"A solder obeys illegal orders, thinking them lawful. When should we excuse his misconduct as based in reasonable error? How can courts convincingly convict the solder's superior officer when, after Nuremberg, criminal orders are expressed through winks and nods, hints and insinuations? Can our notions of the solder's "due obedience," designed for the Roman legionnaire, be brought into closer harmony with current understandings of military conflict in the contemporary world? Mark J. Osiel answers these questions in light of new learning about atrocity and combat cohesion, as well as changes in warfare and the nature of military conflict. Sources of atrocity are far more varied than current law assumes, and such variations display consistent patterns. The law now generally requires that solders resolve all doubts about the legality of a superior's order in favor of obedience. It excuses compliance with an illegal order unless the illegality - as with flagrant atrocities - would be immediately obvious to anyone. But these criteria are often in conflict and at odds with the law's underlying principles and policies. Combat and peace operations now depend more on tactical imagination, self-discipline, and loyalty to immediate comrades than on immediate, unreflective adherence to the letter of superiors' orders, backed by threat of formal punishment. The objective of military law is to encourage deliberative judgment. This can be done, Osiel suggests, in ways that enhance the accountability of our military forces, in both peace operations and more traditional conflicts, while maintaining their effectiveness. Osiel seeks to "civilianize" military law while building on solders' own internal ideals of professional virtuousness. He returns to the ancient ideal of martial honor, reinterpreting it in light of new conditions, arguing that it should be implemented through realistic training in which legal counsel plays an enlarged role rather than by threat of legal prosecuti"--Provided by publisher.
First published 1999 by Transaction Publishers.
Formatted Contents Note
chapter Introduction part Part I. OBEDIENCE TO SUPERIOR ORderS chapter 1 Virtues and Vices of Military Obedience chapter 2 The Law of Military Obedience chapter 3 The Uncertain Scope of chapter 4 Sparse and Unsettled Rules chapter 5 The Weightlessness of Moral Gravity chapter 6 Irregularity amidst Procedural Formality chapter 7 Atrocities chapter 8 Views of Atrocity in Legal Theory :Positivist, Naturalist and Postmodernist chapter 9 Individual Responsibility for Systemic Horrors? part Part II. AVERTING ATROCITY Roots of Atrocity and Law's Response chapter 10 Legal Norms and Social Practices in Military Life chapter 11 Cold Hearts and the Heat of Battle: Atrocity from Above or from Below? chapter 12 Permutations on Perversity: Atrocity by Connivance and Brutalization Social Bases of Military Obedience chapter 13 Why Do Men Fight? chapter 14 Morale and Morality: An Uneasy Relationship part Part III. FREEDOM AND CONSTRAINT IN MILITARY LIFE AND LAW chapter 15 Rules vs. Standards in Military Law chapter 16 Martial Courage as Moral Judgment chapter 17 Promoting Practical Judgment chapter 18 What Solders Know chapter 19 Misreading Orders Morality chapter 20 Disobdience as Creative chapter 21 Living with Lawyers chapter 22 Applying Applied Ethics or Where the Rubber Hits the Road.