When thinking about a recent spat on my Twitter timeline (involving protests against traffic tickets perceived as unfair), a train of thought I have had many times already surfaced again:
Theory: People accustomed to continental civil law system don't fully appreciate purpose + potential of lawsuits. I'll blog about it…
— Florian Prischl (@flo_p) July 11, 2012
Lawsuits are not a pleasant activity for most people. They are complicated, jargon-riddled exercises, and very often exercises of futility. They cost time, sweat and money.
However, lawsuits serve a fundamental, often overlooked purpose: They are actions for justice. Each and every lawsuit, as a principle, is a series of acts intended to correct some flaw in society and, through such correction, lead to more justice. Of course, what counts as “justice” will vary wildly from society to society, and some societies will use laws lawsuits to deprive people of their inalienable rights to life, liberty and the pursuit of happiness.
A second disclaimer is, unfortunately, also necessary: While I praise the fundamental function of lawsuits, I know that in all societies, they are flawed processes both by intention and design, and that through such deficiencies they can lead to monstrous injustice. Just to name a few examples, lawsuits are used to simply harass people, destroy their livelihoods or even kill them, effects which are sometimes achieved already with the threat of a lawsuit (a fact which, by itself, shows the perversity of the system we chose to uphold).
Back on message: Lawsuits and their outcomes (judgments, court orders, etc.) are the judiciary’s only means of interaction with the rest of the state. The judiciary’s primary function in a state with separated powers (legislative, executive, and judiciary) is to ensure that the executive is held to the laws enacted by the legislature. That explains my earlier statement that lawsuits and their outcomes serve justice – recall that laws are, primarily, enacted by society to enact justice. When laws are broken without consequences, there can be no justice.
“But the executive is only the government and its agents! How does this concern me?” you might ask. In fact, the executive branch of the state, the power that brings laws to life, is everyone in the state – government, its agents, private citizens and corporations. When you buy a pair of shoes, you (and the person you buy from) rely upon and enact laws just like a police officer when she arrests someone. Executive power rests in all of us.
The judiciary’s secondary function concerns the legislative power of the state. In most societies, laws are ordered in a hierarchy; with some sort of law at the top to which all other laws must adhere (this is commonly called a constitution). A judiciary must principally adhere to that constitution and void any law which runs counter to that constitution. There are many ways to achieve this: One might be to forbid the executive from carrying out actions which might be permitted under a vague law but which violate the constitution; another might be to void a law which, while formally enacted correctly, materially violates the constitution.
What does this mean for my hypothesis? Since the judiciary watches over the executive and the legislative and since court orders (which only result from lawsuits) are the only means to carry out that watchdog function, lawsuits of all kinds are the last line of defense for justice in a rule-of-law-state.
As a result, you should use this defensive mechanism whenever you perceive injustice within the state. This is contrary to what I believe many people, mostly continental Europeans, expect from lawsuits. They view them as described above, and if they use them actively, it is only for personal gain instead of justice (although the two might be the same). Hardly any European (and no Austrian…) would think of suing the state. We need to get rid of the notion that executive power is just. Under the rule of law, only the judiciary can make sure that justice is served.