In the 1930s, the authoritarian forces of Nazism, Fascism and Communism were in the ascendency in Europe. A doctrine that became common to all of the architects and proponents of these ideologies was that the state must not be bound by the law. The rule of law neccessarily meant that the state was unfree. Giacomo Perticone put it this way in 1931: “During the whole of the evolution of judicial thought, one was led to the conclusion that a regime of law was one in which the State was a prisoner of the law, and as a consequence incapable of action, of will, of power, a State indecisive, emasculated and all that which follows.” It followed that a State bound by the rule of law was unfree and to be free to act justly it must not be subject to the obligation to follow the law. In other words, the State should be able to treat citizens exactly as it pleased. [Ref FA Hayek, The Constitution of Liberty]
The proponents and leaders of these totalitarian forces thus justified their right to ignore the concept of the rule of law. At a basic level, the rule of law can be considered as a legal system in which everyone is treated equally before the law, whether it be statute or common. The totalitarians devised their own justification for doing exactly the opposite. Orwell’s oft-quoted sentence from Animal Farm reads: “All animals are equal, but some animals are more equal than others.” The sentence captured both the concept of differing treatment and the abuse of language to maintain a power hierarchy and authority to coerce others.
Nazism, Fascism and Communism are variations on the same theme. They share more commonalities than they have differences. While Nazism and Fascism were crushed in Europe as a result of the atrocities committed during 1930s and 1940s, Communism survived until 1989 in Russia before collapsing there. However, the underlying forces have not gone away. China has been ruled by the Chinese Communist Party since 1949. Roughly 1/7th of the world’s population suffers under that regime. There are no political movements of any substance in the world claiming to be either Nazi or Fascist. But are there countries being ruled over by political parties that behave as though they are Fascist?
Fascism is authoritarian. It is characterised by dictatorial leadership. Opposition to the leadership is suppressed. The forces of the police and military are used where necessary to subdue then eliminate such opposition. Fascism looks to a strong charismatic leader. Fascism does not attempt to abolish private property or the means of production. But, producers and entrepreneurs are strictly controlled by the power structure. Fascist leaders exploit nationalist sentiment and hyerbolic language to bolster their positions.
The current policies, and how they are enforced, in Australia in response to COVID19 have many characteristics in common with a totalitarian fascist regime, although in one respect, they differ: no Australian political leader could be described even remotely as charismatic. But in other respects, they are following the playbook: free the State from the obligation to follow the rule of law, treat people differently sometimes to the extent of cruelty that beggars belief, and use heavy handed force from the military and police to smash opposition. These political leaders have assumed powers that were not granted by any legislature. They have ignored common law freedoms. They are maniacal in their insistence that all citizens obey the rules. They do not tolerate dissent.
Last week in Australia, the suppression of dissent went to a new level: tear gas, pepper spray and rubber bullets were used by the police on peacefully protesting citizens. What comes after rubber bullets? A citizenry that is subject to an overnight curfew, enforced unemployment for many, not allowed to leave home without a valid reason, not allowed to travel further than 5km from their home will eventually crack under the strain. It remains to be seen what comes after rubber bullets in 2021 Australia. But it’s not as if the world hasn’t been here before. History points to what is next.