It has become common in writing about politics to regret our lack of state capacity, which means that our government no longer has the expertise to carry out complex tasks like implementing a new payroll system or running a safe and efficient transit system. Unable to do difficult but ordinary things, we cannot even contemplate truly ambitious enterprises. We could not, for example, even consider building a new Trans-Canada railway—we can barely twin an existing pipeline across one and a half provinces. But there is a related political problem that is almost as debilitating as state incapacity, and that is state impotence. Even when a problem and its solution are clear and government has the capacity, our leaders are paralysed, not unable but unwilling to act. Some combination of moral cowardice or intellectual confusion has left our governing class afraid to use the power of the state to protect citizens and uphold civil order. And a government that is stricken with state incapacity and state impotence, that will not or cannot use the power it has, is no better than a government without power, which is no government. 

In 1956, with the British government facing malaise at home and humiliation abroad, the Daily Telegraph seized on a favourite gesture of Prime Minister Anthony Eden: “To emphasize a point, he will clench one fist to smack the open palm of the other hand—but the smack is seldom heard. Most Conservatives … are waiting to hear the smack of firm Government.” The phrase was used again in the 1980s, when Margaret Thatcher’s government was described as administering a similarly emphatic corrective when circumstances demanded it. It is time to revive the sentiment, if not the phrase. We need governments unafraid to wield power: the power to enforce the law and to pass new laws as required; the power to insist on order and, when necessary, impose it.

This is the first of two companion pieces, one focused on recent French civil unrest and the other on civil decay here in Canada, each one asking governments to shake themselves out of their political lassitude and enjoin a return to order.

A Return to Order: France

Early in his recent book, The Tragic Mind: Fear, Fate, and the Burden of Power, Robert Kaplan quotes the 11^th-century Muslim scholar Abu Hamid al-Ghazali saying, “One year of anarchy is worse than a hundred years of tyranny.”^{1Kaplan’s laconic paraphrase is based on Ghazali’s original saying that ‘the tyranny of a sultan for a hundred years causes less damage than one year’s tyranny exercised by the subjects against one another’. Albert Hourani, A History of the Arab Peoples (Harvard UP 2002) 144.} If the sentiment is jarring to modern ears, it is because we enjoy the luxury of not needing to compare the relative advantages of two terrible states of being. Most of us would also prefer not to think about the means by which our current peace was originally secured or the illiberal (by current standards) methods by which our own order was maintained until quite recently—right up until some people started to question them and the order, perhaps not coincidentally, began to unravel.  

Behind every well-established constitutional order is an unauthorized authority that either has been elevated to mythology (of varying degrees of plausibility) or is best left shrouded in the mists of time. Long before Wittgenstein observed that “[a]t the foundation of well-founded belief lies belief that is not founded,” Hobbes applied a similar logic to politics with a brutal twist: “there is scarce a Common-wealth in the world, whose beginnings can in conscience be justified.” This being a near-universal truth, it is presumptuous, not to mention futile, for the heirs of an orderly constitution to regret its origins. We would do well to be grateful for our present peace and steward our inherited order as best we can with wisdom and justice. 

But being human, we can’t just leave well enough alone. Gratitude is boring and careful stewardship is tedious work; wisdom is for hindsight, and we prefer the rash contest of the present. And so our intellectuals blithely denounce as outdated and unnecessary the state powers and social stigmas that secured our present peace. They can do this because we have enjoyed peace for so long that we have come to think of it as natural, when in fact it is the most unusual and artificial of human conditions; we forget that only a small fraction of people in history have been able to fall asleep with the confidence that they will be safe in the night from physical violence and that they will wake to the certainty of food and civil order. 

Looking back from the wrong side of the French Revolution, Talleyrand described what had gone wrong. “The seed [of revolution] was sown by writers who, in a bold and enlightened age, wishing to attack prejudice, overthrew the principles of religion and of social life, and by incompetent Ministers, who increased the embarrassment of the treasury and the discontent of the people.” The same diagnosis applies to Europe’s current governing class, whose similarly spacious scepticism extends to every authority and certainty but their own, which they give the label “liberal democracy.” In their hands, this ideology devolves first to democratic liberalism, then to liberalism simpliciter, and finally, once the label is rubbed away, it is revealed to be no more or less than the substantive program of progressivism.

For a glimpse of the future under this progressive program, we can look to the recent chaos that began in France and spread to neighbouring cities in Belgium and even staid Switzerland. If the sovereign is “he who decides on the exception,” then the French rioters laid down a challenge to the French state, which has yet to pick it up. By declaring an exception to the rule of law, the rioters asserted a competing sovereignty, which includes the power to replace order with disorder. Macron’s strategy has been to wait out the riots, hoping they exhaust themselves, as similar fiery eruptions did in 2005, while directing as much anger at senior members of the French military and police who favour a swift return to order as with the forces of disorder themselves. 

Letting the fire burn itself out looks to have worked again this time, but the reprieve, like the last one, will be temporary. One of these years the violence will reach a critical mass that, like a nuclear chain reaction, will not end until everything around it is destroyed. Chaos is a temporary condition; if it is not tamed, eventually it produces its own rough order. France, of all countries, knows how a new authority can emerge out of social confusion with a self-declared mandate. Does Macron really want to wait for the Napoleon of the banlieues? As two of the largest French police unions warned in a joint press release at the end of June: “demander le calme ne suffit plus, il faut l’imposer”—asking for calm is no longer enough, it must be imposed. 

For the French state to remain sovereign, its leaders must do what it takes to restore lasting order. If that involves declaring their own state of exception from the norms that prevail in ordinary—and orderly—times, then that is the true sovereign’s prerogative. In exigent circumstances, the measure of what is appropriate is what is necessary. If the sensitivities of public intellectuals and foreign observers watching events safely from home are allowed to dictate the conditions for restoring order, then order will not be restored. After all, these are the same people who, forgetting that social order is the necessary condition for individual freedom, first untethered the individual from society and then so abused the prerogatives of freedom that they created the conditions for disorder.

Stepping back and taking the long view, the French establishment may be learning—slowly, painfully, and perhaps too late—that sustaining a civilisation requires the same discipline that was required to build it. This includes those constraints that we abandoned in the second half of the twentieth century in order to enjoy more freely the dissipation of our inherited social capital. But eventually that social capital will run out, and with it will go the benefits that were secured over generations by methods that we now have the luxury to consider archaic. I suspect that those methods will only seem archaic for as long as they aren’t needed, and that when we sense the dissonant throb of the mob approaching the city they will feel atavistically familiar and welcome. 

It is not for nothing that the most remembered exchange in modern Canadian political history was a prime minister justifying the use of martial law against “those who are trying to run the government through a parallel power” to a sceptical CBC journalist. Pierre Trudeau’s impromptu remarks resonate in the current European context: “I think the society must take every means at its disposal to defend itself against the emergence of a parallel power which defies the elected power in this country and I think that goes to any distance. So long as there is a power in here which is challenging the elected representative of the people I think that power must be stopped and I think it’s only, I repeat, weak-kneed bleeding hearts who are afraid to take these measures.”

You and I might chafe under a constitution whose commitment to ordered liberty placed a heavier stress on the adjectival condition, but most people wouldn’t and never have. Outside of cases of extreme deprivation and totalitarian brutality, the capacity for human happiness is remarkably resilient. Life goes on and societies flourish under stern but orderly conditions; the same cannot be said of ungoverned regions. There is no society when you have to bar your door every night and pray that marauding gangs pass by your house this time. The neighbourhoods set alight in France this month show how global communications and ease of travel can break down the barriers between the governed and ungoverned parts of the world. If not now, then soon, France will have to choose its future: impose order, or tolerate disorder until it mutates into a new and hostile order.  

The Liberal government’s Bill C-18, now known as the Online News Act, is being promoted as a way to help save a Canadian news industry in crisis.

And it is certainly in crisis. Advertising revenue has shifted dramatically from traditional news publications to online platforms such as Google and Meta. Print publications are consolidating or dying. The proposed merger of Postmedia and Toronto Star owner Nordstar has fallen apart.

Online platforms act as intermediaries that don’t produce content but rather direct users via search engines or links to existing content produced by others. Currently, these digital platforms negotiate financial compensation directly with individual news providers. Bill C-18 would now force a government-mandated formula for compensation that is estimated by the Parliamentary Budget Office to add $329 million in additional revenue to Canadian news outlets and broadcasters that employ at least two journalists. The PBO estimated that about $247 million would go to broadcasters such as the CBC, Rogers, Shaw, and Bell, while newspapers and online media would get about $81.5 million a year.

The goal was to shrink the imbalance in negotiation between Canadian news outlets and large dominant digital platforms by forcing a system of negotiated compensation. If parties are unable to reach an agreement as to the compensation for used content, forced “final offer arbitration” would ensue, meaning that an appointed arbitrator would choose between the final offer proposed by each party. The winning party could go to court to force payment if necessary.

In addition, the Canadian Radio-television and Telecommunications Commission would be given new powers to oversee the process by creating an enforceable code of conduct that would guide negotiations, determine which companies the act applies to, manage complaints, award penalties for non-compliance and have the regulatory power to govern administration of the Act.

The concept superficially sounds good. Get more money for Canadian news sources and limit the influence of disruptive giant tech companies that have dominated how people now get their news. So why is it looking more and more like an impending disaster?

The only way the Act could work is if Canadian content is important enough to news intermediaries that they will pay considerably more for it and that the regulations don’t impose intolerable restrictions and potentially unlimited forced compensation.

David killed Goliath because he fought the giant on his own terms, fighting at a distance with a slingshot that he was highly experienced in using. If you think you can win the battle between a Canadian David and the Goliaths of Google and Meta, you better have a slingshot and a stone big enough to fell the giant.

Prime Minister Justin Trudeau said that “these internet giants would rather cut off Canadians’ access to local news than pay their fair share is a real problem, and now they are resorting to bullying tactics to try and get their way. It’s not going to work.”

Is it bullying tactics or normal negotiations that take place in the business world? The government thought that Canadian content was so important that they could impose their will and rules on anyone they wanted to. It fits with their repeated political strategy of control and regulation. While the bill is promoted to help keep small outlets in business and be fairly compensated, about three-quarters of the financial benefit calculated by the PBO would go to media giants like the CBC, Bell, and Rogers/Shaw.

Do we really need to focus on finding more funds for the CBC? Canadian Heritage Minister Pablo Rodriguez has said that “a free and independent press is fundamental to our democracy.” The CBC is not independent. It consistently shows its bias favouring the government hand that already feeds it only too well.

There are of course viable alternatives to Bill C-18. We could facilitate fair negotiation between large news providers and media platforms based on the true value and use of the information. This covers the $247 million that Bill C-18 might direct to Canadian media giants.  We could also set up an annual fund that would promote Canadian content and better reward those whose content is of greater interest to Canadians and beyond.

The internet media giants could contribute the $89 million estimated to flow to print and other small contributors, supplemented by larger government tax credits to news media and redirection of some of the $1.2 billion in federal funding that the CBC gets. The Public Policy Forum has suggested that such a fund should be administered by a not-for-profit corporation at arm’s length from federal government interference.

Compensation for print media and small outlets can be based on a baseline level of support as well as on the number of clicks to their content. This can be done without the big stick of government control with the ability to change rules as it sees fit. The challenge of gaming the system by “clickbait” that artificially builds payable views can be overcome by AI analysis of views, likely by an algorithm cheaper than the $52 million spent to develop the ArriveCan app.

The government has boxed itself into a political corner that is hard to get out of. Rodriguez is now trying to negotiate a compromise with Google and Meta. Google is still talking but unlikely to accept the deal. Meta appears to have walked away from negotiations. Meta stated that “we have repeatedly shared that in order to comply with Bill C-18 … content from news outlets, including news publishers and broadcasters will no longer be available to people accessing our platforms in Canada.” When you offer a take it or leave it ultimatum without the leverage to make someone take it, they likely will leave it and let you suffer the consequences.

Canadian journalism will now likely pay the price of the government’s hubris and miscalculation.