Most people still don’t know that mask mandates, vaccine uptake goals and lockdowns are just press releases, not laws. Which means, once again, I must explain how power actually works.
Watching Jacinda Ardern in 2020 announce her government’s plan to lock down New Zealand and stop all flights was an impressive moment in history. Everybody instantly complied because they understood it as part of an emergency action to block the spread of Covid-19.
But scratch a little deeper and you’ll find – even today – that most Kiwis complied not out of fear of a virus, but (perhaps rationally) because they feared police arrest if they failed to comply with Ardern’s lockdown orders. In other words, they feared their government, not the virus.
The same goes for this week’s updated mask mandates. Here is the general outline:
“Masks must now be worn at businesses which serve food and drink,” the PM said. In practice, diners will now be asked to wear masks when getting up from a table to use the bathroom.
“We’re also now requiring that a face covering be an actual mask,” Ardern said. This means the use of T-shirts pulled up over the mouth or other haphazard measures will be discouraged.
(I’m not referring to the Covid-19 Public Health Response Act 2020, which is incredibly tyrannical and probably deserves its own column.)
So, what if you need to use the toilet but forget to wear a mask when walking across the 5 metres between the table and the bathroom? If you’re caught on CCTV cameras, will you have to explain yourself to the cops waiting outside?
Well, potentially. The thing is, those cops could arrest you for revealing your naked chin in the restaurant, but it wouldn’t be for breaking a law. There is no law about compelling the wearing of a mask at Subway. At all. Nowhere. Legislation that would give real legal weight to the PM’s announcement simply does not exist.
And yet the police always have a trump card in these situations. If cops don’t want you in a location, they can always throw you in a cell by using the neat excuse called “disorderly behaviour”.
What a law really says and what the police might do is the difference between de facto and de jure power. Here’s Wikipedia’s description:
De facto describes practices that exist in reality, even though they are not officially recognised by laws. It is commonly used to refer to what happens in practice, in contrast with de jure (“by law”), which refers to things that happen according to law.
In other words, de facto power refers to anything a person can do, while de jure power refers to everything a person is allowed to do. Those are not the same things, although sometimes parts might overlap. The box of possible actions for the first set is always much larger, they just don’t want you to know that.
Power in New Zealand is conferred by a general election system. Under a de jure framework of power, legitimacy is attained by winning the popular vote (it’s more complicated than that, but you get the idea). All claimants to power in this country must restrict themselves to the boundaries of this system or risk rendering their claim to power illegal (not false, just illegal).
If you don’t follow the rules, police will be deployed to block, arrest or kill any claimant or group that tries to secure power in New Zealand outside the general election system.
(It’s worth remembering that police forces were once seen as domestic armies of occupation intended to subdue the populace by force of arms. Sir Robert Peel’s police in England – called “bobbies” or “peelers” after him – were viewed with great suspicion at the time because it was reminiscent of states commonly thought to be tyrannous.)
But notice I said that following the law requires a claimant to power to “restrict themselves”. De jure means the enormous constellation of possible actions for influencing other Kiwis is constrained down to a handful of “legal” actions like running TV ads or plastering political posters on fences. But the de facto list of influence tricks is much longer and ranges on a spectrum of ho-hum to holy hell.
For example, you could pay people to vote your way, assassinate opposition leaders, blow up rallies, shut down enemy bank accounts, put sugar in the petrol tanks of opposition supporters, buy a newspaper and write nasty things or even slaughter the first-born daughters of your opposition supporters. The list of possible influence actions in a democracy is limited only by your imagination.
The thing is, unless you can wield both de facto and de jure power together, you’re better off playing by the rules until you can bring them together. The PM’s mask mandates are effective precisely because her political supporters who control the government have achieved such a harmony.
To get anything done, de jure and de facto must align. Where they coincide, there is a Schelling point of stability. De jure is the epiphenomenon of de facto: force must always precede law. Those with de facto power have, by definition, the power to preserve the status quo. When the two poles drift apart, and the law becomes a fiction, this effect disappears.
Said differently, law is obeyed because people who disobey the law are put in jail. Show me one example, anywhere, anytime, of law existing outside the context of overwhelming force. But de jure requires a lot of propaganda, which makes it highly fragile to a change in de facto.
In practice, democracy means the rule of those who control public opinion. Typically, in the 20th century, this meant the rule of those who controlled the media. This is remarkably inexpensive or even profitable to maintain internal security. But when broadcast doesn’t matter anymore, the centre disappears and democracy becomes dangerous again, reverting to its aggressive malignant form. We are almost at the point where it’s just as easy to consume unauthorised media as it is to consume authorised media. When we get there, de facto power will change. Bet on it.
A good chemical analogy is the Van der Waals bond, which can keep things stuck together but is no match for an ionic or covalent opponent. If you can get your facto to line up with your jure, they may stick, but if they are far enough from each other they have no strong desire to converge. Indeed, they prefer not to, as those who have informal power tend to be quite happy with it.
People who sniff an upcoming change in de facto power can cause a whole lot of trouble, but they only tend to do so when they think they have a chance of winning. If you are against mask mandates and compulsory vaccination (as I am), then you only need to ask yourself one question: do you think you have a chance of winning? Are you ready?
Power only respects what is de facto, while de jure is always an illusion, always for the birds. If all you believe in is de jure fictions, like protesting to get laws changed, you need to know that without enforcement, laws are just graphite on paper. If you don’t have the might, then you won’t have the right. As the old axiom goes: “stop quoting laws to us, we have the swords.”
Knowing the fundamentals of how power works is not for your entertainment, it is for your health. Don’t end up like Brian Tamaki. If you want to push back, I am telling you there are more effective ways of pushing back.
Forget trying to change laws, focus instead on making it harder for the government to enforce its own laws. Done properly, this strategy requires coordination, selective group membership and tight feedback loops – but that’s why God invented cellphones and internet encryption.
The aim might be to create “no-go zones” where your new de facto doesn’t care about their de jure. Such zones become de facto autonomous not because of political correctness but because police know they are outmatched and effectively write off the whole area. How many masks would be worn in such places? (Hint: in other “Western” countries masks are usually replaced with hijabs, so I know this strategy works.)
Only power can resist power. The connecting thread across all effective political action is the alignment of de facto and de jure power. If your group does not have it, then another group has it. You can’t make power disappear. So figure out how to get it and don’t try anything until you do.
One final note: power is much easier to seize than you might think. But that will have to wait for another column.