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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A Partial Commentary on Howse’s Leo Strauss: Man of Peace

Leo Strauss

Leo Strauss (Photo credit: Wikipedia)

Prefatory remarks.[1]

Professor Howse has written an ambitious book to make the case for Leo Strauss as a man of peace and to defend him from his critics. That he has to meet both charges is indicative of the state of American politics and academics. In these prefatory remarks, I want to sketch my limited and indirect relationship to Leo Strauss’s students and by extension Leo Strauss before commenting on Professor Howse’s book.

In the early 1990s, I studied at Claremont Graduate School. At the time, a number of Strauss’ students and students of his students were associated with the School. Leo Strauss had taught at Claremont McKenna College for a year in the early 70s. [Correction LS was at CMC in 1969] Since I left, the School became University. However, my time at Claremont had a lasting impact on me. Even though my degree was in International Relations, I had a number of courses, and conversations, with those teachers who would be considered students or disciples of Strauss.[2] When I was there, I never heard anyone refer to themselves as Straussians. Those who were not sympathetic to his teaching or his students usually used the term.

In contrast to others, I had a positive experience with the “Straussians”.[3] I found them intelligent, generous with their time and their knowledge. I was introduced to Strauss by meeting with these students and attending some of the course they took. Given the nature of an academic community and its willingness to descend into a Schmittian view of academic politics, it would only be natural that I would be required, to some extent, to choose sides in the Strauss controversy. I came to Strauss through my mentor Prof Harold Rood when he introduced me to the study of Statesmanship. Statesmanship would prove to be the central theme in my PhD thesis.[4] I learned about statesmanship’s role in grand strategy, its applied form, from Professor Rood. I learned about statesmanship as a political philosophical practice from Leo Strauss’s students. My journey followed a map or a trajectory similar to the one indicated by the table of contents to Professor Howse’s book. I encountered Carl Schmitt’s Concept of the Political early in my graduate career as well as Strauss’s rebuttal in his famous Notes on the Concept of the Political. Like Strauss, I engaged with the work directly. I was initially attracted to the clarity of Schmitt’s dichotomy between friend and enemy. Yet, Strauss led me away from that view as I learned about statesmanship and tyranny by reading On Tyranny and Plato’s Statesman (Politicus) with a statesman’s responsibility to weave together a web of state. In my thesis I drew on Thucydides concern with the way a city (or a state) reconciles an individual’s love of glory to itself. I saw in that practice a way to understand Lyndon Johnson’s statesmanship as he attempted to reconcile the Vietnam War to the Great Society. In particular, I was interested in Dean Rusk’s work to establish a decent world order based on the principles of international law as contained in the Charter of the United Nations. Despite its best intentions, even America had to recognize the limits of power and the ever present challenge of realpolitik, which lead me to study Henry Kissinger and Richard Nixon. Through this work, I was guided by Strauss’ work on the statesmanship, at least expressed through Stanley Rosen’s book Plato’s Statesman: Web of Politics.[5]

Anyone who attended Claremont and was interested in politics or political philosophy could not avoid hearing about Claremont’s most famous Strauss student—Harry Jaffa. For those with a more particular interest of life at Claremont, they might have heard of the other Harry, Harry Neumann, who was also a student of Strauss, but is less well known even in “Straussian” circles.[6] I never studied with Jaffa or Neumann as Jaffa was retired at that point and Neumann’s courses always clashed with my required courses. However, both Jaffa and Neumann were available and willing to talk with a student who was interested in Strauss or political philosophy. I learned about Strauss, Jaffa and Neumann at the now near mythical conference at Claremont in 1996 on Modern Freedom. At that conference, Harry Jaffa and Harvey Mansfield had their now famous encounter. Tom West has captured the issues well in his essay. [7] A less well known, though still as important of encounter (especially for me), was between Harry Neumann and Mark Blitz on the morning of the second day. If Jaffa and Mansfield were the main card, then Blitz vs Neumann were a worthy undercard. I cannot find my notes from this meeting, but its intensity remains with me and impressed me as a young graduate student. For 30 minutes Professor Neumann and Professor Blitz had as sustained and intense philosophical exchange as I have seen. The audience simply watched as two professors explored and debated the idea of freedom with a rare intensity and directness.

The exchange ignited my abiding interest in Strauss, his project, and his students. It continues to inform my thinking and my reading of Strauss. I approach Professor Howse’s book with that experience. The rest of this post is laid out in the following fashion, after the prefatory comments, I examine the book’s table of contents before turning to chapters 1, 2 and the first half of chapter 3.

The table of contents

In the table of contents, Howse presents an immediate challenge to the attentive reader who wants to understand his ambition within the book. How he arranges the chapters captures our attention and we need to consider his intent. At first glance, it serves a purpose. Following the short prefatory section, there are seven chapters. The fourth chapter, or central chapter, is on Machiavelli: Strauss’s Machiavelli: Fallen Angel and Theoretical Man. If we look for the centre of this central chapter, we find a puzzle. There are 15 subheadings. If we look to the central subheading, the 8th, we find that it titled (Law, Violence, and Political Founding). The topic fits the book’s overall structure. The central section discusses the way political violence is necessary for a political founding and for sustaining the law. The section ends with the view that Christian morality would not be useful in founding a civilisation because Greek, Roman, and Jewish civilisations required a rejection of those principles for the civilisation to exist. This raises two points. The first is whether Christ was a founder of an earthly civilisation or whether he prepared man for salvation and thus founded a different type of civilisation, one that was radically different from what had been proposed previously by the Greek, Roman, and Jewish civilisations. The second is that if we are to discuss civilisations, we have to consider the term’s origin. As Strauss argues in his Notes on the Concept of the Political, Thomas Hobbes initiated the modern understanding of this term. What this suggests, according to Strauss, is that if we view the past in terms of civilisations, we have accepted, either explicitly or implicitly, Hobbes as a guide. It remains unclear whether we can recover an adequate understanding of Christian morality’s effect on politics if we frame it within the concept of civilisation at least as understood by Hobbes. As Howse does not explore these issues, we may have to reconsider what the table of contents is telling us if it does not offer itself to be read as Strauss often suggested especially when considering whether a book is written esoterically. The puzzle may not be a puzzle.

If we return to the table of content and look at how the chapters are ordered, we begin to see a possible pattern or intent. The pattern is important because Howse’s thesis proposes a different view of Strauss and his project by using the term “a man of peace.” To support that view, he suggests an intellectual trajectory to Strauss’s work and the table of content’s structure reflects that intent. An initial pattern that emerges is the use of modern authors and topics or ancient authors and topics. We can view the pattern as follows

  1.  Introduction: Reopening the Case of Leo Strauss [Modern]
  2. Warrior Morality and the Fate of Civilisation: Strauss’s encounter with Carl Schmitt and “German Nihilism” [Modern]
  3. Legitimacy, Legality, Thinking and Ruling in the Closed Society and the World State: the Strauss/Kojeve Debate [Ancient]
  4. Strauss’s Machiavelli Fallen Angel and Theoretical Man [Modern]
  5. Thucydides versus Machiavelli: a moral political horizon of war and law [Ancient]
  6. Justice and Progress: Strauss’s assessment of Modern International Law [Modern]
  7. Conclusion [Modern]

If we look at the table of contents in this way, it would appear that the central chapter is a modern topic sandwiched between two ancient topics. The writers in those chapters are Xenophon, Machiavelli, and Thucydides. What strikes us about these works is that Socrates is absent in all of them. If Howse is trying to convince us that Strauss is a man of peace by the writers he engaged with and what he wrote from that engagement, he chose those topics and writers who were less sympathetic to Socrates as a man of peace. Even Xenophon and Thucydides, contemporaries who can be seen as sympathetic, were both military men (although Socrates was a soldier, he was never a general nor did he lead or direct men in combat.) Even Machiavelli whose service was mainly military and diplomatic offers a different perspective than Socrates who was uninterested in the cities other than Athens. We are given three writers imbued in military matters and foreign policy as a way to understand how Strauss was a man of peace. This is particularly noteworthy because Howse argues that Strauss turned away from Plato and Aristotle in the mature period of his scholarship and focused on men of action like Thucydides and Xenophon. (p.2). In particular, we need to look closely at this order because Strauss’s final books were on Studies in Platonic Political Philosophy, Socrates and Aristophanes, The Argument and Action of Plato’s Laws. The other works of this late period were his studies on Xenophon’s Socratic dialogues. Far from leaving Socrates and Aristotle, it would appear that Strauss’s career culminates with Socrates and the enduring question of piety within the tension between reason and revelation. The discrepancy between Strauss and Howse’s view of Strauss suggests that the pattern is not accurate reflection of Strauss’s intellectual trajectory. What we need to do is look at the table of contents in a different way.

If we look at the chapters, we see that the topics initially suggest the possibility that the middle chapter, the modern chapter of Machiavelli, sandwiched between two chapters on ancient writers, is the summit of the work as it is the book’s longest and most complex chapter. This approach suffers from the problem mentioned earlier.[8] Howse may wish to have Machiavelli as the peak of Strauss’s scholarship. However, that suggests that the chapters that follow this peak are a descent. An alternative view would be to see the table of contents indicating an ascent in Strauss’s scholarship as he moved from the political, the domestic realm, through the practical world of politics expressed, to the external realm guided by international law. The idea of progress and a culmination does appear to fit Howse’s stated aim, but is it enough to understand Strauss?

Howse begins with Schmitt and culminates with international law. If we look at the dates of the works, they appear to mirror Strauss’s life. The order of the chapters is a linear progression from earliest writing through to Strauss’s Thucydides essay in City and Man. The sixth chapter is on Strauss’s engagement with International Law, a topic for which Strauss wrote lectures but never published an article or a book or was a topic that received an extended treatment in his published writings. Where he does mention international law, it is a secondary topic or something to illustrate his point or argument. What Howse has attempted to do with his table of contents is lead us along his preferred path from Strauss’s encounter with Schmitt to a mature position relating to international law. [9]He should be applauded for his audacity and his ambition in this task to create his Strauss. The challenge we face is decide whether that helps our understanding of Leo Strauss, his work, or international law. The table of contents does not appear to offer that understanding. What is missing from this approach, if it is an ascent, is that Strauss began with the two interrelated questions “What is Law?” and quid sit deus (What is god?).[10] If we are to understand international law and political violence, especially if violence is the negation of the law, as Howse suggests, then it would have been appropriate if the table of content had dealt with Strauss’s engagement with the law and the related question concerning quid sit deus. We would expect to see such works as Philosophy and Law and On the Minos, where Strauss explored the idea of the law, and finally the Plato’s Laws as explored in the Argument and Action of Plato’s Laws. Moreover, if we are to understand his approach to politics we would need to consider starting with his work on Spinoza. (Spinoza’s Critique of Religion, University of Chicago Press, 1997) Yet, Howse does not offer us that as a starting point. He begins with Schmitt, which means that the story begins in midstream, or rather at a turning point, without the necessary context or foundation to understand Strauss, his project or the turn.

What we seem to miss in the table of contents is that as Strauss progressed in his studies he was going backwards. Even as he reached the height of modernity with Machiavelli, he was returning to Socrates. Seth Benardete expressed this idea well with his review of City and Man.

“That Natural Right and History goes forward from the pre-Socratics to Burke and The City and Man back from Aristotle through Plato to Thucydides, indicates some fundamental changes in Strauss’ way of approaching the ancients. They are no longer the beginning from which, they are now the beginning to which he goes.” [Emphasis added][11]

When we look at Strauss in this way, we see that Howse’s table of contents suggests a trajectory, which leads us to a different understanding of Strauss and one that is not necessarily reflected in how Strauss understood himself. To understand Howse’s argument, we need to look at the chapters in detail to see if our counter argument is correct.

Chapter 1 Introduction: Reopening the Case of Leo Strauss

In this chapter, Howse sets the context for his work. He describes the historical context as well as the overall school that Strauss founded through his students. What will interest some readers are not so much his arguments but rather his omissions or silences.  What is apparent is there is no mention of the “West Coast” Straussians such as Jaffa or West. Other “Straussians” are missing such as Benardete, Rosen, and Harry Neumann. Even if they do not fall strictly into the East Coast-West Coast dynamic, they remain important students, especially Benardete whom Strauss appeared to hold in very high regard. If we fail to see that Strauss had more than his pacific side, he was without a doubt a fiercely intelligent thinker and writer, even if he was a mild mannered. His philosophical project has political consequences and unless we explore or entertain those consequences, we will not understand him or his project. We cannot divorce Strauss from Jaffa and Neumann by omitting the relationship. To do that creates an incomplete image of Strauss. If we are to make the case for Strauss then all parts of the man must be seen to be understood. Is a life in pursuit of virtue one that will be peaceful and uneventful or will it require changes and challenges that will make that pursuit of virtue as challenging as a military campaign even if it is only waged with words, ideas, and students. Another oversight is the way in which Strauss acted as an intellectual or philosophical midwife with his students. Far from being disinterested in them, as suggested by a reference to Bloom’s comment, Strauss understood his students better than they understood themselves.[12] We see that Strauss wrote on Minos and Bloom wrote on Hipparchus and Jaffa wrote on Lincoln but Strauss never wrote directly on American politics. One omission that is problematic is a factual one. Strauss served in the Germany Army in the First World War. Even though he served as an interpreter in Belgium, hardly a post full of martial rigor or responsibility, he still served as a soldier in an army, an occupying army. Without this understanding we lose sight of what it meant for Strauss to look at figures like Machiavelli, Xenophon, and Thucydides or to see how he could have a greater understanding of Socrates’s unquestioned willingness to go to war for Athens.  Finally, and most importantly, what is omitted is that Strauss lived in the midst of the Weimar Republic in which pitched street battles between political paramilitaries was a frequent occurrence.

Howse starts with the goal that he will consider Strauss’s views on the relationship of philosophy and law to political violence. The goal is interesting and one that touches on the fundamental themes within Strauss’s work. However, we are left without a clear understanding of what is meant by political violence. Is it violent politics, or is it violence for political purposes? Is it simply legitimate force used by a community to further its goals? Alternatively, does the community see it as illegitimate force? Either approach takes us into a secondary realm, which is to determine what confers legitimacy.[13] Howse does not define the term so we are left to our own understanding of the term. If the term “political violence” mean the contradiction of modern society in which politics assumes consent or a consensual process or settlement, a state of peace, and violence suggests the failure of politics, where there is coercion, a state of war, then we have to ask whether the term political violence is useful as a starting point to understand Strauss. In his published works, we do not see this phrase used or defined. Unlike Hannah Arendt who did write on violence[14], Strauss never sought to pursue political science like themes. His work was always within a philosophical or rather political context. If Strauss did not use the term, we have to ask whether it provides an advantage to ascribe the term to his approach or his project. If the term is used to defend Strauss from his accusers, we have to ask whether that approach, while well intentioned, distorts the issue. To understand the approach and whether it works, we have to turn to the charges.

Howse writes to defend Strauss from the charges that he taught his students, and his readers, “veiled messages of bellicose imperialism, war without limits, and unbounded executive power” (p. 1) To counter these claims, Howse suggests that Strauss offered a “new, classically inspired philosophy of political violence, but one based on a strong preference for peace over war.” (p.1) I applaud his effort and his work is worth considering as much has been written that distorts Strauss’s work, attacks him and impugns his character. However, we have to be cautious with Strauss because his writing has encouraged many, including his defenders, to project their preferred view of Strauss onto his work. For example, Strauss would never have said nor would he have ever considered the phrase “philosophy of political violence”. One cannot have a philosophy of violence without doing violence, literally, to what Strauss believed about philosophy and in particular political philosophy.[15] Perhaps, this is a small point, but it worth considering given the method used to defend against the charges.

If we start with the idea that Howse wants to defend Strauss against the charges and in doing so discovers Strauss held contrary views, that he rejected political violence understood as the preference of coercion over consent, then we can start to make sense of his project. However, we still face a difficulty. Howse has not clarified adequately, within the book or the first chapter, the difference between what the philosopher can do and what the city, or the community, must do to ensure decent politics and the role of the citizen within that relationship. Moreover, this leaves aside the tension or the problem of a public teaching for that purpose, the Socratic Kalam, and the private teaching, which still supports that community without surrendering to it, that explains the way that the life philosophy is more important that the political life. Unless we disentangle these nuances, we will miss what Strauss may have been teaching, if anything, about political violence.

Before we can begin to explore these issues, Howse makes the now required detour into the personalities and gossip that attracts the most attention about Strauss and “Straussians”. The section offers an abbreviated summary of the issues, personalities, and politics of those most notable participants in this industry. However, there are some omissions that raise more questions about the context or understanding of Strauss. For example, the chapter does not mention Harry Jaffa or what can be term the “West Coast Straussians”. Leaving aside that issue, we are missing other important students who present a nuanced and different, in some cases fundamentally different, view of Strauss, his teachings, and what it means to be a “Straussian” and would have a direct influence on the central questions. We see no mention of Seth Benardete and his work. His review of the City of Man,[16] which became the Socrates’ Second Sailing: On Plato’s Republic (Chicago: University of Chicago Press, 1989), provides an insight into Strauss’s work on Thucydides and by extension Plato. Without fail, those who wish to discuss Straussians seem to overlook him as a student. The same can be said of Stanley Rosen. He is often overlooked even though he presents a challenge to, and an extension of, Strauss’s teachings, in particular, on Plato.[17] However, there is one key student that is overlooked, especially as Howse starts with Carl Schmitt and his relationship with Strauss, the subject to Chapter 2,–Harry Neumann. If we are to discuss Strauss and Schmitt and understand the consequences of that relationship on Strauss’s students as well as Strauss’s teachings, we have to confront the problem of Harry Neumann. As Harry Jaffa says, and Harry Neumann confirms, he was the one student of Strauss[18] who accepted Schmitt’s challenge and took up his side of the argument with Strauss. Neumann considered his encounter with Schmitt’s Concept of the Political as a turning point. We can leave this omission until the section on chapter 2, where I discuss Neumann, but the omissions detract from the chapter.

Howse explains his approach to Strauss, which is novel, because he combines Strauss’s published work with transcripts and recordings of his lectures.[19] As such, this proves valuable for offering some nuances to Strauss’s writing and thinking, which can be challenging even to the experienced reader. Howse uses this approach extensively in chapters 5 and 6 when he makes his most speculative arguments for Strauss’s views on law and international law. However, the approach has important difficulties. Strauss was well known for his insistence, bordering on obsessive intransigence, regarding the way his writings were presented.[20] One can contrast this with Heidegger who placed greater emphasis on his spoken word and the power of the spoken word as being superior to the written word. Howse ascribes greater weight to the recordings, which are of varying completeness and quality, than I believe they are due. Yes, they provide an insight and they are a valuable resource. However, Strauss would be the first to insist that his published writings are his considered view. He wanted to control his public persona because he understood that this would be the main way that people should and would approach his teaching. Even though he was never indiscreet in his lecturers, at least the few that I have heard, one quickly finds that his sense of humour, his penetrating intellect, and his playfulness come into full force. For example, he makes an ironic statement in discussing the Melian dialogue where the Athenians reassure the Melians that they would not have to pay homage daily, they would only have to do it occasionally so it was not as bad as they make out. Such an ironic statement becomes flat and unemotional when written down, like having to explain a joke. However, he spoke as the situation required and like an excellent philosophical statesman, he modulated his speech to fit the audience. I would say that his lectures provide an insight but cannot substitute for his written work. To extend his unpublished remarks and recordings to the same level or importance as the published writing does violence to Strauss’s project.

The need to publish and promote Strauss’s recordings as a way to defend him and his legacy shows the gap between education and ignorance that has plagued academia concerning Strauss and his teaching. Moreover, it shows the gap between the public or vulgar charges, such as Tim Robbins, and the more potent private, or esoteric, accusation from other academics as well as from Strauss’s students. As Strauss warned in On Tyranny, he wrote his treatise so that students would not need to have such things explained to them in such detail. (OT p.28) However, it appears the academy has fallen behind and is not even aware that it needs the joke explained because it does not even know a joke has been made. What is not considered is how the need to publish his lectures shows the failure of any political project that might have been ascribed to Strauss. If Machiavelli had been as great of influence as Howse appears to argue, he makes his work the central part of his book, Strauss’s exoteric project is rather weak and doubtful. If Strauss had a cover project, it has failed spectacularly as his public persona has attracted such a dubious reputation and is captive of popular or vulgar prejudices even as his core teachings remain unknown, misunderstood, and potentially ineffectual for its dwindling effect on academia and, more widely, the public. However, Howse appears to stay on the surface and seeks to address the public charges relating to the invasion of Iraq in 2003.

Howse moves onto explore Strauss’s apparent anti-liberalism as a young man. The approach expands on Strauss’s autobiographical statement attached when he published the English edition of Spinoza’s Critique of Religion. However, Howse does not explore the nature of Weimar that Strauss experienced, which would provide context for his statement and his concerns. One can easily see that Strauss would have found it difficult to defend Weimar in its death throes in particular as it has failed to, or was unable to, defend itself against the forces and actors that attacked it. Moreover, given that Carl Schmitt was trying to defend Weimar’s crumbling liberalism with his anti-liberal constitutionalism, it would have been strange for Strauss, while critical of Weimar liberalism, to join Schmitt as he did not agree with his project.  Moreover, Strauss understood he had to engage the harshest critics of Weimar liberalism to understand the philosophical issue at stake. For a person as sensitive and intelligent as Strauss, it would have been impossible to find the weakness of Weimar’s liberalism appealing as it could not stop the political violence; pitched battles in the streets, political murders, and the vicious politically motivated anti-Semitism.

The next section describes a third theme (international law is the first, anti-liberalism is the second), repentance. Howse develops an interesting and novel point about Strauss “atoning” for his engagement with Schmitt and other illiberal thinkers. He points to the term of t’shuvah. (p. 16) The term recurs throughout the book although it is debatable whether it is applicable. The term refers to making atonement, which Howse argues that Strauss did over his lifetime for his encounter with extremism. If we expanded on Howse’s argument, we could suggest that Strauss was conducting the penance that Heidegger (and Schmitt) seemed incapable of doing given his (their) immoderate thinking. Perhaps, this is a roundabout way of describing Strauss as falling just that short of being a true philosopher in that he would allow something to restrain him from such unrestrained thinking that Heidegger appeared to demonstrate. However, this overlooks Strauss’s debt to Socrates rather than Scripture. His moderation is in full understanding of what immoderation means in terms of philosophy and by consequence politics.[21]

Finally, Howse discusses Strauss’s method of writing and raises the point of philosophising as inter-temporal dialogue. He wants to refute those who argue that Strauss had a secret teaching that he provided either in his writing or orally to his students. The goal is laudable, but one has to wonder if it detracts from Strauss’s work and method in his attempts to defend it. Howse points out, as Strauss stressed, that writers in the past wrote monologues. We can only understand them from their writings because we are not contemporaries nor were we in the same room discussing with them. In this, we seek to understand the past thinkers as they understand themselves and that requires us to engage with them directly. We have to begin to think, and perhaps come to philosophize, when we start to wrestle with the problems the older writers and thinkers considered.

He suggests that Strauss imagines dialogues between great thinkers or greatest minds of the past. He says

“Strauss poses his own questions to past thinkers as well as imagining how they would answer to one another in a sort of time warp—what would Thucydides say to Machiavelli about war and necessity, for example?” (p18)

The idea is interesting, and it does help us to understand Strauss’s approach to writers and their texts, but is it true? I can find no reference to where Strauss engaged in such an imaginary dialogue or created one. What we do find is that Strauss engaged these writers, acting as a midwife, to give birth to his understanding of their relationship. He provides us with what he found about war and necessity. In one sense, I doubt that Thucydides and Machiavelli would have much, if anything to say to each other on these issues. As Howse accepts, following Strauss, a dialogue between the greatest minds is impossible. The dialogue between two philosophers is likely impossible because of what it means to be philosophers. To paraphrase Benardete, it would be a silent dialogue. They could talk to each other about insignificant things but they may as well pass the time of day as attempt to philosophize together.

A further problem is what Howse concludes about Strauss’s method. He believes that he is defending Strauss from charges of having a covert teaching that was dangerous to the polity by stating the following.

 “Strauss makes it clear that that one must not assume a hidden meaning unless the tensions or apparent contradictions in the author’s work cannot be lucidly understood even after a careful reading of the surface of the text guided by a plausible notion of the author’s intent.” p 19

I like the ideas and intent of this statement, but like his statement about the inter-temporal dialogue, is it sound? We need to consider what is required for this statement before we can begin to consider the issue of a covert teaching as opposed to public teaching or a teaching simply. The following are a crude attempt to explore this issue of confusing intertemporality with the argument and action of the work.[22]

First, do we recognize the contradictions? Many people can read Strauss’s work, or Machiavelli’s work or Plato’s work, and never notice the contradictions. They simply do not read closely, carefully or with any understanding. If they do not see a contradiction, they will not notice anything within the text esoteric or not. Second, to understand a contradiction, we have to understand the issue. Without that understanding, we cannot see how the statement about the issue creates a contradiction or creates a problem. If we cannot see the contradiction, we cannot begin to consider whether there is a teaching, covert or not. Strauss offered us a roadmap or a toolkit to explore, but that does not mean that the tools can be applied slavishly or unthinkingly. Do we understand the tools? A further problem is what is the surface of the work? To understand the surface of the work, we also have to understand the depth(s) of a work. To assume the surface is everything means that we take everything at face value or literally (we become like Drax in Guardians of the Galaxy). Like those who never notice contradictions, the literal reading offers an understanding but stays on the surface without understanding it as the surface. Once we recognize we are on the surface, we then admit to some depth. Third, how do we know the authors intent? Strauss famously showed the difficulty to determine Machiavelli’s intent. I would not begin to presume I have divined Strauss’s intent in his writings. To understand Strauss’s intent, I follow more experienced thinkers. I have to follow Benardete, Jaffa, and Neumann to deepen my understanding of Strauss’s intent. If we contrast their understanding with Pangle, Bloom, Tarcov and Rosen we suddenly realize that understanding Strauss’s intent is hugely problematic and probably intentional. Lastly, we have the problem of the argument and action. The action of the writing, the context, the setting, and other issues instruct us and shape our understanding. I read Thucydides and Machiavelli much differently now than I did 20 years ago. I know in 20 years I will also read them differently again as my understanding (I hope) and experience deepens. If we are to argue that we understand Strauss’s intent, it would need to be consistent across his works rather than when it would be convenient to the argument being considered. Strauss’s works are known for their footnotes and the argument and action of all of his works, starting with On Tyranny and reaching a pinnacle with Thoughts on Machavelli, has to be considered. If we take Strauss on the surface, we miss too much, just as if we stay within the depths, we miss the point. These are issues that are not considered in detail by Howse.

The availability of course transcripts and recordings, while helpful and insightful, is not a substitute for reading what Strauss wrote. If anything, the course material confuses rather than clarifies the issues. Instead of revealing that Strauss did not have a “secret” teaching, because he did not say it in his recorded lectures, we are left back to where we started before the lectures were made available. We are given more opportunities to choose what suits the reader, the listener, or us rather than attempting to understand what Strauss wrote and intended through the argument and action of his works as he attempted to understand the greater thinkers and philosophers.

Howse concludes the chapter with a roadmap of the remaining chapters. The overview gives a short summary of each chapter. We turn to chapter two where we find the encounter between Strauss and Schmitt.

Chapter 2 Warrior Morality and the Fate of Civilization: Strauss’s Encounter with Carl Schmitt and “German Nihilism”

In this chapter, Howse explores two of Strauss’s early works, one published the other published posthumously. The first is his Notes on the Concept of the Political (hereafter NCP). The second is his lecture on German Nihilism (hereafter GN), which was published from his lecture manuscript. Even though he did not indicate whether it would be prepared to be published, the lecture offers an insight into Strauss’s view of the Weimar period and German war aims as expressed in the thought of key German thinkers. Howse’s stated intent, in this chapter, is to defend Strauss from Schmitt and the claims that Strauss was an authoritarian or fascistic thinker because of his apparently anti-liberal writing, as least suggested by NCP and hinted at within his lecture.

Howse proceeds to defend Strauss against claims that he is a hyper-Schmittian in that he has embraced Schmitt and radicalized his approach. Such an approach, though, when considered against NCP, makes awkward reading. If Strauss was a hyper-Schmittian, then according to Strauss’s analysis in NCP, he would have remained within the horizon of liberalism. As Strauss explains, Schmitt’s critique of liberalism remains within liberalism’s horizon. Thus, a hyper-Schmittian Strauss would be within liberalism so would not, logically, be able to be an anti-liberal thinker nor would he be able to find or suggest a horizon beyond liberalism because as a hyper-Schmittian he could not escape that horizon as he would not understand that he was captured within it. By contrast, Strauss is suggesting that we start with Hobbes to find a horizon beyond liberalism to critique liberalism. Howse suggest that Strauss discovered this horizon in pre-modern thought. Yet, what remains unexplored, by Howse is this process of discovery and Hobbes role in the path to this recovery.

Although it is important to see Schmitt as the turning point in Strauss’s development, he points to the encounter as being the turning point in his thinking, we have to consider what preceded it. Schmitt is important in his own right, but what it means for Strauss, and the larger project concerning law and philosophy, Howse’s aim, only becomes known when considered against the questions that animated Strauss from the start. His first work was on Spinoza and his critique of religion shows the centrality of the question Quid sit Deus. In turn, that informs his thinking on the law, fully understood, that creates the conflict with Schmitt who took a different view on what is the law and what is God. It was only in his encounter with Schmitt, where the question “What is man?” emerges and Strauss was able to articulate the change in orientation, which was latent in his book on Spinoza.[23]

Throughout the book, Howse focuses on Heinrich Meier with the apparent intent of seek an intellectual conflict. For a book on Strauss as a Man of Peace, this seems an odd sub-theme. One can easily see an affinity between Strauss and Schmitt without confusing the two men, their thinking, or their politics. Both engaged passionately and uncompromisingly with the issue. What is clear, and Meier would not dispute this, is that they went in different directions. However, what creates their affinity is they confronted the same problem. They confronted the political problem of Weimar’s collapse and the political philosophical problem of liberalism’s effect on Weimar Germany, which in turn revealed the differences in their views on law, philosophy, and God.[24] Moreover, we cannot deny the evidence that Strauss corresponded with Schmitt and relied upon him for help. However, none of this suggests that Strauss is a hyper-Schmittian, whatever that means, nor does it suggest that Strauss was some sort of right-wing extremist thinker.

Strauss would understand that we often learn from those who will challenge our thinking rather than confirm them and comfort them.[25] Too often liberal democracy relies on an underlying common prejudice so that the any superficial differences can appear extreme. The easy comfort of our liberal democratic prejudices is abruptly disabused by Schmitt and Strauss.[26] That Meier focuses on the three thinkers, Heidegger, Kojeve, and Schmitt, does not invalidate or diminish Strauss’s encounter with other thinkers. However, it does a disservice to Strauss and Meier to suggest that the engagement with Heidegger or Kojeve was on a level or of a consequence as his engagement with Guttman or Vogelin. Vogelin, for example, offered an alternative within the same horizon as Strauss, he was not suggesting a radical alternative that challenged Strauss’s project or his way of life in way that would require a public response from Strauss.[27] Moreover, his public engagement with Vogelin was subsumed within the Kojeve debate over Tyranny. We can see how Vogelin fits within Strauss’s horizon by the questions he raised in his review of On Tyranny and the response that Strauss provided. Their argument is not on par with Kojeve’s.

I believe that Heidegger presented *the* contemporary challenge for Strauss. Velkey offers us an insight into that relationship and the alternatives each presented.[28] I do not want to suggest that Velkey is correct. However, what is inescapable is the relationship between Strauss and Heidegger. One has to remember that Strauss did not have a problem with his students going to study with Heidegger or Kojeve.[29] He never corresponded with Schmitt after the War nor am I aware of any of his students seeking him out as a teacher.

Even though the chapter is focused on Strauss’s encounter with Schmitt, there is relatively little on the exchange. What is there presents a standard view. The section called the Straussian problem with Notes on the Concept of the Political does not provide a new interpretation on the issue. Despite Howse’s efforts and Heinrich Meier’s efforts, I do not believe they have penetrated the core of the issue between Strauss and Schmitt. I believe Meier has done more to illuminate the issues, but neither of these writers has explored Schmitt or accepted his argument. They have not attempted to inhabit it. The only student of Strauss to accept Schmitt’s position was Harry Neumann. If we explore his work we can see the challenge and why German Nihilism was unlikely to have been published in Strauss’ lifetime. Neumann like Strauss marked his encounter with Schmitt as a turning point. Here is how Harry Jaffa describes Neumann. I quote this at length because it draws out the issues that are often submerged in some readings of Strauss and Schmitt.

Neumann is the only one of Leo Strauss’s students who, like Strauss, marked the turning point in his career from his reading of Carl Schmitt’s Concept of the Political. Although Neumann turned one way, and Strauss another, there are resemblances that transcend this difference in direction. Both are characterized by the greatest moral earnestness. The Jewish contempt for “Epicureanism,” of which Strauss speaks in his autobiographical preface—and which is crucial for understanding Strauss and his entire enterprise—is also at the root of Neumann’s contempt for modern liberalism. Like Strauss, Neumann sees modern Epicureanism as Epicureanism come out of the closet, demanding that all politics be in the service of its demands. Epicureanism in the ancient world was unpolitical and anti-political. In the modern world it is the most virulent form of sectarian and ideological politics.

The world of moral man, the world which sees the human good in its subordination to the laws of nature or of God—the world liberalism would abolish—is the world the Jew characterizes, when he says that “the reward for the fulfilment of the commandment is the commandment.” Neumann, as a Nietzschean nihilist, is satisfied that such a command can be will as much as God willed the creation of the world ex nihilo. Unlike Strauss, he does not think that internal reflection on the intrinsic character of human thought is sufficient evidence “of the true ground of the dignity of man.” He does not say as did Strauss, that awareness of this dignity enables us “to accept all evils… in the spirit of good citizens of the city of God.” Strauss’s interpretation of the fundamental human experience, remains for Neumann an interpretation. As such, it is something, not so much to be believed, as something to be fought for. Nevertheless, Neumann and I agree—and Strauss I am convinced would agree (see my essay on “Leo Strauss’s Churchill Speech”)—that it should be fought for in any case, since the necessity of morality for human well being, even in the world dominated by modern science, remains unchanged.” (p.viii Foreword)[30]

I believe that Strauss (and Schmitt) cannot be understood without exploring his approach. Neumann provides an insight into what it means to accept Schmitt’s side of the argument and what it means for politics and most importantly what it means for political philosophy. Even though the essay German Nihilism offers an insight, which I consider below, it lacks the stark choice that Schmitt’s Concept of the Political.[31] Strauss’ response provides for our analysis and understanding of Strauss’ choice, and consequences, from rejecting (and Neumann accepting) Schmitt’s alternative. The lecture was not a public statement as its audience was different and, most importantly, receptive to, if not already converted, to the explicit cause that it was pledged. By contrast, Strauss’s response to Schmitt was done at a time of great danger and in an atmosphere of crisis, in which a public statement was needed and would offer no ambiguity. Strauss had no choice but to leave after writing his response.

Neumann helps us see that Strauss was only secondarily concerned with the political issues associated with his encounter with Schmitt’s work as the philosophical issue was primary. The issue is not simply the law or the exception, it is the tension between What is man and What is God and therefore What is the law as the best way to live. These questions were emerging at this time in Strauss’s work.[32] He returns to them at different stages in his writings especially in The City and Man. However, that moves us ahead of the discussion. Here the choice, according to Neumann, is between a Spinozist Christian God, beyond the law, beyond Good and Evil, (Schmitt) and a God beneath the law (Strauss). The choice puts the difference between Schmitt and Strauss into its starkest relief and displays its consequences. Without God, which creates a limit or a constraint on Man as he lives in accordance with Him, man faces the abyss of nothingness where his will is all that gives meaning. By contrast, Strauss argues that a different view of God still offers meaning and a need to discover it as the question remains open. For Strauss the life of philosophy still remains possible, but for Schmitt it does not. To put it crudely, Strauss patrols the very narrow wall of the city, where a philosopher walks the ledge, while the political or ideological (Schmitt) remain inside the city, the herd, and outside the abyss of nothingness or nihilism, where man can become a god (or a beast) remains an attractive (or horrific) alternative (the Fuhrer and Heidegger).

Howse does not see the issue in the same way when he argues that Schmitt was fighting against political nihilism. (p. 39) Political nihilism is a term Neumann would have said was a contradiction as politics, according to Schmitt, is to believe, to believe in one’s herd or city, to assert meaning. Nihilism is the belief in nothing, literally, nothing exists, so there is nothing to assert. It is the negation of politics simply put as it does not allow for anything to have meaning or guide one’s life. However, as Strauss showed, in his critique of Schmitt, was that Schmitt’s view was based on a “god, the apotheosis of nihilist freedom, creates everything ex nihilo[33]rather than discover, through philosophy, the best way to live.

Howse’s discussion of Schmitt and Strauss’s debate seems to focus on Hobbes without accepting that Spinoza is the key figure in modifying the debate. Spinoza is the key figure that makes Hobbes problematic for Schmitt and is implicit in what Schmitt and Strauss are debating. I quote this passage from Neumann at length because of the points it raises.

“To be sure, Schmitt’s political theology is compromised by its adherence to what Strauss condemned as Spinozist-Christian Judaism whose god is beyond good and evil (and good and bad). That god, the apotheosis of nihilist freedom, creates everything ex nihilo. His arbitrary will is the ultimate ground of morality, politics and religion. Created by “the one whom man cannot comprehend but only divine in a spirit of faith” his ways (providence) must be inscrutable (fn removed)

Unlike the platonic god (“Demiurge”) of Strauss’s official Judaism who acts sub ratione boni, the will of Schmitt’s Spinozist-Christian god is restrained by nothing—and only nothing! Consequently, in his unsuccessful attempt to convert Schmitt from Spinozist to Platonic Judaism, Strauss prudently refuses to mention the Christian orthodoxies preventing Schmiitt’s theology from being really political—e.g. the corruption of man’s nature through original sin (footnote removed) Strauss, not Schmitt, realized that Schmitt’s determination to rescue illiberalism (religion politics, morality) from liberalism presupposed Platonic no Spinozist (Christian) Judaism, orthodox Judaism not orthodox Christianity. Strauss noted that Schmitt, however reluctantly, remained a prisoner of the liberalism which he loathed. He continued to put his faith in the goodness of an essentially inscrutable—because nihilist—creation and providence, a faith which Strauss held responsible for mankind’s “incredible effeminating or spoiling” (footnote removed) Strauss never forgot what it means to be a Jew, even—and especially—in regimes dominated by the pseudo—liberal orthodoxies of Spinozist-Christian Judaism. He knew those “orthodoxies” were grounded in science and therefore opposed to official Judaism’s philosophic (platonic) core. In this, he was unique. (fn removed)

What we face is the question: Was Strauss right, or Schmitt, or both about Liberalism? If neither was right, where does that leave us? If we accept that Strauss was right, as Howse appears to do as he continues with his book, then we have to ask what it means for us to live within liberalism if we accept that Strauss was correct in his critique. Howse, however, does not explore this issue. Instead, he stays on the surface or treats Strauss abstractly.[34] The choice between Schmitt and Strauss and between Schmitt/Strauss and liberalism has to be made. We cannot be neutral in such a choice nor can we be agnostics as the question, and our answer, determine the way of life we hold to be best or at least the best that can be practiced in these conditions. Without this understanding, we are left uncertain as to why Schmitt is important for Strauss throughout his career. We would be left believing that Strauss was trying to atone for his “youthful indiscretion” rather than understand that the choice is definitive and ever present. As Schmitt presented a powerful alternative, in the critique of liberalism, that others have followed, including some of Strauss’s students whether they understood it or not, but one that Strauss rejected in favour of his own search for a horizon beyond liberalism, we need to consider where the choice leads us.

A related problem is the belief that a horizon beyond liberalism is anti-liberal. (see the discussion of Stephen Holmes p.27) Strauss understood that we, if we are honest about philosophy, could not accept modern liberalism as the best regime or the best way of life. At best, we can take it as indicative of the best way of life or the best way of life currently achievable. To question liberalism and to suggest a horizon beyond it is necessary if, as Strauss argued, one is to remain loyal to philosophy and not become a political man or a nihilist. This is the lesson he learned or rather taught by his confrontation with Schmitt (and Heidegger). Schmitt saw liberalism as a totalitarian ideology culminating in the world state which would bring politics, the search for the best way to live, to an end. There would be a final answer, the world state, which would also undermine the possibility of philosophy. It would appear that to the extent we have become liberal democrats we have forgotten this possibility and we remain firmly embedded or chained in liberalism’s cave. Strauss sought to leave the cave of liberalism, in particular the one presented by Weimar Germany, to seek an alternative in pre-modern thought. To escape, he had to engage in the harshest critics to understand how it failed even as it “liberated” man from pre-modern thinking.

When Strauss arrived in the United States he was an émigré. He was fleeing Nazi Germany and understood the choice he had made to leave. In his essay on German Nihilism, he tried to explain the threat posed by German Nihilism. Howse treats this essay sympathetically but does not explore it in the way that others, such as William Altman or Susan Shell, have.[35] To the extent that he engaged with Altman it was to dismiss his argument. On the surface, the view is correct but it misses the deeper, unintended, truth to Altman’s essay. Altman does provide an important service by engaging the lecture in detail. However, he misses the point. The lecture is not about hiding Strauss or allowing him to avoid persecution, as any philosopher or anyone who is wiling to discuss dangerous truths would fear, because it is focused on a different thinker. The lecture is designed to deal with Heidegger and the threat he, and more widely German Nihilism, or more precisely nihilism, presents.[36]

As Altman notes, Strauss is praising an imperial power at war with another imperial power in a country devoted to anti-imperial powers. Yet, Strauss would have been sensitive to the regime changes since 1933, in Germany and the United States. America in 1933, like Germany, began to change. Although Germany descended into tyranny and self-destruction, America chose a different, though not unrelated path, towards an increasingly powerful federal government with increased power to the executive. By warning the audience of the threat from German Nihilism, Strauss was, in effect, trying to inoculate it against the Heideggarian contagion. It is not surprising that in the wake of 1933, and 1941 that Strauss writes On Tyranny in 1948. America which had been a relatively provincial country in 1932 had, by 1948, become the uncontested master of the world. At the height of that power, which I would be surprised if Strauss was insensitive to given his intellect and experience in Germany, Strauss pens a warning on the threat of tyranny. Yet, that threat was not simply political, or the problem of political power, it was a philosophical warning.

Strauss understood what Heidegger represented and what his decision in 1933 meant for political philosophy.[37] However, he could not warn America directly because that would require him to introduce Heidegger to America, which is not something Strauss would have done nor did he do. Even though he welcomed and shared Heidegger’s efforts to uncover the roots of Western thought, he never made an attempt to introduce him or his thinking to America. If anything, one could argue that Strauss had fled the political consequences of Heidegger’s thought. These are issues that neither Altman, nor Shell nor Howse address and this means we are left uncertain as to why and how NCP and GN connect or what they mean within Strauss’ project.

Howse’s next chapter focuses on Xenophon and Hiero or On Tyranny. At the end of NCP, Strauss says that the path leads us to Hobbes, while GN does not direct us to a different thinker. Howse leads us to Xenophon and the Kojeve debate. There is a logic to that transition, but it assumes too much. We need to understand how Strauss saw Hobbes to see Hobbes’s role in creating the modern state as a precursor, in part, for the universal world state. We need to see Hobbes and the events from 1932-1948 to see how Xenophon provides the basis to confront and critique the modern state as created by modern philosophy and rehabilitate philosophy especially in light of Heidegger in 1933. Like Strauss we have to go forward to go backward and only in going backward can we understand how to go forward.

Chapter 3 Legitimacy and Legality, Thinking and Ruling in the Closed Society and the World State: The Strauss/Kojeve Debate.

In this chapter, Howse will reinterpret the famous debate between Strauss and Kojeve. (p. 20) The chapter looks at Strauss’s On Tyranny, his first book as an American citizen, and the relationship between law, philosophy, and political violence. To this end, he will cover

 “the relation legality to legitimacy and of both to violence; whether and how philosophers and intellectuals out to guide violence political change;’ and whether a world state or universal society is possible, desirable or even inevitable.” p.51

After the introduction, the chapter has 13 sections, which cover On Tyranny and the Strauss-Kojeve exchange it contains. The first four sections focus on Strauss’s intent in On Tyranny. The fifth section moves away from that focus and turns to the way in which Strauss, through On Tyranny, rejected Carl Schmitt’s approach to politics and the limits of legality and constitutionalism. In this section, Howse refers to the idea of t’shuvah where he suggests similarities to Strauss’s moderation that comes from a call to restoration of the classical viewpoint. Sections 6-9 deal with Kojeve’s criticism and Strauss’s response. Section 10 returns to Schmitt with a discussion of the relationship of thinking to political action. The next two sections remain on this theme exploring the life of the mind in the universal state and then, in section 12, looks at the Strauss-Kojeve divide on the world state to move beyond the polemics of On Tyranny. Section 12 relies heavily on Strauss’s course transcripts on Kant and Xenophon. The conclusion draws together the chapter and sets the stage for the book’s central chapter on Machiavelli.

My commentary is limited to the first four sections, which focus on Strauss’s On Tyranny. I have limited myself to these sections because they captures the first book by Strauss in the United States as a citizen and covers the themes, law and political philosophy, that are found throughout Howse’s book.[38]

Howse introduces the chapter by explaining how he will approach the debate and he offers a brief introduction and context for it. He provides a background to Kojeve as well as how some current writers have viewed Strauss’s teaching in On Tyranny. Instead of a detailed look at how Strauss read Hiero, especially what it means for Strauss’s project, Howse provides a relatively discussion of the argument and action of Strauss’s essay. The section in On Tyranny that receives the most attention is “The Teaching Concerning Tyranny”. Howse leaves us uncertain over his view of whether Strauss’s argument is correct, especially concerning the “tyrannical” teaching. Without that detail, we cannot assess whether the section, and more widely, the chapter support or detract from the book’s central arguments concerning the charge that Strauss taught “bellicose imperialism, war without limits, and unbounded executive power” (p.1). Moreover, we are left uncertain as to how he has reinterpreted Strauss’s work in this chapter. Even though the charges that Howse seeks to answer with this book bear some resemblance to the claim that Socrates taught the “tyrannical” teaching, Howse does not explore this resemblance. Moreover, if Howse is to reinterpret Strauss’s work, it suggests that he is able to provide a complete understanding of Strauss’s writing or his project or in the book On Tyranny. He would need to show, through his reading of Strauss’s essay, how he is reinterpreting it. To do that, he would need to show how Strauss’s approach to reading and writing influences the work and how it is understood.[39] In particular, Howse does not refer to the reason for esoteric writing even though, as Strauss argues, all communities attempt to tyrannize thought.[40] The statement seems particularly noteworthy given that the United States was on the cusp of the McCarthy era.

What seems to be missing from this chapter is the historical context for Strauss’s work. Is the focus solely current tyrannies “the immediate context is not the tyrannies of ancient Greece; it is the communist tyrannies of the post-war era?” (p. 55). Yet, if Strauss suggests that all societies seek to tyrannize thought and McCarthyism was emergent, we have to consider why Howse does not explore this issue. Is a democratic tyranny possible? If any society seeks to tyrannize thought in some, then liberal-democracy would do it as well even if its effect were less severe it would be a threat, however, remote to philosophy and the possibility of philosophy. If “tyranny is a danger coeval with political life”, then we need to consider Strauss’s writings in that context.[41]

After discussing Kojeve, Howse reminds us of the contemporary view of Strauss’s legacy as thinker on the “right”. He refers to Nicholas Xenos who sees Strauss as thinker on the “right” because some of Strauss’s students are now associated with “neocons”. Howse suggests that this may be understandable as Schmitt also opposed, like Strauss, Kojeve’s vision of a world state. What is not clear is why Strauss has to be seen as a thinker on the right. Socrates, as we know, had many students who were tyrants and became tyrants. Would we say that Socrates was a tyrant or supported tyrants? He also returns to a common theme, Heinrich Meier, whom he claims also sees “a basic spiritual affinity in the rejection of the world state by both Strauss and Schmitt” p. 53. The reference to Xenos seems strange as Howse repeats uncritically, in the footnote, Xenos’s claim that Strauss accepted the tyrannical teaching.

 “Does Strauss….accept the tyrannical teaching? It seems pretty obvious to all but Straussian interpreters that he does.” (fn 6)

 

Such a claim appears to be accepted at face value and the narrative continues. Although he will return to Xenos on p.56, he does not explore what Xenos means by the tyrannical teaching and continues with Meier with reference to the problem of Schmitt.

Howse, in his attempt to rescue Strauss from Schmitt, goes so far as to argue that that Strauss and Kojeve agreed against Schmitt that thinking was more satisfying than deciding or ruling. That agreement appears to influence his summary of the dispute between Kojeve and Strauss, which he claims “reduces to a difference concerning what it means to be a thinker, that is, the character of wisdom and the philosophical life and the view of the whole and man’s place in it that this life supposes or implies.” (p.54) By placing this in contrast to Schmitt, we would be led to believe from Howse’s phrasing that unlike the gap between Strauss and Schmitt, the gap between Strauss and Kojeve is smaller. The five areas are fundamental and irreconcilable.[42] If we accept, as Neumann suggested, that there was a possibility that Strauss could have awakened Schmitt to philosophy, but not Kojeve, then it raises the question of whether the common ground between Strauss and Kojeve is large or stable as Howse suggests.

“He [Schmitt] did not perceive, as Strauss did, that his Spinozist-Christian Judaism was the apotheosis of that abyss [liberalism’s abyss]: orthodox Christianity is far closer than orthodox Judaism to Liberalism. Strauss unsuccessfully attempted to alert Schmitt to this danger. He saw Schmitt as potentially philosophic as, in a way, all pious or political men ar. To actualize this potentiality, their politics or piety must be yoked to serious questioning of it, a rare and almost unlikely combination. However, without pious moral-political commitment, philosophy’s necessary condition, Straussian education is impossible. That is why Strauss preferred Schmitt to Kojeve.” [43]p.95

Neumann argues that Strauss had a deeper disagreement with Kojeve than Schmitt. Their differences, as seen in On Tyranny essays and correspondence, cannot be bridged and the political consequences of that difference are decisive.

Howse continues with the theme of thinking by reference to Heidegger. Howse argues that Strauss and Kojeve wrote on the subject of tyranny in part to respond to Heidegger’s failure to resist the siren song of Hitler’s tyranny. In contrast to Heidegger, Strauss and Kojeve understood that thinking as a way of life had to occur within the context of the city, a political community, where tyranny is a constant concern. Tyranny becomes a central problem because of what it means for the thinker and their way of life. The thinker’s response to the issue is a political one and we know Heidegger’s choice and Strauss’s.[44]

Howse turns to a discussion of Hiero and Strauss’s essay On Tyranny with the section “Understanding Tyranny, Ancient and Modern”. He stays on the surface of the work and the issue by looking at how Simonides might help the tyrant, Hiero, reform or at least make his tyranny less oppressive by conferring benefits on his subjects.[45] If the tyrant rules benevolently, then they might be able to rule safely. So long as the people are pleased, they might forget his original crimes to seize control. Howse points out that Strauss understandably sees Hiero as the point at which classical thinking pre-modern political science and modern political science characterised by Machiavelli.

The problem though is that Simonides advice, through Xenophon, is only advice. It is not proven. We can see examples in the modern era where it appears to have worked, but their success has been unstable and does not appear to have been able to sustain itself when challenged. One can look at the Soviet Union’s collapse from a lack of legitimacy. Even though they had their supporters, the regime was not able to overcome their initial illegitimacy to transform that founding into a valid title to rule by conferring benefits, understood with the communist ideology, on the people. Even a stable and benevolent monarchy faces a claim of illegitimacy when measured against consent as the basis for legitimacy.

After a brief discussion of Sartre’s play Les Mains Sale (Dirty Hands), he returns to Xenos. What is curious is that the problem of Dirty Hands disregards the issue of intent and justice. It assumes that to exercise power is to act illegitimately, which accepts a Machiavellian understanding of power and politics and rejects a classical understanding. One would have to accept that no exercise of power is legitimate or justified because everyone is tainted. To govern is to be tainted. Such a view raises a direct question for the American experiment. Such a view considers that a government of the people, by the people, and for any people who are able to govern themselves, is fundamentally illegitimate. Moreover, it suggests that any activity in the public domain, where such decisions are made for the public or common good, is tainted. Such a view encourages, if not requires, a turn to the private domain as the only place for legitimacy. Only the private realm appears to be untainted by Dirty Hands.[46] To promote the private domain over the public domain is a view that would have been alien to the Greeks. They saw man’s highest perfection, as a citizen, in the public domain not the private domain.

When Howse returns to Xenos on page 56, he uses him to explore the ambiguity between tyrannical and non-tyrannical rule.

“Strauss goes far into the argument of the Hiero without any definition of tyranny or a clear-cut distinction between the tyrant and a non-tyrannical ruler. This feature of the text seems to give substance or at least some credence to the views of those like Xenos who, who suggest that Strauss is using Xenophon’s dialogue as a way of indicating his own openness to tyranny and the immoralism it supposes.” p.56

Howse raises this point, without exploring it. We are left uncertain as to why Strauss takes so long to define tyranny or how it justifies Xenos’s argument. If we do not know why Strauss took this long, or even why the delay is significant, how can we assess the statement? We are not clear as to what is meant by tyranny and whether Strauss is alleged to have accepted Xenophon’s teaching, which suggests an openness to tyranny, or whether it is that Strauss accepts Socrates’ alleged tyrannical “teaching.” Lastly, there is no discussion whether Xenophon’s tyrannical teaching, as demonstrated by Simonides, is a complete teaching. Is it flawed, as a superior teaching may exist? In other words, Strauss may accept a tyrannical teaching as it is a flawed teaching and he accepts it in light of a better teaching. We must remember that tyrannical teaching is about a flawed political regime, it does not describe the best regime simply.

We are left uncertain as to the delay, except perhaps to the extent that is implied in that the structure, the argument, and the action of the essay, indicates why a definition of tyranny had to wait until other matters were resolved.[47] What remains confusing is the apparent acceptance, at least by repeating Xenos’s statement without criticism, that Strauss was indicating his openness to tyranny and immoralism. We see no discussion of this contentious statement, which is surprising in light of his claim on p1 that he will defend Strauss from such charges.

He continues this point with apparently off-hand comments about Xenophon’s teaching as described within Strauss’s work.

“On the one hand, in Strauss’s view, it is clear from the outset that a wise man would have no doubt about the superiority of private life to tyranny from the perspective of pleasure (OT, p.38). On the other hand, there is really nothing in Strauss’s extensive elaboration of the setting and action of the dialogue that suggests why Xenophon, whom Strauss presents as a Socratic, would think it undesirable for a wise man to teach a pupil to be tyrannical. Even if the wise man finds being a tyrant to be much less pleasurable than his private life, preparing someone else for tyrannical rule is another matter” p56-57

When we look at the two sections, it suggests that pleasure guides the wise as they would prefer private pleasure to public virtue. However, this does not fit with what Strauss argued within On Tyranny, as pleasure is not the highest goal for the wise man. Moreover, if teaching is a political art it suggests that the wise man might gain pleasure from the political, or public, act of teaching. Moreover, we are left uncertain as to whether the philosopher shared the same view as the wise man as Strauss implicitly contrasted Simonides a “wise” man with Socrates. The context of the statement needs to be understood and cannot be seen as Strauss’s final statement on the issue as it raises the question of whether Simonides is truly wise. (see p32-33 also fn2 chpt 4)

Howse’s second sentence raises more questions. We are uncertain what he means by the phrase “to teach a pupil to be tyrannical”. Does he mean the “tyrannical” teaching, which is what Socrates was accused of teaching? Or does he means tyrannical teaching simply? I will take it that Howse meant the “tyrannical” teaching that Socrates was accused of teaching. On the surface, Howse’s statement appears contrary to the text. On page 43, Strauss discusses why Hiero would fear the wise man because he might overthrow a tyrant by teaching others to be tyrants or by becoming a tyrant. Although this does not directly state that it is undesirable, it indicates it might not be prudent to teach pupils to be tyrannical. Alternatively, to be known to do this especially if one lives in a tyranny or in any city which may fear a tyrant would not be wise. Moreover, if we look at fn32 (p. 110) we have to consider why a just man (the wise man) would want to teach injustice, the tyrannical art. Moreover, Socrates, as Strauss argues on p.33, does not teach the tyrannical art, but the royal art. If the wise man were to teach a pupil to be tyrannical, it would be unwise to the extent that it would encourage the vulgar to view the wise man as a threat to the city by confirming the prejudice that wise men are a threat to the city and its opinions.

At the same time, we are left uncertain as to what Howse means by the statement “to teach a pupil to be tyrannical” as the issue does not arise in the setting or action sections. Why make this point? If he means that it is simply to teach someone to be a tyrant, why mention this point? If he means the “tyrannical” teaching (practical and theoretical) that Strauss mentions in chapter IV The Teaching Concerning Tyranny and on p.33 of The Title and The Form, we need to consider whether it is the full teaching (pathology and therapeutic) and whether it is the practical teaching, the theoretical teaching, or both. If we accept the subtlety of Strauss’s work, the distinction has an importance for Xenophon’s, Socrates’ and Strauss’s teaching. If we take the practical teaching, this statement appears misplaced. The only pupil for the practical teaching is an actual tyrant not a potential tyrant (see OT p.66-67). If the pupil is a tyrant, and willing to learn, then we return to the point of the whole work.

If we leave aside the practical teaching, we still face the theoretical teaching, that is the teaching that “expounds the view that a case can be made for beneficent tyranny, and even for a beneficent tyranny which was originally established by force or fraud.” (p. 76 OT) Why would a wise man teach a pupil to be tyrant if he would have to teach him to be a beneficent tyrant? Unless, Howse means would the wise man teach the pupil the Socratic teaching, the “tyrannical” teaching on how to recognize a flawed regime and improve it and thus appear as a tyrant to those who do not understand or appreciate the “tyrannical” teaching.

If tyranny is illegitimate rule over unwilling or unwilling subjects, it does not seem to be something that can be taught. This would mean the wise man will teach his pupil to be illegitimate, but can this be done? A teaching may create legitimacy (education to create wisdom) but what is it about tyranny that can be taught? Moreover, the reverse point is not discussed. Is there anything in the dialogue that indicates why the wise man thinks it desirable to teach his pupil to be tyrannical? If we are discussing the ways to seize power, we have moved away from the issue of legitimacy and legality. However, Xenophon is looking at a way to improve the tyrant to move from tyranny simply to tyranny at its best. The wise man, it would appear, cannot turn a tyrant into anything but a better tyrant. They lack the ability to teach virtue or the royal art. We have to ask whether the tyrant is able to learn or to become wise enough to recognize their need to improve their rule and if they are that wise, why are they not wise enough to know they need to rule according to virtue and seek out the royal art? Strauss suggests that the tyrant is not wise and lacks what is necessary to become wise simply even though they may become wise in term of tyranny, become a better tyrant or an educated tyrant, but never wise simply. To become wise simply would suggest that they stop being a tyrant.

Howse continues to explore the issue and he moves to the section called “Teaching concerning tyranny” where he provides us the deeper insight within Hiero.

“The basic thought behind Simonides entire proposition to Hiero, unspoken by Simonides and unwritten by Xenophon, suggests a much more morally questionable or shocking opinion than that contained in the explicit advice. Simonides entire proposal supposes and indeed exemplifies the proposition that the criminal acts a tyrant had to carry out to become a tyrant are not fatal to his capacity to govern in a benevolent or beneficent way.” p. 57

The passage appears correct, but we have to consider that this is proposed rather than demonstrated. As we see, the possibility of a beneficent tyranny is a proposal by a poet where no examples are provided of it succeeding. Moreover, it assumes that a tyrant takes power by acts that are so criminal that they appear unforgettable. Yet, a tyrant can come to power by invitation where the people, suffering from a worse ruler, welcome a tyrant to improve their situation. We may suggest that people may embrace tyranny because it conforms to what their community wishes in which case consent, fully understood, may create what appears to be tyrannical to those who wish to live the examined life. Thus, their acts, while bloody or criminal, are justified by the community. Yet, their “founding” acts can be seen to have been criminal when they usher in a worse regime and move beyond what the community wants. Although Howse returns to the “tyrannical teaching” on p57-58, the remarks by Xenos on p. 52 and 56 are left unaddressed.

Howse turns to “The Teaching Concerning Tyranny”. Here we see what appears to be a reinterpretation of the debate. Howse appears to present a view that modifies or alters Strauss’s intent by avoiding the nuance of his approach. As readers of Strauss will notice, much is hidden, or found, in the footnotes. If we avoid the context or the nuances they contain, we miss part of his argument. In particular, if we look at the footnote to these sections, they begin to tell us a different story, a different view, that far from embracing tyranny or rejecting it, Strauss starts to reveal to us how all society contains a tyrannical element.

Howse presents Strauss’s argument in a way that does not follow the text and it is difficult to understand Howse’s intent in presenting Strauss’s work this way. On page 57 Howse refers to the Strauss’s first definition of tyranny. ”A tyrant must be supposed to suffer from the lack of a valid title to his position.” (OT p.64) He says that Strauss refines or reformulates the reference to a valid title to rule.

“But, Strauss reformulates his original statement that a tyrant is a ruler who lacks a valid title to rule in the following way: “Being a tyrant, being called a tyrant and not a king, means having been unable to transform tyranny into kingship or to transform a title which is generally considered defective into a title that is generally considered valid” (OT, p.75).”

The statements appear to make sense as they follow the argument and the action of the text. The statement on p.64 leads to p.75. However, instead of showing us how the statement on p.64 creates the statement on p. 75, Howse argues that Strauss reverses his position set out on page 75.

“But Strauss again revises and refines his formulation of the distinction between legitimate and tyrannical rule. Tyrannical rule is without a lawful title and rule over unwilling subjects. Tyrannical rule is compared to another sort of rule by one person, monarchy, which is rule with lawful title over willing subjects” p.58

The passage does not have a reference to On Tyranny. Strauss does not refine the distinction between legitimate and tyrannical rule. Instead, p.64 and p75 bracket a subtle and complex argument where tyranny commonly understood is distinguished from tyranny at its best. As Howse does not cite a passage, it appears problematic. In the text Strauss never says tyrannical rule is without lawful title nor does he say that monarchy is rule with lawful title. He is consistent that tyranny is without a *valid* title and kingship is rule “in accordance with the laws of the cities” (OT p.68). We cannot assume that Strauss intended that lawful title should be understood as valid title nor can we assume that valid title is the same as lawful title. Much turns on whether he intended lawful for valid. If he had, we would expect something in the text to indicate his intent. Howse does not refer to anything in Strauss’s text to support this statement. If this is a reinterpretation of Strauss, then the reader needs to know that it is what Howse interprets and not what Strauss said. In particular as the idea of law and the role of law in relation to tyranny is an integral part of the argument.

If Howse is arguing that a tyrant lacks a lawful title to rule and a king has a lawful title to rule, it would suggest that the lawfulness of the regime determines the difference between tyranny and kingship. Strauss never makes this argument. Ruling according to the laws does not mean that one has a lawful title to rule. To make this argument we need to have explored what is law and what confers validity. Yet, Howse does not do that in the text.

Howse’s reference appears to amalgamate two ideas and statements by Strauss. Howse appears to combine a statement on page 68 and one on page 75. Here are the two statements.

“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

And

“Being a tyrant, being called a tyrant and not a king, means having been unable to transform tyranny into kingship, or to transform a title which is generally considered defective into a title which is considered valid (fn51)” (OT 75)

Strauss does not explicitly connect willing or unwilling subjects with what provides or can transform a title to rule. Howse does not appear to make this argument, that consent, or the willingness of the subjects, can determine or contribute to the validity of rule. Moreover, fn51 suggests that Cyrus was able to make this transformation. Leaving aside that issue, we still have the problem of how Howse interprets Strauss’s argument. The unsourced statement becomes problematic because Howse claims (p. 58) that a further shift occurs in Strauss’s argument.

“Strauss signals a further shift in yet in the definition of tyranny through a subtle variation in terminology. The relationship of tyranny to law is reformulated by interpreting the opposition of tyranny to law not in terms of the tyrant lacking a legal title to acquire power but in terms of the tyrant exercising his power “without laws”—that is, absolutism.”

Howse does not cite a page for that passage where Strauss’s signals the change. Howse appears to argue that Strauss emphasized the way the tyrant ruled rather than the legitimacy of the rule as determinative. Yet, it is not simply ruling without laws that is problematic as legal laws used unwisely can be tyrannical as p120fn47 suggests. The nearest reference in the text to support Howse’s statement appears to be from p. 68 of On Tyranny.[48]

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 cities; tyranny is such rule as is exercised over unwilling subjects and accords, not with laws, but with the will of the ruler. This definition covers the common form of tyranny, but not tyranny at its best. Tyranny at its best, tyranny as corrected accord to Simonides’ suggestions, is no longer rule over unwilling subjects. It is most certainly rule over willing subjects. But it remains rule “not according to laws,” i.e it is absolute government. OT p. 68

Thus, we have gone from p. 64 to p.75 and then back to page 68 without explaining the transition. We see a couple of problems emerging in this view that we need to consider. First, Howse has presented Strauss’s argument from OT p.68 as following the argument on p.75. It appears to reverse the argument. The statement on p.75 follows from p. 68 and comes after Strauss has refined his argument. What is crucial to understand is the change from p. 68 to p. 75. The definition of tyranny is modified by the discussion of “What is Law”. Strauss leads us to believe that the law (and what it is and how it is understood) modifies the idea of tyranny by indicating the problems of the source of authority as well as the source of validity for a ruler. As laws are not necessarily beneficent, (p.74) the beneficent absolute ruler will be superior to them especially if to be just is to be beneficent. However, this is not the same as saying that tyrannical rule is rule without a lawful title and rule over unwilling subjects nor is it defined by the way the tyrant exercises his power. We cannot ascribe this argument to Strauss as Howse appears to indicate.

In the argument Howse has not explained why he has transposed the statements and suggested that Strauss has refined his argument to be something that the original does not appear to support. We need to consider this in particular as Strauss says on p.75 that beneficent tyranny appears to have been defined, following the discussion of what is law, as “the rule of a tyrant who listens to the counsels of the wise…” What we find, though, is Strauss refines the definition of tyranny to include the problem of authority.

“Being a tyrant, being called a tyrant and not a king, means having been unable to transform tyranny into kingship, or to transform title which is generally considered defective into a title which is generally considered valid.(fn51) The ensuing lack of unquestioned authority leads to the consequence that tyrannical authority is essentially more oppressive and hence less stable than nontyrannical government.” (p.75)

What remains unresolved is the source of authority and whether the ruled accept or understand that authority.[49] If there is unquestioned authority, then there is no need, or opportunity, for philosophy.[50] Where or how would the wise men learn in such a society?

Howse does draw on this in a fashion when he moves to the next section of the chapter “The Return to Constitutionalism From The Temptation to Absolute Rule”. He goes back to page 74 where Strauss explains that the only valid title to rule is knowledge. He argues that where knowledge is the only valid title to rule, it invalidates the idea of constitutionalism.

“The means by which a ruler comes to power, no matter how violent, how unjust, should not deter wise or reasonable men from advising such a ruler, and if he follows that advice, his rule will be more legitimate than any constitutionalist regime” p.59

We see that this reference to the idea on p.74 changes the structure of Strauss’s argument. Knowledge as the title to rule only comes after the law is defined, and before Strauss discusses the inability to turn a tyranny to a kingship and transform a defective title to rule into a valid title to rule. Howse places it after both steps rather than between them. Moreover, Strauss does not say that the beneficent tyrant who listens to counsels of the wise is simply superior to constitutionalism. Strauss modifies that argument by whether or not the regime listens to the wise.

“Tyrannical rule as well as “constitutional” rule will be legitimate to the extent to which the tyrant or the “constitutional” rulers will listen to the counsels of him who “speaks well” because he “thinks well.” At any rate, the rule of a tyrant who, after having come to power by means of force and fraud, or after having committed any number of crimes, listens to the suggestions of reasonable men, is essentially more legitimate than the rule of elected magistrates who refuse to listen to such suggestions, i.e., than the rule of elected magistrates as such.” P.75 [emphasis added

Strauss is indicating here that the magistrates will not listen to the wise will demonstrate their illegitimacy relative to a tyrant or tyranny that will listen to the wise. One could argue that they will not listen because the law does not require them to listen. The law is based on what the community has agreed and provides an unquestioned authority. Moreover, the magistrates’ legitimacy is based on the law and an election not on knowledge. In that sense, we could suggest that if they were elected, why should they listen? They have authority and to the extent that everyone accepts the election process and the outcome it produces, their authority would be, narrowly understood, unquestioned. However, what is not explored by Howse is whether they can listen. Can they accept the suggestions of reasonable men? Howse makes this point on p.59 when he points out that if knowledge is the only valid title to rule, then the legitimacy of regimes can be measured by whether they are tractable to reason. Moreover, Strauss goes on to point out that the beneficent tyranny, tyranny at its best, “could hardly, if ever, be realized” not least because the wise may not want to rule or, it would appear, to advise the tyrant. [However, we have the problem of Heidegger]

Howse argues that the alliance between the wise and tyrants is difficult because their essential interests are in conflict. He suggests that freedom is an essential interest of the wise man. (p.59) To support this he refers to on Tyranny p. 84, where we find the sentence. “The wise man alone is free” (fn 27). We cannot conclude that the wise man is as interested in freedom simply understood because they can still find a life of virtue and the philosophical life is possible under regimes that do not have freedom as their aim. (We can see this in the example of Socrates and Heidegger). More to the point, Strauss indicates that the wise are less concerned with freedom to the extent that they do not need it to practice a life of virtue. (See p.71) He also points out, p.43, that the wise do not take risks for freedom as they have a different goal from those who want to restore freedom and have good laws.

From the analysis of the sections that have been covered, we can consider there is a need to explore the question “What is Law?” Here a possible reason for why Strauss took so long to define tyranny and non-tyrannical rule begins to emerge. We have to note that Strauss takes longer in his argument to raise or refer to the question “What is law” than to define the tyrant and by extension a tyranny. Without answering the question of “What is the law?”, we will find it difficult to understand completely what it means to rule with laws, without laws, or in accordance with laws. We have to recall that rule by law is consider inferior to the rule of the wise. However, for the community the rule of law may be associated with a form, or type, of freedom. As Strauss suggests that Simonides is indicating that where there are no laws, there is no liberty.[51] (p.69) What is curious is that at this time when he mentions the law it is the first time in the chapter that Strauss refers to the citizen. A deeper problem is that to understand this modification, we also have to examine how Xenophon’s answer and Socrates’ answer to the question differ.[52] We also return to a question posed at the beginning of this commentary. Why does the chapter with the law as a central issue not discuss the question or answer it? Why does the book, which is focused on Strauss’s understanding of the law, not address the question of the law?

What we find is that the law involves the possible issue of consent or a way to indicate willing subjects.[53] We have to start with Xenophon’s suggestion on p. 73. “The laws which determine what is legal are the rules of conduct upon which the citizens have agreed.” The laws are what the citizens have agreed. The citizens are not defined so they can be the multitude or the few. Strauss sub-divides the few into the rich or the virtuous. What this becomes, after considering the citizen is that “The laws will “depend on the political order of the community for which they are given.” p.73 Here we see the deeper problem within the work. The law expresses the city’s opinion. When the tyrant rules willing subjects it is in that sense with their consent, which is based on the benefits they receive from being protected by the tyrant. For those who are willing subjects to a king, they know the king rules in accord with the laws of the city. However, we cannot understand tyranny at its best without understanding the law. Within the law, we see the limit of Socrates’ theoretical teaching concerning tyranny.

The limit of tyranny, or its beginning, is seen in the way Alcibiades has Pericles define the law within the Memorabilia. The key passage is I 2.41-46 where if a regime rules without consent it is a tyranny. In that vein, we see how Socrates could nominally attempt to obey such laws by questioning them. (see I 2.31ff). Any regime faces the question of the legitimacy by the means by which it rules as well as to the end towards which it rules so that we have the process and outcome as indicated in Minos. The valid title to rule may change depending on the community. For Socrates, the only sufficient title to rule is knowledge.[54] Therein we see the basis for Kojeve’s world-state as the only state that would be non-tyrannical “in which perfectly wise rulers educated all men to share their wisdom” (Neumann (Socrates and Athens) p. 429). Even this is uncertain because the rulers and the subjects would have to agree on the fundamentals. However, even if a regime listens to the wise, it is still illegitimate when measured against the Socrates’ or Alcibiades’ standard. Pure knowledge or pure consent proves impossible to achieve in practice. The laws, agreed by the citizens, limit ruler from being tyrannical and provide an opportunity for consent.

When we consider the law, we start to see tyranny cannot be understood without it. We are reminded that at the start of On Tyranny Strauss explains that tyranny is considered a faulty political order. He does not explain at that time who decides it is faulty, how its fault is determined, or what the fault is. It appears, from Strauss’ chapter the source of the laws, for Xenophon, is the community. Strauss writes; “The laws which determine what is legal are the rules of conduct upon which the citizens have agreed. fn40” (p.73) The footnote refers us to Memorabilia IV 4.13 in which what the citizens agree is the laws and a law abiding person orders his life in the community according to them. After describing that source of the laws, Strauss turns to the question of “What is the law?” According to Strauss, Xenophon’s answer is drawn from Alcibiades questions to Pericles. It is only after raising this question and answering can Xenophon then declare that the rule of tyranny can live up to the highest political standard.

The law is needed to understand the community where and when the “tyrannical” teaching can be expounded. There are two passages where the community and the law are connected in this way. The first is on p.76 law defines community ruled by law and the second is on p.96, with an important qualification.

Strauss writes on p. 76

“If the city is essentially the community kept together and ruled by law, the “tyrannical” teaching cannot exist for the citizen as citizen.”

The law rules the community and keeps it together. As the law is first for the citizen, who has agreed it, they cannot conceive of the “tyrannical” teaching, which suggests a better way exists. We can only understand the nature of tyranny by what it challenges in the sense of the law and the community. If the citizens agree the law, and it is good, there has to be point where they understand the law is not good and is flawed. It would have to be flawed enough to allow the “tyrannical” teaching. In a sense, one could argue that the laws become tyrannical as the community becomes tyrannical thus using the laws for a tyrannical purpose especially if they rule by a lack of consent. Yet, we still have the deeper question of the relationship of the law and legitimacy. If the community creates the laws, then its provides a certain type of legitimacy. Yet, as a result of the “tyrannical” teaching, the question of legitimacy changes.

On page 99 Strauss writes:

“In so far as the city is the community kept together, nay, constituted by law, the city cannot so much as aspire to that highest moral and intellectual level attained able by certain individuals.”

We see that the law no longer rules the city. The law only serves to be the starting point for a city. The “tyrannical” teaching has shown us something else can rule the city offers something the city, as city, cannot achieve. The law may have constituted the city, but it can no longer rule the city because of philosophy. Therein we see the challenge. The law provides an authority that provides stability but it will not tolerate philosophy. If philosophy seeks to rule, it too will be seen as tyrannical, illegitimate, unless the citizens, as citizens, are educated to its charms and necessity. Both approaches, the law and philosophy, have their forms of legitimacy but neither can be proven before the other. They might be known by their effect, but that does not prove their intrinsic worth. The city ruled by the wise offers a possibility of a non-tyrannical rule because it is based on pure, informed, consent. The city ruled by law offers a non-tyrannical approach if it authority is absolute and it does not allow philosophy to intervene as all questions and disputes are resolved by it.[55] However, what remains uncertain is the possibility of revelation to upset this balance which is why neither Hiero nor Simonides refers to the gods. God would offer a standard, other than philosophy, to judge the law as tyrannical and it also offers a basis to reject philosophy. It is not surprising, then that Strauss ends with a reference to piety and the question “What is god?” as neither the law (the city) nor philosophy recognize a limit and in that sense is absolute. Only philosophy can willingly restrain or moderate itself while the city, and the law, can only limit their absolutism by necessity. However, for the city and the law both philosophy and revelation are equally corrosive, which is why the Statesman rather than the Prince is where On Tyranny points.[56] The Prince is only the modern subversion of the Statesman.

Howse provides an entry into Strauss’s thought with his book. From the chapters I have commented on, there is much to recommend it. I would suggest, though, that without an understanding of law as understood by Strauss, the book’s usefulness is limited. We are left uncertain how Strauss understood the law given that in a variety of contexts it can be the speaker’s view of the law (Xenophon’s, Xenophon’s Alcibiades, Socrates’s), or the commonly understood meaning, such as Ancient law or Modern law, or domestic law and international law. Without that clarity, the reader is left to apply their own understanding.

As this commentary has grown beyond my initial intent, I will close by saying that experienced students will benefit from Howse’s book. New students would be better served by studying Strauss’s works before coming to Howse’s book because he requires the reader to bring a developed understanding of Strauss to appreciate fully what the book has to offer.

====

[1] I would like to thank Professor Howse for providing me with a review copy of his book. I appreciate his time and patience in answering a number of questions on the book. He has always been generous in providing a copy of Nathan Tarcov’s article the Preface to the Japanese translation of On Tyranny.

[2] I studied the Federalist Papers and Cicero with Prof Charles Kesler and I had a course on Thucydides with Professor James H. Nichols. Any mistakes or misunderstanding of Strauss and his work are mine.

[3] One can find that some students, given their immaturity would lack the requisite moderation and would often embrace Socrates’ view as expressed in Apology 31e1-32a3 see also 38a. It is not surprising that people would be a bit defensive, if not aggressive, if they were told the life they were leading was not worth living and it suggested that they were living a less than human life. This is particularly true in graduate school when students face these existential questions from their thesis committee. George Anastaplo explained it best. “A proper education should make one cautious in one’s uses of sources, moderate in the tone of one’s political and social advocacy, and anything but overbearing in one’s assessment of the less enlightened, keeping in mind that it is usually easier to attack than to defend.” https://anastaplo.wordpress.com/2011/12/14/in-re-allan-bloom-a-respectful-dissent-originally-posted-8052010/ (Accessed 15 February 2015)  See also Harry Neumann The Permanent War of Students and Teachers The Journal of General Education, Vol. 21, No. 4 (January 1970), pp. 271-279

[4] My thesis became this book America at the brink of Empire: Rusk, Kissinger and the Vietnam War. http://lsupress.org/books/detail/america-at-the-brink-of-empire/ (accessed 16 February 2015)

[5] Rosen, Stanley, Plato’s Statesman: Web of Politics, New Haven: Yale University Press, 1995. http://thegreatthinkers.org/plato/commentary/platos-statesman-web-of-politics/ (Accessed 16 February 2015)

[6] Harry Neumann’s only book is Liberalism (1991 Carolina Academic Press). http://www.amazon.co.uk/Liberalism-Harry-Neumann/dp/0890894558 It is a collection of essays and articles published over several years. However, it also reflects a turn in his career as his earlier works while exploring similar themes have more of an academic and less philosophical or political veneer.

[7] Professor Tom West has captured the encounter and its political philosophical implications in his essay here: http://www.vindicatingthefounders.com/author/jaffa_v_mansfield.pdf (accessed 16 February 2015)

[8] As Strauss writes in Thoughts on Machiavelli p. 295 “Machiavelli does not bring to light a single political phenomenon of any fundamental importance which was not fully known to the classics”

[9] The book’s focus on international law leaves the reader wondering about the law’s, as law, origin and whether that origin is consistent with international law that is a continuation of it or whether international law is a different species of law, with a different origin. Unless we understand what is meant by law and how that relates to international law, and its attendant caveats, we cannot understand fully what Strauss’ project means for it.

[10] We can propose an alternate view of Strauss’ career trajectory by these questions. His first book, on Spinoza, Spinoza’s Critique of Religion (1930) raises it (p.194) his book On Tyranny 1948 raises it again, we see it in City and Man we see it in his article On the Minos (1968) (Liberalism Ancient and Modern) One could even suggest that it is the implicit theme of The Argument and Action of Plato’s Laws.

[11] Seth Benardete Leo Strauss’s The City and Man The Political Science Reviewer 8 (1978): 1–20

[12] Strauss was much more of a midwife to their own souls than perhaps they realized. See Theaetetus 151b-c

[13] One could go so far, as we will see later in the chapter that covers On Tyranny, to argue that any force is illegitimate so politics that requires violence is only what occurs in the second best regimes. However, that does not lead to a regime that is stable or can survive against less scrupulous enemies.

[14] Hannah Arendt On Violence New York : Harcourt, Brace, Jovanovich, 1970.  see also  http://www.nybooks.com/articles/archives/1969/feb/27/a-special-supplement-reflections-on-violence/ (Accessed 21 February 2015)

[15] Howse does not explore why Strauss has to be defended. We are told it is because Strauss is held responsible for the Gulf War because of his influence on his students who, in turn, had some influence on American foreign policy. However, this is the public teaching. What remains uncertain is why Strauss needs to be defended about a covert teaching that many, if not most, do not articulate let alone understand, even if they have read Strauss. I am struck by this debate over Strauss in the sense that it ascribes a greater influence to Strauss and his students, who have trumpeted Strauss’s teaching, covert and overt, than either would believe. To put the point directly, Strauss is not responsible for Vietnam War, which is closer to what Howse argues about international law as Dean Rusk, and American foreign policy, consistently stressed the defence of international law and a decent world order based on the United Nations Organisation’s principles when it defended South Vietnam against North Vietnam’s aggression. Strauss is not held responsible for Nixon’s realpolitik nor for Carter’s “moralistic” foreign policy, nor for Reagan’s military build-up, active foreign policy, and rhetoric. For some reason, we find that Strauss is responsible for the second Gulf War, which was instigated after an attack on the United States, but is without any influence otherwise or in any policy or political domain. Finally, we have to accept that Strauss’s teachings, his intent, was transmitted and understood by the students of his students and they in turn found a way to turn these “esoteric” statements and intent into practical political action in the face of competing ideas proposed by equally ambitious, tenacious, and powerful actors in academia and Washington D.C. Moreover, it assumes that his students understand Strauss in a coherent and consistent manner. To put it directly, having to defend Strauss from his “critics” is like trying to explain a joke that is not understood. No amount of effort will succeed as the person does not have the requisite sense of humour.

[16] See Benardete The City and Man The Political Science Reviewer

[17] What is curious is that Rosen and Benardete wrote on Statesman but Strauss never published on it directly. His one extended discussion of the Statesman is in the chapter on Plato in History of Political Philosophy. I would argue that the Statesman is central to Howse’s thesis concerning Strauss but he does not explore the work within this context.

[18] Harry Neumann completed his PhD Dissertation in 1954 at University of Chicago The politics of atheism, an analysis of Nietzsche’s political philosophy.

[19] Howse is to be commended for his attempt to blend the unpublished lectures and transcript to provide an insight into Strauss’ work. However, his approach is marred by his criticism of Heinrich Meier in chapter 2, p. 28 fn 14 (“There is no evidence that Strauss ever intended this lecture to appear in print as a public study of, or confrontation with, Heidegger’s thought”). One has to ask why it is wrong for Meier to use this approach but it is ok for Howse. Again, this may be a small point but we need to consider this as reader.

[20] George Anastoplo commented in the following way. “Mr. Strauss, on the other hand, was legendary in his insistence upon the integrity of the texts he carefully prepared. He would have found congenial the injunction issued by a fastidious author to his publisher: “I write; you print.” . https://anastaplo.wordpress.com/2011/12/14/in-re-allan-bloom-a-respectful-dissent-originally-posted-8052010/ (accessed 16 February 2015)

[21] Heinrich Meier has noted that Strauss refused to identify himself as a philosopher. He preferred the term scholar. (See Meier Politico-Theologico problem). See also Alexander Duff’s article Stanley Rosen’s critique of Leo Strauss “At the heart of his most serious critique of Strauss, Rosen identifies this very paradox and makes it the source of his distorting punishment of Strauss. Strauss presents himself as a scholar, not as a philosopher.” The Review of Metaphysics March 2010 http://www.readperiodicals.com/201003/2018920521.html (accessed 16 February 2015)

[22] See for example, Chris Berger’s essay on Seth Benardete Seth Benardete: Finding the Argument in the Action http://www.udaimoniaonline.com/seth-benardete-finding-the-argument-in-the-action-by-chris-berger/ (accessed 5 January 2015)

[23] See Benardete City and Man review

[24] One can see a similar affinity between Strauss and Heidegger on philosophy and the possibility of philosophy, at least on the basis provided by Velkey. Heidegger, Strauss, and the premises of philosophy on original forgetting Richard L Velkley Chicago ; London : University of Chicago Press, 2011.

[25] Howse accepts this on p.31 “Strauss has some sympathy with the opposition of the German nihilists to the decline of virtue or moral standards in liberal modernity. “

[26] Reading Schmitt, especially as a student in a liberal democracy where such politics is rarely seen, it presents a rare opportunity to experience Nazi thinking directly. However shocking such a reading is it reminds us of the awareness that liberal democracy is not the only possible regime. If we assume that any critique of liberalism is problematic or that liberal democracy denotes the best regime simply, then political philosophy is at an end. For Neumann, such an approach would indicate how much we are teachers and not students, political and not philosophical. (Neumann Permanent War between Teachers and Students) SeeThe Permanent Crisis of Liberal Education Harry Neumann The Journal of Higher Education, Vol. 39, No. 2 (Feb., 1968), pp. 104-10

[27] I would not want to suggest that Voeglin and Strauss were in agreement or there was no difference between them as thinkers. However, what separates them is smaller than what separates Strauss and Heidegger or Strauss or Schmitt or Strauss and Kojeve.

[28] Velkey Premise of Philosophy Forgetting

[29] Howse overlooks this continued relationship. Strauss did not dissuade Laurence Berns from studying with Heidegger. He encouraged Bloom to study with Kojeve. As George Anastaplo explains: “Leo Strauss had, as a young man, studied with Martin Heidegger in Germany. Laurence Berns, upon preparing to go to Germany to improve his German language skills, informed Mr. Strauss that he planned to attend some Heidegger lectures. He was told in response that, of course, he could do so since Heidegger was one of the greatest thinkers of the Twentieth Century, but he was also told by Mr. Strauss that no self-respecting Jew would ever shake the hand of a scholar who had collaborated the way he had done with the Nazis.” https://anastaplo.wordpress.com/2011/09/27/laurence-berns-1928-2011-march-7-2011/ (accessed 21 February 2015)

[30] Harry Neumann Liberalism Carolina Academic Press 1991 See also Philosophers and Intellectuals: the Question of Academic Freedom Social Research Vol. 36, No. 4, Focus—Human Biology and the Social Sciences (Winter 1969), pp. 562-584

[31] Despite William Altman’s attempt to discover such an insight, it does not contain what NCP contains because it is written for a different purpose and a different audience.

[32] As others have remarked Strauss was always interested in God and politics.

[33] See Neumann Liberalism p. 92

[34] I have noticed that with many of the essays on Strauss they treat him abstractly. He is treated in the same way that he described how culture is treated within his essay on Jerusalem and Athens.

[35] I am relying on William Altman’s essay Leo Strauss on “German Nihilism”: Learning the Art of Writing Journal of the History of Ideas, Vol. 68, No. 4 (Oct., 2007), pp. 587-612 on German Nihilism as it is focused on the lecture and not  The German stranger : Leo Strauss and national socialism William H F Altman Lanham, Md. : Lexington Books, 2011. See also Susan Shell in “To Spare the Vanquished and Crush the Arrogant”: Leo Strauss’s Lecture on “German Nihilism” in The Cambridge Companion to Leo Strauss ed Steven B. Smith

[36]I would suggest that Strauss was responding to some extent to Heidegger’s 1940 Freiburg Lecture Course “Nietzsche: The Will to Power (II. European Nihilism) See Martin Heidegger Nietzsche Volume 4 ed by David Farrell Krell trans Frank A Capuzzi 1982 (p. v Editor’s Preface). Strauss focused on German Nihilism while Heidegger wrote about European Nihilism. We note as well that Heidegger begins by referring to Friedrich H. Jacobi as responsible for the first philosophical use of the word nihilism. (On Strauss’ relationship with Jacobi, readers may wish to consider Altman’s interesting analysis of Strauss’ relationship to him and Lesing in (Insert reference) Lastly, I would note that Heidegger’s lectures can be seen in three interconnected parts which do mirror the three parts of Strauss’ Nihilism lecture. Instead of overstating these intersections, I want to draw readers to the timing and the topics.

[37] I would suggest that his work to develop the idea of political philosophy stemmed from that event as Heidegger’s choice and behaviour had demonstrated philosophy’s political unreliability. Strauss would be acutely aware that if philosophy’s relationship with politics was considered suspect he, and others, would be in danger no matter what he professed simply because of previous associations. Moreover, the freedom to philosophise, in such an atmosphere would be severely compromised no matter how welcoming the society and one would not have to write esoterically to hide an unpleasant truth as one was simply writing to avoid any persecution. (See for example Neumann (article where he talks about putting Socrates to death and all societies facing a threat to their survival will not be tolerant of any threat, real or perceived, to that survival. We forget at our peril, and do a disservice to writers like Strauss, how dangerous the world appeared in 1940. One need only note the original introduction to Hannah Arendt’s The Origins of Totalitarianism when compared with subsequent introductions where the threat had passed.

[38] Strauss considered published writings as public statements. He did not consider lectures as having the same status or See On Tyranny p. 76 “Every written exposition is to a smaller or larger degree a public exposition.”

[39] Howse refers to Steve Smith who wrote that Strauss found his “voice” or his distinctive approach to writing in the years leading up to On Tyranny being published. See footnote 1 on p.51

[40] On Tyranny p. 27. We are reminded of the book’s epigraph, which is a quotation from Macaulay.

[41] Although I do not wish to go as far as William Altman who argues that Strauss’s lecture on German Nihilism is Strauss’s first attempt to display of exoteric teaching, I would suggest that the question needs to be considered. By 1948 Strauss was a US citizen and America was the strongest power on earth even if it did not fully realize that relative power. He chose a topic that seemed to be the farthest removed from American self-reflection as America dealt with the death of the Nazi Tyranny and confronted the Communist Tyranny. Moreover, we still face the question, indirectly raised by Altman, whether Strauss was writing in such a way to protect philosophy.

[42] George Grant suggests that Strauss and Kojeve have almost mutually exclusive views of philosophy, and what it means to think, which makes their discussion rare. (See Tyranny and Wisdom: A comment on the controversy between Leo Strauss and Alexandre Kojeve G. P. Grant Social Research, Vol. 31, No. 1 (Spring 1964), pp. 45-72)

[43] Neumann, p. 95 Liberalism.

[44] What Howse does not explore, although it is beyond the chapter and book’s scope, is whether Heidegger understood tyranny better than Strauss and Kojeve. Heidegger, one could say, enacted the Xenophon’s dialogue, as a philosopher trying to “talk” with a tyrant. Although many works on Heidegger have explored his “mistake” with the Nazis, I have not found any that have explored the idea of tyranny with a particular reference to Strauss’s work On Tyranny. Moreover, in light of Strauss’s lecture on German Nihilism, we have to consider whether Strauss was writing in regard to Heidegger’s philosophical tyranny. I would suggest that On Tyranny is more a warning about and reaction to Heidegger than is seen on the surface. In particular, if we consider that Persecution and the Art of Writing warns that esoteric writing is nearly impossible on p.25 “As a matter of fact, this literature [esoteric writing] would be impossible if the Socratic dictum that virtue is knowledge, and therefore that thoughtful men as such are trustworthy and not cruel, were entirely wrong.” One could suggest that Strauss, writing as an American citizen, initiated a political philosophical project to rescue or protect philosophy. In this view, I am influenced, to some extent, by Meier’s work Leo Strauss and the Theological-Political Problem

[45] By remaining on the surface, I mean that Howse does not, for example, explore how Cyrus was able to convert his tyranny into a valid title to rule. (See Strauss p.121 fn51). Thus, the question may not work for Greeks, but it seems possible for other people. If law and legitimacy are the key issue, then a deeper analysis would require to explore what is law and who determines legitimacy and where both find their source. In particular, we would need to explore what these mean for Xenophon or Socrates or Strauss. Howse does not distinguish these points even though Strauss does refer to them.

[46] As Robert Pippin explains in his review article, Kojeve’s praise of Stalin and the need for the bloody revolutions to bring the universal recognition to life, the need for dirty hands, seems naïve in light of what was done in the 30s—50s. (See p.151 of Being, Time, and Politics: The Strauss-Kojève Debate Robert B. Pippin History and Theory, Vol. 32, No. 2 (May, 1993), pp. 138-161).

[47] One could make the argument that Strauss does define tyranny and distinguish between the tyrannical and non-tyrannical ruler earlier in the text. In chapter 1 “The Problem” p.107fn3 where we see the first reference to the “tyrannical” teaching and why Socrates was considered to have taught it, which would indicate what Xenophon meant by a tyrant and tyranny. We see in Chapter 3 “The Setting” p.108fn6 where Strauss refers to a difference between kings and tyrants regarding pleasure-pain and virtue vice. Moreover, one could argue that throughout the footnotes leading up to the chapter “The Teaching Concerning Tyranny”, that Strauss has indicated something of that teaching especially regarding how Socrates behaved in situations where he had to speak about tyrants, which would indicate something about the claim in p.107fn3 regarding the claim he taught the “tyrannical” teaching see in particular p.109fn14.

[48] We can find a discussion of the tyrant as “lawless” from the manner in which he acquired his position and the manner in which he rules in fn7 p.119 (p.69) where Strauss draws upon Rousseau’s understanding of what the Greeks meant by tyrant “According to the Hiero, the tyrant is necessarily “lawless” not merely because of the manner in which he acquired his position, but above all because of the manner in which he rules; he follows his own will, which may be good or bad, and not any law”.

[49] We note on the issue of authority that non-tyrannical rulers appear to have an advantage overt tyrannical rulers. “It is hardly necessary to say that the tyrant’s refraining from openly taking responsibility for punitive action does not bespeak a particular mildness of this rule: Nontyrannical rulers take that responsibility without any concealment (fn18) because their authority, deriving from law, is secure.” p70

[50] See NRH p.84

[51] We have to consider that it is only a practical consequence, which suggests that the theoretical consequences may be different given we are discussing the difference between practical and theoretical teachings. The theoretical consequence of this axiom might suggest that without laws there may be freedom without the laws although the question is who has that freedom from not having laws. On the point of laws and freedom consider Nathan Tarcov’s “Preface to the Japanese Translation of On Tyranny,” Perspectives on Political Science 33, no. 4 (Fall 2004), pp 221-226.

[52] Xenophon says the law is what the community say it is. In the Minos we see, according to Strauss, it is both a process and an outcome as it attempts to reflect what really is.

[53] What is interesting to note, and something beyond the scope of this commentary, is the relationship of subject to citizen and fatherland(s) and citizens. Strauss makes reference to the relationship of citizens and fatherlands. See p. 96 On Tyranny.

[54] The use of the word sufficient reminds the reader that it is not necessary title to rule.

[55] Here we can see why Schmitt would have embraced the Fuhrer. He could not find a way to reconcile the competing claims within the community. The law did not exist in a way that would provide that authority based on what the community agreed. One could suggest that the nation was in a legal civil war. Unlike Great Britain that had recourse to the Royal Prerogative, or the United States that had an appeal to the Constitution, Weimar lacked a final authority or at least one that was willing and able to act. The Fuhrer promised it and when he arrived, he delivered it with devastating consequences.

[56] See Strauss On Tyranny p. 87

 

 

 

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Understanding Rupert Murdoch and the establishment

English: Rupert Murdoch at the Vanity Fair par...

English: Rupert Murdoch at the Vanity Fair party celebrating the 10th anniversary of the Tribeca Film Festival. (Photo credit: Wikipedia)

What is lost in the furore around Rupert Murdoch is that he is not part of the British Establishment.[1] Despite the fact that he is an elite, he is not part of the establishment. His news organisation has a large role in the public establishment and UK politics; it has been mainly with the public face of the establishment (the police, and politicians) and only occasionally the less public face (the Royal family and courtiers, the Inns and Guilds, and landowners).[2] He is an outsider to the establishment and he has treated its laws and customs as an outsider. As some commentators have noted, he has approached the public interest and the regime’s laws as if they did not apply or only applied if they fit his interests.[3] Such an attitude reflects the way that power responds to law.[4] In some areas, he has acted through his media empire as if he was above the law and his employees have modelled that behaviour.[5] For the most part, the public establishment has tolerated him as long as he fit within the public establishment’s interests broadly understood. They needed him and his news organisation to manage public opinion in the same way that they needed the police to manage public order.[6] Instead of using the public interest to serve the public against the establishment, he has policed the public domain for the establishment. Without an ability to influence public opinion, democratic governments find it difficult to govern. At a tactical level, the police, who have a role in maintaining public order, have found his papers useful for their purposes even if the papers have exploited that relationship.[7]

Murdoch serves a role for the public establishment

One must always remember that he has done business successfully and comfortably with the political party in power. He has served the Labour party and the Conservative party. To that extent, he is content to serve power so long as that relationship is reciprocated. The political parties have paid a high price, but one that they willingly paid and continue to pay. What we rarely hear is how much the political parties have used his services and benefitted from them. When the Murdoch papers savaged political enemies, even internal political opponents, the ruling party has not complained.[8] In this, his news organisations act like democratic gauleiters who enforce public order within the political community.[9] The political parties have accepted this as the way politics is conducted. They did not invent the rules. They are content to play by them rather than try to change them.[10] However, like reverse gamblers who discuss their losings rather than their winnings, the public face of the establishment has been keen to emphasize the negative side of their relationship. They have used other media outlets to paint Murdoch as a nefarious figure. They attack him because it serves their purposes even though they continue to court his services. If they cannot court his services then the service of other media barons’ outlets, who may not charge as high of price, will be courted even if they lack the coverage.[11] However, Murdoch does deserve some of the negative publicity given the way he and his news organisations have behaved. Despite this negativity, Murdoch has been true to himself and his “brand”. What you see is what you get. He trades in gossip and is willing to use that gossip to betray friends and confidences as long as it serves his purposes and makes money.

Who is he though?

Murdoch as the public see him is a promethean character ready and willing to adapt to what the political situation requires. He has changed religion as needed. He has changed his support to the political party that best serves his interests. He has changed citizenship to serve his business interests. He appears to have changed wives to suit his personal interests.

A life in the wilderness, who would choose to live this way?

We can only sketch the issue, but on the surface, it is clear Mr Murdoch lives within a wilderness of mirrors, as he has no one he can publicly trust absolutely. His business relies on gossip, betrayal and a mercantile ethos. Yet, he has been betrayed. Even though there is no physical evidence that his wife consummated her infatuation with ex-Prime Minister Tony Blair, the appearance of that relationship was enough to justify a divorce. Someone who he came to see as a friend betrayed him. If we leave aside the gossip and innuendo, the incident reveals the way Murdoch’s personal life intersects with his business. Neither he, nor we, should be surprised. His business ethos, a reflection of his personal ethos, is driven by the ability to exploit confidences to further his business interests. Murdoch has devoted his life to his company and it is inextricably linked to him. In many ways, his company is part of his extended family.[12] His children are in key managerial roles. In some cases, it would appear that his familial relationships are based on commercial interest.

The corporation as a city suggests this story is timeless

One would have to look to history to find a comparable life. The model that comes to mind is the tyrants of ancient Greece. These were men who ruled a city for their own benefit. The city served them and their interests. Xenophon’s Hiero provides a starting point for understanding him. Like Hiero he has to keep a bodyguard at all times and cannot enjoy the pleasures of a private man. His power comes at the price of safety. He lives without friends and is constantly on guard against those who would undermine him. He cannot go to public events without facing public criticism and his relationships are based on fear and self-interest and not love and self-sacrifice.[13]

Who gains the least is not always who complains the most.

To be sure, in many cases, the exchange between the media and the public face of the establishment is consensual at the start and the claim of betrayal only comes later. The claim is either as a device to create plausible deniability or simply because the deal has gone bad. In this sense, we have to consider whether such claims are for effect or to spare the “injured” party’s modesty. The corporation as a regime may reflect more than we wish to consider.[14] As we know, hypocrisy is the homage that vice pays to virtue. Politicians who claim he has betrayed them find it convenient to forget that they sought something from the relationship with him or his organisation.[15]

What is his relationship with the establishment in the UK?

The relationship benefits both parties; however, it is based on a contractual ethos not of mutual interest. One example is the way the government has been able to keep the story of the paedophile who worked for the Prime Minister on a low key. They decided when and how the story would be published.[16] Even though the story was published, it received less attention from the newspapers. Such an approach shows the way in which information can be used for political and institutional advantage. Leveson showed how Rebekah Brooks, following Murdoch’s lead, would promise to not to publish stories to gain influence with the story’s target. What remains though is the ever-present ability to publish the story in the future. To put it mildly, this amounts to blackmail. In this way, a media organisation retains influence over those that it “serves”. In turn, the targets often agree to work for the company and the relationship is cemented.[17]

The public face of the establishment only masks the establishment.

All of the above is only the public face of the establishment. Behind the public face of the establishment are the less well-known parts. In particular, there are the inns and guilds that form the feudal core of the establishment. The Royal Family and its courtiers cut across both parts, but for the most part, it is part of the establishment’s private face. We can see this in the way that the private secretary came to the phone hacking trial. (See footnote 4) The exchange shows that the establishment is treated differently before the law than those subject to Parliament and parliament’s laws. The ancient fault lines emerge in such an exchange. The wider picture of the establishment needs to be understood as phone hacking was not simply the Guardian vs News Corp as it gets to the heart of the British regime. The issue reflects, and reveals, deeper fault lines as well as the alliances at work in the political parties and across the wider political establishment. In many ways, this is what politics is: A network of relationships and obligations that are used to make decisions for the public good.

There are unwritten rules that even the press cannot break without consequence

Where Murdoch overstepped was in two related areas that showed how far he and his corporation had abused the public interest for profit. The first was the extent his reporters pursued stories deep into the Royal family. Once the Royal family’s security was compromised, the issue changed from being in the public interst to threatening it. Murdoch’s reporters forgot that the UK might have a democratic political system but it remains a monarchy. Had the stories remained on the surface or gained through traditional methods, convincing or facilitating someone to betray a confidence, then he might have retained his status. The Royal family’s security is *the* public interest as it is her government and her country. They violated the unwritten rule by threatening the private establishment. However, it was the second factor that proved the paper’s undoing. When the paper hacked a dead girl’s phone, the abuse of the public interest undermined the democratic façade that their work benefits the public. The public, in whose name they nominally worked, turned against them. The consequences from that event, which raised the profile of the associated illegal behaviour, led to the News of the World’s closure. His organisations could no longer play the private and the public face of the establishment and the public off each other.

The public interest seems to serve the public as a second hand good

In that moment, we see the façade begin to crumble. What the tabloids, in particular News of the World and the Sun, but all newspapers, claimed to do in the public interest was revealed their personal or organisational interest. They had been caught in a lie. They had used the public interest, the public voice, the best interests of the public for which they were granted great licence to hold the powerful to account and safeguard the public, at least in theory, to abuse and exploit the public. The newspapers were pimping the public interest to justify illegal acts. They used it to abuse, intimidate, bully, harass, and destroy people for their own ends not because it served the public interest. What made the lie apparent for all to see was the Leveson Inquiry. There, the public saw with its own eyes and heard with its own ears the truth that the proprietors knew exactly what was being done because the rules they set down for their organisations were the same rules they lived and worked by. They made the rotten barrels that created the rotten apples, the so-called “rogue” employees.

Conclusion: A new establishment emerging?

What we may be seeing is the relationship between Murdoch and the establishment, in any country, slowly but surely being re-examined. Social media is challenging his pre-eminence and influence.[18] Even though his empire commands great respect and retains great influence, it has begun to wane rather than wax. One could suggest that its political influence will not survive his death, which will suggest, perhaps more than anything else, the hollowness of its achievements. Like Hiero, though, he still has the opportunity to change and choose a different path.

 

[1] Even though Owen Jones has suggested a definition of the Establishment in his book The Establishment: And how they get away with it (Penguin 2014) it seems to miss or overlook the role of the monarchy in setting and creating the context for the establishment. My understanding of the establishment is based on the political regime and its source of legitimacy. The Crown is the source of legitimacy, which is why the focus has to be on those public institutions that swear allegiance to the Crown. The press, as yet, do not swear an oath of obedience to the crown. However, their “independence” is filtered by the relationship of their proprietors with the Establishment.

[2] We can see the continuing feudal institutions in the financial sector as exemplified in the City of London. See http://www.the-american-interest.com/2014/03/19/the-much-too-special-relationship/ (accessed 14 February 2015) and http://www.theguardian.com/commentisfree/2011/oct/31/corporation-london-city-medieval (accessed 14 February 2015).

[3] One could argue, as Harold Evans does, that Rupert Murdoch breaks promises and does not obey the laws he finds inconvenient. To do this, he persuades those who enforce the laws not to enforce them. http://www.independent.co.uk/arts-entertainment/the-king-of-broken-promises-rupert-murdoch-1425246.html (accessed 15 February 2015).

[4] Compare the way Sir Michael Peat, Private Secretary to Prince Charles from 2002 to 2012 responded to questions at the phone hacking trial.

“Justice Saunders tried to placate him: “Your evidence is relevant to this case,” he told Peat. “However much you were nagged by the police, we would be grateful if you would spend a few minutes of your time to answer questions.” But Peat wasn’t having it. He said he’d be the judge of what he would answer: “As long as I feel it is relevant,” he said.”

It was one of the rare moments the hacking trial judge showed the steel beneath the charm, a flash of the ceremonial sword on the wall, usually obscured by his silk robes. “It is not your decision if it is relevant or not,” Justice Saunders said: “It is not your decision. It is my decision – because I am the judge in this court. Let’s have the jury back in….”

As the jury returned, Justice Saunders explained the reason for the hiatus: “We have done our utmost not to require people to answer questions about their personal life. Sir Michael does not want to answer the question. We will carry on without the question being asked.” He indicated the Crown barrister should continue. Bryant-Heron said flatly: “I have no further questions. Thank you my lord,” and sat down.” See Peter Jukes Beyond Contempt p101-102).

What we never find out is whether he answered the question and obeyed the law. The judge may have reminded Sir Michael of the law, but it does not appear he was able to make him obey it. Moreover, the QC did not follow up with any questions. One wonders if any other witnesses would be allowed to act as imperiously before the court. Then again, the Judge swears an oath of obedience to the Crown not to the law or to the people. If the Crown’s representative can display such contempt of the rule of law one should not be surprised that Rupert Murdoch would display similar contempt to the rule of law when it does not serve his business or personal interests.

[5] See Dial M for Murdoch by Watson and Hickman p.176. We see how News of the World simply refused to cooperate with the police or respect their lawful power. They intimidated and harassed the police officers, who were upholding the law and acting lawfully, to keep them from seizing evidence pursuant a police investigation of an alleged crime. The lack of cooperation became so endemic that the officer in charge of the investigation had a summit with the News International NI (the owners of News of the World) officials to define what was meant by full cooperation. One wonders if they have similar meetings during investigations into other crimes when they ask people they are investigating for an alleged crime to meet with them so they will cooperate with them.

[6] Consider that the police provide a public order function that is slowly being reduced. The modern police emerged from an era when security and public order were provided by a powerful person’s retainers and security arrangements. Today, with the increase in private security firms and segregated or gated communities this seems to be returning. On this point, consider the following article. http://blogs.lse.ac.uk/politicsandpolicy/the-coalition-and-the-constabulary/ (accessed 15 February 2015)

[7] The Panorama programme on the Fake Sheik illustrates this point. The News of the World exploited, and exploited is the only word, its relationship with the police. http://www.bbc.co.uk/iplayer/episode/b04p1zlb/panorama-the-fake-sheikh-exposed (accessed 15 February 2015)

[8] Savaged is not too strong of word as the common parlance is the effect is to be “monstered”. http://www.theguardian.com/media/2013/oct/17/leveson-inquiry-robert-jay-press (accessed 15 February 2015)

[9] The media can pursue any individual in the public domain because once they enter the public domain they stop being ordinary individuals. In this strange way the public interest is used by the press to patrol the public domain for the establishment’s interests and not the public’s interest for what ordinary individual, the public, would enter the public domain under such potential scrutiny? Moreover, it raises the real but philosophical point whether the public domain is simply an extension of the Crown rather than the public. https://lawrenceserewicz.wordpress.com/2012/09/11/has-the-uk-medias-abuse-of-the-public-interest-stifled-democracy/ (accessed 15 February 2015)

[10] It is difficult to change the rules because they are intrinsic to the political system. To change them would be to confront the system’s enforcer, the press, who benefits from the relationship and most importantly the ruling party, their own leadership, who benefit as well. Thus, there would need to be two distinct, although interrelated, battles to be won to begin to change the rules. Even then, the rules may only be redrawn or reformed rather than changed. One only need to note how well the ruling coalition, and even Parliament, have succeeded in watering down the Leveson recommendations *even though* they have professed support to the end goal: reform the press.

[11] What is less well understood is how the social media domain is being managed in this way as Murdoch’s empire has been less successful in this way. One could argue that such work is contracted out that work as niche media sites like Guido Fawkes and other mercenaries who offer such services. (On the role of mercenaries as needed by a tyrant consider Xenophon On Tyranny 8.9)

[12] See Neil Chenoweth on this point. http://origin-www.brw.com.au/p/rupert_murdoch_what_happens_after_DxNaOnXWFksn8pGASKg3dM (accessed 14 February 2015)

[13] For an interesting study of Xenophon’s Hiero consider Leo Strauss’ On Tyranny Corrected and Expanded Edition (2013 University of Chicago Press)

[14] See Xenophon Memorabilia IV.4.13 See also Thucydides History of the Peloponnesian War 5.105.2

[15]See for example this article which shows how each party has courted Murdoch and relied on him for their own purpose even though they know it can be used against them. http://www.themonthly.com.au/issue/2013/november/1383224400/robert-manne/why-rupert-murdoch-can-t-be-stopped (Accessed 15 February 2015)

[16] See for example the arrest of Patrick Rock and the way the story was not reported for three weeks. One wonders if that was in the public interest and who defines the public interest in such a story. http://www.itv.com/news/story/2014-03-03/number-10-aide-arrested-child-abuse-images-offence/ (Accessed 15 February 2015)

[17] One can see the logic to these relationships. If one is going to be exploited one might as well be paid well for it. They may be prostitutes but they are highly paid prostitutes. The difference though is that they are not prostitutes by necessity.

[18] Consider the way in which social media exploits and exacerbates the fractures within the public face of the establishment as a result of Leveson Inquiry and Plebgate. https://mediameditations.wordpress.com/2014/08/11/the-new-establishment-leveson-hacking-and-the-public-voice/ (Accessed 15 February 2014)

Posted in censorship, corruption, philosophy, public opinion | Tagged , , , , , , , ,

Blinding the Leviathan: the surveillance state and freedom

Surveillance cameras in Singapore

Surveillance cameras in Singapore (Photo credit: Wikipedia)

Governments use surveillance to keep their citizens safe and protect the regime. In that work, the government has to intrude into the lives of its citizens mainly in the public domain, in the pursuit of public order and safety, and occasionally in their private domain, in the course of national security. It is in the latter, that citizens have the greatest fear. They fear that the state’s national security driven digital surveillance will limit their personal autonomy or freedom in the digital domain. The citizens wants to treat the digital domain and their activity there as a private domain. The main concern is that when government agencies monitor the web for breaches of the law or for threats against national security, it has overreacted. The government has exceeded its authority as provided by the citizen’s consent. In other words, the social contract in which the citizen consents to the legitimate laws and the government protects the citizens and the common good when it enforces those laws has been skewed. The citizen believes the state is too intrusive in proportion to the threats it faces because it constrains the citizen.

Is the encrypted individual trapped in a digital cocoon?

In response to the threat from the apparent imbalance in the digital domain, citizens and corporations use encryption. The citizen encrypts their files and communications to protect their digital autonomy. With encryption, the citizen can create a private space that a government or corporation cannot penetrate easily. If the government or the corporation want to overcome the encryption, they have to justify it. Although national security may constrain the citizen’s legal ability to limit the government’s power to monitor them or overcome their encryption, the government is still subject to the rule of law. In a liberal democracy, even national security has to be justified in some way before the law and the community. However, the encrypted individual or the encrypted communication challenges the government’s authority and the primacy of the law within the social contract. The individual acts directly against the government to hold them to account rather than relying on their representatives, the political process, or the legal process. In the past, the individual would have to seek legal redress or political redress against surveillance. In domestic politics, the government justified its authority and its sovereignty through the rule of law, which reflects its legitimate political authority. The government acted to support the law and national security and it was only in the legal or political domain where the citizen could seek redress. In the digital domain, the individual can act directly. They can limit the government’s power by their individual use of encryption.

Outside the state, outside the rule of law?

Outside the state’s territorial boundary, the limit of its sovereignty, the government does not rely on the rule of law in the same way. In the international arena, a government cannot appeal to agreed or accepted standard to determine whether their behaviour is just. The community has a limited say in how the state behaves on its behalf. The digital domain cuts across domestic and international and this is why encryption proves problematic for the government.

Sovereignty in the digital domain: individual or state?

In political terms, the digital domain makes it difficult for a government to exercise its sovereignty or authority effectively or proportionately. In the digital domain, the state’s ability to differentiate between friend and enemy is blurred in a way that it is not in the physical domain. In the digital domain, the encrypted user can appear to be a friend or an enemy and the government has to make greater efforts to authenticate them. Previously, in the physical domain, the difference between friend and enemy was clear. Moreover, the government’s ability to distinguish friend from enemy allowed it to act proportionately in the domestic political domain. For example, the government does not call out the army to deal with a burglary. By contrast, in the external realm, where threats can be catastrophic, the government has to take a relatively disproportionate response. For example, if a plane does not obey the legal commands of an air traffic controller, the government will send up military aircraft to intercept it. Until the threat can be assessed and the government can differentiate between friend and enemy, the government will have to take a disproportionate response. The line between the domestic realm, which is considered peaceful, and the external realm, which is considered dangerous and full of threats, is the limit of sovereignty. In other words, sovereignty is what a government exercises when it distinguishes friend from enemy. As the digital domain transcends sovereignty or the domestic or foreign distinction, it presents a particular challenge to the government. Sovereignty is a central tenet of the modern social contract that began with Hobbes, however, the digital domain challenges that sovereignty.  In particular, the social contract, through Hobbes suggested that men would combine to create a commonwealth in which the sovereign, the Leviathan, would distinguish friend from enemy. The sovereign would take on that role to create a space of peace, inside the state, and protect its members from external threats. The individual would not have to worry about distinguishing between friend and enemy as the sovereign did that on their behalf.

When the law is blind, are you free?

I argue that encryption undermines liberalism. The state cannot enforce rights and sustain equality unless it can stop those who want to live beyond the reach of the law. As the law requires surveillance and encryption hinders that surveillance, the rule of law is weakened. The leviathan is blinded.

Posted in Government, surveillance, Uncategorized | Tagged , , , , , , ,

January Break

Dear Subscribers,

I hope you had an excellent 2014 and I wish you a wonderful 2015. I am letting you know that I am taking a break from blogging until February. I have been writing three blogs over the past year and I wanted to pause and recharge. I thank you for reading the blog over the past year and I hope you will continue to follow it.

Look for future posts in February.

See you then.

All the best,

Lawrence

Posted in Uncategorized