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. 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 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’, and the general public’s understanding of the American model of military criminal law in several novel ways. It places the unquestionable 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 the inharmonious values of military effectiveness, the fair administration of justice, and the vague but cliched “discipline.” It frames military justice at the most abstract of levels, for the first time, as a “strategy.” Along the way, the theory is constructed out of nine propositions, some of which are presented with a test suite of possible questions we might ask about the current system to validate that proposition’s correspondence to practical reality.
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. 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.” Doing so reflects not only criminal law principles but reveals a surprising affinity with contract, agency, and tort law.
Sovereign, Employer, Community: A Theory of Military Justice Beyond Discipline, Obedience, and Efficiency,
107 Marq. L. Rev. 399
Available at: https://scholarship.law.marquette.edu/mulr/vol107/iss2/5