The article argues that contemporary justice has become synonymous with law, leading to a system of lawfare in which individuals face potential arrest for minor infractions. This relentless regulation creates an environment where everyone is vulnerable to legal consequences, eroding personal freedoms and sovereignty. The author asserts law has shifted from protection to persecution.
Author: Maddy Vespers
A Case Against Lawfare
Introduction
For a long now, we have associated the word justice with Law, with the concept of State, and, in general, with equality, to certain extents of the word. The Cambridge Dictionary defines justice as fairness in the way people are dealt with. However, we also associate justice with protection, righteousness, and a sense of safety, as in, through justice, we guarantee our rights, our freedoms, and our responsibility.
In some sense, justice is almost synonymous with guaranteeing our freedom in the modern world and, to the same extent, with the protection and safeguarding of ourselves and our property, mental, material, etc.
However, today, I want to make an argument that justice, as applied today, has turned out to permit a state of potential provisional imprisonment, of which we are not aware and of which we can suffer at any point in time.
Law as for community
Today, in most of our Western societies, the state has become all-encompassing; the state is almost maximal, and now it is an institution that doesn’t just safeguard but expands its reach to the one of corrector. This vision came to me when analyzing the work of Rawls and, subsequently, his critics, like Nozick and Sandel. Rawls tried very hard to balance the two concepts that present themselves as antithetical: freedom and equality. The principles of freedom and the second principle of equitable opportunity and difference establish an order of priorities, but however, they are impossible to integrate simultaneously.
I won’t elongate on Rawls’s thesis; however, the critics are far more interesting, as they show these two opposing sides. On the one hand, Nozick defends that the principle of Difference is unacceptable, as the state must be minimal, only protecting its people against internal and external dangers and carrying out justice. Sandel, on the other hand, considers Rawls’s thesis to be missing on reinforcing the community aspect that the state must embrace. In a certain sense, this showcases the strongest and weakest point that makes Rawl’s thesis futile in modern society: the state must feel protective without interfering, controlling, and/or restricting one’s freedom.
However, even though this was the conclusion I thought most preeminent, it is clear to me now that the society in which I live today privileges the other side of that same argument: The state must protect and control, giving out the feeling that it isn’t restricting, or controlling, anyone. Today, in our society, preserving the community has become the most pressing issue. However, how can this be? How can the illusion of freedom still be alive if, as I claim, we live in such a restrictive society that focuses on the community rather than the individual and that puts society as a whole before anyone in particular? This is where justice and law come in.
Justice is very different from Law.
As I tried and stated before, the definition of justice has never been clear, and most dictionaries have a very circular definition of justice. Justice is about being fair, and being fair is being equal or just. But, of course, justice is not about equality, at least in its late sense. Equality might be one of the ideals of justice, but not in every branch of life. Justice is not about assuring economic equality; it is about ensuring that we are “all born equal” and that for every single one of us, independent from all other differences we have, we are treated equally in the blinded gaze of justice. However, this is where Law gets mixed up, and we tend to think of justice as Law, however, take a close look at the definition of Law according to the Cambridge Dictionary: a rule, usually made by a government, that is used to order the way in which a society behaves.
Law isn’t about justice, definition-wise, once again, justice becomes an ideal force pushing Law, but not its main leader. Law isn’t necessarily just, it is, however, that set of rules that we apply, determining what is just or not. So, rather than an intrinsic concept, justice, in the eyes of the Law, is a by-product rather than a predecessor. Of course, we cannot only focus on the linguistics of definitions, and of course, most of our most common and universal laws are based on our intrinsic sense of justice. In most cases, even the punishments are according to what we think to be just. So, we are left with concepts, laws, and punishments like:
- Killing is bad
- Therefore, you shall not kill
- Then, if you kill, you will be imprisoned
That last one is all about attributing justice. In order for your crime, you receive a punishment. And for me, even though the concept might not be defined, even though we might juggle the definitions and not define at all our intrinsic sense of justice, we all can somewhat align with simple and basic laws like such, even though even other moral problems might surge.
However, what I bring you here today is not a discussion on our intrinsic sense of justice but just an enlightenment on how undefined concepts are the key to the complete loss of our own sovereignty.
Cumulative effect and Constant Infraction
For lesser crimes, for crimes which some of us wouldn’t even consider crimes, there are punishments, like prison or fines. And in general, this is the way it is meant to be. However, what I noticed is that today, without a beat, if you have broken more laws than you can count.
Laws are necessary? Of course. These days, you can be punished under the Law for almost everything. Going out implies almost breaking the law, and even though individually those laws might be permissible under the public eye, its agglomerate showcases a rather disturbing idea that, as I will showcase, ends up undermining our intrinsic sense of justice and our freedoms.
A quick search online shows us that all of these are punishable by law, under some type of fine, or other consequences: Jaywalking, Running a red light, Speeding, Parking violations, Distracted driving, Failure to yield, Littering, Noise violations, Using a cell phone while driving, Public intoxication, Loitering ( Remaining in a particular public place for a prolonged time without a clear purpose.), Riding without a helmet, Failing to signal, Ignoring leash laws, Driving without a seatbelt, Skipping public transport fares, Failure to clean up after pets, Throwing cigarette butts on the ground… You get the idea, and especially if you leave your house in a car, the number of infractions you commit is endless. But we know these actions rarely if ever, are actually enforced and penalized. However, safeguarded by law, they can.
Moreover, we now live in a day of age in which constant monitoring rends people at the mercy of suspicions, in which written conversation, and out-of-pocket messages, end up serving as almost irrefutable evidence for an arrest.
Of course, in itself, these infractions are not crimes but just infractions; however, the cumulative effect can lead anyone to be a habitual offender. If you speed every day, you can be charged with reckless driving, a crime. Of course, this never happens, but that is far from the issue.
No one is ever accused of a crime because of the cumulation of these constant infractions you commit one way or the other, every day, and most of the time you don’t even consider breaking the law. The truth, however, is that you have committed infractions, and in the end, you are at the mercy of the law. Sometimes, consequences are also administrative, like losing licenses or jobs. But have you ever heard of a case of accumulative speeding leading to an arrest or serious consequences? No, most probably.
However, the potential is there, and it is a matter of time and circumstance until that power is abused. No one is able to go out and assert that they have broken no infractions so far, and this leaves everyone, consistently or not, at the mercy of prosecutors and at the mercy of common sense. Remember, the potential is always there, almost any of us could be arrested today, taken to the police station, could be fined heavily, could suffer damages or punishment.
And, of course, here is where you can clearly understand that Law really doesn’t equal justice. Because the law, in the pre-requisite of its existence, needs to fulfill its duty when these types of prosecutions happen. On the other hand, justice would state this completely mad, our intrinsic sense of justice at least. And when I speak of this intrinsic sense, don’t dwell on elitist intellectualism, think objectively.
Think of activists who have already been arrested for things like failing to disperse for blocking traffic. If these could threaten your political party, wouldn’t being aware of other previous infractions lead to a more permanent punishment? Wouldn’t speeding tickets become proof of a deranged character? Rather than the simple product of no traffic, and an open road?
It seems that this overregulation has now led everyone to a state of possible arrest or punishment. However, the infractions are impossible to run from, or at least our common sense wouldn’t stop us from committing them. Going back to Nozick and the state, when we affirmed and seemed to agree as a society that the state is there more than just to safeguard and apply the most basic of justices, we lost track of ourselves. Today, anything is regulated, and at any point, a cop could arrest you and penalize you with unpayable fines. Even though you walk freely, it seems that truly you are under potential arrest. Of course, and I know what you are thinking, what an extreme idea, but I ask you to please consider all sorts of unexpected events that humanity has gone through. I ask you to consider that, especially in the EU, the jury system is rarely used, and the judge, being only one, is the only one that can present the intrinsic sense of justice we all share in a certain manner and also one already so within the Law, that such might prevail.
Lawfare – modern age persecution
But please, don’t refuse this potential and danger just because of how disassociated it might sound now. We often hear of cases on the news about people being in court, being arrested, and especially in a controversial situation, sometimes, a bit of digging reveals that the accusation might not be related to the scandal but connected to other infractions. Let’s take an example:
Brigitte Macron awarded damages over false claim she’s a transgender man | You
This headline would leave you to believe the people were accused and proven guilty of defamation; however, they were charged and guilty of invasion of private life, not the set forward defamation. In the end, the claim that Brigitte is a man wasn’t disproven; however, the headline and article would lead to believe so. This showcases how easy it is to truly use the law against journalists, especially in a non-Anglo-Saxon justice system, even though this latter also has its problems.
And this is always, and will always be, easy to do for those in power who control the media. There is no need to control the courts, only to control the media in order to spin the case a certain way. The Law opens the gateway for this type of persecution and cover-up.
And this is the point I wanted to reach. Law got so far away from justice, from our intrinsic sense of justice, that it became a weapon, rather than protecting, it persecutes. The law will always protect us, and ensuring that murder gets locked away will, in the foreseeable future, be a job of the law however, the image that the law is just this straightforward process is far from reality. I call only for us to be aware of the doom that this overstepping of the law, and consequently the State, over every area and action of our life, can be. We have been further away from sci-fi, but the way the world turns, always forward, never backward, it is clear that now, more than ever, we need to be aware that our punishment, by the Law, that self-proclaims to be just, is always imminent and possible.
Lawfare is the new day-and-age persecution and behind it stands, as an excuse, the law. Just like in the 20th century ideals were the justification, and just like in the 16th century, it was all about upholding religion – Lawfare is nothing more than a new version of what has always been.
Cover Image by: Sang Hyun Cho from Pixabay
