Having defined the mafia state, which is the state par excellence of elite interest, it is worth making a comparison with the constitutional state, which is the state par excellence of societal interest. As we mentioned, the former prevails in patronal autocracies whereas the latter, in liberal democracies. Going through the four dimensions of interpretative layers, the nature of the ruling elite in a constitutional state is one of a constrained elite, strictly confined to the sphere of political action [→ 2.2.2.2]. This does not mean there is no connection between the spheres. On the contrary, political actors form relations with economic as well as societal actors [→ 5.3]. But this takes—ideal typically—the form of transparent, regulated cooperation, whereas the spheres of social action remain separated in the sense that the actors, while they individually can fulfill different social roles (for example, a politician can also be a mother), their actions and motives in one role do not influence their actions and motives in the other role (the mother-politician does not make decisions to favor her children). In the mafia state, however, the spheres of social action collude and the ruling elite takes the form of a clan, that is, an informal patronal network based on patriarchal domination [→ 3.6.2.1]. In this case, the ruling elite is unconstrained and rests upon permanent, informal and illegal ties of vassalage, enmeshing all three spheres of social action. Furthermore, a mafia state features a single-pyramid power network, where other (formal or patronal) pyramids are subjugated, marginalized or eliminated, whereas a constitutional state features a multi-pyramid power network,where the leading political elite coexists with (1) independent branches of government and independent institutions (such as a constitutional court) and (2) independent opposition, which has (a) resources—including both party financing and the property rights of supporting economic actors—independent from the decision of the country’s head [→ 3.7.1.1] and (b) winning chances not hampered by illegal campaign financing of the rulers and one-sided changes of the electoral law [→ 4.3.3.2]. In short, a constitutional state features pluralism, which is also a defining feature of liberal democracy [→ 4.4.1].
Closely related is the dimension of the action targeting state institutions. By formal rules, both a constitutional and the mafia state feature democratic institutions, such as multi-party elections and checks and balances of power. However, while in a constitutional state the de jure institutional framework and the de facto practice coincide, in a mafia state they diverge. A mafia state is a neopatrimonial or neosultanistic state, which means that the ruling elite understands the regime as their private domain and the democratic institutional setting is a mere façade [→ 4.3]. The legality of state action, while immediately undermined by the actual criminal acts mentioned above, follows directly from this feature as well. As opposed to a traditional patrimonial state where political power “indeed operates primarily on the basis of discretion,” without formal limits and not requiring reaffirmation from its subjects,[1] a democratic system has an elected leader whose tasks and authority are strictly delimited by the constitution. A constitutional state might feature illegality as non-structural deviation, but the constitution is respected and the rulers do not engage in criminal acts themselves. In contrast, when the chief patron builds a single-pyramid patronal network on the national level and informal rules are respected over formal ones, lawfulness is violated—which is the very reason for disabling institutional checks. A mafia state is also a criminal state where the chief patron acts beyond his formal authorization and runs the country as a criminal organization of the single-pyramid patronal network.
To analyze the last dimension (action targeting property), it is worth invoking the framework North and his colleagues propose in the book Violence and Social Orders. In their interpretation, social orders of recorded human history can be divided into two groups: open-access and limited-access orders (“natural states”), the names of which refer to the non-rulers’ and non-elites’—the masses’—“access to valuable resources – land, labor, and capital – or access to and control of valuable activities – such as trade, worship, and education.”[2] Among the several differences they list between these two orders, the most important for us now is the criterion of impersonality. “Impersonality means,” the authors explain, “treating everyone the same. [It] grows out of the structure of organizations and the ability of society to support impersonal organization forms (i.e., organizations with their own identity independent of the individual identity of the organization’s members). In the legal terms that came to characterize impersonal organization in the Western tradition, these are perpetually lived organizations: organizations whose existence is independent of the lives of their members” (emphasis in original).[3] According to the authors, open-access orders are “largely impersonal. These societies have the only type of governments that can systematically provide services and benefits to citizens and organizations on an impersonal basis: that is, without reference to the social standing of the citizens or the identity and political connections of an organization’s principals. […] An important feature of impersonality is the rule of law: rights, justice, and enforcement are rule bound and impartial. Economies in these states are also characterized by impersonal exchange.”[4] In contrast, the limited-access order “builds on personal relationships and repeated interaction […]. In natural states, most relationships within the dominant coalition are personal rather than impersonal. Status and hierarchy tend to be defined in terms of a social persona that is unique to individuals, even if those personas share similarities with broader classes. […] Non-elites are not masses of undifferentiated individuals who are treated impersonally. Protection is extended through patronage and clientage networks. The heads of patron-client networks are powerful elites who dispense patronage to clients, provide protection for some aspects of their clients’ property and persons, and negotiate arrangements among elite networks […]. The social identity of non-elites is closely tied to the identity of the patronage network in which they are located.”[5]
While the entirety of North and his colleagues’ description is too broad for the purposes of our framework, several features of open and limited-access orders are useful to interpret liberal democracies and patronal autocracies, respectively. We will examine the creation of limited access through societal patronalization in Chapter 6 [→ 6.2], whereas now we address the personal-impersonal dichotomy. Approaching the feature of action targeting property, a constitutional state’s actions in general can be described as impersonal, while a mafia state can be identified precisely by the presence of personal (non-impersonal) action. Throughout the book, we capture this difference by the normative-discretional dichotomy:
- state action is normative if its effects depend on objective and formal criteria, not allowing for different treatment of people on the basis of their identity (impersonal, no double standard);
- state action is discretional if its effects depend on subjective and informal criteria, allowing for different treatment of people on the basis of their identity (personal, double standard).
In a constitutional state, state action is normative. Indeed, the essence of the rule of law, in terms of both adjudication of disputes and the respect and protection of property rights, is impersonality and the equality before as well as after the law (that is, enforcement) [→ 4.3.5.1]. When it comes to action targeting property, that can sometimes be discretional, like in case of eminent domain [→ 5.5.3], but it is dominantly normative. As we mentioned, the state, possessed of the monopoly of legitimate use of violence, extracts resources and redistributes them by the means of taxing and spending. Taxation in a constitutional state exists in the form of normative, general and sectoral taxes [→ 5.4.3]. However, the case in the mafia state is less obvious. On the one hand, it is clear that the mafia state utilizes discretional state action, in terms of both unequal enforcement of law and predation. As we mentioned, this is closely tied to informality as well, which is not simply about “stealth” and preserving the appearance of legality but that informal institutions are more suited to continuous discretional rewards and punishments than the formal institutions of a modern state (i.e., professional bureaucracy and state administration [→ 3.3.5]). But the mafia state also taxes and has a judicial system which treats a large number of cases of everyday people in accordance with formal law. Indeed, this follows from the way we defined the mafia state’s components: by interpretative layers, the features of different states complement and not replace previous state functions. While a predatory state, a mafia state still gets a substantial portion of its revenues from taxation [→ 7.4.6].
This problem can be solved by introducing the term amplitude of arbitrariness. What “amplitude” means is the range of choices among different ways of intervention, or in other words the leaders’ ability to intervene negatively and positively at their discretion. The wider the amplitude of arbitrariness is, the more discretional decision options are available to political actors, and actual instances of state intervention will be scattered between the two endpoints of the amplitude. This way, the concept of amplitude solves the problem posed by patronal autocracies. The mafia state may act normatively in many instances, but the (systemic) presence of discretional action indicates that the chief patron can decide to step over formal limits and intervene selectively—that is, his amplitude of arbitrariness is wide. Figure 2.2 depicts this, using state concepts associated with legality. We use these concepts because, as we explained above, they show graduality in terms of using the state for elite interest and, therefore, feature different amplitudes of arbitrariness as well.
The wideness of the amplitude of arbitrariness depends on the range of state institutions the leading political elite appropriates. The more institutions are patronalized by the same network, the wider the amplitude is, which is also because these institutions can be combined to carry out linked actions [→ 2.4.4]. In a partially appropriated state, the patronal network may be able to use one local or state institution or some regulatory agency; in a fully appropriated state, the chief patron can use the parliament, the tax office, the chief prosecutor etc. as parts of a single corrupt machinery, carrying out discretional acts together.
The constitutional state has minimal amplitude of arbitrariness. Although corruption may appear as non-structural deviation, its quantity is minimal and quality, least important in contrast to other state types. In such states, the rule of law generally holds and property rights are upheld impersonally. Not even the above-mentioned eminent domain is at the leaders’ discretion, being heavily regulated and subject to appeal.[6] As North and his colleagues point out, economic actors in such regimes “do not need to participate in politics to maintain their rights, to enforce contracts, or to ensure their survival from expropriation; their right to exist and compete does not depend on maintaining privileges.”[7]
Jumping to the end of the scale, the mafia state has maximal amplitude of arbitrariness. The chief patron disposes over status and property using the instruments of public authority, which are completely under the control of the adopted political family. As for action targeting property, the maximum amplitude allows the mafia state “to intervene selectively in the judiciary to reward supporters and punish opponents when needed, but also gives right-holders some confidence that their rights will be respected in more mundane cases. This allows right-holders to use their assets productively when they do not challenge interests of the ruler, while also generating tax revenue for the ruler.”[8] In essence, property in such regimes has a conditional character: those at the top of the social hierarchy get there and receive property by the decision of the chief patron, whereas the same actor’s decision can also lead to the confiscation of their property (as well as any other actor’s) on a discretional basis [→ 5.5.4].[9]
We may sum this part up by pointing out that, in our discussion, we dissolved mainstream axioms about state functioning with respect to all four dimensions, axioms that apply well to constitutional states but not to mafia states. First, the ruling elite is typically presumed be a formal organization, like a party or government, and it is like that in a liberal democracy. In patronal autocracy, however, the ruling elite is an informal organization, an adopted political family, where actors are to be recognized primarily by their informal titles to which formal titles may be attached secondarily. Second, the principle of societal interest is typically presumed with respect to the action targeting state institutions, as the ruling elite is imagined as a server of certain (smaller or bigger) societal groups or classes, for the interest of whom public policies are implemented. In this dimension, the mafia state is a neopatrimonial/neosultanistic state: the ruling elite runs not only on the principle of elite interest but treats society as private domain, within the façade of democratic institutions. Third, the state is imagined to take over monetary property and redistributing it from one social group to another. In contrast, the distinctive feature of a mafia state is predation, meaning not taxation in the principle of societal interest but takeover of companies and other non-monetary property for the ruling elite’s interest. Finally, it is typically presumed that corruption is something the state fights, whereas the ruling elite creates laws it wants to maintain and not break. But when the ruling elite is not formal but informal, it can and must commit illegal actions to relegate the formal institutional setting into a role of secondary importance vis-à-vis informal interests and the chief patron’s orders. Unlike a constitutional state, the mafia state is not the guardian of the law, but the monopolist of its offense [→ 5.3.4].
[1] Weber, Economy and Society, 229.
[2] North, Wallis, and Weingast, Violence and Social Orders, 30.
[3] North, Wallis, and Weingast, 23.
[4] North, Wallis, and Weingast, 113.
[5] North, Wallis, and Weingast, 32–35.
[6] Cf. Sullivan, “A Brief History of the Takings Clause.”
[7] North, Wallis, and Weingast, Violence and Social Orders, 112.
[8] Frye, Property Rights and Property Wrongs, 137.
[9] Ryabov, “The Institution of Power&Ownership in the Former U.S.S.R.”