A Too Rigid Law

There are certain news stories that, paradoxically, stand out only in their very ordinariness. They highlight the workings of our historical era and put our systemic thought on display. Such is the case with the story of Fatma and Khaled Wahabe—a story unremarkable and of no definitive importance, but all the more interesting and telling for that very reason. Their untimely and tragic death shines light on the inhuman mechanism of law and justice that has taken root in the post-9/11 era.

This mother and son were killed by an IDF missile meant for a group of fleeing militants. In their home, mother and son died as innocents in a war that enveloped their lives. Moreover, the Wahabe family sued for damages after the incident. Their lawsuit denied, the missile launch declared legitimate, the Israeli government demanded payment for legal fees. The family has to pay for having asked for a recognition of the injustice of their suffering, and this in addition to the suffering itself. 

But this is not to vilify Israel. Nor is it to say that Israel’s military operation was, in this case, unjustified. This incident is meant to demonstrate a more ubiquitous problem—that of the inflexibility of law and the inhumanity surrounding its deployment. Israel, I imagine, is right that the firing of the missile was legitimate, that they were under no legal obligation to pay reparations, and that they had the (legal) right to have their experiences recuperated. It is this very system of justification that is problematic. 

Legal and social institutions were built in order to ease human lives and to ensure, as much as possible, human happiness or flourishing (or so says every state of nature myth). These systems were created for the purpose of increasing what is human in the world, to protect and grow what it is that makes us, us. The very essence of law, then, is suppose to be something human.

But what Israel has exemplified, in the case of the Wahabes, is the mechanic idea of law. What is right and what will be done is what the law says. Not only will the Wahabes not receive any benefits in light of their tragedy, but they will in fact pay the State because the law says that this is what will be done. The law, in this thinking, lies outside of human agency, outside of any ethical or moral principles that one might hold, and outside of any considerations—of any concrete or particular sort—of what a human life is.  In reality the law says that the Wahabes could be forced to pay the legal fees. To go so far as to demand those fees is to grant the law a mechanical existence to the law that is supra-human and to which humans must then cater.

But if the law is a human creation to be used for the furthering of human lives, it cannot have anything close to this character. It must always retain the indelible mark of humanity. Consideration for the tragedy that befalls a human life, then, must forever be the guiding principle of any legal decision. This is the problem of Joseph K, the problem of an obscurity antithetical to the stated purpose of law, and, despite Kafka’s influence, still the problem of our times.

Illegal immigrants are deported or held in holding cells without recourse because, according to the law, they are not equally as much a person as a citizen is. A woman will die because her ailment is not legally covered by her insurance. The Wahabes will pay legal fees. And, of course, in a platitude that marks the ultimate limit to everything modern, the road to the Final Solution was paved by removing the legal category of person from every Jew. In all of these cases, in degrees ranging from the mundane to the limit of the thinkable, law was made inhuman through a rigidity that denies the very thing it was created for. In it’s structure, it forbids its own end.

It is easy to forget that this paradigm comes into being only through particular human actions. The (legal) denial of what is human is done by humans—not only those who vote for or strike down the laws, but those who sign the forms, who sit behind desks and deny advice, who, in their daily work, perform the minute tasks that allow for law to take this inhuman form. Hannah Arendt pointed out of the banality of evil—I will point out the human banality of inhuman law. Of course, these actions are forced by other laws: by the possibility of being fired, of being jailed oneself, etc. Becoming aware of this fact is not enough. But to recognize the incoherence of this legal paradigm we find ourselves in is enough to allow us to use its parts against the whole and to give space for human life to exist.