Statutes make for appallingly tedious reading unless prim itively short and to the point as, for example, this provision in the early Kentish laws of /Ethelberht (c. 600): “H e w ho smashes a chin bone [of another] shall p a y 20 shillings” or this one from King Alfred (c. 890): “If anyone utters a public slander, and it is proved against him, he shall make no lighter amends than the carving out of his tongue.” 1 Yet on very rare occasion a modern statute can rivet our attention and when it does it seems to do so by mim icking some of the look and feel of legislation enacted in less law yer-ridden times. Consider the statute presently codified in the United States C ode as part of the U niform C ode of M ilita ry Justice:
Misbehavior before the enemy
A n y member of the armed forces who before or in the presence of the enemy:
( ! ) runs aw ay;
(2) shamefully abandons, surrenders, or delivers up an y command, unit, place, or military property w h ich it is his d u ty to defend;
(3) through disobedience, neglect, or intentional misconduct endangers the safety of an y such command, unit, place, or m ilitary property;
(4) casts a w a y his arms or ammunition;
(5) is guilty of c o w a rd ly conduct;
(6) quits his place of d u ty to plunder or pillage;
(7) causes false alarms in an y command, unit, or place under control of the armed forces;
(8) w illfully fails to do his utmost to encounter, engage, capture, or destroy any enemy troops, combatants, vessels, aircraft, or an y other thing, w hich it is his duty so to encounter, engage, capture, or destroy;
(9) does not afford all practicable relief and assistance to an y troops, combatants, vessels or aircraft of the armed forces ... when engaged in battle;
shall be punished by death or such other punishment as a court-martial m ay direct2.
Spccial thanks to L a rry Kramer. - P ortions of this essay are included in 'William J a n Miller, I he M ystery of C ourage (C am bridge, M A 2000); and an earlier version appeared in: R ep re
sentations 70 (2000) 27^-48,
1 / E thelberht cap. 50; A l f r e d cap. 32. The provisions are most conveniently accessible in: E L.
A t t e n b o r o u g h (ed.), The L aw s of the E arliest English Kings (C am brid ge 1922) 11, 77. I have altered the diction of A tten b orou gh ’s translation.
2 10 U SC S @ 899 (1997) A rt. 99.
16 William Ian Miller
M ak in g cowardice a capital offense strikes us as a kind of barbaric survival from a rougher age, a time, that is, when few doubted that courage ranked higher than pitv or prudence in the scale of virtues. And if many of us to day believe that capi
tal punishment cannot be justified even for the sadistic torturer, w hat a shock to discover that, as an official matter at least, Congress reserves it for the person who cannot kill at all. N ot to w o rry : although the state has the power and right to execute those w ho misbehave before the enemy we are too unsure of ourselves, or m aybe even too charitable, to enforce the statute maximally. We have done so but once since 1865 when Private Eddie Slovik was executed by firing squad ‘pour en- courager les autres’ in the bleak Eliirtigen Forest of 19453. Still, even if only by inertia, we have preserved the option.
Quite independent of the grimness of its sanctions, the statute prompts our attention because of its strangely absurdist quality. M ost of its provisions seem m erely to restate each other. What, for instance, is running a w a y (1) that isn ’t also co w ard ly conduct (5). A nd aren’t paragraphs 2 and 8, the one covering the shame
fulness of cowardice on defense, the other governing slacking off on offense, really special cases of c o w a rd ly conduct punished in 5? Paragraph 7 goes so far as to make jitteriness a capital offense to the extent on e’s nerves lead one to overin
terpret causes for alarm, w hile paragraph 3, in contrast, authorizes putting the sleeping sentry before the firing squad apparently because he is not jitte ry enough even to stay awake.
There is also the statute’s strange relation with fear. A ll law must p a y homage to fear for if the law does not succeed in nurturing the passions that will make it self- enforcing, such as a sense of du ty or a special reverence for the law as law, it must have recourse to fear, the passion that underwrites all coercive law - fear of p u n ishment or the fear of the shame of being execrated as a law breaker. But this stat
ute places fear at its substantive core, for it is fear-impelled action that it m ostly seeks to regulate.
O n ly paragraph 6 - the stricture against looting - cares nothing about fear, not even the fear that you and yo u r raping and pillaging comrades inspire in the en
em ies’ civilian population as you quit yo u r proper place to plunder. Like the other provisions the anti-looting provision is devoted to maintaining the delicate bal
ance of forces that keep armies behaving as armies rather than as crowds. A t times that balance is as susceptible to being undone b y routing the enem y as by being routed by him. Success can be as disordering as failure4. The initial success of the German offensive on the western front in M arch 1918 was stopped, say some, as much by the German soldiers stumbling upon stores of wine and cognac as by A l lied resistance. But the weight of these strictures shows that loss of discipline and order bred b y greed, cruelty, lust, and other manifestations of exultant riot is of significantly less concern than the loss of discipline bred b y fear, slackness, and 3 See William B r a d f o r d H u i e , The Execution of Private Slo vik (N ew Y ork 1954).
4 O n crow ds and arm ies see J o h n K e e g a n ’s discussion in: The Face of Battle (N ew York 1976) 174-176.
Weak Legs: Misbehavior before the Enem y 17 failure of nerve. N a rro w self-interest in the exuberantly acquisitive style of the looter is just not as w orrisom e to an arm y as narrow self-interest in the life-pre
serving style of the coward. Fearfulness, not lust or gluttony, count as a soldier’s first sin.
There lurk in this strange statute various attempts at a theory of the moral and legal econom y of courage, cowardice, d u ty and fear in the context of the demands a polity, in this case the Am erican polity, makes upon its combat soldiers. The exposition that follows, structured m ostly as a gloss on the various provisions of the statute, seeks to reveal the features of that economy.
R unnin g A w ay
Isn’t running away, punished in paragraph 1, running like hell for the rear, pre
cisely how we visualize the purest cowardice (punished in paragraph 5), just as casting a w a y arms (punished in paragraph 4) so you could run a w a y faster was how Plato and Aristotle envisioned it5? In fact, the v ery vividness of the image of running a w a y has led some defendants to prefer being charged w ith the vaguer and more abstract cowardice under paragraph 5 considering it less prejudicial than an accusation of running a w a y 6. But statutory provisions that to the normal eye look duplicative w ill inspire interpreters to invent differentiating glosses, just as language itself, though needing all kinds of structural and particular reduncfancies, never quite allows a perfect syno n ym . So paragraph 5 - cowardice - was read to require a show ing of fear as a necessary element of the offense7. C o w ardice had to be motivated b y fear or it was not cowardice, but running away, it was decided, did not need to be so motivated. This strikes normal people, non-law yers, that is, as somewhat perverse. W h y else w o u ld anyone flee battle, run away, if not in panic, terror, or out of simpler fears of death and m ayhem ?
The m ilitary judges struggled to give running a w a y a meaning that w o u ld dis
tinguish it from cowardice. T h ey w anted to avoid defining running a w a y so ex
pansively as to undo the m ercy implicit in differently defined and lesser offenses such as “absent withou t leave”8, those acts of desertion that did not take place in the presence of the enemy. One m ilitary court became the final w ord on the sub
ject with this desperate attempt:
This term [runs aw ay] m ust connote some form of fleeing from an ensuing or im pending battle ... [Ijt appears that to lim it the phrase to flight from fear or cow ardice is too restricted.
3 See A r i s t o t l e ’s Ethics 5.2; 5.9. R hetoric 2.6; P la t o , L aw s, xii.944e. See also P o l y b i u s on capi
tal offenses in Rom an arm y, H istories 6.37-38, in: P o l y b i u s , The R ise of the Rom an Empire, trans. I a n S c o t t - K i l v e r t (H arm ondsw orth 1979).
4 See U nited States v G ross 17 (1968) U S C M A 610; 38 C M R 408.
7 U nited States v Sm ith (1953) 3 U S C M A 25, 11 C M R 25; U nited States v Brow n (1953) 3 U SC M A 98, 11 C M R 98; U n ited States v M cC orm ick (1953) 3 U S C M A 361, 12 C M R 117.
8 See 10 U SC S §885 (desertion); 10 U SC S §886 (A W O L).
18 William Ian Miller
It w ould appear to be m ore in keeping w ith the offense, if an intent to avoid com bat, w ith its attending hazards and dangers is considered as an essential part of running aw ay9.
“A n intent to avoid com bat” seems to be a catchall for whatever motives other than fear might prom pt a soldier to run away. W h at precisely might these motives be? One could, I suppose, run a w a y out of treachery, or out of the most calculat
ing thin-lipped p ru d en ce10, or out of love as the humane Abner Small supposes for deserters he was asked to round up on home leave back in M ain e in 1863: “M y sympathies, I admit, w ere often moved for deserters w hose love of farmly was apparently stronger than their love of country. T h ey w e re n ’t running aw ay; they were m erely going hom e.” 11
But the narrative suggested b y each one of these motives seems incomplete withou t complementing them w ith fear of death. The most p sychologically p lau sible motive for running a w a y that dispenses w ith such fear is fleeing in disgust, sick at being stuck in a situation where so much is asked of you and so little given you in return; not fear, but the feeling of being ripped off, revolted b y unfairness and injustice. But such a person does not run aw ay; the image is wrong, even the notion of fleeing misrepresents the insolence, even the fearlessness, with which he walks, sullenly saunters, but m anifestly does not r u n away, while m utterin g “fuck th is”.
But the court doesn’t offer us a picture of sullen w ithdraw al. Still desperate they turn to W inth ro p ’s M i l i t a r y L a w a n d P r e c e d e n t s w here he too evinces bafflement, and in good legal form provides auth ority for his bafflement by citing an older writer who was discussing something not precisely on point:
R U N N IN G AWAY. This is m erely a form of m isbehavior before the enem y, and the words
‘runs a w a y ’ might w ell be om itted from the A rticle as surplusage. Barker, an old w riter cited b y Sam uel, says of this offense: - ‘But here it is to be noted that of fleeing there be two sorts;
the one proceeding of a sudden and unlooked for terror, w hich is least blam eable; the other is voluntary, and, as it w ere, a determ inate intention to give place unto the enem y - a fault exceeding foule and not excusab le12.
9 U nited States v Sperland (1952) 5 C M R 89.
10 R unning aw ay is not alw ays prudent. You are a much easier target to the enem y w hen you show yo u r back because he needs not w o rry about you firing back. And w hen w hole arm ies turn and run that is when they are butchered b y the pursuing victors. M ilita ry strategists have often tried to im press their troops w ith the superior ratio n ality of facing the enem y and fighting rather than fleeing in panic; see K e e g a n ’s discussion of A rdant du Picq in The Face of Battle 70. O f course, an y gam e theoretician w ould note that it is still rational to be the first to flee, that is, to flee w hen all yo u r com rades are still firing at the enem y thereb y covering yo u r back.
11 A b n e r S m a ll, The R oad to Richm ond: The C iv il W ar M em oirs of M ajo r A bner R. Small, H a r o l d A d a m s S m a l l (ed.), (B erkeley 1939) 112.
12 W illiam W in th r o p , M ilita ry L aw and Precedents (W ashington -1920) 624, cited in Sper
land, at 92. W inthrop is discussing the provisions as they appear in the a rm y ’s A rticles of W ar w hich provisions w ere later codified in the statute being glossed in the Sperland case and in this essay.
Weak Legs: Misbehavior before the Enemy 19 The court citing W inthrop citing Samuel (early nineteenth century) citing Barker (late sixteenth century) distinguishes tw o types of fleeing, the first “proceeding of a sudden and unlooked for te rror” and the second of “a determinate in tentio n ”13.
Barker considers this first kind of flight the “least blam eable”, reminding us that, in normal life, w e sometimes are w illin g to excuse one w h o commits his offense in a panic. We m ay even be tempted to say that panic-stricken conduct is in volun
tary, something for which w e cannot hold the actor accountable. To be sure, sud
denness hardly precludes volition (when I flee in panic I am still voluntarily q u it
ting the field), but Barker is right to notice that our ordinary ideas about culp abil
ity distinguish between the offender w ho coldly calculates, the picture of self
interested prudence itself, and the one who offends while in the grip of terror or some other strong p assion 14. The distinction Barker is m aking is also lik e ly to cap
ture the difference in cu lpability of the first man to flee from those who follow in fected b y his contagion. But the statute does nothing to incorporate Barker's dis
tinction; the statute catches in its lethal sweep the cold calculator and the panicked wreck, whether under paragraph 1 or 5.
Panic, one suspects, is treated more leniently by Barker because it is impractical to do otherwise, not just as a concession to ideas of m e n s r e a or culpability. Panic usually involves large numbers in headlong flight, and however harmful its conse
quences it hard ly makes sense to hand over the entire arm y to the firing squad. Let them make amends b y regrouping and fighting better another day. B ark er’s dis
tinction between “exceeding foule” flight of “determinate intention” and less blam ew orthy panicked flight follows im m ediately upon his discussion of R om an decimation, the practice of killin g b y lot one in ten of a failed legion. This associ
ation suggests that decimation might be suitable in the case of generalized panic- propelled fleeing, but that fully individualized punishment, rated at 1.0 probabil
ity rather than at the 0.1 discounted group rate, be meted out to the voluntary calculator of his o w n im mediate best interests.
A prosecution brought under paragraph 5, co w ard ly conduct, must show, as- noted, that the conduct was motivated b y fear. This is one of the few areas in the law where the decision-m aker is asked actually to find that the person was m oti
vated by a particular passion, not just to find that the person was in the s w a y of some generalized powerful passion. H o w do w e prove that fear was the motive?
Do certain bo d ily clues betray him? Was he pale, did he tremble, sweat, shed tears, urinate or defecate in his pants? Even if so, such bodily indicators are ambiguous.
Lleat too makes us sweat, while joy, grief, and the cold m ay make us shed tears.
The most lethal saga hero of ancient Iceland grew pale in anger, not in fear. M o n taigne observes that both “extreme cowardice and extreme bravery disturb the stomach and are laxative”. Even the nickname “The T rembler”, he notes, given as
13 See E. S a m u e l, An H isto rical A ccount of the British A rm y and of the Law M ilita ry (L o n don 1816) 599-601; R o b e r t B ark er, H on o r M ilita ry and C ivill (London 1602) 1.16.
14 See too H o b b e s , Leviathan 2.21, regard ing “ men of fem inine cou rage”: “W hen A rm ies fight, there is on one side, or both, a running aw ay; yet when they do it not out of treachery, but fear, they are not esteem ed to do it un justly, but dish on o rab ly.”
20 William Ian Miller
an honorific to King Garcia V of Navarre, “serves as a reminder that boldness can make y o u r limbs shake just as .much as fear” 13. D ysen tery can cause us to befoul ourselves. And the fear of getting caught w ith one’s pants d ow n often leads the soldier, at least in the trenches of World War I, to become desperately consti
pated 16. Fear does have a distinctive facial expression but the expression can be suppressed w hen one is scared and faked when one isn’t.
This is not earth-shattering news. State of mind alw ays ends up being inferred either by legal convention or b y su pplying the social know ledge necessary to make sense of whatever act or omission whose motivation we are searching for. If one is in a battle and trembles a n d runs away, or cries while curled up in a fetal position and hence cannot advance, then we judge that behavior to be a conse
quence of fear, and so confident are w e of our judgm ent that w e w o u ld not believe an y one who behaved in such manner and said he was not fearful.
In peace the law of duress assumes that fear is excu sing17; in the m ilitary fear is incriminating. In the civilian w o rld one w ho succumbs to fear m ay plead duress to avoid criminal lia bility; but in battle the soldier m ay not succumb to fear unless a substantial num ber of his fellows give in at the same time. If he is the only one (or one of few) who gives w a y we judge him to be of insufficient firmness and thus culpable. In cases of com mon law duress the defendant is measured against a norm w hose constraint on actual behavior is hypothesized b y figuring w h at the “rea
sonable m an ” w o u ld do under like circumstances; but in battle the norm is situ
ated concretely: w e k n o w w hether most held firm, or whether most d id n ’t. If most d o n ’t hold firm they are all off the hook, for w e do not, in the R om an style, cast lots and decimate the battalion,s.
15 Essays 1.54, trans. M. A. S c r e e c h , M ichel de M ontaigne: The C om plete Essays (H arm ond- sw orth 1991) 349.
16 A t stake is the m isery of constipation vs. the plague of diarrhea. M o desty produces the former, fear the latter, but that is not alw ays the case either since bearing dow n under fire and a rtillery shelling can produce the former. See H u m p h r e y C o b b , Paths of G lo ry (1935; rpt.
A thens 1987) 4: it is not diarrh ea but constipation, co n trary to p opular opinion, that is the disease of the front. The G erm ans have the latrines zeroed in and so you hold it; see also M o - dris Ekstein s, R ites of Spring: The G reat W ar and the Birth of the M odern A ge (N ew York 1989) 226, on the leitm o tif of excrem ental concern in W W 1.
17 The A m erican M odel Penal C ode (§ 2.09, cmt. 2) is concerned to m ake sure the acto r’s
“co w ard ice” doesn’t excuse him but not b y going so far as to dem and that “heroism be the standard of le g a lity ”.
1S In the French arm y, however, as late as the G reat War, a man selected b y lot from each com pany of a b ad ly failed regim ent could be executed; see A listair H o r n e , The Price of G lory: Verdun 1916 (H arm o ndw o rth 1964) 64. Such an occasion forms the substance of C o b b ’s novel.