I am currently working on a paper (tentatively) entitled "Deposing Leviathan: Hobbes and Locke on Grievances Against the State." What follows are some reflections related to that theme.
It is a fact of life that people frequently come into conflict in various ways: conflicts both about whether a certain action took place, and about whether that sort of action is acceptable. Thomas Hobbes calls the first of these "a question Of Fact" and the second "a question Of Right" (Leviathan ch. 15). Both Hobbes, the notorious proponent of absolute sovereignty, and John Locke, the great proponent of limited government (can you tell whose side I'm on?), agree that one of the chief reasons for forming governments is to prevent these disputes from leading to violence by setting up a competent, duly authorized, impartial authority to judge between the two parties.
On Locke's view, it is critical that absolutely no one is exempted from such judgment. There must be written laws governing disputes, and any such dispute must be submitted to impartial judgment. Where this is impossible, due either to circumstances (i.e. when someone is an immediate threat to my life) or the lack of a proper judge, or even where "an appeal to law and constituted judges lies open, but the remedy is denied by a manifest perverting of justice and a barefaced wresting of the laws, to protect or indemnify some men or party of men" (Second Treatise of Government, para. 20), an individual is free, under natural law, to prosecute his right by force if he is able. Thus any government which immunizes anyone (remember those telecoms?), even the head of state or government departments, from lawsuits or prosecution will, at least in terms of its moral legitimacy, collapse as soon as one of those individuals or groups comes into dispute with any citizen.
Hobbes, on the other hand, is a sort of moral cynic. Exactly how far his "might makes right" reasoning goes is somewhat disputed, but this much is clear: a government is to be treated as legitimate, and therefore obeyed, if it is sufficiently powerful to protect your life, no matter how oppressive, unaccountable, or unpredictable it may be. In order for a government to be sufficiently powerful, there must be absolutely unlimited sovereignty, and the judgment of the sovereign (whether it is an individual or an assembly) must, except in those cases where it is silent, substitute for the individual conscience. Nevertheless, as has been said, Hobbes too believes in the importance of submitting disputes to impartial arbitration. The difference seems to be that for Locke right is right and wrong is wrong, no matter who is doing it, whereas Hobbes believes that rules are for the little people.
The frightening thing about Leviathan, as also about Machiavelli's The Prince, is that we see it happening every day. It is well known that the American revolution was justified, at least rhetorically, largely by appeal to Lockean principles. It is probably partially as a result of this that lawsuits against the state (by which I mean the government generally, at any level) are a commonplace in American politics, and even criminal prosecution of government officials is not unheard of. Nevertheless, the Bush administration was constantly exercising this central Hobbesian line of thought: we can never be safe without an absolute sovereign. There are two Lockean questions we need to ask in response: first, will this really make us safe? and second, do we want safety under these terms? The answers, I submit, are no and no: in the first place, Locke is quite right to say that to submit to absolute sovereignty out of fear is to be "so foolish [as to] take care to avoid what mischiefs may be done by polecats or foxes, but [be] content, nay, think it safety, to be devoured by lions" (Second Treatise, para. 93). It is immeasurably easier for the United States government to harm our persons or property, to take away our rights, than it is for terrorists, or even China or Russia or whatever foreign government we might be afraid of, to do so - how, then can cutting the government loose from its restraints make use safe? Second, even if we allow that absolute submission to an absolute sovereign counts as safety because (for some reason or other) we trust the sovereign to preserve at least our life, it is surely not worth buying safety at this expense! Better to live free at the constant risk of death than to voluntarily give up one's freedom.
The Obama administration has promised to turn things around by introducing more transparency and accountability to government, declassifying more documents, and by fewer ridiculous invocations of the 'state secrets' privilege. So far, not much has materialized: we've seen only a few symbolic gestures. It does, however, take rather a lot of time and work to turn this ship around. Let us hope (against the odds) that Locke's ideal of limited government will make a comeback in this country and, in particular, that lawsuits and prosecution for illegal surveillance, imprisonment, and torture will be allowed to proceed so that the activities of the executive can be brought once again under the law.Posted by Kenny at March 18, 2009 12:23 PM
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