Hi wm, good to see you aboard in this discussion
since I am not going to be doing legal philosophy. My focus is as a legal practitioner, where I have to look at what the "law" is and how it will be applied today, and a certain amount of prophecy about the future (perhaps a decade or so out).
As one with a practitioner's focus, I will definitely not satisfy those who actually believe in Wilf's signature line - without his big grin at the end:
Quote:
"I don't care if this works in practice. I want to see it work in theory!"
Therefore, I avoid getting involved in legal philosophical arguments (as a philosopher would voice them).
If wm and bob underwood join in such a discussion, much of it will be over my head. As you can see from Jurisprudence - Wiki, there are many different takes. Most of them are quite theoretical and are frankly outliers to the legal practitioner.
The closest "school" fitting the practitioner is probably that of Legal realism - Wiki:
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The essential tenet of legal realism is that all law is made by human beings and is therefore subject to human foibles, frailties and imperfections.
In accord with that soundbite, legal realists and legal practitioners are an unruly bunch of cats, whose "philosophies" and "logic systems" tend to be more or less "fuzzy" (see Fuzzy Logic - Wiki).
That description fits the granddaddy tiger of US realism, Oliver Wendell Holmes, Jr, whose best soundbite was this one, tailored especially for Ken:
Quote:
Holmes, in his last years, was walking down Pennsylvania Avenue with a friend, when a pretty girl passed. Holmes turned to look after her. Having done so, he sighed and said to his friend, "Ah, George, what wouldn't I give to be seventy-five again?" Isaac Asimov, (writing as "Dr. A"), The Sensuous Dirty Old Man (1971).
Of course, Holmes was very much shaped by his brief, but bloody military career as a Lt. and Cpt. in the 20th Massachusetts, Oliver Wendell Holmes, Jr., "The Magnificent Yankee". That experience lay behind another of his soundbites (more pertinent to the present thread):
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This responsibility will not be found only in documents that no one contests or denies. It will be found in considerations of a political or social nature. It will be found, most of all in the character of men.
In that, Holmes was cognizant of the Heroes (e.g., as described by Brian Linn), but also the Anti-Heroes.
From the legal practitioner's standpoint, the most important Holmesian soundbites are these:
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The life of the law has not been logic; it has been experience.
Quote:
General propositions do not decide concrete cases.
Those satisfy me; probably will satisfy Wilf; but probably will not satisfy he or she who demands: "I don't care if this works in practice. I want to see it work in theory!"
Adding to this same train of thought are some longer Holmesianisms:
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...men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of the infinite. The common law is not a brooding omnipresence in the sky.
Quote:
The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law.
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The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.
I don't want this to turn into a three-sided debate; but I felt obligated to the readers who are not into legal philosophy (jurisprudence) to point out that legal practice is a very different breed of cat - to whom, the theorists are generally very much outliers.
None the less, I'm looking forward to a debate between philosophers about Just Law Theory, duties and rights (or should it be rights and duties ?). I leave one last Holmesianism for our philosophers:
Quote:
Any two philosophers can tell each other all they know in two hours.
Cheers and regards
Mike
Who is a Member of the Profession of Arms
All - - - Great discussion to this point!
I'd like to try and toss another topic out there on an important aspect to our Profession that I believe all of you will have an opinion on:
Who is a member of the Profession of Arms?
As we go forward and examine ourselves as a profession, as described and intended by the Army Chief of staff below in the quotation below, we need to ensure that ALL members of the profession are included in any such discussion, analysis, and eventual follow-on recommendations. To do so ensures a complete and thorough effort.
But I ask all of you: In your opinions, who really makes up our Profession of Arms?
Just those who wear the uniform today? Or some subset of those serving today? Only combat branches? What about support branches?
Are Dept of Army civilians included in the profession? Army Retirees? Or for that matter, anyone who has served honorably?
Are Army civilians serving in combat theaters members of the profession?
And are spouses to be considered as well?
Where are the boundaries?
Quote from initial posting: " . . . The Army Chief of Staff acknowledges the importance of this to our profession’s future: “ . . . it is essential that we take a hard look at ourselves and ensure the we fully understand what we have been through, how we have changed and how we must adapt to succeed in an era of persistent conflict. I encourage all leaders to think about how to accomplish this. It is essential to the continued effectiveness of our profession and to ensure that our young leaders are prepared for success in the decade.”
Canadian Perspective on PofA
Civil-Military relations as part of the profession
I think a part of this discussion goes back to LTC Milburn's article "Breaking Ranks". His central theme is; “There are circumstances under which a military officer is not only justified but also obligated to disobey a legal order.” I believe part of this discussion has to address civil-military relations. How do we as professionals give our best advice, provide a wide range of reasonable options and still remain non-politicized?
If we embrace LTC Milburn's concept of moral justification for disobeying then I would suggest that we are setting ourselves up dysfunction and incoherence not only with our civilian bosses but in our own ranks as well.
What is troubling to me is the murky concept of morality that is laid out in the article. It appears to me that each officer’s moral code would allow him or her to openly disobey a legal authority at the first hint of disagreement. If a military officer can cite morality as a reason to disregard legal orders why can’t the officer also cite the authorities’ popularity or political affiliation? Bringing personal morality into the equation erodes the military concepts of discipline and support to civil authorities.
Richard Kohn hits the nail on the head by repudiating the argument; “The responsibility officers have is to execute the lawful orders of their superiors, not to weigh each one against their own system of morality or their own calculation about whether they are good for the country, the military, or their subordinates.” I think Mr. Kohn is exactly right.
Officers are responsible to execute the legal orders of civilian authorities. More dangerously, bestowing that kind of moral independence upon officers will simply serve to be corrosive to civil-military relations and erode the confidence and trust of the American people. Furthermore, the moral exceptionalism that is advanced in the article would only create a chasm between the military and society that it has sworn to serve.
I don't want to replow the field with an old article but I think it is relevant to the ongoing dialogue.
Just my two cents.
The Milburn piece and the notion of "moral autonomy"
I'm glad Jason brought up the Milburn piece. I think there are some interesting points in his article and it is definitely a useful piece to generate discussion on civil-military relations.
Where I disagree with Milburn is on his notion that military officers have some sort of "moral autonomy" because of our position. While I think we all have our own individual moral code that we adhere to, I don't think military officers as a whole have a higher or "better" moral autonomy by which we should judge our civilian masters. To me that smacks of military elitism and exacerbates civil-military tensions.
I also agree with one of the critiques made by Dr. Kohn (I believe) on Milburn's piece about the false dichotomy Milburn lays out of "either acceptance of responsibility or wholehearted disobedience." I personally don't like the use of the term disobedience. I think the piece is much more palatable if you replace disobedience with dissent. It is always an officer's right to dissent if an order is illegal, immoral, or unethical. That individual should give voice to their dissent and if they feel strongly enough, take actions commensurate with the strength of their convictions. However, the use of the term wholehearted disobedience, at least to me, implies some type of active subversion.
Lastly, I disagree with Milburn's piece when he states, "military leaders are committed to challenge their civilian masters if the policy appears to be unconstitutional, immoral, or otherwise detrimental to the institution." My problem is with that last clause "otherwise detrimental to the institution." To me that is far too broad and if every officer in the Army must evaluate every order on whether or not he or she thinks it will be detrimental to the institution (according to whose judgment or standards by the way), we would never accomplish a mission.
On this not, if you haven’t had the chance, I highly recommend the following article:
http://www.csmonitor.com/USA/Militar...tryker-brigade
I won't comment on the speculation of the article that his personal doctrinal views possibly cultivated a dangeorous command climate that resulted in higher casualties and the killing of civilians. I wasn't there and I don't think you can comment on that unless you had the experience of being in the unit.
However, reading this article made me think of the "detrimental to the institution" line. Did this CDR view the COIN doctrine and ISAF guidance as "detrimental to the institution" and therefore blow it off in favor of his own personal doctrinal ideas? And is that OK? What does it mean for our profession when we have a BDE CDR in combat that apparently blew off higher's guidance to focus on what he deemed “right” or important: counter-guerilla and guerilla hunter killer teams. If you believe Milburn’s argument, I guess this is OK? I'm not so sure.
One of the better histories of the battle of Stalingrad
in its concluding paragraphs contained the thought that failure of the Germans was due in large part to the fact that "...Generals became more concerned with protecting the institution than they did with their mission" or words to that effect. I read that book so many years ago I do not even recall the title but I recall that the author was German and had been there. Regardless, I readily recall the comment to this day. That is principally because in 45 years in and with the US Army and Marines, I saw evidence on a frequent basis over the last 20 or so years of that time that in both organizations the syndrome was and is alive and well .
I have always believed that if an institution was reasonably competent and did, as an organization, what was right then there would be no need for it to 'protected.' Nothing over the past couple of decades has caused me to change my mind on that score.
Long way of agreeing with ChipColbert. Morality is an individual construct so everyone's entitled to their own. Organizations cannot have morals though their leaders can insure they operate in accordance with group morals that mesh with those of the society in which that organization lives or operates. Sometimes the moral construct of an organization and the nation or that of some individuals and the organization may differ.
In the case of an Armed Force, the organizational moral construct should never differ greatly in substance from that of the nation to which the force belongs. Individuals in that force may be at variance on some aspects -- and if those differences are significant, then the individual should work for change or leave. At no point should the protection of the institution be an issue for the institution per se or for individuals in that institution. IMO that particularly applies to the more senior people whose concern should be insuring the organization hews to the national norms and improving the institution, not protecting it.
Yes, I realize self protection is a base trait of all bureaucracies.
I think that's my point...