professional’s monopoly over a body of knowledge or certain skills, coupled with the trust vested in the profession by the wider community, is the primary driver for a system of professional accountability. This is generally embodied in declaratory codes of conduct and a wider cultural framework, both of which create the boundaries of acceptable conduct within the profession.

Perhaps the most important aspect of ‘professionalism’ is the ability to use that monopoly over a body of knowledge or skill in the furtherance of the interests of another. This implies both service and sacrifice (both of which are more readily attributed to military professionals than lawyers!). In the legal profession, this is manifested in the lawyer-client relationship. It is considered to be a ‘fiduciary relationship’ where the principal must act in the interests of the client. In the context of the profession of arms, the principal-agent relationship is at the heart of civil-military relations. Military forces are entrusted with the legal authority to use force (kill people and break things) in the furtherance of the interests of the state. While trust is at the foundation of the principal-agent relationship, it is reinforced by a code of conduct (usually embodied in a legal framework) and an institutional culture that punishes behavior that the profession considers unacceptable.

What are the ethical responsibilities of military members, if any?

Military members owe ethical obligations/have ethical responsibilities. The position of advantage enjoyed by a profession due to its monopoly over a particular field of expertise is mitigated by legal/ethical obligations and duties that bound the behaviour of its members. These duties and obligations are often embodied in legal frameworks. Military forces around the world have legislative disciplinary codes to regulate behaviour, which often also embody international obligations assumed by the state (eg Geneva Conventions). However, the law only discloses part of the answer to this question. The law only applies when it is enforced, usually after the fact (ie an incident has occurred). Ethical frameworks are comparatively more useful as they may provide guidance for future behaviour at the point of dilemma rather than ex post (retrospective operation). However, the identification of ethical responsibilities does not rest solely on professional codes of conduct as they are very much the product of individually based considerations. Legislative frameworks and professional standards are merely starting points for determining the ethical responsibilities of military members.

The St. James Ethics Centre, an institution focused on the study, discussion, and teaching of ethics in Australia, defines ‘ethics’ as considering the question of ‘what one ought to do’. I don’t want to sound like I’m trying to avoid answering the question, but in my view, the question of ‘what one ought to do’ can only be answered when taking into account a person’s perspective on a particular issue. Where a person stands on an issue depends on where they sit in relation to it. It is easy to answer an ethical question on say, detainee handling, while sipping a hazelnut soy latte in the peaceful confines of a cafe in Canberra or Washington DC. It is an altogether different matter when viewed from the perspective of an infantry soldier after a fierce battle in the dusty and oppressive heat of Kandahar province.

This is not to condone or justify any behaviour that runs counter to the law or professional military codes; but rather to highlight that ‘passion’ (primordial violence/emnity) can cloud rational judgement when determining difficult ethical issues. While the law dictates behaviour, out in the lonely, unobserved and isolated pockets of areas of operation throughout the world soldiers/sailors/airmen must make their own individual judgement about their ethical responsibilities. Professional codes of conduct are merely one consideration that coalesce with a multitude of others (such as personal morals, institutional culture, training and experience, personal biases, societal expectations and legal obligations) to form an individual’s framework for ethical decision-making. At the end of the day, each military member has their own ‘red line’ that they will not cross. A more serious question to resolve one’s ethical responsibilities is to ask ‘can I live with myself if I do this’?

The law is easy — ethics is hard.

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