Unseen Injustices: The Decline of Legal Certainty
In contemporary society, laws often serve a purely declarative purpose. There is neither the means to ensure their enforcement nor to punish violators effectively. The harm from such laws is significant because the principle of the inevitability of punishment no longer applies. If these laws instill fear in anyone, it is not in those seriously intending to commit such crimes.
Furthermore, this practice fosters legal nihilism among the population when it becomes apparent that laws are enforced primarily on paper. What is the point of obeying some laws if others are not adhered to, yet at any moment, the authorities can hold anyone accountable for a contrived reason?
In many countries, there is a joke (and every joke contains a grain of truth) that before appointing a judge, they are asked to review case materials and justify both a guilty and an acquittal verdict. This again underscores that judicial decisions may not depend on case materials at all. At least those who pass this anecdote from mouth to mouth have a persistent belief in such a state of affairs. Therefore, it is not surprising that a large number of laws are practically unenforced.
Examples of such unenforced laws can range from certain traffic regulations to corruption actions accepted in various societies. Tax evasion and concealment also fall into this category, where criminal punishment is rare, even though the offense is widespread.
The idea of the inevitability of punishment was most fully revealed in Cesare Beccaria’s work “On Crimes and Punishments.” The author particularly noted: “It is not the severity but the certainty of punishment that is one of the most effective means of preventing crimes… The certainty of punishment, even if moderate, always produces a stronger impression than the fear of the most severe punishment, if there is hope of impunity.” This idea remains the focus of legal scholars and politicians to this day.
However, even for those caught, punishment is far from inevitable. A good lawyer or lenient application of the law leaves the impression that one can get away unscathed. For example, the speed limit on the highway is 100 km/h. Everyone drives at 120–130 km/h. The punishment is a fine of 200 units of a particular currency. However, this fear does not affect anyone. Each person decides for themselves how much they want to exceed the speed limit, knowing that driving within the limit is almost impossible in the general traffic flow.
You may argue that this concerns an administrative offense. Yes, until an accident occurs and someone gets hurt. But causing harm at such a high speed transforms the offense into a serious criminal one, whereas if the accident happened within the legal speed limit, criminal prosecution might not follow. So when we talk about speed limits, we are talking about laws created for order, prescribing certain punishments, while almost no one actually faces these punishments. Yet if misfortune strikes, the consequences are severe! Essentially, this approach harbors glaring injustice. Everyone drives at such speeds in the flow. Driving slower would cause interference and even create hazardous situations, but should an accident occur (perhaps not even through their fault) with injuries, the driver will be blamed for speeding. Thus, driving on such a highway resembles a mild version of Russian roulette, with one bullet in the revolver’s chamber. Maybe it will misfire, or maybe it will be “lights out.”
As we have mentioned, any developed society has so many laws and rules that it is impossible to live without violating them. There is the humiliating threat of being held accountable for seemingly innocent actions that almost everyone commits, with only the “extreme” being punished.
Tax law violations, for instance, can be one of the most costly and serious offenses in some countries, while in others, almost no one faces prosecution. Often, the state simply does not deal with minor tax violations, understanding that people experiencing financial shortages work or trade under the table. Yet, they also do not focus on major frauds, as big swindlers can buy their way out, which they usually do. And if taxes are collected, they are embezzled by officials. This manifests the dysfunctional tax systems of many third-world countries, and not just them.
The author, in his book “Freedom from Taxes,” suggests improving societal welfare by abolishing traditional taxes. Replacing all taxes with a single, very low automatic tax on all financial transactions in the country would strengthen the economy, prevent deepening economic crises, and create an effective system for mobilizing resources in cases of pandemics, disasters, and wars. This is not a fantasy but an absolute necessity. It is so simple and extremely beneficial for everyone that it is hard to believe such a solution would face resistance.
Modern tax laws potentially criminalize the entire population because any resident can be incriminated for a tax offense. However, look at the statistics of criminal prosecution for tax evasion. Firstly, such cases are not numerous compared to administrative fines. Secondly, the offenses often involve insignificant amounts, not millions, or millions that are fabricated by tax authorities, inflated and exaggerated. This means that criminal prosecution for taxes is applied to exert pressure in cases unrelated to taxes, specifically to settle personal scores and for various other reasons.
Illustrating that a large number of criminals go unpunished can be seen in the statistics of unsolved crimes. An unsolved crime (so-called “cold cases”) is a crime for which the investigation has been suspended and archived (“frozen”) due to the inability to identify the perpetrator. Annually, hundreds of thousands of crimes remain unsolved worldwide.
Some high-profile unsolved crimes attract public attention, media coverage, and become “urban legends.” These crimes play a significant role in popular culture: they are the subject of films, TV series, detective novels, and investigative documentaries. But a vast number of unsolved crimes remain unknown, creating the illusion that law enforcement is effective and that punishment mostly catches up with the criminal. However, these very agencies manipulate statistics to show their brilliant activity. This is not a reproach to law enforcement but a fact that even in a world filled with surveillance cameras and extensive forensic capabilities, a significant number of crimes remain unsolved, as this work is not easy and has never been highly effective. The efficiency of police and the justice system is a myth maintained to intimidate society, keeping it in check. Yet, the reality is that mostly law-abiding citizens, who would not commit major crimes even if they were sure of impunity, believe this myth, while those who engage in crimes professionally know well their chances of remaining unpunished.
The most attention in this area is drawn to cases of theft, robbery, murder, rape, and terrorism. In many countries, there is no statute of limitations for murders, so they are investigated by the police for years, decades, and sometimes more than a century.
Murders go unsolved for many reasons. Sometimes the investigation has no clues or suspects. In some cases, as discussed earlier, judicial errors occur, where a person convicted of murder is acquitted years later. The case is then reopened, but often due to the significant time lapse, the real killer is not found. Sometimes a case also remains unsolved due to the acquittal of the main suspect.
Some crimes have a strong connection to politics, making it difficult for law enforcement to conduct investigations or bring criminals to justice (even if they are identified). For example, in the case of John F. Kennedy’s assassination, there was noted pressure from the U.S. authorities on the investigation and an interest in leaving the case unsolved. In totalitarian, and not only, states, authorities can openly sabotage investigations to stop the resolution of cases involving the murder of unfavorable individuals.
In some instances, the police not only fail to find the killers but also cannot identify the victim. In such cases, the murder victim is given a conditional designation or nickname. Additionally, disappearances present a particular challenge in investigating murders. In such cases, it is difficult to judge a person’s criminal disappearance and likely murder due to the lack of evidence.
In 2008, more than 1.5 million crimes remained unsolved in Russia (about 90,000 unsolved murders). In 2015, there were around 75,000 unsolved murders in Russia.
In 2004, 16,137 murders remained unsolved in the United States. In 2015, 17% of crimes in the U.S. were unsolved, though this figure is likely understated.
In 2010, 1,143 murders committed over 150 years remained unsolved in the United Kingdom (there is no statute of limitations for murders in the UK).
The highest percentage of unsolved murders is probably in Brazil — as of 2014, the number was estimated at 150,000.
But these were just unsolved crimes. The fact is that millions of people disappear worldwide annually, including in civilized countries. The author’s attempt to collect global statistics on such disappearances was unsuccessful; however, looking at the statistics of individual countries, it’s hundreds of thousands of people per year, meaning millions disappear globally! Some are eventually found, including dead, adding to criminal statistics, but many remain missing.
Finally, there are countless cases where a person’s disappearance goes unnoticed or, let’s say, unreported to the authorities (or as often happens, the authorities do not register it). So the true level of unsolved murders is unknown but much higher than found in criminal statistics. What about other crimes? The principle of the inevitability of punishment does not work at all phases, resulting in many people not fearing criminal prosecution. Additionally, some individuals are prone to self-destructive actions and may behave provocatively, committing crimes without considering whether they will be caught or not, knowing that they are rarely caught or punished. This evokes a sense of deep disappointment in the principle of the inevitability of punishment and leads to the conclusion that declaring such principles causes more harm than good, like using a firecracker instead of a pistol.
For example, the fact that anyone can be caught for taxes eliminates the fear of being criminally prosecuted for other relatively harmless reasons. Examples include forgery, bank fraud, insurance fraud, forging minor documents, hiding income when receiving poverty or disability benefits. Rarely is anyone criminally prosecuted for these actions, although criminal liability is certainly provided for in all these cases.
Thus, what is meant to maintain order introduces confusion and blurs the boundaries of acceptable behavior, creating inequality between those who follow the law and those who violate it.
It is necessary to create only such legal acts that can be applied in the overwhelming majority of cases or to restructure systems so that prohibitive laws are unnecessary because the crime would be impossible to commit.
Another aspect is the reduction of actual prison terms. Declaratively, to calm the public, a term is given for a specific crime as provided by the criminal code, but then, for various reasons, the term is significantly reduced.
Imprisonment is necessary only if the offender is dangerous to society. The author is generally against imprisonment as a corrective measure, but such a situation with reduced terms diminishes the degree of the inevitability of punishment.
Society and the state always strive to evade responsibility no less than the individuals who make them up. That is why there are so many “escape routes” in legislation, including within the framework of public trial proceedings. Some things are done by default, while others are used by the parties to the process or involved authorities to timely achieve desired goals without attracting attention from those who should be avoided. These games are played at all levels of the system, and this is inherent in human nature. Punishment is the main goal of such manipulations, as it is the result of the search for truth and justice within the framework of permissible legal options. In other words, it is a product of consensus among the parties based on impersonal and conditional generally acceptable formulations, operating exclusively within the law. Thus, all levels of the process always support the paradoxical possibility of doubt and contestation where it would seem the principle of truth and justice is proclaimed. All types of judicial decisions, except for the provided options (again, conditional, situationally formulated by the legislative power), have the possibility of being “played back.” This kind of “shadow justice,” which no longer attracts public resonance, enters the realm of casuistic routine, loses the appearance of a spectacle, and often becomes more important than the first-level process itself. Amnesty and pardon by the head of state are the highest manifestations of this reverse course possibility, thereby reinforcing injustice and inequality before the law. One person was released on amnesty, while another, who served a decade ago, had to serve the entire sentence because there was no amnesty announced then. Or one person was pardoned by the president, while another, who committed a similar crime, was not.
Depending on the potential of the involved parties and the political climate, some cases are given full attention, and justice is sought, while similar cases under different conditions do not attract proper attention and may even vanish like mirages. Meanwhile, their essence is often far more important for the declared “stability” of social relations. The purpose of many real judicial processes thus becomes the legitimization of avoiding responsibility, not the inevitability of punishment. Moreover, the inability to render a full verdict in several cases over time may create the possibility of changing current law rather than applying it in real life.
