Constitutions and Law-Enforcement

This is ideas-in-flow: any conclusions are soft, this needs more work.

@wrmead tweeted that Caesar crossed the Rubicon with his army rather than face politically motivated prosecution without it.

Basically, the threat of being punished by political enemies made Caesar an outlaw: he had nothing to gain by following the rules any more.

I thought that a reasonable point (and RTd it), but at the same time, there are rules, and how can they work if they’re not enforced? The fact that Caesar was in danger from his political enemies does not mean that their allegations were unfounded.

@Alrenous made that point explicitly:
Caesar was a criminal
He crossed the Rubicon with an army rather than face politically motivated just punishment for breaking the law without it.

update 30-Jan-2018: relevant tweet — apparently Caesar himself agrees
https://twitter.com/spectatorindex/status/958376761540202497

A legal system works because it is above the disputing parties. Two parties come before it, it awards a victory to one or the other, but that is a limited victory; the victorious party remains below the legal system. That isn’t the case when the winner of a legal dispute gets control over the administration of the law itself. One victory becomes total victory.

It is easy to imagine that politics would inevitably decay into legal battles. There is a wide gap between things which are definitely allowed under the rules and things which are definitely not. Once someone strays into that blurred boundary area, you would expect that they would be challenged, and the conflict would move from the political to the legal sphere.

However, in established long-standing democracies, that very rarely happens.
The aversion seems to be strongest at the point of making a legal challenge. Questionable political conduct, in the UK and USA, is commonplace, as are accusations of illegal activity. But ultimately it seems nearly always to be tolerated.

This unexpected observation, that there are extremely strong norms against turning competition for power via elections into legal battles, needs to be explained.

Outside of the developed West, this is quite a common occurrence. The last few years have seen disputes over whether candidates acted lawfully in Ukraine, Venezuela, Honduras, just off the top of my head.

As a general approach, those norms can’t be a solution to the problem: if there is a strong norm against prosecuting opponents, that would surely tempt politicians further into legally questionable territory in order to take advantage of it, approaching the point where there is a significant danger of prosecution.

One solution that would work is for the grey area to be shrunk down: if the real rules (which might not be the same as the formal rules) are very clear and very easily interpreted, then nobody will make a fatal mistake, either of stepping over the line so that his opponents have to take legal action against him, or of taking a situation to the legal arena which the other party has reasonably assumed to be safe.

That could be the case, but really doesn’t appear to be.

Another solution would be if politicians feared the punishments for malpractice much more than they wanted to win, so that they would never take even small risks of getting caught. Again, that does not appear to be the case.

Another solution in a democracy would be if any malpractice is looked on so severely by the electorate that it would be counterproductive. That surely is not the case. It might be that that has been the case until recently. There is a whole narrative, quite logical, that the populations of the Western democracies used to be so attached to democratic values that any breach of those principles would outrage them to the point of unelectability, and that a recent increase in partisanship has fatally damaged that equilibrium.

There are two problems I can see with that narrative: first, that there is no history of notably clean politics in the democracies: lies, bribes, and gerrymandering being commonplace throughout history. Second, that it doesn’t make sense for voters to be so moralistic about their own side cheating. The current situation, where supporters of a candidate see accusations of cheating as either signs of the viciousness of the enemy propaganda, or as indications of his own heroic strength, or both, seems far more natural than such high-minded fairness.

My own view is that the thing that has made democracy work, in those rare cases where it has worked, is that the apparently opposing parties are really part of the same ruling class. The issues that stand between the parties are low-stakes issues, which are resolved by the parties staying within the rules. The reason they stay within the rules is because they are united on the high-stakes issue, of the existing ruling class holding on to its position, and aren’t prepared to jeopardise that by fighting no-holds-barred over side questions.

For instance, take the quote from Jeremy Paxman’s book The Political Animal that I picked up in 2011: “In April 1925, for example, the then Chancellor of the Exchequer, Winston Churchill, announced that Britain was to return to the Gold Standard, whereby the value of sterling was guaranteed by allowing pounds to be exchanged for gold. This momentous (if ultimately unsuccessful) decision had been two months in preparation, involving heartfelt arguments on both sides of the debate. Yet not a word of it appeared in the newspapers. Indeed, it was hardly heard outside the confines of the Treasury.”

Or, as I put it another way in 2008 :  “The only situation in which a government can genuinely act in the interest of a class wider than just politicians is when there is a larger class of relatively powerless people – slaves or peasants – who would be a threat to a divided ruling class. That is the characteristic of democracies before the twentieth century.”

If both sides politically are actually united on maintaining the system that favours them, that doesn’t mean that their disagreements are fake. It just means that they aren’t important enough to risk the system over. However, from the point of view of an outsider to whom the disagreement is most important, that is almost the same thing.

This analysis raises a lot of questions:

• Is it really true that the stable Western democracies have not had sufficiently serious political disputes for this gentlemanly state of affairs to break down? In US history, obviously the Civil War is a case where it did. But what about the New Deal? Is that another exception? Or did the GOP decide to fold rather than take the risk? For that matter, what about earlier cases (Andrew Jackson?)
• Is there a mechanism that centrists use to prevent extremists who rank disputed political issues above unity from gaining power? Would candidates like Michael Foot in the UK have threatened the system?
• If there are such mechanisms, are they normal political mechanisms, or are there deep state resources that are employed against them? There have long been rumours of plots against Harold Wilson, and in the last few days there are strikingly similar stories being told in the US.
• Is it breaking down now? My suspicion is that real democratic control is increasing, and that is producing things like Trump and Brexit, which is endangering the gentlemen’s agreement by breaking down the barriers which protect the ruling elite from outsiders.

Update 27 Jan 2018
In the context of the above, the recklessness of the “Go for the Throat” strategy that I wrote about last year is even more striking. If the stability of the system actually depends on keeping out people who aren’t well-integrated into it culturally, then one party deliberately goading the other into being taken over by radical outsiders is suicidal.

Whether he succeeds in passing legislation or not, given his ambitions, [Obama’s] goal should be to delegitimize his opponents. Through a series of clarifying fights over controversial issues, he can force Republicans to either side with their coalition’s most extreme elements or cause a rift in the party that will leave it, at least temporarily, in disarray. 

Also relevant: “They Always Wanted Trump“