The notion of difference can be important in law. It is often invoked as a reason that some activities or professions should not be subject to one or more of the normal principles of law. Arguments based on difference usually have two strands. The first strand is the suggestion that the qualities of an activity or profession are such to render it clearly different to others upon which the law has evolved. This strand makes a subtle appeal to the incremental nature of common law reasoning by suggesting that some of the fundamental tools of the common law, particularly the use of analogies to extend legal doctrine to new or novel areas, may not be appropriate. The second strand of any appeal to difference is usually the assertion that the application of normal legal principles to the area of difference would impede the proper functioning of that area. On this view, difference warrants different treatment.
The notion of difference seems especially apt for areas that appear separate and distinct from mainstream society. Prisons are one such example. For a long time prison officials argued that the courts should not exercise supervisory jurisdiction over the administrative decisions of prison officials because prisons could not function effectively if their managers were subject to external control. Such arguments implied that prisons were sufficiently different that the principles of judicial review developed in wider society might cause chaos if extended to them.16 That argument was attractive in part because prisons and prisoners were removed from mainstream society. Difference seems more obvious, and perhaps easier to accept, when it is accompanied by a level of separation.
The arguments of prison officials were ultimately rejected by the courts, but they provide a salutary reminder of the willingness of the courts to consider and sometimes accede to the notion of difference. More particularly, the reasons invoked by prison officials are strikingly similar to those of military officials. The reasons provided by prison officials included: that the urgent or difficult nature of many of the administrative decisions of prison managers were unsuited to review by the courts; that the internal disciplinary code of prison disciplinary offences provided a tailored system of justice that would be undermined if matters were handed to external authorities;17 the maintenance of control and security were integral to prison life and would be undermined by any form of external review;18 lastly, and perhaps most importantly, that only prison officials had the expertise necessary to oversee administrative and disciplinary decision-making within prisons.19 Such arguments implied that prisons possessed a separate system of law – an internal authority – that would be hampered by the introduction of external influences. These arguments were ultimately rejected when the courts accepted that their supervisory jurisdiction over prisons was a ‘beneficial and necessary jurisdiction’ that should not circumscribed for the essentially pragmatic reasons provided by prison officials.20
The extent to which the court will examine the decision of prison officials has increased sharply in recent years with the advent of the principle of legality. The principle of legality describes the more intense rights sensitive approach to judicial review that is evolving in many Commonwealth nations. In effect, the principle draws together many traditional common law principles and interpretive presumptions, to support a more intense standard of review.21 That standard increases in accordance to the perceived intrusion of decision-making upon basic rights.22 The rights that may be protected by this more intense approach to judicial review include the right of access to the courts,23 the right of access to an independent lawyer,24 the maintenance of legal privilege25 and, in some circumstances, the right of access to the media.26
The principle of legality is an important development for several reasons. First, the principle involves the rejection of the idea that some areas of decision-making can be isolated from the mainstream principles of law.27 On this view, arguments of difference will not survive the principle of legality. It is worth noting that most of these principles evolved in prison related cases. That suggests that the courts do not accept that the existence of a separate disciplinary code provides a sufficient reason for the courts to refrain from exercising their supervisory jurisdiction in an appropriate case. Another important aspect of the prison related cases is that the courts clearly no longer accept the arguments offered by prison officials about the maintenance of discipline and control without question. Courts will instead examine rules or decisions to determine themselves whether the rule or decision is an appropriate means of maintaining control.28 In addition, recent decisions have suggested those in a vulnerable position can expect particular protection.29 This possibility suggests that the structures of command and control may invite, rather than discourage, scrutiny by the courts. Reasoning of this nature has important implications for the military justice system because of the particularly important role played by notions of command and control in military life.
B Differing Approaches to the Special Status of the Military
The suggestion that military law and life is different in a material sense may have a profound impact on service members because it implies that service members do not, or should not, enjoy the normal civil rights of other citizens. Military commanders have long invoked arguments similar to those used by prison officials to justify both the maintenance of a separate military legal system and the exclusion of many elements of civilian law. Although the suggestion that the military is different is often made in general or rhetorical terms, several separate arguments underpin the notion that the military is different for reasons that should be recognised in law. First, the military performs a special function and may have to do so in a special manner. The defence of the land may require the deliberate killing of others. This grave duty might require people to act against normal human instinct. Members of the armed forces might never be called on to perform these grave tasks, but the potential they might need to do so is always present.30
A second and logically related point arises from the role of the chain of command as a tool to prepare and maintain the armed forces.31 The nature of military command can require service members to either accept orders that would be unacceptable or even unlawful by civilians in comparable positions,32 or to accept orders that would serve no purpose in civilian life.33 Command is essentially authority, the strength of which is diminished when subject to external constraints or influence.34 The most extreme version of these arguments can be deployed against any encroachment of civilian law into military life.35 Such an argument was famously made by General Sherman to a Committee of the American House of Representatives. General Sherman argued that:
An army is a collection of armed men obliged to obey one man. Every enactment, every change of rules which impairs the principle weakens the army, impairs its values and defeats the object of its existence.36
The Senate report was mindful of such sentiments when it acknowledged ‘that any interference – even parliamentary scrutiny – with the means of administering command through the military justice system is of great concern to the military’.37
Civilians usually view the command function as one that comes to the fore during combat, or other extreme situations, when service members might have to obey orders they neither understand nor like, but military personnel take a more holistic view of the command function.38 Military personnel argue that the chain of command and the broader cohesion between individual service members that the military hierarchy promotes may be vital to combat but they are forged in peacetime. According to this view, judicial deference to military command decisions is equally important to decisions taken during peacetime or combat because one depends on the other.39
A third reason that the military is argued to be different finds expression in the deference that courts often accord to the decisions of military officials. In many instances courts justify their deference to the military officials on the basis that they lack the personal or institutional competence to query the decision of military officials.40 When courts accord such deference they usually draw attention to the apparently unique nature of the military environment.41 It is interesting that Warren CJ, who was a staunch advocate of the strengthening of the constitutional rights of American citizens, accepted that military life provided the single significant exception to those views. ‘The most obvious reason’ for strong judicial deference to military officials, he explained, was that ‘courts are ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have’.42
A fourth, more subtle argument, arises from the character of military culture. The separation of much of military life from any civilian counterpart, and the distinct nature of many military tasks, each require and enable the development of a separate culture.43 The law is an important part of that culture because it can foster the imperatives of military life. The law can, for example, assist the command structure by the creation of offences prohibiting disobedience, insubordination and conduct that may affect the good order of the military. It can also foster the command structure and other aspects of military culture by demonstrating deference to the views of military officials when considering the complaints from service members about such issues.44
For a long time arguments about the different character of military life seemed a natural reflection of the social and political position of the armed forces. For a long part of English history, and in the early years of the American republic, members of the armed forces were viewed with intense suspicion by the civilian population.45 During these times, soldiers were often shunned by mainstream society and the military vocation viewed with disdain. It was, therefore, unsurprising, that these almost parallel societies had very little contact. When contact occurred, the courts were quick to stress their disinterest in military life.46
English courts long accepted that they possessed a nominal jurisdiction over military issues, but made it plain that this jurisdiction would be exercised in only the most exceptional case.47 They refused to intervene when courts martial proceedings had plainly been conducted without observance to procedural requirements if soldiers had any other means to appeal the punishment imposed by erroneously conducted proceedings.48 In some instances, the courts simply denied their jurisdiction to consider matters of military law and procedure.49
Many American scholars have argued that their Supreme Court maintained a similar doctrine of non-interference with military affairs to that applied by English courts.50 This doctrine of non-interference prevailed in the early part of American history, but has since been replaced by a more sophisticated doctrine of deference by the Supreme Court of America to constitutional and judicial review of military law issues. This doctrine of deference implies that the court retains the jurisdiction to intervene in appropriate cases, or even to discard entirely its deferential approach in favour of a more interventionist approach, though the jurisprudence of the Supreme Court over the last 50 years suggests that such changes are extremely unlikely. The court has, for example, accepted that armed forces are ‘by necessity a specialized society separate from civilian society’.51 The court explained that
military law … is a jurisprudence which exists separate and apart from the law which governs in or federal judicial establishment. This Court has played no role in its development; we have exerted no supervisory power over the courts which enforce it …52
This statement obscures the true character of the Supreme Court’s military law jurisprudence. There is no doubt that the court has not played as active a role in military life as it has in civilian life, but that lesser role reflects a conscious doctrinal choice on the part of the court. More particularly, the suggestion that the court has played no part in the evolution of military reflects the ongoing decision of the court to decline such a role. A clear illustration is the series of cases in which the Supreme Court has accepted that aspects of civilian life, such as basic rights and liberties, may be curtailed in their application to military personnel by reason of the separate and distinct nature of military life.53 The extent of that reasoning was illustrated in the leading case of Parker v Levy.54Levy was an army doctor convicted of various disciplinary offences arising from anti-war statements he made to new recruits. Levy questioned America’s involvement in the war and suggested that the recruits should not help the war effort. The statements were made when the Vietnam War was the single most divisive issue in American society and, had they been made by a civilian, would certainly had been protected by the constitutionally entrenched right of free speech. Levy argued that the same rights extended to a service member. The Supreme Court conceded that ‘members of the military community enjoy many of the same rights and bear many of the burdens as do members of the civilian community’ but cautioned that ‘within the military there is simply not the same autonomy as there is in the larger civilian community’.55 The court continued:
In the armed forces, some restrictions exist for reasons that have no counterpart in the civilian community. Disrespectful and contemptuous speech, even advocacy of violent changes, is tolerable in the civilian community, for it does not directly affect the capacity of the Government to discharge its responsibilities unless it both is directed to inciting imminent lawless action and is likely to produce such action. In military life, however, other considerations must be weighed. The armed forces depend on a command structure that at times must commit men to combat, not only harzarding their lives but ultimately involving the security of the Nation itself. Speech that is protected in the civil population may nonetheless undermine the effectiveness of response to command. If it does, it is constitutionally unprotected.56
The extent to which constitutional protections can be applied to, or withheld from, service members is a complex and contested issue in American law, but it remains clear that military personnel can be denied the full enjoyment of their constitutional rights by reason of their service status.57 Military personnel cannot, for example, circulate petitions or distribute publications without permission from superior officers.58 They cannot bring claims against the armed forces under the federal tort claims legislation that allows all other Americans to litigate against the federal government and its officials.59 This rule prevents military personnel from suing military professionals such as doctors and mental health professionals for malpractice.60 Military personnel may also be prevented suing fellow service members for allegedly discriminatory treatment on racial grounds experienced during military service.61
The approach of the Supreme Court to the enjoyment of constitutional rights by members of the armed forces reveals an obvious paradox. The court has on the one hand accepted that military life is sufficiently different to civilian life that the constitutional rights of services members should sometimes be curtailed. On the other hand, it has delivered a series of decisions that encourage and continue a significant level of separation between military and civilian life.