126 Mil. L. Rev. 125 (1989)
The Culture of Change in Military Law

handle is hein.journals/milrv126 and id is 133 raw text is: THE CULTURE OF CHANGE IN
MILITARY LAW
by Eugene R. Fidell*
I.
Anyone tracing the path of military law over the last several
decades will be struck by two phenomena: the extent of change that
has overtaken the system.., and the resistance to change. Much of
the change has been justified-or condemned- under the rubric of
civilianization '-the C word, mere utterance of which still makes
the occasional senior military lawyer see red. A substantial body of
literature has been produced in the process. But all too rarely have
efforts been made to step back from the immediate issues of the day
and consider the evolution of military justice in light of larger themes
in the development of law and legal institutions. With the lowering
of voices that has characterized the stewardship of Chief Judge
Robinson 0. Everett on the United States Court of Military Appeals
(and with fingers crossed that the court will be spared yet another
spell of personnel and doctrinal turbulence), attention can usefully
be turned to those larger themes.
II.
The received learning is that military justice is sui generis, spring-
ing from essentially different jurisprudential sources from those out
of which criminal and civil law have emerged. The Supreme Court
has repeatedly sounded the theme that the military is of necessity
a separate society, with a correspondingly separate set of rules.2
Whatever its purposes and sources, the legislative basis of military
law is also different from those of the other two bodies of American
criminal law.3 Where else, after all, is the process of elaborating a
code of criminal procedure left so overwhelmingly to the prerogative
*Partner, Feldesman, Tucker, Leifer, Fidell & Bank, Washington, D.C. B.A., Queens
College, 1965; LL.B., Harvard Law School, 1968. This article is adapted from the
author's remarks at the Twelfth Criminal Law New Developments Course, The Judge
Advocate General's School, Charlottesville, Virginia, on August 17, 1988.
'E.g., Sherman, The Civilianization of Military Law, 22 Me. L. Rev. 3 (1970).
2E.g., Schlesinger v. Councilman, 420 U.S. 738, 757 (1974); Parker v. Levy, 417 U.S.
733, 743 (1974).
3See generally Cook, Courts-Martial: The Third System of American Criminal Law,
1978 So. Ill. U.L. Rev. 1.

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