LET SLIP THE LAWS OF WAR! LEGALISM, LEGITIMACY, AND CIVIL-MILITARY RELATIONS

Abstract

Abstract: Over the last 50 years, the professional judgement of US military officers regarding the use of force has changed to increasingly incorporate legal reasoning in addition to traditional professional judgement based on expertise and professional military ethics. This change may be called military legalism. Military legalism developed in the US military after the Vietnam war because of the confluence of the contested legitimacy of US wars and the implementation of regimes of rule-based constraints on the use of force by policy-makers. When the legitimacy of a US conflict is contested, policy-makers are likely to implement rule-based regimes of constraint on the use of force in an effort to re-capture legitimacy (or at least have awareness of and the ability to influence military actions that would be likely to generate outrage and lead to further contests to legitimacy). Military officers operating under regimes of rule-based constraints are likely to adopt military legalism, in part because it satisfies the expectations of policy-makers who have formulated the rules, and in part because it satisfies institutional preferences (enhancing the military’s legitimacy and diffusing responsibility for failure). Counterintuitively, the legalistic interpretation of these rules may lessen, rather than strengthen constraints on the use of force. While military legalism is normatively neither good nor bad, legalistic reasoning has been used to justify morally deficient policies, and a reliance on legal reasoning may have unanticipated and unexamined effects on the norms of civil-military relations.