Title: A Genealogy of Liberty
Presented by: Quentin Skinner
Presented on: November 9, 2011
Presented at: Nicholas D. Chabraja Center for Historical Studies, Northwestern University
- This transcript is a highly sanitised version.
- Sections in square brackets are (mainly) digressions which can be skipped. Those between curly brackets are additions made to ensure proper grammatical sense.
- The video lecture is embedded at the end of the post.
In the modern world, we are all citizens of specific states and I am going to talk about the state. But before I get going, I do need to make three remarks as quickly as possible of a methodological kind. First, it seems to me that the best way — not the only way but the surest way — of getting at concepts is through their verbal expression and that is what I am going to do. So, I am very specifically going to talk — this is really important to my talk — historically about just those writers who talked not about the concept of the state but who talked about the ‘state’, who used that term to express a concept. Of course, you could be in possession of the concept without being in possession of the term. That raises large questions and I am evading them very deliberately. I am talking about those people who talked about the ‘state’. The second point — and this is to keep the material under control — (is that) I am going to concentrate exclusively on the Anglophone tradition. And this happens to be a story in which the Anglophone tradition, especially the contemporary American tradition, is of supreme importance.
Third, I am going to talk genealogically. If you ask why, I feel strongly that — [I have goten into so many muddles about this and genealogy has been a method that has really helped me. I want to say (that)] — it is not a choice. That with certain concepts — and the state is one of those — there’s no option but to proceed genealogically. And the reason that this method is forced upon us is that there has never been any agreed concept to which the term state has referred. And that is one of the things that I am going to try to show. It continues to be an aspiration in political science to provide neutral operative definitions of the state. This is an illusion. That cannot be done. Everything you’ll find out to have done is ideological. And the danger of political science becoming ideology is ever present and a way to avoid it is by genealogy.
What I am really saying is that what genealogy shows you is that there is no essence to the concept of the state. It doesn’t have natural boundaries. It has been in continuous contestation how we should think about this concept no less than the closely associated concept of political liberty. That is not at all to say that one understanding of the term and thus of the concept has not come to predominate because of course it has. There is a very strong tendency in recent times, and I think especially in Anglophone thought, to accept that the term state is simply a synonym for government. The issue is whether our political thinking has impoverished as a result of that. A genealogy of the state will bring to light other highly normative understandings of the state. Is there any loss in our having abandoned those? Or does genealogy free us to reimagine the state in more fruitful terms than the ways that we currently talk about it. I think that the answer to that has got to be yes and I am going to return to that explicitly at the end.
But let me first turn to my genealogy. I very aware that the strands of thinking that I am going to talk about are in origin in the early modern world and they are, by origin, mainly European traditions of political theory. We reach an international stage and we reach the shores of the United States about halfway through the lecture. Genealogies don’t have clear beginnings. But the nearest to a clear beginning in talking about the genealogy of the state — the earliest moment, as far as I can see, in which you come upon widespread discussions of statehood, the state, the powers of the state: that whole vocabulary — is at sometime around the very end of the 16th and the beginning of the 17th centuries. That is more or less firm.
The Absolutist View
Where we begin is that the term state in this first period is used to refer to a specific type of civil association in which the community of people live in subject to the sovereign authority of a recognised ruling group, usually a monarch, who is designated as head of state. That is not to say that, in this period, the term state is the only or even the most usual one used to refer to this kind of civil association. Some writers prefer to speak about realms; some even talked about nations in this context. But eventually the concept of the state and its expression in those terms wins out. And it does so by quite a simple process which is a kind of semantic drift — this is very common in terms which have very strong normative content — (which) works as follows: in Renaissance discussions about advice to princes which is a very large scale genre in Renaissance political philosophy, the most famous example being Machiavelli’s Il Principe (1513)… what these discussions are about, and this includes Machiavelli, is how a ruler, a prince, a principe, should act in order to maintain his state. This phrase echoes through Machiavelli. An example is mantenere lo stato which means your status. The question is how should you act in order to maintain your status, your standing, your stato, your state as a prince.
It is generally agreed that one of the things that you got to do as a prince if you are going to maintain your standing, your status, your stato as a prince, is to look after the body of the people. Even Machiavelli is extremely keen on that: if you don’t do that you’ll be hated; if you are hated, you will lose your stato… you will lose your position as a prince. As the French have it, there will be a coup d’etat, a blow against your state i.e. your state as a ruler, your condition as a ruler [etat, stato, just meaning your condition, status].
But if you can’t hope to maintain your status as a prince unless you keep the people in the body politic in good health, in security and in prosperity, then there is something that you have to maintain in order to maintain yourself: you have to maintain that body politic in good health and prosperity. The semantic drift is that mantenere lo stato, to maintain your state, comes to mean your maintaining your position and your maintaining your position by maintaining this thing, the state. And I think the Italian language is the first one in which — stato, which is what the Italians still use as their word lo stato, meaning the state as we would say — we see that semantic drift. It then happens very quickly in French and in English. And much later in German (staat).
So, the term is originally used as a head–body metaphor. There is a head of state and he is head of the body of the state. Now, there is a very celebrated work of history that we come upon at exactly this moment, Ernst Kantorowicz’s masterpiece, The King’s Two Bodies. Kantorowicz’s saw himself in this great work as tracing the emergence of the modern idea of the state. And he traced it in the idea which you find in late 16th century English discussions, specifically English law discussions, that kings have two bodies. They have the natural body but they also have an official body as head of state.
I am going to call this view the Absolutist View of the state. It is the idea that the proper metaphor for thinking of the state is that it is the head of a body: the body is the state; the head is the head of state, and that is the ruler. This is the first way of thinking about the state that develops in European political speculation and it develops in two strands of absolutist thought in the early modern period. On the one hand are writers on sovereignty (souveraineté, summa potestas) of whom the pioneer is Jean Bodin in the Six Books of the Commonwealth published in 1576, first translated into English as early as 1606. In the 1606 translation, Bodin begins by asking, and I quote it: “What makes a city or state?” And Bodin answers: “It is not the walls and not the subjects that make a city or a state but the union of the people in submission to a single sovereign as head of state”. Absolutely unambiguous and an extremely influential statement there.
The other strand of thinking in which this head–body imagery is taken just as seriously is in the theory which we’ve tended to call the Divine Right of Kings. (It is found) in the speeches of some monarchs themselves and most notably, King James I of Great Britain who is very fond of haranguing his own parliament on his role.He tells his parliament in the speech of 1605 and I quote: “Kings are appointed by god himself with supreme authority over their states, over the whole body of our state.” You’ve got that semantic drift but it has moved because he is head of our state and that is what gives him the state of being a king.
Kantorowicz supposes that with those two strands of absolutism, we have the modern concept of the state: the idea of a head of state and the body of which he is the head. The absolutist view is one view — [Kantorowicz was writing in Germany in the 1930s and that is certainly one view of the state and in our current vocabulary we speak of people as heads of state]— but I am bound to say, although this is to criticize a masterwork of history, that Kantorowicz should have continued. He stops just around 1600 and if you do that, then this is indeed the only concept of the state that was current in political speculation. He would only have to go on two generations to find it vehemently denounced by a completely different and rival view about the state to which I now want to turn.
The Populist View
I am going to call this rival view the Populist view of the state as opposed to the Absolutist View. Populists agree that when we speak about the state we are referring to a civil union: that is to say, a union of people under a government. But what it is to be a populist in my terminology is to repudiate the head–body metaphor. You want to say: The people is not this kind of torso without a head so that it can’t act without a head. Of course, that is the persuasive force of the metaphor: without the head, the body can’t act. What the populist wants to say is that sovereignty — they are all talking about sovereignty and the state is sovereign — is possessed not by the head but by the body. The body of the people is itself sovereign. There’s the rival claim. You don’t have to have a head. The body is the sovereign power.
So, you find the term state being used in this rival way to refer not to a sovereign head of a body but to a sovereign body. Who speaks in those terms? We need to single out two completely distinct but convergent views about the state which I am calling Populist. First, although early modern Europe is largely monarchical — [it is amazing how Europe is still monarchical: Scandinavia, Britain, Netherlands, there it all is] — but there were some very important republics and they have their own tradition of political speculation, especially in Florence and in Venice in the 16th century, not merely describing institutions of republics but vindicating the idea of the Populist theory of the state. And I suppose the most important of all these treatises in the 16th century is Machiavelli’s Discorsi written about the idea of the Florentine republic. Just to say a word about Machiavelli, he grounds his preference for self-governing republics — [which is very strong: although he wrote a book about the prince, really his major work is vindication of self-governing republicanism] — on a view about how it is possible to remain free as a citizen of a self-governing state.
And the view of freedom that he puts forward — [it is written all over the Discourses] — is the one according to which you lose your freedom if you become dependent upon an arbitrary will. But of course, what Machiavelli wants to say — [Discourse II, the two opening chapters, that is the crucial passage] — is that if you live under a monarchy, you do live in dependence upon somebody’s arbitrary will. So, all monarchies enslave. If you want to live a vivere libero — as he wants to say in the Italian, if you want to live a free way of life — then you must live without dependence politically and that can only be achieved if you rule yourself.
What is the constitution under which you can rule yourself? Only a very broad based republicanism. And that story becomes fantastically important in its Anglophone version in James Harrington and then Algernon Sidney and for the Founding Fathers of the United States. That is why in Early modern political discourse republics are called free state to contrast them with monarchies; the vivere libero, because you can live free if and only if you live in a state by contrast with a monarchy i.e. a free state. So, there’s another very important pun: if you want to live in a free state, you’ve got to live in a free state.
Secondly and yet more important as a challenge to view that I began with is the challenge that arises actually out of the religious wars in France — [and then you could think of the English Revolution of the 17th century maybe as the last of the great religious wars of early modern Europe] — in which the attempt is being made to stop the forcible imposition of just one religion upon bodies of people.
The way in which that politics was challenged, first in France and then in Great Britain, was to insist that although governments may be invested with sovereign power, such sovereignty was originally the property of the people. So, you get this contractarian tradition emerging in which what is envisaged is an ‘as if’ story — of course, but there’s a thought experiment going on here — that if you envisage us without government, how are we? You’d have a body of the people, a society or societas of people and they would of course have all power to dispose of themselves as they wish. Now, they can set up any form of government they want but the governments they set up are mere delegates of their sovereign authority and if they find that those delegates are not acting for the good of the sovereign body, they can remove them.
So, there you have the whole structure of radical contractarianism running right through to John Locke at the end of the 17th century in the Anglophone tradition where tyranny is the usurpation of the sovereign power, the original sovereign power that is granted for good use to the common good to a government. The property of sovereignty is here seen as the property of the people and the people are equated with the state. That is what you find in the most important founding text of this tradition, the so-called Vindication Against Tyranny, the Vindiciae Contra Tyrannos, published at the height of the French religious wars as an attack on French monarchy in 1579. And it is the light of those same arguments that travels to Great Britain and becomes the foundation of the parliamentarian case against the Stuart monarchy in the 1640s and in 1649 when the British not only execute their king but abolish the institution of monarchy by an act of parliament — [they abolished monarchy forever in Great Britain and it lasted 11 years but they had a republic]. The great exponent of this exact view is John Milton whom we know as one of the greatest poets in the English language but he was also secretary to Oliver Cromwell and who was employed to write propaganda in favour of this radical image of the need to live in a free state and he publishes only months after the execution of the king his amazing tract called The Tenure of Kings and Majesties — here, we really do come to some of the texts which the Founding Fathers treated with such reverence especially this one. Of course, that is a joke in American universities because the point is kings and majesties don’t have tenure. You can get rid of them whenever you want. The tenure just means that they are tenants, they are not free holders. Who is the free holder? We are the free holders and I quote: “Sovereign power is held at all times by the body of the people or state nor can it be taken from them without a violation of their natural birth-right and it leaves them the authority to remove from power any ruler they judge to be a rebel to law and an enemy to the state.” So, there’s the Populist theory of the state. But what I want next to note is that no sooner has that vindicated the evolutionary in France and then the revolutionary movement in England than it in turn is vehemently attacked and we move into a third phase of the genealogy.
The Fictional View
Now, there are two prongs to this attack. One is that a number of writers just go back to the story about the Diving Right of Kings. The greatest exponent of that ideology, Sir Robert Filmer in the Anglophone tradition, has a final burst of energy after 1649 and writes his most important treatises between 1649 and 1651 — [not the one that John Locke replies to, Patriarcha, that is not published until much later] — denouncing the republic from the position of Divine Right theory. But I am more interested in the fact that there are some writers who denounce both the Absolutist theory and the Populist theory. They have nothing to do with either of these rival views about the state and the most important of those writers writing in the immediate aftermath of the English revolution — [think of this extraordinary confluence with John Milton who is his archenemy] — is Thomas Hobbes. And I want to talk about Hobbes’ theory of the state. It is his greatest contribution to Anglophone philosophy and it turned out to be fantastically influential. It is somewhat intricate and it will take me a few minutes to give you an exposition of it because curiously, it is not part of his philosophy that I think has been well handled in the voluminous literature.
Hobbes opens his Leviathan — [1651, you see he writes at breakneck speed. He doesn’t begin writing until 1649. After the regicide, he has it published. He writes it in a year! He has it published by April 1651] — (or at least) the political part, Chapter XIII, by reflecting on what he calls the natural condition of mankind. And what that chapter is, and this isn’t often enough said, is a scathing attack on the populist theory of the state. The Populist theory of the state says, by origin, that there was a society of people who had all sovereign power. Hobbes’ way of attacking that is to say that it can’t be that there is society of people with all sovereign power because there wasn’t a society. The natural condition of mankind is not a social condition. It is an anti-social condition. And he uses that vocabulary, he says — [of course, he’s famous for saying that it is nasty, brutish and short; it is a condition of war] — it is a non-social condition. It is asocial.
What’s wrong with the populist theory of the state is that it is grounded on an illusion, according to Hobbes. There’s no such thing as a body of the people. That is just a construction. There’s no such thing in nature. In nature, there’s just each one of us at war with everyone else. So, there was no original possession of sovereignty by the body of the people because there was no original body of the people. Hobbes is a complete enemy of the Populist theory of the state. But also, a complete enemy of the Divine Right of Kings. He doesn’t like anyone! Because what Hobbes wants to say about sovereigns is that they’re just representatives. You’ll never find in Hobbes any of this genuflection towards monarchs — indeed he accepts a republic — that you find in theories of Divine Right. For Hobbes, there is no lawful authority unless you consent to it. He is a radical thinker. No lawful authority unless you have given your consent. And it has to be explicit consent. You have to have a covenant before you can become a subject. So, the notion that your subjection is owed to God having placed a political apparatus from heaven upon earth — Filmer’s kind of story — is, for Hobbes, a mere superstition. Politics is artifice; we make it. It is not God given; it is man-made. That fundamental distinction is what we are seeing in the mid-17th century.
So, Hobbes repudiates both theories of the state and he has a rival view. His fundamental view is that a sovereign is just an authorised representative. That is what he wants you to understand. Sovereigns are very important: he’s an absolutist, no question. But sovereigns are just authorised representatives. So, he has to begin by telling us what he means by an authorised representative. What does it mean to be a representative? He has a very good answer. He is not interested in the visual notion of representation at all. For Hobbes, a representative is just like a court of law. A representative is someone whom you have authorised to speak in your name. Not just on your behalf but in your name. And the importance of the distinction is that when I authorise someone — [you know, I am in a court of law and I have committed a murder, this is a fiction of course, and I say to my counsel: Look, get me off. I don’t know how to do this. Speak for me. That is representation. And the judge says to me: Who represents you? I say: He’s the man. Listen to him. That is representation. It is as simple as that for Hobbes. It has to be an authorisation. I have to say: He is my representative. Now, what’s crucial about the notion is that] — he is not just speaking on my behalf but that he is speaking as me; his speaking in my name is that his actions are attributable to me. I am the author of his actions. So, I authorise him. I can only authorise him if I am his author. So, his actions as a representative are attributable to me as the represented person. That is sovereignty. The sovereign is an authorised representative and we do the authorising.
Now, here’s the question: if sovereigns are authorised representatives, what’s the name of the person they represent? It is very clear in a court of law. The judge says: Who do you represent? And he (the counsel) points to me. If a sovereign is the representative, who does he represent? You can’t say he represents the body of the people because there’s no such thing as a body of the people. So, Hobbes wants you to see that it is a big puzzle. To solve the puzzle, you have to focus on Hobbes’ idea of the political covenant. What he denies is the traditional idea of the political covenant which is the body of the people on the one hand and a designated and agreed sovereign on the other and they contract with each other on (certain) terms. [You can be king on (the) condition that ____. And in the famous Spanish oath which they gave to their kings, it ended with ‘and if not, not’ meaning you can do this if you are the king but if you (don’t) you’re not the king. That was the form of the oath.] That contract, Hobbes says, is just based on an illusion that the people is a legal entity. Of course, it is not. So, how can there be a covenant? Hobbes says there can be a covenant between each of us. [This is how you get a representative. You agree that way on a representative — you covenant with you and you and… or it could be some group of you or you could covenant… that is us, all of us are sovereign, that is called democracy that you can do; Hobbes thinks that is not a very clever idea because there’s too many of us but there’s nothing wrong with having a democracy, it is just that it is very hard to operate.] You covenant with each other as to choose and designate someone to be a representative. That analysis brings Hobbes to his central contention about the implications of the political covenant. And here’s the implication: when you do that (i.e. make the covenant and make a person the authorised representative) — [you each agree with the other that it is me, that is one possibility… probably not very wise but you might do that… by the way Hobbes has a mild preference for sovereigns being women because he says women are more prudent than men and that is what you want in a sovereign but men are stronger and that is why you get got kings. Here is what happens when you make that decision, man or woman, if it is a monarchy now you have decided. In making that person your authorised representative, you do something to yourselves] — from being a multitude, you (become) one, e pluribus unum. You were a multitude and now you’re one. What does that mean? It means you have one will because there’s one person here but his will now counts as your will because you authorised him to speak in your name and act in your name. His will in action is yours but that means that you now have one will. But if you have one will, then you are one person. I quote Hobbes: “A multitude of men are made one person when they are by one person represented”.
Now, I can go back to my original question. If the sovereign is a representative, what’s the name of the person he represents? Because it has got to be a person you’re representing. You can’t represent a multitude because they have a multitude of wills. You can only represent one will; one person. Hobbes gives an epoch-making answer to this question. He says: The person whom the sovereign represents is the person of the state. I quote: “The multitude so united in one person is called a Common-wealth, in Latin, civitas.” So, the sovereign represents the person of the state and that is what Hobbes calls it: the person of the state, quoting and translating Cicero, persona civitatis. Now, this person, Hobbes says, is a fiction. He’s not a real person. The state is not a real person. The state is a person, as Hobbes says, by fiction but, nevertheless, this fictional person is the sovereign, is the seat of sovereignty. The sovereign, the person we call the sovereign, is just a representative of this person. So, Hobbes categorically distinguishes the state not merely from the sovereign, who is the representative of the state, but also from the unity of the people, which changes all the time. Sovereigns come and go, individual members of the multitude or even the unus of the people are born and die, that is never unified, but the person of the state is always there. We have created, Hobbes says, a person with “an artificial eternity of life”. Or he says… it doesn’t actually work, states are not eternal but you want them to be eternal. You want them to be an artificial eternity.
Kantorowicz would say, and he does mention Hobbes, that this is precisely what the claims about kings in virtue of their having two bodies. So, Kantorowicz wants Hobbes to be in his story. He thinks it is a two-bodied story but if you have been following me, Kantorowicz is completely wrong here because we have got three bodies and that is what’s so crucial. This is why it is a separate theory. The first is the body of the sovereign, the man or woman in his or her natural person, that is to say of a certain age, of a certain demeanour [and that is actually quite important because kings should look like kings… the problem with Charles I was that he was only 4 foot 11; did you know that? It was a bit of a problem. Van Dyck had to be brought in with these enormous horses and then he was on top of the horses to make him look alright. So, there’s the king in his natural person.] But the king is sovereign, of course. So, he has, what Hobbes calls, an artificial person; that is to say, he is a representative. But he is a representative of a third person, it is a three-person story because the person he represents is the person of the state.
I am going to call this the Fictional theory of the state and before I leave it — [Hobbes’ great founding, it is a great moment in early modern political philosophy; massively taken up, as we are about to see, in continental European public law] — I want to underline two points about it. Notice that if you ask: What is the seat of sovereignty? On this account, the seat of sovereignty is the state not the sovereign although we call him/her sovereign. Secondly, notice that sovereigns are people with offices; they are representatives and just like in the court of law (where) my counsel has the duty to try to get me off, they have clear duties — Hobbes has a whole chapter on the duties of the sovereign. And what is the duty of the sovereign? The duty of the sovereign is to look after not the people — [you can’t look after all the people because they have different wills and different aspirations, but you can and you must look after the person of the people] — but to look after the common good. Amongst the multitude, there is this person, there are things we will as citizens, there is a common good, there is a public interest. And the fundamental duty of the sovereign is to act in government such that all government actions are for the common good. If they are not, they are not acts of state because they do not procure the good of the person of the people. So, this is a view about what makes governments legitimate and that is what’s crucial about it. Government actions may or may not be legitimate. They are legitimate if and only if they are for the benefit of the person of the state i.e., for the common good of the people.
Alright, there’s Hobbes’ Fictional theory, I’ll call it. It is quite difficult to understand. It is quite intricate. I think it has been poorly understood in literature. But it was extremely well understood in European public law. And a group of absolutely crucial European writers on the jus gentium come forward with this theory. The first and in some ways the most important is Samuel Pufendorf in his great treatise on international law, the De jure naturae et gentium, 1672, in which he says: “My study is based on Mr. Hobbes’ ingenious draft of the person of the state.” I am quoting from the Eglish translation of 1717. I quote Pufendorf again: “The state exists as one person endowed with its own understanding and will and performs particular acts distinct from those of the private members who make up its subjects. It is true that the state is just a moral person.” What Rousseau is going to call a personne morale, quoting Pufendorf. “So, cannot act in its own name and stands in need of being represented. But the duty of the representative is to preserve the safety and tranquillity of the state which is not merely the bearer of sovereignty but guarantees the legitimacy of government over time.”
Yet more important in the theory of International Relations, and indeed an absolute founder of the theory of International Relations and the greatest, according to Kant and Hegel, was Emer de Vattel in his book on the jus gentium called Le Droit des gens published in 1758, (translated into) English as quickly as 1760. I quote Vattel: “The state is a distinct moral person possessed of an understanding and a will peculiar to itself. This person is a fiction and may not act. If it is to speak and act, some agreed form of public authority must represent it. But the duty of that authority is to preserve the state i.e., the good of the people as a whole.” And that view of Pufendorf and Vattel comes into English common law and thus into American law with the extraordinary important date of 1765; (it is) beginning of the publication of Sir William Blackstone’s Commentaries on the Laws of England. These are philosophical preliminaries to that work which entirely take up this fictional theory of the state. The idea of a political contract, as Blackstone calls it, which issues in the creation of a sovereign state and he uses that vocabulary, of course. By that time, everyone is using this vocabulary. So, there’s the Fictional theory. And we have come to the mid-18th century.
Reactions to the Fictional View
But what happens now, and this is continuous dialogue I am talking about, towards the end of the 18th century (is that) this Fictional theory which holds the stage and is vital to Hegel’s Philosophy of Right — [in fact, it sort of is Hegel’s Philosophy of Right; the state as the name of a person with a real will of its own: that is the whole point taken, of course, from the tradition I have been talking about. But in the Anglophone tradition, it] — branches out very suddenly towards the end of the 18th century and an almost lethal attack is mounted on it. And the attempted murder is committed by Jeremy Bentham. Bentham’s first published work was an extraordinary violent attack on Blackstone and this whole tradition that Blackstone stood for in Bentham’s mind. The attack on the fictional theory of the state rolls forward in two successive waves. They overlap with each other but let me, for heuristic purposes, try to separate them out from each other.
And the first is associated not just with Bentham but with the rise of classical utilitarianism. Bentham’s first work, the Fragment on Government of 1776, is his scornful critique of the whole discussion in Blackstone’s philosophical preliminaries about the state of nature, the contract, the forming of the person of the state. What does Bentham want to say about this? I quote: “The season of fictions is over. The time has come to ground legal argument on observable facts about real individuals. And especially in their capacity for experiencing in relation to political power, the pain of restraint and the pleasure of liberty.” So, Bentham’s response to this discussion of the state of nature, the body of the people, the creation of the state is to say: It is not that I disagree with that. It is completely meaningless. There’s nothing to disagree with it. It is complete rubbish. It is an extraordinary violent attack on this whole tradition to say that fictions have no place in the law. And that is the whole burden of Utilitarian jurisprudence. No fictions in the law. And, of course, the greatest fiction in law, in public law, at the time was the fiction of the state as a person. That attack has an incredible influence on early utilitarian thought. Here’s something you can try for yourselves. Try this at home. I defy you to find in any of the early utilitarians, in James Mill, in Godwin, even in the early John Stuart Mill, any discussion of the theory of the state. They think of it as a fiction; they think they’ve got to keep away from it. The exception is John Austin’s Lectures on Jurisprudence — a classic text of Utilitarian legal philosophy published in 1853, very influential on the development of English common law and in this country in the 19th century. But Austin mentions the state in order to dismiss it. And I quote: “When we speak of the state, we must understand that we are merely referring to the actual bearer of sovereign power.” So, the state and the sovereign are just the same thing. The sovereign might be the people, it might be the monarch, or whatever you like but notice that he is already saying that the word state and the word government are just synonyms. Don’t get yourself tied up with anything fancy, is what they are telling you as strongly as possible.
It is true that in the generation after the high tide of Utilitarian legal philosophy in the mid-19th in England, there’s an interesting moment of reversal and that comes with something which also preoccupied me — very interesting moment in Anglophone political philosophy. A sudden insurgence of Hegelian theories of the state into Anglophone discourse. At the end of the 19th century, this suddenly becomes rather important. And by a curious irony, a theory which was Anglophone in origin — Hobbes’ theory of the state as the name of a person which will become central to Hegel’s theory of the Reichstaat — is brought back into Anglophone discourse as Hegelian theory and the leading exponent of it is Bernard Bosanquet in his book The Philosophical Theory of the State, 1899. The Philosophical Theory of the State, according to Bosanquet, is dual. This is where — of course he is a real Hegelian and not a Hobbesian — the state is the name of a person, a separate person. It is separate from the person. It is separate from the people. But it is not the name of a fictional person. It is the name of a real person. The state is a real person with a real will of its own and the will of the state is your rational will. So, it gets very sinister at this moment. If you’re thinking rationally, you will obey the state because you’ll thereby be obeying your own true will. And that in German philosophy… it is very interesting that Carl Schmitt uses this way of thinking as a defence of Nazism in his book on the state in the 1930s. His hero is Hobbes. He is quite right about that. This is Hobbes’ theory. But, of course, it is seen as a Hegelian theory. The distinction is that Hobbes is quite clear that the state is a fiction. Whereas this tradition is quite clear the state is a real person. By the way, what do we mean by a real person? Philip Pettit has just written an amazing book on the identity of corporate persons in which he thinks that corporate persons are real persons and that the state is a corporate person. And is that a real person? We really have to think what we mean by a person before we dismiss too easily the notion that the state might be the name of a real person.
What happened in Anglophone political discourse is — I am sure you know all of this — that this is regarded as really obvious and very sinister nonsense, and there is a huge reaction especially after the First World War. Leonard Hobhouse, in his book The Metaphysical Theory of the State, which is a kind of satire on Bosanquet, says: I read this book in London and as the bombs were dropping I saw myself realise the folly of the Hegelian theory of the state. There’s the idea of the state as a real person and look what it did to London. “It is positively sinister,” I am now quoting Hobhouse “to think of the state as anything more than the name of a governmental organisation and its apparatus of power. When we speak of the powers of the state, we are simply referring to acts of government.” So, there it is. So too does Harold Laski, very influential in the early 20th century, say in his major work, Authority in the Modern State. I quote: “When we talk about the state, we are merely referring,” now he’s been reading Weber, listen to this, “to a prevailing system of sovereign authority together with an associated apparatus of bureaucracy and coercive force which operates over some determinate territory.” So, there’s Weber’s definition of the state, an attempt to insulate it and make it purely operational. So, there’s the first wave of the attack on the idea of the state as a person.
The second wave of the attack that I want to talk about was already well underway by this time. Notice that Laski in 1919 is still content to assume something that no theorist of the state that I have talked about so far has ever doubted which is states are sovereign bodies. But by the time Laski was writing, it was exactly that union of the notion of the state and the notion of sovereignty which was beginning to be cast in serious doubt. If you think of early modern theories of sovereignty in relation to the theory of the state, what is the theory of sovereignty the Bodin initiates that Hobbes takes up quite explicitly from Bodin, is that what it means to be sovereign is to be able to command without being commanded. That is Bodin’s epigram. That is sovereignty. So, it is unitary. And it is absolute. And it is lodged with the state. The e’tat of the state. The state commands but it is not commanded within its territory. That is sovereignty.
It began to be noted after the First World War that if that is sovereignty then states are not sovereign. And the best example in here, the United States’ President played an extraordinary role, is the establishment by the League of Nations in 1922 of the Court of International Justice because that court — of course after the First World War which in a way had been sort of a civil war — was there in order to question the sovereignty of individual states and to insist that there was a legal authority threat had the right to infringe the legal sovereignty of states with its own superior jurisdiction. Reflecting on these changes, what you then find is that a growing number of political theorists in the 20s and 30s disjoin the notion of sovereignty from the state. They may be states but they can’t be sovereign, is what they are saying. I quote, for example A.D. Lindsay, a very influential programmatic statement of this in 1920. I quote: “The first thing to be said about the doctrine of the independent sovereign state is the political fact obviously outrun it We have lived on into a world where the state as the be all and end all of political theory is finally out of date. We now stand in need of a theory focussed instead in the international arena and on the prospects of a world state.”
If you think of the closing decades of the 20th century, you find the decline and the fall of the sovereign state as an absolute cliché of political theory and International Relations theory alike. And in the last decades of the 20th century, a large literature especially in International Relations theory emerges. Some really important figures, Richard Falk, for example, repeatedly draw our attention to the discrediting of the idea of state sovereignty. What discredited it? Well, various obvious things are pointed to, the most obvious being the rise of multinational corporations and other institutions of international reach. And multinational corporations especially in the developing world with their power to control investment and conditions of employment are visibly able to coerce local states into doing what they want and regularly demand special deals in relation to employment and, indeed nowadays, in relation to laws about the conservation of the local environment because if these special deals are not given, they will withdraw their capital. The state is powerless in the face of these in the developing world. The notion of state sovereignty has completely evaporated in the face of such international agencies.
But as well as these agencies, what we are continually observing now in our world is the extraordinary development of an overarching ideal of Human Rights (which) has played a very important role in the increasing development of international legal organisations. [The United States has rather resisted these and you are not actually signatories to the Convention on Human Rights and to the law that underpins that because … let’s not go into that. But all other civilised states are. That is all I can say.] The crucial thing about this is that this is a jurisdiction which totally supervenes upon the legal jurisdictions of the member states. It totally supervenes upon it. The International Convention on Human Rights, for example, totally supervenes upon the common law of the United Kingdom and they are regularly in collision. It is very important that… it is a highly reformist thing having a convention on human rights because the convention on Human Rights prevents the discrimination for example on grounds of sex or age or religion age so you can’t have compulsory retirement, sex and of course minimum wages. All of these are scheduled as Human Rights. All of these is jurisprudence which is international.
So, what has become of the sovereign state? It looks as if it has evaporated. And so, so great a writer as Richard Falk says, and I quote him: “The old statist categories that have informed diplomacy and statecraft for centuries are now so evidently superseded that we shall soon cease to describe political life in these terms at all. The power of individual states is in terminal decline. The state is shrinking, retreating, fading into the shadows and the concept has lost any theoretical significance.” Frank Ankersmit in an article last year — an extremely influential the Dutch political theorist — concluded, and I quote him, just to round of before I tell the moral of this tale: “Now, for the first time in more than half a millennium, the state is on the way out.” So, that was written last year and my genealogy comes down to today.
From Genealogy to Critique
I want to turn now from genealogy to critique. Genealogy is always critique. So, what is the relationship in this case? Isn’t it striking that we have an extremely complex intellectual heritage in talking about the state. And we have chosen to confront it in this extremely etiolated way in which what we want to say is: Well, it is just a way of talking about government if nothing else. This seems to be deeply unsatisfactory. Of course, states are no longer sovereign but don’t you feel that this announcement of the death of the state is a little bit premature. I mean the world’s leading states remain the principal actors on the international stage. How can that be denied? Furthermore, they are unquestionably the most significant political actors within their territories at least in the developed world. [It is a very different matter in the less developed world. But here states are more aggressive than they used to be. They’re patrolling borders with increasing attention and are maintaining unparalleled levels of surveillance and information about their citizens. They are also interventionist in interesting ways. I was in the United States under the Bush regime in September 2008 when the state — although he didn’t call it that, he called it a republic— stepped forward as the lender of last resort to save capitalism. It had to be done. Meanwhile, these states continue to print money; I mean more and more of it. They continue to impose taxes, the enforce contracts, to engage in wars, a lot of wars, to imprison and otherwise penalise errant citizens, they legislate with an unparalleled degree of complexity. What other institution in the world except states does any of those things legally? None. So, what is all this stuff about the end of the state? I mean it is pure inattentiveness. Where are these people living?
The state exists. But the question that remains is: Are we operating with the right understanding of the state? Have we lost something serious in political reflection by simply equating state with government? What about the Absolutist Theory of the state? What about the Populist View of the state? What about the Fictional View of the state?
I am quite clear that the Absolutist and the Populist View of the state are of no conceptual interest for us here and now. But the Fictional View of the state, in my view, should have never been set aside. And that is a point that is being made now by a number of legal and political philosophers — Janet Mclean, Runciman, Philip Pettit, Brian Trainor. A number of legal and political and political philosophers just in these last four or five years have started to say that we really cannot do without the idea of the state as a fictional person. I completely agree.
I’ll make two points. One arises from the fact that, as we saw, a key contention of the fictional theory is that the person of the state is by intention at least immortal. It is possessed, you remember Hobbes’, with an artificial eternity of life. It seems to me that in the present state of contract law — we can imagine contract law very different, but in the present condition — I do not see how you can coherently do without that idea in talking about the actions of states. Let me take the most obvious example. It is very interesting how this example is now being talked about, it is only three years old, this example. But it is of overwhelming importance to all of us now. Something that is now being called sovereign debt. Interesting. Sovereign debt. Who owns this debt? That is the question. We have these unbelievable burdens of debt in Europe and in the United States and who is the debtor? You can’t say well it must be the body of the people. Perhaps the most important fact about 2008 in the western world was that the people were not asked. There was no contract with the people. We cannot be the debtor. Furthermore, if it is claimed that we are the debtor, then it is very important that we can’t pay. The level of debt is such that it will have to be repaid over the lifetime of our children’s children. The people cannot pay. But also, they didn’t enter into this debt. So, who is the debtor? Not the people. So alright we say: Government debt. Obviously, it is government debt. Well that would be nice. Because if the government was the contracting force when the government changes the debt goes. That would be good. But that is ridiculous. That is not going to happen. Changes of government do not produce changes of debt. That is why they are calling it sovereign debt. But sovereign debt is a very stupid way of thinking about it. It is state debt. That is the debtor. The state is the only person who can claim to be the debtor. Because the state has artificial eternity of life. We are all going to be dead long before this money is paid back if it is ever paid back. So, there must be a debtor who is there to do the paying. That can only be the person of the state.
But there is another point. And it is far more important than the first. Remember that the Fictional theory did not equate government with state because the reason it wanted to hold those apart was that it wanted to be able to judge the legitimacy of the actions of government. When we talk of the state as a fiction, we are not introducing any new material into the world. We are seeing ourselves under a special description. We are seeing ourselves as a union who have many different interests within the union but who have certain common interests. Those common interests of the people as a union are the interests of the person of the people. The person of the people is the name of the state. Government action is legal if and only if it is for the benefit of that person. And that is a view about how to judge the legitimacy of democratic governments which so powerful that I simply can’t imagine why we ever gave it up.