Accession Number : ADA521044


Title :   Guardians of the Republic


Descriptive Note : Master's thesis


Corporate Author : JUDGE ADVOCATE GENERAL'S SCHOOL CHARLOTTESVILE VA


Personal Author(s) : Carrier, Christopher D


Full Text : https://apps.dtic.mil/dtic/tr/fulltext/u2/a521044.pdf


Report Date : Apr 2007


Pagination or Media Count : 82


Abstract : This paper addresses the question of whether it is just that the commanding officer who convenes a court-martial selects the voting members of the court-martial panel. Is is fundamentally fair that members of the armed forces are tried by a court composed of their military superiors rather than by a court of their peers? This practice seemingly conflicts with Western (and especially American) values like democracy and equality. How can we accept these values and defend such a practice? Are there values other than democracy and equality that support the practice, and how can we reconcile these other values with democracy and equality? Undemocratic panel composition cannot be justified by any amount of description or historical research because the question is philosophical, not legal or historical. In articulating why panel composition might be legitimate despite being undemocratic, we must consider the origins of authority, duty, and law. To pursue a meaningful answer to our question, the paper attempts an interdisciplinary approach of employing philosophical reasoning, with historical and literary illustration, in the evaluation of a legal practice. The second part of the introduction distinguishes philosophical reasoning from legal reasoning to clarify the paper's use of sources and authorities, which will differ from Anglo-American legal practice. The first substantive portion of the paper will offer an elementary model of natural law reasoning as a point of departure for thinking about law and justice. Although the term natural law has many implications, in this paper it stands for the modest common sense proposition that some rights and duties can be discerned, by operation of our reason, from our common humanity and our human relationships. Natural law reasoning has been extended far beyond this basic proposition -- but not in this paper, which concedes that disagreement is reasonable and inevitable in the application of this proposition.


Descriptors :   *PERSONNEL SELECTION , *DEMOCRACY , *PANEL(COMMITTEE) , *PHILOSOPHY , *REASONING , *HISTORY , *MILITARY COMMANDERS , THESES , MILITARY LAW , NATIONAL SECURITY , MILITARY FORCES(UNITED STATES)


Subject Categories : Sociology and Law
      Humanities and History
      Military Forces and Organizations


Distribution Statement : APPROVED FOR PUBLIC RELEASE