Abstract
Military law in the United States has always functioned as a system of jurisprudence independent of the civilian judiciary. It has its own body of substantive laws and procedures which has a different historical derivation than the civilian criminal law. The federal courts have always been reluctant to interfere with the court-martial system, as explained by the Supreme Court in 1953 in Burns v. Wilson: "Military law, like state law, is a jurisprudence which exists separate and apart from the law which governs in our federal judicial establishment. This Court has played no role in its development; we have exerted no supervisory power over the courts which enforce it . . . .” As a result, the court-martial system still differs from the civilian court system in such aspects as terminology and structure, as well as procedural and substantive law. Throughout the 19th century and well into the 20th, the court-martial system was still an autonomous legal system with its own distinct procedures and laws relatively unaffected by civilian notions of criminal law and judicial due process. Court-martial abuses and outrageously severe sentences led to the first public movement for the civilianization of military law. For the first time the question was asked why members of the military had to be subjected to a system which failed to afford them the constitutional and due process rights to which they would be entitled in civilian courts. This article will consider the growth and development of the civilianization movement from World War I to the present, and those aspects and structures which still remain as targets for reform in light of the conflicting arguments concerning further civilianization of military justice.
First Page
3
Recommended Citation
Edward F. Sherman,
The Civilianization of Military Law,
22
Me. L. Rev.
3
(1970).
Available at:
https://digitalcommons.mainelaw.maine.edu/mlr/vol22/iss1/4