Libertarianism’s hidden shadow: Tyranny

English: Title page of the first printing of t...

English: Title page of the first printing of the Federalist Papers. (Photo credit: Wikipedia)

For most people the word libertarian makes them think of liberty. Libertarians want to ensure individual freedom. At the same time, people will seek libertarianism as opposed to tyranny. Despite the surface belief, I argue that it hides a tyrannical soul. By tyrannical soul, I mean it contains the idea of tyranny. Tyranny is understood here as the political practice of a subordinating all common goods to their own individual good. The tyrant rules the city so that it serves his interests. The tyrant is not concerned with the common good for its own sake. To the extent that he is concerned with the common good, it is for his own interests such as security. When libertarianism encourages the pursuit of individual liberty, it encourages it at the expense of the common good. In this pursuit, it discourages democratic beliefs that support the common good and encourages tyrannical beliefs that erode the common good. In this belief, libertarianism undermines the American idea.

Is libertarianism a perversion of the American idea?

America is the idea that a people could form a government by consent and intent and not through accident and fraud. The America idea is expressed through its constitution, where We, the People, created a new government. We note that the We, the people, was set against the King, an individual, who ruled them tyrannically. The Americans rejected that the individual would rule the people at the expense of common good. Instead, they created a government born of the common good and created a more perfect union. The common good succeeds to the extent that Americans can practice self-government. Self-government, though, is more than the pursuit of individual liberty, it requires that the individual participate in the public domain. For an individual to participate in the public domain, they have to sacrifice their own individual good for the common good, which is expressed in the 10th Amendment. The individual has a role in the government, which if shirked in the pursuit of individual liberty, impoverishes the public good. Far from being the threat to our liberty, government is what binds American together and makes Americans.

At seminal events, Americans have focused on the common good over their individual good. When Lincoln renewed America’s founding, he reminded us of that common good in the Gettysburg Address. He spoke of a government, of the people, by the people, and for the people. He did not talk of the individual or individual liberty. Instead, he spoke of self-government and whether men could design and consent to a government that was based on the idea of self-government. Individual liberty he explained was found in self-government that required that the individuals devote themselves to something larger and more important than their own interests. The Declaration of Independence and the Gettysburg Address, refer to a res publica, a public thing that is held in common. Neither document puts individual liberty before the common good. They both are based on the idea that the common good is necessary for individual liberty.

Every Man a King destroys trust in self-government and nurtures tyranny

The American idea, as expressed by Lincoln and the Federalists, is based on an implicit trust in the government that is of the people, by the people, and for the people. Today, though, that trust is at a historic low corroded by an unremitting attack on government and the rule of law. The most vociferous critics have attacked the government in the name of liberty. In this attack, the critics encourage lawlessness and claim it is the only way to liberty. They forget that Americans believe that liberty develops from self-government and law abidingness that is America’s political religion. Those who attack the republic idea of government flatter the people with appeals to personal liberty. Their flattery masks tyrannical beliefs and behaviours. Throughout the ages demagogues have arisen who would flatter the people about their rights and freedoms and then impose a tyranny. America has known such demagogues who have touted individual liberty so that they could achieve their political aims. We recall Huey Long who proudly proclaimed that he would make Every Man a King. He would flatter everyone with the promise for their individual good at the expense of the common good. He promised tyranny for what is a king but a tyrant to an American in the name of liberty.

Flattery soon gives way to tyranny.

The founders feared demagogues who begin by flattery and end with tyranny.

It will be forgotten, on the one hand, that jealousy is the usual concomitant of love, and that the noble enthusiasm of liberty is apt to be infected with a spirit of narrow and illiberal distrust. On the other hand, it will be equally forgotten that the vigor of government is essential to the security of liberty; that, in the contemplation of a sound and well-informed judgment, their interest can never be separated; and that a dangerous ambition more often lurks behind the specious mask of zeal for the rights of the people than under the forbidden appearance of zeal for the firmness and efficiency of government. History will teach us that the former has been found a much more certain road to the introduction of despotism than the latter, and that of those men who have overturned the liberties of republics, the greatest number have begun their career by paying an obsequious court to the people; commencing demagogues, and ending tyrants. (Federalist 1) [1]

Today, libertarian candidates would flatter Americans by defending their rights. Yet, their claims to subscribe to the founding fathers would require him to jettison his libertarianism. The Founding Fathers understood that an individual’s good, his liberty, depends on his ability to participate in the common good. Yet, that public activity relies on the bureaucratic state. The modern individual developed with the modern state. The individual requires a bureaucratic state infrastructure to act as an individual. Instead of the family or the tribe, the individual can act freely because a bureaucracy ensures the laws and government systems provide a safe and prosperous public domain. The individual does not have to enforce their own contracts or ensure their water is safe.

The individual destroys the common good, an eternal danger reborn by Rand Paul

As Socrates pointed out, the tyrannical life for non-philosophers is one in which the common goods are subordinated to one’s own individual good.[2] To the extent that a libertarian is concerned with the common good, it is only for their own good. They fear the loss of their own good more than they value the common good. Unlike Socrates who believes that his particular or individual good is derived from the universal good, the libertarian believes that the common good must serve the individual good as it comes before the common good. By contrast, the American founding is based on the idea of a universal good by which we judge any individual good. The individual good, according to the Federalist Papers, is found within the common good. Thus, we see the idea of a people creating a union; it is not individuals, as suggested by Thomas Hobbes in his Leviathan.

Libertarianism undermines the virtue by which soldiers serve the common good.

Our veterans understand their liberty requires devotion to a higher, common, good beyond their own good. We honour their service because they are patriots. A patriot loves his country and sacrifices their life for it. Their sacrifice, though, is not always death it can be their time, their health, and their opportunities. They do this for something that is more important than themselves for the highest common good the country.[3] To cheapen this sacrifice by equating it with libertarianism confuses sacrifice for selfishness. The patriot loves his country enough to sacrifice himself for it just as a parent would sacrifice their life for their family. Perhaps in the Libertarian America of Ayn Rand parents are to sacrifice their children for themselves. Our private good comes before the public good.

Can we recover the public life when we are told liberty depends on privacy?

If we pursue libertarianism to its logical conclusion, we would sacrifice the common good for the individual private good. We would embrace tyranny. Such individuals would seek a political leader who would deliver on that promise. Tyranny becomes viable as citizens forget the common good. We are encouraged to pursue privacy at the expense of our ability to participate in the public domain and share the common good. We relinquish our public right to democracy for the private pleasure of liberty. Privacy and libertarianism leads us away from the res publica, the public thing. Is this liberty or slavery to surrender the public domain and pursue private pleasures?

[1] http://avalon.law.yale.edu/18th_century/fed01.asp

[2] Harry Neumann, Socrates in Plato and Aristophanes: In Memory of Ludwig Edelstein (1902-1965) The American Journal of Philology, Vol. 90, No. 2 (Apr., 1969), pp. 201-214 http://www.jstor.org/stable/293427 Accessed: 22-05-2015

[3] Consider the famous saying by Hillel “If I am not for myself, who will be for me? And if not now, when? And if I am only for myself, what am I?”

 

Posted in censorship, corruption, education, Government, justice, public opinion, republicanism | Tagged , , , , , , , ,

A partial response to Snowden’s Precis: Are the Rich Getting Richer?

A portrait of Karl Marx.

A portrait of Karl Marx. (Photo credit: Wikipedia)

Christopher Snowden has written an interesting article about poverty and prosperity in the United Kingdom.[1] (The article is in the Institute of Economic Affairs Magazine EA can be found here: ) He makes an impassioned argument that the poor have gotten wealthier and their income is better relative to the average despite the recession. The argument appears strong and incontrovertible on the surface. However, we have to look closely, but not too closely, to find its flaws. Despite those who would quote his article to great effect, it does not suggest that the anti-austerity marchers are wrong to march or to protest austerity.

The basic message to understand is that Snowden promotes income and wages as improving and the austerity campaigners argue against the cuts to government programs and benefits. To put it bluntly, they are comparing apples and oranges. What we need to do is look at Mr. Snowden’s article on its own merits. To do this, we need to read it closely to understand it.

Straw men rarely make an argument.

Mr. Snowden, like those who wish to make an ideological argument, start with straw man arguments

The general secretary of the Trades Union Congress, Frances O’Grady, said last year that Britain is a country in which ‘inequality soars’ and ‘social mobility has hit reverse’.

The Guardian tells us that Britain is ‘Europe’s sweatshop’, a country where workers put in the longest hours in the EU.

And it is a perennial lament that ‘the rich get richer while the poor get poorer’.

To be sure, the headlines and selected speech quotations taken out of context sound interesting and create a good straw man to knock down. Except that as headlines and quotations taken out of context, they have no basis to test. Until we provide a standard to measure the statements against, that is the statements against their own logic, we cannot assess them.

What did Frances O’Grady’s statement say? Here is the exact quotation.

This brand of conservatism is the enemy of aspiration. As inequality soars, social mobility has hit reverse.[2]

That is it. It is a throwaway line, a claptrap, without any substance. We do not know what it meant. We can read into what we want. Like most political rhetoric, it is short on substance or logic and long on emotion.

If we take the regular lament “The rich get richer and the poor get poorer” at face value, it is always true relatively. If I earn a billion and you earn a billion this year, next year you earn a billion, and I earn a trillion. I am richer and you are poor than me relative to last year. Against an absolute average, we are both “richer” but my increase is larger than your increase so you are relatively poorer. It is a phrase that is empty of substance and that is filled by emotion.

Once you debunk their straw men you can provide your own

Mr. Snowden recognizes these as straw men statements and then provides his own.

Taken together, these assertions encourage a counsel of despair about the prospects of workers in the UK today, but they are all empirical claims and can be tested against the facts.

The two statements do not provide a counsel of despair. Neither the speakers nor the statements suggest despair. They may suggest unfairness; they do not counsel despair because they are rallying cries for change. The speakers want the situation to change. Despair means to give up and this is definitely not what the speakers or the statements encourage.

Make sure you mention Marx to show you are a capitalist

Mr. Snowden, like a good capitalist, has to say something bad about Marx. Why we have to invoke Marx each time we talk about inequality, I do not know. However, no discussion seems to be complete without him.

The well-worn assertion that the rich get richer while the poor get poorer echoes Karl Marx’s theory of immiseration which said that capitalists could only become richer by lowering wages, thereby reducing the living standards of workers until they had no choice but to revolt. Marx was wrong.

The idea sounds good except that the assertion does not echo Marx. Mr. Snowden has connected two ideas that are not connected. First, Marx never had a theory of immiseration. He did have a theory about revolution and he believed that as capital accumulates the worker would be worse off. This is not the same as saying, as the rich get richer the poor get poor. For it to be the same, it would have to say that as the rich get richer they make the poor get poorer by taking the money from the poor. Except that is not what Marx said. Here is what he said.

It follows therefore that in proportion as capital accumulates, the situation of the worker, be his payment high or low, must grow worse.

— Karl Marx, Das Kapital: Kritik der politischen Ökonomie, 1867.[1]

Cf. Marx, Karl (2007): Capital: A Critique of Political Economy: The Process of Capitalist Production. Volume I, part 2. Cosimo Inc., pp. 708-709[3]

Second, the poor can be better off or worse off even as the rich get richer, and that is not same as saying that the capitalists only become rich by lowering wages. Again, this is not something that Marx said. Why Mr. Snowden wants to make up quotations is beyond me, but it seems a bit pointless to smear Marx with made up quotations.

Relative or Absolute poverty still means you are poor.

The straw man arguments continue.

Today, no one seriously argues that the poor are poorer than their Victorian counterparts, but some claim that they are poorer – and that there is more poverty – than twenty, thirty or forty years ago. It is not true.

I am not sure anyone has argued that the poor are poorer than in the Victorian era. The obvious infrastructural changes: universal health coverage, health and safety laws, improved access to education would disprove this statement. If it is manifestly and demonstrably wrong, why make the statement. However, Mr. Snowden finishes with the straw man arguments and moves to the statistics.

There has been a steady increase in wage rates for more than 150 years. Average earnings have risen more than four-fold since the start of the twentieth century despite two world wars and intermittent recessions.

Wages declined or stagnated in the mid-1970s, early 1990s and, above all, during the recent economic downturn: average earnings for full-time workers were 7.5 per cent lower in 2013 than they had been in 2009.

Initially (2009-11), the poorest 10 per cent – but not the poorest 2 per cent – saw a larger than average fall in wage rates, but this pattern was reversed in 2011 and 2013 when the richest decile saw their earnings fall by more than four per cent while the poorest decile saw earnings fall by less than two per cent.

Here the truth emerges but not as Mr. Snowden expected. What he wrote confirms that which he was arguing against. Initially the poor were getting poorer faster than the rich were and then they were getting poorer slower than the rich were. What this misses is that the poor were worse off than the rich were relatively and absolutely. In effect, the rich got richer and the poor got poorer relatively and absolutely.  The statistics paint a bleak picture.

Check the sources and you find the bias

The table is taken from the ONS report Equivalised¹ disposable household income, 1977-2012/13, UK (2012/13 prices²)[4]

Quintile groups of all households ranked by equivalised1 disposable income All
house-
Bottom 2nd 3rd 4th Top holds
2006-07 11,014 17,916 24,551 34,036 63,650 30,233 0.364304 2.105315
2007-08 10,750 18,156 24,587 33,478 62,314 29,857 0.36005 2.087082
2008-09 11,021 17,835 24,344 33,558 62,355 29,823 0.369547 2.090836
2009-10 11,467 18,502 24,600 33,529 61,728 29,965 0.38268 2.060003
2010-11 11,510 18,181 24,054 33,099 61,942 29,757 0.3868 2.081594
2011-12 11,503 17,988 23,746 32,111 58,109 28,691 0.400927 2.025339
2012-13 11,122 17,805 23,533 31,870 59,049 28,676 0.38785 2.059178

The last two columns are first Bottom divided by All household and the second is Top divided by All Households.

This shows us how the poorest and the richest did relative to all households. We can see that in the change from 2011-12 to 2012-2013 the rich did get richer and the poor did get poorer relatively and absolutely.

Let’s focus on wages to avoid income

Although Mr. Snowden wants to focus on wages, this is less helpful

As painful as these pay cuts have been in recent years, it is unlikely that posterity will view them as anything more than a blip in the upward march of progress.

The bigger picture is quite clear. Since 1975, average real wages have more than doubled for full-time workers and nearly doubled for part-time workers.

Amongst the poorest decile, full-time wages rose from £3.40 to £6.67 between 1975 and 2013 (in 2013 prices) and part-time wages rose from £2.83 to £5.83.

Put another way, whilst only two per cent of full-time workers earned the minimum wage of £6.19 in 2013 45 per cent of full-time workers in 1975 earned less than £6.19 (in 2013 prices).

And, whilst 30 per cent of full-time workers earned less than £10 an hour in 2013, 85 per cent earned less than the equivalent of £10 an hour in 1975.

Wage rates do not tell the full story. Many people do not work and many workers have their incomes supplemented by benefits. If we look at household disposable incomes (i.e. income after direct taxes and benefits have been taken into account), we see a similar story of rising prosperity.

Between 1977 and 2011/12, the incomes of the poorest twenty per cent (the bottom quintile) rose by 93 per cent in real terms. Those of the top quintile rose by even more – 149 per cent – so it is true that the rich have got richer, but it is clear that the poor have also got richer.  State benefits play a major role in cushioning the poor from the impact of declining wages.

The problem with a focus on wages is that if you start in a low paying job you are likely to remain in low paying job.

There is evidence for wage persistence. If a worker begins his/her career in a low- paying job, he/she is very likely to stay in a low-paying job. Sixty per cent of the bottom ten per cent of earners in 2001/02 were among the bottom 30 per cent of earners in 2008/09. 84[5]

No matter how poor you are remember prosperity is up across the board

The argument continues to focus on rising prosperity across the board.

The post-2007 fall in earnings has been due to inflation rising at a faster rate than nominal wages, but, since benefit payments tend to be tied to inflation rather than wages, those who depend on benefits for most of their income have been protected from much of the decline in pay.

The Office for National Statistics records that average real disposable incomes fell by four per cent between 2007/08 and 2012/13 but that ‘the largest fall in incomes over this period has been for the richest fifth of households, whose disposable income has fallen by £3,300 (or 5.2 per cent) in real terms’.

By contrast, the ONS says, ‘the average income of the poorest fifth has risen by £400 (or 3.5 per cent) since 2007/08.’

This figure is chosen to avoid the follow up sentence that puts it all into context.  It is a drop of £400 from the previous year. Even though it is £400 better than 2007/8 (11,122 vs 10750) it is still £400 worse than the year before (11, 122 vs 11503). Moreover, the Top grew by £950 from 2011-12 to 2012-13 (58,109 to 59, 049) on the previous year! Thus, the rich got richer even as the poor became poorer. Why does Mr. Snowden avoid this uncomfortable truth? [6]

2007-08 10,750 18,156 24,587 33,478 62,314 29,857 0.36005 2.087082
2011-12 11,503 17,988 23,746 32,111 58,109 28,691 0.400927 2.025339
2012-13 11,122 17,805 23,533 31,870 59,049 28,676 0.38785 2.059178

He continues by trumpeting how the poor have become richer. In absolute terms, this is undeniable. However, the issue has always been relative wealth. The poor have not seen their relative share grow at all while the top have seen their share grow faster and faster.

It is inarguable that the poor have become richer in the long-term and doubtful whether they have become poorer even during the recent economic slowdown, despite incomes falling amongst every other group.

Whether measured in cash or real terms, whether looked at in terms of hourly, weekly or annual earnings, and whether taken before or after housing costs have been deducted, the last forty years have been an era of rising prosperity across the board.

Except the statistics do not support his argument. Let us compare the disposable income levels in 1977-1987. Overall things have gotten much worse, relative to the average, for the lowest group.

1977 5,966 8,606 11,386 14,852 23,288 12,821 0.46533 1.816395
1978 6,468 9,319 12,369 16,056 24,516 13,746 0.470537 1.783501
1979 6,396 9,300 12,531 16,574 25,371 14,032 0.455815 1.808082
1980 6,384 9,477 12,892 16,935 26,967 14,532 0.439306 1.855698
1981 6,672 9,516 12,730 16,978 27,895 14,759 0.452063 1.890033
1982 6,597 9,277 12,442 16,463 26,953 14,345 0.459881 1.878913
1983 6,640 9,449 12,704 17,007 28,290 14,818 0.448104 1.909165
1984 6,937 9,660 12,902 17,177 27,973 14,930 0.464635 1.87361
1985 6,898 9,773 13,515 18,653 30,828 15,934 0.432911 1.934731
1986 7,107 10,127 14,013 19,025 33,340 16,723 0.424984 1.993661
1987 7,151 10,428 14,772 20,425 36,765 17,908 0.399319 2.052993

From 1977 to 1986, the situation deteriorated slowly for the bottom. Then it dropped out in 1987. The ratio of bottom to all dropped from .42 to .39. It would not move greater than .39 until 2012 when it reached.4009.  By contrast, things were getting better for the top and jumped dramatically from 1985-1987. The Top went from 1.93 of Top to all households to 2.05. They have never looked back and despite some setbacks have never seen their ratio drop below 2.03.

Income inequality is the main issue

Mr. Snowden continues his argument and turns to, of all things, income inequality.

Is income inequality rising?

Because it is difficult to maintain the notion that the incomes of the poor have been falling in the long-term, critics of capitalism often base their argument regarding poverty around concepts such as ‘relative poverty’. However, reductions in relative poverty typically coincide with periods of general impoverishment. The official (relative) poverty line is generally understood to be 60 per cent of the median income, but this is essentially a measure of inequality and does not tell us whether or not the poor are getting poorer.

In 1979, thirteen per cent of the population was living below the relative poverty threshold. By 2005, the real disposable incomes of the poorest fifth had risen by more than fifty per cent and yet eighteen per cent of the population was now officially living in poverty.

Mr. Snowden makes a good dodge in his argument. He begins by talking about wages of poorest increasing during selected years and he then measures this against relative poverty without providing the measure for relative poverty. Even though he focuses on the 60% of median income, this does not tell us about poverty or income inequality.

Selective years paints a selective story

I find his years curious. Let’s look at them individually and then in context.

1979 6,396 9,300 12,531 16,574 25,371 14,032 0.455815 1.808082
2005-06 11,079 17,735 23,976 33,067 61,026 29,377 0.377132 2.077339

We see that the disposable income relative to all incomes has decreased for the poorest and increased for the top. Let’s look closer and see the context of these changes and why these years are important.

1977 5,966 8,606 11,386 14,852 23,288 12,821 0.46533 1.816395
1978 6,468 9,319 12,369 16,056 24,516 13,746 0.470537 1.783501
1979 6,396 9,300 12,531 16,574 25,371 14,032 0.455815 1.808082
1980 6,384 9,477 12,892 16,935 26,967 14,532 0.439306 1.855698
1981 6,672 9,516 12,730 16,978 27,895 14,759 0.452063 1.890033

When we look at the two years before and the two years after, 1979 stands out before of the changes before and after it for the bottom and the top relative to all incomes. The bottom suffered a drop both absolutely and relatively in 1980 and the top continued a steady increase relatively and absolutely.

Let’s look at 2005 in context.

2002-03 10,423 16,664 23,106 32,052 57,706 27,991 0.37237 2.061591
2003-04 10,625 17,137 23,430 31,573 59,017 28,356 0.3747 2.081288
2004-05 11,238 17,921 24,127 32,632 59,055 28,994 0.387597 2.036801
2005-06 11,079 17,735 23,976 33,067 61,026 29,377 0.377132 2.077339
2006-07 11,014 17,916 24,551 34,036 63,650 30,233 0.364304 2.105315

We see why 2005 is so important for Mr. Snowden. It is the only year in which poorest did well relative to all that is .38. It is coincidently the year the Top 2.03 was at its lowest. Why was Mr. Snowden so selective in his statistical choice?

He continues his argument looking at relative power but comparing it other countries.

In other words, raising the incomes of Britain’s poorest people by half did not prevent the official poverty rate rising by half. Just as the relative poverty rate can rise despite the poor becoming richer, so too can the relative poverty rate fall as long as the wages of the poor fall less sharply than those on median incomes. This is precisely what happened during the recent financial crisis. In 2010/11, Britain’s (relative) poverty rate fell to 16 per cent and the child poverty rate fell to 18 per cent. Both figures were the lowest they had been since the mid-1980s, despite – or rather because of – wages falling across the board. In short, the poverty rate has very little to do with how much money the poor have.

The UK’s official poverty rate in 2012 (16 per cent) was higher than that of Bangladesh (14 per cent), Azerbaijan (2 per cent) and Namibia (0 per cent). But, where would you like your children to be born?

The Gini Coefficient is not something you can eat when you are hungry

Mr. Snowden then turns to the Gini coefficient to make his point that inequality is falling after it peaked in 1990.

Not only has poverty reduced but income inequality, as measured by the Gini coefficient which is the standard measure of inequality, is falling too: it peaked in 1990. By 2011/12 it had dropped to 32.3, the lowest since 1986.

Contrary to popular belief, the modern peak of income inequality was twenty five years ago. There was a significant rise in the 1980s, but since then rates have been quite stable except when a weak economy brings them down. It is simply untrue to say that ‘inequality soars’ in modern Britain.

When we look at the data, we find this just does not follow what the various indicators show. Yes, the relative income inequality peaked in 1990. This was the worst year for the lowest and the best for the top. It could not get worse without serious dislocation.

1990 7,158 11,286 16,989 24,401 45,613 21,089 0.339419 2.162881

However, this misses the longer trend and the current situation especially with the focus on 2011/2012. Again, he chooses the best year to make his case and it is wrong.

2011-12 11,503 17,988 23,746 32,111 58,109 28,691 0.400927 2.025339

The ratio of lowest to all hits it highest in 2011/12 at .4092 and the top has its, worst level since 1986 at 2.02. If we look at the next year, this all gets into context and we see the inequality gets worse. The lowest drop back to .38, marginally better than 2010/211 and decreasing from the previous year. The top get higher but worse than 2010-11 and increase on the previous year. Which one would you rather be experiencing?

2010-11 11,510 18,181 24,054 33,099 61,942 29,757 0.3868 2.081594
2011-12 11,503 17,988 23,746 32,111 58,109 28,691 0.400927 2.025339
2012-13 11,122 17,805 23,533 31,870 59,049 28,676 0.38785 2.059178

Again, we see that Mr. Snowden avoids the uncomfortable context that undermines his argument. Why?

Mr. Snowden also mentions the Gini coefficient to make his argument. He claimed that income inequality as measured by the Gini coefficient had peaked in 1990 and had decreased since.

Not only has poverty reduced but income inequality, as measured by the Gini coefficient which is the standard measure of inequality, is falling too: it peaked in 1990. By 2011/12 it had dropped to 32.3, the lowest since 1986.

Let us look at the Gini coefficients over this period and focus on the figures he mentions.[7]

1977 1978 1979 1980 1981 1982 1983 1984
27.2 26.6 27.4 28.6 29 28.6 29.1 28.4
1985 1986 1987 1988 1989 1990 1991 1992
30 31.6 33.2 35.1 34.4 36.8 35.6 34.7
1993/94 1994/95 1995/96 1996/97 1997/98 1998/99 1999/00 2000/01
34.8 33.8 33 34.4 34.5 35.4 35.8 35
2001/02 2002/03 2003/04 2004/05 2005/06 2006/07 2007/08 2008/09
36.2 33.8 34 32.8 33.9 34.7 34.2 34.3
2009/10 2010/11 2011/12 2012/13
33.2 33.7 32.3 33.2

We do find that he is correct. 1990 was the worst year. When we compare 2011/12 to all previous years, it is the best until 1986. Except, that is not the full story. When we look at next year, the figure has gotten worse and returned to the overall trend of the previous 10 years. Far from being a sign of things getting better, it is seen for the anomaly that it is. The trend only improved under Labour in 2004/05 it was 32.8 which did not require a recession unlike 2011/12.  To keep the trend downward or stable it will require a similar economic and social policy by the Conservatives to keep the Gini Coefficient trend downward rather than encouraging it upward.

Conclusion

Mr. Snowden continues to discuss working hours and social mobility. However, at this point, I cannot continue. His statistical choices appear to suit his ideological interests. The selective statistics are not the sign of an academic or scholarly work. It is a work of propaganda. A propaganda that many will repeat without reading the fine print. However, those who repeat it without reading the wider context will demonstrate that ideological goose-stepping is easier than research, analysis and intellectual probity.

[1] Christopher Snowden’s article in the Institute of Economic Affairs Magazine EA can be found here: http://www.iea.org.uk/sites/default/files/EA%20Spring%202015_PRECIS.pdf

[2] https://www.tuc.org.uk/about-tuc/congress/congress-2014/tuc-general-secretary-frances-o%E2%80%99grady%E2%80%99s-address-congress-2014

[3] https://en.wikipedia.org/wiki/Immiseration_thesis

[4] http://www.ons.gov.uk/ons/rel/household-income/the-effects-of-taxes-and-benefits-on-household-income/2012-13/data–deflated-equivalised-disposable-income–1977-2012-13.xls

[5] See the Government report on child poverty. 2012 Measuring Child Poverty:    A consultation on better measures of child poverty p. 33 https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228829/8483.pdf

[6] http://www.ons.gov.uk/ons/rel/household-income/the-effects-of-taxes-and-benefits-on-household-income/2012-13/data–deflated-equivalised-disposable-income–1977-2012-13.xls

[7] The Gini Coefficients are taken from the ONS figures. http://www.ons.gov.uk/ons/rel/household-income/the-effects-of-taxes-and-benefits-on-household-income/2012-13/sb-figure-4-download.xls

Posted in Government, justice, local government, public sector, Uncategorized | Tagged , , , , , ,

The Queen and the rule of Law: Magna Carta’s myth

Jurist Edward Coke interpreted Magna Carta to ...

Jurist Edward Coke interpreted Magna Carta to apply not only to the protection of nobles but to all subjects of the crown equally. (Photo credit: Wikipedia)

In a recent Spectator article, Daniel Hannan explained that the Queen obeyed the rule of law.

“..I’m closely involved with the project—will be unveiling a large bronze statue of the Queen, symbolizing both 800 years of the Crown’s acceptance of the rule of law….”[1]

Except that is wishful thinking. At best, it is a pious fraud. The Queen is not subject to the rule of law.[2] The MPs, the Police, the Judges, and the Army take oaths to her and not to law or to Parliament. The settlement of 1688 was devil’s bargain in which the people’s representatives sold the people into bondage so they could enjoy the Crown’s privileges. Unlike Mr. Hannan, I do not find the 1688 a Glorious Revolution in the way he does.[3] Parliament became part of the Crown, allowed the arbitrary royal prerogative power to remain, and perpetuated the Crown’s arbitrary power.[4] Far from a constraint, the 1688 Bill of Rights simply expressed the Crown’s powers against the people and the promise it, and Magna Carta made, remain unfulfilled.

The Queen rules the law; the law does not rule the Queen The law does not rule the Queen. She rules herself. The Royal Prerogative remains unscathed. It has been diminished over the past 327 years, but it remains testament to the fact that the Crown is not subject to the rule of law.[5] The Queen takes no oath to obey the law nor does she take an oath to a constitution.[6]

The legal prerogative, including the principle that the Crown (or the state) can do no wrong, and that the Crown is not bound by statute save by express words or necessary implication;[7]

Rule of law does not exist if it is not complete. No one and no thing can be above or beyond the law. If it is, then the rule of law is limited. We see this clearly in the fact that only laws that specifically apply to her are enforceable. All other laws she only obeys voluntarily. She is not required to obey them in the way you or I are required.

It is Her Majesty’s Government that Make Her Majesty’s laws. What this means is that a Police Constable cannot arrest her although she voluntarily obeys the law to avoid the constitutional issues that could arise from such an attempt. Thus, we are not equal before the law. A Police Constable can arrest anyone in the UK except the Queen. The rule of law means that no one is above the law. However, it is clear by definition and by fact that the Queen is exempt from most laws. The rule of law only exists for those who are not her equal. Thus, the myth that the Crown is subject to the rule of law confuses the issue. The Queen, the Anglican Church, and Parliament, which was coopted into the Crown in 1688, are the Crown. To say that the Crown follows the rule of law elides the vital point that the Queen, the source of the laws, is not subject to the law.

Prerogative powers are arbitrary and beyond the rule of law. We can see this demonstrated in the way Government relies upon prerogative powers drawn from the Royal prerogative. These are not subject to the rule of law. The Royal Prerogative is beyond the rule of law. You will have the rule of law when the Royal Prerogative is extinguished and the Crown is subject to the will of the law. Until that day, the arbitrary power of the Crown remains.[8] It would be called a tyranny except to the extent that it rules in accordance with the law.[9] It is not an institution created by or for the people. The law, until the Crown disappears, will be an instrument of the Crown used for its purposes and only indirectly for the people or the public good. Until then, you are subject to Her Majesty’s Government and Her Majesty’s Laws. She rules you. Neither the law nor Parliament rule.

Perhaps it is time to dispel Magna Carta myths and not perpetuate them especially by those who should know better.

[1] http://www.spectator.co.uk/features/9535112/gove-vs-the-european-court-of-human-rights/ (accessed 24 May 2015)

[2]See for example     “Given the historical development of the Sovereign as the ‘Fount of Justice’, civil and criminal proceedings cannot be taken against the Sovereign as a person under UK law. Acts of Parliament do not apply to The Queen in her personal capacity unless they are expressly stated to do so.” https://www.royal.gov.uk/MonarchUK/Queenandthelaw/HowUKandEUlawaffectTheQueen.aspx (accessed 24 May 2015)

[3] I find it a glorious revolution only to the extent it inspire the American Revolution which completed its promise and threw off the Crown’s arbitrary power and instituted the rule of law with a written constitution. In the United States, the people are sovereign. No one is above the Constitution and all take an oath to serve it and uphold it. By contrast, the UK officials take oaths to the Queen not to Parliament or the Law.

[4] http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/23603.htm (accessed 24 May 2015)

[5] Even the argument that the exercise of prerogative has to be reasonable and in accordance with the common law belies the existence of prerogative power. Prerogative power is not rule by law. It is rule beyond the law and until that gap is closed, the UK cannot claim that it follows the rule of law. http://www.innertemple.org.uk/downloads/members/lectures_2014/lecture_sedley.pdf (accessed 24 May 2015) Unless one wants to claim that the Royal Prerogative makes the law, in which case we return to the question of what is the law, which in turn raises the question of those laws not created by Royal Prerogative.

[6] The relevant passage from her Coronation Oath is

“Madam, is your Majesty willing to take the Oath?

And the Queen answering, I am willing.

The Archbishop shall minister these questions; and The Queen, having a book in her hands, shall answer each question severally as follows:

Archbishop. Will you solemnly promise and swear to govern the Peoples of the United Kingdom of Great Britain and Northern Ireland, Canada, Australia, New Zealand, the Union of South Africa, Pakistan, and Ceylon, and of your Possessions and the other Territories to any of them belonging or pertaining, according to their respective laws and customs?

Queen. I solemnly promise so to do.

Archbishop. Will you to your power cause Law and Justice, in Mercy, to be executed in all your judgements?

Queen. I will.”

One notes that she does take an oath to obey the law. http://www.royal.gov.uk/ImagesandBroadcasts/Historic%20speeches%20and%20broadcasts/CoronationOath2June1953.aspx (accessed 24 May 2015)

[7] See the selection committee on Constitution 15th Report Waging War: Parliament’s role and responsibility http://www.publications.parliament.uk/pa/ld200506/ldselect/ldconst/236/23603.htm (accessed 25 May 2015)

[8] As Lord Bingham of Cornhill expressed it so eloquently in R (On The Application of Bancoult) V Secretary of State For Foreign and Commonwealth Affairs. “The royal prerogative, according to Dicey’s famous definition (An Introduction to the Study of the Law of the Constitution (8th ed, 1915, p 420)), is “the residue of discretionary or arbitrary authority, which at any given time is legally left in the hands of the Crown”. It is for the courts to inquire into whether a particular prerogative power exists or not, and, if it does exist, into its extent: Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 398E. Over the centuries the scope of the royal prerogative has been steadily eroded, and it cannot today be enlarged (British Broadcasting Corporation v Johns (Inspector of Taxes) [1965] Ch 32, 79E).   http://www.publications.parliament.uk/pa/ld200708/ldjudgmt/jd081022/banc-3.htm  (Accessed 24 May 2015)

[9] As Leo Strauss argues in On Tyranny, “kingship is rule “in accordance with the laws of the cities” (p.68). However, this does not mean that ruling according to the laws is not tyrannical. Instead, we see that the Crown has been at pains to placate the populace, keep them willing subjects, and to rule in accord with the laws even though the people cannot make the laws. They live with the appearance that the Crown makes and rules according to the country’s laws.  However, the deeper issue is the validity or legitimacy of the regime. Can the Crown claim to be legitimate when it is not based on consent, not even the 1688 Act can be considered to express the consent of a constitution. In other words, a regime without consent is a tyranny and the UK regime lacks consent, even though the people may be satisfied with the appearance that the regime rules in accordance with the laws. As Xenophon’s Memorabilia 4.4.13 explains citizens who covenant with each other create the law of the community. The UK regime is not based on such a covenant and lacks the legitimacy it provides. Therein we see the continuing and ongoing struggle between the UK regime and the spirit of 1789.

Posted in corruption, justice, philosophy, statesmanship | Tagged , , , , , , , ,

The UK’s economic inequality is permanent

English: Vector derivative of File:Gini Coeffi...

English: Vector derivative of File:Gini Coefficient World CIA Report 2009.png Based on https://www.cia.gov/library/publications/the-world-factbook/fields/2172.html (Photo credit: Wikipedia)

All societies have the problem of economic inequality. How they respond is an economic decision and a political decision. As a political decision, it reflects a regime’s approach to its citizens and the common good. The common good is both the overall societal well-being, such as economic wealth, and the political compact that binds the society together. To promote and protect the common good, a regime has to deliver its highest political priority—justice. If a regime cannot deliver justice, as understood by the society, then its legitimacy is suspect. The regime has to reflect and support the societal well-being by an equitable care for its citizens. If it does not deliver this outcome, it can be accused of serving a private interest not a common interest. The UK has the widest economic inequality in Northern Europe[1]  I argue the economic inequality reflects the inequality of the UK regime.[2] The inequality is more than an economic question about its cause, its severity and it context. It is a question of the institutional political inequality within the UK.

Why is the UK different from Europe when it comes to economic inequality?

The UK regime appears unable to deliver on its promise to protect its citizens and to maintain the common good. We can see it in the following questions. Why is there a stark difference between the UK and Northern Europe? The data behind the map indicates the inequality has existed for years and is not the result of one government.[3] The cause cannot be the Parliamentary party in power. The cause cannot be the recent economic downturn. As the UK’s wealth has increased, the inequality has increased By contrast, as Northern Europe’s wealth increased over the same time, economic inequality did not emerge. Despite its wealth, the UK is the sixth most prosperous country in the world; it has more regions than any other Northern European state that are poorer than the average in Northern Europe.[4] Is the difference in economic or political policies? The UK parliamentary parties and their economic policies have more in common with the Northern states of the EU than what differentiates them.[5] Can changes in industry, global markets, or regulatory frameworks explain the inequality? The Northern European states have had a relatively similar exposure to these economic issues. What remains for us to consider? The UK regime is what makes the difference.

The regime explains the inequality when compared to Northern Europe. By regime, I mean the rules, cultural or social norms that regulate how the government and society interact through the institutions of the Crown (Church, Parliament, and Monarchy). The regime creates the laws and the laws create the type of citizens that flourish within the regime. A regime creates a certain type of person who flourishes in that setting. To encourage that person to exist, the regime creates laws and institutions.[6]

The Crown has failed to deliver equity to its citizens.

The Crown has failed to address the issue. It has not redistributed economic prosperity to reduce the severe economic inequality. The economic inequality reflects a political inequality. Economic and political power is concentrated in London. London attracts the most political attention. The Mayor of London is a powerful political actor as the city contains The City of Westminster, which is the seat of the government, and the City of London, the country’s financial centre. The City of London is its own political entity and has a privileged relationship with Parliament.[7] However, the problem is more than the political system, the economy’s structure or even the status of City of London with its Lord Mayor of London.[8]

If the economic system serves the Crown, what serves the people?

In the Magna Carta’s anniversary year, we have to consider how the economic and political inequality reflects a political regime that owes more to a feudal system where position, patronage, and privilege than a democratic system based on equal rights before the law. The institutions of the regime are what the regime use to shape shapes its citizens. The regime’s institutions shape the way the citizens access justice, the political system, and the public domain. These institutions serve the Crown and its interests and in doing so benefit the people. Instead of mitigating or reforming that system, Parliament, as the only publicly influenced institution, has continued it and entrenched it. The Church has similarly contributed to the institutional inequality by its implicit defence of the regime even as it criticizes some practices.[9] By contrast, the countries in continental Europe have been able to redistribute the funds and prosperity as the institutions and the regime reflect the people.[10] They are based on an intrinsic political equality that leads to a relative economic equality between regions, as the government is responsive to the people, even if economic inequality between individuals exists.

The Crown protects itself from the people through Parliament and the Church.

The European governments promise equality and deliver it to the best of their ability. Ruled by a constitution that reflects the people’s will, Republics express a political equality based on equality before the law. The law binds even the government. By contrast, the UK is not a republic so it is not a government of the people, by the people or for the people. Instead, UK’s institutions that make up the establishment are designed as a bulwark against popular sovereignty or the popular will.[11] One way the Crown protects itself is that all judges, MPs and the Police swear allegiance to the Crown not to the people or the law.[12] These institutions represent the Crown to the people. What we realize is the normal representation model is flawed. Unlike when Parliament wrested power from the Monarch in 1689, they no longer represent the people in the same way. As Parliament is part of the Crown, the people choose who represents the Crown to them. The Police enforce the public order to defend the Crown. Even the press, which is nominally not a Crown institution, does not serve the people. The press serves the establishment and only indirectly defends the people if only to retain their source of power, which is the public interest and the need to keep the people informed so they remain safe. To the extent the people are kept safe, it is to ensure they have no cause to remove the Crown. A sovereign that cannot protect its people is soon deposed and a sovereign that will not restrain the predatory elites, will soon find itself suffering a crisis of legitimacy.

As the Crown is above the law, in that it alone creates and decides the law, we have to consider whether the rule of law is a pious sham. The law does not reflect the will of the people; it reflects the Crown’s will as expressed through Parliament’s sovereign will. Is the Crown and Parliament ruling in accordance with the law or their will?[13] In their allegiance, the MP represents the establishment, understood as the Crown, to the community. They reflect the residual political patronage system in UK political culture that relies on and expresses the Crown’s prerogative powers. The monarch may exist within Parliament, but its prerogative powers exercised by the government remain beyond statute and the people.[14] What we see is that Parliament’s sovereign will has become the absolute power it sought to supplant in 1689.[15] Instead of removing an absolute Monarch, Parliament has transferred its function, if not form, into a system that masks its role and allows it to control the public more completely than any absolutist monarch ever tried or hoped to control. In that sense, Hobbes’s Leviathan arrives in Parliament sovereign will working with a government wielding the royal prerogatives to defend the Crown.

What is the source of the UK’s inequality?

If the UK’s inequality does not reflect popular will, what does it reflect? The economic inequality reflects political inequality. It reflects the parliamentary privilege and a patronage system that remains from feudalism. One way to understand this is to compare it with the way a society distributes food. If we apply Amartya Sen’s argument to the issue, we can understand the problem. He argued that famines are rare in democracies because civic freedoms and equality mean political power reflects and respond to popular opinion.[16] In a republic, people share in the common good. In republics, extreme economic inequality is less common.[17] By contrast, the Crown is not responsible to the people. It is responsible to itself so inequality is not addressed. To the extent it does serve the public, it is to ensure they do not have a reason or motive to change the system. The Crown exists to perpetuate itself and the institutions within the Crown ensure that occurs, thus the major sources of coercive power (judges, parliament, police) are all aligned to serve it not the people.

Until the regime changes, economic inequality will grow worse not better.

The UK’s economic famines will not end until the regime changes. A change of government is not enough. The country has to change or the inherent injustice will continue. Political reform can lessen the symptoms, but it will not remove the cause, which is the regime.[18] Any individual or government that attempts to change it faces the power and temptation of the patronage and privilege system. As can be seen in footnote 21, the system is designed to co-opt those who might emerge as leaders against the regime and dilute ideas that would challenge it. For many, the chance to sit in the House of Lords and other Honours has been a potent tool to shape behaviour among the elite. For the politically ambitious, the Crown’s ability to confer status provides a powerful, near irresistible, temptation. In the face of such temptation, men and women once devoted to the public good find that their public service stops when a lucrative personal profit appears. Once they accept the privileges and status, they become less willing or able to work to challenge or change the system.[19] Many erstwhile radicals become satiated conservatives grown fat at the public teat as they soothe their conscience with soft embrace of ermine robes. At the same time, the public discourse is managed so that the popular media supports the regime. The media proprietors, hungry for the financial rewards that come with establishment endorsements, provide a compliant press that betrays the tradition of a free press. Even under the most robust Royal censor, one would find it difficult to find the free press as willing to endorse and expand the establishment views. Even the mild criticism it does find a way to encourage only reaffirms what was lost and provides the necessary appearance of free speech. What we find, though, is that those who benefit most from the privilege, especially recently achieved, fight hardest to defend it. The public in whose name the press claim to act, stand outside the system and exercise believe they can make and enforce the laws made in the public interest.

Is it the Crown’s interest or the public’s interest that is being promoted?

The system and its outcomes serve and defend the Crown’s interest and more widely the establishment’s interest. As part of the system, the press manage the public opinion and the police manage the public order to contain any manifest dissent. Parliament can pass legislation to reduce the public’s ability to organise dissent. The courts, supported by the police and Parliament, deliver swift justice on those who challenge the regime.[20] The process is not new as Aristotle described over 2500 years ago. [21] What is new, though, is the way it is done in the public interest rather than the Crown’s interest.[22] The popular media and the government make a great effort to encourage people to believe they gain from the regime. They do this because all regimes do it although the UK’s regime more than others as they have to market the idea that the public have more to lose if the Crown loses its privileges and position.[23] The best way to see this is in the various arguments that are made to explain why the City of London must retain its feudal rights.[24] It does not serve the public; it serves itself. Over time, the people and regions that might benefit from the reduced inequality are conditioned to expect that such change cannot or will not occur. Once conditioned to the inequality, explained by “market forces”, they find it difficult to become enthusiastic for proposed changes.[25] As mentioned in footnote 21, the system is designed to protect and promote the privileges and as the status quo, the law is on their side. Taken together, the law and the political system deter those who might change it even by non-violent means. Even when economic or political reform manages to be passed, it falls well short of what is needed to reduce the inequality. Once delivered, the reform becomes a barrier to further reforms as the popular mood is that so much has already been done for these areas any more becomes unnecessary or unseemly.

Will Magna Carta be anything more than a pious wish?

In the year of Magna Carta, it is time to consider a change. We need Parliament to reform prerogative powers and make itself and the Crown subject to a written constitution. The time has come to complete the path that Magna Carta symbolizes and promises. The promise is a regime that is based on a common good in which all share equality of the rule of law and the UK regime can deliver economic prosperity to achieve the EU average. Magna Carta created the promise that a regime will keep its basic promise to its members so they are treated fairly. In this promise, a regime has to demonstrate it is responsive to the people. Such a regime would deliver justice and promote the common good not the Crown’s private good delivered as patronage and privilege.

 

[1] The picture is from this source,

[2] http://inequalitybriefing.org/brief/briefing-43-the-poorest-regions-of-the-uk-are-the-poorest-in-northern- (accessed 22 March 2015) another way to look at the inequality is with this picture. http://inequalitybriefing.org/graphics/below_EU_average.pdf (Accessed 22 March 2015)

[3] http://ec.europa.eu/eurostat/help/new-eurostat-website (accessed 22 March 2015)

[4] http://inequalitybriefing.org/graphics/below_EU_average.pdf (accessed 22 March 2015)

[5] http://www.parliament.uk/business/publications/research/briefing-papers/SN06730/the-economic-impact-of-eu-membership-on-the-uk (accessed 22 March 2015)

[6] Regime is the order, the form, which gives society its character. Regime is therefore specific manner of life. Regime is the form of life as living together, the manner of living of society and in society, since this manner depends decisively on the predominance of human beings of a certain type, on the manifest domination of society by human beings of a certain type. Regime means that whole, which we today are in the habit of viewing primarily in a fragmentized form: regime means simultaneously the form of life of a society, its style of life, its moral taste, form of society, form state, form of government, spirit of laws. We may try to articulate the simple and unitary thought, that expresses itself in the term politeia, as follows: life is activity which is directed towards some goal; social life is an activity which is directed towards such a goal as can be pursued only by society; but in order to pursue a specific goal, as its comprehensive goal, society must be organised, ordered, constructed, constituted in a manner which is in accordance with that goal; this, however means that the authoritative human being must be akin to that goal.

  1. 34 Leo Strauss What is Political Philosophy? pp9-55 in What is political Philosophy? And other studies Free Press 1959.

[7] http://www.theguardian.com/commentisfree/2011/oct/31/corporation-london-city-medieval (accessed 22 March 2015)

[8] The Mayor of London is Boris Johnson and the Lord Mayor of the City of London is Alan Yarrow https://en.wikipedia.org/wiki/Alan_Yarrow for a wider discussion of the status of the City of London https://en.wikipedia.org/wiki/City_of_London (accessed 22 March 2015)

[9] http://www.theguardian.com/society/2015/jan/15/archbishops-inequality-book-extracts (accessed 22 March 2015) It is distressing to note that an Archbishop would suggest that self-interest would prompt justice. If Christ teaches us anything it is not self-interest that prompts justice, it is love of God and faithfulness to his message. If we put our self-interest first, are we able to serve God and each other?

[10] Consider the following article that describes the attempt to redistribute economic prosperity across the EU and the UK’s approach. http://cor.europa.eu/en/news/regional/Pages/eu-officials-european-inequality.aspx (accessed 22 March 2015)

[11] Some commentators might argue that individual rights have increased within the past 70 years with laws for social welfare and providing the individual greater autonomy and redress against the state. This is true and misses the underlying point. The changes do not affect or address the underlying distribution of power and the nature of the regime. The system and the regime are fundamentally structured against popular sovereignty. In many ways, the increase in individual rights, without changing the regime, reflects the Crown’s strategy since 1689.

[12] The judge’s oath is here: https://www.judiciary.gov.uk/about-the-judiciary/the-judiciary-the-government-and-the-constitution/oaths/

The MP’s oath is here: http://www.parliament.uk/site-information/glossary/oath-of-allegiance/

The Police oath is here: Police Reform Act 2002 http://www.legislation.gov.uk/ukpga/2002/30 (accessed 22 March 2015) See section 83.

The Monarch’s oath is not to the people. She only agrees to govern according to the laws of each country over which she is sovereign. Her oath is here: http://www.royal.gov.uk/royaleventsandceremonies/coronation/coronation.aspx (accessed 22 March 2015)

[13] On the nature of what it means for a monarch to rule according to the laws consider this passage from Leo Strauss On Tyranny:

“Tyranny is defined in contradistinction to kingship: kingship is such rule as is exercised over willing subjects and is in accordance with the laws of the cities; tyranny is such rule as is exercised over unwilling subjects and accords, not with laws but with the will of the ruler.” OT p. 68

The issue though is who makes the laws. Parliament, part of the Crown, makes the laws so it is only accountable to itself not the people to whom it does not owe its allegiance. As Lord Neuberger of Abbotsbury explains Parliament is only bound by its will nothing else because of its prerogative powers. http://webarchive.nationalarchives.gov.uk/20131202164909/http://judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-weedon-lecture-110406.pdf (accessed 22 March 2015) See paragraphs 19-31.

[14] Tony Benn attempted on several occasions to catalogue the royal prerogative powers without much success. What most people do not realize is that the government exercises these powers hundreds of times if not thousands of times a year without recording their use or informing the public. [Insert link to Benn and Schmitt blog post]

[15] On parliament’s sovereign will see Lord Neuberger’s Weedon’s Lecture. http://www.judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-weedon-lecture-110406.pdf For a general discussion of the UK’s absolutism within Parliament, see Hobbes’ Leviathan. One only need to consider the way in which Parliament exercises its sovereign will unhindered by any statute and the government’s retained prerogative powers formerly associated with an absolute monarch and previously opposed by Parliament when they were in opposition rather than ascendancy. The prerogative powers, like Parliament’s sovereign will, exist beyond statute which means they are not bound by law. See https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228834/7170.pdf (accessed 20 March 2015) at paragraph 21.

[16] See for example, http://content.time.com/time/magazine/article/0,9171,989405,00.html (accessed 27 March 2015) and http://www.nytimes.com/2003/03/01/arts/does-democracy-avert-famine.html (accessed 27 March 2015)

[17] The issue is not whether a Marxist system is superior to a feudal system or a capitalistic system. The issue is the Crown’s inability to deliver on its promise to the public. The Crown has not kept its part of the bargain. Successive governments have failed to reduce the inequality. The failure raises questions about the Crown’s legitimacy and that in turn raises questions about political obedience. Is it any wonder that the Crown has to increase its surveillance powers and surveillance efforts in direct proportion to the emerging questions of illegitimacy of a political system based on feudal rights and an economic system based on privilege and monopoly? The Crown can only resolve these issues by a constitutional settlement that wold create legitimacy and make the government accountable to the people.

[18] The Governance of Britain 2007 is indicative of a superficial reform. It reforms the governance without reforming the regime that creates the political system and culture. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228834/7170.pdf (accessed 22 March 2015) The document suggested some political reforms but stopped well short of suggesting a change in the regime. (See fn13 p.23 prerogative powers of Monarch will *not* be reformed.)

[19] The exceptions, such as Tony Benn https://en.wikipedia.org/wiki/Tony_Benn (accessed 1 April 2015)and Michael Foot https://en.wikipedia.org/wiki/Michael_Foot (accessed 1 April 2015), prove the rule.

[20] We can see the system at work after the London Riots of 2011 where the court sat through the night to process arrests and punish those who broke the peace. http://www.bbc.co.uk/news/uk-14484239 (accessed 1 April 2015) The difference though is that the economic problems are not a threat to the peace. Yet, any dissent has to be funnelled through a political system that is structured not simply to moderate such demand for change but to deny it. When the UK political system wants to act quickly it can, such as banning weapons after Hungerford and other massacres. What it appears incapable of doing is taking the same approach to the economic injustice that exists. Yet, the European states seem to be able to deliver that justice.

[21] Consider these two selections from Aristotle’s Politics Translated by Carnes Lorde University of Chicago Press 1986. 1308 a and 1297b What they reveal is that so long as the regime does not abuse the poor and provides them benefits, they will not seek to overthrow the regime.

1297b For the poor are willing to remain tranquil even when they have no share in the prerogatives, provided no one acts arrogantly towards them nor deprives them of any of their property. Yet this is not easy; for it does not always turn out that those sharing in the governing body are the refined sort.

We immediately understand the deeper institutional challenge from the Child Sexual Abuse inquiry beyond the immediate issue of justice. The case suggests that the regime appeared to tolerate the abuse of the most vulnerable as police officers were told to drop investigations and lesser charges were brought if they were brought. The behaviour is the type that would outrage the poor who would seek to overthrow the regime for its failure to keep its bargain. Perhaps, this is the existential question the Crown cannot face as it appeared to profit, through the potential for blackmail and control, from the Child Sexual Abuse activity.

Even if someone wanted to challenge the system, the system, especially the honours system, is designed to co-opt the ambitious into the system.

1308a Further one should see that no only some aristocracies but even some oligarchies last, not because the regimes are stable, but because those occupying the offices treat well those outside the regime as well as those in the governing body—those who do not have a share, by not acting unjustly toward them and by bring into the regime those among them who have the mark of leaders, no t acting unjustly toward the ambitious by depriving them of prerogatives or toward the many with regard to profit; and themselves and those who do have a share, by treating one another in a popular spirit.

We can see how the system protects itself and ensures stability. The goal is laudable and welcomed if the regime is just. However, in a regime that does not live up to the maxims of equity the work to co-opt those who might challenge it indicates that it is not working to deliver justice but to prevent it.

[22] http://www.huffingtonpost.co.uk/2014/12/05/russell-brand-the-sun-hypocrite-flat-rent_n_6273894.html

(accessed 26 March 2015) Russell Brand is a recent example of someone who challenges the status quo and faces a counterattack from the media and from the political institutions. We note that the Sun, which supports the current government, is in the forefront of the attacks although the BBC have also been critical.

[23] One can note the huge effort that was made to encourage a “no” vote on the Scottish Independence referendum to avoid the possibility of a regime change, which independence would have triggered.

[24] They have an officer who sits behind the Speaker of the House to protect the City’s interests and remind Parliament of the City’s independence. (insert link)

[25] We can see this in statements that suggest that to reduce inequality is socialism or that a redistribution of funds is anti-capitalism. These statements are made without a hint of irony given that a government is designed to redistribute taxes to various programmes such as collecting taxes to pay for schools, health and national defence. The amount spent in each area shows the nature of the regime yet that in itself is not a socialist or an anti-capitalist motive or intent.

Posted in corruption, Government, justice, public opinion, republicanism, statesmanship | Tagged , , , , , , , , ,

Why does the United Kingdom need a written constitution?

English: One of several shelves full of books ...

English: One of several shelves full of books about the constitution of the United Kingdom at the law library of UC Berkeley School of Law. (Photo credit: Wikipedia)

Why does the United Kingdom need a written constitution?[1]

The United Kingdom needs to have a written constitution even though it may never develop one. There are three challenges that need to be overcome before it can be written let alone agreed and implemented. Before we consider these three points, we need to understand that constitutions only arrive from a constitutional moment. They are not created by mistake or as an afterthought. We must move beyond the idea that a constitution comes from the intermittent accretion of laws and judicial rulings. A constitution cannot be an implicit document as that defeats the explicit purpose which as it constitutes a regime. A regime may form from the accretion of laws and judicial rulings, yet that is not a constituted body from a constitutional moment. One might suggest that a constitutional moment is an example of what Carl Schmitt called the exception. Yet, a constitutional moment unlike the exception or the state of exception, may require too much political change to be accomplished by a single document or a single decision. Moreover, unlike the state of exception a constitutional moment usually, but not always, demonstrates or relies upon all constituting parties agreeing that a constitution is necessary if only from a situation of crisis in which the status quo can no longer be sustained. Without a crisis or something that creates a constitutional necessity, such as secession, there is no appetite or incentive to change. Why should a constitution be introduced when the regime is satisfied with itself. In such a situation of regime self-satisfaction, what can be accomplished, at best, is relative reform rather than wholesale or fundamental change. If we consider the effort it took to create the Constitution of the United States of America, we see the UK faces a problem of significant scale and complexity.

In the United States of America scenario, a people created a government and by an extension a regime through a constitution. The intent in the UK appears to be a government will create a constitution. In that difference, we see the deeper challenge to a written constitution and a constitutional moment in which various institutional forces are at work that reflect the institutions which would either disappear or be seriously disadvantaged by a written constitution. The deeper challenge is beyond the scope of this essay as more space would be required to sketch or explore the forces and interests arrayed against such a constitution or the constitutional moment. At this stage, I can only say that many powerful actors have little to gain and much to lose from a written constitution.[2] However, I applaud Parliament for giving the public the opportunity to entertain the idea that it can create a constitution from reflection and choice.

It has been frequently remarked, that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.[3]

Until the United Kingdom embraces a written constitution, it relies upon its founding is by accident and force. The hereditary monarchy has not arrived or remained by a democratic mandate. Even the restoration is not a constitutional event but a return to a previous status quo. Even though the UK has sustained its founding, the event of 1688-89, founding by reason and reflection, it remains incomplete. In terms of honouring the fundamental principle of Magna Carta, that men can reason and agree to determine their political system and the limits of political authority, it remains incomplete. To that end, I make my recommendation. However, my recommendation has to be understood in light of the three problems that only a written constitution can address.

Is equality before the law possible without a written constitution as supreme law?

First, we face the problem that without a written constitution we do not have a supreme law of the land as exists in the United States of America, France, Germany and other liberal democracies.[4] A written constitution becomes the supreme law of the land. The current situation is one where Parliament’s will is sovereign and this leads to arbitrary government through prerogative power, which is undefined, and not a consistent government through constitutional authority. The challenge from a constitution, as a supreme law, is that it would make the sovereign subject to the law. In a republic, where the people are sovereign, they express that sovereignty through the law they create and consent to obey. By contrast in the UK, the sovereign, the Queen is not subject to the law. She obeys voluntarily. Thus, unlike her subjects she is exempt from the law as sovereign, which belies the claim that there is equality before the law. [Insert footnote] One way to see this difference is that the Queen is not required to obtain a passport. The point can appear trivial or even humorous. However, it masks a deeper point of principle about the symbols and reality of power within the United Kingdom. If a constitution were created, then the Queen would be subject to that law as would everyone else. Moreover, Parliament would also be subject to and bound by the law. Herein we see the second problem.

Will Parliament willingly tame its sovereign power and by extension the Monarch’s power?

Parliament, and the other institutions, represents the establishment to the people they are representatives of the Crown not the people’s will. They swear an allegiance to the Crown not parliament or the people. This is at the heart of problem with the HRA.

Parliament is sovereign and it guards its sovereignty jealously.[5] Its sovereignty is supported by the prerogative powers it has inherited from the Monarchy. If a written constitution were created and implemented, it would bind Parliament’s sovereign will and the prerogative powers. Parliament knows that it is not bound by any limit save its own will. Parliament may enter into agreements and treaties, but it retains the right, and power, to leave those treaties to protect its sovereign will. In this sense, the Parliament is above the law. Lord Neuberger recognized this point when he quoted Lord Justice Laws,

It may be that my perceptive and far-thinking colleague , Lord Justice Laws, will one day turn out to be right when he argued that, through judicial development of the common law, ‘a gradual reordering of our constitutional priorities [may] bring alive the nascent idea that a democratic legislature cannot be above the law.61 ’ But we are not there yet. (the footnote is from here [6]

A written constitution will challenge this sovereignty and Parliament is not going to relinquish this power without some effort or a crisis. To put it directly “Turkeys do not vote for Christmas”. As neither the effort nor crisis exists, it seems a dream. At best, we may have some minor or indirect reform, such as a review, but the demand or appetite for fundamental change does not yet exist. Without a crisis, the system remains unchanged. Therein, we see the third problem. The political system, the Crown, is designed to sustain and defend Parliament’s sovereignty and by extension the Monarch’s prerogatives. We can see this is the issue of official Oaths.

When will the oaths reflect the primacy of the law or the benefit of the people?

As the Committee has identified in the evidence it has received, all public offices declare an oath of allegiance to the Crown. These oaths help us to see why a written constitution is needed. If we look at the Queen’s Oath, we see the issue clearly.

Queen did not take an oath to serve the people or the law.[7] She takes an oath to govern according to the respective laws of each nation. However, that does not mean that she is subject to those laws. She rules or governs according to their laws. She will ensure that law and justice are executed in her judgements. In this, we see the first issue. The Queen executes the laws even if Parliament creates them. Parliament cannot execute a law. The armed forces and the police take an oath, an attestation, to the Crown, not to Parliament or the people or even the law.[8] The Army and Royal Marines attest an oath to the Monarch.[9] We need to note that the Royal Navy does not swear an oath because it was created by Royal Prerogative.[10] Finally, we note that Parliamentarians taken an oath of allegiance to the Queen not to the law or to the people.[11] In themselves, the oaths are not problematic. However, in terms of a written constitution, they present an immediate and fundamental problem. The Monarch would have to release them from their oath of allegiance before they could swear allegiance to a written constitution as the supreme law of the land. In United States, by contrast, the military takes an oath of allegiance to the Constitution.[12]

We note that the oaths are more than symbols. They are legally binding statements, which define constitutional powers. An MP cannot take a seat in Parliament without swearing allegiance. The symbols reinforce the public’s position within society and before the law. Neither the Monarch nor her representatives swear an oath to them or to a constitution, which serves them. In the United States, all citizens are equal before the Constitution. Even the most powerful citizen, the President of the United States, takes an oath to uphold and defend the Constitution. No citizen is above or beyond the Constitution. By contrast, the Monarch is above or beyond the unwritten constitution to the extent that the organs of the state and her representatives swear an oath to her and not a constitution or the people. Moreover, the people are expressly removed from the oath or their ability to enforce the oath. They may influence it but only in a way that is removed because it is exercised only through Parliament or by direct appeal to the Monarch.

The practical consequence of this issue can be seen directly in the issue of deaths in police custody. As Koos Couvee wrote, “Since 1969 no officers have been successfully prosecuted for a death in custody.”[13] The question that we must answer is “Who do the police serve?” They serve the Crown not the people. They keep the public order and enforce the law. However, the police do not represent or serve the public in the sense that they swear an oath to the people or to a constitution created by the people. Herein, we see how the oaths reveal the question of justice. All the organs of the state swear an allegiance to the Queen and the people are secondary. When someone dies in police custody, the police only answer to the government, which also swears allegiance to the Queen. The Queen, though, is not accountable to the people. The government is not of, by, or for the people. It is Her Majesty’s government, ministers, judges, armed forces and police force. When a police officer, a Crown official, is arrested and charged for the death in custody, the Crown tries them. If a constitution were to be created, then it would make the Queen subject to the law in the same way that any citizen is subject to the law that they have constituted. However, that potential raises a question whether the people will be allowed to participate in the constitution.

A constitution can create the possibility of a new political settlement. A new political settlement will be the first step towards a democratic justice. The Magna Carta contains that promise. A constitutional reform can deliver it. The question that the UK faces is whether the Crown will tolerate such a change and if the people can participate. A constitution written by the Crown and presented to the people to give them the opportunity to ratify it does not suggest a constitution so much as a Crown construct. The choice is whether the UK will retain its Monarchical system or if it will continue the journey towards a democratic future. Until the journey is completed, the UK will continue to have a partial justice and lack a common good based upon an equality before the law.

 

[1] The following essay is a revised and expanded version of my written submission to the Consultation on “A new Magna Carta” by the Political and Constitutional Reform Select Committee.

[2] Niccolo Machiavelli noted this problem in the Prince “And it ought to be remembered that there is nothing more difficult to take in hand, more perilous to conduct, or more uncertain in its success, than to take the lead in the introduction of a new order of things. Because the innovator has for enemies all those who have done well under the old conditions, and lukewarm defenders in those who may do well under the new. This coolness arises partly from fear of the opponents, who have the laws on their side, and partly from the incredulity of men, who do not readily believe in new things until they have had a long experience of them.” The Prince, Chapter VI, Concerning New Principalities Which Are Acquired By One’s Own Arms And Ability http://www.constitution.org/mac/prince06.htm (accessed 1 January 2015)

[3] Alexander Hamilton Federalist #1 in The Federalist Papers (Avalon Project) http://avalon.law.yale.edu/18th_century/fed01.asp (accessed 1 January 2015)

[4] See for example “The Constitution of the United States,” Article 6, Clause 2

“This Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

[5] Consider Lord Neuberger of Abbotsbury’s Weedon Lecture. 6 April 2011   http://webarchive.nationalarchives.gov.uk/20131202164909/http://judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-weedon-lecture-110406.pdf (accessed 31 December 2014)

[6] 61Laws, Illegality and the Problem of Jurisdiction, in Supperstone & Goudie (eds), Judicial Review, (Butterworths) (1997) 4.17 cited in Goldworthy, The Myth of the Common Law Constitution in Edlin (ed), Common Law Theory (CUP) (2007) at 204

[7]http://www.royal.gov.uk/ImagesandBroadcasts/Historic%20speeches%20and%20broadcasts/CoronationOath2June1953.aspx (accessed 31 December 2014)

[8] https://en.wikipedia.org/wiki/Police_oath#United_Kingdom (accessed 31 December 2014). The constable will follow and uphold the law. However, their first allegiance is to the Crown not the law, parliament, or the people.

[9] https://en.wikipedia.org/wiki/Oath_of_Allegiance_%28United_Kingdom%29#Armed_forces (accessed 31 December 2014) “I… swear by Almighty God that I will be faithful and bear true allegiance to Her Majesty Queen Elizabeth II, Her Heirs and Successors, and that I will, as in duty bound, honestly and faithfully defend Her Majesty, Her Heirs and Successors, in Person, Crown and Dignity against all enemies, and will observe and obey all orders of Her Majesty, Her Heirs and Successors, and of the generals and officers set over me.”

[10] http://www.royal.gov.uk/MonarchUK/ArmedForces/QueenandtheArmedForces.aspx (accessed 31 December 2014)

[11] http://www.parliament.uk/site-information/glossary/oath-of-allegiance/ (accessed 31 December 2014).

[12] http://www.history.army.mil/html/faq/oaths.html (accessed 31 January 2014)

[13] Deaths in British police custody: no convicted officers since 1969

Koos Couvée 9 August 2013 https://www.opendemocracy.net/opensecurity/deaths-in-british-police-custody-no-convicted-officers-since-1969 (accessed 1 January 2015)

Posted in censorship, corruption, Government, justice, philosophy, republicanism, Uncategorized | Tagged , , , , , , , , , , ,

#Milifandom or how the press found out if a 17 year old scares easily

“The News of the World” scandal explodes at UK press. (Photo credit: Wikipedia)

In the UK General Election campaign of 2015, a 17 year old learned about the UK media’s unpleasant behavior as guardian of the public domain. The 17 year old helped to start the Twitter trend called #Milifandom, to counter the negative stories about Ed Miliband. She did what many fans do for their favorite celebrities and sports stars, except this time it was for a politician. As this challenged the tabloid’s stories directly, they become interested. They quickly identified her and sought an interview. [1] Even though some people were surprised at how quickly the press identified her, it is not surprising.[2] The media are trained in tools and techniques to find people on social media.[3]

What price do we pay to be a citizen?

What this episode teaches us is that there is a price to participate in the public domain. Once you enter the public domain, politicians, press, and commentators will consider you a legitimate target. Although most public figures accept this as part of the business, those who are inexperienced in these matters will find this a high price. By contrast, politicians understand that this is the nature of politics, a public activity, not a private activity. They know and expect public scrutiny and media scrutiny. However, there is more to this than someone being introduced to the rough side of politics. The deeper and darker element to this story is the abuse of the public interest.

The press patrol the public domain with the power of the public interest

The public give the press great powers to publish information that they need to know to make informed decisions. The press act as a proxy for the public to hold the politicians and the powerful to account. They act in the public interest when they perform this role. However, this great power when abused can create a fear that chills democracy. They can act as an undemocratic body patrolling the public domain punishing those who might dare to challenge the status quo or the establishment. As gatekeepers for the public domain, they can decide who is in the public domain and who is to be pursued with the power of the public interest.[4] When they pursue someone, though, it keeps others from getting involved in the public domain and ordinary individuals stay away from it. As a result, democracy suffers. The press and not the public rule the public domain. The only people who participate in the public domain either have power to protect themselves or make a deal with the press to be protected. If you cannot make a deal with the press, you have three defenses that remain.

You only have three defenses against the power of the public interest.

Your first defense is the basic cost-benefit calculation. The cost of a story about you against the benefi for a newspaper and the opportunity cost against another story.  If you are not considered newsworthy, as a story that will sell newspapers, you will not be of interest to the press.[5] If you do enter the public domain, it is best to remain ordinary. In particular, you need to avoid anything that would attract the press.

The Court will protect you if you can afford it.

Your second defense is the court. If the press harass you or print defamatory articles, you can take them to court. However, it costs money to launch a legal case. The press do not want to lose defamation cases so they have extensive legal budgets to defend their stories. Against this financial and legal power, most people will simply suffer in silence. Even if you get to court, the court will defer to the editor’s public interest judgement in the first instance. The press can publish defamatory statements if they are in the public interest.[6]

Don’t speak up and you will not be monstered? The UK’s 21st century democracy?

Your third defense is that you are an ordinary person. Even though the courts may not want to decide the public interest, they are its final arbiter. They do not want to regulate the press and they explained in In Flood v. Times, that editor is best placed to decide the public interest in the first instance. However, the Court stressed that they believed that “ordinary individuals” would not be targeted by a trial by press.[7] However, like the public interest, the court did not define an “ordinary” individual. In some cases, press interest will be enough to create the public interest to turn an ordinary individual into a public figure. One way to do that is to offer them an interview or write a story about them.

What is democracy when the media decide who can enter the public domain?

What the 17 year old learned was that the press can decide who is a public figure to be investigated. In the UK, the media have a role to protect the establishment and maintain the public order in the public domain. If the press do not like your behavior, as many took exception to the #milifandom success, they will investigate and publicize their findings all in the name of the public interest. The incident reminds us that the tabloid press patrol the public domain armed with the public interest. They can seek out dissent from their editorial line and punish it. If you are their target, you might be lucky enough to suffer some bad publicity. If you have cause to upset the editor or their proprietor[8], you can be monstered.[9] Anyone targeted by the media have to live under the threat that they and their family will be investigated by legal or illegal means. In this situation, the press will go through the 17 year old’s life because she has dared to enter the public domain. This is what they do. They destroy lives for pleasure and profit.[10] As Rebekah Brooks, the former editor of the News of the World, said, “MPs do not scare easily.”[11] It turns out that the press are quite willing to find out if a 17 year old will scare easily.  This power, and the fear it creates, keeps people from speaking in the public domain.[12]

If MPs don’t scare easily then why try it on 17 year olds?

A citizen is someone who participates fully in politics or the public domain. By contrast, a private person does not enter the public domain. They have to be represented by someone and they become second-class citizens. In the UK, the media patrol the public domain and that inhibits people from attempting to become a full citizen. In a monarchical system, like the UK, which is based on patronage, privilege, and position, the establishment will guard its territory, the public domain jealously. To do this effectively, though, they need a proxy. The media become their proxy in exchange for access to, and favors from, the establishment. For anyone who might challenge that relationship, the price can be high. If the price is too high, is a healthy democracy possible?

[1] http://www.buzzfeed.com/hannahjewell/teenage-milifan-abby-is-angry-at-the-sun?bffb&utm_term=4ldqphz#4ldqphz (accessed 4 May 2015)

[2] It appears she was identified from the electoral roll where 16 and 17 year olds used to be referenced in the electoral roll registration even though they are not registered to vote. They are called “attainers” as they are going to be eligible to vote eventually. For a useful reference on the electoral roll consider http://www.electoralcommission.org.uk/__data/assets/pdf_file/0018/87111/The-completeness-and-accuracy-of-electoral-registers-in-Great-Britain.pdf (accessed 4 May 2015)

[3] See for example the BBC’s Academy http://www.bbc.co.uk/academy/journalism/skills/investigative-journalism/article/art20140204150039056 (Accessed 4 May 2015) and http://www.bbc.co.uk/blogs/collegeofjournalism/entries/23c67009-6a1a-394d-ae46-759fa7af1e30 (accessed 4 May 2015).  See also http://www.bbc.co.uk/blogs/collegeofjournalism/entries/6c483e23-884e-3206-a412-7af6e17b06dd (accessed 4 May 2015)  some of the other sites for finding someone or something are the following https://www.journalism.co.uk/news/20-search-tips-and-tools-for-journalists/s2/a553736/ (accessed 4 May 2015) The moral of the story is never assume you are anonymous online.

[4] The press went after the people who organized Thatcher death parties and the response on social media. http://www.dailymail.co.uk/news/article-2306620/Thatcher-death-party-Young-union-firebrand-Bryan-Simpson-middle-aged-anarchist-Ian-Bone-parties-hatred.html (accessed 4 May 2015)

http://www.dailymail.co.uk/news/article-2307040/Margaret-Thatcher-dead-Teachers-hatred-helped-organise-Maggie-death-parties.html (accessed 4 May 2015)

http://www.telegraph.co.uk/news/politics/margaret-thatcher/9986361/Parents-and-staff-disgusted-by-Thatcher-death-party-teacher.html (accessed 4 May 2015)

http://www.dailymail.co.uk/news/article-2307367/Margaret-Thatcher-dead-Burn-hell-graffiti-spotted-central-London-Banksy-tunnel.html

By contrast, most people on social media opposed the print media’s articles and their approach to the issue. What it demonstrated was the extent to which the media defend the establishment line on the issue. http://www.mediabistro.com/alltwitter/thatcher-death-social-reaction_b39533 (accessed 4 May 2015)

[5] For tabloids, this is a low bar as they will throw money at stories to find what they want to sell. http://leveson.sayit.mysociety.org/hearing-29-november-2011/mr-paul-mcmullan#s8693

[6] http://www.legislation.gov.uk/ukpga/2013/26/section/4/enacted (accessed 8 May 2015)

[7] “I would accept that the danger of trial by press without proper safeguards will often weigh heavily against the publication of the details of an accusation against an *ordinary individual*. But where the accusation is of crime or professional misconduct by a person in his performance of a public function, I do not think that the danger of trial by press without proper safeguards weighs heavily, still less conclusively, against publication.” [emphasis added] Paragraph 195 in http://www.5rb.com/wp-content/uploads/2012/03/FloodKSC_2010_0166_Judgment.pdf (accessed 4 May 2015)

[8] See    http://leveson.sayit.mysociety.org/speech/23034 (accessed 9 May 2015) See Anne Diamond’s testimony to Leveson. http://leveson.sayit.mysociety.org/speech/7776

[9] http://www.pbs.org/wgbh/pages/frontline/media/murdochs-scandal/what-its-like-to-get-monstered-by-a-murdoch-tabloid/ (accessed 4 May 2015)

[10] If you doubt that this occurs, I ask you to read this http://www.publications.parliament.uk/pa/cm200203/cmselect/cmcumeds/458/458w126.htm (accessed 4 May 2015) Then ask if this was a story in the public interest. A further question to ask is where was the editor? Who behaves in this way?

[11] http://leveson.sayit.mysociety.org/speech/71515 (accessed 9 May 2015)

[12] One only need to note the attacks on Russell Brand for his vocal stand against the establishment.

Posted in censorship, Government, privacy, transparency | Tagged , , , , , | 1 Comment

Has the Crown betrayed its covenant: historical child sexual abuse in UK.

Crown Navarre

Crown Navarre (Photo credit: Wikipedia)

In the UK, the historical child sexual abuse inquiry has set off a long overdue discussion and debate.[1] Despite the public inquiry, there have been attempts, one hopes, with good intentions to warn against a witch-hunt or to warn that predatory males protected by power and privilege are not the real danger. These arguments are needed as society and the regime confront a dark history. Without a tempered debate and inquiry there is a danger one injustice will cause another. However, we must keep in mind that these are issues are different from the historical issue as neither stranger danger nor abuse within the family are what is of concern. They distract us from the central issue.

Stranger Danger

Stranger danger will always be a concern. It will never be eliminated as long as there are dangerous people. The effort to remove dangerous people would distort political life to make life inhuman. Society can only mitigate the risks. A variety of steps can be taken through education, supervision, surveillance, and increased police presence. Greater penalties or sanctions can help but these are not crimes that are easily deterred.

Oedipus Complex: family abuse haunts civilisation.

The issue is not familial abuse. The legend of Oedipus shows that the family is an intrinsically fragile and ambiguous idea. The family is both a place of safety and extreme danger. The danger, like that of stranger danger, cannot be eliminated. We can reduce and mitigate the risk but never remove it. Throughout history, families understood the dangers and took steps to avoid it and to work to educate people against it. In the family, the dangerousness of man is overlaid with the problem of human desire unconstrained by traditional morality. If pleasure is your highest good, then illicit pleasures become justifiable. By releasing some sexual behaviours, sexual morality that may have restrained that approach is weakened. We can see this in the way that technology has changed our understanding of the morality and constraints of human reproduction. However, that moves us to a different topic for a different blog.

Power and privilege are at the heart of historical CSA

The political concern with CSA is that it relates directly to political power. I do not mean the perpetrator’s political party affiliation, which is immaterial. Instead, CSA reflects the brutal raw power of one person over another. The powerful exploit the vulnerable. In this case, the powerful are politically powerful. The perpetrator’s political status within the community is a constant. Even if the perpetrator is not politically connected, they hold a position of power and prestige that gives them access to the children and protects them. At a basic level, either the perpetrators had power over the child or they had power over the institution that was nominally responsible for the child. The children’s homes became a source for the powerful to find their pleasure. When Tom Watson raised the concern in Parliament, it touched upon a deep nerve within UK society. However, the deeper concern is the continuing problem in that those in power have perpetrated the CSA.

Privilege creates a system that protects the power at the expense of the vulnerable.

When the powerful perpetrators were caught, they were able to rely on their political power to avoid sanction or censure. In the case of Lord Morrison, he escaped with a caution. In Cyril Smith’s case, the police were invoked to retrieve allegations given to a newspaper editor. In the case of Jimmy Savile, he used his apparent relationship with the police and powerful people to deflect attention and provide access to vulnerable children and adults.[2] They were protected by power, privilege, and a system that reinforced their status. They were above the law and they bent the law to their will. Beyond the moral cowardice of those, like the police, who knew of these crimes and failed to act appropriately, there is a deeper problem. Their behaviour and the failure to stop suggest that the political covenant between the ruler and the ruled is in question.

The Crown is legitimate only so long as it protects the weak and restrains the predatory

The known perpetrators have acted as if they had the right to rape children because their power and privilege entitled them to it. The people who catered to them and procured the children also acted in that manner. In a regime where title and status are important, the political hierarchy and social hierarchy will shape citizens to respond to it. The UK regime, despite the veneer of liberal democracy, is based on a belief that power and privilege are respected, paid deference, if not submission. Who would challenge them when their victims are weak, vulnerable and without a champion? They focused on care homes and vulnerable children because no one would dare to stop them. They exploited their position, the public trust, as the system encouraged that trust and, by extension, encouraged that exploitation.

Does the CSA reflect the UK regime’s institutional inequality?

What is unasked about the historical child sexual exploitation is whether the whole regime is based on the principle exploitation and the crimes against the children manifested the regime’s institutional inequality. The words of Thomas Jefferson come to mind when we consider the perpetrator’s behaviour and the failure to restrain them. From the perpetrator’s perspective the children in care were born with saddles on their backs so the favour few, who are booted and spurred, could ride them legitimately by the grace of their status given by the Crown.[3] The regime expresses the ethos that the strong do as they will and the weak suffer what they must.

The poor will not revolt if they are protected.

The CSA reflects the fundamental inequality within society. The powerful and the privileged use the system to protect their predatory behaviour. The same system ignores it because it is based on deference and privilege in which the regime shapes individuals to seek such honours and rewards and defer to the privileged and powerful. The system is acceptable so long as the powerful do not prey on the people. As Aristotle explained 2500 years ago, a regime will remain stable so long as the poor and weak are not exploited. The weak will not revolt or challenge the rulers if they are protected and free of abuse.[4] The regime, though, has to restrain the predatory few within the privileged. In this task, the Crown failed to keep its explicit promise. It tolerated the predatory few and failed to bring them to justice.

Has the Crown lost its legitimacy?

The CSA inquiry raises a question about the Crown’s legitimacy.[5]  The basic relationship between a people and their Monarch is based on protection. If the Monarch, the Crown fully understood, cannot protect the citizen, why should they obey? In this case, the Crown understood as Parliament, the Police, the Criminal Justice System and the Monarchy were unable or unwilling to restrain the privileged predators even though they knew about their behaviour.

Is the historical Child Sexual Exploitation the Crown’s legacy?

When history judges this Monarch, the historical CSA will be her legacy. The Crown failed to bring perpetrators to justice and failed to protect the vulnerable in its care. These failures were a direct result of the regime created by the Crown through its patronage and privileges. For those who would protect the Crown and defend its legitimacy, the question is why they focus more on the powerful and less on the victim. The time to reform the Crown has arrived.

[1] For an overview of the issue see http://www.bbc.co.uk/news/uk-28194271  (accessed 1 May 2015)

[2] https://lawrenceserewicz.wordpress.com/2012/10/10/finding-jimmy-savile-the-shaw-report-haunts-englands-archives/  (accessed 1 May 2015)

[3] Thomas Jefferson “ The general spread of the light of science has already laid open to every view the palpable truth, that the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them legitimately, by the grace of God” http://www.counterpunch.org/2003/07/03/quot-the-mass-of-mankind-has-not-been-born-with-saddles-on-their-backs-quot/ (accessed 1 May 2015)

[4] Aristotle Politics 1297b “For the poor are willing to remain tranquil even when they have no share in the prerogatives, provided no one acts arrogantly towards them nor deprives them of any of their property. Yet this is not easy; for it does not always turn out that those sharing in the governing body are the refined sort.”

[5] https://lawrenceserewicz.wordpress.com/2015/04/13/official-secrets-act-and-child-sexual-abuse-inquiry-arcana-imperii-and-the-secrets-of-state/  (accessed 1 May 2015)

Posted in justice, public opinion, statesmanship, surveillance, transparency | Tagged , , , , | 1 Comment

Persecution and the Art of Writing the return to an ancient problem

"Save Freedom of Speech" - NARA - 513711

“Save Freedom of Speech” – NARA – 513711 (Photo credit: Wikipedia)

The story of the Bangladeshi writers who were hacked to death has not drawn as much attention as the Charlie Hebdo attack even though they share some similarities. The Bangladeshi writers wanted to write about atheism and to question the dominant religious views within their country.[1] They believed in the right of free speech and thought they should be able to speak freely and openly about the issues. Despite death threats, the writers continued to publish on the topic and were killed.

Some commentators have expressed concern about the attack on the freedom of speech; a freedom they believe is sacrosanct for decent liberal democratic politics.[2] In the West, there is wide acceptance that writers should be free and are free to write on a variety of topics without fear of government censorship or persecution. For the most part, the market decides whether the public will read what is written not the government. The market does not keep people from writing and publishing, especially on social media, if they want. The constraints that do exist are relatively limited as few topics, such as national security, are off limits. Thus, there is a widespread belief that the only alternatives are free speech or suppressed silence. The Western writers, long indulged with near unlimited freedom, have lost any sense of restraint or moderation. They forget that writers were able to flourish in earlier ages where persecution and censorship was widespread. By contrast, writers face being ignored more than they face being persecuted. However, this was not always the case.

Liberal governments and repressive societies

The demand for and acceptance of freedom of speech is a relatively recent idea. The idea of free speech is not one that had complete or even extensive acceptance around the world. Even though states may sign up to its ideas as part of UN membership[3], many contain societies that only pay lip service to those ideas. In these cases, the government acts hesitantly or is passive when a writer is attacked or threatened. The government might act to track down the attackers but that is tempered by a societal willingness to accept cultural codes of behaviour will be enforced. In this behaviour, we see that the government condones persecution without officially sanctioning it.

A public domain safe for discussion is rare

What we find in these states is that instead of a government censor, the community is the censor. The state continues to be arbiter or judge as it does in the West without taking a strong position for the individual rights over the community’s wishes. The Western democracies have accepted religion and politics are separated and have made the public domain safe for citizens to criticise religion and the government. Other states have not followed this path even if they ascribe to liberal democratic principles. Thus, religion and traditions continue to play a dominant role in the public domain, which limit the right of freedom of speech as understood in the West.

Is it brave to act rashly in the face of threats?

In such a society, it would seem foolhardy to demand they display and encourage Western liberal democratic freedom of speech. The society has neither the western liberal democratic background nor culture that values individual rights and freedom of expression. However, some will consider these writers brave. I would suggest that they chose to be martyrs. They knew the risks and did not seek to moderate their writings. They could have continued to write and still discuss the issues they wanted to discuss. Instead, they chose an immoderate path by insisting society and culture change to accept their beliefs or at least tolerate their beliefs openly.

Persecution in the past did not stifle all writers

In the past, writers who faced such persecution found a way around it. To do this, though, they chose a moderate path. In liberal democratic societies, the moderation is imposed by other means. When faced with persecution, the ancient writers chose topics and styles that would avoid the censors. They wrote in a way that the community accepted their writings. What they used to avoid persecution was to write esoterically. In the West, writers have lost touch with this moderate writing as they are allowed to write openly and aggressively on all topics.[4] They have no need to write moderately and yet they do write moderately. By contrast, the Bangladeshi writers needed to write moderately yet they chose an immoderate path. They confused rashness with bravery. What they failed to understand is that persecution need not stop the public expression of their views. As Leo Strauss argued, writers can escape persecution if they are willing to write carefully or between the lines

“Persecution cannot prevent even public expression of the heterodox truth, for a man of independent thought can utter his views in public and remain unharmed, provided he moves with circumspection. He can even utter them in print without incurring any danger, provided he is capable of writing between the lines.”[5] PAW p. 490.

Do we encourage others to be brave so we can feel good about our freedoms?

Perhaps it is time for writers to revisit Leo Strauss’s work. There they can find an introduction into methods to avoid persecution.[6] We can encourage states to defend freedom of speech yet it is our responsibility to encourage writers to act prudently in the face of threats. To encourage their immoderate behaviour seems to be irresponsible when other paths are available. We appear to encourage others to be martyrs for our beliefs so we feel better about our freedoms.

[1] http://www.csmonitor.com/World/Security-Watch/terrorism-security/2015/0227/Atheist-US-writer-killed-in-Bangladesh-familiar-attack-on-free-expression (accessed 23 April 2015) and http://www.latimes.com/world/asia/la-fg-bangladesh-blogger-killed-20150330-story.html (accessed 23 April 2015)

[2] See for example George Packer’s article. http://www.newyorker.com/magazine/2015/04/13/mute-button (accessed 23 April 2015)

[3] See the Universal Declaration of Human Rights http://www.un.org/en/documents/udhr/ (accessed 23 April 2015)

[4] http://press.uchicago.edu/ucp/books/book/chicago/P/bo18692306.html (accessed 23 April 2015)

[5] http://thenewschoolhistory.org/wp-content/uploads/2014/06/strauss_persecutionartwriting.pdf (accessed 23 April 2015) Strauss, Leo, Persecution and the Art of Writing , Social Research, 8:1/4 (1941) p.488-504

[6] http://straussonline.org/essay/on-a-forgotten-kind-of-writing/ (accessed 23 April 2015)

Posted in censorship, education, philosophy | Tagged , , , , , , , | 3 Comments

Official Secrets Act and Child Sexual Abuse Inquiry: Arcana Imperii and the Secrets of State

Sexually Abused child.

Sexually Abused child. (Photo credit: Wikipedia)

The UK regime faces a critical time as a number of public inquiries into its past behavior unfold. The undeveloped issue within these inquiries is the nature of the change they will require in the regime. There is an added urgency to these inquiries and the need for change from the news reports associated with the recent revelations concerning historical child sexual abuse (CSA) cases. The concern was of a pedophile network that operated at the heart of the UK establishment.[1] The revelations associated with that case have been stunning. Yet, what is most disturbing is the Crown’s apparent collusion in covering up the incidents. We have had news reports that suggest police officers were ordered to drop CSA investigations. The officers claim that they were told to keep quiet or face prosecution under the Official Secrets Act[2] (OSA). Even a newspaper editor has claimed that Special Branch officers told him that he would be prosecuted if he published stories that related to Cyril Smith MP or kept copies of the allegations.[3] He claims they invoked the OSA. The use of the OSA indicates the Crown’s involvement in these cases and is suggestive of a wider relationship with the CSA.

If the OSA protects a crime, is that still a secret worth defending?

The OSA exists to protect state secrets. It covers material such as secrets or official information that if disclosed would undermine state security and imperil the regime. When it is used or threatened, it suggests something important to the regime must be protected. However, the way the OSA was invoked might suggest something else. First, the Special Branch officers might have invoked it as a bluff. The OSA would be used to encourage the police officers and the editor to cooperate. Yet, the fear it generated suggests it was not an empty threat or a bluff. The officers and the editor did not speak of the events until it appears safe to reveal it was used. Second, the OSA suggests that the regime wanted to protect, the CSA allegations, as a state secret. Therein a deeper, troubling, question emerges. Why are CSA allegations something the regime must protect? The public and their elected representatives need to ask why a regime protects CSA as a state secret. If CSA allegations are a state secret, does this indicate something about the regime that would cause a citizen to lose confidence in it and raise concerns over their obedience to it?[4] If the CSA allegations are to be protected by the law, the OSA, and Special Branch, what purpose or person does it serve?

Secrets serve a purpose and a person, who is served by the OSA of the CSA?

Some observers suggest that the security services protected the CSA allegations because they wanted to use them. The claim has some credence if we consider the ancient Roman writer Tacitus who coined the term arcana imperii.[5] The ancient term describes the information and its use.[6] Although the term if often understood as state secrets, it also refers to how the information is used. Secrets are gathered and retained for a purpose. The regime that uses them can be judged on that use, the intent, and purpose it serves. Tacitus coined the term to describe government that relies on secrecy to govern beyond the public’s view.[7] The government was the Principate, which is a period in Roman history when the Republic had collapsed and a single ruler who acted publicly as if the Republic and the senate mattered ruled privately with total authority.[8] How the Crown rules the UK shares some similarities to the Principate.[9]

The Crown is more than the Monarchy

When I refer to the Crown[10], I mean more than the Monarchy[11], although the Monarchy is the main and best expression of the Crown. The Crown refers to the UK State in the fullest sense. Thus, this is not a challenge to the Queen, Parliament, or the Church. Instead, it is a challenge to all of them as a collective as they express the Crown and embody it.

The Crown rules the people, is the CSA showing at what price?

The Crown is distinct from the people.[12] Unlike a republic, a government for and by the people, where the people are the government, the Crown is the government. The people may participate in it indirectly, such as through Parliament, as long as they demonstrate allegiance to the Crown. The Crown is the supreme authority, not the people or a constitution. Within the Crown, Parliament exercise absolute power through its ability to make laws. Parliament’s will is sovereign.[13] The difference between the people and the Crown and Parliament, along with others such as custom, culture, and tradition, reveals the role of arcana imperii in the UK political culture and practice. The CSA show us how it works as the regime controls secret information and uses it for its purposes.

Who controls the secrets controls the power and records are not always secrets

The arcana imperii are more than the national archives or a problem of records management. The archives and records have a role yet they are different as they serve, in part, to hold power to account.[14] Even then, arcana imperii might direct that records “disappear” if it serves the powerful.[15] The OSA, as expressing the arcana imperii, supersedes archives and records management. In this case, it protects the Crown against the people, especially the victims, who would hold it to account. The OSA, in this instance, does not serve a public interest understood as the people’s interest. The OSA furthers the Crown’s interest when it protects the arcana imperii. To the extent that the Crown’s interests coincide with the public’s interest, this is not an issue. For example, the Crown will protect allegations because the wider knowledge can cause more problems and innocent victims can be harmed.[16] If the Crown protects the public and upholds the public interest, then it can be considered a legitimate regime. A legitimate regime rules to benefit, broadly understood, the people. When the Crown defends the regime and the people from foreign enemies it acts legitimately. In that scenarios, all would share in the fate of the regime should the country be defeated.

Does the Crown serve the people or itself?

Where this goes wrong, though, is when the arcana imperii are used in a way that serves the Crown’s interest and these do not coincide with the public’s interest. The most notable, at least today, is the concern over the way the OSA was used to silence police officers and journalists who claim to have information about historical child abuse. The argument is that the arcana imperii were used in ways that did not help the public. The arcana imperii, the knowledge of and ability to exploit the secrets of powerful people so they could be influenced them would further the Crown’s interest. Otherwise, why are Crown officers invoking OSA if it is not information vital to the Crown? We must be careful to note that the Crown may not have understood how its interest was being invoked or used in these cases. We are told that Lancashire police investigated the allegations about Cyril Smith and Special Branch took the material and gave it to MI5.[17] What might have happened is that the Crown did not know how the arcana imperii were being used or abused.[18] Thus, senior police officers or state security officers may have invoked the OSA, and retained the allegations, and the Crown would not have known about it.

The arcana imperii influences the UK’s political culture.

We can consider the way that arcana imperii influences the UK culture and custom in many ways. We can see it in the Hillsborough tragedy[19], the Mau Mau torture case[20], the Jimmy Savile historical abuse revelations, and the Stephen Lawrence murder investigation. However, three cases show how it works in practice.

Camelford, what goes wrong when the authorities tell you it is safe to drink the water

The first is the water poisoning in Camelford. Camelford was a town in which the water company employee mistakenly dumped 20,000 litres of Aluminum Sulphate into the water supply. The water company, in the days before the FOIA, told its people not to tell anyone about the accident. They covered up the threat to the public health.[21] Although the staff were not sworn to secrecy because of the OSA, they were placed in a situation where the organization was instructing them to respect the company’s secret its “arcana imperii”. The Crown, through the government ministers, worked hard to limit the public inquiry.[22] Although the government finally apologized after 25 years, in 2013, for many victims it was too little and too late.[23]

Rotherham, arcana imperii can exist in local government

The second is Rotheram Council’s institutional neglect of grooming. At Rotherham, we find that senior officers encouraged a culture that relied on bullying and intimidation to maintain the status quo where damaging information was not discussed or made public.[24] When someone prepared information and records that challenged the organization’s approach, the records were removed or destroyed. The Council and the Police failed in their approach to the problems.[25]

Daniel Morgan can the Crown investigate itself?

The third case is the Daniel Morgan murder.[26] The Daniel Morgan case involves corruption by the Metropolitan police. Despite six investigations, the Police have not brought his killers to justice. They have explained that police corruption undermined the original investigation. The subsequent investigations were hampered by the same corruption. The institutional secrecy created by the police corruption reflects a culture imbued with the arcana imperii ethos. The police manage secret information for their institutional interests and, by extension, the Crown’s interest.

Some secrets protect the public but who decides?

We have to be careful to note that some secrets are kept from the public for good reasons or reasons that respect and support the public interest. For example, the public can accept that the Police need to protect informants or the Government need to protect intelligence agents. Therein the problem is revealed. The use of arcana imperii means that we cannot judge the decision’s legitimacy that we face as a society and as an individual. No society and no individual ever solve these questions permanently so we must be vigilant to how we answer them and how we will answer them. Yet, we are guided by the awareness that some societies solve these issues better than others.

The election will not change the arcana imperii only a change in regime can.

Citizens have a right and a duty to hold their regime to account for the way it uses arcana imperii.[27] If the regime is using CSA to control the state and politicians, then the public need to know why and what justifies it. What regime behaves in this way? Is this the way politics and policing are conducted in the UK? If it is, then is it time for a change, not only of government, but also of a regime that tolerates it, employs, and benefits from it? If change is required, we return to an implicit question of whether such change would be sudden or gradual. If the change is occurring gradually, then it might be that the public has to wait for the change. When we consider these questions, we realize that the issue becomes a secondary one, the debate over the nature, speed, and sustainability of the change and not the originating problem.

 

[1] Tom Watson raised the issue in parliament in 2013. http://www.bbc.co.uk/news/uk-politics-20067409 (accessed 12 April 2015)

[2] The OSA that would have been in force at the time of the allegations was http://www.legislation.gov.uk/ukpga/Geo5/1-2/28/contents/enacted (Accessed 6 April 2015)

[3] http://www.theguardian.com/media/greenslade/2014/jul/15/daily-star-sunday-cyril-smith (accessed 7 April 2015)

[4] The question is core to the ancient political systems. If a regime will not protect the most vulnerable and instead protects the rapists, and thereby condones their behaviour, is it worthy of respect or obedience? Aristotle would warn that such a regime has abused its citizens and this indicates that it has become illegitimate. Consider that Cyril Smith acted arrogantly, to say the least, towards vulnerable children. Thus, suggests the regime is unstable. See Aristotle “1297b For the poor are willing to remain tranquil even when they have no share in the prerogatives, provided no one acts arrogantly towards them nor deprives them of any of their property. Yet this is not easy; for it does not always turn out that those sharing in the governing body are the refined sort.” Politics, Carnes Lord Translator University of Chicago Press 1984

Are the state organs, the security service and special branch that facilitated that protection worthy of respect and obedience? If they are, what is the basis of continued confidence and obedience in light of their behaviour? The victims were not foreign enemies seeking to kill or harm UK citizens or interests. They were children raped by men protected by power, privilege, and position. The ancient political philosophers would ask if a regime that is unable and institutionally unwilling to investigate these issues and bring the perpetrators to justice remain in power? They would reject the excuse that this was not understood or was “acceptable” in the past as the Crown remains constant. Only the perpetrators and victims have changed, the crime remains. Moreover, the ancient philosopher would ask, “If the Crown, which is responsible for enforcing the rule of law, is unable to bring these people to justice, can anyone get justice?” Even now, the regime seems intrinsically unable to investigate itself or to allow its behaviour to be held to account. We are reminded that the Queen took an oath to ensure the laws were faithfully executed. If the laws were not executed because child rapists were protected by officers loyal to her, then is she to be held to account for their failure and her failure to uphold the law? It would appear that the arcana imperii as practiced by the Crown reveals that the strong, the powerful and the protected, do as they want, and the weakest and vulnerable must suffer from whatever they wish to inflict. The people can elect a new parliament, they cannot elect a new regime. Until the regime changes, there will be no justice because of the inequality of power. Only between equals can there be justice and the UK regime is based on a fundamental inequality.

One could argue that the recent concessions to the individual through various legislations and decisions, such as widening the right to vote, increased rights of redress, both political and judicial, to hold the government to account as well the Crown agreeing to pay taxes, is a way to placate the public and keep them satisfied with the status quo. The issue, for the regime that understands its intrinsic illegitimacy in a democratic age, would be to manage any political change or threats to the regime in its own time. The only way to resist change is by accepting it and making it on the Crown’s terms not the public’s terms. On the issue of the Queen paying taxes, which occurred in 1992 and relates to her voluntary agreement to be taxed, an option the average citizen does not enjoy, can be found here: http://www.nytimes.com/1992/11/27/world/in-switch-from-tradition-queen-will-pay-taxes.html (accessed 12 April 2015)

[5] ARCANUS IN TACITUS Author(s): Herbert W. Benario Rheinisches Museum für Philologie, Neue Folge, 106. Bd., 4. H. (1963), pp. 356-362 J.D. Sauerländers Verlag Stable URL: http://www.jstor.org/stable/41244204 Accessed: 06-04-2015 23:51 UTC

In its other sense, arcanus indicates that which, regardless of chance, must be kept from knowledge, things tacenda or celanda. Whatever the reason, promulgation of these secrets would be disastrous, whether the important area be political or religious.

P360 “Here we have one of the keys to power, the ability – and the need – to conceal what is necessary from the general eye. And the verb vulgärentur is instructive; we have met it twice before. The value of arcana is exclusively political here; what is referred to must be tacenda.”

Tacenda means things not to be mentioned or made public—things better left unsaid; tacit means “unspoken, silent” or “implied, inferred.” http://www.thefreedictionary.com/tacenda (accessed 7 April 2015) We note the name Tacitus has become synonymous with the style of writing that he demonstrated and inspired.

Please note that arcana imperii is different from raison d’etat or reasons of state. Raison d’etat describes the reason information is used not how it is used, or what is used, or even that the practice exists to support the ability to rule. Thus all states will have raison d’etat but not all states will have arcana imperii to the same extent or type. In some rare cases, they might not have it at all. Some states will rely upon the law to rule others will rely upon blackmail and intimidation.

[6] The arcana imperii can also describe secrets of nature. If man can unlock those secrets, it is believed he can control nature in the way that man controls man when he knows their secrets or possess secret information that they cannot know.

[7] “Thus the study of arcana imperii stressed not only the empirical collection of knowledge as the basis of politics, but the clever management of that knowledge.” Mining Tacitus: secrets of empire, nature and art in the reason of state Vera KellerThe British Journal for the History of Science / Volume 45 / Special Issue 02 / June 2012, pp 189 – 212 DOI: 10.1017/S0007087412000076, Published online: 20 March 2012

Link to this article: http://journals.cambridge.org/abstract_S0007087412000076 p191

[8] https://en.wikipedia.org/wiki/Principate (accessed 7 April 2015)

[9] The regime has consequences for the populace as deep economic inequality exists within the UK but not in its nearest economic neighbours. The difference is likely due to the political systems and the way that power is concentrated in the City of London and the City of Westminster. http://www.charonqc.co.uk/wordpress/wp-content/uploads/2015/04/2015InstitutionalInequality.pdf (Accessed 12 April 2015)

[10] https://en.wikipedia.org/wiki/The_Crown s

[11] http://www.royal.gov.uk/MonarchUK/TheMonarchyToday.aspx

[12] http://www.parliament.uk/about/how/role/parliament-crown/ (Accessed 12 April 2015)

[13] Reference to Neuberger article Parliament, part of the Crown, makes the laws so it is only accountable to itself not the people to whom it does not owe its allegiance. As Lord Neuberger of Abbotsbury explains Parliament is only bound by its will nothing else because of its prerogative powers. http://webarchive.nationalarchives.gov.uk/20131202164909/http://judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-weedon-lecture-110406.pdf (accessed 22 March 2015) See paragraphs 19-31.

[14] Consider the role that archives would have in historical cases of injustice. https://lawrenceserewicz.wordpress.com/2012/10/10/finding-jimmy-savile-the-shaw-report-haunts-englands-archives/ (12 April 2015)

[15] There is always a possibility that records will get lost just by mistake and not intent. http://thoughtmanagement.org/2015/02/01/who-cares-if-records-get-lost/ (Accessed 12 April 2015)

[16] Consider under the Environmental Information Regulations there is an exception for information that if disclosed would harm the public. The regulation is 12 (5) (a) (5) For the purposes of paragraph (1)(a), a public authority may refuse to disclose information to the extent that its disclosure would adversely affect—

 

(a)international relations, defence, national security or public safety; http://www.legislation.gov.uk/uksi/2004/3391/regulation/12/made (Accessed 12 April 2015)

On the possible harm to innocent victims caught in a case of mistaken identity or a smear campaign, consider Lord McAlpine’s experience. http://www.nytimes.com/2012/11/16/world/europe/ex-politician-in-bbc-scandal-calls-accusations-rubbish.html?pagewanted=all&_r=0 (accessed 12 April 2015)

[17] http://www.channel4.com/news/cyril-smith-child-abuse-mi5-rochdale-elm (accessed 6 April 2015) The C4 programme claims that they have evidence to indicate that Special Branch had a file containing the evidence of Cyril Smith’s crimes even though he was never arrested or charged with them.

[18] Here is the issue at the heart of the scandal as someone had to decide that charges would not be pursued. Moreover, someone will have known the allegations, the evidence, and the police reports had to be managed. Many powerful people would be interested in the political consequences of such information. One only need to note that Rupert Murdoch and his employee Andy Coulson were keen to exploit personal information for their interests and use it to gain and deliver political favours. To quote Rebekah Brooks, a Rupert Murdoch employee, “MPs don’t scare easily”. She made this statement at Leveson Inquiry. On page 66 of the morning transcript, in middle of the morning session, Brooks lets a comment pass concerning the fact that politicians are not fearful of the newspapers. She then says, “MPs don’t scare easily”. She later uses similar language at the close of the morning session on page 98 of the transcript.

[19] http://hillsborough.independent.gov.uk/ (accessed 12 April 2015)

[20] http://www.theguardian.com/world/2012/oct/05/mau-mau-veterans-win-torture-case (accessed 12 April 2015)

[21] http://www.theguardian.com/uk/camelford-water-poisoning (accessed 7 April 2015) and https://en.wikipedia.org/wiki/Camelford_water_pollution_incident (accessed 7 April 2015)

[22] https://en.wikipedia.org/wiki/Camelford_water_pollution_incident (accessed 11 April 2015) As a result of several investigations and court cases, the victims did receive some compensation.

[23] The apology can be found here: http://www.paultyler.libdems.org/wp-content/uploads/2013/09/RB-and-AS-Lowermoor-Incident-16Sept13.pdf (accessed 11 April 2015) What it avoids is the cover up, the delays, and the failure to deliver justice beyond the apology. Perhaps all that one can take comfort in is that the controls on water have been improved to avoid future incidents.

[24] https://lawrenceserewicz.wordpress.com/2014/09/24/the-banality-of-institutional-ignorance-rotherham-and-child-sexual-exploitation/ (accessed 12 April 2015) The Jay Report http://www.rotherham.gov.uk/downloads/file/1407/independent_inquiry_cse_in_rotherham (accessed 12 April 2015) and the Casey Report describe the failings in great detail. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/401125/46966_Report_of_Inspection_of_Rotherham_WEB.pdf (accessed 12 April 2015) What is noteworthy is that even after the Jay report described the failings in great detail, many in the Police and the Council continued to deny the scale, scope and seriousness of the problem. They refused to accept the report’s conclusions and chose to argue about its details and inaccuracies. On this point, see page 20ff of the Casey Report.

[25] The Home Office researcher at Rotherham explains what happened. http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/home-affairs-committee/child-sexual-exploitation-and-the-response-to-localised-grooming-followup/written/12361.pdf (accessed 19 January 2015)

[26] For an introduction to the case see the official independent panel related to his murder. https://www.danielmorganpanel.independent.gov.uk/ (accessed 12 April 2015.) For a good overview of the reporting and investigating of this case see these sites. http://jackofkent.com/daniel-morgan-resource-page/ (Accessed 12 April 2015) This page provides a good overview and useful links to the recent developments in the case. The second site hosted by Brown Moses is focused on hackgate, the phone hacking scandal, and contains extensive work on the murder and its connection to the phone hacking scandal in particular the relationship between Southern Investigations (where Daniel Morgan worked at the time of his murder) and News International (parent company of the now closed News of the World newspaper) http://brown-moses.blogspot.co.uk/2012/05/hackgate-for-beginners-murder-of-daniel.html (Accessed 12 April 2015)

[27] The tension, of course, is between a good man and a good citizen. A good citizen might be someone who tolerates the arcana imperii because it is good for the regime and as good citizens they support what is good for the regime. This, in turn, raises the question for political philosophers of the regime’s goodness. If the regime s good, then the good man, simply understood, is also a good citizen. If the regime is bad, then the good man cannot, by definition, be a good citizen. Perhaps this is the greatest test as the good citizen who wants to remain a good man must choose between the regime and his soul. For more on this point, consider http://www.practicalphilosophy.net/?page_id=423 (accessed 12 April 2015)

Posted in corruption, Government, justice, philosophy, privacy, republicanism, Uncategorized | Tagged , , , , , , , | 6 Comments

A response to Keith Ng on Hobbes’s Leviathan

Thanks for the post on Hobbes’s Leviathan. As you note, it is a potent symbol and one with many meanings that wax and wane across different eras.[1] In particular, the idea of the Leviathan as a great creature of the sea has an important resonance is Western Christendom that Hobbes would have wanted to invoke. Christ was considered a fisherman or a fisher of men. The Leviathan, as a great fish, would be something that Christ would capture. In one view of this symbol, Christ’s kingdom, not of this world, would destroy the commonwealths (Leviathans) of this world. The full title of the book is instructive: Leviathan or The Matter, Forme and Power of a Common Wealth Ecclesiasticall and Civil  However, the issue of symbols, while important, leads us away from what Hobbes was trying to do with the Leviathan and why it returns to public’s attention the constant question of what makes political authority legitimate and why do people obey political authority.

Why do men obey the law?

No matter who is in charge or for what reason, there will be the question of why people obey and whether obedience is legitimate or coerced. If we put the argument crudely, we can say that before Hobbes the Ancient Greeks had the view that the laws are good, which is why people consent to them. Hobbes would argue that people consent which is why the law is good. Moreover, he would say that people obey because the sovereign protects them and allows them to pursue their own interests and business so long as it does not endanger public safety or the sovereign’s ability to protect the commonwealth.

Are we creating a new commonwealth in the digital domain?

What was central to the issue is the relationship between the individual and the community. Hobbes saw that the individual created the sovereign and the commonwealth. The Individual has a claim on the community that the Ancient Greeks would not have entertained. Hobbes’s Leviathan starts the process by which we recognize human rights as he proposed that man had a right or a claim against the community that set him apart from what the community could require from the individual. In that relationship, Hobbes, at least, argued that people obeyed as long as they were protected and the sovereign protected the people as long as they obeyed. However, man was dangerous so the sovereign had to be strong enough to require obedience if persuasion was not sufficient such as when someone wanted to rob someone or commit murder either of which would disturb the public peace and safety.

If the sovereign does not run the show, who will protect the weak and vulnerable?

The sovereign is absolute in his ability to overpower any individual or any group of individuals. If he could not, then why should the individual citizen obey the sovereign and not those who could resist or overcome the sovereign? Moreover, the individuals have created the sovereign for this purpose so they could escape the state of nature where the strong ruled the weak and all lived in fear of violent death. Inside the commonwealth, once the sovereign is established by the consent of the individuals, the sovereign will not prevent crime, although he will deter it by his ability to detect and punish those who commit crime. Today, we can walk down the street without concern for our safety because the sovereign ensures that rule breaking is detected and punished. In all states, murder is a crime without a statute of limitations. The state will pursue the case until it is solved and that is the implicit promise to all citizens. Although the sovereign may not be powerful in all places at all times, motor cycle gangs do exist and cause trouble, when the law needs to be enforced, the state does not back down and commits enough resources to overpower the threat.

We leave the state of nature through reason, the digital domain returns us to it by desire.

When we enter the commonwealth out of the state of nature, we do not lose all our rights. Instead, we retain our right to self-preservation. Hobbes, as some have argued, created the first human right. The individual’s claim against the state in the right to self-preservation is the first human right something a person has even before they are a citizen. Therefore, it is a misunderstanding to argue that Hobbes requires an individual to give up everything. Instead, man consents to give up some things, to escape the state of nature, in return for peace and relative prosperity. To ensure the peace, the sovereign has to have enough power, a monopoly on violence within the state. In the digital domain, it can be seen as a monopoly on the power of encryption so that they can ensure that our rights and freedoms are protected. We recall that the sovereign is responsible for ensuring the peace. In the midst of chapter 18, Hobbes lists 12 rights of the sovereign. The central right is Right 6: The sovereign is to judge what is necessary for the peace, which can include public opinion.

Would we have much justice if we were the judges in our own cases?

Without the sovereign, the individual would want to be the judges in their own case. The sovereign will act as the neutral judge beyond the power of any individual to overawe or resist to ensure peace within the commonwealth. Hobbes would understand the problem of terrorists because they threaten the public peace. In the same way that Hobbes’s sovereign could interdict public speech, so the current sovereign seeks to have the ability to manage opinions in the digital domain to ensure that they do not threat public safety. Thus, Hobbes would be at home with national security agencies wanting to access opinions in the digital domain to ensure public safety. Even Hobbes understood, as did Aristotle, that the community comes together for life, it needs to survive to continue, and stays together for the good life. If the community is not delivering the good life should it remain a community and how long will the individuals obey if it no longer worth living or dying for.

Do we really trade liberty for security?

We have to be careful not to assume that the trade-off is between security and liberty. Hobbes would suggest that our freedom is found within the law, not outside the law, so that we are not trading liberty for security so much as requiring security to be free. For an interesting analysis of the idea of the balance between security and liberty, see Benjamin Wittes’s article.[2] He does a good job exploring the false dichotomy. He proposes an idea of hostile symbiosis. I accept that a community must negotiate the issues, but I do not see this as hostile symbiosis. I suggest it is the nature of politics for there to be a tension between the individual and a community that is resolved every day through the interplay of laws within a community. Decent politics is not a hostile symbiosis rather it is a dynamic process full of confrontation and disagreement until the best agreed way of life is achieved. Will this satisfy everyone within a community? No. However, the goal is to achieve a common good that satisfies the community’s need for survival and the good life. We must careful to avoid simply equating this to a crude utilitarianism of the best life for the most people. Such a view also undermines the idea of a common good that can exist beyond a crude majoritarianism.

The sovereign has a responsibility to protect our rights including safety.

Hobbes was careful to spell out the rights or responsibilities of the sovereign as the basis by which a citizen could judge its effectiveness. See for example the list in Chapter 18 of The Leviathan.[3] If the state cannot protect us, either from the motor cycle gang or the international terrorist, why do we obey it? Here we see why the pre and post Snowden era are not different. They are continuous. The only difference is that the sovereign’s role has been made explicit whereas before it was implicit or only seen in its effect.  For example, the sovereign collected large amounts of data and controlled our movements before the internet—the census and passports. In that pre-internet era, we had a say in our government’s decisions and we still have a say. The difference is that the threats of the physical world in 1955, for example, were slower to materialize, than a cyber threat in 2015. The principles are still the same so the need to consult is present but the ability to review the decisions is limited. We can have a view on a military procurement programme that will take 20 years, such as for a new warship, and it will be difficult to have the same view on a programme relating to cyber defences that are currently under attack.

We live together peacefully and forget how much hard work that is to achieve and sustain.

All citizens understand that to live together we have to respect each other’s space and respect others in the way we want to be respected. What is different though is that the individuals feel more empowered and entitled to challenge the sovereign’s national security prerogative in a way they would have done indirectly, if at all, in a pre-internet era. Moreover, an individual can pose a greater threat in the internet era than in the pre-internet era. However, this does not require mass surveillance (which is a misnomer) so much as the ability to monitor and respond to threats in the digital domain.[4] On the sea, there are coast guards and look outs that searched for pirates and raiders on the horizon. Today, the same process occurs except it is in the digital domain, which has no clear boundary. However, the issue is how society operates as society, not government, actually does a better job at policing itself than any government could attempt to do. Society will enforce a type of conformity, in some cases simply obeying the law, to specific customs and habits. In this sense, society wants the state in those areas because it wants its rights enforced and protected. Thus, it enters the home when there is domestic violence or incest. It enters our communication when it is used for fraud or discrimination. It enters our minds when it inculcates, through the educational system, a set of beliefs. We accept those because they are good and that returns us to the start. The individual does not want to obey because they feel entitled to make the decisions that the sovereign has made to ensure their safety and the commonwealth’s safety yet they do not realize that they can only make that claim because the sovereign has created the basis by which it can occur and will be respected. We have reached the point where the individual now believes they have enough autonomy to replace the state or require the state to reduce its ability to protect the commonwealth and us. In that moment, we forget, though, our greatest freedom is within the law not outside the law. We have forgotten the state of nature and we believe that digital domain offers a paradise of a post liberal order where, unlike the state of nature, everyone will get along and the state will not be needed even though it is the state is what is implicitly needed to sustain such a vision.

We know the true cost of freedom and the price has been relatively inexpensive

We should welcome Snowden’s revelations because they have reminded us why we have the sovereign and the awesome task it does in keeping us safe and allowing us to exercise our freedoms. We could go back to 1648 and spend most of our time fighting wars, preparing for wars or recovering for wars. Is that what we consider “freedom”?

[1] For an interesting analysis of the Leviathan as a failed political symbol consider Carl Schmitt’s book The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol http://www.scribd.com/doc/86521613/Schmitt-The-Leviathan-in-the-State-Theory-of-Thomas-Hobbes-Meaning-and-Failure-of-a-Political-Symbol (accessed 12 March )

[2] http://www.brookings.edu/~/media/research/files/papers/2011/9/21%20platform%20security%20wittes/0921_platform_security_wittes.pdf  (Accessed 20 July 2014).

[3] http://oregonstate.edu/instruct/phl302/texts/hobbes/leviathan-c.html#CHAPTERXVIII (accessed 12 March 2014)

[4] The term is a misnomer because surveillance is a targeted activity within intent. By contrast, monitoring is something in which a target might be identified or nothing will be identified. CCTV for example is not surveillance in the way that a specific focused operation against an individual is surveillance.  CCTV monitors a public space. Surveillance targets an individual or a group. Without this distinction, we would consider a census as a mass surveillance system and soon any government activity, as it is a record keeping function for citizens, becomes surveillance and we are without theoretical coherence.

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