Lechner on Leviathan on a Leash (2)

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.

Dr Silviya Lechner (King’s College, London)

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.