The latest episode of the Wisconsin Law in Action podcast features Professor Joshua Braver discussing his research on a particularly thorny question: when should military officers disobey orders that are lawful but unethical?
Braver’s recent paper, Disobeying Lawful But Unethical Orders in the Army, explores what happens when following the law conflicts with the military’s professional code—issues that go to the heart of civilian control of the armed forces and democratic governance.
Origins of the Research
The research originated during the civil unrest of summer 2020, when consideration was given to invoking the Insurrection Act to deploy military forces in response to protests. Joint Chairman of the Chiefs of Staff Mark Milley released a memo suggesting soldiers should disobey such deployment, invoking constitutional values while acknowledging the order would technically be lawful. This apparent paradox—a lawful but unconstitutional order—prompted Braver to investigate the deeper foundations of military ethics.
“I started thinking, where’s this coming from Milley? Is this just his own bizarre interpretation of the officer’s relationship to the Constitution, the military officer’s relationship, or is this rooted in something deeper and that has more wider purchase than just Mark Milley?” Braver explains.
The Core Dilemma
Military officers face contradictory pulls. As Braver explains, “obedience is so central to the military. It’s a matter of life and death. It’s what’s necessary to fight and win our nation’s wars. And it’s also a part of civilian control of the military.” That order ultimately traces back to the President, who “is elected in a way that an enlisted soldier or an officer just isn’t. It has this kind of democratic legitimacy.”
On the other hand, military professionals “really believe themselves, in ways that I think even lawyers don’t believe themselves today to be, to be professionals and to be bound by this ethic.” Braver notes they understand “if you don’t follow this professional code, then the military can’t function in a society, that it will lose its legitimacy.”
The profession’s ethical code emphasizes nonpartisanship and adherence to military expertise. “For the military really to be an institution that’s trusted by the general public, an institution that has the ability to overthrow the government, it’s a constant threat, and that can really hurt civilians…for them to be trusted, they have to be nonpartisan and that they need to stick to their expertise. And that expertise is in war fighting, not say domestic policing.”
The result is a genuine contradiction. “When it’s a lawful but unethical order, the law says you must obey and their ethical code says, you must disobey,” Braver observes. He references Sam Huntington’s classic The Soldier and the State, which examined this dilemma in the context of German generals under Hitler. Huntington concluded the tension was essentially irresolvable, leaving military officers in an impossible position. As Braver notes, “that poetic resolution is obviously not what you can teach at a service academy.”
A Workable Solution
Braver’s solution is more practical: “you should only disobey a lawful but unethical order if it’s patently unethical, where it’s a flagrant violation of the military code. And that violation is something that’s a matter of a community of practice, a group of experts kind of consensus.”
The military has professional journals and ongoing debates about ethical questions, just like doctors and lawyers. “There are some places where people disagree. People don’t really know whether it’s ethical or not. It’s something they’re going to continue to contest and debate. But there are other areas where there is a high level of consensus.”
It’s in those consensus cases where disobedience becomes justified. “Short of that, you have to obey. You have to obey because you need to protect civilian control of the military and because it will often be a dangerous situation in which lives are at risk.”
For officers who choose to disobey, Braver suggests they should do so openly, much like civil disobedience. “You say, ‘I want you to know, commanding officer, that I disobeyed this order because I think it violates professional military ethics.'” The hope is that at a court-martial, “a panel of your peers, people who have raised it and breathe every day in and out the set of professional ethics with you both share,” might engage in “a kind of professional nullification” if the order was truly patently unethical.
The Risks of Disobedience
Braver recently addressed the practical risks military personnel face in a Wall Street Journal piece. While lawmakers have encouraged service members to disobey illegal orders, Braver points out that many orders won’t be clearly legal or illegal. As he explains in the podcast, “the law is relatively clear, but what’s not often clear is whether the actual order you get is legal or not.”
Military law creates strong incentives for obedience. “If you’re not sure, if you obey, then you’re in the clear. If it’s not patently illegal, you can presume that the order is legal. On the other hand, if you’re unclear, you can disobey if you want, but what the manual of court-martial says is that’s at the peril of the subordinate.” The penalty for disobeying an order from a superior commissioned officer “can be five years in the brig or in times of war, it can be death.”
Braver emphasizes his responsibility to be honest about these stakes: “I do feel some responsibility in my, at least in so far as people listen to me, in my own public work to be super honest with people, to be candid about the risks that I’m putting them in if they follow my advice.”
Parallels to Constitution-Making
The podcast also covers Braver’s 2023 book, We, The Mediated People, which examines how ordinary citizens in South America have rewritten constitutions, sometimes through technically illegal means. Both projects explore how to responsibly channel illegality when legal obedience might threaten justice.
Braver describes his attraction to the South American cases: “the French Revolution happened in 1791, there’s another Constitution, 1793, there’s another one in 1795, but the stuff happening in South America is like now. It’s like today, and they’re dealing with the exact same problems and thinking about them with the exact same vocabulary.” He found it a “wonderful opportunity to talk with a modern day James Madisons and Alexander Hamiltons.”
He draws on the civil disobedience tradition to inform his thinking. As he explains, “Martin Luther King said, ‘If you’re going to disobey a law, you must do so openly, cheerfully,’ he says, ‘Even lovingly, but accept punishment.’ When you accept punishment, even though you violated the law, at the same time you’ve kind of vindicated a part of it.”
Theory Grounded in Experience
What distinguishes Braver’s work is his inductive approach. “My work is inductive. I start not from a grand philosophical premise and then try to work things through from there. I start from people’s real life experiences, their real life struggles, and I find that there’s incredible insight in those struggles.”
He doesn’t claim to have resolved these fundamental tensions. “I really do think that tension is irresolvable. But what I’ve done is find the best solution or worked with the best insights on hand and try to refine them, shape them, buff them up so that the problem is less severe than it was before.”
The podcast reveals his respect for how seriously military professionals think about ethics. “They think about it at a particularly higher register than I guess I would’ve realized,” he says. “It’s encouraging to me that people with a great deal of power are taking that power very seriously.”
What Braver hopes readers take away is “a sense of the profound responsibility we all have when we make decisions, that we’re all political actors, that politics is not nursery, and there will always be unpredictable, scary consequences when we make decisions. And we have some responsibility to try ahead of time to wrestle with and manage those dangers the best we can.”
Listen to the full conversation at Wisconsin Law in Action. Braver’s book We, The Mediated People is available from Oxford University Press. An early draft of Disobeying Lawful But Unethical Orders in the Army is on SSRN, with the final version forthcoming in the Northwestern Law Review in spring 2025. To read more of Professor Braver’s scholarship, see his profiles on SSRN and the UW Law School Digital Repository.
Note: This post was developed with the assistance of Claude AI, reviewed for accuracy, and refined to align with WisBlawg’s editorial standards.