Abstract

Military rule is common across the world, but this form of government is incompatible with the rule of law for various reasons. To prevent this, Western democracies such as the United States impose a strong norm of civilian supremacy over military officials. The most important role of this norm of “civilian control” in America today is to police the interventions of senior military officers’ influence in politics. While the standard position is that the military should be “apolitical,” this limitation does little work in helping senior officers understand permissible conduct, as nearly every issue confronting them will implicate matters of political judgment due, if nothing else, to matters of scale and resource tradeoffs. A more promising line to draw is between advocacy and advising, with the former seen as more violative of the civilian control norm. Such a distinction has been made by scholars before, but it is in need of a renewed defense and a deeper justification in political theory. I attempt to provide this argument, or at least demarcate its outlines, here.

In this Essay, I argue that military officers’ advocacy on political issues is presumptively illegitimate, but not always so. On the one hand, the military is an intra-governmental institution organized according to illiberal and undemocratic principles with the potential to unduly influence civilians; on the other hand, the military does possess technical expertise regarding warfighting, and it is the military that is specially affected by decisions regarding military policy. Balancing these considerations should result neither in a complete ban on military influence, nor in a totally permissive approach. As is appropriate when fleshing out a norm, the most we should do is identify relevant factors and considerations, and not impose bright line rules. Whether the officer is advocating or merely advising on a matter requiring normative political judgment is one such factor. Additionally, one should consider the content of the advocacy. If military advocacy advances liberal democratic principles, it gives less offense to the norm of civilian supremacy.

ISSN

1536-5077

Additional Information

Symposium Issue

Disciplines

Law | Law and Politics | Legal Ethics and Professional Responsibility | Military, War, and Peace | National Security Law

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