31 March 2020

After the pandemic, we must ask what the state is for

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Modern states are mighty states, especially in the developed world. This might, of course, does not make them omnicompetent — there is a crucial distinction between power and its skilled exercise — but they can do many things, both good and bad, and do them well.

For this reason, people fear the state, and have long sought to constrain it. Last year’s Brexit debate danced around the powers of Parliament, the Crown, and the Courts in a way familiar to all students of law or politics, no matter how casual their interest. And nowhere is the state’s great power more in evidence than in the response of wealthy, developed countries to the coronavirus pandemic. Across Europe and to a lesser extent the UK, the state has taken control of much of the economy and broad swathes of people’s private lives. The speed and certitude with which it has done so is a reminder that not for nothing did Nietzsche call it the coldest of cold monsters: “Coldly it lies; and this lie slips from its mouth: I, the state, am the people”.

So familiar have we become with strong states able to project their power in this way few among us pause to imagine a world of weak states. Those that do often have a philosophical or political commitment to certain forms of socialism, anarchism, or libertarianism. Anarchists point to mutual aid and civil society. Socialism — when it steps back from the authoritarianism present throughout much of its tradition — has a compelling story to tell about localism. Libertarianism is strong on economics and regulation, not only noting obvious things like there being no good reason why the state should run a telecommunications company or an airline, but observing how often grands projets run over time and over budget, while ending up unfit for purpose.

That is why economic historians Mark Koyama and Noel Johnson have done something extraordinary in Persecution & Toleration: The Long Road to Religious Freedom. Instead of arid philosophical theorising about what sort of state is “best”, they have produced a detailed and systematic empirical study of what a world of weak states looks like. They use the emergence over time of religious freedom in the developed world and significant chunks of the developing world as a basis for their analysis — in part because the information we have about it is so rich and abundant — but given religious freedom was the first liberal freedom, it serves as a reliable proxy for all the others.

And it turns out that liberalism needs a strong state. Yes, state. Not strong supranational organisations like the EU or UN or IMF. Not strong churches. Not strong private civic institutions like unions or universities. Liberalism needs a state powerful enough to collect taxes and pay for police forces, courts, prisons, and the military. Only powerful states, it emerges, can strong-arm their citizens into the rule of law: that is, a system where like cases are treated alike, contracts are enforced, Jack (and more importantly Jill, Abdul, and Moshe) is treated in the same way as his master. Without a strong state, our evolved tendency to prefer blood relatives (“kith and kin”), co-religionists, and our own sex or race manifests. We wind up in a world where there are different laws for Jews and Christians and Muslims, for men and women, for princes and paupers and bourgeoisie.

Of course, internationalists and cosmopolitans may object that we still prefer — likely also for evolutionary reasons — our fellow citizens to outsiders, and therefore we ought to bring about a world where liberalism anywhere means liberalism everywhere. However, if Koyama and Johnson are right, the modern nation-state is the only way to produce liberal tolerance at scale. Try to go bigger, and liberalism breaks down; stay too small, meanwhile, and people are subjected to petty local tyranny.

And the consequences are absolutely terrifying.

“The state,” Johnson and Koyama observe, “was largely absent from the lives and experiences of ordinary people in the pre-modern world.” Authority in Medieval and Early Modern Europe was local, and imposed on the basis of what is called “identity rules”. That is, rules for which the form of the rule or its enforcement and sometimes both depend on the social identity of the parties involved: religion, race, language, sex.

There were pre-modern exceptions to this phenomenon: pagan Rome for part of its history and Song Dynasty China. Rome of the late Republic and Early Empire, for example, was able to project power much like a modern state. It could field vast armies (making the 10,000-strong French army at Agincourt look like an amusing dinky-toy) and impose general, impersonal rules on its Empire.

General rules obtain where the form of the rule and its enforcement are independent of individuals’ status. This is what we have now. Chillingly, one learns that brief efflorescence of near-modernity was undone in both Rome and China by a pandemic.

Medieval Europe was characterised by multiple overlapping political boundaries and jurisdictions. There were no states in the modern sense. Usually, no taxes were collected — much of the time, rulers lived off their own lands. Armies were not permanent but recruited in an ad hoc manner. Different territories and cities within a kingdom might have their own internal tariffs, regulations, even their own weights and measures.

There was little in the way of a bureaucracy. Rulers maintained their power in large part through religious legitimation — that is, when the state was not strong enough to carry out threats sufficient to curtail resistance, it used religion to achieve the same thing. Concepts like the Divine Right of Kings and events like Papal coronations made the ruler God’s Viceroy on earth; to reject religiously legitimated authority was to put oneself outside celestial order and invite persecution in both this world and the next.

The monotheistic religions were typically nastier in how they went about this — their reputation for violence was earned honestly — but the apparent tolerance that existed in places like Ancient Rome, Confucian China, and Shinto Japan was an accident of history, a function of the religious syncretism present in most forms of paganism.

They, too, often relied on “conditional toleration” — where diverse communities were compartmentalised into separate legal and sometimes physical spheres with a view to preventing conflicts between them. That said, this is why pagan Romans found the monotheistic province of Judaea so baffling, and why — when the Tokugawa Shogunate (1600-1868) came to appreciate just how different Christianity was from Shinto and Buddhism — it engaged in a (successful) persecution that would do credit to Joseph Stalin.

Scapegoating religious minorities became a powerful tool when kings and caliphs were faced with threats to stability, which explains why Jews were treated so miserably for so long. Both Canon law and Islamic Sharia prohibited adherents of the two great monotheisms from lending money at interest. But Jews were not subject to Canon law or Sharia. By enforcing this prohibition, rulers could then tax the monopoly profits earned by Jewish moneylenders; indeed, usury was often the only job local guilds permitted Jews to do. In turn, rulers offered Jews protection from violence, and the right to govern their own affairs. If Jews stepped out of line (including by being too successful at their jobs), protection would be withdrawn and pogroms and massacres ensued. Sometimes protection was withdrawn for other reasons — often, plague — and Jews would be expelled or massacred.

What made medieval and early modern states so weak, and what happened to make them stronger? Why did they commit to building “state capacity”?

In short, governing by means of identity rules is cheap but not particularly cheerful: indeed, it is wasteful, inefficient, and destructive of human capital. Johnson and Koyama’s account of the waste of Jewish talent over centuries — remembering that Jews in Medieval Europe had higher human capital than surrounding populations because Judaism made it compulsory for first sons and later daughters to learn to read — is staggering and tragic. “Barring some exceptional figures, Jews were not especially well represented in art, culture, or science prior to emancipation,” they note. Even worse, this enormous waste was replicated with other “market dominant” minorities, a classic case of doing the same thing over and over and expecting a different result: Huguenots in France, Quakers in England, both Jews and Christians in the Ottoman Empire, Sufis in various caliphates, and the Copts in Egypt. Because governing by means of identity rules is so cheap, the dynamic continues to play out in developing countries now: think Chinese in Malaysia, Asians in Uganda, or whites in Zimbabwe.

Eventually, smarter administrators — Johnson and Koyama draw attention to Jean-Baptiste Colbert in France and Sir George Downing in England — realised that would not do and strove to establish more general rules. This was not necessarily because they had any love for Jews or Huguenots but because, thanks to a combination of the Reformation and what is known as the “Military Revolution” there were now simply too many religious dissidents to kill. A continent-wide arms race, brought on by the development of gunpowder, forced rulers to invest in greater fiscal and administrative capacity. An accommodation had to be found.

To pay for larger armies, new taxes had to be raised, while governments established a permanent system of state borrowing. There was a shift away from decentralised tax systems and a move towards standardisation and centralisation. Rather than relying on tax farmers, the Church, or the sale of “venal offices” (which means exactly what it says, by the way), rulers invested in formal bureaucracies to do it directly. But administrators also had to apply the law generally and consistently or the legitimacy of state power — now no longer derived from religion thanks to the diversity that emerged as a by-product of the Reformation — would shatter. This is one reason why Colbert’s account of taxation still resonates: it “consists in so plucking the goose as to obtain the largest amount of feathers with the least possible amount of hissing”.

If liberalism needs a strong state, that state must also be a constrained one for liberal forms of governance to persist. Johnson and Koyama speak of a “shackled leviathan” rather than a “despotic leviathan”; that is, powerful states require institutional constraints because without them you get modern China or, historically, Nazi Germany and the USSR. An inevitable by-product of governments with technical know-how, military competence, and administrative capacity is an ability to do vast damage and exercise intense coercion, both internally and externally.

Even if one accepts what the Chinese regime says about that country’s declining number of coronavirus infections the authoritarian way it has been achieved should give pause. Maybe Western countries — with their shouty Italian mayors railing ineffectually at people breaching quarantine, or Spaniards renting their dogs to neighbours for walkies so they can go outside, or Boris talking about our ancient right to go to the pub — are to be preferred. Yes, I recognise there’s an immense taboo attaching to cost-benefit analyses in plague time, but it’s still useful to ask how much authoritarianism each saved life is worth.

Persecution & Toleration is a systematic demolition of the notion that basing laws and regulations on people’s group identities is a good idea, but the book does not draw out the contemporary implications. Fortunately, one of its authors, Mark Koyama, has written a thoughtful essay addressing exactly this point. “What has gone largely unnoticed is the extent to which group rights in practice (if not in their justification) resemble those used by pre-modern states towards religious minorities,” he says. “The return of self-governing faith communities can thus be seen as reflecting a broader collapse of the modern liberal state.” He’s referring, of course, to Rotherham and the wider grooming gangs scandal.

“While many factors were at work, this tragedy was in part a consequence of allowing a community to govern itself. Numerous impartial reports, including the Jay Report commissioned in 2014, detail how fear of appearing racist prevented police from investigating allegations against Asian (predominantly Muslim) men. The Pakistani community in Rotherham, in particular, protected its own and deterred investigations. While some commentators on the right sought an explanation in either Islam as a religion or in the cultural background of the perpetrators, a wider institutional perspective would point to the hands-off way in which the British state has sought to deal with its Muslim minority.”

Coterminous with this specific abnegation of state responsibility is a wider point about the importance of investment in state capacity. General rules and the rule of law — while productive of both prosperity and order — are expensive to maintain. The most serious problem with austerity turns out to be not what it did to the NHS — which was largely shielded from any cuts — but what it did to the police, legal aid, the CPS, and even the judicial estate (stories of courthouses with cracked loo seats and broken equipment abound).

Things like Rotherham are more likely to happen in places where access to justice is rendered impossible, because enforcing general rules becomes impractical. Sooner or later, people resort to self-help. Identity rules, with their seductive cheapness, are not far behind.

In days gone by, people built ossuaries after pandemics ripped through their communities. Maybe, after coronavirus has finished its grim labours, it would be worth taking Johnson and Koyama’s advice and considering not only what states can do, but also what they are for. “Liberal societies are the product of a long process of institutional change,” they point out. “If the institutions responsible break down or are eroded, we should not be surprised to see illiberalism return”.

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Helen Dale read Law at Oxford and won the Miles Franklin Award for her first novel, The Hand that Signed the Paper. Her latest novel is Kingdom of the Wicked; it was shortlisted for the Prometheus Prize for science fiction.

Columns are the author's own opinion and do not necessarily reflect the views of CapX.