Ai Weiwei and his legal team have, since 2011, fought allegations, arrests and fines for tax evasion case widely regarded as "political retaliation" by the Chinese goverment.
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The Ai Weiwei papers

On 27 September, the Chinese courts rejected Ai’s second appeal against a £1.5m fine for tax evasion. Here, his legal team sets out the facts of a case riddled with corruption and secrecy.

An Introduction
Jerome A Cohen

The New Statesman is rendering a great public service in making available an English-language account of the Chinese government’s use of its tax laws to persecute the innovative and courageous Chinese artist and activist Ai Weiwei. Having been pressured by world opinion to release Ai from the harsh and blatantly illegal confinement to which its police had subjected him for almost three months, the Chinese government decided to crush him by resorting to economic measures whose illegality would presumably be less apparent both to its own citizens and to the outside world.

Fortunately, thanks to the presentation that follows this introduction, the unfairness and abuses that have marked this tax case have been unmasked. As Ai’s lawyers make clear, at both the administrative and the judicial levels the proceedings against him have been a farce. Much of the evidence apparently used against Ai was unlawfully collected and retained by the police and the tax authorities. Administrative hearings that purported to determine his alleged tax liability were truncated and plainly in violation of international standards of due process of law, and the subsequent judicial reviews were no better.

I personally am saddened at this spectacle for reasons that transcend our friendship and my admiration for Ai. It is nauseating to witness the damage that the Chinese government has chosen to inflict on its reputation through the misuse of its criminal justice and tax systems. As an international lawyer and a law professor seeking to assist in China’s economic development, I spent over 20 years co-operating with Chinese officials who were seeking to develop a legal  system that would earn the confidence of its own people and of the foreign business community. Beginning in 1979, for several years I enjoyed especially close relations with the National Taxation Bureau, which, during the early period of the Deng Xiaoping reform era, led the way for other government agencies in establishing impressive regulations and procedures for carrying out its responsibilities and for developing a legal process worthy of respect.

The handling of the Ai Weiwei case has been totally inconsistent with that earlier accomplishment. Neither the Chinese nor the foreign communities can afford to ignore the scandalous mistreatment of Ai. If he can become the victim of criminal and commercial injustice, no one in China or who deals with China can feel safe.

Jerome Cohen is a professor of law at New York University and an expert in Chinese law

The Fake Cultural Development Ltd tax case

1. Process summary

On 3 April 2011 in the morning, Ai Weiwei was taken away by police at passport control at Beijing Capital International Airport.

On 3 April 2011 at midday, Beijing Public Security searched Ai Weiwei’s residence for almost 12 hours. They confiscated 127 items, including computers and CDs. Ten people were taken to the police station for questioning until the early morning.

On 3 April 2011 at midday, Ai Weiwei’s assistant Wen Tao was kidnapped by four plainclothes police officers and went missing. He was illegally detained at a secret location and not released by public security until 24 June. Before this, his family was unaware of his location and received no official notification.

On 6 April 2011 in the evening, Beijing Municipal Public Security went to Beijing Huxin Ltd, the bookkeepers of Fake Ltd. They searched company information, including bookkeeping records and financial statements, dating from its establishment. Xinhua News Agency then published an English bulletin: “Ai Weiwei is suspected of economic crimes and is now being investigated according to the law.”

On 7 April 2011, Beijing Public Security brought the company accountant, Hu Mingfen, who was visiting family in Lanzhou, back to Beijing. After being put in a detention centre for one month, she was transferred to a secret location and detained illegally until she was “granted bail” on 13 June. Her family received no official notification.

On 8 April 2011, the Second Tax Inspection Bureau and Beijing Public Security searched and confiscated all of Fake’s financial and accounting information, contracts and seals from 2005 to 2010.

On 9 April 2011, the Fake shareholder and manager Liu Zhenggang was kidnapped by four men in plain clothes. After being put in a detention centre for one month, he was transferred to a secret location and detained illegally until he was “granted bail” on 11 June. His family was unaware of his location and received no official notification.

On 10 April 2011, the driver Zhang Jinsong was taken away. After being put in a detention centre for one month, he was transferred to a secret location and detained illegally until he was “granted bail” on 23 June. During this time, his family was unaware of his location and received no official notification.

On 12 April, Beijing Local Taxation Bureau Second Tax Inspection Bureau questioned Fake’s legal representative, Lu Qing, for the first time. On 20 May 2011, Xinhua News Agency published a bulletin stating: “Public Security has investigated the alleged Ai Weiwei economic crimes case. The preliminary finding is that Beijing Fake Cultural Development Ltd, under the actual control of Ai Weiwei, has committed offences including evading a large tax payment and deliberately destroying accounting records.”

On 22 June 2011, after 81 days in detention, Ai Weiwei was released “on bail” and returned home. His family members received no official notification. They could not get information about his suspected crime, what forceful measures were used and where he had been detained.

On 14 July 2011, the Bejing Local Taxation Bureau Second Tax Inspection Bureau held a closed hearing.

On 1 November 2011, the Beijing Local Taxation Bureau Second Tax Inspection Bureau decided that Fake had committed tax evasion and was required to pay 5,263,756.61 yuan in back taxes, a 3,190,331.52 yuan late-payment penalty and a 6,766,822.37 yuan fine. The three payments totalled 15,220,910.50 yuan (£1.5m).  n 29 December 2011, Fake asked for an administrative review at the Beijing Local Taxation Bureau. On 29 March 2012, the Beijing Local Taxation Bureau turned down the request for a review.

On 13 April 2012, Fake sued the Beijing Local Taxation Bureau Second Tax Inspection Bureau at Beijing Chaoyang District People’s Court. The trial opened on 20 June 2012. On 20 July, the court rejected the entire Fake case.

On 3 August 2012, Fake lodged an appeal at Beijing Second Intermediate People’s Court. On 27 September 2012, in the company’s second and final appeal, the intermediate court upheld the original decision.

2. Points of controversy in the tax case

The Fake tax case contains grave problems and controversy in terms of both procedure and facts.

1. Points of controversy in the procedure

Procedure is essential in implementing justice.

Although Fake repeatedly raised serious procedural issues, the tax authorities and courts gave
no response. The main problems at each stage of the procedure are as follows:

1.1. Beijing Municipal Public Security Bureau
1.1.1. Public security exceeded its authority in the Fake tax case.

According to the Criminal Law Amendment (7) and the regulations on the administrative pre-procedure related to “Provisions (II) of the Supreme People’s Procuratorate and the Ministry of Public Security on the Standards for Establishing Criminal Cases under the Juris - diction of the Public Security Organs for In - vestigation and Prosecution”, only after the offending party has declined to implement tax administration penalties and after the tax organs have transferred the case to public security organs can public security organs establish a criminal case against the responsible parties. The Second Tax Inspection Bureau made its decision against Fake only on 1 November 2011. It is clear that in April 2011 public security detained five people in secret, including Ai Weiwei, on the grounds of “tax evasion”. They searched and confiscated Fake financial information, which was exceeding their authority and handling the case illegally.

In the Fake tax case, the tax organs were completely reliant on the Public Security Bureau for their evidence, and the police were pushed to the legislative foreground, which strengthened the contradiction and artificially produced   case of “major impact”. The police administration was brought into the government administration mechanism, which in essence weakened the function of legal and responsible adminstration.

1.1.2. “Arrest before investigation” is a violation of the law. On 3 April 2011, public security took Ai Weiwei away. They then detained four people, including a Fake shareholder and the company accountant. However, of the evidence  in the file put together by public security, none was collected before 3 April 2011. The essence of “an arrest before investigation” is assuming that a suspect is guilty.

1.1.3. The authorities confiscated all the company’s account books and refused to give them back. During the Fake case review, first hearing and final hearing, the company’s account books were confiscated by Beijing Municipal Public Security and not given back.

1.2. Beijing Local Taxation Bureau Second Tax Inspection Bureau

The Bureau was responsible for the adminis - trative handling of the case. The following problems existed in its administration and law enforcement:

1.2.1. More than 95 per cent of the evidence came from public security and was obtained illegally. The Second Tax Inspection Bureau issued the following statement on the composition and source of the “evidence list”:

“1. Account books, certificates and related tax documents were provided to the defendant after they were obtained by public security  organs from the plaintiff’s bookkeeping company;

2. Third-party account books, certificates, instructions and other materials were provided to the defendant after public security organs obtained them;  

3. Notes from public security questioning were taken by public security and then provided to the defendant;

4. Bank statements etc were provided to the defendant after they were obtained from the bank by public security;

5. Inspection process documents and notes were produced by the defendant; 6. Tax records, inspection materials and certificates from tax organs were obtained by the defendant.”

This indicates that most of the evidence that the defendant cited in the Fake tax case and for making a decision came from the Public Security Bureau.

Fake believed that: first, the evidence “transferred” from public security organs was obtained while violating legal procedures. It therefore constituted illegal evidence and should be discounted. Second, the Law on the Administration of the Levy and Collection of Taxes has given tax organs tax inspection rights through legal means. This is the responsibility of the tax organs, and the public security organs should not be investigating on their behalf.

The Second Tax Inspection Bureau argued that the public security organisations exercise judicial authority. According to the 57th and 58th clauses of the Law on the Administration of the Levy and Collection of Taxes, tax organs have the right to obtain relevant documents from organisations including public security organs. Based on this, obtaining evidence from public security organs is legal.

Fake believed that the 57th and 58th clauses of the Law on the Administration of the Levy and Collection of Taxes gave tax organs the right to investigate “relevant organizations and individuals, regarding taxpayers, withholding agents and other parties and their situation regarding tax payments or tax withheld and remitted or collected and remitted”. This is completely different from public security investigating taxpayers and transferring evidence, so the defendant’s response was irrelevant.

1.2.2. None of the evidence had been crossexamined. This should be regarded as a lack of factual basis. During the hearing procedure, the bureau presented only part of the review document. It had not been checked. During the trial, the plaintiff’s right to cross-examine was also removed by the court.

1.2.3. In order to comply with public security, coercive methods were used to obtain evidence. The Second Tax Inspection Bureau and public security, on condition of “bail”, coerced Ai Weiwei, who was in prison, to sign a “recognition of alleged tax violations” on 22 June 2011.
This was self-incrimination, and was used as forceful evidence that Fake had evaded taxes. It would be hard to imagine that the “recognition of alleged tax violations” could be a legal document at the tax inspection trial stage. However, it appeared at the previous tax inspection stage, as if a man-made satellite had appeared in the Qin or Han Dynasty.

1.2.4. The tax inspection work had no statutory elements or contents.

The Second Tax Inspection Bureau did not have documents such as the “tax inspection working paper”, “tax inspection report” and “tax inspection trial report”. The contents of the “decision declaration” were incomplete. It did not mention how the “tax evasion” amount or the late-payment penalty amount were calculated.

1.2.5. The hearing process violated the law. The Second Tax Inspection Bureau did not conduct an open hearing on the basis that the case involved commercial secrets. This reason is not valid, and the facts later confirmed that the socalled commercial secrets did not exist.

1.3. Beijing Local Taxation Bureau

The bureau carried out the review. On 2 February 2012, Fake applied to the bureau for a review of the documents and hearing attendance. On 27 and 28 March the document inspection started. On 29 March, the bureau made a decision about the review. Not only did it refuse to conduct a hearing, it made a decision about the review in less than 12 hours after the lawyers finished inspecting the document. They deprived the attorney of his right to state his case and the right to defence.

1.4. Beijing Chaoyang District People’s Court

Fake sued the Beijing Local Taxation Bureau Second Tax Inspection Bureau at Beijing Chao - yang District Court. The hearing was held on 20 June 2012.

1.4.1. It was called an open trial but in fact it was a secret trial. A trial as conspicuous as this was arranged in a small court, which could hold five spectators only. Five insiders were arranged to take up all the seats, and Fake was not allocated any spectator seats.

1.4.2. The court did not carry out its obligation in collecting evidence. Fake had previously requested the court to provide evidence of the plaintiff’s account books and certificates that were confiscated by public security, but the court had decided not to collect the evidence prior to the court session, nor had it sent a notification to the plaintiff saying that collecting this evidence was not allowed.

When Fake asked the court about this, the collegiate bench said, “We will answer this after the trial opens.”

1.4.3. The court did not carry out its obligationto call witnesses. Fake applied to summon Liu Zhenggang, Hu Mingfen and others as witnesses, but the court did not inform them. It claimed that the obligation to notify lay with the plaintiff. Fake asked for the defendant’s law- enforcement officials – ten people, including You Pengnan – to testify, but the court did not arrange for it.

On the contrary, however, after the court opened, You Pengnan appeared, representing the defendant. Fake raised an objection, but the collegiate bench replied that the company should raise it again after the trial.

1.4.4. The court removed the plaintiff’s right to present evidence. Fake requested evidence
from the collegiate bench prior to the opening of the court, but received no response. On 20
June in the morning, Fake went to the Three Shadows Cultural Exchange Centre and obtained evidence partly sufficient to overrule the decision. In the afternoon of 20 June, before the court opened and three times during the court session, the evidence was presented to the collegiate bench, but the court did not accept it, because it “overran the deadline for presenting evidence”.

1.4.5. The court refused to investigate the legitimacy of the sources of the evidence. According to law, the defendant can collect his own evidence, but it was all collected by public security authorities. More than 95 per cent of the evidence on administrative behaviour presented by the defendant was collected by public security organs.

Public security intervened in the tax case illegally, and the evidence was illegally obtained from detainees, which was not legitimate. Therefore, the plaintiff asked for the above evidence to be discounted. However, the court claimed that “the legitimacy of the public security investigations is not within the range of this court’s hearing”.

1.4.6. The court refused the plaintiff’s legitimate request to check the original evidence documents, and illegally removed the plaintiff’s right to cross-examination. During the session, the defendant failed to present any original documents for evidence. The presiding judge, Wu Nan, upon the request to see the documents, repeatedly struck his gavel and said, “As for the documents, the court has already made a decision; do not bring it up again!”

The court “summarised” when questioning the evidence and did not control the questioning time reasonably. Pieces of evidence numbering a thousand pages were given five minutes for questioning: on average, less than one second for every page of evidence. If the time exceeded five minutes, then the questioning would be regarded as abandoned.

1.4.7. The court removed the plaintiff’s right to debate. The plaintiff’s speech was repeatedly interrupted by the judges and was counted down. During the debate stage, three attorneys spoke for only ten minutes in total. The plaintiff could not fully express an opinion.

1.4.8. For these reasons, the plaintiff considered that the collegiate bench could not carry out this trial justly, and therefore requested the court to withdraw the case.

After the court was adjourned, the collegiate bench refused the request. The plaintiff appealed the decision, and the Chaoyang District Court refused orally, refusing to offer any written documentation.

1.4.9. The court refused to allow the litigants and the representatives to copy the court notes.
After the hearing, the court administrative divisional director promised the defendant that the following day at two o’clock in the afternoon they could come to the court to copy the notes, but the next day when they went to court, copying was no longer permitted, the court citing internal regulations.

1.4.10. The order of legal procedures was swapped when the court refused Fake’s request for evidence only after the trial. On 7 June 2012, Fake made its “application for collecting evidence” to the court.  The court did not respond. Yet after the court opened on 4 July, it decided not to allow any evidence to be collected. The reason given was that the defendant “did not meet the conditions for requesting evidence”. However, the decision did not contain a notification, required by law, to specify “which group and which piece of evidence violated which condition for evidence collection”.

2. Focus of controversy over the facts of the case 

Global Times, a subsidiary of the Chinese official newspaper the People’s Daily, published an editorial, entitled “The law will not bend for mavericks”, on the Ai Weiwei tax case, saying that certain western governments and “human rights organisations” had attacked China with strong commentary without understanding the true situation.

What is the truth behind the Ai tax case? Fake Ltd was established by the shareholders Lu Qing and Liu Zhenggang. Lu Qing was the legal representative and the wife of Ai Weiwei. Liu Zhenggang was business manager, responsible for company operations. The company’s income came mainly from design services. Ai Weiwei was not a staff member of Fake, but provided guidance and advice to the design services of Fake as an independent artist.

Fake went into operation in 2001. The tax organs believed that, over ten years of operation (until 2010), Fake concealed three counts of income, totalling 15,823,724.36 yuan. They pursued unpaid taxes of 5,263,756.61 yuan, a fine for overdue payment of 3,190,331.52 yuan and a penalty of 6,766,822.37 yuan, totaling 15,220,910.50 yuan.

Regarding the facts, the parties were in controversy over the following:

2.1. Who was the tax-paying entity for these three projects with alleged tax issues?

The standard for determining the tax-paying entity depends not on form, but on substance. This is the so-called principle of substance over formality in tax law. The heart of the problem is, who was the true controller of these three projects? Usually the actual controller is determined by who has the right to dispose of and the right to benefit from income. In tax law, the object of the test to determine the right to dispose of and the right to benefit from income is the sum of income. The public security organ, tax organ and the lawyers of Fake all acknowledged that Liu Zhenggang disposed of and controlled the project funding in the case. It is a shame that the conclusion drawn by each party was very different.

2.2. Was it tax evasion?

Regardless of whether the tax-paying entity was Ai Weiwei, Fake Ltd or Liu Zhenggang, the fact that tax duty had not been declared on the income for the three engineering projects is not in dispute. The key to the problem is, does the failure to declare taxable income constitute tax evasion?

According to China’s Law on the Administration of the Levy and Collection of Taxes, there are generally three types of failure to declare tax duty:

2.2.1. “Tax evasion”: falsely filing or deliberately failing to file taxes, causing an underpayment
of tax, following Term 63 of the Law on the Administration of the Levy and Collection of Taxes. This is breaking the law. If it reaches a certain ratio, it constitutes a crime.

According to Term 201 of the Criminal Law, it is the crime of evading payment of tax. The constituents must consist of the resulting elements, namely underpayment of tax and of a clear amount.

2.2.2. “Tax leakage”: not deception or concealment, but human error causing underpayment of tax, according to Term 64, Article 2 of the Law on the Administration of the Levy and Collection of Taxes. It counts as a normal administrative offence, not a criminal offence.

2.2.3. “Making up tax”: underpayment of tax caused by reasons not related to the actor (including incomplete factors in levying tax), as in Article 35 of the Law on the Administration of the Levy and Collection of Taxes. For example, where, although it is clearly income, the expenditure can’t be verified. The tax organ, by approving the profit rate, makes complete the factors in levying tax to realise the aim of levying tax. This type of underpayment of tax is the result of the expansion of administrative powers of the tax organs. It is not breaking the law, so the authorities cannot levy an overdue payment fine or penalty fine.

The contention of this case is focused on the dispute between “tax evasion” and “making up tax”. A simplified breakdown illustrates:

According to the law, when the cost is difficult to verify, an estimated tax should be levied. It should not be handled as a case of tax evasion. When the costs and expenses of a project cannot be checked, it cannot be asserted that the party has been evading tax.

2.3. The issue of verifying costs and expenditures for the three projects

The Second Tax Inspection Bureau said, “The defendant, upon confirming the total amount of taxes that the plaintiff should have paid, has also confirmed the costs related to the taxable income and subtracted it according to regulations.”

The plaintiff believed that the three projects that the tax bureau considered as evading taxes are defined by incomes that greatly mismatch with their costs. The Second Tax Inspection Bureau verified the income of the Boya Garden project as 1,107,716.00 yuan and its costs as nil. That goes against common sense. Income from the Three Shadows and Upper House projects was 14,716,008.36 yuan, the confirmed cost was nearly 1,047,349.39 yuan and the rate of profit was 92.88 per cent.

The costs were ridiculously low because the public security and tax organs jointly and deliberately concealed evidence of costs. For example, it has already been proved that Three Shadows, upon requests from the public security organ, presented it with receipts for expenditure of 3,738,551.06 yuan for materials used in the project. However, the total cost for all three projects that the tax organ received from the public security organ was only 1,047,349.39
yuan, less than a third of the cost for one project. Through this kind of deliberate selection of evidence, the profits of the projects were artificially enhanced to frame the company.

3. Conclusion

When one looks at the overall progress of the case, it is clearly an erroneous lawsuit. How could it have proceeded so smoothly? Because all the processes had already been arranged. The tax law-enforcement organ, the administrative review organ, the judicial court or representative lawyer were all following a set course. Administrative surveillance, independent trial and lawyer participation had no opportunity to exercise their rightful functions.

Tax cases such as that of Fake are ubiquitous in China. Unjust cases of sanctioning a party through tax means are also common. Most of the affected parties choose to remain silent in exchange for a reduction of the penalty by the tax organisation.

Fake used all means to fight its case, exposing illegality at each stage. This is unprecedented. The wish is that, through the heavy price paid by Fake, through the price for freedom paid by a person who doesn’t believe in following trends and who dares to speak the truth, we can make progress in China’s law enforcement.

The information used in this article was provided by Ai Weiwei’s lawyers

This article first appeared in the 22 October 2012 issue of the New Statesman, Ai Weiwei guest-edit

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Why the elites always rule

Since an Italian sociologist coined the word “elite” in 1902, it has become a term of abuse. But history is the story of one elite replacing another – as the votes for Trump and Brexit have shown.

Donald Trump’s successful presidential campaign was based on the rejection of the “establishment”. Theresa May condemned the rootless “international elites” in her leader’s speech at last October’s Conservative party conference. On the European continent, increasingly popular right-wing parties such as Marine Le Pen’s Front National and the German Alternative für Deutschland, as well as Poland’s ruling Law and Justice party, delight in denouncing the “Eurocratic” elites. But where does the term “elite” come from, and what does it mean?

It was Vilfredo Pareto who, in 1902, gave the term the meaning that it has today. We mostly think of Pareto as the economist who came up with ideas such as “Pareto efficiency” and the “Pareto principle”. The latter – sometimes known as the “power law”, or the “80/20 rule” – stipulates that 80 per cent of the land always ends up belonging to 20 per cent of the population. Pareto deduced this by studying land distribution in Italy at the turn of the 20th century. He also found that 20 per cent of the pea pods in his garden produced 80 per cent of the peas. Pareto, however, was not only an economist. In later life, he turned his hand to sociology, and it was in this field that he developed his theory of the “circulation of elites”.

The term élite, used in its current socio­logical sense, first appeared in his 1902 book Les systèmes socialistes (“socialist systems”). Its aim was to analyse Marxism as a new form of “secular” religion. And it was the French word élite that he used: naturally, one might say, for a book written in French. Pareto, who was bilingual, wrote in French and Italian. He was born in Paris in 1848 to a French mother and an Italian father; his father was a Genoese marquis who had accompanied the political activist Giuseppe Mazzini into exile. In honour of the revolution that was taking place in Germany at the time, Pareto was at first named Fritz Wilfried. This was latinised into Vilfredo Federico on the family’s return to Italy in 1858.

When Pareto wrote his masterpiece – the 3,000-page Trattato di sociologia ­generale (“treatise on general sociology”) – in 1916, he retained the French word élite even though the work was in Italian. Previously, he had used “aristocracy”, but that didn’t seem to fit the democratic regime that had come into existence after Italian unification. Nor did he want to use his rival Gaetano Mosca’s term “ruling class”; the two had bitter arguments about who first came up with the idea of a ruling minority.

Pareto wanted to capture the idea that a minority will always rule without recourse to outdated notions of heredity or Marxist concepts of class. So he settled on élite, an old French word that has its origins in the Latin eligere, meaning “to select” (the best).

In the Trattato, he offered his definition of an elite. His idea was to rank everyone on a scale of one to ten and that those with the highest marks in their field would be considered the elite. Pareto was willing to judge lawyers, politicians, swindlers, courtesans or chess players. This ranking was to be morally neutral: beyond “good and evil”, to use the language of the time. So one could identify the best thief, whether that was considered a worthy profession or not.

Napoleon was his prime example: whether he was a good or a bad man was irrelevant, as were the policies he might have pursued. Napoleon had undeniable political qualities that, according to Pareto, marked him out as one of the elite. Napoleon is important
because Pareto made a distinction within the elite – everyone with the highest indices within their branch of activity was a member of an elite – separating out the governing from the non-governing elite. The former was what interested him most.

This is not to suggest that the non-governing elite and the non-elite were of no interest to him, but they had a specific and limited role to play, which was the replenishment of the governing elite. For Pareto, this group was the key to understanding society as a whole – for whatever values this elite incarnated would be reflected in society. But he believed that there was an inevitable “physiological” law that stipulated the continuous decline of the elite, thereby making way for a new elite. As he put it in one of his most memorable phrases, “History is the graveyard of elites.”

***

Pareto’s thesis was that elites always rule. There is always the domination of the minority over the majority. And history is just the story of one elite replacing another. This is what he called the “circulation of elites”. When the current elite starts to decline, it is challenged and makes way for another. Pareto thought that this came about in two ways: either through assimilation, the new elite merging with elements of the old, or through revolution, the new elite wiping out the old. He used the metaphor of a river to make his point. Most of the time, the river flows continuously, smoothly incorporating its tributaries, but sometimes, after a storm, it floods and breaks its banks.

Drawing on his Italian predecessor Machiavelli, Pareto identified two types of elite rulers. The first, whom he called the “foxes”, are those who dominate mainly through combinazioni (“combination”): deceit, cunning, manipulation and co-optation. Their rule is characterised by decentralisation, plurality and scepticism, and they are uneasy with the use of force. “Lions”, on the other hand, are more conservative. They emphasise unity, homogeneity, established ways, the established faith, and rule through small, centralised and hierarchical bureaucracies, and they are far more at ease with the use of force than the devious foxes. History is the slow swing of the pendulum from one type of elite to the other, from foxes to lions and back again.

The relevance of Pareto’s theories to the world today is clear. After a period of foxes in power, the lions are back with renewed vigour. Donald Trump, as his behaviour during the US presidential campaign confirmed, is perfectly at ease with the use of intimidation and violence. He claimed that he wants to have a wall built between the United States and Mexico. His mooted economic policies are largely based on protectionism and tariffs. Regardless of his dubious personal ethics – a classic separation between the elite and the people – he stands for the traditional (white) American way of life and religion.

This is in stark contrast to the Obama administration and the Cameron government, both of which, compared to what has come since the votes for Trump and Brexit, were relatively open and liberal. Pareto’s schema goes beyond the left/right divide; the whole point of his Systèmes socialistes was to demonstrate that Marxism, as a secular religion, signalled a return to faith, and thus the return of the lions in politics.

In today’s context, the foxes are the forces of globalisation and liberalism – in the positive sense of developing an open, inter­connected and tolerant world; and in the negative sense of neoliberalism and the dehumanising extension of an economic calculus to all aspects of human life. The lions represent the reaction, centring themselves in the community, to which they may be more attentive, but bringing increased xenophobia, intolerance and conservatism. For Pareto, the lions and foxes are two different types of rule, both with strengths and weaknesses. Yet the elite is always composed of the two elements. The question is: which one dominates at any given time?

What we know of Theresa May’s government suggests that she runs a tight ship. She has a close – and closed – group of confidants, and she keeps a firm grip on the people under her. She is willing to dispense with parliament in her negotiation of Brexit, deeming it within the royal prerogative. Nobody yet knows her plan.

The European Union is a quintessentially foxlike project, based on negotiation, compromise and combination. Its rejection is a victory of the lions over the foxes. The lions are gaining prominence across the Western world, not just in Trumpland and Brexit Britain. Far-right movements have risen by rejecting the EU. It should come as no surprise that many of these movements (including Trump in the US) admire Vladimir Putin, at least for his strongman style.

Asia hasn’t been spared this movement, either. After years of tentative openness in China, at least with the economy, Xi Jinping has declared himself the “core” leader, in the mould of the previous strongmen Mao Zedong and Deng Xiaoping. Japan’s prime minister, Shinzo Abe, has also hardened his stance, and he was the first world leader to meet with President-Elect Donald Trump. Narendra Modi in India and Rodrigo Duterte in the Philippines are in the same mould, the latter coming to power on the back of promising to kill criminals and drug dealers. After the failed coup against him in July, Recep Tayyip Erdogan has also been cracking down on Turkey.

***


In Les systèmes socialistes, Pareto elaborated on how a new elite replaces the old. A, the old elite, would be challenged by B, the new, in alliance with C, the people. B would win the support of C by making promises that, once in power, it wouldn’t keep. If that sounds like the behaviour of most politicians, that is because it probably is. But what Pareto was pointing out was how, in its struggle for power, the new elite politicised groups that were not political before.

What we know of Trump supporters and Brexiteers is that many feel disenfranchised: the turnout in the EU referendum could not have been greater than in the 2015 general election otherwise, and significant numbers of those who voted for Trump had never voted before. There is no reason to think that they, too, won’t be betrayed by the new leaders they helped to bring to power.

In the last years of his life, Pareto offered a commentary on Italy in the 1920s. He denounced the state’s inability to enforce its decisions and the way that Italians spent their time flaunting their ability to break the law and get away with it. He coined the phrase “demagogic plutocracy” to characterise the period, in which the rich ruled behind a façade of democratic politics. He thought this particularly insidious for two reasons: those in power were more interested in siphoning off wealth for their personal ends than encouraging the production of new wealth, and consequently undermined national prosperity (remember Pareto’s training as an economist); and, as the demagogic elites govern through deceit and cunning, they are able to mask their rule for longer periods.

Much has been made of Trump’s “populism”, but the term “demagogic plutocrat” seems particularly apt for him, too: he is a wealthy man who will advance the interests of his small clique to the detriment of the well-being of the nation, all behind the smokescreen of democratic politics.

There are other ways in which Pareto can help us understand our predicament. After all, he coined the 80/20 rule, of which we hear an intensified echo in the idea of “the One Per Cent”. Trump is a fully paid-up member of the One Per Cent, a group that he claims to be defending the 99 Per Cent from (or, perhaps, he is an unpaid-up member, given that what unites the One Per Cent is its reluctance to pay taxes). When we perceive the natural inequality of the distribution of resources as expressed through Pareto’s “power law”, we are intellectually empowered to try to do something about it.

Those writings on 1920s Italy landed Pareto in trouble, as his theory of the circulation of elites predicted that a “demagogic plutocracy”, dominated by foxes, would necessarily make way for a “military plutocracy”, this time led by lions willing to restore the power of the state. In this, he was often considered a defender of Mussolini, and Il Duce certainly tried to make the best of that possibility by making Pareto a senator. Yet there is a difference between prediction and endorsement, and Pareto, who died in 1923, had already been living as a recluse in Céligny in Switzerland for some time – earning him the nickname “the hermit of Céligny” – with only his cats for company, far removed from day-to-day Italian politics. He remained a liberal to his death, content to stay above the fray.

Like all good liberals, Pareto admired Britain above all. As an economist, he had vehemently defended its system of free trade in the face of outraged opposition in Italy. He also advocated British pluralism and tolerance. Liberalism is important here: in proposing to set up new trade barriers and restrict freedom of movement, exacerbated by their more or less blatant xenophobia, Trump and Brexit challenge the values at the heart of the liberal world.

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What was crucial for Pareto was that new elites would rise and challenge the old. It was through the “circulation of elites” that history moved. Yet the fear today is that history has come to a standstill, that elites have ­become fossilised. Electors are fed up with choosing between the same old candidates, who seem to be proposing the same old thing. No wonder people are willing to try something new.

This fear of the immobility of elites has been expressed before. In 1956, the American sociologist C Wright Mills published The Power Elite. The book has not been out of print since. It is thanks to him that the term was anglicised and took on the pejorative sense it has today. For Mills, Cold War America had come to be dominated by a unified political, commercial and military elite. With the 20th century came the growth of nationwide US corporations, replacing the older, more self-sufficient farmers of the 19th century.

This made it increasingly difficult to ­distinguish between the interests of large US companies and those of the nation as a whole. “What’s good for General Motors,” as the phrase went, “is good for America.” As a result, political and commercial interests were becoming ever more intertwined. One had only to add the Cold War to the mix to see how the military would join such a nexus.

Mills theorised what President Dwight D Eisenhower denounced in his January 1961 farewell speech as the “military-industrial complex” (Eisenhower had wanted to add the word “congressional”, but that was thought to be too risky and was struck out of the speech). For Mills, the circulation of elites – a new elite rising to challenge the old – had come to an end. If there was any circulation at all, it was the ease with which this new power elite moved from one part of the elite to the other: the “revolving door”.

The Cold War is over but there is a similar sense of immobility at present concerning the political elite. Must one be the child or wife of a past US president to run for that office? After Hillary Clinton, will Chelsea run, too? Must one have gone to Eton, or at least Oxford or Cambridge, to reach the cabinet? In France is it Sciences Po and Éna?

The vote for Brexit, Trump and the rise of the far right are, beyond doubt, reactions to this sentiment. And they bear out Pareto’s theses: the new elites have aligned themselves with the people to challenge the old elites. The lions are challenging the foxes. Needless to say, the lions, too, are prototypically elites. Trump is a plutocrat. Boris Johnson, the co-leader of the Leave campaign, is as “establishment” as they come (he is an Old Etonian and an Oxford graduate). Nigel Farage is a public-school-educated, multimillionaire ex-stockbroker. Marine Le Pen is the daughter of Jean-Marie Le Pen. Putin is ex-KGB.

Pareto placed his hopes for the continuing circulation of elites in technological, economic and social developments. He believed that these transformations would give rise to new elites that would challenge the old political ruling class.

We are now living through one of the biggest ever technological revolutions, brought about by the internet. Some have argued that social media tipped the vote in favour of Brexit. Arron Banks’s Leave.EU website relentlessly targeted disgruntled blue-collar workers through social media, using simple, sometimes grotesque anti-immigration messages (as a recent profile of Banks in the New Statesman made clear) that mimicked the strategies of the US hard right.

Trump’s most vocal supporters include the conspiracy theorist Alex Jones, who has found the internet a valuable tool for propagating his ideas. In Poland, Jarosław Kaczynski, the leader of the Law and Justice party, claims that the Russian plane crash in 2010 that killed his twin brother (then the country’s president) was a political assassination, and has accused the Polish prime minister of the time, Donald Tusk, now the president of the European Council, of being “at least morally” responsible. (The official explanation is that the poorly trained pilots crashed the plane in heavy fog.)

It need not be like this. Silicon Valley is a world unto itself, but when some of its members – a new technological elite – start to play a more active role in politics, that might become a catalyst for change. In the UK, it has been the legal, financial and technological sectors that so far have led the pushback against a “hard” Brexit. And we should not forget how the social movements that grew out of Occupy have already been changing the nature of politics in many southern European countries.

The pendulum is swinging back to the lions. In some respects, this might be welcome, because globalisation has left too many behind and they need to be helped. However, Pareto’s lesson was one of moderation. Both lions and foxes have their strengths and weaknesses, and political elites are a combination of the two, with one element dominating temporarily. Pareto, as he did in Italy in the 1920s, would have predicted a return of the lions. But as a liberal, he would have cautioned against xenophobia, protectionism and violence.

If the lions can serve as correctives to the excesses of globalisation, their return is salutary. Yet the circulation of elites is a process more often of amalgamation than replacement. The challenge to liberal politics is to articulate a balance between the values of an open, welcoming society and of one that takes care of its most vulnerable members. Now, as ever, the task is to find the balance between the lions and the foxes. l

Hugo Drochon is the author of “Nietzsche’s Great Politics” (Princeton University Press)

This article first appeared in the 12 January 2017 issue of the New Statesman, Putin's revenge