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.