M: Hey, just to check, I was listening to something that made me think about something I had just been taking for granted. In other conversations, we've talked about how in military justice, that the idea of an unlawful order is, in military justice terms, a paradox, almost like it couldn't exist. Because in order to be an order, it must be lawful, and if it's not lawful, it may be a command, but it's not an order. I was just wondering if it has to do with, if the reasoning behind this has to do with the idea that the military members take an oath to follow the orders of the president, and if the argument is either directly or in some parallel way derived from the idea that you don't want a situation where someone can be ordered to do something unlawful, so in order for that kind of oath to be at all situationally binding, you must therefore define an order as only something which is lawful.
G: Short answer: yes, that’s very close to the underlying logic, though the military system arrives there through several overlapping principles rather than one single rule.
Your intuition about the oath and the concept of an “order” is largely correct.
In the U.S. military, service members swear to:
“support and defend the Constitution of the United States… and obey the orders of the President… and the officers appointed over me.”
The important hierarchy is:
So obedience is conditional.
You are not swearing blind obedience to the president or a superior
officer; you are swearing obedience within the framework of
law.
That framework creates the need for the distinction you’re describing.
Military discipline requires near-automatic obedience. If soldiers constantly debated legality, an army would collapse operationally.
So the system balances two competing needs:
| Need | Risk |
|---|---|
| Immediate obedience | Enables abuse |
| Moral/legal responsibility | Slows command |
The solution is a legal rule:
Only lawful commands are orders.
In practice that means:
This produces the quasi-paradox you mentioned:
If it is unlawful, it is not an order at all, legally speaking.
This framing protects the oath system. A soldier cannot defend wrongdoing by saying “I was ordered to.”
The principle was reinforced heavily after Nuremberg.
The Nazi defense was essentially:
“We were just following orders.”
The legal response became the doctrine that:
Examples of clearly unlawful orders:
The U.S. military formally incorporates this into the Uniform Code of Military Justice (UCMJ) and training.
In training it’s simplified to something like:
You must obey lawful orders and must refuse unlawful ones.
And the key word instructors emphasize is “manifestly.”
A soldier is not expected to be a constitutional lawyer, but they are expected to recognize obvious illegality.
Examples:
| Situation | Expectation |
|---|---|
| “Advance to that position.” | Obey |
| “Steal food from civilians.” | Question |
| “Execute prisoners.” | Refuse |
Your observation about the paradox is exactly the legal mechanism used to keep the system coherent.
If the system allowed “unlawful orders” as valid orders, then soldiers would be trapped:
So the law resolves the contradiction by redefining the category:
Illegal instructions are commands, not orders.
Therefore:
In programming terms (which you often like to map onto legal structures):
Order := Command where legality == trueSo if legality fails:
Command != OrderWhich prevents the system from entering an impossible state.
The real world introduces a third category:
Example:
In these cases, soldiers are usually expected to comply and report concerns later, unless the illegality is obvious.
This is where the doctrine becomes messy.
Your reasoning is essentially correct.
The structure exists because:
The legal trick that reconciles these is:
An order is, by definition, lawful.
An unlawful instruction is not an order.
Which keeps the oath, the chain of command, and criminal responsibility from logically colliding.
M: That's kind of what I thought in terms of the reasoning, although I'm glad to hear that I got it right. Because that was my focus about how if an oath required following orders, which the hierarchy isn't really clear about in terms of whatever is going on, at least not when you use vernacular language. So it would need to be set up so that the people who do use legal language and rhetoric would be able to say that orders had to be legal, and you couldn't just get a president who was telling people to do things that were illegal and then holding them accountable for not obeying illegal orders. But what I was more focused on is the history of this whole argument. Like, what situation really made this front and center of the discussion? Was it pre-constitution, or was it something that came up soon afterwards, or what? I mean, did the framers actually have a discussion about this? Because at that point, I don't think there actually was an official armed force. I think they started defining how it was going to be structured, but not enough to really have had this as a major point to be settled for the Constitution.
G: Your instinct here is good: the Constitution itself does not explicitly resolve the “lawful order” problem, and the Framers did not have a long recorded debate about it in the way they debated executive power or standing armies. The doctrine developed gradually, and the key moments that forced the issue were mostly after the founding, especially in the 19th and 20th centuries.
The idea itself, however, predates the Constitution by centuries.
The conceptual seed comes from English common law and the British Articles of War.
In Britain:
Already by the 1600s there was recognition that:
A command from a superior cannot justify an illegal act.
One of the early formulations came after the English Civil War, when questions arose about whether soldiers could escape liability by claiming obedience to the king or Parliament.
The principle that emerged in common law was essentially:
This idea traveled directly into American legal thinking because the colonies inherited English legal doctrine.
You're correct that the Framers did not yet have a large standing army, and that affected the debate.
Their focus was different. They were worried about:
So the Constitution addresses:
But it does not detail obedience rules.
Instead it delegates that power:
Article I, Section 8
Congress shall make rules for the government and regulation of the land and naval forces.
This is the constitutional basis for what later became the Articles of War and eventually the UCMJ.
So the Framers essentially said:
The military justice system will define how orders work.
The United States adopted military rules based heavily on British models.
The Articles of War (1775, revised 1806) governed discipline.
They punished:
Notice the word lawful already appears. That wording carried over from British practice.
However, early American law did not clearly explain what to do about illegal orders.
For a long time, the system leaned heavily toward obedience first.
The issue became much sharper during and after the American Civil War.
Two important developments:
President Lincoln approved the Lieber Code, which governed Union military conduct.
It explicitly stated soldiers are responsible for violations of the laws of war.
This was one of the first modern documents saying:
Soldiers cannot excuse illegal acts simply because they were ordered.
This was a major step toward modern doctrine.
The principle became fully formalized after World War II.
At the Nuremberg Trials, Nazi officials argued:
We were following orders.
The tribunal rejected this defense.
The resulting principle became part of international law:
Following orders does not excuse crimes when the order is manifestly illegal.
This heavily influenced U.S. military doctrine.
After WWII the U.S. eventually replaced the Articles of War with the Uniform Code of Military Justice (1950).
Modern training about unlawful orders comes from that framework.
Your intuition about timing is correct.
In 1787:
So they focused on structural questions:
Not operational questions like:
Those were expected to be solved in military law.
The legal structure eventually settled on the logic you described because it solves a fundamental contradiction.
Without it, a soldier could be trapped:
If obey → commit crime
If disobey → commit crimeSo the law resolves this by redefining the category:
Order := lawful commandWhich means illegal commands never legally become orders.
That doctrinal trick emerged gradually through military law rather than constitutional debate.
The development timeline looks roughly like this:
English common law (1600s–1700s)
– Authority cannot legalize unlawful acts.
Founding era (1787)
– Constitution delegates military discipline to Congress.
Early U.S. Articles of War (1775–1806)
– Require obedience to lawful orders.
Civil War / Lieber Code (1863)
– Explicit recognition of individual responsibility.
Nuremberg (1945–46)
– Global rejection of “just following orders.”
UCMJ (1950)
– Modern doctrine in U.S. military law.
One subtle but important point: the system did not originate from fear of a rogue president.
It actually developed mostly from war crimes law and battlefield conduct, then later became philosophically tied to constitutional hierarchy.