2021-01-26 The rule of law with fundamental rights rests on the distinction between public and private spheres, while recognising common and personal goods (res publica and res privata). The rights of an individual are protected against infringements from other persons and are equally guarded against violations from the state: the apparatus that operates in the name of the public good. As such, a rules-based system that enshrines fundamental rights for its subjects has as its telos an equilibrium between the wants of the person and those of the collective. In concrete terms, one cannot be alienated from their right to free speech by the unilateral act of another person, for that would undermine the principle of equality between the two in the face of the law.
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The rule of law with fundamental rights rests on the distinction between public and private spheres, while recognising common and personal goods (res publica and res privata). The rights of an individual are protected against infringements from other persons and are equally guarded against violations from the state: the apparatus that operates in the name of the public good. As such, a rules-based system that enshrines fundamental rights for its subjects has as its telos an equilibrium between the wants of the person and those of the collective.
In concrete terms, one cannot be alienated from their right to free speech by the unilateral act of another person, for that would undermine the principle of equality between the two in the face of the law. Similarly, the state cannot apply double standards on who may enjoy a given liberty, because such intervention disturbs the balance between the affected groups, but also invalidates the distinction between public and private spheres ceteris paribus.
What limits the scope of a right—indeed any law—in such an order is the presence of other laws which are also promulgated in accordance with the aforementioned dichotomy of the public or private good. Rules with conflicting provisions that may apply to a given case are meant to balance out the well-being of the individual with that of some larger collective. In the case of free speech, for example, prohibitions on the incitement of violence are considered just grounds for the limitation of one’s right, exactly because the wellness of the whole needs to be accounted for when assessing the propriety of one’s act.
There is no boundless freedom nor unlimited authority in a rules-based order that safeguards fundamental rights. Too much individual liberty comes at the cost of potential injustice for categories of citizens, while disproportionate state power can quickly lead to abuses and, ultimately, authoritarianism.
Phenomena differ and such matters are subject to interpretation. No legal framework can foresee all possible permutations between the extremes that may be envisaged in statutes. It thus falls upon the judiciary to exercise discretion in its evaluation of the factors that constitute each case and, in doing so, redraw the context-specific delineations between public and private spheres. Judges are themselves bound by such instruments as procedural law, but also by rules of custom. Technicalities notwithstanding, their authority is neither absolute in scope nor immediate and uncontested in its application.
The demi-state poses a challenge to the rule of law
Against this backdrop, we may investigate the legal-political status of platformarchs. Those are private actors who own critical infrastructure, foundational physical and/or intellectual property, or any other resource that constitutes a prerequisite to either the entry of an enterprise in to a given industry or its continued operation as a competitive entity. Platformarchs are in control of the very foundation upon which the given market sector is based on and, consequently, they do not merely participate in those economic activities but outright enable them.
This position of strength and privilege means that platformarchs can pursue the continuation of state interests through private means, by virtue of providing ancillary or primary facilities to the instituted authorities. For example, private money in the form of cashless payments that have to go through the oligopoly of the banking system, grant the state access to superior tools for monitoring transactions which can, in principle, be used to profile individuals for policing purposes, but also tax them with greater precision, with other nefarious courses of action not ruled out of the domain of possibility.
The state, by deviating from the social contract of a rules-based system with fundamental rights, benefits by propping up platformarchs: it makes its reach wider and its machinations more effective, albeit increasingly sinister. In return, those presumed business people enjoy the unique benefit of living under the impervious shelter of implicit or occasionally explicit sovereign guarantees on their economic endeavours. Just as a “systemically significant” bank is deemed “too big to fail”, an admission of such guarantees entering into force, so are all platformarchs protected from the vicissitudes of the business cycle and, thus, from genuine competition.
There being platformarchs means that the much-vaunted notions of free markets do not have universal application. So called cut-throat competition does exist on top of the platforms, though not for the platforms themselves: they are always there, establishing the two-tier economy, the innate double standard, of the capitalist world.
Which leads to the realisation that the neat dichotomy between public and private spheres fails to account for the reality of what I consider the demi-state, formally defined thus:
The social class comprising private interests that are enabled, supported, protected, or otherwise sustained by the state’s acts of sovereignty, which controls the entry points, critical infrastructure, or other requisite factors of economic conduct, and which, inter alia, provides state-like functions in domains or fields of endeavour outside the narrow confines of profit-oriented production and consumption in exchange for a legally sanctioned oligopolistic privilege in the markets it operates in.
Deplatforming and fundamental rights
Even if we set aside the justifiable critique against the very presence of such a class, we cannot avoid the immediate problems it creates for any self-proclaimed rules-based polity. Platformarchs are private actors who, for all intents and purposes, have state-like powers without any of the concomitant checks on how those may be exercised. Subjects of taxation can, for instance, appeal to the principle of “no taxation without representation” which practically means that the citizenry must maintain the ability to choose its governors and partake in the decision-making processes that affect it. Nothing of the sort applies to omnipotent economic overlords who are neither voted in office, nor can they be forced out of it when their decisions run contrary to the general good.
The least that can be done is to push for a revaluation of platforms as subjects of the law. They cannot be placed in the same category as any other item of private property. Instead, they belong to a special class of goods that must be regulated in such a way as to guarantee the unencumbered application of fundamental rights and the overall functioning of the rules-based polity, including the provisions on “who governs” and “where is the locus of power”.
Which brings us to the tending tendency of deplatforming, the act of banning a person, group, or set of ideas from a given platform, in this case an online network. The particularities of current affairs should not distract us from appreciating the forces at play and understanding the wider implications of sweeping changes that happen with what feels like the press of a button: the platformarch can unilaterally silence a target with no due process, without having to justify their decision to any body or agency, and without any recourse to remedies for those affected.
In essence this injustice is possible because the demi-state is not recognised as such, but rather as a series of private actors. The reasoning is that which applies to individuals: a household owner can decide who to invite at their party, a restaurant can be eclectic about its clientele, and so on. The important detail, however, is that such acts do not ramify into the province of jurisprudence in the sense that they do not shape the very conditions in which fundamental rights may be upheld (notwithstanding the possibility of being illegal in other ways).
To insist on treating the demi-state as akin to the private sector at-large, as some typical family business, is to misrepresent reality and, by extension, to labour against sustainability of the rule of law. To preserve the achievement of a rules-based polity it is necessary to recognise platformarchs as controllers of key resources and proceed to apply special provisions that prevent their activities from either substituting the law on a case-by-case basis or otherwise rendering it irrelevant.
Should some malevolent person be denied of their right to free speech? That may well be answered in the affirmative, provided that all checks have been respected and all other options have been exhausted. Else the decision is odious. It is why we have courts of law: to adjudicate over disputes on who maintains the right to do what in light of the prevailing circumstances and, consequently, to determine what may be considered just. Any limitation on fundamental rights must be deemed absolutely necessary, narrow in scope, and proportional in application.
[ Notes on Rules ]
The power of deplatforming as a threat to the rule of law
It is easy for short-term party politics and temporary emotions to prevail over reason, just as it has been proven time and again that a democracy can descend into ochlocracy (mob rule) or some other form of tyranny whenever the values underpinning the polity are suspended.
The expedient lie that perhaps well-meaning persons will believe in is that the end of deplatforming some controversial and much-maligned person or group thereof justifies the means of letting platformarchs operate in legality’s stead. Such considerations cannot form a reliable basis for the longer term well-being of the political whole, as there is nothing whatsoever that confines the arbitrary and inherently disproportionate medium of deplatforming from applying to any target given the right circumstances.
Furthermore, there is no credible guarantee against covert forms of deplatforming in online networks, realised as variants of so-called “filter bubbles”, where algorithms purposefully demote or outright conceal certain items from ever entering the public mind while reinforcing biases in parallel. Coupled with the phenomenon of fake news and the money-making and oligopolistic incentives of platformarchs, such opaque instruments cannot be trusted to promote the general interest nor should they, given the complete absence of institutionalised checks on their ongoing operation.
Activism against “the wrong people”, which supports large-scale censorship and other draconian measures in the name of democracy is misguided. It essentially misunderstands the wise compromise that underlies the spirit of fundamental rights, namely, that when all factors are considered it is safer to grant freedoms indiscriminately at the outset than to offer liberty only to those who are deemed worthy of it ex post facto by some unaccountable hierarchy.
What ultimately is at stake here is whether a body politic will remain faithful to a rules-based system, with the proviso that it recalibrates it to account for the presence of the demi-state. Otherwise society will be forced down the treacherous path of trusting the demi-state to whimsically interpret the public good; a demi-state that is free from any constraints on the exercise of its newfound authority.
Today some online network is gagging your political opponents and you approve of it because you deplore those people. Tomorrow the banking system of a cashless economy will be able to render anyone monetarily homeless just by denying them services. Extend that to health insurance and pharmaceuticals and all other industries where platformarchs exist. And then try to answer with sincerity, who governs and wheres is the locus of power.
Allowing an economic elite to act as the arbiter of all legality and the judge of all morality is a recipe for disaster. It is the telltale sign of a polity that is on the cusp of tyranny.