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. Hobbes uses authorization to perform a lot of tasks. One thing authorization 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. And, as I will show, it makes an appearance in the account of punishment as well. That’s a lot!¹

Do all societies have sovereigns?

Natasha did not think that all societies have sovereigns. We talked a bit about this after class and what she had in mind are societies that do not have states or political authority. We talked about them on the first day. She’s right, of course. There were human societies without states, and hence without sovereigns, for thousands of years. Some continue to exist today in places like Papua New Guinea and the Amazon. Hobbes did not necessarily disagree; he just thought that life in those societies was terrible. Anthropologists and archaeologists debate about whether he is right. I gave some references to those debates in the notes for our class on the state of nature. We will return to this when we talk about Hume on property: Hume thinks the state of nature was a lot nicer than Hobbes thought it was and he has a plausible explanation for how life worked.

In any event, Hobbes’s assertion is not that every society must have a sovereign. It is not even that every state must have a sovereign. It is that every stable state must have a sovereign. So the way to show he is wrong is to find examples of states that do a good job of keeping the peace and avoiding civil war without a sovereign, as he defines it.

Do democracies have sovereigns?

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. (He uses the word “assembly” to refer to democracies and aristocracies alike.) 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.

We talked about whether a democracy has a sovereign as Hobbes understands it. To compress our discussion considerably, here are a few of the major points.

Sabrina said that democracies do not have sovereigns. A sovereign, according to Hobbes, is unlimited by the law and unaccountable. But democracies are not like that: they have constitutions that limit the power of the government.

Kenny said what I think Hobbes would have said in response. Sure, democracies give themselves laws. But they also have procedures for amending or repealing those laws. The only thing that cannot change is that the democratic body is the one that decides what the ultimate law will be. So, for instance, in the US, there is nothing preventing amendments to the Constitution that permit slavery, repeal the direct election of Senators, end female suffrage, or prohibit the sale of alcohol. (The Constitution has had all that stuff in the past; there is no reason why it could not go back.) In other words, there is a body with absolute power under the US Constitution: the people who have the ultimate say on what will be included in the Constitution.

Sabrina might be right and Hobbes might be wrong. She is certainly right to say that most democracies think of themselves as not having a sovereign. Hobbes thinks they do not understand their own form of government. On the face of it, he has a reasonable point.

One interesting question posed by Ella is whether you could have Constitution with a kind of self-destruct clause. I mean something like “any amendment reinstating slavery would render the rest of the Constitution null and void, returning everyone to the state of nature.” On the one hand, I would think that would be possible. On the other hand, I would think that a majority determined to, say, reinstate slavery, could repeal the self-destruct clause first and then go on with what they wanted to do about slavery. Her question makes me wonder how many constitutions make provisions for the dissolution of the state. I know the US Constitution does not: that was settled by the American civil war.

But who is the sovereign in a democracy? I think Taylor said what most people in democracies believe: it’s the people. Hobbes disagrees. He doesn’t think there is such a thing as “the people” without a sovereign as their representative.

For example, if you read this passage very slowly 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. (Leviathan, 18.4)

Why does he think that? His argument is in chapter 16 (Leviathan, 16.13-14). It is that a group of people make a single corporate person only if each of them has authorized the same representative. Once they have all done that, the representative can speak and act for all of them. Since a person, according to Hobbes, must be capable of speech and action, having a representative is a necessary and sufficient condition of a group being one corporate person. That means that “the people” in any kind of state exist as a single person only by virtue of being represented by a sovereign. So the people cannot themselves be sovereign.

Clever!

So Hobbes has a theory of democratic government. It is that democracies must be representative democracies rather than direct democracies. The sovereign in a democracy, according to Hobbes, is the assembly that is elected to represent the subjects. In Hobbes’s model, there is no such thing as self-government. There is always a sovereign that makes laws and the subjects who obey them. That is no different in a democracy than it is in any other kind of government.

Will pointed out the flaw in Hobbes’s argument. A multitude of people can act without a representative. They can all take a vote, for instance. In fact, that is how Hobbes describes the social contract in the commonwealth by institution as working (see Leviathan 18.1). This is a case where Hobbes strikes me as having exaggerated his point. I think he is right to say that the “multitude” in a large society is incapable of acting without a representative. But I also think that Will is right to say that this is not a logical necessity, as he claims it is. We could take a national vote in the US on every major question; it’s not logically impossible. Of course, it is completely impractical and would fail rather spectacularly. So I think he is right in the end.

Authorization and injustice

I said that Hobbes uses authorization to do a number of things. In the previous section of these notes, I explained how he uses it to argue against popular sovereignty. The other thing he used it for was to show that the sovereign cannot treat the subjects unjustly. We will discuss this kind of argument more when we talk about the liberty of subjects next time. This is how it goes. Consider this paragraph.

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.”)

Hobbes is 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. 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. This does not happen in a parliamentary system, where the leader of the majority in the legislative body is the one that occupies the executive office.

Why two social contracts?

We have two social contracts. The commonwealth by institution is made by people who calmly meet and take a vote (see 18.1) while the commonwealth by acquisition is made when people who have been defeated in a war agree to make the conqueror sovereign in order to avoid “the present stroke of death” (see 20.10). 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 (18.2).

2. They have the same content. The subjects would give the sovereign absolute powers in the commonwealth by institution (18.3).

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 from the very end of the book (it is not included in our readings).

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 under the most ideal circumstances. I think that is a debatable point, to say the least. But it is the point that Hobbes was trying to make.

Horizontal vs. vertical

The social contract in 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 is in interesting because in chapter 18, he insisted that it was very important that the sovereign does not participate in the social contract.

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)

I will leave it to you to think about whether this difference poses a problem for the commonwealth by acquisition or not.

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). Hobbes thinks the two contracts are essentially the same.

Really?

There are two things to be said to explain Hobbes’s thinking.

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 in Leviathan 20.2 is weird.)

Second, the proposition that agreements made under duress are valid is one that most people accept in at least some cases.

Really? Really!

Think about surrender in war. 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 attacking it. 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. But that just is a promise made under the threat of death: the army only surrenders because it will get wiped out if the fighting continues.

Hobbes was thinking about how people could end the war of the state of nature. His proposition is that they could do so by making a covenant to obey the victor. That is very close to an army surrendering. (There are differences: the army typically gets to go home to its own country while the subjects in the commonwealth by acquisition are stuck with the conqueror as their sovereign.)

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. Do democracies have sovereigns?
3. The differences between the two versions of the social contract.