New Chapter on Spinoza and Hobbes

LeBuffe, Michael (2021): Spinoza and Hobbes, in: Yitzhak Y. Melamed (Ed.): A Companion to Spinoza. Wiley Blackwell, https://doi.org/10.1002/9781119538349.ch8

Summary: The English philosopher Thomas Hobbes directly influenced and, possibly, was also influenced by Spinoza. Hobbes and Spinoza were both aware of the advanced science of mid‐seventeenth‐century Europe and of the uncomfortable fit of that science with traditional moral and religious doctrines. Spinoza defines ‘appetite’ in terms of striving and ‘desire,’ in turn, in terms of appetite. The basis for Spinoza’s theory of desire in an account of causation implies that the distinction between activity and passivity may be incremental. For both Hobbes and Spinoza, the emotions are basic enough to psychology that a theory of them amounts to a theory of human nature: it tells us what, in a very basic way, human beings are like. The chapter addresses the authors’ views on the question of whether and how human beings can change. It presents consequences of the philosophers’ accounts of human nature for their ethics and politics.


Online Colloquium (1): Introduction to Potentia

This online colloquium has been established to discuss Sandra Leonie Field’s recent book, Potentia: Hobbes and Spinoza on Power and Popular Politics. We begin with an introduction to the text by the author, which will be followed by weekly responses from Alissa MacMillan, Christopher Holman, Justin Steinberg, and finally a reply by Sandra Leonie Field. Many thanks to Oxford University Press for supporting this colloquium.

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We live in an age of growing dissatisfaction with the standard operations of representative democracy. The solution, according to a long radical democratic tradition, is the unmediated power of the people. Mass plebiscites and mass protest movements are celebrated as the quintessential expressions of popular power, and this power promises to transcend ordinary institutional politics. But the outcomes of mass political phenomena can be just as disappointing as the ordinary politics they sought to overcome, breeding skepticism about democratic politics in all its forms.

In my new book Potentia, I argue that the very meaning of popular power needs to be rethought.[1] The book offers a detailed study of the political philosophies of Thomas Hobbes and Benedict de Spinoza, focusing on their concept of power as potentia, concrete power, rather than power as potestas, authorized power. Specifically, the book’s argument turns on a new interpretation of Hobbesian/Spinozist collective potentia as a capacity that is dynamically constituted in a web of actual human relations. The measure of a collectivity’s potentia will be its actual characteristic effects and outcomes over time. But this means that far from popular power being the inherently egalitarian substrate of human collective existence, on this Hobbesian/Spinozist view popular power is a difficult achievement. Collective power is not necessarily popular, for there may be hostility or hierarchy in the relations between a group’s members. Nor is collective power necessarily particularly powerful, for collective action may only have wavering or evanescent effects. Thus I propose a revisionist characterization of popular power: a political phenomenon can to be said to express popular power when it is both popular (it eliminates oligarchy and encompasses the whole polity), and also powerful (it robustly determines political and social outcomes). Where radical democrats interpret Hobbes’s ‘sleeping sovereign’ or Spinoza’s ‘multitude’ as foundational instances of unmediated popular power, I argue that for both Hobbes and Spinoza, true popular power is achieved through the slow, meticulous work of organizational design and maintenance. Between Hobbes’s commitment to repressing private power and Spinoza’s exploration of civic strengthening, I draw on early modern understandings of popular power to provide a new lens for thinking about the risks and promise of democracy.

Let me say a little more about (i) the motivating problem of the book; (ii) its core textual and conceptual claims; and (iii) its upshot, for early modern political philosophy and for democratic theory.

(i) The motivating problem

I establish my new conception of popular power against the alternatives posed by two broad radical traditions that celebrate popular power: the American public law tradition, and the European post-Marxist tradition.

First, standing as a representative of the American public law tradition, Richard Tuck’s The Sleeping Sovereign revives Hobbesian absolute democracy as a model worthy of our attention in the present.[2] He grants that Hobbes may have disliked democratic government, but Tuck focuses instead on Hobbes’s notion of democracy as a form of absolute sovereignty, with the whole populace speaking its voice through pure non-deliberative plebiscitary voting. Parliaments and congresses can carry out quotidian governance, but from time to time the ‘sleeping sovereign’ should wake up and express the will of ‘we the people’.

Second, standing as a representative of the European post-Marxist tradition, Antonio Negri’s immensely influential EmpireMultitudeCommonwealth series (with Hardt) has popularized a conception of neo-Spinozist radical insurgent democracy.[3] Negri draws on Spinoza’s notion of the ‘multitude’, as the pre- or extra-institutional collective mass of society, as the source of all political power (the ‘potentia multitudinis’). When social movements or protest movements press claims, they actualize a form of democracy more authentic than any authorized representative or institution.

Taking plebiscites and social movements as canonical instances of popular power seems to me to raise many difficulties. I worry about their popularity. Schumpeter gives a sharp characterization of what is wrong, especially with plebiscites: he argues that the people’s will is the product rather than the driver of the political process (consider the famously emotive and misleading advertising in the leadup to the Brexit referendum).[4] Popular movements commonly compete amongst themselves in the public sphere: how can a single side really justify its claim to speak for the demos?

I also worry about the power of canonical instances of popular power. How much influence do plebiscites and social movements have on the day-to-day operation of governance? Furthermore, isn’t it paradoxical to count a polity which is basically oligarchic but occasionally convulsed by popular plebiscitary decision or by mass protest as better expressing the power of the people than a well-ordered polity where the common good is served in a more systematic if more boring way?

In public life, it is common to credit plebiscites and social movements as manifesting the power of the people. When these plebiscites and movements lead to unjust, irrational, or evanescent political outcomes, people may struggle to accommodate their intuitive normative commitments to democracy with the disappointing reality. In my book, I take Schumpeter’s worries seriously, but my response is fundamentally anti-Schumpeterian. Rather than abandoning the very idea of popular power, I put forward a new and better conception.

(ii) The core textual and conceptual claims

The book proceeds by way of a detailed study of the political philosophies of Thomas Hobbes and Benedict de Spinoza: in particular, their respective concepts of power potentia, concrete power, rather than power potestas, authorized power. I agree with radical democrats that these early modern thinkers are relevant for thinking about popular power: but in my argument, this is not because of their support for the radical view, but because of the resources they offer to critique it.

I start by contextualizing the concept of potentia within its overwhelmingly dominant frame of reference in the early modern period: scholasticism. On the scholastic view, a thing’s power identifies its own proper nature. At least in natural entities where free will does not intervene, this nature tends to be expressed for the most part. It offers an explanation of phenomena that is simultaneously descriptive and normative: the natural world is understood as a domain of proper entities endowed with natural and proper tendencies.

In the first half of the book, Chapters 2 through 5, I discuss Hobbes. I argue that Hobbes’s understanding of potentia undergoes a striking development between his early and late works, with significant ramifications for his science of politics. Undeniably, the tumultuous political events of the period during which he was writing would have provided external impetus for shifts in his political analysis; but this book’s contribution is to trace the conceptual transformations within which the shifting political analysis finds its voice. On the early scholastic-influenced view, individual human power potentia is understood as human faculties, which are more or less equal in all adults. Individual humans can properly combine their powers together only as a formal union, because any informal association lacks a unifying principle. This neatly meshes with Hobbes’s juridical theory of state authority potestas, which receives a potentia commensurate to its potestas in virtue of the covenantal combination of individual potentiae. But on the later view, reflecting the new mechanistic science that seeks to eliminate the explanatory appeal to inherent dispositional powers, individual human potentia is understood as whatever means a person may have to pursue their ends, including the assistance or deference of other people. As such, human potentia is relational and actual, and subject to great inequalities. Furthermore, individual human powers can accumulate into relatively stable informal allegiances and social groupings, endowed with their own power, even without any formal union. These private power blocs may sometimes be appealing, but more likely they will be oligarchic and objectionable. The new conception of potentia sits uncomfortably with the juridical theory of absolute state potestas, because in the face of competition from private informal powers in the political domain, the state may not have potentia commensurate to its potestas: call this mismatch ‘the political problem’. The political problem can be solved only by looking beneath the juridical order of potestas to consider the concrete determinants of a stable collective power potentia of the populace.

In the light of Hobbes’s changing understanding of potentia, it becomes easy to see why Tuck’s preferred plebiscitary model of sleeping sovereignty only features in Hobbes’s earlier text, De Cive, and is dropped in Leviathan. First, sovereignty separate from government is likely to have very little power potentia. The real seat of power potentia is the dense circuits of allegiance and deference that structure the quotidian functioning of the society. A sovereign standing separate from this structure but occasionally rising up to issue a ruling can make only a minor impact on the everyday production of effects in society, even if its ruling is respected; but even worse, such a sovereign gravely risks encountering the political problem, as it may find that much of the society has stronger allegiance to the government. Second, the claim of plebiscitary voting to give radical expression to the popular voice is weak: for without addressing the private powers in society, a vote tends to relay those unequal background conditions.

What might solve the political problem? I characterize Hobbes’s proposal as repressive egalitarianism: the common good is achieved by trying to improve the political and moral judgement of the sovereign, and at the same time protecting the sovereign from the distorting pressure of formal and informal power blocs within society. In the face of private power, the appropriate response is to crush it, to break collective formations within the populace in favour of a fragmented equality of all subjects. Hobbes argues that governance will better promote the common good when it takes a less participatory form; he worries that democracy may undermine the common good and lead to division. But if there must be popular political participation, if there must be a democratic assembly as sovereign, then it is especially important to repress informal powers that might seek to capture the democratic process. I characterize Hobbes’s democratic repressive egalitarianism as a certain minimal expression of popular power: it is a durable institutional form that strives to eliminate unequal influence.

In the second half of the book, Chapters 6 through 9, I turn to Spinoza. Spinoza’s concept of power potentia is central to his philosophical system, yet it remains elusive and difficult to characterize. In his magnum opus, the Ethics, the power potentia of any thing is linked to its essence and virtue; in particular, for humans, potentia is linked to ethics. At the same time, potentia appears to relate to a more ordinary meaning of power as efficacy or causality. This combination of normative and descriptive elements is apparently similar to that of scholastic natural science. But applied to human affairs, the combination yields implausible results. The power of the multitude is supposed both to tend towards virtue and also to be efficacious, but surely there are cases where efficacy does not align with virtue. What of the sorry history of human oppression and injustice? Interpreters—whether radical democrats, or equally the more mainstream interpreters whom I will label ‘constitutionalists’—tend to square this circle by echoing Seneca’s dictum that tyrants never last long. They presume that unappealing political regimes will be transient, and claim that democracy is the inner truth of every successful regime.

Rather than defending the alleged rapprochement of efficacy and ethics in Spinoza’s conception of power, to the contrary I explore their divergence. In the face of the democratic complacency of standard interpretations of Spinoza, I press Spinoza’s philosophy for a response to three Hobbesian worries: first, the problem of the multitude’s inner oligarchy; second, the problem of nonideal endurance; and third, the problem of democracy’s perverse effects. Determining Spinoza’s response demands a systematic reconstruction of his concept of power. In fact, I argue that Spinoza has two clearly distinct senses of potentia. On the one hand, there is the power to produce effects (potentia operandi); on the other hand there is the power of acting (potentia agendi): the difference is between an individual producing effects in general, versus an individual producing effects that can be understood through the individual’s own nature. Individuals can have a high degree of potentia operandi despite a low degree of potentia agendi: as, for example, a state under colonial rule, or an irascible individual whose partner calms the other’s outbursts.

Building on this distinction, I offer a systematic reconstruction of Spinoza’s politics that acknowledges its deep antinomianism. An individual’s right and a state’s right are coextensive with their potentia operandi, which is their power of producing effects of whatever sort, for better or for worse. Granted, only in those cases where they act from their own proper power (potentia agendi) alone are they in control of their own right (sui juris). This consideration of being sui juris (both the state itself being sui juris, and individuals within the state being sui juris) constitutes the ethical element of Spinoza’s political philosophy, and it is undeniably important. But my analysis emphasizes that the ethical element is only one component of a larger analysis of political power.

This reconstruction of Spinoza’s politics enables me to argue that Spinoza can and must accept my three Hobbesian problems. I argue that Spinoza accepts the first Hobbesian problem, the problem of the multitude’s inner oligarchy. Potentia operandi is very similar to the late Hobbesian potentia; thus, the Spinozist multitude tends to feature Hobbesian oligarchic informal power blocs. I paint radical democratic Spinozists as neo-scholastics: for they understand the multitude’s active power as a normatively appealing disposition that tends increasingly to express itself through history. But for Spinoza, unlike the scholastics, all power is fully actualized, and a multitude has precisely the degree of power that it expresses at any given time. If a multitude is not horizontal and equal, then it lacks the power to be so. Nor even does the existence of egalitarian and inclusive social movements establish the underlying goodness of the multitude. I argue that an entity’s action is determined by its own active power alone (it is sui juris) when it maintains itself homeostatically. Thus, a multitude’s power sui juris cannot be established by appeal to behaviour shaped by its opposition to the state. A multitude sui juris must have established the forms of self-regulation to maintain itself over time, and this will mean establishing an institutional structure. The multitude sui juris amounts to a Hobbesian state that has solved the political problem: a state that has established a configuration of individual potentiae that can hold itself together over time.

Next, I argue that Spinoza accepts the second Hobbesian problem: the problem of nonideal endurance. Allegedly Spinoza shows that the only durable independent states (the only states that have solved the Hobbesian political problem) are those that have good institutions, fitting with the intuitive desiderata of a normatively appealing democracy. Radical and constitutionalist interpretations alike insist that, for Spinoza as for Seneca, tyrannies never last long: great political power presupposes a deep ethical structure to the political order. To the contrary, I argue that a state can be durable in non-democratic ways, whether due to the stabilizing pressure of external forces, or due to well-crafted internal structures of dependency: the challenge for politics is not only for a state to achieve durability and address the Hobbesian political problem, but to do so in a way that more robustly expresses popular power.

In Chapter 9, I draw together the various argumentative threads of the book to propose a neo-Spinozist criterion of popular power. First, as to power: I propose that a collectivity expresses its power to the degree it is sui juris, or in other words, to the degree it homeostatically maintains itself and produces characteristic effects. Effects that either are produced sporadically or erratically or are produced durably but only due to pressure from an external force (for instance, under the tutelage of a colonial power) attest less to the collective’s own power. Next, as to popularity: I propose that a collectivity’s power counts as popular if it effectively self-regulates itself in accord with a fundamental principle of equality and participation. A collectivity producing hierarchized dependency amongst its members counts to that extent as less popular. What regime might meet this two-part criterion of popular power? I argue that Spinoza takes very seriously the problem of democracy’s perverse effects (the third Hobbesian problem); but whereas the Hobbesian solution is repressive egalitarianism, I characterize Spinoza’s solution as civic strengthening. Hobbes views all collective organization as a force of oligarchy and therefore seeks to individualize the multitude and fragment its collectivities as much as possible. By contrast, Spinoza seeks to encourage sociable and civic collective forms, and diminish the passions that entrench problematic oligarchies. Once the use of egalitarian organizational mechanisms such as sortition breaks the perverse incentives for oligarchic consolidation, the possibility emerges for formal and informal counterpowers to be welcomed as a beneficial part of a political system’s self-regulation.

(iii) The upshot for early modern philosophy and for democratic theory

The book poses a challenge to certain commonplaces in the Hobbes literature. First, the book defends the systemic significance and philosophical appeal of Hobbes’s theory of power (potentia), in contrast to the conventional focus on his theories of rights, duties, authority (potestas), and rational action. Second, the book makes a novel contribution to the lively debate about Hobbes’s relation to democracy, in particular arguing against taking the ‘sleeping sovereign’ as the key to Hobbesian democracy. Third, the book advances a novel characterization of Hobbes’s theoretical development, centring on the gradual elimination of scholastic remnants in his conception of political power.

Beyond the Hobbes literature, the book attempts to dislodge the persistent and often reductive presentation of the relation between Hobbes and Spinoza. Spinozists tend confidently to position Hobbes as the ‘bad guy’ versus Spinoza as the ‘good guy’, or in more scholarly terms, they tend to criticize Hobbes as excessively ‘juridical’, to be saved by Spinoza’s ‘power’ approach. But in my book, I believe they are revealed to have more in common in their conception of politics than is usually granted.

Furthermore, I hope that the substantial view that I develop from Hobbesian and Spinozist resources is valuable for democratic theory. I believe that my new criterion for a political phenomenon to count as an expression of political power provides a solution to my starting puzzle, and promises a way out of disturbing oscillations between faith in and disappointment with democracy. For on the view that the book develops, a formal system of democracy may or may not express popular power; nor do plebiscites or social movements automatically do so. Rather, the degree of popular power in a system depends on its concrete production of egalitarian effects durably over time. Plebiscites and social movements are no longer conceived as definitive or privileged expressions of popular power. Rather, they are viewed as potentially valuable elements within a broader vision of democracy.

Sandra Leonie Field (Yale-NUS College)


[1]  This research was supported by Yale-NUS College (through grant number IG17-SR101).

[2]  Richard Tuck, The Sleeping Sovereign: The Invention of Modern Democracy (Cambridge:
Cambridge University Press, 2015), 121–142.

[3]  Michael Hardt and Antonio Negri, Empire (Cambridge, MA: Harvard University Press, 2000); Multitude: War and Democracy in the Age of Empire (New York: Penguin Press, 2004); Commonwealth (Cambridge, MA: Belknap Press, 2009).

[4]  Joseph A. Schumpeter, Capitalism, Socialism and Democracy, 3rd ed. (New York: Harper Perennial, 2008), 256–328.

Online Colloquium (5): Reply to Critics by Sean Fleming

This online colloquium has been established to discuss Sean Fleming’s recent book, Leviathan on a Leash: A Theory of State Responsibility. We began with an introduction to the text by Dr Fleming, followed by responses from Silviya Lechner, Jerónimo Rilla and Philippe Crignon. We conclude this week with a reply by Sean Fleming. Many thanks to Princeton University Press for supporting this colloquium.

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I sincerely thank Silviya Lechner, Jerónimo Rilla, and Philippe Crignon for their thoughtful responses to Leviathan on a Leash, and Robin Douglass for organizing this Colloquium. For the reader’s sake, let me begin with a roadmap. The respondents focus on three different aspects of the book. Lechner focuses on the kind of theory I develop: is it primarily normative or metaphysical? Rilla focuses on my interpretation of Hobbes’s theory of the state: does it stand up to scrutiny? Crignon focuses on the implicit premises of my Hobbesian theory of state responsibility: what does it assume or presuppose, especially about international law, and how Hobbesian is it really?

Lechner: Authorization and Representation

The crux of Lechner’s critique is that I hollow out the normative content of Hobbes’s theory of the state. I put too much weight on Hobbes’s account of representation and give short shrift to his account of authorization. ‘Throughout the book’, she says, ‘the emphasis is on the metaphysics of the state (questions of identity and continuity) rather than on normative analysis’.

I do not think the book is as tilted toward metaphysics, or away from normative analysis, as Lechner suggests. Metaphysics, very broadly defined, is the focus in three chapters: Chapter 1, which compares and critiques the two dominant theories of state responsibility; Chapter 2, which reinterprets Hobbes’s idea of state personality; and Chapter 4, which develops an account of state identity. The other two main chapters are primarily normative. Chapter 3 addresses the question of when actions should be attributed to the state, while Chapter 5 addresses the question of when the costs and burdens of the state’s responsibilities should be distributed to its subjects. Authorization, not representation, is the focus in both of these chapters. The bulk of Chapter 3 is about what it means for a government to be authorized, and the central concept in Chapter 5 is ‘authorization by fiction’. Even in Chapter 4, which is the most metaphysical of them all, the metaphysics is derivative of the normative analysis. In that chapter, I use Hobbes’s idea of succession to explain how a state can persist over time despite changes in its population, territory, and government. For Hobbes, a multitude of individuals becomes one person when the members of the multitude authorize a common representative; it remains one person as long as it has a continuous series of representatives, or an unbroken chain of succession. However, as I emphasize, not just any representative can unite a multitude; only an authorized representative can. The reader first has to accept the normative account of authorization that I develop in Chapter 3 in order to accept the ‘metaphysical’ account of state identity that I develop in Chapter 4.

Here, by the way, lies the answer to one of Lechner’s questions: ‘what is the relation between authorisation and representation?’ On my view, as on Hobbes’s, authorization is the normative relation that makes representation valid or legitimate. To authorize an actor is to grant that actor the right to represent: ‘done by authority’ means ‘done by Commission, or Licence from him whose right it is’.[1] Authority thus marks the difference between representatives and misrepresentatives—between those who ‘personate’ and those who impersonate.

Although Leviathan on a Leash is more normative than Lechner suggests, there is something to her critique. She is right that the normative part of the bookis not nearly as Hobbesian as the metaphysical part. I take up Hobbes’s accounts of representation and personhood, but I jettison much of his account of authorization. As I said in my Introduction to this Colloquium, and as I argue at length in Chapter 3 of the book, Hobbes’s account of authorization has to be extensively modified to fit contemporary politics. Political authorization need not be unanimous, unlimited, or irrevocable, and the state need not have a single locus of authority—a supreme, sovereign representative. Through a critique of Hobbes, Chapter 3 develops a new account of political authorization, which begins with the thought that authorization requires an authentic expression of an agent’s will. The normative part of the book owes as much to Jean-Jacques Rousseau and Bernard Williams as it does to Hobbes.

So far, I have followed Lechner in using the word ‘metaphysics’ to refer to the non-normative aspects of the theory that I develop. But I should emphasize here, as I do in the book, that one of the advantages of my theory of state responsibility over the alternatives is that it is metaphysically thin. My Hobbesian theory of state responsibility provides a way of making sense of how states can be held responsible without positing corporate wills, agents, or intentions. The familiar concepts of authorization and representation do most of the theoretical work.

Lechner also asks where, if anywhere, I diverge from David Runciman. Let me first list the three points on which I follow him: (1) the state is ‘represented by Fiction’, like a bridge or an idol[2]; (2) Hobbes’s triangular or triadic model of representation is essential for understanding the modern state; and (3) Hobbes’s account of representation can be separated from his account of authorization.[3] The third point is the one on which Lechner diverges from Runciman and I. Whereas we think the structure of Hobbes’s theory of the state can be separated from its normative content, she argues that Hobbes’s thought should be understood ‘as a system of propositions’ (emphasis in original). I agree with Lechner that Hobbes’s thought should be interpreted holistically, which is precisely why I read his political and theological accounts of representation and personhood together. But it does not follow that his concepts are inextricable from his philosophical system, or that they all stand or fall together. Ideas from one philosophical system can often be redeployed within another. The history of political thought is, in large part, the history of how political thinkers have selectively borrowed ideas from others. We can separate Hobbes’s account of representation from his account of authorization, just as he separated the idea of representation from parliamentarianism.

My interpretation of Hobbes diverges from Runciman’s in only one major way. He makes the mistake (as many others do) of trying to compress Hobbes’s usage of ‘person’ into the definition of ‘person’ as ‘representative’ at the beginning of Chapter 16 of Leviathan. As I explain in Chapter 2, this renders Runciman’s reading of Hobbes inconsistent: ‘On one hand, he maintains that all persons are representatives. On the other, he maintains that states (and other incapable entities), which are not representatives, are nevertheless persons’ (51). He reaches the right conclusion—that Hobbes’s state is a fictional character—through a faulty line of reasoning. By showing that Hobbes’s concept of personhood is actually double-sided, and that persons can be ‘representees’ as well as representatives, I resolve this crucial inconsistency in Runciman’s interpretation.

Rilla: Personhood and Agency

Rilla accepts my argument that Hobbes’s state is like a fictional character. The state has to be represented by an actor because it cannot speak or act on its own. But Rilla maintains that Hobbes’s state is nevertheless an actor or ‘agent’ in its own right. Since Rilla is not persuaded by the textual evidence to the contrary that I present in Chapter 2, I will focus here on the conceptual problems with his interpretation.

Before I respond to Rilla’s arguments, let me identify the main point on which we disagree. I argue that Hobbes’s state is not an actor because it does not have a distinct will. The will of the state is nothing more than the will of the sovereign: ‘a Common-wealth hath no Will, nor makes no Lawes, but those that are made by the Will of him, or them that have the Soveraign Power’.[4] The actor, or the source of will, is the sovereign; the state is a character, merely a passive vehicle for the sovereign’s will. Rilla replies that the state is an actor, because its will is not reducible to the sovereign’s will. What he and I disagree about is whether Hobbes’s state has a will that is distinct from that of the sovereign. The italicized part of the last sentence is crucial. I do not deny that Hobbes ascribes a will to the state (as in the passage I quote above); what I deny is that the state’s will can differ or diverge from the sovereign’s will. I say this only for the benefit of the reader, since Rilla understands my argument well. Throughout his response, he is careful not to make a straw man out of me. He develops the most thoughtful critique of my position that I have yet encountered.

Rilla’s first argument is that the state must have a distinct will, because otherwise it would be difficult to distinguish appropriate from inappropriate ways of representing the state. If the state’s will is nothing more than the will of the sovereign, then how would it be possible for the sovereign to play the role of the state well or badly? For the sovereign to represent the state appropriately is, Rilla says, for the sovereign to ‘conform to the will and action proper to the person of the state’, which is ‘different from his or her natural attitudes’. Thus, he argues, ‘a set of intentions are attached by default to the person of the state: if a sovereign grants liberties that undermine his or her authority to a subject, “it is to be understood it was not his will” (L, XXI.20, 342)’.

The state need not have a distinct will in order for there to be ‘appropriate and inappropriate ways of personating it’. By Rilla’s logic, Hobbes must also ascribe distinct wills to bridges and idols, because there are appropriate and inappropriate ways of representing them, too. The point of Hobbes’s examples of representation of incapable entities—’Children, Fooles, and Mad-men’, ‘Inanimate things, as a Church, an Hospital, a Bridge’, and ‘An Idol, or meer Figment of the brain’[5]—is that the represented entity need not have any intrinsic capacity for will, action, speech, or rationality. The same point applies to the state, which is implied by the parallel Hobbes constructs between representation of incapable entities and representation of a multitude.[6] It is Rilla who ‘fails to notice an important trait of this dramatis persona’, and of dramatis personae in general. Representation is constrained not only by the will of the represented person (since it may not have one of its own), but also by the actor’s need to play the role of the person in a plausible way. The plausibility of representation is determined externally by an audience as well as internally by the will of the represented person. Thus, the fact that the state’s role can be played well or badly does not imply that the state has a will distinct from that of the sovereign, any more than the fact that Robin Hood’s role can be played well or badly implies that Robin Hood has a will distinct from the actor who plays his role.

At this point, Rilla might fall back on the word ‘fiction’: ‘To be sure, this intentionality concerns the state as a person by fiction, and not in metaphysical terms, as a mental event of an emergent mind’. But to distinguish representation from misrepresentation of the state, it is no more necessary to posit a distinct fictional will of the state than it is to posit a real one. The argument in the previous paragraph holds even if every instance of ‘will’ is qualified by ‘fictional’.

Rilla’s next objection is interesting and formidable. As I argue in Chapter 2, Hobbes did not want the state to have a distinct will, because this would raise a seditious possibility: the subjects might object that the sovereign has misrepresented the will of the state. However, as Rilla points out, Hobbes also saw a danger on the other side: ‘If the will of the state boils down to the natural will of the sovereign, subjects may feel alienated or disaffected from this person and disavow its actions’. This is certainly true, but Hobbes’s solution to this problem was not to posit a free-standing will of the state. Instead, he uses the concept of authorization to close the gap between subjects and the sovereign. Since subjects have authorized the sovereign, they should see his actions as their own: ‘by this Institution of a Common-wealth, every particular man is Author of all the Soveraigne doth; and consequently he that complaineth of injury from his Soveraigne, complaineth of that whereof he himselfe is Author; and therefore ought not to accuse any man but himselfe’.[7]

Rilla later raises a related point. My metaphysically thin interpretation of Hobbes’s state, he says, ‘leave[s] it defenceless against other personifications perceived as speaking and acting through rebellious representatives (e.g. Liberty, the Holy Ghost, idols or the People mobilised by the Parliamentarians)’. It is true that Hobbes could have countered all claims against the state with the argument that only the state is ‘real’ and that all of these other entities and ideas are fictitious or illusory. But that is not what Hobbes does—for one thing, because it would have been suicidal to dismiss God and the Holy Ghost as fictitious. Instead, he relies on authorization to establish a hierarchy of fictions. The state is the arch-fiction: the only one whose representative is authorized ‘without stint’ by all subjects.[8] The sovereign is thus authorized to keep all of the other fictions in their places. Corporations, the Church, and God can be represented only as the sovereign permits. ‘Liberty’, like all other terms, is defined by the sovereign. And since ‘the people’ and ‘the state’ are the same fictional entity, represented by the sovereign, it is conceptually impossible for the people to act in opposition to the state (see below). Hobbes did not need a metaphysically thicker theory of the state.

Rilla also objects to the distinction that I draw between true representatives (monarchs) and fictional representatives (assemblies). He points out that assemblies are natural persons according to Hobbes’s definition in Chapter 16 of Leviathan, since they are actors capable of representing themselves. Rilla is undoubtedly right about this. But here, as elsewhere, I think it is a mistake to rely solely on Hobbes’s account of personhood from Chapter 16 of Leviathan. In Chapter 22, he refers to assemblies as ‘artificiall, and fictitious’: ‘if it [i.e. an act] be a crime, the Assembly may be punished, as farre-forth as it is capable, as by dissolution, or forfeiture of their Letters, (which is to such artificiall, and fictitious Bodies, capitall,)’.[9] In The Elements of Law, again using ‘body politic’ to refer to an assembly, Hobbes says that ‘a body politic, as it is a fictitious body, so are the faculties of will thereof fictitious also’.[10] On my view, Hobbes’s state is a fictional character, whereas a Hobbesian assembly is a fictional actor.

Rilla also takes issue with my claim that what makes Hobbes’s idea of state personality novel and valuable is ‘that it decouples personhood from agency’ (65). Historically, he points out, the idea of the state as fictional person predates Hobbes. Rilla is surely right. But my claim in the offending passage is not that Hobbes’s idea of state personality is historically novel, but that it is novel in relation to contemporary conceptions of the state. As I say in the very next sentence, Hobbes’s decoupling ‘allows us to sidestep the protracted debates about the metaphysics of corporate agency and intentionality’—debates in contemporary political theory and philosophy (65). On the question of how historically novel Hobbes’s state is, I follow Quentin Skinner, as Rilla does: ‘More clearly than any previous writer on public power, Hobbes enunciates the doctrine that the legal person lying at the heart of politics is neither the persona of the people nor the official person of the sovereign, but rather the artificial person of the state’.[11] What Hobbes offers is not an entirely new theory of the state, but an especially clear and powerful articulation of a theory that contemporary political theory has misunderstood or forgotten.

Rilla concludes that Hobbes’s state is, contrary to my claim, a ‘fictional agent’. But this leaves him, and anyone else who thinks Hobbes’s state is an actor or agent, unable to make sense of Hobbes’s theatrical metaphor. If the state is the actor, then who or what is the character that the state represents?

One possibility is that the state is both the actor and the character; the state represents itself. Although Rilla maintains that Hobbes’s state is an actor, he says at the outset that he accepts my claim that Hobbes’s state is a fictional character. So he must think it is both. This is conceptually possible: the state (assuming that it is an actor) could play its own role, much as celebrities ‘play themselves’ when they make cameos in movies (e.g., Bob Barker played Bob Barker in Happy Gilmour). But what is the textual evidence that Hobbes understood the state as both actor and character? And what purpose could this self-representing fiction possibly serve in Hobbes’s political thought?

Another possibility is that the state (as actor) represents the people (as character). This could be what Rilla is suggesting here: ‘Hobbes attributes personhood and agency to the state because as long as it (and not merely the sovereign) acts, we-the-people act. Either channelled by a monarch or an assembly, it is “the action of the people” (L, XI.20, 158) that is at stake’. Rilla’s reference to ‘personhood and agency’ is odd, because it seems to affirm precisely the distinction that I insist on. More importantly, the relation between the state and the people is not merely representation, but identity. The state is the people. As Hobbes says in De cive, ‘Ordinary people and others who do not notice this point, always speak of a large number of men as the people, i.e. as the commonwealth’.[12] Hobbes makes the same point in the passage of Leviathan from which Rilla quotes above. Subjects ‘are disposed to take for the action of the people [i.e. the state], that which is a multitude of actions done by a multitude of men’.[13]

It may be that Rilla has taken the identity between the state and the people into account. Maybe this is his thought: ‘as long as [the state] acts, we-the-people act’, precisely because the state is the people. But if the state represents the people, and the people is the state, then the state represents itself. Once again, Hobbes’s state is back to being a self-representing fiction—both actor and character.

In sum, those who interpret Hobbes’s state as an actor have yet to provide a compelling answer to this crucial question: who or what is the corresponding character? Unless they can reconcile the state-as-actor interpretation with Hobbes’s theatrical metaphor—not to mention the textual evidence that I present in Chapter 2—they do not have a compelling rebuttal to my state-as-character interpretation.

Finally, Rilla argues that recognizing the state as an agent (susceptible to culpability, and subject to norms of rational consistency) would help to make sense of how Argentina has taken responsibility for the atrocities of its last military regime. I cannot adequately address this case here, so I will only offer one point of clarification. Rilla points out that, ‘[i]nstead of alleging “misattribution” due to the unauthorised character of the dictatorship, the democratic government that took office afterwards acknowledged the crimes as acts of “state terrorism”’. His assumption is that, on my account, the atrocities of the military regime are not attributable to Argentina. On the contrary, I think these atrocities are attributable to Argentina. Although the military regime was repressive and murderous, it probably met the minimal threshold for authorization—namely, acceptance as legitimate by a substantial number of subjects. As I argue in Chapter 3, ‘We must not fall into the trap of thinking that an authorized government is necessarily a “good” one’ (89). If only democratic, rights-respecting, or ‘decent’ governments count as authorized, then authoritarian states will never be responsible for anything, because the actions of repressive governments will never be attributable to the state. The state thus becomes an ‘artificial angel’. The claim that only good governments count as authorized backfires badly when it comes to state responsibility.

Crignon: Hidden Assumptions and the Law of Nations

Crignon begins by noting what is not Hobbesian about Leviathan on a Leash. He argues that my book depends on three premises or assumptions that Hobbes did not accept: ‘(1) the existence of an international forum where states acknowledge each other as persons, (2) a system of international law which introduces rules to which states are subjected and (3) human rights limitations on state sovereignty’. Crignon is right that my theory of state responsibility presupposes a system of international law—one in which the ‘law of nations’ is more strictly binding than Hobbes’s ‘law of nature’. Because Hobbes thought states were ‘Absolute, and Independent, subject to none but their own Representative’,[14] he did not think they could be bound—not to each other, nor to their own citizens. I make room for state responsibility by modifying Hobbes’s account of authorization and casting off his absolutist theory of sovereignty. However, I think Crignon is wrong about the first and third premises. My theory of state responsibility does not assume or require an international forum of recognition or human rights limitations on sovereignty.

In relation to the first premise, Crignon argues that ‘[t]he idea that there is a common arena where states can acknowledge each other as peers is implicit’ in the book. On his reading, I am committed to the claim that ‘it is possible [for a state] to be a person regardless of the authorization/representation process’. The idea that he attributes to me is called the ‘constitutive theory of recognition’ among international lawyers: external recognition constitutes the state. But in Chapter 4, I actually defend the ‘declaratory theory of recognition’, which holds that the existence of the state is independent of external recognition: ‘The corporate identity of the state is not externally constituted by the recognition of other states; it is internally constituted by the state’s representatives and by the subjects who authorize them’ (143, emphasis in original; see also 130, note 10). Earlier in that chapter, I use the cases of Poland and Ethiopia to demonstrate the ‘irrelevance of external recognition to the continuity of the state’ (130). I argue that the Polish Republic and Ethiopia continued to exist for years despite an almost-total absence of external recognition (and total annexations of their territories and populations), because these states had representatives who continued to speak and act in their names. My account of state identity is, if anything, too dismissive of the role of external recognition in constituting the state.

Crignon next argues that my understanding of state personality is more Leibnizian than Hobbesian: ‘It is Leibniz, not Hobbes, who construed the idea that a state is a person in an international society, a “persona juris gentium”’. My view is certainly Leibnizian in that I see states as persons in relation to each other, whereas Hobbes saw states as persons only in relation to their own subjects. But if Leibniz argues that the ‘personality of the state is unrelated to the authorization and representation process’, then, in this respect, my understanding of state personality is decidedly Hobbesian. There is no contradiction between my understanding of states as ‘international’ persons (which is Leibnizian) and my claim that the personality of the state is constituted ‘internally’ by authorization and representation (which is Hobbesian). The fact that states are persons in relation to each other does not imply that their personhood is constituted by external recognition. Similarly, the fact that human beings are persons in relation to each other does not imply that their personhood is constituted by external recognition (rather than by some pre-social feature of the individual). How persons relate to each other is one question; how persons are constituted is another.

My theory of state responsibility also does not assume ‘human rights limitations on state sovereignty’. It does require limitations on sovereignty, but these limitations derive from authorization rather than from human rights. Whereas Hobbes thought political authorization had to be unanimous, irrevocable, and limitless, I argue that political authorization is always partial, temporary, and conditional (69, 85–88, 90–92). Authorization is temporary for two reasons: first because authority has a short shelf-life (which is why we hold elections every few years), and second because the authors themselves (subjects) have limited lifespans. Authorization is partial because there are always dissenters who refuse to authorize the government, as well as some subjects (such as young children) who do not have the capacity to authorize anyone. Authorization is conditional because it can be withdrawn; authorizing subjects can later become dissenters. It is for these reasons that sovereignty is limited. On my account, governments that do not respect human rights often do count as authorized. We might consider these governments to be ‘unjust’, but we should be careful about condemning them as ‘illegitimate’ or ‘unauthorized’: ‘The claim that only rights-respecting governments can be authorized implies that states cannot be responsible for violations of human rights’ (89). As I said at the end of my response to Rilla, the claim that only good governments count as authorized recoils on us when it comes to state responsibility.

Crignon argues that some of my examples depend on a conception of the state is that is un-Hobbesian: ‘A Hobbesian state can wage war, but cannot be bound by a covenant’. For Hobbes, ‘there can be no genuine treaty or compact between states’. I completely agree. As I argue in Chapter 2, Hobbes’s ‘theory of sovereignty rules out the possibility that states could be held responsible’ (68). Hobbes does not think states can be obligated (in a legal sense, at least) because he does not think they are subject to any higher authority; states cannot be bound (to each other, or to their own subjects) because there is no one to bind them. This is why I jettison Hobbes’s theory of sovereignty. My conception of the state is structurally Hobbesian, since I ‘retain the structure of Hobbes’s theory of representation’ (69), but Crignon is correct it is no longer Hobbes’s conception of the state after I am done with it.

Crignon says he ‘cannot see why the state cannot be accountable for its actions or even culpable for them, in addition to owning them’. Let me restate, and hopefully clarify, the arguments that I made in Chapter 3.

The conclusion that accountability resides with the state’s representatives, rather than with the state itself, follows from my earlier argument (discussed in my response to Rilla) that the state is a fictional character. Accountability, in common parlance and by my definition, is ‘an obligation to explain or justify’ an action—an obligation to answer for it (99). Since the state cannot speak or act on its own, it is simply incapable of real accountability. The task of answering for actions that are attributed to the state falls to its representatives. Public apologies may be issued in the name of the state, but they are always issued by the representatives of the state. Accountability thus resides with them.

The conclusion that culpability resides with the state’s representatives follows from an asymmetry between intention and action. Culpability requires both a wrongful act and a corresponding intention—in the terms of criminal law, an actus reus and a mens rea. But while actions can be attributed from a representative to a representee, intentions cannot be. To take a simple example, which I use in Chapter 3, suppose that I authorize an estate agent to buy a house for me. I am indifferent about the colour of the house. But the estate agent happens to like red houses, so she buys a red house for me. Since I authorized the estate agent, her action is attributable to me, but it would be a mistake to attribute her intention to me: ‘I bought a red house’ is true even though ‘I intended to buy a red house’ is false. Here lies the asymmetry between action and intention. The actions of an authorized representative are attributable to the person whom she represents; her intentions are not.

Now consider a case of wrongful action. Suppose that the prospective buyer of my old house requests a copy of the deed and the property survey, and I send these documents to him via my estate agent. Unbeknownst to me, these documents are forgeries. My estate agent recognizes this, but she is desperate to make the sale, so she keeps quiet and sends the forged documents to the prospective buyer. My estate agent is clearly culpable: she passed forged documents, and she intended to do so. Am I culpable, too? I think not. It is true that I passed forged documents; this act of my estate agent is attributable to me, since I authorized it. But it is not true that I intended to pass forged documents. The fact that my estate agent intended to do so does not imply that I intended to do so (unless I was aware of the forgery). As in the previous example, her action is attributable to me, but her intention is not. And since intent is necessary for culpability, I am not culpable.

Now consider the state. Since the state is a fictional character, it has no intentions of its own. If the state is to be culpable, the intentions of its representatives have to be attributed to it. Suppose that a soldier intentionally kills a civilian. On my account, this act is attributable to the state, because ultra vires acts of state officials still count as acts of state. However, the intention of the soldier is not attributable to the state, because intentions are not attributable at all. Here, again, the asymmetry between action and intention presents a barrier to vicarious culpability. Those who think the intentions of state officials should be attributed to the state have to explain why the intentions of representatives are not attributable to representees in other cases, such as the ones I describe in the previous two paragraphs. If the estate agent’s intention to pass forged documents or to buy a red house is not attributable to her client, then why should the intention of the soldier be attributed to the state? Why is vicarious liability so common but vicarious culpability so rare? My answer is simple: because it is possible to act vicariously but not to intend vicariously.

Crignon argues that ‘[t]he very notion of “doing wrong” or “being unjust” entails … culpability’. I do not think so, for the reasons that I describe above. A wrongful act can be attributed to a state, but a wrongful intention, which is necessary for culpability, cannot be. ‘Ownership’ and culpability can come apart. It is worth noting here that, under international law, states can be held responsible for wrongful acts but not criminally responsible for them. The UN International Law Commission’s Articles on Responsibility of States for Internationally Wrongful Acts say nothing about culpability; guilt, punishment, and criminality are conspicuously absent.[15] States have reparative obligations under international law even though they cannot be culpable under international law.

Finally, Crignon asks precisely what role authorization and representation play in my Hobbesian theory of state responsibility. The answer that he suggests is mostly right: authorization and representation determine whose actions are attributed to the state and to whom the costs and burdens of the state are distributed. But I do not agree with his suggestion that authorization and representation play only ‘a minor role in the constitution of the state’. Once again, my account of state personality is more Hobbesian (and less Leibnizian) than Crignon suggests. For me, as for Hobbes, the personality of the state is a product not of external recognition, but of political representation. 

Dr Sean Fleming (Christ’s College, University of Cambridge)


[1]  Leviathan, XVI. 244, emphasis in original. I cite Hobbes’s Leviathan according to the chapter numbers and the page numbers from the 2012 Clarendon edition, edited by Noel Malcolm.

[2]  Leviathan, XVI. 248.

[3]  See especially David Runciman, ‘Hobbes’s Theory of Representation: Anti-Democratic or Proto-Democratic?’, in Political Representation, eds. Ian Shapiro et al. (Cambridge: Cambridge University Press, 2009), pp. 15–34.

[4]  Leviathan, XXXI. 570. See also De cive, VI.19 and VI.1a. I cite De cive by the chapter and paragraph numbers.

[5]  Leviathan, XVI. 246–48.

[6]  On this point, see Arash Abizadeh, ‘Hobbes’s Conventionalist Theology, the Trinity, and God as an Artificial Person by Fiction’, The Historical Journal 60, no. 4 (2017), pp. 915–41, at 926.

[7]  Leviathan, XVIII. 270.

[8]  Leviathan, XVI. 250; see also XXII. 348.

[9]  Leviathan, XXII. 352.

[10]  The Elements of Law, Natural and Politic, XXI.4. I cite The Elements by the chapter and paragraph numbers. On this passage, and on the role of fiction in Hobbes’s thought more generally, see Robin Douglass, ‘The Body Politic “is a fictitious body”: Hobbes on Imagination and Fiction’, Hobbes Studies 27, no. 2 (2014), pp. 126–47.

[11]  Quentin Skinner, Visions of Politics Volume 2: Renaissance Virtues (Cambridge: Cambridge University Press, 2002), p. 404, quoted on p. 9 of Leviathan on a Leash.

[12]  De cive, XII.8, emphasis in original.

[13]  Leviathan, XI. 158.

[14]  Leviathan, XXII. 348.

[15]  As I explain elsewhere, the UN International Law Commission rejected a proposal to recognize international crimes of states. Sean Fleming, ‘Moral Agents and Legal Persons: The Ethics and the Law of State Responsibility’, International Theory 9, no. 3 (2017), pp. 466–89. I also discuss state criminality in ‘Leviathan on Trial: Should States Be Held Criminally Responsible?’, International Theory (forthcoming).

Online Colloquium (4): Crignon on Leviathan on a Leash

This online colloquium has been established to discuss Sean Fleming’s recent book, Leviathan on a Leash: A Theory of State Responsibility. We began with an introduction to the text by Dr Fleming, followed by responses from Silviya Lechner and Jerónimo Rilla. We now have a response from Philippe Crignon, before finishing with a reply by Sean Fleming next week. Many thanks to Princeton University Press for supporting this colloquium.

***

Chapter 3 of Sean Fleming’s outstanding book deals with attribution of actions to a state. It builds on the Hobbesian theory of the personality of the state, but goes further and incorporates three significant claims that change it to a large extent. These amendments entail assertions that Hobbes rejected, rightly or wrongly; as a result, the personality of the state and the consequences that Fleming draws from it in terms of responsibility, accountability and liability eventually appear distinct—and possibly quite independent—from what Hobbes vindicated. If I understand the author correctly, these assertions are the following: (1) the existence of an international forum where states acknowledge each other as persons, (2) a system of international law which introduces rules to which states are subjected, and (3) human rights limitations on state sovereignty. Hobbes did not accept any of these ideas and he probably had good reasons for doing so, starting with consistency with his fundamental principles: authorization by citizens and representation by the sovereign are the two processes that establish the person of the state, with absolute sovereignty. The question therefore arises as to what remains of Hobbes’s theory after such essential changes. Another question is whether these corrections are well-grounded and to what extent they may shed more light on state responsibility.

The idea that there is a common arena where states can acknowledge each other as peers is implicit in Fleming’s work. Although he dismisses the agential theory of International Relations and the functional theory of International Law (chapter 1), he pays special attention to interstate relationships. As a matter of fact, it is possible, according to him, to consider a state as a person “from the outside”, without being either its sovereign or one of its citizens. This claim is not self-evident. The notion of person, unlike that of human being, is not natural: one is always a person for someone else who offers recognition and who attributes actions to her. For Hobbes, a state is a person only for its citizens and for its sovereign due to the authorization/ representation process. In their mutual relations, states are in a natural condition, “a condition of war of everyone against everyone”, which is to be interpreted as a jural vacuum rather than as an open war. As the judiciary and theatrical origins of the concept may suggest, a “person” (or the actor) performs on a stage and before an audience. Less metaphorically, a forum must be displayed, which is (in Hobbes’s view) not to be found at the international level. Admittedly, this prohibits any political or legal recognition among states. Fleming clearly disagrees with Hobbes on this specific point. For him, a state is considered a person by other states, NGOs and IGOs, and this, of course, conforms to contemporary political theory, more specifically to IR theory. But this also means that it is possible to be a person regardless of the authorization/ representation process, which is the very basis of the “person by fiction” in Hobbes’s thought. Public law personality and international law personality have distinct principles and it seems to me that Fleming shifts from one to the other with no explicit justification. It is Leibniz, not Hobbes, who construed the idea that a state is a person in an international society, a “persona juris gentium”, as he said in the Cæsarinus Fürstenerius in 1677 (Akademia Verlag, IV, 2, p. 64), which is defined by its territorial supremacy and its international political significance, and to which actions can be attributed following the law of nations. According to Leibniz, smaller states have no such international personality because they lack influence, while larger states endorse this personality insofar as they are part of an interstate system with a supranational (imperial) authority. I suspect that Fleming follows Leibniz more than Hobbes on this point. Of course, this may be unproblematic but 1) Leibniz did elaborate his conception in direct opposition to Hobbes’s (“Hobbesian empire, I think, exist neither among civilized peoples nor among barbarians, and I consider them neither possible nor desirable”[1]) and 2) this notion of personality of the state is unrelated to the authorization and representation process.

Fleming gives examples of actions attributed to states, considered as persons, at the international level, such as Russia launching an attack on a plane (74), the USA signing the Paris Climate Change Agreement or withdrawing from it (86) and Germany signing a treaty (100). These examples are not backed by the same conception of the state. A Hobbesian state can wage war, but cannot be bound by a covenant. The last two examples imply that the USA and Germany are personæ juris gentium and suggest a system of positive international law, which is avowedly un-Hobbesian. According to Hobbes, indeed, there can be no genuine treaty or compact between states and, more importantly, any external action supposedly attributed to a state is in fact owned by the sovereign. We may as well attribute such actions to the government instead. It is true that, for Hobbes, international relations are regulated by the laws of nature (i.e. morality) and that “leagues between commonwealths” (Leviathan, XXII) are possible, lawful and even profitable. But moral duties cannot be translated into legal obligations and they bind the sovereigns rather than the states. Similarly, confederacies are between “absolute Lords” (Leviathan, XXX) rather than between states. This is why Hobbes may not be that useful here.

Fleming then makes an interesting distinction between ownership on the one hand and accountability and culpability on the other hand. He claims that while states own the actions, only representative governments are accountable and may be culpable for them (99–100). Yet I wonder if such a distinction is relevant here. If a state is a person for other states, as Leibniz (not Hobbes) contended, then I cannot see why the state cannot be accountable for its actions or even culpable for them, in addition to owning them. In such a case, authorized representatives are bound to act according to the state’s accountability: compensation for war damage illustrates this clearly. In fact, accountability itself is owned by the state. As it seems, personality, ownership, accountability and culpability have not much to do with the authorization/ representation process, because they utterly depend on a system of international law that makes the states fully responsible for their actions. My opinion would therefore be that Leibnizian principles are more consistent than Hobbes’s theory with Fleming’s claim that “although ‘moral or immoral behaviour’ can be attributed to a state only in a very thin sense, the supposition that states can do good or do wrong is nevertheless a crucial one’” (105).

Norms of justice are imposed on the state’s external activities by international law and generally on all its activities—internal as well as external—by human rights. Just as states can do wrong or do good regarding their behaviour towards other states, nations or peoples, they can be just or unjust towards their own citizens depending on whether they comply with human rights or not (88). Hobbes would of course not admit that a state could be unjust because “the makers of civil laws, are not only declarers, but also makers of the justice and injustice of actions” (Leviathan, XLII). Hobbes obviously lacked a full-fledged theory of human rights, although he acknowledged some inalienable rights that allow individuals to disobey the sovereign. He made clear also that a sovereign turns into an enemy when he endangers the people’s safety (De cive, XII, 3). Hobbes would nevertheless have rejected the assumption that a state (rather than the sovereign) can be unjust on this basis. I am actually sympathetic with Fleming’s claim that “unjust states” exist, specifically when they commit crimes against humanity, because those crimes are not defined by positive law and because they are committed by authorized public officers or public institutions as such. I also agree with his idea that ministers and governments are not the only ones responsible for these actions (74, 108). Yet again, I cannot see why exactly a state cannot therefore be accountable or culpable for its own actions. If, for Hobbes, a state owns its actions but cannot be held accountable for them, it is because the sovereign representative is thought to be absolute, not because the state lacks a natural will. Now if we dismiss absolute sovereignty, as Fleming rightly does (91), it makes perfectly sense that a state, and not only its representatives, is held accountable or even guilty for its mischiefs. The very notion of “doing wrong” or “being unjust” entails that sort of culpability. France, and not only Pétain and other officials, has rightly been declared guilty for the Vel’ d’Hiv Roundup in a famous speech by President Jacques Chirac in 1995. France, and not the present French government, has been found guilty by an administrative court for its inaction on climate change (2021). Hence, state accountability seems to me a better ground for public compensation, regardless of successive governments (and even of successive regimes).

These issues may not be of the highest importance to Fleming’s overall line of argument, but they nevertheless question the exact function of Hobbes’s theory of authorization and representation in this updated version of state responsibility. My guess is that it plays a minor role in the constitution of the person of the state and in making it responsible and accountable, but that it is necessary both to identify when somebody’s actions must be attributed to the state (a government’s or an official’s actions are the actions of the state if and only if the government or the official is duly authorized) and to carry out the responsibility of the state (a state’s obligations determine the duties of its representative officials). I would be very grateful to Fleming if he would discuss this reading, just as I already thank him for these challenging and impressive investigations.

Professor Philippe Crignon (Université de Nantes)


[1]  Cæsarinus Fürstenerius, in Leibniz, Political Writings, trans. P. Riley (Cambridge, Cambridge University Press, 1988), p. 120.

Online Colloquium (3): Rilla on Leviathan on a Leash

This online colloquium has been established to discuss Sean Fleming’s recent book, Leviathan on a Leash: A Theory of State Responsibility. We began with an introduction to the text by Dr Fleming, followed by a response from Silviya Lechner. We now have a response from Jerónimo Rilla, which will be followed by a response from Philippe Crignon and then a reply by Sean Fleming. Many thanks to Princeton University Press for supporting this colloquium.

***

Sean Fleming’s Leviathan on a Leash is a worthy and lucid work of scholarship. As the author clarifies, he does not seek to find a ‘grand solution to a contemporary problem’ in Thomas Hobbes’ philosophy, but to develop a ‘Hobbesian’ theory of state responsibility (79). This Hobbesian viewpoint allows Fleming to challenge already existing, but flawed, answers—the ‘agential’ and the ‘functional’ theories of state ontology and responsibility—and to embark on a more cogent alternative.[1]

In chapter 2, Fleming reconstructs an interpretation of Hobbes’ notion of the personality of the state. Its main conclusion is that ‘Hobbes’ idea of personhood [is] unique and valuable’ because ‘it decouples personhood from metaphysical conceptions of agency’. Hobbes ‘claim[s] that states are persons … But Hobbesian personhood is metaphysically thin and fairly innocuous … The word “person” is ultimately dispensable’ (67).

To prove this assertion, Fleming sets out an illuminating distinction between two acceptations of ‘person’ that coexist in Hobbes’ texts: person understood as an actor or representative, on the one side, and person understood as a character or representee, on the other (52). ‘A complete understanding of Hobbes’ theory of the state requires both senses of personhood’ (56). Then, he argues that the Hobbesian state is not a person in the former sense, as an actor or agent, but in the latter, as a ‘fictional character’ (62) that is represented by the sovereign. The reason is that ‘the state lacks the defining feature of a corporate agent: a will that is distinct from the wills of its members and representatives’ (62). This Hobbesian conception ‘lays the groundwork’ to overcome the ‘limitations’ (45) of the agential and functional theories.

Although the author presents a plausible and compelling account, ‘tis hard to passe between the points of both unwounded’ (L, Epistle, 4),[2] as Hobbes would put it. In what follows, I will detail a series of points in which I take issue with Fleming’s interpretation. To my mind Hobbes endows the state with personhood precisely because he wants to confer voice and agency to it.

[1] I agree with the claim that the state is like a fictional character. Since it cannot speak and act by itself, the state needs a representative, an actor, to articulate its words and enact its actions. From this, Fleming deduces that the state also lacks will or intentionality, and, therefore, agency.

I think this reasoning fails to notice an important trait of this dramatis persona. As we learn from chapter XXX of Leviathan, the state’s personentails an ‘office’: there are appropriate and inappropriate ways of personating it.[3] Moreover, a set of intentions are attached by default to the person of the state: if a sovereign grants liberties that undermine his or her authority to a subject, ‘it is to be understood it was not his will’ (L, XXI.20, 342). And actions: a sovereign should ‘be careful in his politic person to procure the common interest’ (L, XIX.4, 288). This script of attitudes depends on a representative to be realised, but it is different from his or her natural attitudes. When sovereigns do not conform to the will and action proper to the person of the state, they behave in a non statelike fashion. As Fleming recognises later, if the sovereign provides an unconvincing portrayal, subjects ‘may cease to accept his [or her] actions as acts of state’ (77), that is, as acts of which they are the authors.

To be sure, this intentionality concerns the state as a person by fiction, and not in metaphysical terms, as a mental event of an emergent mind. Consequently, the fact that the state’s will ‘is simultaneously a natural will’ (58) when represented by an individual sovereign does not disqualify the state from the class of agents. Representing the person of the state means willing and acting as the state.

[2] Fleming rightly weighs up the risk of conceiving the state as an actor separated from the sovereign: ‘if the state had a will of its own … [it] could act independently of the sovereign or the subjects could object that the sovereign has misrepresented the will of the state’ (62). But he overlooks the other horn of the dilemma. If the will of the state boils down to the natural will of the sovereign, subjects may feel alienated or disaffected from this person and disavow its actions.

Hobbes thought this was a pressing issue, especially germane to the debate against the Parliamentarians: ‘by all together, they understand them as one person (which person the sovereign bears), then the power of all together, is the same with the soveraigns power… [This] they see well enough when the soveraignty is in an assembly of the people; but in a monarch they see it not’ (L, XVIII.18, 280).

[3] Besides, it is not evident that the ‘monarch is a true representative’ (58) as opposed to an assembly that would be a ‘fictional’ (56) one. The alleged ‘conceptual distinction’ (58) between monarchies and corporate representatives conflicts with Fleming’s subsequent argument. Since Hobbes’ assemblies are ‘actor[s]’ (58) or ‘rudimentary corporate agents’ (63), and not merely passive characters, they share with individual representatives the important feature of being agents. As such they can trulyspeak and act for the state. Stricto sensu, an assembly acts as a natural person because its ‘words and actions are considered… [its] own’ (L, XVI.1, 244).[4] That is to say, a sovereign assembly acts and speaks by itself in representation of the people.

[4] Fleming claims that ‘describing Hobbes’ state as a corporate agent… is anachronistic’ (65). Decoupling agency would be ‘what makes his idea of state personality novel and valuable’. In terms of historical accuracy, however, the assertion might be too bold. To construe the state as a person by fiction, to make it speak and act as if it were a person, is as old as the rhetorical figure of prosopopoeia,[5] and it is a trend that re-emerges in the 16th century.[6] Furthermore, what personification enables is precisely the agentialisation of an abstraction such as the state.[7] Conversely, the model of the representative as principal and the state/populus as a passive character deprived of agency, such as a minor, is not novel, but mainstream in medieval legal thought.[8]

[5] The risk of having a ‘metaphysically … innocuous’ (67) state for Hobbes is to leave it defenceless against other personifications perceived as speaking and acting through rebellious representatives (e.g. Liberty, the Holy Ghost, idols or the People mobilised by the Parliamentarians).[9] Hobbes could choose simply to disabuse the public and show that these are mere ‘figments of the brain’ (L, XLV.10, 1024). But, human beings ‘are enclined to suppose, and feign unto themselves several kinds of powers invisible, and to stand in awe of their own imaginations’ (L, XI.26, 162). Hence, through personification Hobbes intends to create the most powerful of all fictions (at least super terram): a ‘reall unitie of them all in one and the same person … of whose acts … every one [is] the author’ (L, XVII.13, 260, my emphasis).

To conclude, contra Fleming I contend that the Hobbesian state is a ‘fictional agent’ (62). Hobbes attributes personhood and agency to the state because as long as it (and not merely the sovereign) acts, we-the-people act. Either channelled by a monarch or an assembly, it is ‘the action of the people’ (L, XI.20, 158) that is at stake.

In addition, some recognition of state agency would be better suited to Fleming’s ‘crucial’ ‘supposition that states can do good or do wrong’ (105) and his concern with the ‘rational consistency’ (168) of states. Take, for instance, the Argentine state’s admission of blame and the subsequent reparations (both economic and symbolic) to the victims of the last military regime (1976–1983). Instead of alleging ‘misattribution’ due to the unauthorised character of the dictatorship, the democratic government that took office afterwards acknowledged the crimes as acts of ‘state terrorism’. While Fleming considers it untenable (102, 176), a notion of state ‘culpability’ might be helpful in this regard. On the one hand, because the comprehensive disposition of state resources and agencies towards human rights violations manifested a corporate intention attributable to the person of the state. On the other, because once democracy was restored, representatives and subjects of Argentina were willing to rebuild the state’s standing (arguably, its rational and moral ‘consistency’) in the world community.

Independent of this discussion, Fleming’s Hobbesian theory of state responsibility is thorough, persuasive and well argued. His book certainly succeeds in arraigning Leviathan. Whether it remains ‘on a leash’ as a passive character is debatable.

Dr Jerónimo Rilla (University of Buenos Aires, Argentina)


[1]  Incidentally, Fleming’s undertaking fulfils the criteria regarding how to use of the history of political thought for contemporary purposes set by Adrian Blau, ‘How (Not) to Use the History of Political Thought for Contemporary Purposes’. American Journal of Political Science (2020), Early View: https://doi.org/10.1111/ajps.12545.

[2]  L = Thomas Hobbes, Leviathan, ed. N. Malcolm (Oxford: Clarendon Press, 2012).

[3]  To assume a persona is to simultaneously assume an office, as explained by Conal Condren, Argument and Authority in Early Modern England: The Presupposition of Oaths and Offices (Cambridge: CUP, 2006), 6.

[4]  See Laurens van Apeldoorn, ‘On the person and office of the sovereign in Hobbes’ Leviathan’. British Journal for the History of Philosophy 28:1 (2019), 49–68, at 60.

[5]  See Quentin Skinner, From Humanism to Hobbes: Studies in Rhetoric and Politics (Cambridge: CUP, 2018), 16.

[6]  See Thomas Maissen, Die Bedeutung der christlichen Bildsprache für die Legitimation frühneuzeitlicher Staatlichkeit, in Religions-Politik, Vol.I, eds. G. Pfleiderer and A. Heit, 75-192 (Baden-Baden: Nomos, 2013), 75–192, at 90–2, 116, and 172–3.

[7]  See Angus Fletcher, Allegory: The Theory of a Symbolic Mode (Princeton: PUP, 2012), 25, who claims: ‘Personified abstractions are probably the most obvious allegorical agents’.

[8]  See Joseph Canning, The Political Thought of Baldus de Ubaldis (Cambridge: CUP, 1987), 193.

[9]  I discuss this issue in Jerónimo Rilla, ‘Hobbes and prosopopoeia’, Intellectual History Review (2021), Online First: https://doi.org/10.1080/17496977.2020.1853991.

Online Colloquium (2): Lechner on Leviathan on a Leash

This online colloquium has been established to discuss Sean Fleming’s recent book, Leviathan on a Leash: A Theory of State Responsibility. We began with an introduction to the text by Dr Fleming. We now have a response from Silviya Lechner, which will be followed by responses from Jerónimo Rilla and Philippe Crignon, and finally a reply by Sean Fleming. Many thanks to Princeton University Press for supporting this colloquium.

***

Sean Fleming’s Leviathan on a Leash offers a contemporary theory of state responsibility inspired by Hobbes’s masterpiece. This compact book is full of insights that make us think deeply and critically about the problem of whether states can be considered agents who bear obligations—hence, the metaphor of a leash signifying the bonds of obligation suspended on the neck of ‘Leviathan’, the state. Particularly salient are issues of state responsibly for debt and reparations and, more indirectly, responsibility for wrongs such as slavery or genocide that shock our moral conscience. The author suggests that responsibility can be attributed to (or ‘owned by’ in Hobbes’s language) states. The puzzle is this: although the state is not just a collection of individuals, but a person in its own right, its obligations can be distributed further to its subjects. Under what conditions can these obligations be distributed, and to what class of agents inside the state do they apply (citizens, subjects, or residents)? These problems are tackled in Chapters 4 and 5. Chapter 4 discusses the identity and continuity of the state over time (as related to options such as cession, secession, unification, absorption, or dissolution), and Chapter 5 addresses some rarely examined problems—namely, the fact that any present attribution of state responsibility may be binding on future generations. Do we now have an obligation to repay a debt incurred by a former government, as authorised by an earlier generation of subjects of our state? Is our present state identical to the state which incurred the debt, and were the state officials acting legitimately in incurring such obligations in the first place? Throughout the book, the emphasis is on the metaphysics of the state (questions of identity and continuity) rather than on normative analysis. Metaphysics here refers to the study of abstract properties and relations between objects such as identity and non-identity, existence and non-existence, and continuity and discontinuity over time. The proposed analysis of these questions constitutes a genuine contribution to the contemporary discourse on state responsibility.

With respect to Hobbes’s theory of the state, the approach adopted in Leviathan on a Leash is revisionist. The author uses Hobbes’s main texts on politics as a springboard for developing his own position on state responsibility informed by contemporary international law, exemplified by international legal discourse and international legal instruments (i.e., the UN International Law Commission), largely from a descriptive perspective (Chaps. 1 and 4). The starting premise is that states can be bearers of obligations, not however in the strict sense in which human individuals can incur (or be released from) obligations. Rather, following Hobbes, the state may be compared to a person by fiction (see Runciman 2000). For Hobbes, ‘a PERSON, is he whose words or actions are considered, either as his own, or as representing the words or actions of an other man, or of any other thing to whom they are attributed, whether Truly or by Fiction. When they are considered as his owne, then is he called a Natural Person: And when they are considered as representing the words and actions of an other, then is he a Feigned or Artificial Person’ (L XVI, 217 [80]).[1] This statement occurs in Chap. XVI of Leviathan where Hobbes talks about agency and representation in general as well as in the specific context of civil law. Fleming appeals to Chap. XLII, which is about theology and the representation of God. There Hobbes says, ‘a Person, (as I have shewn before, chapt. [16]) is he that is Represented, as often as hee is Represented’ (L XLII, 522 [268]). A central thesis of Leviathan on a Leash is that the (Hobbesian) state counts as person (by fiction) insofar as it is represented by another agent—the sovereign—who in turn has been authorised by the multitude (prospective subjects) to act on their behalf (59–60). Thus, the explanans includes relations of representation and authorisation, and the explanandum is (state) personhood.

The master concept in the book is actually representation, with authorisation playing an auxiliary role. The author suggests that the state is a type of (artificial) representee, whose representative is (an antecedently authorised) sovereign. The ground for this claim is Hobbes’s statement that since the state cannot act by itself it requires mediation by a sovereign (L XXVI, 311 [137]). This interpretation is heavily indebted to a set of arguments presented by David Runciman (2000, 2007, 2009), dating back to an exchange between Runciman and Quentin Skinner over the nature of personhood in Hobbes’s moral and political theory (Runciman 2000; Skinner 1999). Skinner (1978: 353) developed the insight that the Hobbesian state is an entity distinct from both rulers and ruled. This insight was crucial in reclaiming the concept of the state, which has become strangely neglected in post-Rawlsian political theory. And yet, Skinner’s account (1999) posits a rigid taxonomy by assigning, to each type of agent, a fixed type of identity (personhood) derived from its mode of representation. On this account, the state is a purely artificial person, presumably because it is a representee rather than a representative. Runciman changes the focus from personhood to action, which reflects more faithfully Hobbes’s philosophical project centred on action and will. Runciman (2000) takes the Hobbesian state to be a person represented by fiction. This type of person resembles ‘incapable agents’ who cannot act on their own and cannot authorise their own representation (Runciman 2009, 23). To this category belong ‘Children, Fooles and Mad-men who have no use of Reason’ (L XVI, 219 [82]) as well as inanimate things like bridges or hospitals. Key here is the idea of ‘acting in the name of another’, when the representee is incapable of authorising its own representation. This situation involves a triadic relationship between ‘authors’ (full-fledged agents), representees (incapable agents), and representatives (guardians, masters, overseers) authorised by the authors. Thus a governor who has rights over a ward may authorise a guardian (a representative) to act in the name of the ward. Analogously, a bridge owner can authorise a representative to oversee the bridge. For Hobbes, an agent can become ‘personated’ whenever it is made to ‘bear the person’ of another. The idea is not merely that the agent is represented by someone, but that it is represented as something, as a character or a role, by means of external attribution. Hobbes calls this attributed character or role, persona (L XVI, 217 [80]). Personating incapable agents allows them to act and to enjoy rights which normally would accrue only to proper agents or ‘authors’. By implication, the bridge in the illustration above becomes a persona which has certain rights (to be maintained, for example).

Fleming follows closely Runciman’s theses throughout the book, and particularly the thesis that the state is comparable to an incapable agent personated by a representative (9). But no passage explicates how exactly (if at all) their views diverge. One point of divergence seems to be that Runciman is far more sceptical about the concept of authorisation than Fleming (Runciman 2009: 17, 21, 24). Another one is that Runciman (2009) defines the Hobbesian state as ‘the people’ or the passive subjects of political authority, whereas Fleming prefers to speak of the state in the abstract language of representation (as well as identity and continuity). Even though this abstract line of argument invites no logical objections, it is open to a normative objection—namely, that it assumes away Hobbes’s theory of the state construed as normative theory.

The remarks that follow reflect my own views about the character of philosophy in general and about Hobbes’s philosophy in particular. While I share Fleming’s interest in metaphysics and in analytic philosophy as a mode of explication, I see Hobbes’s philosophy as a system of propositions. Understanding Hobbes’s statements about the state, personhood or representation cannot, to my mind, be confined to conceptual analysis (i.e. analysing Hobbes’s definitions and usages of concepts such as ‘person’ or ‘representation’). Rather, individual concepts should be interpreted in the broader context of Hobbes’s arguments, and ultimately, of his philosophical system as a whole.My thesis in a bare outline is that: (1) Hobbes advances a normative theory of the state; and that (2) in Leviathan the concept of authority and authorisation as well as the normative vehicle of covenant—rather than the abstract concept of representation—lie at the core of the theory.

It is true that Hobbes claims that the state cannot act by itself and thus requires a representative, a sovereign, to act in its name. What however does Hobbes mean by ‘state’? Fleming maintains that the state is a representee, represented vicariously, and authorised by a multitude. This may be correct depending on our background premises, but it cannot be the full answer since it is requisite to explain how (if at all) the state differs in normative terms from cognate social groupings such as families, tribes, or crowds. My reading is as follows. The Hobbesian state constitutes a political and legal authority based on the original authority of a multitude of individuals. In this original (non-political) sense, authority is a ‘right of doing any action’ (L XVI, 218 [81]). Hobbes’s emphasis is on action, but equallyon the concept of a right. Authorisation is not just an act of appointing a representative; it involves a transfer of rights or an act of bringing about a change in the normative status of oneself and others. The vehicle for effecting this normative change is covenant. For Hobbes, individuals covenant to establish a civil state, and this state—comprising a system of coercive rules or laws—constitutes a common, final, and exclusive authority over a realm. As a system of rules it assigns novel statuses and rights to the covenanting individuals turning them into citizens and subjects. But in this act, the state is itself constituted as a bearer of rights vis-à-vis its subjects. Hobbes develops this argument in Part II of Leviathan (Chapters XVIII (see L XVII, 234 [91] on rules), XXII–XXIV, XXVI, and XXX). So interpreted, the Hobbesian state does not merely transmit pre-existing rights, but creates rights where none existed before. As such it is sui generis and therefore distinct from ordinary actors or incapable agents. The state is an artificial person—it is a person because it has unity, and this kind of unity whereby the many become one can only be attained artificially, by means of civil law as opposed to a physical fusion of the many (see Oakeshott 1975, 29). The Hobbesian state then is not artificial in lieu of its mode of representation (though of course it is also that), but because its essence is civil law. Civil law for Hobbes is the product of artifice, whose most significant manifestation is the civil state.

My first question to the present colloquium is why has the author decided to bracket Hobbes’s theory of the state in normative terms (one version of which I outlined above), and to downplay the attendant normative relation of authorisation (as focused on rights)? The second question is what is the relation between authorisation and representation? In the beginning of the book the author, in the footsteps of Skinner and Runciman, seems to prioritise the relation of representation in explicating Hobbes’s state as representee, or as persona ficta, but in Chapter 5 we encounter the statement: ‘Authorization is the ultimate source of many of the state’s responsibilities’ (163; emphasis added). Can the book’s central argument—that state responsibility may permissibly be distributed to the subjects—go through without taking seriously the concept of authorisation (considering that on Hobbes’s premises the subjects authorise their own state and sovereign)?

Dr Silviya Lechner (King’s College, London)

References

Hobbes, Thomas (1968 [1651]) Leviathan, ed. C.B. Macpherson. London: Penguin.

Oakeshott, Michael (1975) Introduction to Leviathan. In Hobbes on Civil Association, 1–79. Indianapolis: Liberty Fund.

Skinner, Quentin (1978) The Foundations of Modern Political Thought, Vol. II (The Age of Reformation). Cambridge: Cambridge University Press.

Skinner, Quentin (1999) The Purely Artificial Person of the State. The Journal of Political Philosophy 7 (1): 1–29.

Runciman, David (2000) What Kind of Person is Hobbes’s State? A Reply to Skinner. The Journal of Political Philosophy 8 (2): 268–278.

Runciman, David (2007) The Paradox of Political Representation. The Journal of Political Philosophy 15 (1): 93–114.

Runciman, David (2009) Hobbes’s Theory of Representation: Anti-Democratic or Proto-Democratic? In Political Representation, eds. Ian Shapiro, Susan C. Stokes, Elisabeth J. Wood, and Alexander S. Kirshner, 15–34. Cambridge: Cambridge University Press.


[1] References to Hobbes’s Leviathan (1968 [1651]) [abbreviated as ‘L’] are cited by chapter, page number of the 1968 edition, followed by the pagination of the 1651 ‘Head’ edition’ in square brackets.