Category: Rule of Law

The Rule of Law and Bentham’s Panopticon

Modern politicians, and – if polling is to be believed – modern electorates are preoccupied with law and order. Policing, rural crime, safety on our streets are issues of grave concern to the politicians promising more and more cops, and deliverance from threats to safety and security. At the same time, spending is being reduced, and outcomes are deteriorating in visible ways through reduced sentences, and lower conviction rates. The rule of law appears to be weaker.

In all liberal democratic countries today, rules-based systems for management, scoring and budgeting are proliferating, where algorithms score performance of social functions – like policing – and allocate resources accordingly. Tolerance thresholds are tested to assess the point at which people will reject austerity and cuts, addressing popular reactions with localised and targeted investment. The approach results in a minimum viable level approach to policing.

These rules-based systems are doing something else too. They are scoring the individual, designing incentives programs for job performance, promotion and preferment. The functions and objectives of individual policemen are quantified and reported upon in a thoroughly transparent and often subjectively oppressive way.

Rules-based systems – algorithmically implemented or not – have a performative impact on the service being delivered. Good behaviour is often not recognised within the system, and poor behaviour is sometimes rewarded. While on the one hand, resource distribution in an area might be statistically equitable, officer performance may be optimal, and crime rates may be acceptable, people may perceive there to be a breakdown of law and order. They may detect that the incentives for crime are higher – that there’s less chance of getting caught; that even if you do get caught, you’re not likely to be convicted; that you’ll be out on bail in twenty-four hours and not likely to see a judge for a year or more; that even if you do get convicted, you’ll only serve half your time.

The rule of law is based on two elements, one prescriptive and one invisible. The prescription is the law-book itself: things that are illegal, rules for discipline and punishment, and a court, prosecution and enforcement bureaucracy. The invisible element of the rule of law is the complicit populous, a people who agree with the system, who participate in the system, and who are a part of that system. This needs officials – police officers – who are focused on reinforcing the rule of law, and not just enforcing the law. That is the shift that liberal democracies are making, and the absence of rule of law reinforcement appears to be undermining the rule of law itself.

Of course, this is happening while the actual enforcement of the law is becoming ever more efficient. Fewer cops are needed, fewer stations, fewer prisons. At the same time – the algorithms and the statistics tell us – we are becoming safer, because the crime rates are falling. Every quarter police agencies all over the world release crime statistics showing how things continue to get better; and yet, too often it simply doesn’t seem that way at all.

Jeremy Betham’s idea for the panopticon – a prison design formed in a circle, with an elevated platform in the center from which every cell was visible – has often been referred to in the recent debates on privacy and surveillance. A key element of Bentham’s idea however is that the prison population becomes compliant, as it is always possible that any one of the prisoners is being observed. The rule of law is not merely about the enforcement of law; it is about the willing compliance of the lay population in its enforcement.

In a fascinating paper last year, Bayamlıoğlu and Leenes outlined three areas of concern in the rule of law under the auspices of data-driven decision making: law as a normative enterprise, law as a causative enterprise and law as a moral enterprise. Recognising these three, and acknowledging the poverty of algorithmic decision making in the execution of policing as competent to reinforce the rule of law, how far should we go? A rules-based approach is bound to fail; we need to redesign how we do policing.

Deus Ex Machina: Schmitt’s Political Theology

The concept of political theology describes the theological genealogy of political legitimacy, the validation or justification of power over others in the equitable establishment of order, and the protection of freedom. As an idea, it is associated with Carl Schmitt, one of what Yvonne Stewart called ‘Hitler’s Philosophers’, an intellectual inheritance tainted by his association with and support for the Nazi party. Nevertheless, as an abstract concept, political theology helps us to deconstruct the nature of power, and trace its origins in legitimacy and the development of political order. Because as we have seen technology embeds politics, particularly and more aggressively as automation and AI proliferate, it has become important to consider whether technology itself has some divine provenance in its human construction.

While Schmitt was immediately despondent, and wrote on the night of Hitler’s accession to power in 1933 ‘[i]t is a terribly cold night’, in the words of Stewart ‘[h]e relegated democracy to a burnt memory, and, like a dark phoenix from the ashes, he allowed tyranny to rise: authoritative, powerful and legitimate.’ (p. 103) It is impossible to detach his legacy from Nazi Germany, and it is necessary to read his work carefully in anticipation of the ideology that it would ultimately support. In the 1934 version of his Political Theology, for example, a work with which this post is substantially concerned, he quotes Emmanuel Sieyès, saying ‘The people are always virtuous. In whatever manner a nation expresses its wishes, it is enough that it wishes; all forms are good but its will is always the supreme law.’ (p. 48) Still, there are sufficient constructions in the work that allow us to consider a coherent, structured theological etymology or structure for politics and the political.

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Sports: Politics by Other Means

Kim Jong Un
Kim Jong-Un has suggested that a North Korean delegation participate in the Winter Olympics in South Korea, heralding a potential thaw in relations. Photograph: Jung Yeon-Je/AFP/Getty Images

Carl von Clausewitz, a Prussian military strategist who lived through the French Revolution, wrote in his unfinished book On War that ‘war is the continuation of politics by other means’. It is of course something of a trite aphorism, and hides a considerable amount of theory and philosophy. Yet as with all good aphorisms, it reveals something important: in this case, that the seeming differences between politics and war are not so significant as we had thought. Politics is about two sides negotiating the distribution of resources, sometimes along ideological lines, sometimes along economic lines; war is not all that different, save insofar as the rule of law is suspended, such as it may have existed before the outbreak of hostilities. Increasingly, we see sporting theatre being usurped for the purposes of political metaphor. The symbolism, and the language, is a kind of double speak that would be shocking in any other context, and useful for democracies, who don’t tend to actually fight each otherContinue reading “Sports: Politics by Other Means”

Neonihilism and the Failure of Liberalism

Do the disaffected know what they want? Agency is one thing: leadership and direction is another.
Do the disaffected know what they want? Agency is one thing: leadership and direction is another.

Ross Douthat in today’s New York Times declares our time a crisis for liberalism, the left having ‘lost its way’, in the aftermath of the election of Donald Trump. It’s been a popular theme. In 1969, Ted Lowi declared the end of liberalism, in favour of interest group liberalism, in part a kind of elaboration on Eisenhower’s theme of the military-industrial complex. The liberalism of which we speak has long been defined in terms of economics and economic goods, how the distribution of resources and the freedom that comes with fair access to those resources, can allow mankind to flourish. Friedman’s classic Capitalism and Freedom from 1962 defined the concept, which was ultimately routed in eighteenth century enlightenment thinking, and in particular the French Revolution. Its progression through International Law and the Universal Declaration of Human Rights in the twentieth century brought at its end an essential global consensus: Liberal Democracy was it. This was the end of history. Continue reading “Neonihilism and the Failure of Liberalism”

Trump/Brexit: Popular Legitimacy and the Rule of Law

Morten Morland's cartoon from The Times, November 4th.
Morten Morland‘s cartoon from The Times, November 4th.

The New York Times ran an editorial yesterday on what it called ‘a coup’ against the Supreme Court. The death of Antonin Scalia earlier this year, and the Republican Party’s refusal to entertain a replacement has rendered the previously nine, now eight judge court unable to resolve some important cases, split evenly as they are between four generally liberal and four generally conservative justices. The GOP Presidential Nominee, Donald Trump, has recklessly attacked other institutions in his scorched earth strategy that followed his poor showing at the debates, including the Military, the FBI, the President, the Federal Reserve, and the Media. Early on in the campaign, he attacked a judge who ruled against him, claiming the judge was biased because he was Mexican-American. He has threatened to jail his opponent if he wins, he has consistently attacked and undermined the electoral process itself, and encouraged voter suppression.  Every pillar of democracy in America has been weakened by Mr Trump’s candidacy whether he wins or not, and people love him for it.

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The Political Philosophy of The Blockchain

blockchain-image
The blockchain is a computerised public ledger that assures contracts and other transactions. It could save us all!

Property, and – as philosophers might refer to it – the claim to possession and ownership of externalities, has long been a source of some disquiet. Jean Jacques Rousseau in the Second Discourse (The Discourse on Inequality) begins the second part with the dramatic opening line ‘[t]he first man who, having enclosed a piece of ground, bethought himself of saying This is mine, and found people simple enough to believe him, was the real founder of civil society.’ Plato before him and Marx later both advocated collectivisation, but Rousseau was no communist. The reality of what man had become made such reconstruction impractical. Yet the concept of property has led to inequalities that threaten capitalist society. Slavoj Zizek suggested that ‘…today’s global capitalism [may] contain antagonisms which are sufficiently strong to prevent its indefinite reproduction…’ including what he called ‘…the inappropriateness of private property…‘ especially intellectual property. Rousseau’s prescription was The Social Contract, and the abstraction of the General Will, an investiture of political legitimacy in the sovereign.

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The Idea of France

Delacroix's <i>Liberty Leading the People</i>
Delacroix’ Liberty Leading the People. She – Liberty – is so much more than the country: she is the ideal and the aspiration, the unadulterated guiding principle. Her path remains clear; but have the people stopped following her?

As Francois Hollande transitions from the bureaucratic administrator of the Fifth French Republic to a wartime leader in the latest instalment of the rolling war on terror, decisions are being made about France. The latest pronouncements – from overbearing surveillance measures introduced in the Summer in the aftermath of the Charlie Hebdo killings, to the most recent introduction of a three month state of emergency in order to deal with the Paris attacks – diminish democratic governance and accountability, in the short-sighted interests of expediency and national security. But this disaffected progression is not new; perhaps the January and November attacks were more overtly offensive than before, and appear more obvious inflection points, but we must go back ten years to the riots of 2005 to try and understand what is happening. Furthermore, the decisions being made today are not merely reflective of missteps taken in the past, but instructive as to the kind of France that is emerging for the future. And for France, we can read Europe, and Western Liberalism.

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