N o one, however, doubts that soldiers are afraid42. There have been through time different views as to w hether it was acceptable for them to admit openly that they were, but fear, was clearly alw ays a glo o m y and tormenting omnipresence. Those few who qualify as genuine berserks aside, the d ominant passion in battle, the one each p arty expects its comrades and its opponents to be in tim ately involved with, is fear. We might see all heroic literature as a desperate attempt to keep it at bay.
One pays homage to it b y w o rk in g hard to deny it in oneself and to insult one’s opponent w ith it. A gam em non has images of Terror and Panic painted on the sides of his shield43. Before the battle of Gaugamala Alexander sacrificed to Fear.
Beow ulf drinks and boasts the night before seeking out Grendel to raise the moral stakes of failure. Even Achilles, if not quite fearful, doesn’t dare fight w ithou t armor as some of the N orse berserks w o u ld do. A nd A lexander again, w ho was surely a berserk in combat and feared no one in the host arrayed opposite him, nor the whole host for that matter, was still rather paranoid at times about suspected plots against his life from w ithin his ow n ranks. (There is an interesting idea to pursue here: the different issues raised for the demands on our courage b y our fear of enemies as opposed to our fear of friends. And this w o u ld h ard ly be solved by the fiat of declaring that our friends are those w h o m we do not fear.)
Com m anders have alw ays assumed the fearfulness of their soldiers. The sub
tlest observer of all, T hucydides, noticed the tendency of battle lines to extend by degrees to the right so that each arm y s lo w ly flanked its opponent’s left as it too moved to its right:
This is because fear makes every man w ant to do his best to find p rotection for his unarm ed side in the shield of the man next to him on the right, thin kin g that the more clo sely shields are locked together, the safer he w ill be44.
Exhortation speeches tr y to counter fear and reluctance w ith other passions: re
venge, perhaps, anger, confidence, bloodlust, and often, in extremis, desperation.
But no com mander trusted to mere words. The Persians w hipped their men to battle; m any a general used his cavalry to deter his fleeing troops more than to en
gage the enemy. One m ilitary theoretician, R aim ondo Montecuccoli, a general on the Imperial side in the T h irty Years War, spent the bulk of his treatise on how to delay just long enough the natural cowardice of one’s ow n troops to give enough time for the natural cowardice of the troops on the other side to assert itself. Fie lists some of the devices one m ay use to keep one’s men on the field: let the enemy cut off lines of retreat (!), forbid the inhabitants of nearby friendly cities from 42 To claim som eone is fearless or acts fearlessly is often meant o nly to register awe on the part of the speaker; no descriptive claim is being made about the acto r’s inner state. The her
oic action is understood to have been accom plished “as if” the actor w as w ith o u t fear. For a fuller treatm ent of the m otives of courage see: M iller, The M y ste ry of C ourage.
43 Iliad 11.35
44 T h u c y d i d e s , The P eloponnesian W ar 5.71.
Weak Legs: Misbehavior before the Enemy 33 admitting an y of the troops, dig trenches behind y o u r troops, burn bridges and ships, delegate certain men to shoot retreating soldiers45. W h en arraying the troops and forming their lines, Raim ondo advises embedding the cowards in the middle of the ranks behind the valorous ones w h o m they can follow at less risk to themselves and hemmed in b y the ranks behind them46.
One can also combat fear by instilling confidence, he notes. N o r does it matter that that confidence is ultim ately indistinguishable from those crude self-decep
tions that actually on occasion do succeed in bootstrapping us into performing better than we have a n y right to expect. “O ne m ay conceal or change the name of the enem y general if he happens to have a great reputation.” Confidence can also be acquired b y the indirection of stimulating contempt for the enem y b y
presenting naked prisoners to the soldier. O nce they have view ed the captives’ fragile, flabby, filthy, diseased, and infirm legs, as w ell as their h ard ly valiant arm s, then men w ill have no reason to be afraid, for they w ill have had the chance to see the kind of people w ith whom they m ust fight - nam ely, pusillan im o us, hum ble, and tearful individuals.
While cowards like me and a good portion of m y readers m ay find in this display additional reason to desert or flee rather than fight to the death R aim ondo thinks otherwise:
Indeed, the troops m ay come to fear the state of bondage them selves once they have p er
ceived the w retched fate of such afflicted, shackled, castigated, and em aciated persons, and they m ay conclude that it w ill be better to fall in battle rather than, draggin g on their lives u n happily, necessarily experience such contum ely and calam ity47.
O ur statute joins Raim ondo in adding to these in t e r r o r e m motivational exercises.
As we have seen, the statute authorizes the killing of cowards, slackers, craven de
fenders, jittery false alarmists, and supposes to dissuade these behaviors b y taking from them exactly w hat they sought to save: their lives. The statute testifies to the power of fear as a motivator: make them fear the court martial as much as they fear the enemy. This is p robably not the wisest strategy since it gives the soldier no rea
son, once the crunch is on, to prefer one outcome to the other; and it loses all its force should he fear the enem y more. Moreover, it is not uncom m on that the co w ard in battle faces the firing squad w ith d ignity and courage. Such was the case with Eddie Slovik, w ho spent his last moments tryin g to alleviate the anxiety of those who had to execute him. The fear that motivates cowardice m a y not on ly be the fear of death, but the inability to suffer D eath’s malicious teasing. Certain death, whether by suicide or firing squad, m ay be a kind of relief, a g ood-bye to all that.
The statute also hints of another motivating fear; it is the fear of being disgraced as a coward, the fear of shame. This is hardly a startling revelation. It is a common-45 R a i m o n d o M o n t e c u c c o l i , Sulle battaglie, in: T h o m a s M. B a r k e r (ed. and trans.), The M ili
tary Intellectual and Battle: R aim ondo M ontecuccoli and the T h irty Years W ar (A lb an y 1975) 82.
46 92.
47 133-134.
34 W illiam Ian Miller
place, the theme of honor itself w hich demands that fear of losing esteem and es- teem ability is worse than death. In this light the law can be seen not only as the scourge of those too shameless to be pro p erly motivated by their sense of shame, but also as a bit player in backing the norms that support the sense of shame. The law then, though m ostly negative in its means of motivating, also has a positive role to p la y in securing the behavior it desires.
To conclude, reconsider the statute. One m a y w onder at the impossible stan
dard it sets. The soldier is to do his duty, but the d u ty demanded seems almost to be beyond the call of duty. It is as if the law asks that soldiers not o n ly not be co w ards, but that they be courageous as a matter of routine. But then consider briefly paragraph 9, the one provision w e have left unnoticed until now. It governs, am ong other things, the obligation to rescue. In contrast to the heroic demands of the other provisions not to run, not to fail w illfu lly to advance, not to abandon sham efu lly a p o s i t i o n , w e m ove t o the world of p r u d e n c e : n o t t o “afford all p r a c t i c a b l e relief”. O f course, it doesn’t make sense to th row good bodies after bad u n less it is rational to do so. P resum ably one must balance the likelihood of saving the endangered person against the risk incurred to save him plus some value as
signed to the overall morale of fighting men who w ill fight harder for a polity that cares to rescue them. Still it was hard ly irrational for the men charged w ith saving Private R yan to question w h y eight of them should be risked to save someone whose only special claim to rescue was that he was the last survivor of four brothers48. Yet even practicable and rational rescue hard ly dispenses w ith the need for courage on the part of the rescuers.
It is precisely in the domain of rescue that tw entieth-century battle has made its particular addition to the styles of the heroic. In the Great W ar stretcher bearers get Victoria Crosses and in Vietnam medics get their Medals of Honor. In the C ivil War the same medal was more likely to be aw arded for rescuing the regi
m ent’s colors. Is it that the anti-glory, anti-honor discourse has finally become sufficiently suspect that w e prefer the heroism manifested in the greater love that lays dow n or risks its life for another as against those acts in w hich w e suspect that the motive m ay be glo ry itself? H eroic culture w o u ld consider g lo ry and honor as fine a motive as there could be; w e mistrust it precisely because it seems, in spite of its frequent rashness and irrationality, self-regarding and even self-interested, even though it must risk self-sacrifice. B y setting our heroic stories in narratives of rescue are we arguing for a kinder styled heroic: selfless, fearless, and iife-saving rather than life-destroying49? O r is it that we see the medic, the stretcher bearer, as needing no special physical attributes, that they indeed are everym an or indeed every w om an, that they hold for all of us the possib ility of grand action, even if we
48 Saving Private R yan (1998).
49 Rescue narratives o n ly begin to becom e com mon w hen m edical care rises to a level at w hich the w ounded and disabled are lik e ly to survive if saved.
Weak Legs: Misbehavior before the Enemy 35 do not have the body of Ajax or the spirit of Alexander or the ability to kill other human beings even when it is in our best interests to do so50?
But for most of us I w o u ld guess that w h at is most salient in this statute is not its substantive commitments so much as its formal attributes. For su rely the statute's most remarkable feature is its redundancy, which in a statute that seeks to punish capitally becomes a redundancy of both literal and figurative overkill. Yes, the statute excuses cases of w eak legs as long as the mind did not w illfu lly collude w ith the body to produce them and puts no extraordinary demands on the res
cuer, but it otherwise is quite clear about reserving the firing squad for cowardice motivated by fear and if that lets too m an y off the hook of culpability it specifi
cally includes the jittery alarmist, the person w ho turns tail for whatever moti
vation other than fear, the slack attacker, the person w ho casts a w a y his weapons, the q uiveringly craven defender, and the exuberant looter.
The statute received its present form in 1950 when it was cobbled together from the Articles of W ar and the Articles for the Governance of the N a v y into a U n i
form C ode of M ilita ry Justice. M ost of the clauses were a lready extant in the B rit
ish Articles of War of 1769 w h ich in turn w ere enacted virtually verbatim as the American Articles of W ar of 1776. In them are found the strictures against looting, shameful abandonment of a position, casting aw a y arms, and causing false alarms, but not the clauses against cowardice and failure to engage, that is, the w e ak legs provision. Those have their origin in the navy articles51. Weak legs turn out to be a certain kind of sea legs. N o t that the arm y couldn’t alw ays get the w eak-legged ad vancer under various general orders52, but the navy was concerned less w ith the legs of its sailors, at least until they m ight have to board the enem y ship, than with the will of a captain to m ake his ship advance. The sailors could be standing on the deck w ith legs quivering and still be advancing because the sailor was being borne by a higher will, w illy-nilly. The provision that I have been dealing w ith as a w eak- leg provision is historically not about legs at all, but about a naval captain s w e ak
ness of will.
One final observation about cobbling, statutory revision and uniform laws in this w orld of uniforms: it was the modern reform, the modern consolidation of the articles providing a uniform law for all the armed services that produced the archaic, casuistic, ad-hoc absurdist look of the present statute, not the remnants of pre-eighteenth century diction still lingering about in shameful abandonments and the casting a w a y of arms. It was the 1950 consolidators, that is the m odern
izers, w ho made this statute look more like a law of yEthelberht or Alfred than a law of the most advanced industrial pow er of the 1950-world.
H o r n e , The Price of G lo ry 181-83, w rites that the most deserving of the title of hero at Verdun w ere those w ho occupied the hum ble categories of runners, ration parties, and stretcher-bearers. R unners had to go it alone; their courage was so litary; stretcher bearers couldn’t dive for cover am idst the exploding shells. Stretcher bearers w ere g en erally recruited among the com pan y’s m usicians, or from its com plem ent of the m iserab ly unm artial.
51 An A ct for the better governm ent of the navy, 1800. Sec. 1, A rts. 4-6.
32 See W in throp , 623 n26.