31st July 2025
Protecting rights when causing pain is the point of policy
At the beginning of The Lion, The Witch and the Wardrobe it is always winter and never Christmas.
In the United States at the moment, as well as in some other places, it seems that it is always a carnival and never Lent.
Here ‘carnival’ is meant as a period where usual norms and rules are disregarded, a time for ‘anything goes’ – which, in US law and policy terms, means anything the federal government can get away with.
And it is not any old carnival, but one where the federal government is be as cruel as possible to those to whom it can be cruel.
It is thereby a carnival – a carnival of cruelty.
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There is a quaint view that human beings need some reason to be cruel.
This is the view associated generally with, say, discussion of the Milgram experiment or the ongoing historiographical debates over the actions of the German reserve police battalion 101, where there is discussion over the motives of those who are cruel – and whether they are being merely obedient to authority.
But human beings often do not need a pretext or a reason, still less a justification, to be cruel to other human beings.
They just need an opportunity.
Some of the commentary about the approach of the Trump presidency emphasises the cruelty:
If this is the case – and the impression conveyed by what is being reported by the news indicates this is the case – then where does that leave law and policy?
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In a modern liberal democracy one fundamental – indeed, absolute – value is that cruelty is wrong.
In the words of Judith Shklar, cruelty is the worst thing we can do.
(Shklar, like Hannah Arendt, is a political philosopher whose work is now more relevant than one would like.)
A liberal democracy thereby often proceeds on the happy assumptions that creulty can be banned and that, left to themselves, those with political or coercive power will not be cruel – and if they are, there will be legal protections for those facing the cruelty.
But what if those with political and coercive power do not care anymore about being cruel – or even being seen as cruel?
And what if those who are supposed to check and balance those with political and coercive power – the legislature or the judiciary – nod-along with the cruelty, and even clap and cheer?
One by one, each of the hallowed constitutional principles of a liberal democracy have been found to be an empty slogan.
A codified constitution has offered no protection – when there is no constitutionalism.
The seperation of powers offers no protection – when those powers are aligned against the individual.
The rule of law offers no protection – when the courts uphold unlawful decrees, and stay or deny all challenges.
The carnival of cruelty continues, and continues – and nothing intrinsic to the polity can bring it to an end.
No polite, uniformed grown-up is going to suddenly turn up on the beach (from their own warship) and bring an end to this lordship of the flies:
This is a two-minute hate which lasts rather longer:
As Adam Serwer set out first in a remarkable essay and then in a book, the cruelty is the point.
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Until and unless there are any elections that mean that the policy will change, there is little that can be done to face this down completely.
But there are things: litigation is still being brought, pressure is still being placed on legislators, and the media are still reporting things (else we would not be aware of various abuses) – and there is still the prospect of elections (though some rightly fear about whether those elections will be free and fair).
The carnival of cruelty has not consumed everyone, and one can still see it from the outside, and there are still parts of the town as yet untouched.
One day the carnival of cruelty may come to an end.
But this is not a good time for law and policy in the United States (and elsewhere).
The institutions and constitutional principles that were there to protect individuals from an illiberal, cruel state have been tested, and they have failed.
And if – if – liberals and progressives are ever back in power, considerable thought needs to be applied to how such a total law and policy failure can be avoided next time.
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I’m afraid that the first thing that came to my mind on reading this (with which I cannot disagree) is the song from M.A.S.H. ‘Suicide is Painless’!
The second thought, however, is that there was one other component of Pandora’s box … hope. Nothing lasts for ever and this too shall pass. Which does not, of course, excuse us from the obligation to work as hard as we can, in our various ways, to make it pass more quickly.
Thank you. Accurate and stirring; a rare combination.
I agree!
There’s a good number of YouTube channels that are dedicated to documenting the day-by-day cruelty and corruption of the Trump régime. I recommend The Meidas Touch and Brian Tyler Cohen, which are definitely left-wing in their approach, and also The Lincoln Project and The Bulwark, whose contributors are mainly traditional Republicans who value liberal democracy and deplore what Trump has done to their country and their party.
Indeed.
And yet, what traction are these channels getting? The great shrug of indifference. That is what is scary – the indifference of the Trump electoral bloc.
[The YouTube channels are like] “those wonderful Berlin cabarets which did so much to stop the rise of Hitler and prevent the outbreak of the Second World War.”
RIP Peter Cook
And it’s not a surprise they shrug, as they are safe in the anonymity of their cruelty, and will never face any consequences stemming from it. I’m frightened of the quiet ones, not the ones whose face and opinions are plastered all over.
What I think is most telling here – and thanks to Maria for pointing this out – is that when it comes to finding a counter-narrative to educate the electorate on the lawless conduct of the current administration – it is necessary to turn to a couple of independent journalists who stood up to be counted, a niche publication… and a coalition of disaffected former Republicans.
When you look at what the actual Democratic Party Leadership are doing, the silence is deafening and the incompetence bewildering. AOC and Bernie Sanders did a tour… collected a bunch of donation money… then went home and did nothing else. Senator Cory Booker got all righteous and indignant with fellow Democratic Senators… after failing to resist when the very bill he opposed on the floor of the Senate was going through a Committee on which he represents his party…
Nancy Pelosi pulled strings to give the Democratic Lead of the Oversight Committee to Gerry Connolly, who did *nothing* in the role, before he sadly died of cancer.
You would think that an organised Democratic Caucus would have at minimum a weekly news conference, giving journalists highlights on the way that Trump’s administration was breaking the law. You would think that there would be a “topic of the day” that a bunch of Congressional Democrats would take to every TV and Cable and Radio show that would have them, to hammer home a common set of talking points. You would think that Democrats would be pushing back so hard against the Trump administration that he wouldn’t dare show his face in public.
There is a shocking leadership vacuum in the US Democrats and the moment, caused largely, it seems, by the arrogance and ignorance of the octogenerian incumbents, who clearly failed to perform any kind of succession planning, and who continue to advertise that they are so out of touch with the most animated part of the electorate – younger voters.
This reminds me very much of the “Michael Foot” years of the British Labour party – when they became so disorganised and demoralised that they didn’t even believe in themselves, never mind being able to persuade the British electorate to vote for them.
That the US could be entering in to that sort of political cycle fills me with utter dread. Margaret Thatcher took the Conservatives to Downing Street in 1979 – and they remained in power until 1997 – 18 years. I shudder to think what the United States might look like if MAGA Republicans were to remain in office for the next 16-20 years.
My best friend married an American girl 30 years ago. moved to the USA and had a family.
They live in the conservative south but were, until recently ‘passive progressives’.
His wife recently chose to display some anti-MAGA/Trump material on the house and were pleasantly surprised by the mostly positive reaction of their neighbours.
However a local senior MAGA politician published photographs of the house on a web-site and in printed material labelling them among other slurs, ‘traitors’ and ‘anti-American’.
As far as I’m aware their names and addresses were not published but the locality of the house was.
It’s hard to conclude anything other than this was intended to intimidate perhaps as an inferred invitation for committed third parties to initiate their own actions?
Knowing such casual callousness is not only tolerated but even encouraged, I have several US friends, including two University Professors who themselves completely from social media and even to modify what they teach.
These are both examples of ‘the chilling effect’, which among other things requires people to believe the authorities and those emboldened by authority, are both cruel enough to carry out their threats, real and implied, and feel able to do so without fear of recrimination.
All it’s taken is 6 months.
History rhymes etc. The US economy is fraying at the edges and the problems are intractable. Trump is surrounded by immensely rich supporters but (much) further down people feel threatened by lawlessness, economic hardship, competition from immigrants and from China etc.
Trump can’t do much about the problems, few solutions and few (very unpopular) measures available to him. He and his party depend on money coming in and the providers of that money demand a payback. The best democracy money can buy.
What to do? There is always someone worse than yourself, someone to vilify and blame rightly or wrongly, makes news headlines and looks like you are doing something. Depends how dirty you are prepared to play this ancient game.
Trump’s people play hardball or are trying to. But I don’t think the game is working all that well, the financial markets are getting twitchy and the newsreels paint an ugly picture. Dirty isn’t working (enough?).
So what’s to do next, double down and be nastier? That game looks to be running out of steam. As with previous US adventures any fool can drop bombs and missiles and bully people, what to do next is the hard bit and the US has usually been very poor at that job.
Which leaves Trump and more importantly Republicans with a problem. 2028 is not that far away and there is big money and big reputations on the line. If they let things ride there is a fair chance of a loss – a fuss and palaver but a loss nonetheless however useless the Democrats look. Maybe there will be a putsch to change US ‘democracy’, very risky. A fair chance the financiers won’t support it and a good number of Republicans don’t like Trump’s vulgarian approach.
Provide Trump with a post 2028 rathole and he will take it, don’t and he may attack.
The word “cruelty” needs some elaboration. One intellectual weakness of the left is confusing cruelty (always wrong) with harshness–an occasionally necessary evil. Incarcerations, foreclosures, evictions, deportations–all harsh and hurtful, but a necessary part of the fabric of any “developed” society I have heard of. Harshness is the rod of the rule of law. It is something to be minimized, but cannot be dispensed with.
The distinction between harshness and cruelty is little more than a state of mind–but it is an absolutely necessary one.
My post works with any general definition of ‘cruelty’ – that is why I did not define it as a term, unlike another term in my post. Had I my post depended on a special definition of that word, I would have defined it. But because it did not, I did not.
One must be careful not to define unwelcome things out of existence.
How shall their Second Republic be constituted, differently or more robustly than their First?
Ankh -Morpork has fewer constitutional elements, but the Guild of Assassins might be one of them.
The Patrician had words on the subject:
“You see, the only thing the good people are good at is overthrowing the bad people. And you’re good at that, I’ll grant you. But the trouble is it’s the only thing you’re good at. One day it’s the ringing of the bells and the casting down of the evil tyrant, and the next it’s everyone sitting around complaining that ever since the tyrant was overthrown no one’s been taking out the trash. Because the bad people know how to plan. It’s part of the specification, you might say. Every evil tyrant has a plan to rule the world. The good people don’t seem to have the knack.“
David, you mention the USA constitution and its separation of powers. But surely one cause of the current debacle is that these powers are not in fact very separate. The President appoints the members of the Supreme Court, resulting at present in a very reactionary institution which is determined to support Trump against prosecution! Apparently he also appoints other senior federal judges. Surely judicial appointments should be on the basis of merit, not at the whim of the incumbent head of the executive branch.