One good thing about the judiciary in former communist Europe was that no one, including party apparatchiks, believed its fraudulent language. This was the main reason the system collapsed. Court proceedings against political dissidents – officially dubbed “hostile elements” or “Western-sponsored fascist infiltrators” – were make-believe travesties where prosecutors projected their real Self into their other embellished and imaginary Double-Self, well aware their legal palaver was a litany of fabricated lies. Communist judicial fallacy became visible shortly after the breakup of the communist system in the early 1990s, prompting thousands of communist judges and legislators all over Eastern Europe to embrace overnight the newly Western-imported liberal judicial mimicry.

Although using different qualifiers, the modern judiciary in the West and particularly in the USA is rapidly becoming a mirror image of the communist judiciary. In contrast to mistrustful citizens in former communist Eastern Europe, however, millions of Americans and thousands of legal experts truly believe that the American judiciary is the best in the world. But the current plague of lawfare lawsuits and prosecutions in the USA and its dominion, the EU, tell otherwise. The American judiciary can best be grasped by an outsider when its legalese is compared with the former communist legalese or when it is mistranslated and implemented into the EU judiciary.

Verbal and Legal Anomaly

Similar to the communist judiciary and its arsenal of demonizing verbal constructs designed for political dissidents, the American DOJ, along with media outlets, increasingly resort to criminalizing denominations of political opponents. “Give me the man and I will give you the case against him,” was a widespread legal practice in former communist states in Eastern Europe. Similar fabricated charges can now be easily framed against free thinkers, writers, and whistleblowers critical of government conduct. An unarmed January 6, 2021 Capitol trespasser, hollering pro-Trump slogans and forcibly removing police barriers, can hardly expect to be charged with merely a misdemeanor. To the contrary, on a whim by a presiding prosecutor, any person challenging the liberal system can find himself charged under the 18 U.S. Code Chapter 115 with “engaging in seditious and criminal activities.”

Countless verbal constructs that most American citizens take for granted need to be critically examined. Grandstanding negative or flowery expressions such as “hate speech,” “affirmative action,” “diversity,” “white supremacism,” and “Neo-Nazi gatherings” are tossed around by the media and courts with a little effort by legal scholars and linguists to prod into their meaning. When their origin, etymology, and subsequent semantic distortions are carefully investigated, flaws in in the American criminal codes will be detected. The same endeavor goes for the multitude of German and French words from their respective criminal codes, words that are practically untranslatable into English, or when they are, resonate entirely differently in American legal proceedings.

The expression “hate speech” is a bizarre verbal construct allowing the prosecution of a wide array of extra-legal maneuvering. Someone’s free speech is always someone’s else hate speech. This expression did not even exist in judicial glossary half a century ago. One wonders who crafted this expression and introduced it into law in the first place? Its abstract meaning allows presiding judges or juries to define it as they see fit.

One of the main features of communist totalitarian legalism was the use of abstract and liquid expressions that provided the prosecutor with a myriad of potential charges during court hearings. But even the word “totalitarian legalism” is a contradiction in terms, given that the ongoing juridification of politics in the EU and USA has already led to excessive legalism, i.e., lawfare, which is but a first step toward a set-up of totalitarian systems. One could further illustrate ensuing legal anomalies when examining the much lauded and universally accepted expression “human rights,” overlooking that human rights are differently understood by different parties; differently, for example, by a Palestinian in Gaza and by a Jewish settler in the West Bank. It is in the name of romantic sounding human rights principles, wrote legal scholar Carl Schmitt long ago, that the most savage crimes are committed against a party or a people declared to be outside humanity. Once declared outside humanity, a warring party and its civilians are no longer human beings; human rights henceforth no longer apply to them. The drive to impose universal human rights and world democracy was best observed during the Western Allied aerial bombardment of German cities during WWII.

Another widely used expression, rarely critically examined, is the federally mandated “affirmative action.” Other than its substance, which is well known to most employers, this expression highlights generic Soviet-Speak. It is impossible to translate it verbatim into other European languages except when grossly changing its meaning. When translated into German or French it generates a hybrid misnomer such as “positive discrimination” (positive Diskriminierung). One must raise a legitimate question: if there is such a thing as “positive discrimination” is there also such a thing as “negative discrimination”? The expression “positive discrimination” is both a lexical, conceptual, and legal anomaly that most legal professionals in the USA and EU take as an acceptable figure of speech.

Similar to the much used and abused words “Fascists” or “Nazis,” once used non-stop in the former Soviet Criminal Code when sentencing dissidents, these words have become by now part of a similar demonizing vocabulary, particular in the EU judiciary. National Socialism or Fascism no longer stand for specific historical and political affiliations, having been transformed into symbols of Absolute and Ultimate Evil.

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The German Criminal Code has a multitude of similar criminalizing expressions often defying grammatical and morphological rules. The relatively new compound noun Volksverhetzung, featured prominently in the German Criminal Code, Section 130, has been awkwardly translated into English as “incitement to hatred,” although the German original has a much wider scope when used in criminal indictments. This multiple-meaning noun represents a case of linguistic anomaly similar to the wordings in the Soviet judiciary. It is called pejoratively by German citizens the “Gummiparagraph” (rubber paragraph, or elastic clause) given that its wide-ranging interpretation can send to jail any person asking politically incorrect questions; from somebody cracking a joke about an illegal Somali migrant to a person raising critical questions about the Holocaust or the state of Israel. Even an American lawyer fully versed in the German language would have a hard time deconstructing the meaning of this German noun when defending his client in a German court.

Contrary to the liberal dogma about the so-called independent judiciary, it is always the ruling class that makes and unmakes the laws; never do the laws make the ruling class. The widespread liberal myth of the Supreme Court acting as the ultimate independent arbiter during a state of emergency has never worked in practice. The Roman thinker Juvenal knew it long ago when he raised a timeless question: “But who will guard the guardians?”

Originally posted at the Free Expression Foundation.

Tom (Tomislav) Sunic was born in Zagreb, Croatia. He holds a doctorate in Political Science from the University of California and Bachelor of Arts degrees in Comparative Literature and Languages from the University of Zagreb. He worked as a professor of political science in the USA and after the breakup of Yugoslavia as a diplomat for the early Croatian state. He now gives lectures in English, Croatian, German, and French around the world on topics of politics and literature and on race and identity. He sits on the Advisory Board of the Americana Freedom Party and writes regularly for The Occidental Observer. He has authored several books in French, English and Croatian. He currently resides in Zagreb, Croatia (www.tomsunic.com).