The British public responded with trills of gleeful laughter and celebratory fireworks to the news last week that, amidst economic crisis and generalised decay, the Government has found time to plan extending its ‘soft drink industry levy’ (that is, its sugar tax) to milk-based drinks and non-dairy substitutes. The excitement grew yet further when it was revealed that there are proposals for the tax to kick in at 4g of sugar per 100ml of soft drink, rather than the current 5g per 100ml (the levy currently being set at 18p per litre). We look forward to the day when our benevolent overlords ratchet the ratio down to 3g per 100ml, then 2g, and, ultimately, to the glorious moment when we are permitted to have no sugar at all. We cannot be trusted with it; this we know. And we are reassured to see that, while our Government does almost nothing well, it remains a world-leader in passive-aggressive, surreptitious nudging.
This story, though, gives me the opportunity to discuss something important, which is the transformation of our governing structures into a system of what I call ‘expert glory’. At the heart of this story lies law, and the way it is increasingly utilised to channel expertise so as to bring into existence a certain ‘effectual truth’ which establishes a justification for the act of governing. Western thought has since Socrates insisted that law should be a matter of rules. Now, though, law-making is no longer about making rules so much as it is about commanding certain behaviours on the basis of what technocrats dictate.
The ‘soft drink industry levy’ (SDIL) serves as a useful example of this tendency. In 2016, ostensibly concerned that “our children are consuming too many calories”, the Department for Health and Social Care drew up a Childhood Obesity Plan. The aim of this was to “significantly reduce England’s rate of childhood obesity within the next 20 years” by “making school food healthier”, “harnessing the best new technology”, bringing in requirements for “clearer food labelling”, “helping all children enjoy an hour of physical activity every day”, and so on. The headline-grabber was “a broad, structured sugar reduction programme to remove sugar from the products children eat most”, with the proposed SDIL being at the centre of that programme.
The SDIL eventually wormed its way into law through the unlikely vehicle of the Finance Act 2017, which in ss. 25-60 provides for the new tax and makes clear that the details of its operation will be handled by Her Majesty’s Revenue and Customs (HMRC), the UK’s tax authority. HMRC duly, in accordance with this delegated power, made the Soft Drinks Industry Levy Regulations 2018, a statutory instrument setting out details covering all kinds of marvellous and fascinating things, such as how to determine sugar ‘dilution ratios’ in individual drinks; how the tax will function for different categories of drink (‘fruit juice’, ‘vegetable juice’, ‘milk and milk-based drinks’, and so on); how to determine exemptions based on calcium content and other conditions; how soft drink manufacturers are each to establish and maintain a register “containing such information as [the HMRC] thinks is required”; and so on.
The result is something that can be more accurately called a system of expert rule rather than one of rules as such. The HMRC’s Regulations derive from advice from a broad array of specialists in different fields – experts in public health and nutrition, in the drinks industry, in health economics, in taxation and more besides – who are able to provide it with the expertise necessary to determine, for example, that ‘buttermilk’ ought not to be classified as ‘milk’ where calorific mono-saccharides or di-saccharides are added in production in certain contexts; to give evidence regarding ‘dilution ratios’ resulting in lower levy liability; to predict how much revenue will be generated from the levy, and so on.
HMRC also engages in ongoing consultations with ‘stakeholders’ in deciding whether and how to make changes, and generating feedback on the levy’s operations. The Finance Act 2017 was itself, of course, drafted after extensive expert consultation led by Public Health England. And the Childhood Obesity Plan, which originated the whole project, was drawn up on the basis of a development of a body of ‘evidence’ gathered by the Scientific Advisory Committee on Nutrition, an expert committee sitting within the Government’s Office for Health Improvement and Disparities, showing the negative effects of childhood ill health, and purporting to demonstrate “that slowly changing the balance of ingredients in everyday products, or making changes to product size, is a successful way of improving diets”.
The role for political legislators in all of this is minimal. They are simply the vehicle through which all of this expertise is commissioned and marshalled together and given effect. What is really going on is not so much law-making as the concentration of expert knowledge into decrees which are then thrust upon the population so as to generate compliance. And the nature of law itself, as a consequence, shifts away from generalised rules towards detailed and fine-grained commands, dictating courses of behaviour in the name of achieving particular ends.
The SDIL is far from the only example of law working to operationalise expert rule. In past posts, for example, I have described how minimum pricing for alcohol and regulations for energy smart appliances function along similar lines – instrumentalising law in order to cajole or command the population into complying with what the ‘wise’ dictate to be in their best interests. This style of law-making, indeed, is characteristic of the modern predicament (we became intimately familiar, of course, with its contours during the Covid era). What explains it?
The answer, as in most such matters, takes us back to Machiavelli. Machiavelli has never been widely read or cited by legal philosophers. This is because, certainly in The Prince, law was a subject about which he had almost nothing to say. In The Prince the subject appears, in passing, on only three occasions scattered through the text. But what is said about it on the third such occasion is critical: a Prince, Machiavelli tells the reader, needs good laws. But this is not because good laws reflect what is moral or because they enshrine personal autonomy or restrict tyranny. No – it is because good laws make the people see the Prince’s rule as beneficial, and allow him to obtain ‘glory’.
This definition of what constitutes ‘good law’, it will be noticed, is focused on the needs of the Prince. Although it will result in the people seeing his rule as beneficial, and therefore presumably has some benefit for them, that goal is an instrumental one. It serves the bigger aim, which is bolstering the security and status of the Prince. And, of course, ultimately it is all about allowing the Prince to ‘glory’ in being a benevolent law-giver. The purpose of law, that is, is to facilitate the needs and desires of the ruler, not those who are ruled.
This was markedly at odds with the understanding of law that had prevailed under the Greeks and the medievals, which assumed that law was ‘good’ when it aligned with some form of cosmic order. Law did not exist to benefit the ruler (indeed, it was supposed to confine rulers – a ruler unconstrained by law being a tyrant); it existed to put social relations in their proper ordering. Machiavelli was, then, as in much else, charting a radically different course to what had preceded him. He was gesturing towards an idea of law as unrelated to a cosmic or natural order, and instead a mere instrument – a way of serving a ruler’s interests.
It is absolutely no accident that this legal revolution which Machiavelli was hinting at dovetails with the Scientific Revolution which was shortly to commence at the time The Prince was written. In his most recent book on Machiavelli, Harvey C. Mansfield describes the Florentine thinker as, essentially – though he does not put the matter this starkly or bluntly – the first technocrat. This is because Machiavelli was the first thinker to hint at an understanding that the scientific nature of the world itself – that it was not, as the medievals understood it, a place of miracles, symbols and signs, but one with a manipulable physical reality – had political import. Thus, he appeared to have no concept of ‘truth’ (what might be called ‘Truth’) in the sense of what was revealed or divinely ordained. He only had a concept of ‘effectual truth’ – i.e., the truth (or truths) that human beings could themselves create through mastery of the physical world. This, naturally, included Princes themselves. And it followed that mastery over the physical world, in the name of their own interests, was a project to which Princes could aspire.
What we see in behaviour like that of the current Labour Government with its shenanigans over the sugar tax can therefore be understood as a very drab and petty culmination of the twin revolutions, in law and science, of which Machiavelli was the harbinger. On the one hand, good law is good because it serves the interests of the ruler by making his rule appear to be beneficial. And on the other, the ruler rules not in reference to actual, revealed Truth, but to the ‘effectual truth’ which he can create in the form, as it were, of facts ‘on the ground’. And so it is that we see law instrumentalised precisely to realise ‘effectual truth’: to shape the world in the name of the truths that the ruler wishes to effect, so as to form, in the current parlance, a ‘narrative’ fitting for his ends.
This ‘effectual truth’ in relation to the issue of childhood obesity and sugar consumption is obvious. Law must make the ruler’s rule appear to be beneficial, and redound to his ‘glory’. And it does so following the identification of certain facts (the ‘evidence’ that children consume too many calories) and the revelation that those facts are manipulable. Children can, purportedly, be made to be less obese. And this can be done through the operation of law in the form of an imposition of a tax, deploying the expertise available to the ruler. And this in turn forms a powerful ‘truth’ (for all that it may or may not actually be true): kids were too fat, parents were too irresponsible, so government stepped in to save the day.
It sounds grandiose to describe this as redounding to the ‘glory’ of the ruling class, but the essence of the point remains. Technocratised law serves the interests of the ruler by making his rule seem beneficial. And it does this through channelling expertise in the mastery of the world, so as to present a picture of bringing about important physical, factual changes – fewer calories, fewer obese children, etc. Never mind what the truth is. What matters is the effectual truth which law and expertise can between them create.
This, more than anything else, can be thought of as the dominant governing style in Britain, the Western nation which more than any other seems to instantiate the needs, desires and logic of the Machiavellian Prince, and which is most strongly characterised by the creation of ‘effectual truths’ – in the form of nudging, expert rule, and undemocratic tinkering so as to create a narrative of social ‘improvement’. That the country is so evidently tipping into social decline provides a layer of irony that will not, of course, be lost on the reader.
Dr David McGrogan is an Associate Professor of Law at Northumbria Law School. You can subscribe to his Substack – News From Uncibal – here.
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I wonder what will happen if there is ever a widely publicised and proven link between artificial sweeteners and diabetes. I think the ordure will well and truly hit the spinny thing.
In some scientific circles it is an accepted fact that artificial sweeteners cause diabetes. Personally, I have long believed that these ingredients were dangerous. Initially there was little to back my point of view so it was gut feeling I suppose. Slowly this position is being vindicated.
Ditto trans fats.
Thanks for your clear assessment of our wonderful and amazing rulers (the people possessed of Wise And Numinous Knowledge), and your funny opening paragraph. ‘Expert glory’ indeed.
At one time, under Common Law we could do anything that was not prohibited. Under Napoleonic Law (looking at you EU) we may only do what is permitted. Clearly modern politicians in the UK are enamoured with deciding what the little people may do.
I wouldn’t feel differently about the “sugar tax” if it “worked” and turned everyone into a healthy Adonis who lived to be 150. The state has no business interesting itself in what I eat.
There is an awkwardness in your position tof. While I largely agree that the government has no business interfering in what you eat the fact is that some governance is required in what food manufacturers produce with tran fats being a clear example. We now have the undoubted issue with artificial sweeteners and diabetes. As usual this is a problem which has been exacerbated as a result of busy body government interference in the first place but the solution was not necessarily to ban sugar but to ban sweeteners.
Industrial chemical compounds really have no or little place in the foods we eat although there are necessarily exceptions.
My view would be that the information on what’s good for you and what is not is out there. It’s up to me to inform myself and decide what I want to consume. I am not even sure if lists of ingredients should be mandatory. If I am bothered, I will simply not buy foods that don’t say what’s in them. Existing laws on obtaining money through deception would cover cases when the lists of ingredients are incorrect.
My trust in government,
already low, was shattered by “Covid”
The problem is this started a long time ago.
Seat belts on cars. Why is it law to wear them?
The problem is you’ll struggle to find anyone who doesn’t think it’s a good idea to mandate the use of seat belts.
Once you start telling people what they have to do for their own good, there is no end to it.
Most people just can’t stand by the thin end of the wedge argument. They’ll always end up caving on something they think is important or reasonable or sensible. Once you cave in it’s over.
I was in Greece last autumn and my friend who is from there showed me round his home town. I asked him whether seat belts were mandatory and he immediately started apologising for how terrible his fellow Greeks were for not observing the law. Sad. He’s the one who parroted to me that “Meloni is far right” but was unable to say what “far right” meant or how Meloni fitted this epithet. Intelligent, educated and follows politics.
We were in Sal, Cape Verde earlier this year and the taxi that picked us up from the airport didn’t even have seat belts. Hardly anyone seemed to wear them. According to the internet it’s the law there but I never saw any traffic cops in fact few cops of any kind, mainly private security people protecting property who were uninterested in what you did as long as you didn’t try to enter whatever they were guarding when you shouldn’t.
I sometimes visit the UK. I keep a bicycle at my mother’s place, so I can get around without subjecting myself to the horrors of public transport. People often demand to know from me why I am not wearing a helmet. I give them my (very good) reasons, to the extent most of them wish they had never asked me.
I then add further shocks to the subject by telling them that the only reason I wear a helmet when I ride my motorbike is to take advantage of the built-in windscreen.
“You see, it’s nigh on impossible to keep my eyes open above 40mph owing to the wind, and motorcycling with my eyes closed is not at all smart because I cannot see where I am going! And I break the speed limits A LOT!”
I finish off by telling them that I keep seeing people walking into lampposts because they’re too busy looking down at their StupidPhones while they walk to the office, and that the frequency and severity of head injuries would both be much reduced if only helmets were made mandatory for pedestrians. That tends to shut them up completely.
In “my” part of France, many more people get around on a bicycle. And almost none of them wear a helmet to do so. And no-one has ever asked me why I am not wearing a helmet. Interesting.
There’s also a lot less rubbish, and far fewer bins.
Cause and effect. Discuss.
The Netherlands, where literally everyone cycles, everywhere. The home and centre of cycling in Europe and probably world wide.
In my experience helmets are very rarely seen, let alone worn..
For me, the sugar argument is akin to carbon dioxide. Humans absolutely need sugar for brain function. It is the most important part our diet. But it is evil we are told, in the same way that CO2 is, even though both are essential for life. Banning it, overtaxing it is insane. In the sixties and seventies we drank copious quantities of lemonade, cream soda and other sugary fizzy drinks but were as thin as rakes. Why, because as children we were always active, burning off the excess energy we had consumed. Don’t tax, just show today’s child abusing parents that allowing the children to become obese is wrong and they should do something about it, not Government.
Oh thank you. 100% agree. Same with fat and salt. Try operating without salt. Brain and body cease to communicate, being electrical as we are.
I am fond of remarking that I am a victim of a low fat, low salt, low sugar society.
Yes salt.
Another bloody nonsense. ‘Salt is bad for you.’ No it isn’t and I love the stuff. I’m the sort that adds salt to salted peanuts if I feel they are not salty enough.
I remember a discussion with a cardiac specialist four years ago and in discussing diet I told him I ate a lot of nuts
….”not salted peanuts I hope.”
Oh yes. I love ’em.
Cardiac chappy was not impressed. 😀😀😀
( I am aware that peanuts are not strictly nuts but I do eat lots of ‘real’ nuts.)
Sugar is definitely not “the most important part of our diet” as zero dietary sugar is necessary for brain function. Protein and fat are essential macronutrients and our bodies derive carbs via the process of gluconeogenesis from these. This is why if one is following a keto or carnivore way of eating ( as well as all the indigenous people who still eat their traditional diet, which excludes sugar and processed foods ) it is imperative to eat sufficient fats and protein from healthy sources. That’s all the fuel and nutrients you’ll ever need.
Much appreciated Mogs.👍
So why am I told that it is essential for memory functions and cognitive functions. Why am I told it is necessary for cell activity? I’ll stick with needing it thanks rather than risk the alternative. However everything in moderation not the nanny state ban
And perhaps I could add, people advocating faddy diets that omit essential elements are showing mental shortcomings indicative of those who are lacking the essential elements
Are you getting mixed up with ‘essential fatty acids’, perhaps? These are necessary for good cognitive function ( and overall good health ) and must be obtained from our diet, unlike glucose, which the body can acquire using the aforementioned metabolic pathway. And a way of eating which doesn’t include sugar/processed carbs, whereby a person uses fat for fuel as opposed to relying on carbohydrate, isn’t ”faddy”, as it reflects how humans used to eat way back when, though I know primitive humans would have sourced fruit and honey wherever they could, but before the advent of agriculture we relied heavily on animal protein and fats.
There’s many benefits to eating this way but everyone has to figure out what works best for them as an individual. I think as long as people aren’t suffering from certain disorders associated with metabolic syndrome ( certain autoimmune/neurological disorders and even cancers can be effectively treated using keto ) then most can get away with a bit of sugar here and there, but it’s never ‘essential’ in the diet when the body makes glucose itself.
When the rules are more about telling me what a thing on the shop shelf is NOT, as opposed to what it IS, then I know something is off with the rules.
What was the intent of this law? The Government say it is to reduce obesity rates and perhaps it truly believes that by requiring manufacturers to reduce sugar content will do that, and the Government can legislate for that, but then the question must be asked why tax? why make money off a law to make unhealthy foods less unhealthy? why not just make the law?
The fact that Governments seek to make money off manufacturers under the lie of caring for our health is exposed under legislation such as this, if they really cared they would accept that reducing the supposedly harmful substance is sufficient,
I wonder when they will tax fats, lots mor opportunity there to make up the shortfall in Rachels accounts, and fats are in everything apart from vegetables.
Spot on.
If this is the case, avocados are decidedly not vegetables as they extremely fatty and essentially tasteless
The sugar tax certainly doesn’t make anyone seem glorious in the eyes of the people affected by it. Rather, like a seriously pettifogging busybody meddling in other people’s affairs not so much because this is urgently called for or makes any sense but because he can and absolutely wants to. See also the recurring Green Dreams of solving The Climate Crisis™ by returning to a wartime-like rationing system for everything people could conceivably need or want.
I also prefer a simple explanation for indirect taxes of this kind: They exist because government wants more money and all this expertising is just the bullshit used to sell that to the general population.
You opted for the saccharin culture now you get the gut rot. Too late baby you sold it all for a mess of pottage.