For most of American history, military legal institutions have largely escaped questions of legitimacy. The little attention they have received has primarily focused on the history, and sometimes competency, of courts-martial—the name given to military criminal trials. While an argument could be made that such studies indirectly address questions of legitimacy, the fact remains that military legal institutions operate in an environment in which their legitimacy is increasingly important and largely ignored.

In the past, the Supreme Court of the United States (“Court”) expressed deep concern over the competency of military trial courts. In one case, the Court held that “courts-martial as an institution are singularly inept in dealing with the nice subtleties of constitutional law.”[1] It has also historically noted that “military tribunals have not been and probably never can be constituted in such way that they can have the same kind of qualifications that the Constitution has deemed essential to fair trials of civilians in federal courts.”[2] Though, in decisions such as Noyd v. Bond[3] and Parker v. Levy,[4] the Court appeared to express implicit confidence in military appellate courts such as the United States Court of Appeals for the Armed Forces (“CAAF”) specifically, and perhaps by implication military appellate courts in general. But these institutions have largely escaped institutional scrutiny. By that I mean that individual decisions are analyzed, and perhaps a line of decisions are analyzed, but the institutions themselves often are not subject to analysis of whether they act as they ought to respective to their position in the military legal system and what that means for the military justice system as a whole.

Professor Fallon, Jr., in his 2005 article Legitimacy and the Constitution,[5] advanced three concepts of legitimacy – legal, sociological, and moral. ”That which is lawful is also legitimate.” Judicial rulings can be substantively legally legitimate, meaning they are correct or reasonable as a matter of law. They can also be authoritatively legitimate, meaning they are legally binding. From a sociological legitimacy perspective, institutions and decisions are legitimate if the “relevant public regards it as justified, appropriate, or otherwise deserving of support for reasons beyond fear of sanctions or mere hope for personal reward.” Some groups will view such institutions and decisions as legitimate, while others will not. Finally, legitimacy can be seen as morally justifiable or respect-worthy. There are two types of moral legitimacy. The first is a standard of justification all institutions should aspire to achieve, and minimum standards an institution must meet to deserve support or justify coercion of individuals.

One can disagree with a legal decision or institution, yet find it legally legitimate. One can also find an institution, or its decisions, legally legitimate, yet socially illegitimate because it or the process did not deserve respect or obedience. Regardless, they are usually authoritatively legitimate, meaning we will acquiesce to them even if we disagree they deserve respect. Finally, decisions and institutions are presumptively deemed morally legitimate. Claims of immoral legitimacy are generally accompanied by severe condemnations of abuses of power.

My recent research approaches the question of the sociological legitimacy of military legal institutions generally, and its appellate institutions specifically. By virtue of their position in the judicial hierarchy, and the millennia old fact that military personnel follow lawful orders, appellate decisions will be followed. But is there a danger that practitioners and the public will view individual decisions, or the institutions themselves, unjustified, inappropriate, or otherwise undeserving of the support they receive by virtue of this position? In other words, is there a danger of viewing these institutions as sociologically illegitimate?

I have initially chosen to approach this question by trying to understand how military appellate institutions are supposed to work and comparing the actual experience of military institutions to this standard. My hypothesis is that military legal institutions generally do not measure up to the standard of similarly situated civilian institutions. This risks the sociological legitimacy of military legal institutions. An appellate institution that does not act like it is supposed to risks being viewed as illegitimate.

A practitioner that views an intermediate court as illegitimate has a reduced incentive to adequately focus the issues on appeal for the court to resolve. Relatedly, the lower quality advocacy requires the intermediate court to do the advocate’s job, thus lessening its ability to perform the appropriate function of an intermediate court, which is error correction. Similarly, a practitioner that does not understand or respect the appropriate role of a court of last resort, thus viewing it as sociologically illegitimate, is likely to view such a court as simply existing in order to allow the practitioner to essentially re-litigate the issues raised to the intermediate court. In military parlance, such a court is treated as a higher headquarters rather than a judicial body. This practice precludes the court of last resort from acting as such a court, forcing it to also do the advocate’s job of clarifying why law declaration is needed or to engage in sort of error correction that must remain in the realm of intermediate courts.

Externally, sister courts that view military legal institutions as illegitimate are less likely to rely on military decisions as persuasive authority. Likewise, policymakers may wonder why taxpayer dollars should be spent on these institutions, or at least the current configuration of these institutions. Furthermore, parents and family members may discourage potential recruits from subjecting themselves to such a system, especially considering the consequences of a criminal conviction and a punitive discharge from the military.

These internal and external consequences are just my initial thoughts and are certainly not comprehensive. But the question of whether military legal institutions act as they are supposed to (and if not, why not) is central to the issue of the legitimacy of military institutions. And it does not take much effort to understand the academic and practical ramifications of finding or perceiving them as illegitimate.

————————

[1] O’Callahan v. Parker, 395 U.S. 258, 265 (1969).

[2] U.S. ex. rel. Toth v. Quarles, 350 U.S. 11, 17 (1955).

[3] Noyd v. Bond, 395 U.S. 683 (1969).

[4] Parker v. Levy, 417 U.S. 733 (1974).

[5] 118 Harv. L. Rev. 1787 (2005).