Submitted by Daniel Cloud
The authorities in Hong Kong are once again threatening to clear the protest sites. They have a legal pretext, in the form of court orders issued in response to complaints from the owners of buildings, who are losing traffic. The powers that be are in no mood for compromise. “Police urge the illegal road occupiers to obey the court order, remove obstacles and personal belongings, and stop the illegal occupation soonest.”
Momentum has been lost, for the time being, so the government has decided to put on a little more pressure, to see if it can’t finally end the whole incident. That may work, in the short term, or it may backfire again. But in the medium and long term, the protestors aren’t really going to go away permanently, because their perfectly legitimate grievance – no democracy, therefore no real rule of law or protection for basic human rights – isn’t going to go away. The people of Hong Kong are thoroughly familiar with the modern word, and they know what they deserve. There just isn’t any way to get a whole city full of highly educated modern people to accept that they can’t have the same rights as everyone else in the developed world. There isn’t any legitimate reason the authorities could possibly give for why that should be - none that’s more sophisticated than “because I’m going to kill you if you don’t shut up about it.” But that means that no matter how many times the protestors are removed, they’ll always come back, sooner or later. The government can’t win a long war of political attrition with the protest movement, though they may think they can now, because, according to the basic social contract of a modern society, they’re simply in the wrong. There’s no way for them to fix that, and there’s no way for them to stop people from noticing it. So the injury will keep being insulting, and protests will keep flaring up until the problem is fixed or they’re violently crushed.
But let’s give the Devil his due. The authorities must still suppose that they have some plausible excuse for their actions, some reason, which they hope Hong Kong people will eventually accept, that justifies their repeated attempts to deprive their citizens of the basic right of assembly. The crucial question for predicting the ultimate outcome of this protracted confrontation is whether that story actually makes any sense, whether it is something educated people in a modern society could possibly remain convinced of for very long. What is it? What do they say when they do these things, if it isn’t simply the familiar “shut up or I’m going to kill you” which we all remember so fondly from Tiananmen? What’s their excuse?
In fact, the Hong Kong government keeps trying to explain its various attempts to deprive Hong Kong people of their civil rights by saying that they’re needed to preserve “public order”. But is that really a legitimate reason? What is the actual relationship between civil rights and public order? And what makes this kind of non-violent mass protest happen in the first place? What are the protestors trying to achieve? Is it or is it not something that justifies a disruption of public order? Confronted with these questions, different people might come up with different answers, at least at first, so let me try to give you a rational account of the considerations involved, as I understand them, and we’ll see if you agree with me that the Hong Kong government’s justification for its actions is ultimately unconvincing.
The instinct to gather a quorum when confronted by a tyrant is deeply engraved in the human genome. We evolved in small societies, roving bands of hunter-gatherers. Christopher Boehm shows, in Hierarchy in the Forest, that those societies tend to be very egalitarian, with a strong emphasis on personal autonomy. Occasionally domineering individuals do appear, but it’s easy for everyone to meet behind their back and decide that they must be exiled or killed. Sometimes the relatives of the man being dealt with in this way are the ones who actually have to do the deed. The important thing is that the decision must be made and executed by the whole community, acting in concert. Individually each member would be afraid to oppose the bully, but together they have courage.
In larger human societies, this instinct for collective resistance to illegitimate authority can make coordination difficult. Strangers must interact with each other, and disputes arise that can’t be resolved by consensus. Conventional laws must be created to supplement our shared preferences, and authority must be delegated to those who enforce them. But this results in societies that are ordered by two very different principles, which can easily come into conflict.
Most of us share a preference that nobody should commit murder. That is an unconditional shared preference about everyone’s behavior. Even if most other people started committing murders, we would still feel that everyone really should refrain. We can think of the preferences about how everyone should behave which most people share as the social contract. This shared sense of justice and propriety is the original principle of order in human societies, but in societies too large and complex to be managed entirely by peer pressure, enforceable, somewhat arbitrary conventions are needed to make it effective.
For example, most of us, in North America, would prefer that each other person follow the convention of driving on the right side of the road. But if everyone else started driving on the left hand side of the road, we would prefer that the person switch to the left hand side. Our preferences about their behavior, in this case, are conditional – they depend on what everyone else is doing, unlike our unconditional preference that everyone refrain from murder. There is supposed to be a particular relationship between these two different kinds of social rule. It’s part of the social contract that people ought to drive down the same side of the road as everybody else, because to do otherwise might result in negligent homicide, but the rule that it must be the right side in particular is just a convenient convention for implementing the social contract, one of two equally good alternative ways of doing that.
The same thing is true of any traffic rule. It could have been otherwise, but it’s part of the social contract that whatever it actually is must be conformed to. Laws in general have this same conventional character. They always could have been otherwise, and yet following them is still obligatory. Even constitutions and the whole systems of government they underpin are also basically just systems of somewhat arbitrary conventions for implementing the society’s underlying social contract.
If everyone else is driving on the right, most people would prefer to do the same, but a few drunks or scofflaws might flout the rule, if there were no traffic police. The social contract requires adherence to conventional laws under normal circumstances, so it supports the existence of police to enforce this convention. The problem in a society that doesn’t have regular, meaningful, free and fair elections and an independent judiciary is that there is no similar group of people whose job it is to defend the underlying social contract. If the laws or the system of government come into conflict with the social contract, if they become arbitrary in the bad sense of the word, there are police (and soldiers) to enforce the laws, but there is no conventional arrangement for stopping the police from enforcing them, even though the laws are supposed to be mere ways of implementing the social contract.
A society in that situation is like an unsafe coal mine. As long as everyone else is still working, I may need to go on working there, so I can feed my family. And as long as I’m still working, I want each other person to come to work, because the mine would be even less safe with a skeleton crew. So I conform to the convention of continuing to work. But though I want each other person to continue conforming as long as everyone else is, I would be much happier if all of us didn’t come to work one day, because then we might be able to force the owner to improve the safety of the mine. My fellow workers probably feel the same way, they probably wish we could all strike. If we could all gather together somewhere, we could easily see that everyone else was just as willing to strike as we were, and management would be in trouble. So management doesn’t want us to gather a quorum, and they’re likely to send goons to break up our meetings.
And this is just exactly what the preservation of public order at the expense of a basic human right, the right of assembly, is all about. It’s all about preventing the formation of a quorum, a visible critical mass of disaffected citizens for mass disobedience to crystallize around. It’s precisely the conventions of public order, the unelected government that’s constituted by them, and the violations of basic rights they entail that the protestors are threatening to unravel with their protest, so that a new set of conventions more consistent with the social contract can be adopted in their place.
Usually the social contract requires us to follow those conventions, and obey the law, but when the government violates our civil rights by denying us the right of assembly, that obligation can become reversed. Then we must not conform to them, though we’re still bound by the social contract.
In a democratic revolution, the protestors have the goal of creating a new set of conventional arrangements for periodically allowing a quorum of citizens to accept or reject their government and their laws. That is supposed to ensure that the laws don’t conflict with the social contract most of the time, and it will make it possible for citizens to do something about the situation when they do. If such a mechanism is already in place, the social contract is already adequately protected, so the gathering of citizens in public does nothing to erode the legitimacy of the government, and protests are harmless. Occupying Wall Street doesn’t cancel the last election, as long as there’s a next one coming, and as long as that next election will be free and fair and genuinely meaningful, and not a sham, like Hong Kong’s “elections”.
The use of force to disperse peaceful protestors is normally an attempt to prevent the assembly of a quorum, in a situation where that must be prevented to preserve an ongoing violation of the society’s social contract, or to disperse a quorum that has already formed. But it’s risky, because if it becomes too obvious that the government’s goal is preserving its ability to flout the social contract, it can lose legitimacy. The violence cuts two ways, undermining the state’s authority even as it deters the protestors.
Authority in modern human societies results from a combination of legitimacy – the shared sense that most people probably are willing to accept some act or some law or some government, that it’s in accordance with the social contract and our accepted conventions for implementing it – and power, having traffic police to deal with those few people who don’t. If legitimacy evaporates as a result of brutal and unsuccessful attempts to prevent or break up a peaceful assembly, authority disappears with it, and all the government is left with is power. Often this is not enough to allow it to hold together as an entity. People begin to refuse orders, there’s no way to shoot all of them, and it dissolves. Then, if the social contract of the society is consistent with democracy and the rule of law, a new government can be formed, and plans for elections can be put in motion.
In a modern society, the social contract itself is a fluid, constantly evolving thing, because our shared preferences and values are always evolving as our way of life changes. Changing preferences mean that the laws and conventions by which a modern society is governed must change constantly as well. The whole apparatus of democracy and the rule of law is there to keep the conventions of public order in harmony with the evolving social contract, and rapidly and efficiently resolve conflicts between them. Only the rule of law in the fullest possible sense – real legislators chosen by free and fair elections, an independent judiciary, and a modern, constantly evolving legal code, which is enforced in an impartial and reasonable manner – can create a long-lasting harmony of this kind in a modern society, so it is only where the rule of law is enshrined in the social contract, where all of these things are widely shared societal values, that a revolution against a tyranny can produce anything but more tyranny.
Unfortunately, there are several things that can go wrong with this process. If the government is ruling not one natural society but several, stripping away the conventions that allow them to avoid fighting each other may result in a civil war, rather than the formation of a new government. Or there may be an underlying social contract – but not one consistent with democracy and the rule of law. In this case, unless that changes, sooner or later the people will simply elect another tyrant. (In Egypt, it was sooner.)
In Syria, the government lost legitimacy when it began using snipers against peaceful protestors. (Deliberately and publicly murdering your own citizens tends to be perceived as a violation of the social contract in almost any society.) Its authority as the government of Syria collapsed – but it continued to exist as an extremely well-armed militia for the Alawite minority that controlled it. The national government became the government of a single ethnic group, but retained its legitimacy within that group. That residual power was enough to prevent the formation of a new national government, and created the Hobbesian hell that is Syria today.
Sadly, Hong Kong faces a somewhat similar situation. It isn’t the capital of China. No matter what happens there, the authority of the Chinese government is unlikely to be shaken. They are uniquely well positioned to get away with murder, to repeat Tiananmen and crush the protests, if they get out of hand. So the government of Hong Kong is right, there really is a grave danger that would result from a breakdown of public order. What they’re not saying, though, is that the danger actually comes from them, and their backers in Beijing, rather than from anything the demonstrators are doing. What they’re telling the protestors still really does just boil down to “shut up or I’ll kill you”, which is unfortunate, since it means that they actually will have to be willing to publicly murder their own citizens, in the end, to make the threat credible, with all the further risks to public order and their own legitimacy that that course of action entails.
The problem, of course, is what would happen afterwards. Hong Kong would be badly damaged. China, with its economy already in trouble, would then also be on an irreversible collision course with the rest of the world, with our emerging world society and its own nascent social contract. (This is why the Chinese government was so angry about Kenny G’s visit with the protestors. The last thing they want is for foreigners to begin to join them, because it will make killing them harder, if it ever comes to that.) The Chinese people themselves would be bitterly disappointed. A massacre in Hong Kong now would be the beginning of endless troubles for the Party.
Waiting and doing nothing is dangerous, because the demonstrations awaken and tantalize the human appetite for justice, tempting others in China to try to steal that delicious fruit. But doing what would be necessary to permanently shut the people of Hong Kong up, now that they’ve started talking back, would also be incredibly dangerous, since it could seriously damage the central government’s legitimacy. With the economy going sour, things were already pretty bad. Now the Party faces a problem that leaves them no good options.
If the protests gain momentum again, as they will sooner or later, accepting the students’ demands would in fact probably be their best choice, out of the unappetizing menu of choices in front of them, since it would preserve their legitimacy long enough to allow them to regain the initiative. Taiwan is already irreversibly a liberal democracy – letting Hong Kong be one as well would bring reunification one step closer, and decisively preventing that will make reunification permanently impossible. But it would be very surprising to see the current government of China make that wise and bold decision. There really is no justification for trying to preserve public order at the expense of fundamental civil rights – but the Party’s whole excuse for existing, at this point in its history, is the fiction that there is.
Daniel Cloud teaches philosophy at Princeton University. Other things he has written can be found in the ZH archives, and at http://www.amazon.com/Daniel-Cloud/e/B00OAQBC20 [7]
