2nd Prize in VSP 2022:
…if thought
corrupts language,
language corrupts thought.
The Living Tree and the Erosion of the Rule of Law
Johann-Jakob Chervet
Second Prize in Vernon Smith Prize Contest 2022.
Abstract
This essay explores the danger of the corruption of language to the Rule of Law. As Justice Gorsuch wrote “words are how the law constrains power”. Therefore, the corruption of our language inevitably means the corruption of our legal system. I demonstrate that corruption through the example of recent criminal trials of climate change protestors. It is these trials, where crucial legal concepts have been stretched beyond recognition, that serve as a harbinger of a set of theories of interpretation that significantly challenge core precepts of the Rule of Law. These theories view the law as a Living Tree that is to be updated and changed by judges according to the necessities and moods of the time. I argue that this undermines the Rule of Law by making the law unpredictable and thereby preventing individuals from making plans according to it. To overcome this erosion of the Rule of Law I propose the interpretive method of textualism. An approach that holds that the text of the law should determine its content. This allows individuals to assess their rights and obligations with clarity and certainty. Thereby protecting their liberty and safeguarding against the corruption of the legal system.
Introduction
“… if thought corrupts language, language can also corrupt thought.” Nowhere has this statement a potential as destructive as when it comes to our legal systems. The law is a linguistic endeavor. An endeavor that is dependent on the stability and clarity of the concepts it employs. If those concepts become compromised so will the legal system that is contingent on them. The dangers are readily apparent: The corruption of language is the first step on the path towards the abdication of constitutional rights in favor of centralized power and governmental discretion, the subjugation of individuals into the collective, and the erosion of the Rule of Law.
This theoretical concern has shown its potency nowhere as clearly as in a series of recent court cases involving climate change activism. It is there where we can witness a particularly dangerous breach in the firewall that is the Rule of Law. More broadly – as we will see – it is theories that regard laws and constitutions as Living Trees which should be interpreted dynamically that have allowed for corrupted language to spread through the legal system.
I. Giving up essential liberty
a) A narrow, well-defined exception
It was a decision that hit the Swiss legal community like a meteor. On January 13th, 2020, a district court judge in a suburb of Lausanne ruled that 12 climate change activists, who two years earlier had “stormed into”1 a regional bank of Credit Suisse, were not guilty of the crime of unlawful entry under art. 186 of the Swiss Criminal Code (CC). The explosive potential of the decision lied not in its outcome – an acquittal is as unremarkable in a criminal proceeding as it gets – but in its legal justification: The judge acquitted the protestors not because of a lack of evidence or because their actions did not correspond to the crime they were charged with. But rather because – according to the judge – they acted in a “situation of necessity”.2
A “situation of necessity” under art. 17 of the CC is a legal concept that allows individuals to commit acts that would ordinarily amount to a crime if those acts were necessary “in order to save a legal interest of his own or of another from immediate and not otherwise avertable danger”. As a result of this definition art. 17 CC is built on a set of narrow and established legal concepts:3
(1.) The danger to the legal interest has to be immediate.
(2.) The danger cannot be averted otherwise.
(3.) The goal of the otherwise criminal act has to be the protection of the legal interest of an individual (e.g. life, liberty, property) and not a collective interest (e.g. security of the nation, protection of the environment).
A typical example for such a situation of necessity is the following: A hiker, high up on a mountain track, is suddenly confronted with a dangerous storm. To seek refuge he breaks into a mountain lodge and waits out the storm. Ordinarily, he would be guilty of illegal entry. But because his life (a legal interest of an individual (3.)) was in immediate danger (1.), and that danger could not be averted otherwise (2.) he can claim the defense of art. 17 CC and avoid punishment. Contained to that limited and well defined scale the defense of a situation of necessity serves a valuable common sense purpose and finds its counterparts in many jurisdictions in both the civil and the common law world.
b) Corrupting the exception
As with any exception to a rule, however, problems start to multiply when the borders4 of that exception are no longer policed vigorously. That is what happened in the aforementioned case of climate protestors breaking into a Lausanne bank: through a consistent corruption of the very language that fills the above-listed trifecta of concepts with meaning, the protestors and the judge were able to turn these legal categories on their head. The exact process of that judicial concept creep5 is a warning that shows how easily the law can be circumvented through the manipulation of language:
(1.) The judge argues that climate change posits an immediate danger for individuals because Switzerland is unlikely to fulfill the requirements for the 1.5°C goal of the Paris climate agreement.6 This in turn is said to lead to extreme weather events and endanger individuals. The willful manipulation of the legal meaning of the term “immediate” in this line of argument is rather transparent: A danger (like the possibility of extreme weather events) becoming more likely does not make that danger more immediate.7 Immediacy invokes a very particular temporal relationship: A future danger removed by multiple years or decades is by its very definition not an immediate one.
(2.) Furthermore, the judge argues that the danger of climate change cannot be averted through other means than through unlawfully entering a bank and staging a protest there.8 This, because the ordinary democratic process (voting, legal demonstrations on public property etc.) is deemed to be “no longer compatible” with the issue of climate change. Not only does this reasoning demonstrate a severe lack of respect for the democratic process. It also shows – once again – a rather cavalier treatment of crucial legal concepts:9 There is simply very little substance to the argument that an illegal protest in a bank has a significant effect on climate change, let alone that it cannot be averted otherwise. The only empirically demonstrated effect of this unlawful entry is the proliferation of news stories covering it. Indeed, there are few acts imaginable that would have less of an effect on the climate of this planet than a publicity stunt of this sort.
(3.) Perhaps most egregiously, the judge posits that art. 17 CC can also be invoked if collective interests are to be protected through the otherwise illegal act, as long as individual legal interests are affected indirectly.10 One almost has to admire the cleverness of this rhetorical trick: Any danger to a collective interest will inevitably also have an indirect effect on individual legal interests.11 It is indeed almost impossible to think of a potential danger in the world (e.g. war, terrorism, economic crises) that would not have (at least) an indirect effect on legal interests of an individual like life, liberty or property. As a result of this line of reasoning, the defense of a situation of necessity could no longer be used only if ones individual legal interests are threatened but for any and all societal ills one wishes to combat.
c) Expanding the exception
The last criterion is of particular relevance because the defense of a situation of necessity is a rather severe infringement of the rights of the injured party. This is usually justified because an even more significant legal interest of the acting party was at stake. To go back to the ex- ample from above: The property rights of the owner of the mountain lodge were violated when the hiker broke in. But this violation may be justified in a very narrow set of circumstances because the life of the hiker was in significant danger. If we follow the argument of this judge, however, individual rights and legal interests would be in constant jeopardy of being violated to serve some collective interest.
The judge claimed that his reasoning would only apply in exceptional circumstances.12 But we know that exceptions are a little bit like black holes. They have a tendency to expand and consume everything in their reach, as Ní Aoláin and Gross have shown in a very comprehensive study of emergency powers and the Rule of Law: “As the boundaries of normalcy and exception are redefined and reshaped, the previously unthinkable may transform into the think- able.”13
Houses could be seized (individual interest) by activists not to escape a dangerous storm for a short time. But simply because they think that not enough social housing is available (collective interest). Commuters could destroy random cars (individual interest) to prevent traffic jams (collective interest). In short, we would go one step further on the path towards the subjugation of the legal position of the individual under the all-encompassing authority of the collective.
There are few cases where one can witness the corruption of (legal) language quite as clearly as in this one: A future danger becomes an immediate one, an ineffective measure becomes the only tool that can stop the danger, and the interests of the collective become the interests of the individual. It seems the dreaded Orwellian motto of “War is Peace, Freedom is Slavery, Ignorance is Strength” has indeed found a home in one contemporary courtroom. And once such corrupted thought has found a foothold in the legal system, it may spread far and wide, since – as Judge Cardozo reminds us – in law there is a “tendency of a principle to expand itself to the limit of its logic”14.
d) Law as a means to an end
Fortunately, the decision from the district court judge was later overturned on appeal and the Federal Supreme Court established in no uncertain terms that breaking the law during a climate protest does not constitute a situation of necessity.15 The decision has, however, not been without consequences. As Justice Jackson argued in his dissent in Korematsu, once a legal principle has been corrupted through a judicial decision it becomes a “loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”16 And so it has happened here: The decision created a permission structure for other judges to redefine statutory and constitutional law to their preferred ends. Ignoring the law for the right reasons (especially protesting climate change) becomes more and more ingrained with every judgement endorsing such a view.
Take the example of another district court judge (this time in Zurich) that categorically refuses to find climate protestors guilty of the crimes they have committed in the course of their protests. In one particular case, this district judge is reported to have stated that the (unauthorized) blocking of streets has to be tolerated since the blockade was in service “of such an important cause”. The judge added to the defendant that she should not be discouraged, that she should carry on and that her kids should be proud of her.17 That the victims of the criminal acts of the protestors in question would – under his theory – no longer be under the protection of the criminal law seems to have escaped him. And that shows the profound danger of viewing law merely as a means to an end: “If law is instrumental, it can serve to oppress and exploit.”18
That none of comments of the judge are valid reasons to declare an acquittal and that the relevant case law clearly points towards a guilty verdict, seem to be of little importance to him. Instead of legal reasons to justify a legal result, the judge uses the cloak of vague political statements to achieve his desired political outcome. This small example of a single judgement serves as an eerie warning of a far larger danger. The danger of our institutions falling into decay because of the spread of a language that “consist[s] largely of euphemism, question-begging and sheer cloudy vagueness.”19
e) Eroding the Rule of Law
Instead of legal concepts with well-established meaning, we get political phrases so vague that they can be made to support any outcome one desires. Instead of judicial reasoning, we get judges that decide cases on the basis of the political opinions of the accused. Instead of a neutral process, we get a purely outcome based jurisprudence. The grave peril of judges abandoning their judicial role in favor of acting as if they were a legislator, deciding cases not according to the law but rather to further their preferred policy outcomes, has been outlined by Montesquieu: “[T]here is no liberty, if the judiciary power be not separated from the legislative and executive.”20 Alexander Hamilton agreed, describing the amalgamation of these powers as the “very definition of tyranny”.21
The cause that lead to this fusion of judicial and legislative reasoning by judges is the corruption of language: It is the consistent process of concept creep that robs legal terms of their clear definitions and therefore the Rule of Law from accomplishing its core function: Delivering clear and predictable results.22
As the legal philosopher Joseph Raz explains, the law must be able to guide the behavior of individuals.23 Therefore the Rule of Law requires that people can determine in advance what the law requires of them, what rights and obligations they have. In short: Legal language needs to create predictability of legal outcomes. This is, as F.A. Hayek established, the crucial mechanism through which the Rule of Law allows individuals to protect themselves from arbitrary governmental interference: “Stripped of all technicalities [the Rule of Law requires] that government in all its actions is bound by rules fixed and announced beforehand-rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge.”24
The hollowing out of legal concepts through the corruption of language is a frontal assault on this core principle of the Rule of Law: “An ambiguous, vague, obscure, or imprecise law is likely to mislead or confuse at least some of those who desire to be guided by it.”25 A world where any (legal) term can mean anything is a world where we can no longer rely on the legal system as a guardian of our rights and liberties. Anyone who may be tempted to distort language to advance their own goals, must be reminded of the perils of giving up the safeguards of liberty: “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”26
II. The corruption spreads through the Living Tree
a) The law as a living organism
One might think that these are isolated instances of individual judges who came astray. Unfor- tunately, they are merely instantiations of a broader intellectual movement geared towards the eradication of clarity, certainty and predictability as the central goals of legal language. This connection is perhaps most evident in the work of Arnaud Nussbaumer, who posits that the Federal Supreme Court should have abandoned the ordinary rules of statutory interpretation in the above-mentioned Lausanne climate protest case to allow the acquittal of the protestors.27 In a similar vein, the climate activist and lawyer Andreas Noll argues that existing law should be interpreted “dynamically” with the desired effect that all climate protests would be removed from the jurisdiction of ordinary courts.28
This dynamic form of statutory interpretation has been theorized by William Eskridge, who argued that judges should regard statutes not as fixed law but rather update them “in light of their present societal, political and legal context”29. This approach is based on a notion of governmental institutions as living organisms that should not remain static but rather in a constant process of evolution.30 The core of this theory is, therefore, that constitutions as well as all other laws should be seen as a Living Tree, in a constant process of growing and renewing itself. Such a view of government has perhaps most prominently been espoused by President Wilson who wanted to interpret the Constitution “according to the Darwinian principle” since he considered the nation to be “a living thing and not a machine”.31 Similarly President Jefferson argued that “laws and institutions must go hand in hand with the progress of the human mind.”32
It is no accident that we find so many supporters of dynamic interpretation to be powerful political leaders. This is primarily because this approach does not limit itself to the fairly narrow interpretive tools of text and history. Instead, in the process of dynamic interpretation judges can search far and wide among the “present societal, political and legal context” to find arguments that justify their preferred outcome in a case. This has been demonstrated most clearly by F.A. Hayek: “Under so vague an authority the Court was inevitably led to adjudicate, not on whether a particular law went beyond the specific powers conferred on the legislatures, […] but whether the ends for which the legislature used its powers were desirable.”33
This also means that such a method would lead to completely unpredictable results, as no one could ever foresee which arguments the interpreter will select among the vastness of the “present societal, political and legal context”. In other words: It is an interpretative theory completely shrouded in uncertainty and vagueness. And this is why dynamic interpretation is embraced by the powerful. Vagueness always empowers the interpreter (i.e. a judge, politician or bureaucrat) who is inherently powerful. The result is a legal system “not seen as an order of binding rules, but increasingly as a tool or weapon to be manipulated to achieve desired ends.”34
The relationship between the desire for power and dynamic interpretation is illustrated particularly clearly in the dissent of Lord Atkin in the case of Liversidge v Anderson. In this well-known case from 1941 the UK government argued that a concept determining the legality of the internment of people with “hostile associations” should be re-interpreted because of the necessities of war. Lord Atkin demonstrated with a reference to the character of Humpty Dumpty from Alice Through the Looking-Glass that such a disregard for ordinary legal interpretation could only be motivated by a desire to defer to the power of governmental authority: “In Eng- land, amidst the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. […] I know of only one authority which might justify the suggested method of construction. “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean, neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be the master, that’s all.””35
b) Textualism and the Rule of Law
The only way to prevent such a corruption of the law for the sole benefit of governmental authority, is to interpret the law not according to the vagaries of societal context but according to its text. That theory – often called textualism – holds in the words of Justice Thomas that the “legislature says in a statute what it means and means in a statute what it says there”.36
Textualism is at its core a doctrine about two central commitments. First, it is about respect for the democratic process. Under the textualist theory of interpretation it is not for a judge to “update” or change the law to make it conform to the necessities and moods of current society.37 Rather it puts that task squarely where it belongs: The legislature. If the law is to be changed then it should be changed by those branches of government that are constitutionally empowered and have the democratic legitimacy to do so.
Second, textualism is essential for the adherence to the Rule of Law. Textualism places primacy not on legislative history or the policy preferences of any given judge. Instead it puts the actual text of the law front and center.38 As a result it is irrelevant if the legislature did not intend to protect a particular group of people with an act of legislation. As Justice Gorsuch explains, the only thing that matters is that the law extends them that protection: “Only the written word is the law, and all persons are entitled to its benefit.”39 This is essential for any system of government under the Rule of Law: The rights and obligations of individuals are not determined by the fleeting whims of lawgivers but only by the text that they have authoritatively enacted and shown to the world for all to see. Only through such an adherence to the text can one clearly ascertain what the law requires and in the words of F.A. Hayek “plan one’s individual affairs on the basis of this knowledge”40.
Such an openly formalist conception of law may not be fashionable in a time where concept creep and the vaguest of political slogans are openly embraced. However, only if the formalities of the constitutional order are respected can the rights and liberties of every individual be safeguarded. Only if we put extreme importance on the exactness and clarity of legal language can we prevent the kind of manipulation of the Rule of Law through the corruption of language we have discussed above. Or, as Justice Scalia has never tired to remind us: “Long live formalism. It is what makes a government a government of laws and not of men.”
Conclusion
The importance of preventing the corruption of language and thereby the law is perhaps best illustrated by a case called Niz-Chavez v. Garland. The case concerned the meaning of the single-letter word “a” in a government document. Justice Gorsuch, writing for the majority, exemplified what it means to live in a system governed by the Rule of Law, where legal protections cannot simply be swept aside to facilitate the plans of government:
„At one level, today’s dispute may seem semantic, focused on a single word, a small one at that. But words are how the law constrains power.“41
Johann-Jakob Chervet (CH)
Education
2022 Dissertation (PhD) in Antitrust Law at the University of Fri- bourg (Switzerland), under the supervision of Prof. Marc Amstutz
Master of Law (MLaw) at the University of Fribourg (Switzerland), summa cum laude – Alumni IUS, Frilex Price for the best GPA of the graduating class.
Prix d’excellence NKF for best master thesis in Commer- cial Law
ACCL Master Award for the best master thesis in Anti- trust at a Swiss university
Magister Juris (MJur) at the University of Oxford (UK), Distinction
Fully financed through a Berrow Foundation Scholarship
Lincoln College Distinction Award
Bachelor of Law (BLaw) at the University of Fribourg (Switzerland), summa cum laude (GPA: 5.85 out of 6), Mentions in European and Religious Law
1 2 3 Cf. Keaten. Decision of the district court of Lausanne, 13.01.2020, PE19.000742, N. 4. Niggli/Muskens, N. 6 ff. Additionally, the interests protected through the act also have to be of a higher or- der than the interests that were harmed.
4 5 6 7 8 9 As Schauer, p. 2434, shows: “The history of law is in no small part the history of its boundaries.” Haslam, p. 1 ff. Decision of the district court of Lausanne, 13.01.2020, PE19.000742, N. 4.2 Cf. Niggli/Muskens, N. 31 ff. Decision of the district court of Lausanne, 13.01.2020, PE19.000742, N. 4.2. Cf. Niggli/Muskens, N. 36 ff.
10 11 12 Decision of the district court of Lausanne, 13.01.2020, PE19.000742, N. 4.1. Cf. Niggli/Muskens, N. 25 ff. Decision of the district court of Lausanne, 13.01.2020, PE19.000742, 4.1.
13 14 15 16 Ní Aoláin/Gross, p. 228. Cardozo, p. 51. BGE 147 IV 297. Jackson J (dissent) in Korematsu v. United States, 323 U.S. 214 (1944), S. 246.
17 18 19 Hürlimann. Nardin, p. 97. A similar sentiment is echoed by Allan, p. 33: «The law serves no specific purpose intended by any political authority; it merely provides the means for the realization of the countless separate purposes of different individuals.» Orwell.
20 21 22 23 24 25 26 Montesquieu, p. 173. Hamilton, p. 235. Raz, p. 214. Raz, p. 214. Hayek, Road to Serfdom, p. 75 f. Raz, p. 214. Franklin.
27 28 29 30 31 32 Nussbaumer. Noll, p. 51, 90. Eskridge, p. 1479. Eskridge, p. 1498 ff. Wilson, p. 121. Jefferson, p. 215.
33 34 35 Hayek, Constitution of Liberty, p. 189. Tamanaha, p. 470. Lord Atkin (dissent) in Liversidge v Anderson , [1942] AC 206, S. 244 f. (emphasis added).
36 37 38 39 40 Thomas J (majority) in Connecticut National Bank v. Germain, 503 U.S. 249 (1992), p. 254. Cf. Scalia, p. 42. Cf. Scalia, p. 17. Gorsuch J (majority) in Bostock v. Clayton County, 590 U.S. ___ (2020), p. 2. F.A. Hayek, Road to Serfdom, p. 75 f.
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