“Political decentralization and policy experimentation”

Since 1932, when Justice Louis Brandeis remarked that in a federal system states can serve as “laboratories” of democracy, political decentralization has been thought to stimulate policy experimentation. We reexamine the political economy behind this belief, using a simple model of voting in centralized and decentralized democracies. We find the electoral logic suggests the opposite conclusion: centralization usually leads to “too much” policy experimentation, compared to the social optimum, while decentralization leads to “too little”. Three effects of centralization—an “informational externality”, a “risk-seeking” effect, and a “riskconserving” effect—account for the different outcomes.

By Hongbin Cai & Daniel Treisman. Here’s the whole thing (pdf). This is probably more right than wrong, but you gotta wonder: what’s “the social optimum”?

From the comments: All of the Bad Things that democratic governments do

My general point has to do with this anti-democratic argument:

[…] where are the masses to stand up against war, bank bailouts, taxation, police aggression etc?

These are all Bad Things that democratic governments do, but they are also Bad Things that all governments do. And, in turn, these Bad Things are much less prevalent in democratic societies than they are in non-democratic societies.

In fact, it is only in democratic societies that you can complain about these Bad Things. It is only in democratic societies that you can do something about these Bad Things (even if it’s just blog-ranting).

This simple observation leads me to conclude that anti-democratic libertarians have it back asswards when it comes to democracy. Democracy is a byproduct of liberty. Maybe anarchy would lead to even less “war, bank bailouts, taxation, police aggression etc,” but as of now it is in democracies that these Bad Things have been made less prevalent.

Anti-democratic libertarians aren’t thinking on the margin when it comes to democracy. (Hence the dogmatism you find in certain anarcho-capitalist circles.)

This is from yours truly, in another dialogue with Chhay Lin on democracies, anarchies, and meritocracies. Read it from the top!

Vacation links (Monday)

  1. Subnational Elections, Diffusion Effects, and the Growth of the Opposition in Mexico, 1984-2000” (pdf)
  2. Types of Federalisms, Good and Bad
  3. Structural Blockage: A Cross-National Study of Economic Dependency, State Efficacy, and Underdevelopment” (pdf)
  4. The Political Economy of Expulsion: The Regulation of Jewish Moneylending in Medieval England” (pdf)
  5. Why not world government?

Be Our Guest: “Resolved: Human Government is Despotism”

Jack Curtis is back with another guest post, this time on despotism. Here’s a sneak peak:

All human government is to some degree despotic; if it were not there would be no need for organized force. The more realistic issue seems to be: How much despotism should be tolerated in return for the benefits of human organization? And, with homo sapiens involved, that depends upon whom you ask.

Read the rest. It’s excellent, as usual. If you’ve got something to say, and nowhere to say it, why not Be Our Guest?

Brazil will not become Venezuela

Judge Sérgio Moro has left the Bolsonaro government. Chosen to be Minister of Justice, Moro achieved prominence for leading the Carwash operation that took several corrupt politicians to jail, including former President Luiz Inácio Lula da Silva. Moro’s departure exposes a very serious weakness within the Bolsonaro government, and in the medium term, it will lead to the weakening of the government and the country. According to Moro, his departure is due to attempts by President Bolsonaro to unduly interfere with the Federal Police. Bolsonaro countered the accusations, but the scenario remains shaky for the president. If Moro is speaking the truth, and if he can substantiate what he said with material evidence, this can lead to impeachment and even arrest of the president.

It is important to remember how Bolsonaro came to power. Going back a few decades in the past, Brazil emerged from a military dictatorship in 1985. The years since then have been called the New Republic by Brazilian analysts. One of the most relevant leaders of this period was Fernando Henrique Cardoso. As finance minister (1993-1994) of the Itamar Franco government (1992-1994) and later as president (1995-2002), FHC led a series of reforms that made the country’s economy, previously marked by developmentalism, freer. FHC was succeeded by Luiz Inácio Lula da Silva (2003-2010). Historically a radical socialist affiliated with the Workers’ Party, Lula came to power in 2003 promising a moderate government. To a large extent, this promise was kept, but the Lula government was soon hit by serious allegations of corruption. These complaints continued under the government of his successor, Dilma Rousseff (2011-2016), who ended up being impeached in 2016. Because of his corrupt actions as president, Lula ended up arrested by Sérgio Moro in 2018. Despite the moderate tone of Lula and Dilma as presidents, throughout their time in power, both signaled measures that resembled their party’s most radical years. This nod often sounded like a threat that both could trigger the bases of their party to take radical measures as was seen in other South American countries that had elected left-wing governments, especially Hugo Chavez’s Venezuela. Lula went so far as to declare that in Venezuela under Chavez there was an “excess of democracy”.

It was in the face of multiple corruption scandals and the threat of a radical turn to the left that Jair Bolsonaro gained prominence. For many years an inconsequential politician from Rio de Janeiro, Bolsonaro gained fame with his stripped-down and even pimp language. As early as 2014, he began to be welcomed throughout Brazil under the shouts of “myth” for the open way in which it criticized the “left”. He soon became a popular phenomenon. Although many analysts doubted his viability as a candidate, he ended up winning the presidency.

Unfortunately, Bolsonaro is far from a classic liberal or a Burkean conservative. A retired army captain, he entered politics to defend the interests of his fellow soldiers. In addition, he has always defended Rio de Janeiro’s military police officers, who are constantly accused of human rights abuses. Finally, Bolsonaro has always declared himself an uncompromising admirer of the Military Dictatorship (1964-1985). Although he showed no signs that he would like to extinguish democracy in Brazil (as many analysts on the left feared), he was also unable to see the many damages that the military did to the country during their years in power.

In his practice as president, Bolsonaro shows himself to be an impatient man, unable to respect the bureaucratic procedures of a liberal democracy. Worse than that, if Sérgio Moro’s allegations are true (and there is good reason to believe that Moro is not a frivolous man), Bolsonaro is trying to control the Federal Police to avoid investigations against his eldest son, Senator Flávio Bolsonaro, accused of corruption and involvement with militias. There are good reasons to believe that, with the departure of Sérgio Moro, the Bolsonaro government has come to an end.

Fortunately, as Dilma Rousseff’s impeachment demonstrates, Brazil is not Venezuela. Despite its many setbacks and weak record as a liberal democracy, the country still stands out in South America for its record of solid institutions that survived even during anti-liberal governments. Although imperfectly, Brazil has the institutions expected from a classic liberal democracy: division of powers, a bicameral legislature, a supreme federal court, and (at least formal) independence between the powers. Unfortunately, there are high levels of corruption in all of these spheres, largely due to the great attributions of the state provided for in the 1988 Constitution. Much is expected of the state, and the state controls an immense amount of resources. It is said that a thief was once asked why he robbed banks. “Because that’s where the money is,” was his reply. Likewise, there is a good reason why many people enter politics in Brazil.

There are crucial reforms that need to be made in Brazil if the country is to become a viable democracy. Fortunately, many of these reforms have been made in the past. Since its independence from Portugal in 1822, the country has, at least superficially, classic liberal institutions. Never has a head of government in Brazil dared to govern without a constitution, as was the case in other South American countries. Bolsonaro’s impeachment, if confirmed, will be a major blow, but it will not destroy Brazil. But it also shows that, more than populist politicians, Brazil needs leaders who will lead it to a deeper liberalism. Popular support for this type of reform exists, but it is contrasted by the desire for a “myth”.

A very short note on despotism

Democracy was once viewed as a counterweight to despotism. Democracy was also once more exclusionary, too.

However, once democratic regimes in North America and France were established in the late 18th century, despotism flourished. How to deal with democratic despotism is at the heart of the conservative-liberal split (socialists embrace democratic despotism).

Conservatives believe a stronger executive “branch” will temper democracy’s excesses, while liberals believe a stronger judicial apparatus will do a better job of keeping democratic despotism at bay. (By “liberals” I mean libertarians.)

Thus Hamilton and Trump argue for a stronger executive branch. Thus Madison and Hayek argue for a stronger judicial branch. Thus Marx and Sanders argue for more power to the people. This is at the heart of all political disagreement, and not just in the United States. Indeed, it’s at the heart of politics itself. Discuss.

A Reflection on Information and Complex Social Orders

In the year 2020, occidental democracies face a time of lock-downs, social distancing, and a sort of central planning based on epidemiological models fueled by testing methodologies. An almost uniform consensus on the policy of “flattening the curve and raising the line” spread worldwide, both in the realms of politics and science. Since the said public policy is not for free, but nevertheless it is out of discussion, the majority of the efforts are focused on gathering data concerning the rate of infection and fatalities and on achieving accurate and fast methods of early detection of the disease (COVID-19). The more the data is collected, the more efficient the policy of “flattening the curve” will be, i.e.: minimizing the economical costs. Technology -in a broad sense- seems to be the key ingredient of every successful policy.

Nevertheless, since the countries that undertook the said task are democracies -and they were urged to do so because they are democracies-, there is a lot more than data provided by technology to take into account. Science and technology could reach a conclusive study about infection and fatality rates, but the outcomes of the societal discussions about the value of life and the right of every individual to decide upon the way of conducting their own plans of life will always remain inconclusive. Those discussions are not only philosophical and, fundamentally, are not only to be conducted in the terms of an academic research, since the values at stake entitle every human being to have their own say and, at the same time, are so deeply rooted in the upbringing of the individuals that seldom they might be successfully articulated -and surely that is why such questions are of philosophical interest.

In the race to determine the political agenda, technology plays with a significant advantage over philosophy: in times of emergency, conclusive assertions -despite proving right or wrong afterwards- enable political leaders with a sense of determination that any philosophy can hardly achieve. It is true that philosophical considerations mark the legitimate limits of science and its uses, but the predictable models and plausible scenarios depicted by the technology might lift the barriers of what had been considered at the time as politically illegitimate, i.e.: to describe a given situation as a state of exception.

However, there is still a dominion in which philosophical considerations might have high expectations of winning the competition against technology: the making of the abstract criteria to judge the fulfillment of the due procedures to be followed by the authorities given the account of the data gathered by the technology. Such philosophical considerations on which base authorities should personally account for their decisions, despite having been discussed by academics and writers, have being treated for centuries in particular legal procedures that crystallized the standards of conduct of the Civil Law (the diligence of a good father of a family, or of a good businessman, etc) or Common Law concepts (the reasonable person, the ordinary prudent man of business) or more recent -in terms of the evolution of the law- formulae, such as the Hand’s rule.

Such legal standards, concepts or formulae do not oblige the political authorities in their public sphere, but they perform as an incentive to be taken into account by the agent who is invested with the public authority; since he, eventually, will be personally accountable for his decisions. Moreover, those legal parameters to judge the personal responsibility of the agent in charge of the political authority are a true guarantee for the public servants, more reliable than the changing public opinion measurements to be provided by the technology.

Notwithstanding the Realist assertion about the division between law and politics might earn certain relevance in times of turmoil, individual rights and legal procedures should endure in the long run, in order to work as a benchmark to judge the personal performance of the political agents.

Such times of political and social upheaval are useful to test political theories and doctrines as well. Certain strains of Political Liberalism -particularly Classical Liberalism- have been largely criticized for -supposedly- trying to replace the political with the law. However, the law is there to remind the political agents that the state is an abstraction run by individuals who are expected to be personally accountable for their decisions. In this case, the true function of the law, although conceding that it should remain outside of the political sphere, is to provide the correct incentives for the political agents, who are not mere abstractions -and so, maximize their own plans- to take their own decisions. If technological devices might be the key instruments for public policy, the rule of law is its inescapable framework -or at least so it is, of course, for every democracy.

The state as the illusionary Deus Ex Machina

The 20th century was a century in which societies consolidated the belief that governments should provide certainty and protection from collective risks and developed the expectation that governments are well equipped to do so through large-scale interventions in the social environment.

The image of the state was transformed from that of an alien and often hostile apparatus in the service of the king and nobility to that of a collective organization entrusted with society’s safety and prosperity. This view grew stronger in the years of war-like economy and post-war reconstruction during the 21st century. Nationalism gave it the face of a father taking care of his extended family. Socialism gave it the image of a collective machine serving the interests of the working class. Democracy promised to tame its power, make it accountable to its subjects and harness it for the provision of public goods, whose definition was open to public deliberation.

The image of the state was also shaped by a growing belief in the use of science to give meaning to the ‘common good’ and offer prescriptions as to how a powerful central planner should work to achieve it. The state and science together provided a replacement for the loss of divinity. They offered a rationalization of power as enlightened parenthood. They created a secular Deus Ex Machina. Governments cultivated this paradigm as they were strengthening their role and clout over society through increasing levels of taxation, regulation and distribution, which in turn fostered public expectations for state effectiveness and political accountability. Recurrent failures led to policy re-adjustments some of which were historical political transitions. Yet all these transitions were responses that complied with this paradigm and sought to re-establish confidence in it.

Consider one of the most discussed economic and political transitions, the neoliberal turn. In light of recurrent economic crises, most prominently long-standing stagflation in the 1970s, neoliberalism best describes a re-adjustment of the role of government in the economy through privatizations, a drift away from Keynesianism to monetarism, and the re-regulation of economic structure. In the field of ideology, there was an effort to reshape public perceptions of what the state should not do with the promotion of economic freedom. Governments – most of them very reluctantly, such as both the Conservative and Labour governments in the late 1970s and the Ford and Carter administrations, while others very enthusiastically such as the Reagan and Thatcher governments – adopted versions of a ‘take some economic decisions back to you’ approach.

In the so-called neoliberal era, the state did not become less interventionist overall. Instead, governments redefined the nature of interventions in some areas to forms of surveillance of the responsibilities and individual risks that were given back to businesses and workers. Neoliberalism was a large-scale intervention in itself. It was an effort to revamp the economy and protect the capacity of states to extract resources from the market for political allocation. Governments preserved interventions that privileged the few and maintained those that continued to offer a safety net for the many (such as health insurance, progressive taxation and welfare state spending).

A remarkable juncture occurred when the 2009 crisis posed a systemic threat. Governments intervened to patch the financial system from a sequence of cascading events – partly the result of imbalances attributed to its own macroeconomic policies. The management of collective risk came center stage.

Terrorism is another case of the interventionist state. Spectacular terrorist attacks triggered a war-like response that combined the use of the criminal justice system with extra-judicial actions, including the mobilization of security and military forces and the introduction of new intrusive norms of intelligence collection and surveillance.

It is easy to discern that, over time, demand for drastic state action is more pronounced in the presence of dramatic single-source events or cascading events that are traceable as a single sequence. While millions are killed by car accidents and diseases, large-scale massacres such as the 9/11 or unravelling developments from the collapse of a major bank trigger a collective alarm. The public expects the state to intervene and give a heroic fight against the visible threat on behalf of society.

The most extreme version of the protective state is the current general lockdown. Not knowing any way out, governments can only deliver a form of collective protection that requires a general population quarantine. They offer society the kind of shield that a medieval wall and a locked gate offers in times of siege. Society both expects and accepts this.

Yet in the current pandemic governments still cannot deliver a cure. If a safe vaccine is not found, if the epidemic does not recede with growing immunity, if seasonal change doesn’t make any difference with contagion and if an effective anti-viral treatment is not found, governments will oversee their economies in rapid collapse and will soon have to make tough choices about how to turn the epidemic into a chronic manageable condition. For the time being, citizens remain disciplined in their lock-down and are the ones demanding strict measures. Governments know that, like in terrorism, citizens can be overwhelmed by fear as well as managed through fear.

In our efforts to understand what has happened and to make informed guesses about what could happen, metaphors can help or distort our perception. Societies have subscribed to an ideal image of political power that metaphorically resembles the biblical God: omnipotent, omniscient and benevolent. They call for a divine intervention, they express their dissatisfaction when they see no signs of it but they never question its raison d’ être. But there is an ontologically different metaphor. In Greek mythology gods are superhuman creatures struggling for domination and survival with their own moral regards, vices and ignorance as they mess around with the world of humans. They struggle to rule based more on terror than wisdom, imposing justice that serves their order. Humans have to worship them in order to appease them. I find this imagery closer to a realist depiction of government.

The Vexing Libertarian Issue of Transition

I have appointed myself an old sage to the world. When your knees are creaky and every snotty eighteen-year-old treats you patronizingly, the least you can do to compensate is award yourself wisdom. Anyway, long story short, it’s a good excuse to spend much time on Facebook. I feel I am rendering a public service. I am continuing my teaching career there. It’s unpaid but the conditions are much better and all the students actually want to be in class.

Of course, it’s also true that Facebook is addictive. It’s not a bad addiction. For this old guy, it’s almost incredible to have frequent conversations with an MD in Pakistan, my niece in India, an old girlfriend in Panama, a young friend’s wife in Japan, and of course, many different kinds of French people. I even have a Facebook friend who lives in the mountains of Algeria; we have lively talks in French. Recently, a young woman who described herself as a Myanmar village girl reached out. (I know what you are thinking but if she is really one of those internet sex trolls, I salute the originality of her marketing strategy.) At all times a day and night, I have at least one Facebook friend who is not asleep. It’s pleasant in these days of confinement.

The same confinement, perhaps, slows me down and makes me more likely to tally up everything. As a result, a new impression has pierced my consciousness. Expressing contempt for democracy seems to be in vogue among people who identify as libertarians (with a small “l,” big “L” Libertarians have nearly vanished from my world. It could just be me.) This contempt reminds me that I have been asking the same question of libertarianism for now about fifty years, all with not much success.

I refer to the question of transition. I mean, what is it supposed to look like moving from wherever we are, in terms of governance, to a society with a drastically diminished government interference in individual lives? I have been receiving evasive answers, answers that don’t make even superficial sense, and swift escapes effected by changing the subject.

Let me say right away that I am not looking for a crushing reading assignment (a common punitive, passive-aggressive maneuver among intellectuals). Mine is a simple question. One should be able to sketch a rudimentary answer to it. Then, it would be up to me to follow through. Then, no excuse!

To my mind, there are only two extreme transition scenarios. One is the Somali scenario. The state falls apart under its own incapacity to limit internal aggression. It disappears or nearly so. When the point is reached where government authority extends only three blocks from the presidential palace to the north and east, and one block from the south and west, you pretty much have a stateless society. Goal reached!

The second scenario is a gradual change from the current “democratic” arrangements. I mean by this fair and reasonably honest elections followed by a peaceful transfer of power. I mean freedom of expression. And, disturbingly, this also includes courts of law. This is disturbing because courts without enforcement of their decisions are not really courts. This fact implies the threat of coercion, of course.

Now, I can imagine a situation like right now with the Corona Virus epidemic when governments (plural) demonstrate on a large scale their inability to do the obvious. The citizens often react to this sort of demonstration by asking for better and more government. However, it does not have to be that way. The combination of wide communication through the internet and – like now – of enforced leisure – may switch the dial. It’s conceivable that large numbers will get the idea that government that is at once heavy-handed, expensive, and incapable is not a good answer to much of anything. With that scenario one can imagine a collective demand for less government.

Strangely, this sort of scenario may be on display in France now, as I write. Well, this is not so strange after all. A deeply statist society where govt absorbs 55% of GDP and up may be exactly the best place to figure out that more government is not the answer. From this thought to the idea that less government may be the answer there is but one step. My intuition though is that it’s a big step. That’s because few people understand markets. No one but a handful of college professors seems to have read the moral philosopher Adam Smith. (Tell me that I am wrong.)

So, I would like for those who are more advanced than I am on this issue of transition (a low bar) to engage me. I am not interested in the same old ethical demonstrations though. Yes, the state is an instrument of coercion and therefore, evil. I already know this. In the meantime, the First Amendment to the Constitution of the United States does a fair job of protecting my freedom of speech, my freedom, of thought, my freedom of religion. I am not eager to leave this behind for the complete unknown. Are you? Why? How?

Or, why I don’t vote

I had been rooting for Senator Klobuchar a bit here at NOL over the past couple weeks. Nothing crazy, but I liked what I read. Now, I must eat my words. It turns out the Senator was a government prosecutor before she became a politician, something I did not know.

So, I am glad she’s out of the race. Being a government prosecutor is how most politicians in Washington start their careers. How many people can you put behind bars? How much “crime” can you prevent? If you’re answer is “LOTS” then you’re well on your way to a seat in federal Congress.

I’m not much of a political junkie anymore. I’ve just come to accept that I’m ignorant of far too many things to waste my time in a voting booth, or listening to politicians promise me stuff.

I understand that democracy is the the worst form of government, except for all the others. But I’m ignorant. When I’m old, and bored, I’ll probably get back into politics. I can think of nothing more intellectually stimulating, actually, than participating in political events as a senior citizen. The crowds, the organizational effort, the sense of belonging. I get it now.

The most heartening, encouraging thing I’ve read about the American primaries is that young people are still staying away from the polls. Liberty is alive, well, and aflame.

That day when the communists tried to seize power in Brazil

On March 31, 1964, the military seized power in Brazil. Between 1964 and 1985, five generals assumed the presidency of the country. The period is generally called the Military Dictatorship. Although it ended more than 30 years ago, this period is still influential in Brazil’s political environment. A part of the Brazilian right still praises the military regime as a golden period in Brazilian history. A part of the left still condemns the regime as the darkest period in our history. Jair Messias Bolsonaro, the current president of the republic, is an admirer of the military regime and considers that not only was this necessary but also beneficial for the country. Dilma Rousseff, the former president impeached in 2016, was an urban guerrilla during the military regime and as far as I know, she has never publicly regretted this episode of her biography. Hardly a week goes by without the mainstream media and left-wing observers warning that Bolsonaro intends to strike a blow and reinstitute the dictatorship. Although the military regime was undoubtedly striking in the Brazilian reality, I would like to remind you today that Brazilian history did not begin in 1964.

1935. Brazil is governed by President Getúlio Vargas. Vargas came to power in 1930 through a coup. Defeated candidate for the presidency that year, he did not accept the result of the elections and with the support of the army, he took the power. Vargas was provisional president until 1934 when he was indirectly elected by Congress to remain in office. Vargas is pressured on the one hand by Integralistas, a group with fascist characteristics, and on the other by the Communist Party of Brazil. Faced with this scenario, with support from the USSR, the communists led by Luiz Carlos Prestes decided to take power by force.

The attempted coup took place between November 23 and 27, 1935. Low-ranking leftist militaries revolted in barracks in several cities in the country, including the capital Rio de Janeiro. The military who participated in the coup attempt believed that the working class would support them. The Communist International, in particular, saw Brazil as a “semi-colonial” society, in which a revolt against the government would be enough to lead the population to a spontaneous upheaval. That’s not what happened. The coup d’état had no expressive support from the population and the revolutionaries were soon defeated by legalistic forces.

The consequences of the coup attempt were dire. Luiz Carlos Prestes could not accept that his movement had simply been poorly organized and that the population did not support communism. There had to be a culprit. Prestes decided that it was the fault of Elza Fernandes, code-named Elvira Cupello Colonio, then about 16 years old. Elvira joined the group of communists of the 1930s under the influence of her boyfriend, Antonio Maciel Bonfim, code-named Miranda, general secretary of the Brazilian Communist Party. Prestes suspected that she was a police informant and decided that she should be killed. Elvira was murdered by strangulation on March 2, 1936.

In response to the coup attempt, Vargas hardened his regime, effectively becoming a dictator in 1937. The entire period from 1930 to 1964 would be deeply influenced by him.

After 1935, the Brazilian army became progressively more anti-communist, culminating in the 1964 coup.

There is no doubt that the leaders of the movement were paid (and very well paid) by the Comintern. There is no doubt that they were aided by foreign spies, mostly Europeans.

I don’t want to fall into the Tu quoque fallacy here, but my experience is that Brazilian leftists hardly remember the country’s history before 1964. Many criticize the anti-democratic character of the regime that was established in the country that year. Many denounce that the 1964 coup was carried out with US support. But I don’t remember many leftists making similar criticisms to the 1935 coup attempt.

I don’t want to be unfair. I have friends who identify themselves as leftists and who value democracy. But I must say: socialism can start democratic, but it inevitably leads to dictatorship. This is the only way to have their plans realized. People don’t seem to have learned that in Brazil. Or in other parts of the world.

Nightcap

  1. Uncaptive minds Garcia & Tismaneanu, American Interest
  2. Cold War exiles Sheila Fitzpatrick, London Review of Books
  3. Roving revolutionaries Houri Berberian, Aeon
  4. After the Berlin Wall Sabine Beppler-Spahl, spiked!

Nightcap

  1. How the French Revolution reshaped the Catholic Church Glauco Schettini, Age of Empires
  2. The man who saved the Electoral College Christopher DeMuth, National Affairs
  3. Is the name of the country Myanmar or Burma? Mark Clifford, Asian Review of Books
  4. Suicide is not an act of cowardice Ken White, the Atlantic

Rawls, Antigone and the tragic irony of norms

Is civil disobedience justified when it invokes a moral objection to target a law that has been enacted through a legitimate process? The reason societies seek to establish a legitimate process in law making is because they want to set up common rules and norms which people who disagree with them will still have to abide by. However, history shows us many instances in which, even in a democratic system, civil disobedience both triggered and animated a debate on legitimately enacted rules and, often, led to their revision as well as the reform of the procedural rules that allowed their enactment in the first place.

Rawls’ position on civil disobedience struggles with this question. His position is that, once society has set up principles of justice in an institutional setting, acts of civil disobedience are just insofar as they appeal to the sense of justice of the majority and should be willing to bear the consequences of their actions. We may read the Rawlsian perspective as follows: these acts are still of value because they re-launch a process of public reasoning regarding the law itself.

However, the implications from this statement are broader and baffling. First, we don’t know how far this revision can go. Will it be allowed to cast doubt on the basic principles of justice which society previously agreed to observe? Can it challenge the procedural source of legitimacy for the contested norms?

Second, civic disobedience cannot be reduced to appeals to a sense of justice demanding the revision of law through the same process. Instead, the rationale behind civil disobedience reminds us that there will always be competing conceptions of justice that go as far as challenging the source of legitimacy – what some have come to accept as the just process may no longer seen as just by others. A society’s prior decision at a single historical moment that this is a just process for law making does not end the debate over different perceptions of justice concerning both norms and processes.

Moreover, acts of civil disobedience appear in moments in which different moral norms clash and judgment should be passed regarding which one takes precedence over the other. Episodes in the US history, particularly regarding the civil rights of African Americans, epitomize the important role of acts of disobedience in invoking a higher moral ground against norms approved by the majority through the institutions of a democratic system. We have learnt from history that these moments spawned animosities and brought about new episodes of conflict. They were emotionally disturbing episodes.

This implies that social contract theories tend to adopt an a-historical approach to norm-building and a, strangely- a-social view of public reasoning. Norm-building is seen as cleansed of emotions and often dismissive of the idea that there will be unintended and unforeseen consequences. A reduced historical and social conception of justice is what acts of civil disobedience reminds us of. The process of defining justice as norms and as process remains an open turf for never-ending, reflective social interactions that no constitutional moment can capture, crystallise and entrench indefinitely.

These three elements – the historicity and sociability of norms, normative contradiction, and the emotional dimension in the conflict over norms – is manifested in Sophocles’ masterpiece, Antigone. Sophocles’ theatrical play on civil disobedience was written around 441 BC, about 2,400 years before Rawls’s work. It conveys a nuanced message on norms, normative debates, public deliberation and reasoning, and sees the social nature of all as a human tragedy.

The play is set in the aftermath of a civil war in Thebes and the final battle which Thebes survives the attack of seven exiled Theban generals. One of the generals, Polynices, son of King Oedipus, fights his own brother, Eteocles, a defender of the city. In that fight, the two brothers kill each other.

Creon, the legitimate King of Thebes and uncle of the two brothers, issues a public order for Eteocles to be buried with honours and for Polynices to be left outside the walls to rot unburied as punishment for his betrayal. Creon also orders that whoever tries to bury Polynices’s body shall be arrested and executed.

Polynices’s sister, Antigone, defies Creon’s order and secretly buries her brother in accordance with the religious tradition that demands that the dead must be buried. Soon after, Antigone gets arrested and is brought by guards before Creon and the city. She chooses not to apologize for her actions or claim ignorance of law. Instead, she confronts Creon by invoking that the law of the gods is superior to the law of men.

Creon sentences her to death, publicly stating that everyone should be treated equally before the law. He would make no exception for her niece. Creon presents himself as a just leader who firmly adheres to ‘equality before the law’ even if that means he would sentence to death one of closest family members. The law, he stresses, is above everyone.

Antigone’s public act with an emotional appeal to the law of gods initially fails to trigger sympathy from the people of Thebes and Creon insists on his sentence. Antigone is taken off stage to be buried alive in a cave.

Creon’s own son and Antigone’s fiancé, Haemon, rushes to defend Antigone but he too fails to convince his father to change his decision. Even against his son, Creon reiterates his conviction that the law takes precedence over personal relations. But gradually the people of Thebes, the chorus of the play, changes its stance and starts showing more sympathy to Antigone’s drama.

In the next scene, a respected prophet named Tiresias makes a public interference. He tells Creon and the city that their neglect of the moral law will displease the gods and will bring more sorrow and pain to Creon’s family and the city of Thebes. The leader of the chorus changes his mind and asks Creon to reconsider his decision and set Antigone free. We are witnessing here that public is changing its views following a morally charged debate triggered by an act of civil disobedience. Antigone disobeyed the law guided by her love for her brother, but she was also honouring the law of the gods. Creon decides to spare Antigone. Emotions and fears have a drastic effect on public perceptions political decision making.

But Creon’s decision came too late. Antigone committed suicide. So did Haemon and, following the news of his death, her mother and Creon’s wife, Eurydice. The play ends with Creon devastated, isolated, discredited and vulnerable, and the city of Thebes descending back into chaos.

Rather than a clear clash between a hero and a villain, the two protagonists are tragic figures and so is the city itself. Creon wants to demonstrate that he is a prudent ruler who obeys the law that he rightfully sets. But he has to listen to the people he commands. His confrontation with Antigone is his own public act in which he defends his decision. The chorus, representing the people, initially sides with Creon but turns against him after observing a human drama unfolding and after hearing the menacing words of a prophet about the incoming doom. Perceptions of justice are drastically reshaped through an interplay of feelings, reasons and fears. Deliberation is emotionally charged.

Unlike Rawls, Sophocles’ theatrical play presents us with a richer blend of public reasoning, emotions, emotive responses, and unforeseen and unintended consequences in a debate over clashing norms and perceptions of justice. Creon – the personification of equal rules for everyone including his own relatives – is the legitimate political authority but his decision creates a personal and civic catastrophe. Thebes descends into a spiral of death and civil unrest. A just act of disobedience triggers a spiral of turmoil and tragedy. Emotions and personal affections guide decisions that produce unforeseen dramatic developments for the protagonists and the city as a whole.

The Greek drama is purposefully presented as a morally inconclusive story. Antigone had no initial intentions to make her actions a public statement and did not wish to bring down the entire political system. But after her arrest she did make a dramatic public defence of her stance invoking the moral law. Creon was surprised and angered, torn between his adherence to the rule of law and his duty towards his family. The Theban public watches all this astounded, emotional and anxious. This is far from a society that can be equilibrated into an orderly state. It cannot even rest secure about its own convictions.

Sophocles grasped much of what political theory tends to shy away from: the complexity and ambiguity surrounding normative thinking in human societies that tends to bring about tragic or fatal results for every system of norms shaken by its own contradictions. In short, Sophocles lyrically presents us the tragic irony of norms creation. Rather than taking a nomothetic stance, his play helps us reflect on the tragedy of human interactions from a nearly anthropological viewpoint.  

Sophocles allows the audience to pass their own judgment through both logical and emotional engagement. The audience is baffled by the merits of each of the opposing viewpoints – Creon’s defence of formal equality before the law and Antigone’s defence of a higher moral ground. But it is also touched and distraught by how tragic the protagonists are, trapped in the consequences of their own moral standing and reasoning. In Sophocles’ play, society is watching and reflecting on behaviors and norms through pathos, ethos and logos. After each performance, the verdict is a flow of tears rather than a canonical judgment.

Nightcap

  1. Democracy doesn’t matter to the defenders of ‘economic freedom’ Quinn Slobodian, Guardian
  2. After the Berlin Wall: whither democracy? Sabine Beppler-Spahl, spiked!
  3. How Europe stumped Britain’s conservatives Geoffrey Wheatcroft, New Republic
  4. Don’t forget the one-fifth clause (impeachment, American-style) Eugene Volokh, Volokh Conspiracy