University of Michigan Law School University of Michigan Law School Scholarship Repository Articles Faculty Scholarship 2000 Weak Legs: Misbehavior before the Enemy William I. Miller University of Michigan Law School, [email protected] Available at: https://repository.law.umich.edu/articles/696 Follow this and additional works at: https://repository.law.umich.edu/articles Part of the Legal History Commons, Legislation Commons, and the Military, War, and Peace Commons Recommended Citation Miller, William I. "Weak Legs: Misbehavior before the Enemy." Representations 70 (2000): 27-48. This Article is brought to you for free and open access by the Faculty Scholarship at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Articles by an authorized administrator of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. WILLIAM IAN MILLER Weak Legs: Misbehavior Before the Enemy STATUTES MAKE FOR APPALLINGLY TEDIOUS reading unless primi- tivelyshort and tothe point as, for example, this provision in theearly Kentish laws of IEthelberht(c. 600): "He who smashesa chinbone [ofanother] shall pay 20 shillings"or thisone fromKing AElfred (c. 890): "Ifanyone utters a publicslander, and itis provedagainst him, he shallmake no lighteramends than the carving out ofhis tongue."1 Yet on veryrare occasion a modernstatute can rivetour attention andwhen it does it seems to do so bymimicking some of the look and feel of legisla- tionenacted in lesslawyer-ridden times. Consider the statute presently set forth in theUnited States Code as partof the Uniform Code ofMilitary Justice: MISBEHAVIOR BEFORE THE ENEMY Anymember of the armed forces who before or in thepresence of the enemy- (1) runsaway; (2)shamefully abandons, surrenders, ordelivers up anycommand, unit, place, or mili- taryproperty which it is hisduty to defend; (3) throughdisobedience, neglect, or intentionalmisconduct endangers the safety of anysuch command, unit, place, or militaryproperty; (4) castsaway his arms or ammunition; (5) is guiltyof cowardly conduct; (6) quitshis place ofduty to plunderor pillage; (7) causesfalse alarms in anycommand, unit, or place undercontrol of the armed forces; (8)willfully fails to do hisutmost to encounter, engage, capture, or destroy any enemy troops,combatants, vessels, aircraft, or anyother thing, which it is hisduty so to encounter, engage,capture, or destroy; (9) doesnot afford all practicablerelief and assistanceto anytroops, combatants, ves- sels or aircraftof the armed forces. when engaged in battle; shallbe punishedby death or suchother punishment as a court-martialmay direct.2 Makingcowardice a capitaloffense strikes us as a kindof barbaricsurvival froma rougherage, a time,that is, when fewdoubted thatcourage rankedhigher than pityor prudence in the scale of virtues.And ifmany of us todaybelieve that capital punishmentcannot be justifiedeven forthe sadistictorturer, what a shock to discoverthat, as an officialmatter at least, Congress reservesit forthe person who cannot kill at all. Not to worry:although the statehas the power and rightto executethose who misbehavebefore the enemywe are too unsure of ourselves,or REPRESENTATIONS 70 * Spring2000 C HARVARD UNIVERSITY PRESS* 27 This content downloaded from 141.211.57.224 on Thu, 7 Nov 2013 16:24:41 PM All use subject to JSTOR Terms and Conditions maybe even too charitable,to enforcethe statutemaximally. We have done so but once since 1865 when PrivateEddie Slovik was executed by firingsquad "pour encouragerles autres" in the bleak HurtigenForest of 1945.3 Still,even if onlyby inertia,we have preservedthe option. Quite independentof the grimnessof its sanctions,the statuteprompts our attentionbecause of its strangelyabsurdist quality.Most of its provisionsseem merelyto restateeach other.What, forinstance, is runningaway (1) thatisn't also cowardlyconduct (5). And aren'tparagraphs 2 and 8, the one coveringthe shame- fulnessof cowardice on defense,the othergoverning slacking off on offense,really special cases ofcowardly conduct punished in 5? Paragraph 7 goes so faras to make jitterinessa capital offenseto theextent one's nerveslead one to overinterpretcauses foralarm, while paragraph 3, in contrast,authorizes putting the sleeping sentry beforethe firingsquad apparentlybecause he is not jitteryenough even to stay awake. There is also the statute'sstrange relation with fear. All law mustpay homage to fear,for if the law does not succeed in nurturingthe passions thatwill make it self-enforcing,such as a sense of dutyor a special reverencefor the law as law, it musthave recourseto fear,the passion thatunderwrites all coercivelaw fear of punishmentor the fearof the shame of being execratedas a law breaker.But this statuteplaces fearat itssubstantive core, for it is fear-impelledaction thatit mostly seeks to regulate. Only paragraph 6 the strictureagainst looting cares nothingabout fear, not even the fearthat you and your raping and pillaging comrades inspirein the enemies'civilian population as you quityour proper place to plunder.Like theother provisions,the antilootingprovision is devotedto maintainingthe delicatebalance offorces that keep armies behaving as armies ratherthan as crowds.At timesthat balance is as susceptibleto being undone by routingthe enemyas by being routed by him. Success can be as disorderingas failure.4The initialsuccess of the German offensiveon the westernfront in March 1918 was stopped,say some, as much by the German soldiersstumbling upon storesof wine and cognac as by Allied resis- tance. But theweight of these strictures shows that loss ofdiscipline and orderbred by greed, cruelty,lust, and othermanifestations of exultantriot is of significantly less concernthan the loss of disciplinebred by fear,slackness, and failureof nerve. Narrow self-interestin the exuberantlyacquisitive style of the looteris just not as worrisometo an armyas narrowself-interest in thelife-preserving style of the cow- ard. Fearfulness,not lustor gluttony,count as a soldier'sfirst sin. There lurkin thisstrange statute various attempts at a theoryof the moral and legal economyof courage,cowardice, duty, and fearin the contextof the demands a polity,in thiscase theAmerican polity, makes upon itscombat soldiers. The expo- sitionthat follows, structured mostly as a glosson thevarious provisions of the stat- ute, seeks to reveal the featuresof thateconomy. 28 REPRESENTATIONS This content downloaded from 141.211.57.224 on Thu, 7 Nov 2013 16:24:41 PM All use subject to JSTOR Terms and Conditions Running Away Isn't runningaway, punished in paragraph 1, runninglike hell forthe rear,precisely how we visualize the purestcowardice (punished in paragraph 5), just as castingaway arms (punished in paragraph 4) so you could run away faster was how Plato and Aristotleenvisioned it?5 In fact,the very vividness of the image of runningaway has led some defendantsto preferbeing chargedwith the vaguer and moreabstract cowardice under paragraph 5, consideringit less prejudicial than an accusationof running away.6 But statutoryprovisions that to thenormal eyelook duplicativewill inspireinterpreters to inventdifferentiating glosses, just as language itself,though needing all kinds of structuraland particularredundancies, never quite allows a perfectsynonym. So paragraph 5 cowardice was read to require a showingof fear as a necessaryelement of the offense.7Cowardice had to be moti- vatedby fear or itwas not cowardice,but running away, it was decided,did notneed to be so motivated.This strikesnormal people, nonlawyers,that is, as somewhat perverse.Why else would anyoneflee battle, run away,if not in panic or terroror out of simplerfears of death and mayhem? The militaryjudges struggledto give runningaway a meaning thatwould dis- tinguishit fromcowardice. They wantedto avoid definingrunning away so expan- sivelyas to undo the mercyimplicit in differentlydefined and lesseroffenses such as "absent withoutleave," those acts of desertionthat did not take place in the presence of the enemy.8One militarycourt became the finalword on the subject withthis desperate attempt: This term[runs away] mustconnote some form of fleeing from an ensuingor impending battle.... itappears that to limit the phrase to flight from fear or cowardice is toorestricted. It wouldappear to be morein keepingwith the offense, ifan intentto avoidcombat, with itsattending hazards and dangersis consideredas an essentialpart of running away.9 'An intentto avoid combat" seemsto be a catchallfor whatever motives other than fear mightprompt a soldierto run away.What preciselymight these motivesbe? One could, I suppose,run away out oftreachery, or out ofthe most calculating thin- lipped prudence,10or out oflove, as the humane Abner Small supposes,in the case of the desertershe was asked to round up on home leave back in Maine in 1863: "My sympathies,I admit,were oftenmoved fordeserters whose love offamily was apparentlystronger than theirlove of country.They weren'trunning away; they were merelygoing home."II But the narrativesuggested by each one of these motivesseems incomplete withoutcomplementing them with fear of death. The mostpsychologically plausi- ble motivefor running away thatdispenses with such fearis fleeingin disgust,sick at being stuckin a situationwhere so much is asked of you and so littlegiven you in return;not fear,but the feelingof being ripped off,revolted by unfairnessand Weak Legs: MisbehaviorBefore the Enemy 29 This content downloaded