Alienation and authorization

If you look at the description of the social contract at the end of chapter 17, you will see that the future subjects are described as doing two things:

1. Alienation: they give up their right of governing themselves to the future sovereign.
2. Authorization: they authorize the future sovereign to act as their representative.

This [the social contract] is more than consent, or concord; it is a real unity of them all, in one and the same person, made by covenant of every man with every man, in such manner, as if every man should say to every man, I (2) authorise and (1) give up my right of governing myself, to this man, or to this assembly of men, on this condition, that thou (1) give up thy right to him, and (2) authorize all his actions in like manner. This done, the multitude so (2) united in one person, is called a commonwealth, in Latin civitas. (Leviathan, 17.13. Numbers added).

Those are two different things. Alienation involves giving up rights. In particular, the subjects give up the liberty to ignore what the sovereign tells them to do. After the sovereign has been instituted, his commands are obligatory. This is how the sovereign can make laws.

Authorization involves enabling the sovereign to act as the representative for the future subjects. One thing it does is create the corporate body of the commonwealth. Hobbes also thought it could be used to show that the sovereign cannot treat the subjects unjustly (see below). And, as I will show, it makes an appearance in the account of punishment as well. Authorization is a sneaky concept.¹

The scope of Hobbes’s theory of sovereignty

It is very easy to substitute “king” or “monarch” for “sovereign” when reading Hobbes. Hobbes himself did not see it that way. Hobbes’s sovereign can be a monarch, an aristocracy, or a democracy. The crucial thing for Hobbes is that the sovereign is made up of one or more natural people who have the authority to exercise the rights listed in chapter 18.

However, I think that our discussion showed that it is not easy for Hobbes to accommodate democracy. As Harry pointed out, democracies seem to lack one feature that Hobbes regarded as essential to sovereignty: the subjects are not forbidden from replacing the leaders or holding them accountable. On the contrary, they do so at regular intervals.

The natural thing for Hobbes to say in response is that the people in a democracy are sovereign. No one replaces the Roman people in the Roman Republic, for instance; they stay even as members of the Senate, counsels, praetors, and other officers come and go.

But it cannot be that easy for Hobbes because he does not think that it makes sense to describe “the people” as being capable of doing anything until they have a common representative (see 18.18, for instance). And that representative has to be the assembly whose membership does change.

If you read this passage carefully, you will see that he is saying that “the people of Rome” means the sovereign assembly and not the collection of individual Romans who are governed by that assembly.

when an assembly of men is made sovereign; then no man imagineth any such covenant to have passed in the institution; for no man is so dull as to say, for example, the people of Rome made a covenant with the Romans, to hold the sovereignty on such or such conditions; which not performed, the Romans might lawfully depose the Roman people. (18.4)

A natural next move would be to say that the assembly continues even as its membership changes. The Senate of Rome remained the same for hundreds of years even though it was obviously filled with different Senators during that time.

This would get us into the discussion that James and Kamyab were having about whether an abstract entity, like the Roman Senate or the institutions defined by the US Constitution, could be a sovereign for Hobbes. I find it difficult to express myself clearly on this question. I not only do not know what I think but I also have trouble articulating what the alternatives are.

I know that Hobbes is strongly inclined to say that sovereigns have to be natural people. I think that he should also acknowledge a distinction between the office of a sovereign and the natural person who occupies that office. In fact, I know he does draw a distinction like that at various points. But I also know that he frequently reverts back to describing the sovereign as a natural person. We will see one instance of this when we talk about punishment next week. I do not know if his tendency to revert to talking about natural persons is just that or if it is due to something deeper in his theory.

Anyway, it was a good discussion. Maybe it points to the sort of thing that has eluded me: a way of talking about Hobbes’s conception of sovereignty that is not trapped within his system. I resolve to work on this over the summer.

Why did Hobbes say that the sovereign cannot injure the subjects?

In short, it’s our good friend authorization. I pointed to this passage.

Fourthly, because every subject is by this institution author of all the actions, and judgments of the sovereign instituted; it follows, that whatsoever he doth, it can be no injury to any of his subjects; nor ought he to be by any of them accused of injustice. For he that doth any thing by authority from another, doth therein no injury to him by whose authority he acteth: but by this institution of a commonwealth, every particular man is author of all the sovereign doth; and consequently he that complaineth of injury from his sovereign, complaineth of that whereof he himself is author; and therefore ought not to accuse any man but himself; no nor himself of injury; because to do injury to one’s self, is impossible. It is true that they that have sovereign power, may commit iniquity; but not injustice, or injury in the proper signification. (18.6)

The first thing to say about this is that the term “injury” is a technical term. It means “injustice.” There is no doubt that the sovereign can harm or damage you. What Hobbes is saying is that he cannot do anything that would count as an injustice to you.

But that is still hard to understand. Why?

Hobbes is saying that the subjects “own” the sovereign’s actions because they authorized them. The argument he has in mind goes like this.

1. There is no such thing as an injustice against oneself.
2. The subjects own the sovereign’s actions by virtue of having authorized the sovereign.
3. Therefore the sovereign’s actions count as the subject’s own actions.
4. Therefore, if the subjects accused the sovereign of injustice, that would be tantamount to the subjects accusing themselves of injustice.
5. But that is impossible by the first premise.
6. Therefore, the sovereign cannot injure the subjects. (Where “injure” means “treat unjustly.”)

I said that Hobbes was very fond of this argument. You will see it popping up in lots of places. In particular, look for it in chapter 21, paragraph 7. It forms the basis of Hobbes’s claim that there is no injustice when a sovereign puts an innocent subject to death.

we are not to understand, that by such liberty [permitted under the law -mjg], the sovereign power of life and death, is either abolished, or limited. For it has been already shown, that nothing the sovereign representative can do to a subject, on what pretence soever, can properly be called injustice, or injury; because every subject is author of every act the sovereign doth; so that he never wanteth right to any thing, otherwise, than as he himself is the subject of God, and bound thereby to observe the laws of nature. And therefore it may, and doth often happen in commonwealths, that a subject may be put to death, by the command of the sovereign power; and yet neither do the other wrong: as when Jephtha caused his daughter to be sacrificed: in which, and the like cases, he that so dieth, had liberty to do the action, for which he is nevertheless, without injury put to death. And the same holdeth also in a sovereign prince, that putteth to death an innocent subject. For though the action be against the law of nature, as being contrary to equity, (as was the killing of Uriah, by David;) yet it was not an injury to Uriah; but to God. Not to Uriah, because the right to do what he pleased, was given him by Uriah himself: and yet to God, because David was God’s subject; and prohibited all iniquity by the law of nature. Which distinction, David himself, when he repented the fact, evidently confirmed, saying, To thee only have I sinned. (Leviathan, 21.7)

(Hobbes is referring to stories in the Old Testament. I included the relevant passages on Jephtha and David below.)

This is going to occupy our attention both because it is a shocking thing to say and also because he is going to seem to take it back in chapter 28, where punishment of the innocent will be described as both logically impossible and morally impermissible.

The separation of powers

I said that Hobbes had a better point about the disadvantages of dividing power between different political bodies than he is given credit for. Americans, at least, like to talk about the virtues of their system of checks and balances, in which the legislative, executive, and judicial branches can all frustrate one another.

Hobbes thought that a system like this was a recipe for civil war. I said that if you look beyond the American experience, there is evidence to support his point of view.

I was referring to research done by Juan Linz, a political scientist at Yale University. You can find accessible summaries of Linz’s ideas by Matthew Yglesias and Yoni Appelbaum. Here is a brief recap of Linz’s argument by Yglesias.

In a 1990 essay, the late Yale political scientist Juan Linz observed that “aside from the United States, only Chile has managed a century and a half of relatively undisturbed constitutional continuity under presidential government — but Chilean democracy broke down in the 1970s.” …

The exact reasons for why are disputed among scholars … Still, Linz offered several reasons why presidential systems are so prone to crisis. One particularly important one is the nature of the checks and balances system. Since both the president and the Congress are directly elected by the people, they can both claim to speak for the people. When they have a serious disagreement, according to Linz, “there is no democratic principle on the basis of which it can be resolved.” The constitution offers no help in these cases, he wrote: “the mechanisms the constitution might provide are likely to prove too complicated and aridly legalistic to be of much force in the eyes of the electorate.”

Hobbes was not writing about the particular problems of democracy. But the basic idea is the same: if you have multiple bodies that all claim to represent the people, you run the risk that they will come into conflict with one another.

Differences between the social contracts

There are two different social contracts. The social contract in what Hobbes called the commonwealth by institution (ch. 18) is horizontal: it is a covenant among the subjects and does not include the sovereign. The social contract in what Hobbes called the commonwealth by acquisition (ch. 20) is vertical: it is a covenant between the subjects and the sovereign.

This trips up even the pros because Hobbes suggests that it is very important that the sovereign is not part of the social contract in chapter 18.

because the right of bearing the person of them all, is given to him they make sovereign, by covenant only of one to another, and not of him to any of them; there can happen no breach of covenant on the part of the sovereign. (18.4)

But that is misleading. The sovereign is part of the social contract in the commonwealth by acquisition. So this cannot be an essential point for Hobbes.

This is not really a rank contradiction. The sovereign in the commonwealth by acquisition does make a covenant with the subjects, but it is one that the sovereign cannot breach. The would-be sovereign promises not to kill the would-be subjects right now (“to avoid the present stroke of death” 20.10) in exchange for their agreeing to make him or her the sovereign. Once that moment has passed, the sovereign’s part of the deal will be done and so there will be no possibility of breach of contract. The important point for Hobbes is that the sovereign does not hold power conditionally.

Anyway, the thing to remember is that the two contracts are different along this dimension: one is among the subjects without the sovereign and the other includes the sovereign.

Why two social contracts?

We have two social contracts: the social contract in the commonwealth by institution (ch. 18) is nice and peaceful while the social contract in the commonwealth by acquiistion (ch. 20) is nasty and violent. Why the redundancy?

Hobbes’s strategy was to argue that the nice and peaceful social contract was equivalent to the nasty and violent one. To be more specific:

1. Both are equally valid. Fear is the motive in both cases, so fear cannot render the social contract that establishes the commonwealth by acquisition invalid.
2. They have the same content. The subjects would give the sovereign absolute powers in the commonwealth by institution. So the state’s having power like that cannot be blamed on the coercion and violence that characterizes the social contract in the commonwealth by acquisition.

The idea, as I understand it, is that the commonwealth by acquisition is the realistic account of how actual states are formed. The commonwealth by institution story, by contrast, is an idealized version that will never actually happen. Here is some textual evidence.

In Chapter 29, I have set down for one of the causes of the dissolutions of commonwealths, their imperfect generation, consisting in the want of an absolute and arbitrary legislative power; for want whereof, the civil sovereign is fain to handle the sword of justice unconstantly, and as if it were too hot for him to hold. One reason whereof (which I have not there mentioned) is this, that they will all of them justify the war, by which their power was at first gotten, and whereon (as they think) their right dependeth, and not on the possession. As if, for example, the right of the kings of England did depend on the goodness of the cause of William the Conqueror, and upon their lineal, and directest descent from him; by which means, there would perhaps be no tie of the subjects' obedience to their sovereign at this day in all the world: wherein whilst they needlessly think to justify themselves, they justify all the successful rebellions that ambition shall at any time raise against them, and their successors. Therefore I put down for one of the most effectual seeds of the death of any state, that the conquerors require not only a submission of men’s actions to them for the future, but also an approbation of all their actions past; when there is scarce a commonwealth in the world, whose beginnings can in conscience be justified. (Leviathan, “A Review and Conclusion,” ¶8)

So what is the point of the idealistic version? The idea is that the sovereign’s absolute power is not simply a result of the violent, your-money-or-your-life, origins of the state. People would have given the state absolute power even in the peaceful, ideal version of the social contract.

I think that is a disputable point. But it is the point that Hobbes was trying to make.

How could a contract made under duress be valid?

One of the most extraordinary claims that Hobbes makes is that the covenant in the commonwealth by acquisition would be just as valid as the covenant made in the commonwealth by institution. That is hard to swallow because the covenant in the commonwealth by acquisition is made “when the vanquished, to avoid the present stroke of death, covenanteth … that so long as his life, and the liberty of his body is allowed him, the victor shall have the use thereof, at his pleasure” (20.10). Really?

There are two things to be said to explain Hobbes’s thinking (see Deigh 2002).

First, he is not saying that this is the way the law works in a settled society. (That said, his explanation of how the law works is weird. See 20.2.)

Second, the proposition that agreements made under duress are valid is one that most people accept in at least some cases. In particular, this is how surrender in war works. When one side is losing and wants to concede, it promises to lay down its arms so long as the other side promises not to continue its attack. Under almost anyone’s moral standards, an army that asks to surrender and then uses the opportunity to catch its enemy off guard would do something wrong. And the convention of offering and accepting terms of surrender has obvious utility. It gives an army an alternative to suicidally fighting to the death.

Hobbes, of course, was talking about how people could end the war of the state of nature. His proposition is that they could do so by making a covenant which is essentially the same thing as surrendering.

I think Hobbes treats duress too casually. But, at the same time, I think there is a good idea behind it and so I am reluctant to dismiss the commonwealth by acquisition on the grounds that it is the product of coercion.

Key concepts

1. The components of the social contract: alienation and authorization.
2. The scope of Hobbes’s theory: aristocracy, democracy, and monarchy.
3. Hobbes’s argument that the sovereign cannot injure the subjects.
4. Why there are two versions of the social contract.

Bible stories

In 21.7, Hobbes refers to two stories from the Bible: one about Jephtha and his daughter, the other about David and Uriah. In both cases, a sovereign (Jephtha or David) kills an innocent subject (Jephtha’s daughter or Uriah).