Justified Tyranny

What makes tyranny 'morally possible'?

The property of subjects is under the eminent domain of the state, so that the state or those who act for it may use and even alienate and destroy such property, not only in the case of extreme necessity, in which even private persons have a right over the property of others, but for ends of public utility, to which ends those who founded civil society must be supposed to have intended that private ends should give way.

-Hugo Grotius

‘Elderly couple told they had to sell home to house asylum seekers’ is a headline tailor-made for the anxieties of 2024. It is the kind of headline, indeed, that trumps the story itself: it confirms everything the typical conservative Telegraph reader intuits about what is going on across the West as we speak. The old order disappearing; a great wave of immigration replacing it; and all for some reason facilitated and even encouraged by the State - which, to top it off, forces the people already here, who can ill-afford it, to subsidise the process financially. That the headline also concerns housing, the hottest hot button issue of the day, of course rounds everything off perfectly: if there is one thing guaranteed to unite young and old up and down the land, it is outrage at the thought that precious housing stock should be compulsorily sold to house migrants rather than being made available for citizens to buy.

The actual story could never live up to that headline, and sure enough the truth as reported is much less blood-boiling than it sounds at first blush. Yes, an elderly couple were told in a letter they received from their local authority (North Northamptonshire Council) that they had to sell their home to house asylum seekers, but they received another letter three days later apologising and telling them the first had been sent in error. Their house was not going to be compulsorily purchased at all. The story was actually a bit of a damp squib, then, in its own narrow facts.

Nonetheless, it is far from a ‘nothingburger’, and has some disturbing and important connotations that are worth teasing out. For it brings to the fore the crucial connection that I have previously drawn between the ownership of property and the form of government which it is proper to label tyrannical, in that it governs in a manner which transcends law, and indeed only tolerates the existence of rules insofar as they apply to the subject, rather than the ruler himself.

What happened to the elderly couple in question has, though, first to be set in context. While no local authority anywhere in the UK is currently compulsorily purchasing homes that are lived in, it seems that throughout the country they have been quietly ‘identifying empty properties’ which are owned, with the aim of buying them through compulsory purchase orders (though it is unclear whether any purchases are yet actually taking place) - and that they are doing this explicitly because of a rise in the number of asylum seekers being granted leave to remain in the country. So while no homeowner is being turfed out of a house in which they live, it does seem to be the case that councils at least have it in mind to start buying empty houses so that they (or possibly ultimately the Home Office) can use them to house asylum seekers.

So in broad brush strokes the tale that springs to mind on reading the story’s headline - that immigrants are being in some sense prioritised for housing and that citizens who are property owners are being forced to give it up on their behalf - has a grain of truth to it. And in this regard there is something deeply disingenuous about the way in which the leader of North Northamptonshire framed the issue when asked for comment by the Telegraph, as cited in its story:

Compulsory Purchase Orders…are not utilised to ‘oust’ current owners from their properties, they are a tool used as a very last resort to bring empty properties, which are a valuable and much need housing resource, back into use.

The ‘empty property initiative letters’ were sent out in a bid to assist empty property owners bring their property back into use…

This makes it sound as though the council is just running the scheme as a public service project to help out little old ladies who happen to own extra homes they wish to sell and haven’t heard of the concept of an estate agent. And it carefully cloaks what is really going on: if a house is standing empty and unsold then presumptively that has to be put down to the choice of the owner. Why would you not sell an empty house you own? Well, maybe you plan to do something with it. Maybe you’ve inherited it and haven’t made up your mind whether to sell it or to keep it in the family. Or maybe you’re waiting for it to increase in value so you can sell it for more money in five or ten years’ time. And why on earth shouldn’t you, since you own it?

What we are talking about, then, is not something as dramatic as homeowners being forced to sell the very houses they live in, but the difference between that scenario and the one that could be unfolding is only one of degree, not of kind. It remains the case that in the UK, in 2024, your right to property counts for basically nothing if the State is determined to take a house that you own from you so that it can be put ‘back into use’. It will decide what the best use of your property is, and whatever you had in mind will have to disappear in a puff of smoke. If you want to make God laugh, tell North Northamptonshire Council your plans.

Some of the reporting of the story revealed an important misunderstanding on this point. Ross Clark, for example (a journalist for whom I have a very high regard), in a piece he later wrote for the Telegraph raised the question as to why human rights lawyers had had nothing to say about the affair and about the protection of the right to property in general. As he put it, ‘I thought that private property rights were supposed to be defended by humans rights laws.’

As I have explained elsewhere, however, that defence is really only notional. The right to property, such as it exists in the UK, is found in Article 1 of Protocol 1 (A1P1) to the European Convention on Human Rights (with emphases added):

1. Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

2. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

You will of course have noticed that this is tantamount to saying that there is no fundamental right to property in the UK, because all that needs to happen is for the State to decide it would be in the public interest to take a person’s property away, and it can do it ‘subject to the conditions provided for by law’ - i.e. if there is legislation allowing it to do so (which there is - the most recent being the Planning and Compulsory Purchase Act 2004). And in this, of course, the UK is no outlier. Wherever you are sitting, it is almost certainly the case that the State can also take away your property on the basis of a law of ‘eminent domain’ or similar, provided it pays you a fair market price and has some vaguely plausible account as to how doing so is for the greater good.

This all brings to mind one of the key texts to which this substack continually refers: Leo Strauss’s On Tyranny. Here, Strauss makes clear to us firstly that it is entirely appropriate to refer to this governing style as tyrannical, and secondly what it consequences are.

Although ‘tyranny’ conjures in the mind images of brutal authoritarianism or capricious cruelty, Strauss, in a masterful interpretation of Xenophon’s Hiero (purportedly a book of advice to tyrants), shows us that its essence is really the desire that an illegitimate ruler has to provide justification for his own status. A tyrant quintessentially ascends to the throne through extra-constitutional means, and therefore he cannot point to law (or democratic legitimacy) in order to keep his status. Instead, counter-intuitively, in order to prevent himself being overthrown by the population, he needs to try to make them love and depend upon him. This means that a wise tyrant is driven to come up with reasons as to why his rule is actually more practically beneficial than any alternative. (Whether it actually is more beneficial being much less important than it being plausibly described as such.)

This, Strauss tells us, has particular implications for property. The wise tyrant ‘would consider his [entire] fatherland his private property which he would naturally administer according to his own discretion’. Why? Because if the population have strong property rights, they cannot be made dependent on the tyrant - they for the most part can get by perfectly well on their own, thankyouverymuch. If they are to be made dependent, they cannot then be permitted to have property rights as such. Instead, they can only be permitted to enjoy property on sufferance, as a kind of gift or prize that is doled out by the tyrant. What the tyrant wants is for ownership to be contingent on his whim and his purported largesse, so that his beneficence can be made clear.

And this also has implications for law. Tyranny, Strauss tells us, ‘would become morally possible if the identification of “just” and “legal” were not absolutely correct’. What does this strange comment mean? It means that tyranny comes into existence, and derives its justification from, gaps between accounts of justice and law. Wherever somebody is in a position to make an argument that it is necessary to transcend or ignore (or even violate) law in order to properly realise justice, we are in the place where tyranny comes into being. The history of political extremism since the French Revolution is of course a litany of examples of this great insight, whether we think of Robespierre himself (the provincial lawyer who decreed that courts should no longer apply law, but revolutionary spirit in achieving a more complete form of justice); the Bolsheviks (whose legal theory was predicated on the ultimate disappearance of law itself); Pol Pot’s Democratic Kampuchea (which abolished law almost entirely and governed through the people’s will to justice), and countless others like them. But the rationale is by no means the preserve of the genocidaire; it is, rather, a temptation which is ever present when thoughts of political leaders turn to justifications as to why the law is an inconvenient quibble which it would be nice to be able to circumvent. Well, what if the law were an ass, and justice better achieved by ignoring it?

We do not live under a tyranny, in the sense that we live in a constitutional democracy where the commitment to the rule of law remains, at least on the face of it, relatively strong. But the value of Strauss’s insight is that it demonstrates to us the means by which such a constitutional democratic framework can be corrupted. To put the matter crudely, if you begin to govern in the fashion of a tyrant, then, like the child who keeps pulling faces until the wind changes, sooner or later you won’t be able to stop. And by then the distinction between constitutional democracy and tyranny will have ceased to matter. You’ll just be a good old fashioned tyrant in everything but name.

It is within this context that we need to think about the compulsory purchase of property. A tyrant, remember, wants to imagine his whole ‘fatherland’ as his own to manage at his discretion, and he wants to govern in such a way as to trivialise or transcend legal rules in order to demonstrate commitment to a purer or better form of justice. And he wants to do this self-consciously to present himself as good and necessary, and to reduce the population to a state of dependence. One way he might do this is to dream up a bogus ‘right to property’ that effectively achieves the opposite to what that phrase would on its face appear to mean, and to use ‘the public interest’ as a justification for re-allocating property to people more readily conceivable as a dependent class. This would be entirely consistent with his worldview, in which all property is ultimately conceived of as being within his gift to distribute as he sees fit. And it would be entirely consistent with his aim, which is to justify his position on the basis of its basic necessity to a population largely comprising dependents.

To repeat: we still live in a constitutional democracy. But we see before us the myriad means by which its corruption into tyranny could take place. One should not get too excited - we’re not there yet, and may never do so. But we should be very concerned about the blitheness with which our governing classes adopt an essentially tyrannical attitude to property and law.