The purpose of this essay is to present the thesis that the legal system as we know it today, is fundamentally fractured. It is incapable of meeting the needs of innocent democratic citizens to protect their individual human rights since the legal system only accurately contemplates the reparation of quantitative damage, not qualitative damage, such as mental anguish, anxiety, citizens wasted time, or other intangibles. The legal system has been misused to attack democratic governance instead of support it.
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Everyday legal problems are straining Canadians’ personal finances and their mental and physical health, as well as increasing social and health care costs not just in dollars, but in time and opportunity costs, costs to their physical and mental health, and costs to their livelihood. The 2016 Everyday Legal Problems and the Cost of Justice in Canada Report found that within a three-year period, almost half of Canadian adults – approximately 11.4 million people – experience at least one civil or family justice problem that they consider serious and difficult to resolve. They range from employment issues and discrimination to divorce and support payments, disputes with neighbors, and cell phone contracts.
It is estimated that Canadians spend approximately $7.7 billion annually on everyday legal problems. Furthermore, it is estimated that legal problems cost the government a combined total of $799 million annually. These additional costs stem directly from the physical, emotional, and psychological consequences of experiencing and dealing with everyday legal problems.
Can a free and innocent citizen choose to be excluded from this grossly negligent and destructive process? What if they were to keep to themselves? In his 1925 novel, The Trial, Franz Kafka presents us with a particular situation. The character Joseph K has been arrested for no reason. Two men, presumably guardians of the law, have entered his boarding house and notified him that he is under arrest. Perplexed by the news, K thinks it is all a prank played on him by some of his friends at the bank where he works. However, as events unfold, the guards confirm his arrest warrant without explaining the reasons. Seeing the guards’ insistence, K asks them what crime he is accused of. But they have no knowledge of the charges against him. They reply that the authority that governs them is in charge of handling the information about his case and that they limit themselves to obeying their orders without the right to ask questions. K notices some people around him leaning out of the window to watch his detention. He recognizes three of the men waiting in the room: they are employees of the bank where he works. At that moment he understands that it is all a show, that the inspector has made his arrest a public act, and that the law wants everyone he knows to know what is going on. As with K, it is possible to find cases where the legal system abuses its power disproportionately. The guards delegate responsibility to the law and then plead ignorance of the law. They are only in charge of complying with the mandate of the system. And knowing the strings that pull that system can take years of waiting. Not only have they wasted K’s time, but they have also driven him to a state of unbearable anguish and despair, even to the point of death. Don’t some lawyers in Canada operate in the same way? Doesn’t the legal system endlessly delay trial and, ultimately, some practitioners plead ignorance as to the reasons for the delay?
This seems to be one of the most common problems of the modern legal system (especially in countries like Canada). We could attribute this problem to the fundamentals of the law. Thinking about the fundamentals involves deconstructing their form and looking at how the language of law works. The idea is to determine why such language has become the cornerstone of democracy. We intend to show the philosophical shortcomings and their consequences to the public. For example, some lawyers search the empty spaces of law for an opportunity to endlessly delay trials or create superfluous costs. Citizens have no recourse but to submit to the legal process, as is the case with K.
It almost makes a person consider that there is a method in the madness in the legal powers that be. Maybe Time is an essential ingredient to a legal argument. The more delayed time the infraction has, the more emotions depreciate and the easier it is to find a settlement between the two parties. But even if this were true, it must be in ignorance of qualitative and quantitative legal costs. Prioritizing the ease of settlement for lawyers and the Justice, deprioritizes the costs to the citizen and Canada. There must be a better way.
2. The lack of legal definition between good and evil.
The human rights paradigm has a very particular history. Indeed, after the end of World War II, and faced with the magnitude of the damage committed by the Nazi regime, the international political community understood the need to create an International Humanitarian Law (IHL) to protect and punish crimes against humanity. It is under the slogan of crimes against humanity (which are defined under the variables of torture, genocide and massacre) that the modern legal system emerges, a cornerstone, of today’s democratic political system. The intention to strengthen the language of law, and to create cooperative mechanisms of participation between democratic states, not only applies to the prevention of crimes that may occur at the individual level, but also responds to the need to avoid the emergence of totalitarian forms of government. Thus, the current democratic system focuses on the sacredness of the person, assuming a universal concept from which all forms of government must adhere to IHL for the sake of the healthy coexistence, protection, and economic and political stability of the peoples of the West.
There are several requirements that make the operation of the law complex. One of them is the distribution of and access to resources, of income and the individual’s free participation in an open society and its socioeconomic dynamics. However, even more pressing in ethical and conceptual terms is the consideration of harm. If there is one thing that the experience of the Second World War made absolutely clear, it is the possibility of facing damage that is not only unforgivable but also imprescriptible in terms of the law. And it is from these new typologies of crime that the protection of human rights acquire relevance and the participation in economic and political terms of societies acquire relevance. Hanna Arendt has portrayed this problem very well in her analysis of the Nuremberg trials against Eichmann (text published in 1963). For her, the banality of evil is not explained by the fact that there is a frontier on which it is possible to distinguish and condemn a criminal action, but precisely because the frontier that divides good from evil is indiscernible at the moment of executing that action. In other words, the Jewish community was exterminated because there was a bureaucratic apparatus in Nazi Germany that legitimized its destruction. In that logic, the Reich project justified, in turn, the fulfillment of a mandate that had become law in the eyes of the Führer’s generals (Eichmann, among others), but also in the eyes of German citizens. Murdering Jews was not permitted, but was morally, economically and politically legitimized by virtue of the nationalistic goals of Nazism. Thus, the ideal of the State permeated every social practice, and instead of denouncing what was happening, the community became permissive and condescending in the face of exercises of discrimination and extermination. In a halfway reasonable democratic society, today we ask ourselves: how did we allow this to be possible? And in our modern world, we wonder about smaller infractions that happen on a daily basis. The restricted freedoms during the pandemic are one such example.
Well, what this problem highlights is not only the trivialization of evil, the thesis of which holds that there is trivialization whenever there is no philosophical reflection before executing an order by a superior mandate, but, more importantly, it brings to the forefront the question of what is the source of legitimacy of the law. If the legal system is the anchor of democratic societies, and if the paradigm of democracy is consolidated in the wake of the tragedy caused by totalitarianisms, then how is it possible to question the source of the mandate that turns the protection of human rights into law? In other words, is it possible to legitimize a form of government that claims to protect human rights without falling into the same logic of a criminal force?
Motivated by these questions, in the text Force of Law (1994), Jacques Derrida was able to deconstruct the problem around the mystical foundation of the law. To do so, he has made a very detailed reading of Walter Benjamin’s theses. In his text, For a Critique of Violence (1921), Benjamin distinguishes two types of violence: one foundational and the other conservative. The former is distinguished from the latter insofar as the former creates what the latter maintains according to an end: the stability of the law. Beyond the particularity of the lawsuits or litigation that may arise, what Derrida argues is that the functioning of the legal system has never questioned its own foundation, so that, while restoring its model of prevention, it continues to operate under the same paradoxical logic where the law is the highest point of the democratic system, even if it varies in each case by the force of execution of the sovereign issuing a mandate. So what is the anchor, and mechanism for renewal, of the legal system?
At this point, Kafka’s story is quite illustrative. The law is the highest and superior order, but in reality the first cause of the accusation against K is not known. The character cannot perform any work outside the law, but, at the same time, the guardians of the law, who are the ones who carry out the orders of the superior order, are in charge of seeing that the arrest is carried out, even without knowing why the accused is accused. No one can act outside the law, but yet no one knows it. And since it must be complied with, there is an apparatus to enforce (by force) and to fulfill it. The law functions as an illusion, a narcotic that offers false guarantees of protection of the human rights. In sum, what the story demonstrates is that there is a force of detention long before the law is translated into
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