The news that traffic police will operate under the “presumption of police correctness” has stirred up both progressive and not-so-progressive audiences. The public is indignant; it doesn’t like that “the cop is always right.” The public intends to fight this and is discussing how best to do it. All of this is correct and good, but in this column we will talk about something else—namely, what this story reveals to us about the essence of “state and law.”
Let us imagine a situation as it should be in a free society. Here is a private road, on which the owner’s rules apply. Compliance is monitored (or not monitored) by some private company. Of course, in case of claims against a driver, the representative of this service “is always right,” since he represents the interests of the owner, and the road is his. There’s not much the driver can argue here; it’s the same as if someone came to your home and started arguing with your ban on smoking in your house. In principle, the road owner can establish any rules, up to and including mandatory driving on one wheel. What limits the road owner’s arbitrary power? The simple fact that he makes money when people drive on his road, not the other way around. That is, this person understands that the rules he establishes must serve the purpose of his earnings—namely, the convenience and safety of drivers. In itself, this fact already greatly changes the relationship between drivers and the private police who monitor compliance with the owner’s rules. For example, a “fine” as a punishment looks strange in this system. It is easier and more beneficial for everyone to record various reckless drivers and simply not allow them on the roads.
But we have digressed somewhat from the topic. Let’s say a conflict still arises. The driver on a private road disagrees with the requirement of the private police. To use the smoking analogy—I came to your house, started smoking, you forbade me, I protested, you beat me, and I claim I wasn’t smoking at all. Where in this story does the presumption of innocence arise? That’s right, in court. Until someone among us goes to court, there simply is no presumption. It appears only as a principle for resolving a conflict by a third independent party (a judge) and means that the defendant is considered innocent until his guilt is proven. This is simple and obvious; without this principle, law is impossible, just as it is obvious that no one will go to a court that does not adhere to this principle.
This is how the story with the driver and the police officer looks in a free society—that is, where there are no external influences in the form of a state, and where law exists and functions in an undistorted form. I think everyone noticed the obvious difference with our situation: the fact that we talk about the presumption of innocence at the stage of conflict between the driver and the police, not at the stage of court. Why is this so? Where does it come from in the first place?
It arises because the state constantly tries to present itself to us in the role of a third party. Remember what you usually hear when they explain to you the benefit, necessity, and inevitability of the state? That’s right, the story of the “third party,” which should resolve issues, deliver final verdicts, possess a monopoly on coercion, and so on.
So, the story with the police officer and the driver is a story in which the police officer is the third party, who as it were does not stand on his own behalf, but on behalf of some abstract “traffic rules.” Hidden in it is the fact that the state is the owner of the road and the “traffic rules” are also its. And the courts are its, and the laws. But while it speaks of the “presumption of innocence,” it has nothing to do with it here—it is merely the “third party.”
However, the specific nature of the relationships on the road is such that it makes discussions of the “presumption of innocence” meaningless. The cop caught the driver, and then a verbal duel begins, the skill in which determines the winner of the conflict. So that this no longer happens, the state wants to abandon the “presumption of innocence” in these matters, which supposedly existed there. The general public is outraged, because it understands that this will completely free the already uncontrolled police. But the problem here is the lack of control and lack of alternatives to the state, which owns all roads, all rules, and all courts. Avakov tells us that “the presumption of innocence does not apply in administrative law,” but in reality, elsewhere it applies simply by oversight of the leadership, or rather, because the state has not yet needed to abolish it. When it needs to, it will easily abolish any and all presumptions, as was done in its time in the USSR or in China.
Therefore, the situation specifically in our story is as follows. The state is simply getting rid of some verbal cover where it gets in the way. But we should pay attention here to the fact that in a situation where the state owns all roads, all rules, all police, all courts, and in some situations all of us, one cannot seriously talk about any presumptions, law, or justice. And, of course, first and foremost, one cannot view the state as a “third party.” Alas, in our lives there are only “us” and “them.”