This essay, on the debate about treason laws, was my Observer column this week. It was published on 22 July 2018, under the headline ‘If we want to build trust in society, a new treason law is no way to do it’.
Does the crime of treason have any meaning today? A new report from the Policy Exchange thinktank, Aiding the Enemy, insists that it does. Britain’s current laws on treason are unfit for purpose and should be updated. An updated law, it suggests, would be particularly useful as a weapon against jihadists.
The report acknowledges that jihadists can be tried under existing anti-terror legislation. Nevertheless, they should be charged with treason because they have not simply committed acts of unspeakable violence, but also sought to ‘undermine the fabric of our society and the integrity of our country’. A new law of treason could ‘recognise and reinforce the duty of non-betrayal’ incumbent on all citizens.
The report has won backing across the political spectrum and from an array of establishment luminaries. What it exposes are fundamental problems in the very concept of treason.
The proposed law would define treason as helping an enemy in the preparation of ‘an attack on the UK’. Such a narrow definition, the report suggests, would ensure that it could not be used to criminalise political dissent.
US treason law is even more tightly defined. According to the US constitution: ‘Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.’ Yet from the execution of John Brown in 1859 for advocating armed resistance to slavery, to the imprisonment of hundreds of activists opposing the First World War, to the indictment of miners for taking part in a violent confrontation with police in 1921, to the McCarthyite persecution of thousands for their ‘un-American’ activities, charges of treason and betrayal have long been used to crush dissent. In Britain, too, the charge of being an enemy within has long been used to target strikers and dissenters.
For any law ‘to recognise the wrongfulness of betrayal’ and to punish acts that ‘undermine the integrity of our country’, as the Policy Exchange report seeks, it needs to engage with issues far beyond the narrow question of ‘aiding the enemy’.
The concept of treason emerged in premodern times as a means of punishing those who broke their obligations to authority, obligations defined largely by your station in life. As feudalism gave way to modernity, an individual’s obligations came to be defined less by his or her status in society than by the social contract, implicit and explicit, which delineated a citizen’s relationship with others and with the state. Treason became recharacterised as disloyalty not to the monarch but to the state. The notion of betrayal, however, suggested not simply the breaking of a social contract but embodied also a much more ancient sense of an almost ineffable relationship to one’s nation.
The Policy Exchange report argues that a foreign soldier possesses no moral obligation not to kill Britons. British citizens do. Why? Why should my obligation not to take the life of a fellow human without cause be greater if I were a citizen of a particular nation than if I were not?
The existence of a nation state as a political community is vital to the healthy function of democracy. But that community does not have a claim upon the individual in some essentialist fashion. Nor can it be the only call on an individual’s moral conscience. From religious organisations to working-class movements, there are many moral communities to which people give their allegiance and through which they express their moral values or political hopes.
How to mediate that relationship between nation states and other moral communities has been a fraught issue throughout modernity. It is particularly so today as societies have become more polarised and trust in authority has eroded. The Policy Exchange report is in part an attempt to address this issue. But far from creating more unified communities, the resurrection of the idea of treason only creates greater division. In America, Donald Trump and his critics shout ‘traitor’ at each other. Brexiters and Remainers often do so in Britain. The charge of betrayal is to politics as that of apostasy is to religion.
Jihadists should be tried for their actions. Those actions do seek to undermine social trust and to break the bonds that hold communities together. Labelling them traitors will do little, however, either to challenge jihadism or to restore trust. The notion of obligation embodied in the concept of treason runs contrary to the kinds of social obligations necessary to make a free, democratic society work. Far from updating the law of treason, we should abolish it.
The image is one of Gustave Dore’s illustrations for Dante’s ‘Inferno’. It is of traitors frozen in ice in the ninth circle of Hell.
Pandaemonium 
“But that community does not have a claim upon the individual in some essentialist fashion.”
You are correct. A nation does not have a claim upon its individual citizens in an “essentialist” fashion. Rather, it has a claim upon them in an essential fashion. The friends, relatives, property and prospects of a typical citizen are all, or nearly all, in one country. (Cosmopolitans who can jump ship with little loss when trouble comes are a small minority.) Therefore, to betray your country is to betray not one, or a few, but potentially millions of your fellow citizens, in a way that could destroy their lives, livelihood and posterity – forever. This is no small thing. It is big, and it is essential.
That depends on how you define the interests of the nation, and on how you define betrayal. From Catholics being regarded as possessing anti-British values, to Jews being seen as alien to Britishness (to the extent that in 1906 the Prime Minister Arthur Balfour observed that were too many Jews allowed into Britain ‘though the Briton of the future may have the same laws, the same institutions and constitution… nationality would not be the same and would not be the nationality we would desire to be our heirs through the ages yet to come’) to Margaret Thatcher labelling striking miners in 1984 as ‘the enemy within’ to George Osborne suggesting that austerity is in the national interest and that ‘we’re all in it together’, the very notion of the ‘national interest’ has been used to betray ‘millions of… citizens, in a way that could destroy their lives, livelihood and posterity’. That’s why we should be wary of those who talk so easily of the ‘national interest’, of ‘the enemy within’, of ‘betrayal’ and of ‘treason’.
This is still confusing. You allude to the now standard “post-national” sorts of argument against the idea of the nation, especially as embodied in legal norms but even just as a social sentiment available to be called on by politicians, viz that they can be exclusionary and/or punitive and so can be and manifestly have been abused. There’s plenty of mileage in these sort of argument, but you really do need to think harder about whether they can cohere with what in your case seems not to be an entirely “post-national” stance, i.e. you say explicitly, “The existence of a nation state as a political community is vital to the healthy functioning of democracy”. But how can a nation state exist as a political community if all working conceptions of that community as distinct, and as an entity that confers both rights and obligations, are considered so suspect (by the standards of global theories of rights) as ideally to require the abolition of any laws embodying them (and informal anathematisation of any political rhetoric appealing to them)?
Recommendations to be “wary” of people who talk of the “national interest” etc…,however understandable, are not helpful here, because one could equally recommend “wariness” about some of those who talk “so easily” of “human rights” or “anti-racism” or “diversity” or whatever. In any case, vague warnings of this kind cannot stand in for substantive argument about the relationship between e.g. national political community and democracy.
There are not many ways to define “nation”. The word’s obvious etymology
and very long history of consistent usage make it a difficult word for anyone to redefine. (Changing the definition of words is something the political class are very fond of doing, or trying to do, for a variety of – usually dubious – reasons.) A nation is a large body of people sharing common descent (which tends to imply also a common language and culture, since language and culture are usually passed from parents to children, so are closely correlated with descent — and also to imply a common government, since states that rule over multiple nations have a high propensity to fall apart). All dictionaries define it as something similar to the above.
As for Catholics and Jews, well, Guido Fawkes, though born in England, certainly did have anti-British values: he spent over a decade in mainland Europe fighting on the side of Catholic Spain, and he wanted to start a revolution that would install Catholic rule in England – this at a time when most English were Protestant, hated the Spanish, and were proud to have an independent, Protestant monarch. Fawkes’ values were very much at odds with those of England (and Wales, and Calvinist Scotland). Jews, of course, were foreign. In Arthur Balfour’s day, nearly all Jews were recent immigrants – their having been a recent large influx from the continent. His anxiety that if the immigrant trend continued, “nationality would not be the same and would not be the nationality we would desire to be our heirs through the ages yet to come’” was exactly in line with the common-sense (and dictionary) definition of “nation”.
Your complaints about Margaret Thatcher and George Osborne say nothing about the meaning of nationality – only about your particular economico-political bias. If you see politics and economics through a Hayekian lens, spending to get out of debt is bad economic management, and will harm the nation in the long run, and socialism is “the road to serfdom”. If you see politics and economics through a socialist lens, more socialism and more redistribution is always good for the nation. The economic thinking may be directly opposite, but the subject, the “nation”, remains exactly the same.
All laws, including treason laws, have inherent elasticity that can be stretched to achieve desired results. US supreme court is the prime example. One can predict over 90% of the time how it will rule on any given case based on the makeup of the court. Even if treason law is changed, a lot depends on judges sitting on the bench than law itself.
“the execution of John Brown in 1859 for advocating armed resistance to slavery”
Brown is a personal hero of mine, so don’t take this as an apology for the state that executed him, but he wasn’t exactly executed for “advocating” resistance — he was executed because he was convicted of, inter alia, several charges of murder carried out in the course of his raid on Harper’s Ferry.
See e.g. https://en.m.wikipedia.org/wiki/John_Brown_(abolitionist)
(“Brown was charged with murdering four whites and a black, with conspiring with slaves to rebel, and with treason against Virginia. … the local Charles Town jury found Brown guilty on all three counts.”)
“The existence of a nation state as a political community is vital to the healthy function of democracy. But that community does not have a claim upon the individual in some essentialist fashion.”
The term “essentialist” is thrown around a lot today, usually as an expression of disapproval of an idea or position, but it is often hard to see what is really meant. That is the case here. Since Kenan immediately goes on to refer to other “moral communities” of which the individual may be part, I guess that by “essentialist” what he perhaps means here is “unqualified”. This seems plausible and plays to most liberal people’s distaste for “my country right or wrong” attitudes (As G.K. Chesterton once remarked, to say “my country right or wrong” is like saying “my mother drunk or sober!”). All the same, if Kenan really believes that the existence of a nation state as a political community is vital to the healthy function of democracy, he needs to say more about the citizen’s duties and responsibilities with respect to the state and political community than just that they should not be unqualified and absolute, somehow overriding all other duties and responsibilities. For that does not get us very far, and actually it is not a secure basis for leaping to the conclusion that treason laws should be abolished. My responsibility not to commit other crimes is likewise not absolute (I can imagine circumstances of competing moral claims about many crimes) but that is no reason to abolish the laws concerned. We do, after all, have courts, and it is the job of the courts in a liberal legal state to address these complexities in the law and in specific cases.
“The Policy Exchange report argues that a foreign soldier possesses no moral obligation not to kill Britons. British citizens do. Why? Why should my obligation not to take the life of a fellow human without cause be greater if I were a citizen of a particular nation than if I were not?” This is a good question but actually – deployed as a knock-me-down argument against treason laws or equivalent – suggests that Kenan has not been honest, or shall we say unmuddled, with his statement about the necessity of nation state as a political community. The essence of the now increasingly “post-national” positions of the progressive left and even lib-left is precisely to insist, or at least imply, that all important rights and duties pertain to universal humanity (human rights – not particular civil rights), and Kenan’s question is typical in taking this line. An analogy is with the promotion of open borders on the grounds that it is unjust that a foreign person should not have – on demand – all the civic rights of a citizen, for are not both human beings? Here we have the idea just applied to obligation not rights – or dispensation from obligation. But it could very well be argued that just as a nation state (and so stable democratic political community) cannot really exist without borders (including the prioritisation of the rights of citizens), so it dissolves itself, at least eventually, if it gives up on the notion that citizens have special obligations (which foreigners do not have) regarding the overall safety of the state and community.
The term ‘essentialist’ may be ‘thrown around a lot’ (actually, the concept is thrown around less these days than it was, say, 20 years ago, when there were never-ending debates about it), it may be a complex, and often vague, concept, but it’s not one that’s hard to grasp. Essentialism is the idea that entities have eternal, unalterable attributes that define them. In the Western tradition it is usually traced back to Plato and his concept of eternal forms.
The notion of peoples or nations possessing a certain timeless essence has a long history. But in the modern debate about nation states, much of such essentialist thinking arises from the Romantic tradition of the late eighteenth/early nineteenth centuries. For the German philosopher Johann Gottfried Herder, the unique nature of each nation, people or volk was expressed through its volksgeist – the unchanging spirit of a people refined through history.
An essentialist view of nationhood is one that derives from the belief that a nation or people possesses in some sense a timeless essence that defines it. The debate about different forms of nationalism is complex, and there are, in my view, no straightforward, clearcut distinctions between different forms, at least in practice. Nevertheless, the idea of ‘betrayal’ embodies, to some degree at least, a Romantic view of nationhood. As I wrote ‘As feudalism gave way to modernity, an individual’s obligations came to be defined less by his or her status in society than by the social contract, implicit and explicit, which delineated a citizen’s relationship with others and with the state. Treason became recharacterised as disloyalty not to the monarch but to the state. The notion of betrayal, however, suggested not simply the breaking of a social contract but embodied also a much more ancient sense of an almost ineffable relationship to one’s nation.’
You are right that I don’t ‘say more about the citizen’s duties and responsibilities’. My aim was not to set out those duties and obligations but to point out that the Policy Exchange report wants to have it both ways: on the one hand to insist that it was keeping the proposed new treason law as narrowly-focussed and tightly defined as possible, so as to deflect any criticism that it could be used to stifle political dissent; and, on the other, the desire to use the law as a means of criminalizing the act of the betrayal of social trust. For the law ‘to recognise the wrongfulness of betrayal’ and to punish acts that ‘undermine the fabric of our society and the integrity of our country’, as the report suggests that it should, requires it to be expansive and engage with issues far beyond the narrow question of ‘aiding the enemy’.
Given that you make so much of the claim that ‘If Kenan really believes that the existence of a nation state as a political community is vital to the healthy function of democracy, he needs to say more about the citizen’s duties and responsibilities’, one might have thought you would have set out those duties and responsibilities. Odd then that you don’t even begin to. Don’t the rules that apparently apply to other people, apply to you too?
Again, you are perfectly entitled to accuse me of being ‘not honest’ or ‘not unmuddled’ because I raise the question, ‘Why should my obligation not to take the life of a fellow human without cause be greater if I were a citizen of a particular nation than if I were not?’. But it might help if you actually justified your accusations. It might help even more if you were to answer the question.
My point is that taking human life without cause is a moral wrong whatever one’s citizenship status. Or, to put it another way, the fact that one is a non-citizen, in time of war, is not in itself sufficient cause to kill. Do you disagree?
Finally, it is not the case, as you suggest, that one can either believe in universal rights, or accept the significance of nation states. Whether you believe in universal values or you don’t, those values are always given expression at a local level. So the real debate is not one of universal values versus nation states, but whether the values that you express at a local level are particularist or universalist.
First, please accept that I didn’t mean to insult you. It is just my over-enthusiastic way of arguing, whether or not there is any value in what I say. So – to start with your last point. One can certainly believe in universal rights, and accept the legitimacy-practicality of nation states, but only if one accepts that universal (human) rights, constitute a different tier of rights, from the rights (and duties) of the citizen embodied in the law of particular states. If the notion of universal human rights is expanded to the point where the distinction between a citizen and a non-citizen of x country is implicitly erased as being discriminatory with regard to the non-citizen’s human rights, or even discriminatory with regard to the citizen’s duties, then it is not really compatible with belief in the legitimacy or practicality of nation states. Whether or not expressed in the language of “treason” (which I agree has a variegated and sometimes bizarre history – and also a definitely diminishing field of legal power and relevance), I believe that the working idea of the nation as a community in which members have some distinctive rights and duties vis-a-vis the whole, and not merely in their legal interactions with each other as individuals or private corporations, cannot be abandoned without ultimately disabling the ability of the nation to be the basis for a “healthy democracy”. Anyway, I am not completely sure that I understood your “taking the life” example, perhaps because it was so ethically framed when it needs some concrete more legal development. “Not taking the life of a fellow human being without cause…” begs the question…what is enough cause…A British soldier facing enemy combatants will consider it an obligation to take life if necessary in pursuit of the goals of his operation in the national interest – the enemy combatants facing him will have quite an opposite view of the matter. Military obedience is of course a special issue, with a special terminology, but the situation is in principle the same with espionage, and collaboration with an enemy state.
Now, not being a legal expert I have no clear idea of how “treason” specifically figures in the terminology of actual offences, and policy, relating to all potential kinds of “betrayal of the national-civil community” behaviour, but I am assuming that your piece wasn’t just about cleaning out the terminology while leaving the operative concepts intact. And it seems to me that by not wanting “treason” to be brought in as terminology in trials specifically of Jihadi terrorists, plotters and enablers, you want to discourage, and so avoid the legal channelling, of any national cohesive sentiment that figures such individuals and groups as betraying trust, as making war on a “national community”, and so on. I understand why you dislike all such ideas – you are a principled opponent of radical multiculturalism, but also don’t like ethno or ethno-cultural majoritarianism as the basis of national community , – although at the same time I am at a loss as to how you think a stable healthy democratic national community can exist qua national community without an admixture of some such ideas, of a liberally domesticated kind. I myself am quite ready to suggest various recipes for citizens’ rights and duties, but it’s you that was proposing the complete abolition of “treason” in law and critiquing the concepts behind it.
Where I live (Czech Republic), we have a crime called High Treason, which only the President can commit! (The constitutional court tries him/her for it). We also have a crime called Treason against the Homeland, which is very simply formulated. It is if a citizen works with a foreign power or agent to commit, 1) subversion of the republic 2) a terrorist act, or 3) sabotage. The tariff is 15-20 years, with forfeiture of property if the court so decides. I’m on my way to becoming a citizen, and I’m cool with that.
The accusation of essentialism is a straw man. Nations are not necessarily eternal, as Plato’s Forms by definition are, but a nation has the potential to last thousands of years. Indeed, we cannot rule out the possibility of a nation lasting millions of years (though no-one has seen that happen yet, as far as I know). The desire of most nations is to last and flourish for as long as possible, preserving their lands for the future enjoyment of their posterity. This desire is indisputably real, unlike Platonic Forms, and not easily dismissed with a catchy academese buzzword like “essentialism”. The aspiration requires no grand theories that might be challenged on metaphysical grounds, but merely commonsense understandings of such mundane things as “land”, “people” and “posterity”. Not only is endurance across generations and centuries a perfectly realistic aspiration for a nation, but the desire for such continuity is the basis of human society. Its existence is easily explained in evolutionary terms by kin selection theory, and as a development, on larger scale, of tribalism, and it is very doubtful that without it, civilization as we know it could have arisen at all.
As for the invocation of Herder – if a 18th century German philosopher invented nationalism, how do you explain China, Japan and Korea, all of which have proudly proclaimed and defended their respective nationhoods, through many vicissitudes, for more than a thousand years? Or, geographically closer, how do you explain the Roman Republic, the Greek city states, ancient Israel, and Ancient Egypt?
Nations have existed since before history began (written history, at least), and they are likely to continue existing longer than universalism is, since universalism opposes its own self-preservation.
“The desire of most nations is to last and flourish for as long as possible, preserving their lands for the future enjoyment of their posterity. This desire is indisputably real,…”
When you say this, you are treating a nation as if it had attributes of an organism — to desire things, to consciously strive to prolong its life, to improve its health, to preserve [and increase] its property. Of course this is for the “future enjoyment of their prosperity” — so you’ve danced away from the brink, you are not claiming that people are mere cells in a super-organism. But you do claim the the state itself is doing these things to and for its human members, hopefully benignly.
But this is not so. A nation is simply a group of people that share a common land area as defined by treaties. You can define groups of humans entirely differently — by class, for instance, or by race (as is currently popular). This is easily seen in the border cases: Alsace, Wales, Puerto Rico, Nagorno-Karabakh. What nation is working towards the future prosperity of a bunch of people within its defined area, when those people are in South Ossetia?
When looked at this way, a nation is just a defined area, where some of its past residents have established rules of conduct and some of its present residents enforce them. Like any method of grouping people, it is easily reduced to its individual members, who cannot themselves be reduced (without dismemberment).