Daniel D. Maurer (Dept of Law, United States Military Academy at West Point) has posted Sovereign, Employer, Community: A Theory of Military Justice Beyond Discipline, Obedience, and Efficiency on SSRN. Here is the abstract:
The American military’s use of armed force is regulated by a relatively well-conceptualized, internationally-accepted, and historically-consistent law of armed conflict. But the actual Armed Forces – the individual servicemembers capable of wielding violence on behalf of the state – are regulated in their personal and professional lives by a distinct criminal code separate (and in many ways anachronistic) from civilian forms and norms of criminal justice. Military Justice is widely-misunderstood, often-criticized, and less-frequently (though increasingly) subjected to progressive reform that civilianizes its martial characteristics. Unlike International Humanitarian Law’s direct influence on the regulation of lethal force through rules of engagement and criminal accountability mechanisms, military justice lacks a coherent and well-developed normative and descriptive framework to justify its reforms or to rebuff its criticism.
Unfortunately, when we look for such a theory to understand or legitimate the structure, foundational premises, and evolutionary path of the U.S. military’s separate criminal justice system, we find only a mirage – the blurry image of a super-rationale that simply evaporates the closer we inspect it. The combination of recent Congressional reforms, the Supreme Court’s changing normative descriptions of military law, and increasingly skeptical public attitudes toward its apparent baked-in biases and structural inequities are driving American military justice to evolve along a path of de-militarization of its form, substance, and even purpose, drawing it ever closer to civilian law and practice. Yet, there is no theory that sheds light on why the system is what it is, nor how or why it could change further. This article does not take sides in the debate over whether reforming military justice – as a whole or in its particular rules – is a good idea or not. It simply attempts to understand this criminal justice system, one that empowers lay commanders – essentially, senior managers in a very specialized employment context – to regulate the behavior of a very specific professional community of U.S. citizens and others across the globe, in peacetime and in armed conflict, and to expose to punishment conduct that may be martial, civilian, or both in nature. This article proposes such a theory.
Aside from breaking ground as the first comprehensive theory of military justice in the field’s storied history, it aims to contribute to legislators,’ the courts,’ commanders,’ the general public’s understanding of the American model of military criminal law in several novel ways. It places the de-militarization of military justice in historical context, demonstrating that the changes to the character of this system are the result of a competition among values, not actors. Specifically, the values of military effectiveness, the fair administration of justice, and the vague but cliched “good order and discipline,” not the micromanagement of Congress, the inconsistent decisions by commanders using their legal authority, or the sloppy reasoning of the courts. It frames military justice at the most abstract of levels, for the first time, as a “strategy.” This strategy is used by political entities, employing legal structures, to set desirable military conditions for achieving national security objectives. The end-product of that strategy is, the theory states, a “self-regulating Armed Force of self-regulating individuals presenting the most favorable conditions possible for the use of reliable armed force by the chain-of-command, on behalf of legitimate civilian political authority for whom the military serves as an agent.” Along the way, the theory is constructed out of nine propositions, each presented with a test suite of possible questions we might ask about the current system to validate that proposition’s accuracy and relevance.
Significant among these propositions is a new idea: military justice reflects the conditions and constraints created by the government upon interacting with the individual servicemember in three distinct, but overlapping, relationships: as a sovereign, as an employer, and as a community. The consequence of framing it in these three relationship modes is the heart of another key proposition: that the coercive form of military law is better described as a set of “control features” – means and methods through which legal authority over servicemembers is exercised in each of the three relationship modes. Finally, this reframing of military justice for the first time suggests that – in light of these three relationship modes and their respective coercive control features – a legitimate military justice system makes substantive and procedural distinctions between “punishment,” “discipline,” and “censure,” and in so doing reflects not only criminal law principles but reveals a surprising affinity with contract, agency, and tort law.
Highly recommended. A pathbreaking article on an important topic. Download it while it's hot!
