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Martha Minow, What the Rule of Law Should Mean for Civics Education: From the ‘Following Orders’ Defence to the Classroom, 35 J. Moral Educ. 137 (2006).

Abstract: Sixty years after the International Military Tribunal opened in Nuremberg to try ‘major war criminals’, how should soldiers learn not to follow clearly illegal or unconscionable orders? Following the Charter of the International Military Tribunal, judges during the Nuremberg Trials rejected defendants' efforts to avoid punishment on the basis of superior orders. The Cold War stymied subsequent efforts to codify the norm; subsequent tribunals have adopted similar, but not identical, versions of the rule, as have domestic legal systems. Psychological research by Lawrence Kohlberg and Stanley Milgram raises serious questions about whether young soldiers can or will use their own moral assessments to disobey illegal orders or resist engagement in conduct abusing the rights of others. Further adding to the risks of atrocity are the stress and fear of wartime, the ambiguities and complexities of the war against terror, and confusion about the actual standards governing detentions, interrogations and treatment of civilians by the military. Hence, reducing the risks of atrocity requires not only refining and teaching the rule that superior orders are not a defence to military atrocity but also integrating legal and ethical analysis into the day‐to‐day operations of the military, and conceiving of law in this context as a constant set of questions. The dilemma posed for the soldier who must learn both to obey orders and to resist illegal orders offers a rich focal point for students in middle and high school settings. Such instruction could strengthen civilian oversight of the military while also deepening students' abilities to bring their conscience to bear in many settings where obedience and conformity jeopardize adherence to law and morality.