Expert Glory and Law's Effectual Truth

On taxing sugar: how technocracy works and where it comes from

[T]he rule of law can survive only in a community resigned to enduring many evils that human beings understandably yearn to avoid.

-Shirley Letwin

The British public responded with trills of gleeful laughter and celebratory fireworks to the news this week that, amidst economic crisis and generalised decay, the government has found time to plan extending its ‘soft drink industry levy’ (that is, its sugar tax) to milk-based drinks and non-dairy substitutes. The excitement grew yet further when it was revealed that there are proposals for the tax to kick in at 4g of sugar per 100ml of soft drink, rather than the current 5g per 100ml (the levy currently being set at 18p/litre). We look forward to the day when our benevolent overlords ratchet the ratio down to 3g per 100ml, then 2g, and, ultimately, to the glorious moment when we are permitted to have no sugar at all. We cannot be trusted with it; this we know. And we are reassured to see that, while our government does almost nothing well, it remains a world-leader in passive-aggressive, surreptitious nudging.

This story, though, gives me the opportunity to discuss something important, which is the transformation of our governing structures into a system of what I call ‘expert glory’. At the heart of this story lies law, and the way it is increasingly utilised to channel expertise so as to bring into existence a certain ‘effectual truth’ which establishes a justification for the act of governing. Western thought has since Socrates insisted that law should be a matter of rules. Now, though, law-making is no longer about making rules so much as it is about commanding certain behaviours on the basis of what technocrats dictate.

The ‘soft drink industry levy’ (SDIL) serves as a useful example of this tendency. In 2016, ostensibly concerned that ‘our children are consuming too many calories’, the Department for Health and Social Care drew up a Childhood Obesity Plan. The aim of this was to ‘significantly reduce England’s rate of childhood obesity within the next ten years’ by ‘making school food healthier’, ‘harnessing the best new technology’, bringing in requirements for ‘clearer food labelling’, ‘helping all children enjoy an hour of physical activity every day’, and so on. The headline-grabber was ‘a broad, structured sugar reduction programme to remove sugar from the products children eat most’, with the proposed SDIL being at the centre of that programme.

The SDIL eventually wormed its way into law through the unlikely vehicle of the Finance Act 2017, which in ss. 25-60 provides for the new tax and makes clear that the details of its operation will be handled by Her Majesty’s Revenue and Customs (HMRC), the UK’s tax authority. HMRC duly, in accordance with this delegated power, made the Soft Drinks Industry Levy Regulations 2018, a statutory instrument setting out details covering all kinds of marvellous and fascinating things, such as how to determine sugar ‘dilution ratios’ in individual drinks; how the tax will function for different categories of drink (‘fruit juice’, ‘vegetable juice’, ‘milk and milk-based drinks’, and so on); how to determine exemptions based on calcium content and other conditions; how soft drink manufacturers are each to establish and maintain a register ‘containing such information as [the HMRC] thinks is required’; and so on.

The result is something that can be more accurately called a system of expert rule rather than one of rules as such. The HMRC’s Regulations derive from advice from a broad array of specialists in different fields - experts in public health and nutrition, in the drinks industry, in health economics, in taxation, and more besides - who are able to provide it with the expertise necessary to determine, for example, that ‘buttermilk’ ought not to be classified as ‘milk’ where calorific mono-saccharides or di-saccharides are added in production in certain contexts; to give evidence regarding ‘dilution ratios’ resulting in lower levy liability; to predict how much revenue will be generated from the levy, and so on.

HMRC also engages in ongoing consultations with ‘stakeholders’ in deciding whether and how to make changes, and generating feedback on the levy’s operations. The Finance Act 2017 was itself, of course, drafted after extensive expert consultation led by Public Health England. And the Childhood Obesity Plan, which originated the whole project, was drawn up on the basis of a development of a body of ‘evidence’ gathered by the Scientific Advisory Committee on Nutrition, an expert committee sitting within the government’s Office for Health Improvement and Disparities, showing the negative effects of childhood ill health, and purporting to demonstrate ‘that slowly changing the balance of ingredients in everyday products, or making changes to product size, is a successful way of improving diets’.

The role for political legislators in all of this is minimal. They are simply the vehicle through which all of this expertise is commissioned and marshalled together and given effect. What is really going on is not so much law-making as the concentration of expert knowledge into decrees which are then thrust upon the population so as to generate compliance. And the nature of law itself, as a consequence, shifts away from generalised rules towards detailed and fine-grained commands, dictating courses of behaviour in the name of achieving particular ends.

The SDIL is far from the only example of law working to operationalise expert rule. In past posts, for example, I have described how minimum pricing for alcohol and regulations for energy smart appliances function along similar lines - instrumentalising law in order to cajole or command the population into complying with what the ‘wise’ dictate to be in their best interests. This style of law-making, indeed, is characteristic of the modern predicament (we became intimately familiar, of course, with its contours during the Covid era). What explains it?

The answer, as in most such matters, takes us back to Machiavelli. Machiavelli has never been widely read or cited by legal philosophers. This is because, certainly in The Prince, law was a subject about which he had almost nothing to say. In The Prince the subject appears, in passing, on only three occasions scattered through the text. But what is said about it on the third such occasion is critical: a Prince, Machiavelli tells the reader, needs good laws. But this is not because good laws reflect what is moral or because they enshrine personal autonomy or restrict tyranny. No - it is because good laws make the people see the Prince’s rule as beneficial, and allow him to obtain ‘glory’.

This definition of what constitutes ‘good law’, it will be noticed, is focused on the needs of the Prince. Although it will result in the people seeing his rule as beneficial, and therefore presumably has some benefit for them, that goal is an instrumental one. It serves the bigger aim, which is bolstering the security and status of the Prince. And, of course, ultimately it is all about allowing the Prince to ‘glory’ in being a benevolent law-giver. The purpose of law, that is, is to facilitate the needs and desires of the ruler, not those who are ruled.

This was markedly at odds with the understanding of law that had prevailed under the Greeks and the medievals, which assumed that law was ‘good’ when it aligned with some form of cosmic order. Law did not exist to benefit the ruler (indeed, it was supposed to confine rulers - a ruler unconstrained by law being a tyrant); it existed to put social relations in their proper ordering. Machiavelli was, then, as in much else, charting a radically different course to what had preceded him. He was gesturing towards an idea of law as unrelated to a cosmic or natural order, and instead a mere instrument - a way of serving a ruler’s interests.

It is absolutely no accident that this legal revolution which Machiavelli was hinting at dovetails with the Scientific Revolution which was shortly to commence at the time The Prince was written. In his most recent book on Machiavelli, Harvey C Mansfield describes the Florentine thinker as, essentially - though he does not put the matter this starkly or bluntly - the first technocrat. This is because Machiavelli was the first thinker to hint at an understanding that the scientific nature of the world itself - that it was not, as the medievals understood it, a place of miracles, symbols and signs, but one with a manipulable physical reality - had political import. Thus, he appeared to have no concept of ‘truth’ (what might be called ‘Truth’) in the sense of what was revealed or divinely ordained. He only had a concept of ‘effectual truth’ - i.e. the truth (or truths) that human beings could themselves create through mastery of the physical world. This, naturally, included Princes themselves. And it followed that mastery over the physical world, in the name of their own interests, was a project to which Princes could aspire.

What we see in behaviour like that of the current Labour government with its shenanigans over the sugar tax can therefore be understood as a very drab and petty culmination of the twin revolutions, in law and science, of which Machiavelli was the harbinger. On the one hand, good law is good because it serves the interests of the ruler by making his rule appear to be beneficial. And on the other, the ruler rules not in reference to actual, revealed Truth, but to the ‘effectual truth’ which he can create in the form, as it were, of facts ‘on the ground’. And so it is that we see law instrumentalised precisely to realise ‘effectual truth’: to shape the world in the name of the truths that the ruler wishes to effect, so as to form, in the current parlance, a ‘narrative’ fitting for his ends.

This ‘effectual truth’ in relation to the issue of childhood obesity and sugar consumption is obvious. Law must make the ruler’s rule appear to be beneficial, and redound to his ‘glory’. And it does so following the identification of certain facts (the ‘evidence’ that children consume too many calories) and the revelation that those facts are manipulable. Children can, purportedly, be made to be less obese. And this can be done through the operation of law in the form of an imposition of a tax, deploying the expertise available to the ruler. And this in turn forms a powerful ‘truth’ (for all that it may or may not actually be true): kids were too fat, parents were too irresponsible, so government stepped in to save the day.

It sounds grandiose to describe this as redounding to the ‘glory’ of the ruling class, but the essence of the point remains. Technocratised law serves the interests of the ruler by making his rule seem beneficial. And it does this through channelling expertise in the mastery of the world, so as to present a picture of bringing about important physical, factual changes - fewer calories, fewer obese children, etc. Never mind what the truth is. What matters is the effectual truth which law and expertise can between them create.

This, more than anything else, can be thought of as the dominant governing style in Britain, the Western nation which more than any other seems to instantiate the needs, desires and logic of the Machiavellian Prince, and which is most strongly characterised by the creation of ‘effectual truths’ - in the form of nudging, expert rule, and undemocratic tinkering so as to create a narrative of social ‘improvement’. That the country is so evidently tipping into social decline provides a layer of irony that will not, of course, be lost on the reader.