THE SHIELD OF ACHILLES

by Bobbitt, Philip

  On behalf of the victorious nation-states of the Long War, propaganda has been chiefly directed at advertising the ideology of democracy, equalitity, and personal freedom. With respect to democracy, it may be that, in the words of one analyst, such advertising has persuaded “too much,”18 for few nation-states can provide examples of the kind of democracy that is propagandized. In any case, it is well-documented that the publics of the Western democracies do not generally believe in many of the practical constitutional underpinnings of the parliamentary states. For example, the publics in the United States and the United Kingdom do not believe in an adversarial political system (“Why can't the politicians put partisan differences aside and do what's best for the country?”); they do not believe in the protection of criminal rights (“If he's not guilty, why do you think he was arrested and indicted? A criminal should not go free on ‘technical' grounds”); they do not believe in the adversarial role of lawyers (“If we could just sit down without the lawyers, we could sort out our differences. A lawyer only wants you to hear his side of the story”) and cannot bring themselves to believe that an ethical attorney would defend a client he believed to be guilty or take a position on a legal question solely because it was in his client's interest to do so* Americans, by significant majorities, believe there should be prayers in the public schools, that news reporters should be forced to reveal their sources when presented with a subpoena, that a refusal to testify on one's own behalf is tantamount to a confession of guilt, and that politicians generally—though not, it should be noted, one's own congressman—are professional liars and that federal judges should not have life tenure—all attitudes that are considerably at variance with the constitutional operation of the system that, taken as a whole, Americans revere.

  Nor can the nation-state assure equality, if by that is meant the equal treatment of different cultural communities. The boundaries of the states of the world do not, and could not, coincide with the various cultural communities that make up their populations, communities that are bound by common religion, language, or ethnicity, because these communities themselves are often overlapping and multiple but seldom coextensive. Moreover, the nation-state is, oddly, the enemy of “nations” as such, or ethnicity, because, at least in its most popular form, it must ally one, and only one, ethnic group with the State, which also must be unitary, with one and only one sovereign. Bismarck's nation-state, not Lincoln's, has generally been the model for the world.

  Or to put it another way, we will inevitably get a multicultural state when the nation-state loses its legitimacy as the provider and guarantor of equality. And this legitimacy it must lose if equality is understood as an equality among ethnic groups. This is apparent in such appalling but doubtless well-intended experiments as the Australian adoption and relocation of Aboriginal children, as well as the useful but regrettable American practice of affirmative action. In both cases, a dominant national group is setting the terms of assimilation on the basis of which the State will assure equality to individuals and, by setting those terms, implicitly denying equal status to the group that is thought to be in need of assistance. Without affirmative action, the presence of some ethnic groups will be diminished in some meritocratic professions and institutions; with affirmative action, many will be confined to a second-class status that is re-enforced by the hostility of those who are displaced. Either way, it is the cultural standards of “merit” that set the terms of the debate, that is, that require “affirmative” action in the first place, or that seek to block that action on grounds that it is unjust.

  These two opposing but interacting phenomena—the oppression of minority groups by the nation (that is, by the dominant ethnic group with whom the State is identified) and the resistance to an assimilation that might overcome oppression—are damaging to the legitimacy of those nation-states that are based on the promise of assuring equality among all national members.* As a result, it is increasingly difficult in multicultural, multiethnic states to get consensus on public-order problems and the maintenance of rule-based legal action, which are core tasks of the State.

  Finally, the techniques of mass propaganda also threaten the claim of the State to ensure the conditions of freedom.19 This is most easily seen in the immense power of the modern electronic media and the press. More than any other development it is the increased influence of the news media that has delegitimated the State, largely through its ability to disrupt the history of the State, that process of self-portrayal that unites strategy and law and forms the basis for legitimacy. This perhaps is most egregiously evident in phenomena like the digitized re-creation of President Kennedy's assassination in a movie “showing” a government plot to kill the president, but it is also evident in the nightly news broadcasts, where confident and placid presenters portray the political events of the day as repetitive, formulaic entertainments. Journalists themselves soon become the important characters in the historical narrative portrayed by journalism; politicians and officials merely provide the props. The story of government becomes the story of personalities in conflict with the media itself, and the story of official evasion and incompetence unmasked by the investigative entrepre-neurs of the news business.

  The press and electronic media, far more than the drab press releases of any government, are the engines of mass propaganda today, and it should be borne in mind that the press, when it is not controlled by the State, is driven by the need to deliver consumers to advertisers, 20 and whether State-owned or not, is animated by the conditions of competition among all news media. Whatever the individual aspirations of its reporters and editors, the ideology of media journalism is the ideology of consumerism, presentism, competition, hyperbole (characteristics evoked in its readers and watchers)—as well as skepticism, envy, and contempt (the reactions it rains on government officials). No State that bases its legitimacy on claims of continuity with tradition, that requires citizen self-sacrifice, that depends on a consensus of respect, can prosper for very long in such an environment. It must either change so as to become less vulnerable to such assaults, or resort to repression. Some nation-states do the latter; the liberal democracies, whose claims to ensure civil liberties are as much a part of their reason for being as any other functions, cannot do this. At best they can manipulate information and resort to deception, thus poisoning the history on which they themselves must ultimately depend. This is the province of the “spin doctor” whose role in government has become correspondingly more important.

  International telecommunications are also responsible for the exposure of human rights abuses and the resulting demands on the nation-state that it obey laws not solely of its own choosing. In the war in Kosovo, to take a single example, NATO entirely bypassed both the U.N. Charter and the laws of Yugoslavia in order to stop ethnic cleansing by Serb officials who could claim, doubtless correctly, that they were only obeying the orders of a lawfully elected government in Belgrade. It now appears that even reconciliation commissions cannot confer effective amnesties for acts by officials within their own countries. They may, it seems, be prosecuted after all by courts in other countries as happened to General Pinochet when he ventured abroad for medical treatment. These developments show no sign of abating.

  There are other strategic innovations that arose during the course of the Long War that will have an important effect on shaping the new constitutional archetype that will succeed the nation-state. Foremost among these innovations was the introduction of the computer. It was an early computing device and a team of mathematicians, for example, that allowed the British and later the Americans to read the classified communications of the Nazis and the Japanese during World War II.21 This permitted the strategic deceptions at Normandy and at Midway without which the war certainly could not have been won at the time and in the dramatic way that it was won by the Allies. The Long War did not merely co-opt but actually caused this technology to be developed. The Internet, for example, a system of linked computer networks, was the outgro
wth of an American defense agency effort to create a communications system that would survive a nuclear attack.

  Computer technology has decentralized the availability of information and at the same time opened up new channels of information to the nation-state. More information now flows to every public official than he or she can possibly assimilate. Computer accessibility to government and government information has had the ironic effect of so overloading officials that they must ignore more pleas for audiences and reply perfunctorily to more appeals than any despot making his progress through a crowd of peasants.

  Moreover, insofar as computer technology has breached the security of the State and ever more widely distributed the information government once claimed to possess solely, it has contributed to the decline in prestige of the State. The Xerox copier not only threatens national currencies; it threatens the currency of the bureaucracy, which is the control of the flow of information. What national leader can be confident, as he faces a live interview, that the confidential memo he saw yesterday will not be thrust in his face if he denies its contents today? This may be an important contribution to openness and honesty in government, but it cannot be a step that strengthens the nation-state, a structure that must often maintain itself by taking decisions and then, and only then, persuading its public. Most dramatically, the Internet will frustrate government attempts to use law to enforce moral rules—the very raison d'être of the nation-state. Canada, for example, was unable to enforce its strict blackout rules on the news coverage of sensational criminal trials; Singapore, despite searches of tens of thousands of files, has not been able to stem the receipt of pornography.22 Espionage using electronic file transfers—that is, replacing the “dead drops” of spies that were concealed in hollowed-out trees with the parking of computer files on nonsecure e-mail sites—allows a single agent to turn over more information to his control in an instant than could be analyzed in a decade. The nation-state is maddened by such developments and, like the bear with painful dental caries in Milosz's memoir, becomes dangerous to itself and others in its frustration.

  These various developments, and others, have led to a disintegration of the legitimacy of the nation-state. In summary, no nation-state can assure its citizens safety from weapons of mass destruction; no nation-state can, by obeying its own national laws (including its international treaties) be assured that its leaders will not be arraigned as criminals or its behavior be used as a legal justification for international coercion; no nation-state can effectively control its own economic life or its own currency; no nation-state can protect its culture and way of life from the depiction and presentation of images and ideas, however foreign or offensive; no nation-state can protect its society from transnational perils, such as ozone depletion, global warming, and infectious epidemics. And yet guaranteeing national security, civil peace through law, economic development and stability, international tranquility and equality, were the principal tasks of the nation-state. Developments born in strategic conflict can, however, as they have done before, also lead to a regeneration of the State. What would a new constitutional order look like?

  THE EMERGENCE OF THE MARKET-STATE

  The State has proved itself to be a remarkably resilient institution, periodically transforming its structure. When faced with mortal threats, states have resorted to the expedient of constitutional change, remaking themselves when strategic innovations by their competitors threatened to overwhelm them or when internal stresses enlivened by these strategic developments threatened disintegration from within. In our own era we are witnessing the emergence of the market-state and the shift to that form from the constitutional order of the nation-state that has dominated the twentieth century. The strategic innovations by which the Long War was won have forced each of the great northern-tier powers to adapt. Some—like the states of former Nazi Germany and the former Soviet Union—have adapted so profoundly that we might say that constitutionally they were obliterated, to be replaced by different kinds of states.

  The market-state is a constitutional adaptation to the end of the Long War and to the revolutions in computation, communications, and weapons of mass destruction that brought about that end. As the Long War made abundantly clear, the conception and production of the most qualitatively superior forces required not merely an industrial society but a creative society, with the capital to exploit that creativity. Now that creativity and capital has been turned against the nation-state itself.

  What are the characteristics of the market-state? Such a state depends on the international capital markets and, to a lesser degree, on the modern multinational business network to create stability in the world economy, in preference to management by national or transnational political bodies. Its political institutions are less representative (though in some ways more democratic) than those of the nation-state. The Open Markets Committee of the Federal Reserve and the electronic referendum (to take two extremes) are more characteristic of the market-state than the elegant electoral representative institutions envisioned by Hamilton and Madison or the mass election campaigns of Roosevelt and Johnson. Like the nation-state, the market-state assesses its economic success or failure by its society's ability to secure more and better goods and services, but in contrast to the nation-state it does not see the State as more than a minimal provider or redistributor. Whereas the nation-state justified itself as an instrument to serve the welfare of the people (the nation), the market-state exists to maximize the opportunities enjoyed by all members of society. For the nation-state, a national currency is a medium of exchange; for the market-state it is only one more commodity. Much the same may be said of jobs: for the nation-state, full employment is an important and often paramount goal, 23 whereas for the market-state, the actual number of persons employed is but one more variable in the production of economic opportunity and has no overriding intrinsic significance. If it is more efficient to have large bodies of persons unemployed, because it would cost more to the society to train them and put them to work at tasks for which the market has little demand, then the society will simply have to accept large unemployment figures. Mark Tushnet has noted this development:

  Small-scale programs with modest aims characterize the new constitutional order: any deficiencies in the provision of health care or in income security after retirement are to be dealt with by market-based adjustments rather than ambitious redistributive initiatives. Similarly, poverty is to be alleviated by ensuring that the poor obtain education and training to allow them to participate actively in the labor market, rather than by providing generous public assistance payments.24

  If the function of law in the nation-state is process-oriented, churning out impartial rules and regulations to promote desired behavior, the market-state pursues its objectives by incentive structures and sometimes draconian penalties, not so much to assure that the right thing is done as to prevent the social instability that threatens material well-being. The market-state is classless and indifferent to race and ethnicity and gender; its yardstick for evaluation is the quantifiable. Indeed, to a far greater extent than the nation-state, the market-state is culturally accessible to all societies: the statistics and media images that carry its messages do not require proficiency in any particular natural language.

  If the nation-state was characterized by the rule of law—and as we shall see in Book II, the society of nation-states attempted to impose something like the rule of law on international behavior—the market-state is largely indifferent to the norms of justice, or for that matter to any particular set of moral values so long as law does not act as an impediment to economic competition. The cliché “level playing field” captures this concern. Does this agnosticism make the market-state an ideal form for the varying states of the world, including the diverse Third World, where values differ greatly from those of the developed world and from each other, or is it ill-suited to states, like Iran or Saudi Arabia, that wish the State to embody the cultural values of the people (th
at do not want a “level playing field” for all competitors) ? In either case, the market-state's essential indifference to culture poses some difficulties for the operation of the State. Fore-most among these is the fact that it will be much harder to get the publics of such states to risk their lives and fortunes on behalf of a state that is no longer the champion of their cultural values. The sense of a single polity, held together by adherence to fundamental values, is not a sense that is cultivated by the market-state. This cultural indifference does, however, make the market-state an ideal environment for multiculturalism.

  Operating through the state-nation, the State sought to enhance the nation as a whole. In the era of the nation-state, the State took responsibility for the well-being of groups. In the market-state, the State is responsible for maximizing the choices available to individuals. This means lowering the transaction costs of choosing by individuals and that often means restraining rather than empowering governments. Thus we see measures like the proposal to limit the percentage of GDP taken by government, and other forms of capping the tax rate, and actions by courts that have struck down affirmative action plans25 or limited the federal power to regulate commerce and disallowed certain criminal sanctions (like those against contraception or abortion).26