Military Justice, the Anglo-American Tradition

by

Chris Madsen

• LAST REVIEWED: 10 April 2020
• LAST MODIFIED: 06 February 2012
• DOI: 10.1093/obo/9780199791279-0045

Introduction

Armed forces rely upon good discipline and willing obedience to orders from service members to meet operational requirements and run the organization within a hierarchical structure of ranks and responsibilities. The system of rules and regulations that soldiers must follow is different from normal civilian life. To enforce expected behavior, most militaries maintain their own internal disciplinary codes for the administration of military justice; that is, justice peculiar to the armed forces and its members. The military is accorded certain authority and powers to try and to punish offending individuals. The most frequent means is summarily, by immediate superiors in a quasijudicial fashion, for service offenses less serious in nature; more formally, courts-martial composed of military judges, and, when necessary, panels of military members convene for civilian criminal and more serious military-related service offenses. Both forms are rooted in historical traditions and norms in respective armed forces, tempered by parallel developments in civilian jurisprudence, in which military justice generally lags. Today, decisions from courts-martial may be subject to appeal to higher courts on the basis of legality of finding and appropriateness of sentence, and in some countries harsher penalties, such as death, are rarely handed out or are expressly disallowed in the scale of punishments. It was not always so. Military justice, particularly in the field, closer to battle, could often be swift and arbitrary and have dear consequences for those individuals deemed to have contravened military authority and regulations. Military trials are part theater, to demonstrate military authority, and part enforcement of discipline and good behavior, for the sake of larger units and bodies of troops in a military context. Military justice encourages all members of armed forces to act in a predictable manner, in accordance with known rules, during the conduct of military operations and extends as well to those on the opposing side who might transgress accepted conventions and codes of conduct recognized by a group of nations engaged in armed conflict. War crimes, therefore, come under the purview of military justice when national military courts are involved. Military justice is still evolving as a serious field of legal jurisprudence in terms of legitimacy, mechanics of form, balancing of the unique needs and function of the armed forces in relation to society, and fairness to the individual, who, in most Western militaries at least, is a volunteer and chooses to serve the country.

General

Because each nation has different laws and traditions, it is hard to make generalizations about military justice applicable to all, though commonalities certainly exist. Each armed forces is unique in character, and even within those, individual service environments may have distinct attitudes and methods in regard to the maintenance of discipline. The historical trend has been toward greater uniformity across armed forces and closer mirroring of civilian criminal jurisprudence, in response to societal change. Reform of military law periodically becomes an issue when it falls too far behind or when some particular event happens that shakes public confidence in the military. Sherrill 1970 notes the practical nature of military justice as a separate form of legal jurisprudence that serves the particular needs of militaries in being operationally effective. Bishop 1974 describes the public pressure that can build when doubts are raised about militaries that have not performed according to expectations and the disappointment in the administration of military justice. Many writers are critical of military justice, premised either on the need for improvement or on the backwardness and supposed conservatism of military institutions. Other writers focus on the general aim and mechanics of military justice (for our purposes here, as practiced in the United States; other nations have similar how-to works). Davidson 1999 provides a basic guide to the practice of military criminal law geared toward a predominantly nonlegal audience, especially those either in or entering the military profession. Morris 2010 meets a similar need and, in focus and content, reflects the broader interpretation given to military justice today compared with earlier decades. Military justice, or rather military legality, touches upon many operational matters of interest to militaries, because the requirement for discipline and good behavior in the military context cannot be divorced from the core mandate of armed forces. Historical treatment of military justice is still catching up to this broader focus and to changes to military law itself. It is a very specialized field that requires some knowledge of the law and how it has been practiced in armed forces over time. In the early 21st century, good overviews focused on the history are yet to be written.

• Bishop, Joseph W., Jr. Justice under Fire: A Study of Military Law. New York: Charterhouse, 1974.

  NNNThe state of military justice in the US armed services post-Vietnam, by a knowledgeable military law writer.

• Davidson, Michael J. A Guide to Military Criminal Law. Annapolis, MD: Naval Institute, 1999.

  NNNA practical reference meant for the lay person, not practicing military lawyers. A good primer and introduction to the subject, from an American perspective.

• Morris, Lawrence J. Military Justice: A Guide to the Issues. Contemporary Military, Strategic, and Security Issues. Santa Barbara, CA: Praeger, 2010.

  NNNNotwithstanding the different subtitle on the cover (A Reference Handbook), this book provides a good general overview, in plain language, of the purpose of military justice in the American context, backed up with ample historical illustrations. The basics are well described in the middle chapters.

• Sherrill, Robert. Military Justice Is to Justice as Military Music Is to Music. New York: Harper and Row, 1970.

  NNNTitle borrows from the French prime minister Georges Clemenceau’s famous twist of phrase for describing the different character of military justice. This older book, though now dated in many regards, still offers background and some interesting general statements on military justice in a pleasing manner and without too many encumbering references.