This post isn’t an analysis of public rhetoric in response to the recent terrorist (and terrorist-related) incidents of recent weeks. It is instead a quick note about the way we discuss particular legal issues and, again, a call for legal theorists to lead public debate on these topics.
One of the responses from celebrities (like Sunrise‘s David Koch), journalists, and politicians has been to respond to dramatic events with legal (or ‘legalish’) proposals. We need to change something about our justice system. We need to change some legislation. We need to empower authorities with new capacities.
Part of the problem with this approach is that it is always — always — from the perspective of somebody who will never have a negative encounter with these proposed legal remedies. It is very, very easy to call for some form of State violence when there is practically no chance that they will suffer a negative consequence from it.
It’s this problem that caused George Orwell to argue against civilian immunity in times of war. In Homage to Catalonia, Orwell wrote:
One of the most horrible features of war is that all the war-propaganda, all the screaming and lies and hatred, comes invariably from people who are not fighting […] It is the same in all wars; the soldiers do the fighting, the journalists do the shouting, and no true patriot ever gets near a front line trench, except on the briefest of propaganda tours. Sometimes it is a comfort to me to think that the aeroplane is altering the conditions of war. Perhaps when the next great war comes we may see that sight unprecedented in all history, a jingo with a bullet-hole in him.
Part of the problem is that celebrities and journalists tend not to understand the legal concepts they are discussing. That’s not strictly a criticism: one of my projects at the moment is trying to understand how the wider population intuits legal concepts so that they can participate in politics and law reform. It is a problem, I think, that a tiny portion of the community has a privileged relationship with the legal system (through education), while the rest of the community has to muddle through with whatever concepts it gets from television and the Press. Reversing burdens of proof, for example. Internment. Even concepts like parole and bail. I’m not entirely certain that the people making the loudest noise on these issues actually know what these concepts are. But the puzzle is not writing ‘Fact Checks’ which ‘correct’ the legal issues; instead, the puzzle is to understand what it is that they think is the problem and why they are using legal language to describe their problems.