1.) At various points this essay seems to move back and forth between the rule of law and freedom, which can be confusing and misleading. They are not the same thing. Of course they are related: both are features of modern liberal democracies, the rule of law is probably a necessity if one wants but to secure freedom within a political order, etc. But it would have been nice if the piece said a bit more about what sort of background theory it’s relying on to link these two things together.
2.) I’m not as sure about the point that the rule of law can’t simultaneously exist and not exist. David French had a great piece in the New York Times last week about the Good shooting in which he drew on Edward Fraenkel’s dual state theory of the Nazi legal order by way of an earlier piece by Aziz Huq in The Atlantic. The core idea is that, under the Nazi system, there were two parallels legal tracks: the “normative state”, in which the law functions as we expect (corporations can be formed, contracts are enforced, property rights are respected, adjudication in legal courts under impartially enforced rules occurs, etc.), and the “prerogative state”, where the normal system of law ceases to operate and the state can act with arbitrary, unchecked power. This is a system that worked for an extended period of time under the Nazi regime, with the result that ordinary Germans did not feel they were living under an extraordinary repressive regime (at least in the first years) while Jews and many other disadvantaged groups were being politically persecuted. Lest this point be dismissed because of its association with the Nazis (the first person to bring up the Nazis loses, right?), one can point to other examples of the dual state. The American South during Jim Crow operated in a dual state regime as French points out in a recent podcast, as it involved a normative state governing white Americans while a prerogative state oppressed black Americans; Huq points to Singapore, which has a kind of dual state where normal private activities are governed by a legal system that looks a lot like the English legal system, whereas politically sensitive activities are subject to political repression that is largely immune from judicial intervention (indeed, the judiciary is often a mechanism for this repression); etc. (The dual state theory resonates with an adaptation of a William Gibson phrase I’ve heard and read Ezra Klein use a lot recently: “Authoritarian is already here, it’s just unevenly distributed.”) I think it’s possible to sustain this situation, with its two parallel legal tracks, for a surprisingly long time, provided most Americans interact with normative state rather than the prerogative state. And if this is so, then appealing to the self-interest of elites, particularly commercial elites, may be challenging.
I think it's a good point that a dual state framework can exist but I think
1) The boundary is not enforceable and tends to expand. The split depends on a credible promise: “we’ll keep politics over there.” But once police/prosecutors/courts learn that politics can override rules in some domains, everyone has to price the possibility it can override them in your domain too. The result is higher political risk premiums, more short-termism, more lobbying/nsurance, and less investment.
2) Even a contained prerogative state taxes modern growth. If repression hits a meaningful share of people (or even a strategically important slice: universities, journalists, immigrants, founders, minority communities), you get brain drain, self-censorship, and lower dynamism.
We have seen this movie before: in the 1850s when Southern white supremacists attempted to enforce the odious Fugitive Slave Act through exemplary brutality, and in the 1950s when their ideological and demographic descendants attempted to do the same with the odious Jim Crow laws.
To your point about the interconnectedness of GDP growth and liberal institutions: there is a reason "every map of the US looks the same", a reason the states of the former Confederacy have lagged the rest of the country economically and in every human development metric for most of our history, and it is precisely that capricious authoritarianism, with or without a fig leaf of legal authorization, is bad for economic progress and human flourishing.
My read is that corporate America / centrist business leaders feel like they strayed too far into activism in the early 2020s (eg woke capital). They largely got behind center-left positions, especially on DEI. The Biden administration sort of antagonized them anyway, and the Robby Starbuck attacks landed with the right-leaning public.
They felt pretty badly burned since they pleased no one. Now they’ve decided to avoid politics altogether.
I’m not totally sure who is to blame, or how democrats move forward.
Great post! I have two thoughts:
1.) At various points this essay seems to move back and forth between the rule of law and freedom, which can be confusing and misleading. They are not the same thing. Of course they are related: both are features of modern liberal democracies, the rule of law is probably a necessity if one wants but to secure freedom within a political order, etc. But it would have been nice if the piece said a bit more about what sort of background theory it’s relying on to link these two things together.
2.) I’m not as sure about the point that the rule of law can’t simultaneously exist and not exist. David French had a great piece in the New York Times last week about the Good shooting in which he drew on Edward Fraenkel’s dual state theory of the Nazi legal order by way of an earlier piece by Aziz Huq in The Atlantic. The core idea is that, under the Nazi system, there were two parallels legal tracks: the “normative state”, in which the law functions as we expect (corporations can be formed, contracts are enforced, property rights are respected, adjudication in legal courts under impartially enforced rules occurs, etc.), and the “prerogative state”, where the normal system of law ceases to operate and the state can act with arbitrary, unchecked power. This is a system that worked for an extended period of time under the Nazi regime, with the result that ordinary Germans did not feel they were living under an extraordinary repressive regime (at least in the first years) while Jews and many other disadvantaged groups were being politically persecuted. Lest this point be dismissed because of its association with the Nazis (the first person to bring up the Nazis loses, right?), one can point to other examples of the dual state. The American South during Jim Crow operated in a dual state regime as French points out in a recent podcast, as it involved a normative state governing white Americans while a prerogative state oppressed black Americans; Huq points to Singapore, which has a kind of dual state where normal private activities are governed by a legal system that looks a lot like the English legal system, whereas politically sensitive activities are subject to political repression that is largely immune from judicial intervention (indeed, the judiciary is often a mechanism for this repression); etc. (The dual state theory resonates with an adaptation of a William Gibson phrase I’ve heard and read Ezra Klein use a lot recently: “Authoritarian is already here, it’s just unevenly distributed.”) I think it’s possible to sustain this situation, with its two parallel legal tracks, for a surprisingly long time, provided most Americans interact with normative state rather than the prerogative state. And if this is so, then appealing to the self-interest of elites, particularly commercial elites, may be challenging.
I think it's a good point that a dual state framework can exist but I think
1) The boundary is not enforceable and tends to expand. The split depends on a credible promise: “we’ll keep politics over there.” But once police/prosecutors/courts learn that politics can override rules in some domains, everyone has to price the possibility it can override them in your domain too. The result is higher political risk premiums, more short-termism, more lobbying/nsurance, and less investment.
2) Even a contained prerogative state taxes modern growth. If repression hits a meaningful share of people (or even a strategically important slice: universities, journalists, immigrants, founders, minority communities), you get brain drain, self-censorship, and lower dynamism.
We have seen this movie before: in the 1850s when Southern white supremacists attempted to enforce the odious Fugitive Slave Act through exemplary brutality, and in the 1950s when their ideological and demographic descendants attempted to do the same with the odious Jim Crow laws.
To your point about the interconnectedness of GDP growth and liberal institutions: there is a reason "every map of the US looks the same", a reason the states of the former Confederacy have lagged the rest of the country economically and in every human development metric for most of our history, and it is precisely that capricious authoritarianism, with or without a fig leaf of legal authorization, is bad for economic progress and human flourishing.
My read is that corporate America / centrist business leaders feel like they strayed too far into activism in the early 2020s (eg woke capital). They largely got behind center-left positions, especially on DEI. The Biden administration sort of antagonized them anyway, and the Robby Starbuck attacks landed with the right-leaning public.
They felt pretty badly burned since they pleased no one. Now they’ve decided to avoid politics altogether.
I’m not totally sure who is to blame, or how democrats move forward.
Thank you.