Overview

We talked about four questions surrounding Hobbes’s social contract.

1. What is it supposed to do? What problem is it supposed to solve?

2. How does it work? Taking Hobbes’s legalistic lingo at face value, what is supposed to be involved in the social contract?

3. Does Hobbes’s theory apply to democracies? Do democracies have a sovereign? If so, who is the sovereign in a democracy?

4. Why does Hobbes have two versions of the social contract? Why isn’t one enough?

What Problem is it Supposed to Solve?

The social contract is supposed to solve the problem of the state of nature. Without the state, competition, diffidence, and glory cause a war of every man against every man with the consequence that life is nasty, poor, brutish, and short (see ch. 13). So the state is supposed to stop the war.

To make the point, I illustrated diffidence in the state of nature with the prisoners dilemma. (Here the first number is the payoff for the row player, the second number is the payoff for the column player).

The idea is that each side has what is called a dominant strategy, namely, one that it is rational to pursue regardless of what the other side does. That strategy is anticipation or starting the conflict on your own terms.

The state is supposed to solve this by locking us into the southeast box. How? By threatening to punish anyone who starts a fight (17.1). The genius of this is that it reduces the defensive motivations for fighting. If I am not worried that Will will attack me, I face less pressure to attack him first. If he thinks that I am not worried about him, then he faces less pressure to attack me first. The same is true the other way around. That is how the state stops the cycle of insecurity that causes conflict through diffidence. In other words, in diffidence, Hobbes has identified a cause of conflict in the state of nature that the state seems to be eminently capable of solving. All it has to do is credibly threaten to punish anyone who starts a fight and its work is done.

What is weird about the social contract, though, is that it does not explain how the sovereign gets the literal power to punish. A social contract is just a bunch of promises. Those are as good as the wind they are spoken on without force to back them up. Hobbes knows this! He says that “covenants, without the sword, are but words, and of no strength to secure a man at all” (17.2). But Hobbes does not put much effort into explaining how we get from the words in the social contract to actual force on the ground. That is very strange.

For what it’s worth, I think the story could well be like the one about power in chapter 10 (“Of Power, Worth, Dignity, Honour, and Worthiness”). This only makes it stranger. Hobbes had the resources to close this gap. Why didn’t he do so explicitly? It’s a mystery.

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 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. We had a bit of a mixed verdict. The people in a democracy are unlimited in what they can do. In our system, they can amend the constitution in any way they want. (Well, they can’t do so directly. An amendment has to go through Congress and the states. But that shows we aren’t completely a democracy.) But the people don’t exercise control over the institutions of government that Hobbes lists as essential to sovereignty.

I’m not sure of what to make of that. I suppose it means you can have a government without a sovereign. I suspect Hobbes would have been willing to grant the point while insisting that our system of government is not stable. Among other things, we have dangerously divided powers of government between an executive and legislative branch while giving both the legitimacy that comes from being elected by a vote of the people. Hobbes would have seen this as a recipe for disaster. It has worked for us so far but I wouldn’t bet on it for the long run.

Authorization and Injustice

I said that Hobbes uses authorization to do a number of things. The main 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.

James asked why a subject would give the sovereign unlimited authorization like this; Alec made a similar point last time and I think Simon asked something similar about a related point later in this class. There is a reason this keeps coming up. It’s a good question! We will have Hobbes’s best answer when we discuss punishment next week.

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. Contracts made under duress in normal settings are invalid. (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. We have to think about how much that amounts to.)

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.

Main Ideas

These are the things you should know or have an opinion about after today’s class.

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.
4. Is there anything to be said for treating agreements made under duress as valid?