The Unthinkable Law

Considering Kyrgyzstan’s deeply perplexing new law on “manipulating information”, just passed by the parliament and awaiting ratification from the president — you can read about it (in English) here, and (in Russian) here, as well as the kinds of important and inconvenient journalism it may stifle in the future here — a philosophical thought experiment occurs to me. Imagine a country whose parliament passes a law that makes it illegal to think about the law. What will become of this unthinkable law and its nation?

A law that erases itself

On the one hand, such a law should have a registration number and be logged in the legislative record, as per standard practice. On the other hand, as that would require someone to think about the law after its passage, this would be an illegal act. However, the bill that preceded the law should also have a registration number and be logged in the record. A quandary now arises: the logic of the law would probably require that the bill also be struck from the record, but as that would be an intentional act, motivated by the thought of the law, this too would be illegal. (I will return to this in a moment.)

Not being able to think about the law would mean not being able to read it, even to glance at it, unless of course accidentally and without awareness. Discussing the law, not only between everyday citizens, but also between academics, lawyers, even the parliamentarians themselves, all the way up to the highest court of the country, would be illegal. This would make any attempt to amend or appeal the law, much less ascertain its constitutionality, effectively impossible. A second quandary now arises: if it is, in effect, forbidden to read or discuss the law, how can anyone be certain that the law actually makes thinking about it illegal?

It would seem that, sooner or later, this unthinkable law would erase itself. The paradox: strict enforcement of the law is impossible, as enforcement is, again, an intentional act, motivated, again, by the thought of the law, which would be illegal. In order to be enforced, this unthinkable law must be unenforced. It must pass out of consciousness as swiftly as possible.

Yet, for this unthinkable law to disappear would be to undermine the very nature of being a law to begin with. A law is such because it affects society. It necessitates enforcement. However, in this case enforcement violates the law, almost as though the law, like some legislative Liar’s Paradox, were instructing authorities to break it. Hence, can this law be legitimately considered a law?

Becoming unthinkable

Kyrgyzstan’s new law is frightfully like this hypothetical, paradoxical, unthinkable law. The text, in the opinion of almost every observer, is quite opaque. Ostensibly, it is supposed to stop “manipulated” and otherwise “fake” information from entering Kyrgyzstan’s digital territory. However, it is unclear if the focus of the law is upon the content itself or delivery systems. Its proponents have made much ado about fake accounts, which would imply delivery systems, but the triggers for punishments — which apparently include blocking social media accounts and even entire websites — are implied to be content. Perhaps the presence of manipulated or fake information is intended to be used as an indicator of the account or website? If so, that remains to be spelled out.

It is also very unclear how exactly the law will enforced, at least in any meaningful way that is not selective, arbitrary and deeply controversial, even potentially destabilizing for Kyrgyzstan, given the fragility of its democratic government and history of instability (revolution in 2005, counter-revolution in 2010, and whatever the former president was attempting to do in 2019). Nevertheless, let us assume maximum and universal enforcement. The current understanding among observers is that the law is intended to be enforced along the lines of the following scenario.

Imagine two online social network users, call them Bek and Gulya, discussing Marat in a post. Bek asserts that Marat stinks, but Gulya, who is dating Marat, feels that he smells just fine and Bek is just trying to spread false information about her boyfriend due to jealousy. She promptly goes to the authorities (presumably, the Ministry of Culture, Information and Tourism, which for the moment has been tasked with enforcing this law) and accuses Bek of spreading fake information, showing them his post. The authorities, with a sorcerer-like technological power that no one until now realized that Kyrgyzstan even possessed, dutifully block Bek’s social media account and initiate an investigation into the his claim against Marat.

This scenario, unfortunately, is not as silly as it sounds. For example, in 2018 one online social network user was investigated by the authorities for supposedly instigating inter-ethnic hatred between Russians and Kyrgyz just for calling Soviet-era architecture ugly (I happen to disagree: the Soviets made fascinating buildings). This was an egregiou use of the Kyrgyz state’s precious, limited resources that I can think of in this country’s recent history, yet it was by far not the only incident of its kind, quite sadly.

Now, imagine if instead of asserting that Marat stinks, Bek instead asserts that the law on “manipulating information” is itself a ploy by parliamentarians to manipulate information, namely, by creating a procedure by which inconvenient information may be censored on the basis of it being potentially false — not unlike how libel laws have been deployed by political elites, in Kyrgyzstan and elsewhere, to stifle journalism. As before, Gulya promptly goes to the authorities and accuses Bek of spreading fake information, showing them his post. The authorities block Bek’s social media account and initiate an investigation into the his claim about the law.

And so, just like that, this law becomes unthinkable. At least, “unthinkable” in the sense of speaking about it in online public forums.

Ouroboros

This can be stretched out ad absurdum. If a class action suit is raised against the law and brought to Kyrgyzstan’s constitutional court, could not the plaintiffs, in asserting that it is unconstitutional, be subject to the law the moment they publish their assertion online? After all, the law’s unconstitutionality is potentially false — bracketing, of course, the very tricky question of whether a legal interpretation constitutes the same kind of fact as, say, whether it was a cool summer night when the law was passed. Given the current understanding of the law, that would be sufficiently heinous to merit activating the law and initiating an investigation. Indeed, could not the judges themselves be subject to the law for deliberating its constitutionality, again, the moment their deliberations went online?

What if Kyrgyzstan’s parliament wants to rescind the law, initiating all of the appropriate procedures and committees? Presumably any justification they would give, say, that the law was ineffective, or that disinformation has diminished, could be challenged as potentially false (again, leaving aside that tricky question about defining what it means to be “false”, which the law does not address). And on and on.

Whether this unthinkable law will end up the same way as my hypothetical one, only time will reveal. Probably it will be very much thought about, by both its proponents and opponents. And probably it will be applied very selectively, making it thought about all that much more by civil society, everyday citizens — perhaps even those parliamentarians who voted it into existence today, but tomorrow may find themselves subjected to it, like a snake eating its own tail.

2 Replies to “The Unthinkable Law”

  1. A post-script: This law is unthinkable, but it is also unforgettable. That contradiction is quite destructive. Consider the following points.

    The power of this law is utterly dependent upon the power of the government that has passed it. Perhaps if that government were a superpower, capable of exerting its laws beyond its borders onto other countries, this unthinkable law could be extended to the entire community of nations, becoming unthinkable everywhere. More likely, though, is that there will be at least one government out there unwilling to submit, and so its citizens will be able to think about this unthinkable law to their hearts’ content, free from the fear of punishment. Perhaps this rebellious government, this rogue state, will even pass a law making it illegal not to think about the unthinkable law.

    Another potential trouble: a government’s power is not only geographical, but temporal; it can enforce its will upon those in the future. The quandary is that while for such a law to work requires that it pass out of consciousness as swiftly as possible, whether it could also pass as swiftly out of memory is more debatable. There remains the problematic affair of its bill residing in some dusty archive somewhere, recorded in some decaying log book somewhere.

    Sooner or later, an historian will stumble upon its traces and begin to seek out its fate. This intrepid scholar may find that the law was scheduled to be debated and voted upon at such and such date, but will he or she find a registration of the bill’s ratification into law? Assuming a certain continuity between past and future — such that the government of the historian’s day is either the same one that passed the law, or it is a descendant state still subject to its predecessor’s acts of legislation (as many post-Soviet governments today are still beholden to Soviet-era laws) — future legislators are confronted with a riddle: was the law passed? It is impossible to say for certain! However, if it was passed, by asking whether it was passed, are they not violating the law?

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