Collective punishment, even for liberal ends, is intolerable
In the war between Russia and Ukraine, I am as pro-Ukraine as every sober-minded individual around the world today should be. This does not stop me from objecting to any initiatives by states or international organisations to inflict collective punishment upon the Russian people for the misdeeds of their government.
On 6 September, the Central European Twitter news outlet Visegrád 24 reported that restaurants at the meeting place of the Finnish legislature have stopped serving Pepsi cold drinks. The reason for this was because Pepsi made a ‘decision to continue its operations in Russia’. On 16 September, the same outlet reported that Poland will ‘ban cars with Russian number plates from entering the country’ and that Finland and the Baltic states (Latvia, Lithuania, and Estonia) are implementing similar bans.
On 15 September, The Guardian published a report about outrage over the decision of the Berlin State Opera to allow the Russian-born Anna Netrebko to perform on its stage. Her crime, apparently, is failing ‘to unambiguously distance herself from Vladimir Putin over the invasion of Ukraine’ (construed as ‘closeness to the Kremlin’). Netrebko has previously and publicly expressed her opposition to the invasion. Her critics point to various instances of her having audiences with Putin and other authoritarian personalities.
Upon reading these reports, I recalled a story that one of my professors at the University of Pretoria told from her years as a practising lawyer. Although the details escape me, the story basically was this:
Person A raped Person B’s sister (or another relative). Police and prosecutors became involved, but before lawful action could be taken, the two families and their lawyers informed the authorities that instead of prosecution, Person B will rather rape Person A’s sister – to balance the scales. To the families and their ‘lawyers’ (and I use this term with some hesitation), this was a perfectly reasonable and fair proposition. The fact that Person A’s sister is an innocent third party is not a factor. Family B was wronged by Family A, and therefore the collective of Family A must make right the wrong.
Law as the collective defence of individual liberty
Politics is a game of collectives. The lone individual plays a negligible role. But if there is any political philosophy that seeks to ensure that individuals are not pawns in someone else’s political chess game, it is liberalism.
Recognising the collectivist nature of politics, liberalism’s value proposition is to channel the collectivist energies of politics toward the ultimate end of protecting the liberty of the individual. This is how the eminent French liberal jurist, Frédéric Bastiat, could write in 1850 that the law ‘is the collective organisation of the individual right to lawful defence.’
To liberals, the state must employ the coercive power of law to protect the liberty of the individual. As I have argued before, this – and its corollary, self-defence – is perhaps the only thing for which violence may legitimately be used. Freedom is the only thing that one may rightfully coerce for, but never against.
That makes objecting to collective punishment for liberal ends difficult.
Collective punishment for illiberal ends is already well in vogue, after all.
Hardly a day goes by in South Africa that one does not hear someone proclaim that because a group of white politicians implemented bad policies a century ago, young whites who live in South Africa today should be punished, for example, through stricter application of hate speech law (to whites in particular) or the forfeiting of their property or ability to be employed.
When collective punishment is invoked for illiberal ends, it is easy to say that ‘not only did X do nothing wrong other than being part of some nebulous collective, but your idea is itself also wrong’. But when the idea is right – like the unquestionable imperative that Russian forces withdraw from Ukrainian territory – it is more difficult to then reject the collective-punishment aspect to it.
But it is not impossible.
In my view, even if our ultimate end is to advance or protect liberty or its institutions, that cannot mean we get to inflict coercive harm upon innocent parties. Liberal ends do justify violent means, but not all such means. Here one must remember that all state conduct – like banning Russians from entering a given country – is by its nature coercive.
Analogies
The story retold above from my law professor might lead some well-intended opponents of Russian aggression to argue that it is not analogous to the war, because Sister A did no wrong. The ‘citizens of Russia’, on the other hand, have a clear obligation to bring about political change due to the misconduct of their government, and their not doing so is conniving with a wrong.
The problem with this line of argument is immediately evident.
Russia is not a homogeneous state. The most important fact is that, even if ‘most Russians’ support the Russian government, that country contains hundreds of thousands, if not millions, of individuals who are powerless to bring about change even if they wanted to. But more than that, there are certain permanent demographic minorities in that country who have never wielded and will never wield political power collectively.
No legitimate theory of justice could ever include disadvantaging these powerless people.
The analogy with the narrative of ‘white privilege’ I alluded to above might also invite condemnations of intellectual dishonesty. But earlier this year, a popular Russian-American journalist, Slava Malamud, posted an insightful thread on Twitter that seems to defend the collective punishment of Russians, which represents an almost textbook utilisation of the white privilege argument.
Malamud explains that he is not concerned with Russians who are in fact pro-Putin. Instead, his ire is directed at Russians who are actively anti-war and anti-Putin.
These Russians, Malamud writes, should not object to being held collectively responsible, should not defend their own non-complicity in the atrocity, and should not plead for Russian sports and culture to be exempted from punishment for Putin’s war. Ukrainians will not find this to be ‘of any interest’, because they are subject to daily ‘destruction, death, and constant, ever-present horror’. An ‘unironically good Russian’, argues Malamud, must take a position that includes realising and admitting ‘that every Russian citizen bears some responsibility in this, if only the responsibility to feel shame’. This ‘shame’ is ‘key’ to Malamud, for this reason:
‘You can’t identify with a nation only when it’s convenient. You can’t be proud of Dostoyevsky or ballet or Panarin but then say you have nothing to do with Putin. You have as much to do with him as with Dostoyevsky or ballet, friend. The ability to be proud of your nation comes with the duty of being ashamed of it. Shame is the minimal acceptable reaction here. And the recognition that acknowledging this shame, paying the reparations and giving Ukrainians the leading voice in narrating and defining this war is something that will be expected from you. Nothing more. But nothing less.’
Malamud concludes with a parting note: ‘Also, leave Ukrainians the fuck alone. Let them rage against you, your great culture, your vast mysterious soul, your great generous land. It’s their right. Don’t want to listen? Walk away.’
South Africans must immediately recognise the technical contours of Malamud’s argument. We express or receive it daily. It is clear that Malamud consulted a book on Critical Race Theory and adapted it to apply to the total onslaught on Russia.
The problems with his reasoning are clear.
First off, the confusion between ‘nation’ and ‘state’ strikes again! The Russian nation and the Russian government are separate entities, just like the various nations of South Africa are not synonymous with the state. Russians can be proud of their sports, culture, literature, and heritage, without having to accept responsibility for their government’s actions. Responsibility is something voluntarily assumed, not externally imposed. In the same way white South Africans are not responsible for the actions of the previous National Party government, and black South Africans for the actions of the African National Congress government, Russians are not responsible for Vladimir Putin’s decisions.
Secondly, while the Russian government – relying on taxes from its population – will in time be responsible for the payment of reparations to Ukraine, individual Russians bear no such liability. If the war mercifully ends soon, we need to guard against setting the same precedent that South Africa adopted in the 1990s with affirmative action. This precedent is the unbounded nature of reparations: a nebulous ‘past injustice’ that must be continuously ‘redressed’ without anyone willing or able to put an end-date, or at least a quantum, on it. The Russian government should pay reparations, but the amount of reparations must be quantified according to accepted standards of evidence. Just as white South Africans cannot be expected to fork over unquantified amounts of resources forevermore, Russians should have certainty about the future burden they will carry through their tax system.
Third: of course, Ukrainians have it bad, but one cannot use one’s suffering to impose injustice upon a blameless third party. South Africa, again, is a case study of this, and not only recently. During the Apartheid era the Nationalist establishment invoked centuries-old conflicts between whites and blacks, and pointed to post-colonial governments across Africa, to intimidate the white population into remaining resolutely dedicated to the Apartheid system. Meanwhile, contemporary black South Africans – before the predictable turn to communism in the 1940s of various anti-Apartheid groups that found little sympathy in the West – were blameless. Nonetheless, because of what happened centuries ago and elsewhere on the continent, they had to suffer injustice. The same is being inflicted, to a less severe but no less morally deplorable extent, upon white South Africans today.
Any reasoning that attempts to collectivise individual agents with their own agency, decision-making competence, and divinely guaranteed liberty is bad reasoning.
The perversity of politics
Politics is a perverting institution, which is to say that it, uniquely, makes perfectly sensible individuals do astoundingly perverse things.
How else can one explain the fact that research by the Institute of Race Relations and others have shown year on year that most South Africans, regardless of race, oppose racial policy and support non-racialism, yet the race-obsessed ANC has been returned to political power for three decades? How is it that the United States, one of the few countries in the world that can be said to have a dedicated and rich liberal-constitutional tradition, is permanently stuck between two governing parties that do not subscribe to said liberal constitutionalism?
Because politics subverts almost every rule of decorum and ordinary human intercourse – one thinks of institutions like qualified immunity for police officers, legislative protection against liquidation for state enterprises, and the magical ability of government to materialise ‘rights’ out of thin air – it has the potential to bring out the worst in us.
Politics forces us to engage in devil’s bargains, to embrace astounding moral hazards, to perpetually choose between lesser evils, to rent-seek almost as a matter of course, and to compromise on things that would otherwise be (rightly) uncompromisable. Virtually everyone votes for political actors that do not represent their values, because that is all that’s on offer.
So while all of us – myself included – often indulge in sentiments of ‘you get the government you deserve’, the reality is that the actions of a political institution should not be blamed on those subject to that institution’s jurisdiction. Everyone, everywhere, has to play the political game, whether they like it or not.
The inability of the Russian people to replace their authoritarian regime with a liberal-democratic one should not be held against them, or at least not against all of them. This is why I support sanctions (among other measures that might fall foul of section 16(2)(1) of the Constitution if expressed on these pages) that target those identifiable individuals who have made themselves guilty of providing tangible support to Russia’s aggressive enterprise.
Many millennia ago, human civilisation made a fundamental, costly mistake, when it was decided that the state would become a receptacle for inconvenient responsibilities that should properly be personal, familial, communal, or commercial. While we bear an always-urgent obligation to undo this mistake, we cannot honestly hold people who live today liable for it.