Law and the British Regime

How two-tier justice produces an 'effectual truth'

The group-whether one, few, or many—that has made and can remake the laws, customs, and beliefs of a society, is responsible for the particular way in which this society coheres. Thus the most important question to ask about any society is: who rules? When that question is answered, one has learned the ordering principle of the society, for rulers make laws that conform to their rule. Some rule is indispensable to human society, and rulers try to make their rule indispensable to this society by forming the society so that it respects and needs them.

-Harvey C Mansfield

It is a curious feature of the British State, now being starkly and shamefully revealed in all of its grotesque and mendacious ineptitude before the eyes of the world, that while it loudly trumpets its claims to be able to singlehandedly ‘grow’ the economy, start entire industrial revolutions, make everybody healthier, get everybody cycling to work, control how much porridge the population eats, and so on, it cannot do the one thing that it is absolutely unambiguously necessary for a State to do: maintain and enforce a neutral, abstract, generally applicable framework of legal rules.

This is, though, really no accident. In many posts here on my Substack, I have made the case that the modern British State exemplifies, almost better than any other, a particular mode of governing that originated at the dawn of political modernity, and which finds its almost complete expression in the drab, soulless entities who now lurk in 10 and 11 Downing Street. And this mode of governing is, above all else, associated with one thing - the instrumentalisation of law, and the selective enforcement of rules, in order not just to achieve political objectives but to produce ‘truth’.

At the very beginning of The Prince, Machiavelli sets it all out for us, whether he intended to or not: political modernity will involve the disenchantment of politics - it will cease to be a theological or spiritual affair. Politics from now on will purely be a temporal matter. And this will mean that political authority will be able to draw on only two possible rationales. It will be able to justify itself on the basis of the personal virtù or virtuosity of the ruler, the prince, in improving the temporal world. Or it will be able to justify itself on the basis of representing the virtù of the population - not in the democratic sense, but in the sense of giving effect to and maintaining the norms and customs associated with their way of life. It can in other words constitute a republic.

At the heart of this distinction between principality and republic is law. A republic is almost synonymous with the rule of law in the classical sense, because the main way in which a State is constituted representatively is through the creation and administration of a system of legal rules that reflect the society’s norms - the grammar within which the people conduct themselves. Here, political power is almost the same thing as the existence of a generalised and abstract set of rules which reflect the people’s virtù, and politics itself is a matter of deciding best how to administer those rules and change them in light of changing social expectations and the exigencies of events.

The prince, however, whose claim to possess authority rests on his personal virtuosity - his wisdom, cunning, ruthlessness, skill, expertise, knowledge, etc. - understands law only as a tool to realise what Harvey Mansfield has in recent work described as an ‘effectual truth’. The prince seeks to order society as he sees fit in order to maintain his status and to ensure he can provide a plausible narrative of improvement and his own necessity. And he therefore uses law precisely to produce that outcome. He seeks to legislate so as to make it ‘true’ for those he governs that his existence is essential and that he is uniquely able to improve their otherwise miserable lot. And he seeks also to use law to produce other ‘truths’ which bolster his status and help create a social order which suits him.

This is why in the whole of The Prince we find law being mentioned precisely three times. On the first of these occasions, it is cited in the context of a prince who has taken over a republic which is accustomed to living in freedom under its own laws - the implication being that the prince in such circumstances is advised precisely to change said laws. On the second, it is described as being necessary to the prince that there exist ‘good laws’ so that his status can be secured. And on the third it is described as being beneficial to the prince that there should exist laws that will allow him to present himself as benevolent in the eyes of the population to the redounding of his glory.

Modern regimes, then, have within them the tendency to govern in the mode of a prince, and when they do this they correspondingly have a tendency to deploy law rather than to simply administer and enforce rules. And they deploy it in a biased way: to achieve desired outcomes and, more importantly, to produce within the population an ‘effectual truth’ - a particular understanding of reality.

The British regime (and I of course include almost all the main political parties in this, along with the very wide ‘new elite’ establishment penumbra from which they draw their ideas, policies, mores and values), caught up in the princely mode, is in the very entrenched habit of deploying law instrumentally. It happens everywhere you look - the Equality Act 2010, transforming employers into private enforcers of the sibling society; the Energy Act 2023, creating the framework within which the government can control energy consumption within individual households; the mad practice of dealing out ‘Non-Crime Hate Incidents’ so as to keep the population well-behaved; the deployment of financial regulation to create ‘orderly markets’; the absurd paternalism behind consumer rights legislation; the litany goes on. All of it designed to reinforce the prince’s claim to be uniquely blessed with the capacity to make society better. And all of it designed to produce the effectual truths upon which the regime relies.

It is no surprise at all then to anybody familiar with the way in which it operates that the British regime should take such a biased approach to the way in which it enforces, as well as makes, law - particularly when it comes the criminal law. The rape gangs scandal is in this sense almost to be understood as the cutting edge of princely government - the paradigm example of law being used (or, perhaps I should say, refrained from being used) as a tool to realise a ‘truth’, namely, that multiculturalism is working fine and dandy, integration is tickety-boo, and the only real problems associated with mass immigration are attributable to the lamentable, grubby, petty, neanderthal views and habits of the oikish local deplorables. When any event surfaced that might threaten the monolithic acceptance of that ‘truth’ - such as an adolescent girl complaining about having been gang-raped - it turned out the law was largely silent. It was deployed to maintain the ‘truth’. And we are all of course familiar with what happens in the converse situation that emerges whenever anybody does or says anything to challenge that ‘truth’ other than in the most mealy-mouthed terms.

But as I have also elsewhere put it, Machiavelli himself had a clear sense that princely rule could not last indefinitely: a regime which governs in such a way has a limited shelf-life for the simple reason that in the end ‘all do wrong’. Sooner or later any regime will find itself being led not by a Marcus Aurelius but by a Caligula or Nero. There is no doubt whatsoever that we are now entering such a moment, and that the very order which our current regime has established - and the effectual truths upon which it relies - are under intense pressure that the incumbents are simply too incompetent and callow to resist. In the end, effectual truth cannot prevent the Truth itself from emerging wherever people retain some capacity to think and speak freely - and when that happens, we can expect the very constitutional order upon which the ruling regime rests to be overturned.

They are terrified of this, which is why we are being treated to the bizarre spectacle of the regime’s main cheerleaders, the OAPs-in-the-room, appearing on radio to say odd things about a ‘foreign far-right conspiracy theorist’ (Elon Musk) ‘denigrating’ Britain and spreading ‘disunity’ by pointing out that covering up child rape and torture is bad. This bluster can all be safely ignored. A genuine fin de siécle mood has set in across the land - I can’t remember a time when things felt quite so brittle - and one sometimes gets the sense that one more blow from the Truth will shatter the whole edifice. The big question is whether in the aftermath of inevitable, generalised collapse a more sane, humane, moral order can be reconstituted through a republican model of the rule of law. The way things are going, this question may require answering faster than any of us previously thought.