"In Times of War, the Law Falls Silent"

Ciceronianus

This is a phrase attributed to Cicero. It's been used in support of claims that the law has no application in wartime, i.e. that in war laws and the rule of law may be ignored, or are ignored, or should be ignored--in short, it's been used to justify, or at least explain, acts which would be deemed criminal or unlawful in normal circumstances if committed during a war.

Cicero in fact said (or wrote) something similar, but not the same. The phrase is a translation of the Latin "Inter arma enim silent legis"[/i] Cicero's actual words were "Silent enim lēgēs inter arma." The order of words in Latin may be disregarded, sometimes. In those cases, actual meaning may be a matter of context or emphasis. In the case of the popular translation of this phrase, however, not only has context been ignored, but the Latin words themselves have been mistranslated.

Cicero wasn't referring to war at all. That word doesn't appear in the phrase. He was referring, instead, to violence by armed mobs supporting two politicians. One was his friend, Titus Annius Milo. The other was Publius Clodius Pulcher, Milo's political enemy. At the end of the Roman Republic, it wasn't uncommon for rival politicians to hire and arm men (sometimes gladiators) to intimidate and even harm their opponents and their supporters. Pulcher was killed during one confrontation, and Milo was put on trial for murder. Milo got himself a good lawyer, who was of course Cicero.

The phrase was used by Cicero in support of one particular argument--that where armed mobs supporting politicians clash, bodily harm or death is to be expected, but death of one of the politicians during the clash of arms isn't properly considered murder by his political opponent, as "murder" is defined in the law. The law prohibiting murder is muted, in effect (not "silent"--that word in Latin isn't the same as "silent" in English). The argument (my interpretation) is that in such conflicts, consideration must be given to such mitigating factors as self-defense.

It happens to be the case that there are those in our Glorious Republic (which I hope won't suffer the same fate as that of Rome) encouraging political violence, and the imposition of martial law, all for the benefit of one politician in particular. I think it's likely this "maxim" will be noted sometime by those doing the encouraging, though it's probable they'll claim that an undeclared war of some kind is being fought and civil liberties may be disregarded (as was maintained in the case of 9/11 for example). Properly understood, I don't think Cicero can be relied on where the existence of a war is claimed. But it's possible he may be where harm results from the clash of armed mobs, each supporting a particular politician or political point of view.

Did Cicero make a legitimate point, or is this a case where Cicero the lawyer overcame Cicero the philosopher/statesman, and sanctioned violence?

I'm not sure where this should be posted--political philosophy, ethics, philosophy of law? I dunno. I leave that to the discretion of the moderators. If you got this far, thank you for your patience.

P.S. Milo was condemned, but his punishment was banishment.

Jack Cummins

↪Ciceronianus the White

I may be interpreted what you have said in a different way than you intended, but at the moment we are in a time of pandemic, equal to a world war, with sanctions, especially in England.In particular, new legislation is being introduced constantly and it is not even clear, because it keeps changing.

Today I have been struggling with the legalities of restrictions, feeling that we are being torn asunder, with conflicts of duty. I am struggling to go to my mother for Christmas. She has a number of serious health problems and I am the only relative, and I have to travel, on public transport from London to another town in the same tier, for Christmas. I fear how she will cope psychologically if I did not come, and the news suggested that sanctions may be in place for about 4 months, so
it is not simply about Christmas really.

However, I am worried about being arrested with travel restrictions amidst a more serious strain of being of Covid_19 being raised as a reason to introduce new laws ovenight. I probably would not be travelling based on my reading of regulations, and the concerns about viral contagion, but my mother's friend has persuaded me that I should go, even though as far as I see it is a grey area.

I am unsure if by travelling I am breaking the law, or if the law is becoming an increasingly unhelpful guideline. I have spent the whole of the day struggling over the ethical and legal issues, feeling that whatever choice I make it is probably wrong in some senses. I am sure that others are juggling such dilemmas and I cannot be the only one, and, really by beginning from my own personal issues, I wish to go beyond, as I cannot believe that many people are not struggling with dilemmas, probably on a much larger scale.

For the present time at least, the 9/11 terrorist threat is lesser, so I am wondering if the idea of breaking the law in the face of the pandemic is an important take on the story of Cicero. My own view would extend to querying to what extent should we be prepared or justified in committing crimes in the face of the pandemic, including to helping to address the needs of others, including those facing poverty and homelessness? We could even ask to what extent will violence be justified if government legislation fails to meet the concerns and needs of people?

But saying what I have said, I am only asking questions because there is still the issue of the reality of viral contagion. Also, on a wider scale the whole issue of violence to protect oneself and others, or even nations? What would happen if violence between global forces erupted in the process? How far would the philosophy of Cicero stand up, to protect our needs, and what role would law take in determining the fate of humanity?

Ciceronianus

I don't know enough about the law in England to comment on what is or isn't prohibited, what sanctions apply if the law is violated or whether there are any exceptions to prohibitions on travel.

Cicero wasn't addressing a situation where extraordinary laws were implemented in response to extraordinary circumstances, however. He was addressing whether ordinary law (normal law prohibiting murder) should have application in circumstances to which--he was arguing--it wasn't intended to be applied, or shouldn't be applied as it would normally be applied, due to extraordinary circumstances.

The pandemic related restrictions on travel are examples of laws being created which prohibit conduct which wasn't prohibited previously. Cicero was arguing that established law shouldn't have application in particular circumstances. I don't think Cicero's argument apply to pandemic-related restrictions.

This isn't to say all such restrictions are defensible or should be honored, though.

Jack Cummins

↪Ciceronianus the White

I see what you are saying. However, I have no idea of what part of the world you are in, and perhaps you are living in a life which has not been affected by the pandemic.

My particular take on Cicero is based on a view that we are currently living in an extraordinary times, and thereby extraordinary circumstances are the prevailing ones. Any application of a thinker from the past is questionable because they lived their lives in a different social and historical context.

We can begin from the basics of the arguments of philosophers such as Cicero, but each of the philosophers was a person forming those views, so all attempts to apply their views to our times is imagination and interpretation, in relation to the general rather than the specific.

He was stating that, 'In times of war, the law falls silent', and it does express a truth for all times for us to consider, and is useful for seeing beyond the limits of law, especially in the face of conflict, and this can be a useful insight to guide our critical thinking.

.

Benkei

Did Cicero make a legitimate point, or is this a case where Cicero the lawyer overcame Cicero the philosopher/statesman, and sanctioned violence? — Ciceronianus the White

Although I have only read Cicero via second hand accounts in relation to the just war theory, I see in my notes from 16 years ago (eek!) that he distinguished between civil wars and regular war. And like those before him he was of the opinion that wars were covered by different rules (but not lawless).

I'm not sure whether he considered this political spat a civil war. If he did, he was still being consistent with his beliefs. If he didn't, then he was still being consistent with his job as a lawyer, which is to represent his client to the best of his ability. In both cases he made a legitimate point.

That said, I would have to say that this doesn't constitute murder unless his client can be proved to have given the deadly stroke. That is the only way murder can be applied. I'm not an expert on Roman law but I suspect it did not have some of the criminal acts that modern criminal codes have defined. Nowadays we have crimes for the solicitation of violence and, at least in continental criminal codes (and probably anglo-saxon as well but I simply don't know), crimes for group violence leading to death. In the latter case, you only need to prove a person participated in the violence and that the combined violence led to that person's death not that a specific person caused a specific death. As a result the law can hardly be said to be silent on the matter by modern standards.

More generally, I do agree regular civil and cirminal laws break down at some point. I don't think the dictates of public conscience are silent then but simply cannot be enforced. So it's not a break down of law but a break down of an enforcement mechanism. We hope this is when ethics trump laws and civil disobedience or even rebellion become a moral imperative. Sadly, it's often due to power vacuums and the struggle of competing groups to fill that void without a clear moral high ground of one group over another.

TheMadFool

Silent enim lēgēs inter arma. — Ciceronianus the White

Let's add one more to the list of occasions when the laws are silent shall we?

All is fair in [love and] war — John Lyly's Euphues

.

Reminds me of the time when I was working on something. Halfway through the process I desperately needed a specific tool - I think it was a wrench or pliers I forget - for the job. Couldn't, for the life of me, find it.

Outlander

↪TheMadFool

In this context a 'law' is a decree or rule that can be enforced. I can say "Hey, everyone in my house has to wear pink socks to get in". Sure, I can ensure anyone I allow through my front door is wearing pink socks and threaten anyone who attempts to enter without with a trespassing charge or have them removed. No big deal. However, if I had said everyone on my block must wear pink socks, seeing as I have neither the means nor influence to enforce it, it's not a law. Is it?

Did Cicero make a legitimate point, or is this a case where Cicero the lawyer overcame Cicero the philosopher/statesman, and sanctioned violence? — Ciceronianus the White

Interestingly enough. If the article is historically accurate..

The encounter between the two groups passed without incident until the last pair at the back of each train began a scuffle. It was then believed that Clodius turned back and was wounded by a javelin thrown by one of the gladiators in Milo's party. — Wikipedia

Entirely depends on the facts of the case. Facts we will never know it would seem.

Ironically, just as it is purported the Roman Republic fell from internal conflict while the Roman Empire fell from external conflict, it would seem (and I could be so wrong) that perhaps Clodius' death was from a direct result of failure to ensure his own internal forces were loyal/under control/Stoic enough to avoid non-diplomatic squabbles (street violence). It's said Clodius' "group" were slaves, so perhaps they had nothing to lose really. I bet it was Milo's gladiators who first muttered the "s" word toward them who started it. Which also draws some of the "external conflict" into play in this event.

Long story short- "That's So Roman" .. *ba dum tss*

Brett

↪Ciceronianus the White

A very interesting OP.

My first thought is that in this situation Cicero is acting as a defence lawyer, not as a philosopher. His intention in defending Milo is to use the law to protect his client. It’s not about philosophy and it’s not about justice.

In using “Silent enim lēgēs inter arma” as his defence for Milo he was applying what he new the judges, or judge, considered reasonable grounds for a defence, otherwise he would not have chosen to use it, and in fact it seems to have worked.

The common use of others to intimidate the opposition in politics was obviously not uncommon as you say. And obviously “ Silent enim lēgēs inter arma” was not uncommon as a defence either.

I don’t think by using this defence he necessarily sanctioned violence. He made a pragmatic choice. Today lawyers representing high profile murder cases use whatever means they can to reduce the sentence of their client, even though the evidence is clear enough that the person is guilty. That doesn’t mean they support violence. Though it may say something about their moral, it’s certainly clear about their professionalism.

It’s also hard to know where to draw the line in political violence as well as how implicated the politician being supported by violence is complicit, and in the case of Publius Clodius Pulcher, how complicit Milo is in his death. Whatever the nature of the violence, political or criminal, it makes no difference to the dead and the family of the dead. And how many dead is acceptable, and for what cause? How do we measure the ratio of dead to the cause? From what I understand about the bombing of Hiroshima and Nagasaki and the death toll, it was nothing compared to the potential overall deaths if Allied forces had invaded Japan.

In the case of street violence over politics I can’t see any reason to condone it. A mob is a mob. And lives are not at stake over the selection of political figures. In a Democratic state why the necessity for violence except to intimidate? Whatever the reasons of the mob the violence is contrary to the idea of representation through free elections.

However this argument doesn’t address other situations where the law may fall silent.

Edit: just as a second thought, it occurs to me that the real meaning of the sentence is: In times war, morals fall silent.

ChatteringMonkey

↪Ciceronianus the White

Politics does precede and transcend the law, because it decides what the laws are going to be. Typically a political body like parliament votes and determines the laws, and the legal system can only interpret and apply them. Although, as I write this down, I'm wondering if this is equally the case in common law and continental law. At least continental legal systems seem to accept the primacy of the political over the legal.

The point I wanted to get to, is that given this primacy of the political, in some sense political action puts the laws themselves into question... i.e. political action is precisely aimed at changing how a society and its institutions are organised. So there does seem to be an inherent tension here in principle, in that you are trying to judge political action by the very system and standards they are seeking to change.

And viewed in the context of history, I think you could also make the case that reforming political systems would, in a lot of cases, not have been possible without breaking the law. I think Thrasymachus was to some extend right with his claim that justice is the advantage of the stronger, if only as a descriptive claim that is true at least some of the time. If you live in an authoritarian society where the ruling class determines the laws and dominates the institutions, there may be no other way than breaking the law to achieve political change.

Ciceronianus

Cicero not only argued that the law shouldn't apply in certain circumstances, but later circumvented the law after he became consul of Rome in response to what's been called "the Catiline conspiracy" (in fact the second Catiline conspiracy, but it's the second one that's most remembered--Sallust authored a work about the conspiracy).

Roman senator Lucius Sergius Catilina, other former senators, and some disaffected followers of the former dictator Lucius Cornelius Sulla (I rejoice in the names of the ancient Romans--I'm not sure why) conspired to assassinate Cicero and his co-counsel Gaius Antonius Hybrida and gain power for themselves. Catilina was an unsuccessful candidate for election as consul the year Cicero won.

Long story short, as they say, Cicero became aware of the plot and those conspirators at hand were rounded up. Cicero convened the Senate, which sanctioned the summary execution of the five conspirators captured. Catilina and most of his army of rebellion were killed subsequently in battle.

The conspirators were entitled to trial under the law, however, before execution and were deprived of it by action of Cicero and the senate, over the objections of Gaius Julius Caesar, interestingly enough.

Cicero thought that he'd saved the Republic by his prompt action, and was fond of reminding Romans that he'd done so. It's likely he did. But it's been thought by some that if he saved it he saved it by violating the law.

It can be maintained that the situation was one inter arma--in the midst of a clash of arms, and the extremity of the circumstances justified the "muting" of the law, and Cicero was acting in accord with his own maxim. But Cicero as consul wasn't acting as Cicero the lawyer, defending a client against the charge of murder. Cicero the lawyer, had he been retained by the conspirators, would have joined Caesar in objecting to the executions without trial as contrary to law. Cicero the consul was violating the law, though he was wise enough to obtain the senate's consent to the executions and so couldn't be said to have done so himself.

Every lawyer must struggle with the fact that a lawyer's duty may require him/her to persuade others that the law shouldn't be applied in certain circumstances or should be interpreted in a way that precludes its application. For some the struggle is short-lived. Speaking for myself, the struggle is difficult, and lately I've been disgusted by the conduct of some of my brothers and sisters at the bar here in our Great Union.

But I'm not addressing that struggle here. Obviously I'm a Ciceronian; I admire him greatly. But I question whether the rule of law should be ignored even in times of war or crisis--whether certain laws, at least, should be disregarded. Here in the U.S. Thomas Jefferson and Abraham Lincoln threw the rule of habeas corpus out the window as it suited them. Woodrow Wilson was a marvel, a pioneer, in restricting civil liberties during WWI. In what sense was disregarding the law proper? Is there any evidence that doing so achieved anything?

Brett

↪Ciceronianus the White

In what sense was disregarding the law proper? Is there any evidence that doing so achieved anything? — Ciceronianus the White

First of all, to my mind, one can only play with the law if they have sufficient power. Even the mob cannot bend the law to their purpose. So then we are talking about an act of power.

Is there evidence that doing so achieved anything? From whose perspective are we asking? For those in power disregarding the law serves their purpose. That might be a decision made behind closed doors in times of war, or even in a situation like a pandemic. Whatever, those decisions disregarding the law are made with the intention of making the right decision in the circumstances they find themselves. What is the right decision? Because that determines if the law is to be disregarded and to what extent.

In the instance of suspected terrorists imprisoned in Guantanamo Bay Detention Centre the decision on how to treat those people was, presumably, based on gaining as quickly as possible information for the fight against terrorism. As it turned out just about every decision was wrong. There are innumerable reasons why it was “wrong” but there are also innumerable reasons why it did nothing to help the fight, in fact might have held back progress. Did it achieve anything? I can’t see that it did.

But there’s another aspect to disregarding the law, which is moral. Why do we have morals and laws? It seems to me that they serve the purpose of guiding us through these troublesome periods. Whenever we come against a dilemma we don’t have to sit down and discuss the problem from scratch. We already have a set of morals and laws that address such situations. In law we refer back to precedents, in culture we have a set of moral precepts. Those are what we act on.

How can we keep eroding those laws and morals without damaging ourselves?

In the case of soldiers losing control of themselves and killing civilians we might say that a law may be disregarded because of circumstances which we cannot imagine. But the fact that the law should be disregarded suggests a crime has been committed and we know it.

Brett

“Using the best data available on the causes and outcomes of every civil rights and liberties case decided by the Supreme Court over the past six decades and employing methods chosen and tuned especially for this problem, our analyses demonstrate that when crises threaten the nation’s security, the justices are substantially more likely to curtail rights and liberties than when peace prevails. Yet paradoxically, and in contradiction to virtually every theory of crisis jurisprudence, war appears to affect only cases that are unrelated to the war. For these cases, the effect of war and other international crises is so substantial, persistent, and consistent that it may sur- prise even those commentators who long have argued that the Court rallies around the flag in times of crisis. On the other hand, we find no evidence that cases most directly related to the war are affected.” https://gking.harvard.edu/files/gking/files/crisis.pdf

Ciceronianus

Is there evidence that doing so achieved anything? From whose perspective are we asking? — Brett

I think we should, at the least, ask if there is any evidence supporting the claim that the circumstances are (or were) such as to justify disregard of the law. Typically, justification is supposedly based on the need to prevent grievous harm. So, for me at least, a question arises immediately: What supports the claim there is such a need? If the claim is unsupported, another question should be asked: Why should the law be disregarded?

In the case of the Cataline Conspiracy, it isn't clear to me that immediate execution of the conspirators was justified. I suppose we can't know all the circumstances at the time, but imprisoning the conspirators until they were tried strikes me as sufficient enough to prevent them from pursuing the conspiracy, if preventing them from doing so was the justification given for killing them without trial.

As far as I know, no evidence supported the need to restrict the rights of Japanese-Americans in WII, or the censorship and repression imposed by the Wilson administration in WWI, for example. So it strikes me that, preliminarily at least, we have to ask whether we're "muting" the law merely because we assume that doing so is required to protect ourselves from harm which may occur--harm which would be greater than the harm resulting from disregarding the rule of law. If we are, we're not doing much at all to support disregard of the law.

Cicero's "maxim" may be factual in the sense that we typically dispense with the law in what we think are times of war or emergency situations, but can't be used to support doing so.

Brett

↪Ciceronianus the White

I don’t know much about Cicero, but it seems to me, from what you’ve written, that he was, if anything, pragmatic. When he needed it he wore his lawyer hat, when needed his philosopher or Consul hat he wore it. So it appears to me that, for Cicero and others who disregard the law, the end justifies the means. Cicero prevailed against the objections over the execution of the conspirators and as a result, he believed, saved the Republic.

From my understanding of early history the most effective way to make sure conspirators can never succeed against you is to remove the ever present threat of them and their families. Cicero did this by first denying the conspirators a trial then having them executed. This is a person who has a Machiavellian view of the world.

So, are these also the people who can find the Will to disregard existing laws for a future objective, who can make sacrifices others pay for? There have been leaders who have done this and prevailed against forces that were potentially destructive to their country. Would those countries security have been achieved without those decisions that disregarded the law.

In answer to your question “we should, at the least, ask if there is any evidence supporting the claim that the circumstances are (or were) such as to justify disregard of the law”, then there appears to be evidence for those decisions.
I also think if those decisions are made in battle and the battle is won, even with a high human toll, then there would be a lot less questioning of the decision than if the battle was lost and the human toll was high.

What supports the claim there is such a need? If the claim is unsupported, another question should be asked: Why should the law be disregarded? — Ciceronianus the White

In the case of the Cataline Conspiracy, if the Republic was saved then it might be justified. But there are two things that need to be addressed. Would the Republic have been saved if they were only imprisoned, and how can they be sure the removal of those men, by imprisonment or execution, saved the Republic?

Cicero's "maxim" may be factual in the sense that we typically dispense with the law in what we think are times of war or emergency situations, but can't be used to support doing so. — Ciceronianus the White

What situation could there be, where the law was to be dispensed with, that could prove it necessary before dispensing the law. It seems to me that from the point of view of those dispensing with the law they’re saying that it’s only by dispensing the law in the first place that we will know how necessary it was.

Disregarding the law is based on what might happen. That seems to me an unreasonable response to a possible future. If it was based on previous experience then you would imagine the law would have already been changed constitutionally to address real facts. So in a way the act of disregarding the law may be said to be based on fear of the unknown. Is that rational or not?

The findings of the Harvard research are interesting in that “in contradiction to virtually every theory of crisis jurisprudence, war appears to affect only cases that are unrelated to the war. For these cases, the effect of war and other international crises is so substantial, persistent, and consistent that it may surprise even those commentators who long have argued that the Court rallies around the flag in times of crisis. On the other hand, we find no evidence that cases most directly related to the war are affected.” https://gking.harvard.edu/files/gking/files/crisis.pdf

Ciceronianus

What situation could there be, where the law was to be dispensed with, that could prove it necessary before dispensing the law. It seems to me that from the point of view of those dispensing with the law they’re saying that it’s only by dispensing the law in the first place that we will know how necessary it was. — Brett

For me, that's an inadequate response--X is necessary because we must do X in order to know X is necessary isn't an argument I find acceptable. What might be acceptable evidence is information establishing with certainty or to a reasonable degree of probability (sorry for using this lawyer-language) that if the law isn't disregarded, then great harm will result. That's a heavy burden of proof, but I think that burden should be applied when the rule of law is threatened.

afterthegame

Did Cicero make a legitimate point, or is this a case where Cicero the lawyer overcame Cicero the philosopher/statesman, and sanctioned violence? — Ciceronianus the White

There is a broader debate about modern laws, but I will stick to what, to my mind, is going on in Cicero's speech defending Milo.

This idea that

He was addressing whether ordinary law ... should have application in circumstances ... it wasn't intended to be applied ... due to extraordinary circumstances. — Ciceronianus the White

That is not quite what is going on. If you have a look at that part in the full speech you see that Cicero is making a very orthodox legal argument, namely, "this is a clear-cut case of self-defense. We all have right to defend ourselves. The law lets us kill robbers who come to us in the night. Logically, this principle should apply in this situation."

The law referred to there is from the Twelve Tables - the Roman equivalent of, mutatis mutandis, the British Magna Carta, or the US constitution.

Appealing to a fundamental principle and extending it to cover unique situations is extremely common across legal systems.

(SOURCE: http://www.perseus.tufts.edu/hopper/text?doc=Perseus%3Atext%3A1999.02.0020%3Atext%3DMil.%3Asection%3D11)

afterthegame

That is not to say that all the enlightened and erudite commentators in this thread, including yourself, are on a wild goose chase. It is a fascinating question that you pose, I am just not sure that Cicero was asking it himself.

↪Ciceronianus the White

afterthegame

Ironically enough, because of a loud and angry mob in the courtroom Cicero was intimidated into silence and did not finish his closing speech. Milo was promptly convicted and exiled.

It seems "amidst the clash of arms" Cicero himself fell victim to the silence of the law :)

Brett

↪Ciceronianus the White

For me, that's an inadequate response--X is necessary because we must do X in order to know X is necessary isn't an argument I find acceptable. — Ciceronianus the White

No it’s not an argument I find acceptable, which is what I meant. But it’s also an easy argument made in comfort and security, which to some degree has been given to me by people who may have disregarded certain laws in the past.

What might be acceptable evidence is information establishing with certainty or to a reasonable degree of probability (sorry for using this lawyer-language) that if the law isn't disregarded, then great harm will result. That's a heavy burden of proof, but I think that burden should be applied when the rule of law is threatened. — Ciceronianus the White

What would a reasonable degree of probability, how can we decide that before it’s required? Especially under conditions of stress, or too little time or limited information. Maybe this depends to a large degree on the people who make these decisions, who we elect to govern us? Then again the same people governing during a period of peace may not be the people needed in more stressful times.

How do you think you might respond in a similar situation? Is there a situation where if you could, or had to, you might disregard the law?

Ciceronianus

That is not quite what is going on. If you have a look at that part in the full speech you see that Cicero is making a very orthodox legal argument, namely, "this is a clear-cut case of self-defense. We all have right to defend ourselves. The law lets us kill robbers who come to us in the night. Logically, this principle should apply in this situation." — afterthegame

Very true. But that argument is one that derives from the claim that ordinary law (prohibiting killing anyone) should not apply in extraordinary circumstances (where one's life is threatened and killing someone is reasonably necessary to protect oneself).

Ciceronianus

What would a reasonable degree of probability, how can we decide that before it’s required? Especially under conditions of stress, or too little time or limited information. Maybe this depends to a large degree on the people who make these decisions, who we elect to govern us? Then again the same people governing during a period of peace may not be the people needed in more stressful times.

How do you think you might respond in a similar situation? Is there a situation where if you could, or had to, you might disregard the law? — Brett

The decision would be a hard one to make, but I would maintain it should be when it comes to disregarding the law. The claim that war or other extraordinary circumstance requires dispensing with the rule of law is an easy one to make. It may even be a "natural" one to make in the sense that it seems to be a matter of common sense. Why should those who seek to do harm receive the protection of the law?

The problem, though, is determining whether those in question seek to do harm. The assumption that a person intended to do harm is one that's in opposition to the position that one is innocent until proven guilty, and must be tried before conviction. The assumption is contrary to our system of criminal law (in the U.S.). So, we normally make no such assumption. We have to ask ourselves what is it that justifies making that assumption in extraordinary circumstances.

As I said, I'm not aware of any evidence supporting that assumption, at least as a rule.

If there is evidence that someone, or some group of people, intend to do harm by engaging in criminal activity, have the means to do harm and the opportunity to do the intended harm is imminent, that might justify detaining the individual or the group. But that is supposed to happen in normal circumstances as well; that would be probable cause to detain, or to search. I'm not sure why that standard wouldn't apply in extraordinary circumstances as well as ordinary circumstances.

Brett

↪Ciceronianus the White

The problem, though, is determining whether those in question seek to do harm. The assumption that a person intended to do harm is one that's in opposition to the position that one is innocent until proven guilty, and must be tried before conviction. — Ciceronianus the White

In the case of Japanese interned in California when war broke out it was done because of what they might do as Japanese people, what US officials imagined they might do. It’s bad enough to treat someone as guilty until proven innocent, and in such case at least a crime was committed to which they were connected. But the idea of imprisoning someone because of what they might do, as with the Japanese, what the paranoid minds of officials think might happen is extraordinary. Ultimately it means imprisonment for anyone who might present a problem in the mind of others. But based on what: physical features, skin colour, religion, the things they read, the things they eat?

"In Times of War, the Law Falls Silent"

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