by Michael Angerer
Our life in a modern state is made comfortable by our trust in the power of its institutions: we know that administrative difficulties are not our problem, but that of the civil service; the presence of the police makes it so much less likely that we will have to defend ourselves against muggers and pilferers; and the legal system makes it possible to have those who break the peace charged, tried, and sentenced. But vital though these institutions are, there is such a thing as over-reliance on them. Lately, we have come to expect the courts to settle important political disputes for us, or we hope to have controversial political figures charged – you will find people clamouring for the arrest of both Donald Trump and Hillary Clinton. But these demands that the legal system should come charging to our rescue betray a dangerous misunderstanding as to the nature of the power of the state.
This misunderstanding can be illustrated using the different definitions of the word ‘charge’. The Oxford English Dictionary gives two widely different senses; the first is derived from the Latin word for cart and means, broadly, ‘load’, both literally and figuratively. The process of loading, or charging, something onto something else describes a careful transfer of and accumulation of goods or power. The second sense is as old as the first, having been present in English since 16th Century; its origins are, however, unclear: this is the sense that designates an impetuous attack, effectively a sudden discharge of power onto whatever is attacked. Between them, these contradictory senses of the word perfectly describe our mismatched expectations: the first sense applies to our slow, steady legal system; the second sense is what many of those who feel somehow wronged would instead like to see.
We find a view of both these senses expressed in two very well-known Victorian texts: there is, for one, the paralysed legal system of Charles Dickens’ 1853 novel Bleak House. Always charging but never discharging, the Court of Chancery slowly devours fortunes and lives without ever providing a ruling in return; the dissatisfaction with the slow processes of the legal system is palpable throughout. Quite another image is created by reading Lord Tennyson’s famous poem ‘The Charge of the Light Brigade’ (1854): it depicts a senseless but heroic charge during the Crimean War; these men, doomed by an officer’s mistake, are glorified in death. Successful or not, it is the discharge of power, the charge to attack, that is satisfying to witness.
That too rapid discharges of power can have destructive effects can also be observed using a much more mundane example: phone batteries. They are (excruciatingly slowly) charged to store power (for far too short a time); but the sudden unleashing of that power is disastrous. In 2016, the Samsung Galaxy Note 7 became possibly the most famous phone on earth because of its tendency to explode. When charged, short-circuits in the battery led to overheating and explosion; more than 2.5 million devices were recalled. If too much power is charged onto a fragile system, the subsequent discharge of power unleashes destructive energies endangering both source and target; and who is to say that the institutions of the state are not fragile or in danger of being overburdened?
It is certainly true at present that we expect a little too much of the legal system; in what is felt to be a post-truth world, somehow the courts are meant to come swooping in to save the day. In 2017, they were used to challenge the handling of Brexit or Donald Trump’s travel bans when any political solution had become impossible. Similarly, the courts are expected to hold politicians personally accountable for the faults we see in them: the right want to see Hillary Clinton imprisoned for her careless handling of classified emails; Donald Trump, with his usual tact, made it a campaign promise to have her jailed, not to charge her with a crime as much as to come charging at her. Now, it is the political left that supports a probe into Trump’s ties with Russia and wants to see him impeached. And every day, those who expect a quick discharge from the system, a heroic charge that will not come, feel more disappointed and frustrated.
But it should have been made clear that the power of the state cannot work like that; a rapid discharge of power allows no time for due consideration. What is more, it also makes everyone dependent upon this power to come charging to the rescue again and again; once institutions of the state begin behaving like this, despotic rule by force is not far. And finally, courts acting in favour of one political side instead of the other will inevitably stir up civil unrest; dwindling trust in the system will ultimately lead to its collapse. Institutions recklessly charging their supposed enemies, satisfying though such a sight might be at first, will only bring about their own destruction.
Instead, the power of state institutions must not be excessively employed. The legal system does not rule by force; rather, it functions as system of transferral of responsibility. No one will come charging at criminals wielding a flaming sword; criminals are charged with a crime, and, if found guilty in due process, must come to bear the responsibility for it. The legal system thus deals in slow shifts of power rather than rapid intervention. As for the intrinsic power of the system, this is what keeps it in place above the rest of society, never fully brought to bear onto society and thus never used up; it is the fear that it could potentially be used that commands respect, where what is felt to be an unjust use only fosters rebellion. A sudden discharge of the power of the legal system would essentially be the end of law and order; the power of the state must remain potential, charged but never fully discharged, to be effective.