3. Legal helplessness
“But Why Don’t You Fight For Your Rights?”
Legal helplessness is felt before it is proved, assumed before it becomes real. The erosion of the rule of law (i.e. the sense of legal control) is a vicious circle because the less people feel on control of their lives, the more they are willing to forego their civil liberties. Who needs freedoms when one is helpless to use it?
To illustrate the sentiment of legal helplessness I will use a Hungarian example. There are better and worse countries on the planet in terms of the rule of law. But what matters most is the sentiment of whether it is changing in the right direction. Evidence says it doesn’t.
A recent paper by Péter Róbert and Balázs Fekete researched (pdf) discussed Hungarians’ trust in the legal system by asking people how likely they think they were to win a case (in which they are right) against:
1) a neighbour,
2) a boss,
3) a bank,
4) the police,
5) the tax authority,
6) a rich entrepreneur (an oligarch?), or
7) a politician (definitely an oligarch)
The question is purely hypothetical. But a lot depends on the answer. If someone doesn’t feel like he could win a case, even if he was right, it speaks volumes about that legal system. In Hungary’s case the problem is not so much biased judges that are swayed by the politically well-connected. It is the prosecutors who would never bring a case to court if the defendant enjoys the protection of the ruling party. A judge doesn’t get a chance to judge a case, if prosecution is politically motivated to do nothing.
But people don’t necessarily care why they don’t have a chance. They just know that they don’t. Maybe they are wrong, but they think so nonetheless.
In this case the survey participants were asked to rate their chances on a scale of five, where ‘5’ stands for certainty to win the case and ‘1’ means no chance to win. The results were dramatic.
But it gets worse.
When looking at the number of people who thought would definitely win against a certain opponent (if they were right) they found that only 2% thought that they would win against a politician.
If they were otherwise right.
And only 10% thought they would win against a measly neighbour – indicating that it’s not just the fear of the all-powerful oligarchs and above-the-law politicians that plays a part but people feel helpless against the entire legal system. And that was back in 2016, when Hungarian courts were still stubbornly independent, Orbán could only manipulate results by owning the prosecution and making sure cases were never brought against important loyalists.
The mistrust in the system explains why people don’t fight for their rights – and hope for the mercy of the really powerful instead (politicians). Courts are really the solution of last resort when their decisions bear so little relation to rightness or wrongness in people’s minds.
Regulatory helplessness is not far from legal helplessness – even though both should get a mention on their own right.
When even the legal department of a big insurance company feels legally insecure
It is not just salary men and small entrepreneurs who get burnt by opaque rules and hostile public administrators thereof. A housewife can be easily blamed for giving up after the first heavy fine for trying a side hustle without massive legal and bookkeeping background. A food delivery boy might end up sitting around, doing nothing so as to avoid punishment and we are not surprised. But what does it tell about a country when the entire legal department of an insurance giant does the same? A bunch of lawyers who will get their heavy salaries even if the company gets fined and makes a loss? Because it happened.
The legal departments of big insurance companies in Hungary woke up one day in 2011 and saw a new law giving tax exemption to corporate health insurance contributions. This was big news for them. It was a huge opportunity, a new market, something they have always dreamed of. But it was also politically unusual and thus unexpected. Orbán has been a healthcare demagogue ever since he scored a big referendum win against a one (1) euro contribution per doctor’s visit by the patients.* Ever since that he had been the nemesis of private healthcare – and healthcare provision in general.
So the lawyers saw the tax exemption offered for a potentially lucrative business that would have meant a huge boost to their companies – but sat on their hands and did nothing because they didn’t believe Orbán really meant it. Even though it was in the law Orbán issued.
I repeat, the legal departments of huge insurance companies didn’t trust their ability to defend doing business – just because it was allowed by the law – because they assumed it was written into the law by mistake.
If the legal department of a big insurance company is afraid to take an opportunity that has been written in law black and white – what can anyone expect from me?
A legal system might be too slow, too expensive, too complex – not just politically distorted. The impact is the same: the population freezes into a sense of legal helplessness and prays for the mercy and favor of the higher forces (the politically well-connected) instead.
At this point they are only one step away from an autocracy – a strongman who promises to take your side. What can be worse than a system that hasn’t even promised that?
Next: Political helplessness – How many ordinary people does it take to shame a politician?
* Orbán has always been against private healthcare – until he wasn’t. Today, his cronies are building up various “superhospitals” and private clinics (on public money) and once they are ready, you can bet they will get all the legal privileges and tax exemptions – and the patients will be nudged out of the (already) dying public healthcare system, having no choice. But back in 2011 that wasn’t yet obvious.