One of the most influential ideas of the modern era is that of the social contract, an idea meant to convey the notion that all citizens, irrespective of race, sex, religion, or socio-economic standing, has the same basic rights and liberties under a shared political constitution, rights and liberties that are protected and enforced by the State and its agents. It is often taken for granted that a State-based constitution will suffice to protect citizens against unjust power and domination. But it is frequently forgotten that the State itself may become a source of unjust domination, and may even trample on rival associations’ reasonable autonomy in the exercise of its own constitutional prerogatives.
Standard liberal theories of the State bring into the foreground the relation of equality between citizens under a shared political constitution; but tend to put in second place other social bonds and loyalties that may rival the citizen’s duties toward the State, e.g. membership in a church, or university, or school, or neighbourhood, or municipality.
Modern theories of the State conceive the State as an institution privileged with a monopoly over the legitimate means of coercive force, so that it can effectively interpret and protect individual rights, and protect citizens against domination by bad actors. But what if the “bad actor” is the State itself? Historically, one of the ways totalitarian governments reach their tentacles into society is by neutralising the prerogatives and rights of associations that could potentially rival their power or push back against their edicts.
For example, Communist China introduced a veto over clerical appointments in the “official” Catholic Church of China; the Nazi government did all it could with its “Hitler Youth” movement to ensure that youth associations were loyal to the Führer and could provide no meaningful resistance to the policies of national socialism. Similarly, Mussolini’s fascist Italy had an elaborate network of community organisations integrated into the civil religion of Italian nationalism, to ensure “national unity” and loyalty to national causes. Many governments either nationalise the media system under State patronage, or provide State funding to media organs (Spain is one example of many), to solidify journalists’ loyalty to their policies.
Do attempts by the State to penetrate and co-opt the life of groups and associations within its midst directly violate citizens’ rights? If citizens are forced to accept State patronage and control, one could argue that the individual right to associate is undermined by these sorts of policies.
However, if State-appointed judges interpret the authority of the State expansively, individual rights like freedom of religion and association may not offer a sufficient bulwark against State domination. Civil liberties have certainly been set aside with alarming frequency during this pandemic, and all too often, judges have validated such abuses on very questionable public health grounds.1
Furthermore, the State’s economic influence should not be underestimated. National government’s frequently exercise a near monopoly over public finances and public debt. They may use their financial clout to buy off associations such as media organs, businesses, universities, and trade associations with “grants” and patronage schemes that do not violate anyone’s constitutional rights in any obvious way.
The only effective way to protect against State domination over the life of society is to disperse political and financial power as widely as is practicable within a highly federated or decentralised political scheme that extends robust corporate rights and prerogatives to groups that exist within the jurisdiction of the national State, including local and municipal governments, churches, hospitals, care homes, businesses, and healthcare providers.
The presumption that agents of the State should have the right to systematically override the autonomy and decisions of municipal and regional governments, hospitals, care homes, businesses, and churches in their day-to-day life or in their management of risk during a public crisis needs to be critically reappraised, in light of the events of the past two years.
Arguably, oppressive and manifestly harmful misuses of power by associations operating within the jurisdiction of the State may require remedial action or top-down interventions. However, the strong presumption in favour of unilateral State control over territorial and non-territorial actors operating within its jurisdiction has led to catastrophic and ill-advised decisions being replicated across the whole social fabric at the behest of government ministers.
Misconceived policies have been imposed willy-nilly from the top down, including population-wide home quarantines, the prolonged suspension of education, the indefinite closure of businesses, State-sponsored medical apartheid, and the heavy-handed use of police to suppress political protests across the world.
It is small consolation to the victims of these policies that their advocates claim to have acted in the public interest. To see your health decline irremediably, lose your lifelong business, or see your education set back by a year is not likely to be rendered much more palatable because the instigator of this chaos “meant well.”
These experiences are vivid reminders of two facts: first, that States can make catastrophic errors of judgment and use their powers in reckless and destructive ways, especially when they can use the pretext of an event defined as a “public emergency” to invoke their emergency powers and evade political accountability; and second, that individual and group actors within the reach of State power need effective legal and political mechanisms for pushing back against national policies that are very risky or harmful to health and well-being.
Until this happens, no constitution, written or unwritten, can protect us against State domination.
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Recorded Lecture on Social Complexity Now Available Online
Finally, in case you’d like to see “under the hood,” and get a glimpse into the theory of social order powering my social commentary, you can listen to an academic lecture I gave on Thursday, 10th February 2022 to the Justus Lipsius student association at the University of Leiden’s Law School in Leiden, Netherlands, on the topic, “How Social Complexity Supports Human Flourishing.”
This talk may be of special interest to those who want to understand the deeper philosophical roots of social and institutional pluralism and its importance for a well-ordered society.
A good example is the judicial approval by the Supreme Court of Navarra (one of Spain’s autonomous regions) of vaccine passport schemes for the hospitality sector, in spite of their manifest violation of citizens’ equal public standing, right to medical privacy, and right to non-discrimination, and the dearth of evidence for their efficacy at reducing viral transmission.
All of this is well said and timely. The same is true of another recent post in which you argued that the battle has only just begun. It’s not just a matter of ending the restrictions, but of rolling back the illegitimate power grab that has occurred in the name of the pandemic. I really hope we will succeed in that too.