Thomas Hobbes and John Locke applied fundamentally similar methodologies and presuppositions to create justifications for statehood; both have a belief in a universal natural law made known to man through the exercise of reason, which leads to political theories that define the rise of states. From beginning to end, Hobbes and Locke struggle to answer the essential question: Can sovereignty be divided? Though the two authors answer this question by going through the same processes, they begin with distinct notions of the state of nature, thereby reaching divergent conclusions: two nuanced versions of the social contract. For Hobbes, sovereignty is absolutist and governance can only succeed if power is concentrated in a monarch. On the other hand, Locke envisions a radically different structure for government, with a strict division between legislative and executive forces. At a glance, it is difficult to determine which author better answers the question of sovereignty, but by comparing the warrants beneath their claims, one comes to discover that Locke is correct. Indeed, sovereignty must be divided.
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To start, one must analyze the model of undivided sovereignty. Hobbes’s argument for the state is that at some point, constituents of society made a contract amongst themselves to surrender most of their natural right up to a single man, the monarch, establishing a sovereign power in their newly formed commonwealth (Hobbes 110). By permutation, children must obey the sovereign because they are subject to their parents by the natural law, meaning subjection to the sovereign power passes on from one generation to the next (Hobbes 127-35). What constitutes a commonwealth is a group of individuals and their progeny, who are all subject to the sovereign power. This, however, begs the question of exactly what constitutes the sovereign power, since natural right can be forfeited in both different ways and in varying degrees.
Hobbes provides two answers to this question, the latter directly expanding upon the former. The first is that Hobbes defines, albeit vaguely, that sovereignty is an entity bearing the “person” (Hobbes 105-110) of those subject thereto. Second, he argues in a more concrete manner, that sovereignty is the extensive set of powers to make laws, reward and punish subjects arbitrarily, choose counselors and ministers, establish and enforce class distinctions, judge controversies, wage war and make peace, and so on (Hobbes 113-15). Hobbes claims that by giving up their “person” to the sovereign, subjects forfeit the right to make moral judgments because every act of the sovereign is ostensibly performed by the subjects. The monarch becomes the sole, absolute judge of “whatsoever he shall think necessary to be done, both beforehandâ€¦and, when peace and security are lost, for the recovery of the same” and “what opinions and doctrines are averse, and what conducing, to peace” (Hobbes 113). In other words, citizens may never criticize the sovereign, since subjects surrender their very ability to judge whether the sovereign power is acting towards the goals for which they established it.
This is a major contradiction in Hobbes’s theory, for it seems strange and inconsistent that men of the commonwealth are wise enough to establish a state for mutual benefit (Hobbes 106), but straightaway upon entering the social contract, lose the ability to accurately judge whether their condition is good or bad. Although there is such a clear inconsistency within the contract, Hobbes has a two-pronged defense ready. The first is in Chapter XVIII, where he asserts that once covenanted, men “cannot lawfully make a new covenant amongst themselves to be obedient to any other, in any thing whatsoever, without permission” from the sovereign (Hobbes 110-1). With the way that a Hobbesian social contract works, this claim makes perfect sense; if a covenant is formed by submitting one’s “person” to the sovereign, men cannot form a new covenant independent of the sovereign because they have already given their single “person”-hood up. Following the “person” argument, Hobbes introduces the idea that “â€¦because the right of bearing the person of them all is given to him they make sovereign by covenant only of one to anotherâ€¦” (Hobbes 111). The philosopher’s second defense then, is the fact that the sovereign is not party to the actual contract, which means that the monarch can never breach it, no matter the consequences. For Hobbes, the contract is the permanent transfer of “person” from a group of people to an external man, not a retractable agreement among a group of people to obey one of their party. The agreement, strangely, is only amongst the governed – their agreement is to all equally forfeit their “person” – and aligns with Hobbes’s notion that there must be an external, superior enforcer to contracts.
Yet, it is unclear why social contracts should be irrevocable: in Hobbes’s own account of contracts (Hobbes 79-88), a contract is always renounceable if the parties involved agree so, meaning there should be nothing stopping subjects from uniformly nullifying the contract. Hobbes would respond that social contracts are unique, for the subjects have given up their right to make contracts (and therefore to break them) without the sovereign’s permission within the terms. This, however, begs another question: why is the ability to make epistemological and moral judgments a necessary forfeiture to establishing the commonwealth? It doesn’t seem logical that ‘the right to break contracts’ must be a necessary forfeiture included within the “person” that one gives to the sovereign. After all, it falls under a set of negative-rights that requires a negative action (IE, a violation of the terms of contract) to occur before it can be used. Hobbes simply refuses to acknowledge the binary choice he creates – between civil war and ‘good’ government – is specious at best. The agreement to forfeit “person” is made equally amongst subjects to escape the state of nature, but even if the sovereign is not a part of the contract, the fact that a citizen doesn’t receive the benefits termed within the contract ought to justify breaking the contract because other citizens may be receiving those benefits. If so, wouldn’t it be just for a subject to break the contract, not with the sovereign, but with other subjects?
Moving on from Hobbes’s derivation of sovereignty, one comes upon his formulation of sovereignty, the terms of his social contract. What is most shocking is that sovereignty is indivisible (Hobbes 115): the foundational elements of rule cannot be separated. All the powers of sovereignty must reside in the same body. A division of government, to Hobbes, would be redundant at best. From a theoretical point of view, when push comes to shove, a part of government, namely whichever has control of the army, will be revealed as the real holder of sovereign power precisely because it can seize control of the other powers. However, control of the army is nonexistent without the ability to fund it, so taxing and the coining of money is also essential. Imagine a scenario of rebellion or invasion in a divided government: an external force capable of protecting the taxing/treasury department would eventually rout the branch that controls the military. In order to ensure a stable government, then, it would be necessary to concentrate power at one locus – using the example of the military – any division would allow for opposing factions to gut one another, albeit indecisively. Combining the fact that sovereignty is indivisible with the fact that the social contract is made amongst subjects (that there is no bond between subjects and the sovereign), one arrives at Hobbes’s insistence that rebellion is never justifiable. Sovereignty is located in a person and not obedience to a person, so any repudiation of that obedience cannot dissolve the bond of sovereignty, for there is no bond to begin with.
Nevertheless, this descriptive account of separating sovereign powers is not a normative claim that it ought not be done. This is perhaps Hobbes’s biggest mistake, for he believes that “when, therefore, these two powers oppose one another, the commonwealth cannot but be in great danger of civil war and dissolution,” for example, that “the civil authorityâ€¦and the spiritual” inevitably clash if divided (Hobbes 216). That is, we ‘ought’ not separate the two, for sovereignty is conceived of as something that one simply has, meaning several ‘branches’ of government would constantly be in contest for ‘possession’ of sovereignty. However, this is an excellent example of the is-ought fallacy, for Hobbes bases the fact that historically, a division of government has always resulted in a collapse to monarchy, and attempts to re-justify the existing norms. The fact that civil and spiritual authority have historically clashed does not mean that they cannot avoid conflict in the future. If so, then Hobbes’s reason that they ought be combined falls apart. In essence, his claim is not normative, but only descriptive.
Locke begins his attack on Hobbes’s concept of sovereignty by advancing a different conception of the state of nature. For Hobbes, in the state of nature “â€¦it is manifest that during the time men live without a common power to keep them all in awe, they are in that condition which is called war” (Hobbes 76), where “â€¦nothing can be unjust” for “where there is no common power, there is no law; where no law, no injustice” (Hobbes 78). It is in Chapter XIII that he famously notes that the life of man is “solitary, poor, nasty, brutish, and short,” a product of the “condition of warâ€¦(in which case everyone is governed by his own reasonâ€¦)â€¦[where] man has a right to everything, even to one another’s body” (Hobbes 80). It is from this anarchic view that Hobbes departs to create a theory of absolutist sovereignty. Individual rights, ironically, conflict to the point where there are no rights in the state of nature. To solve this problem, Hobbes’s model forfeits “person” to an individual, because even two individuals – two rulers – with “person” will have conflicting rights claims.
On the other hand, Locke paints a calmer picture of the state of nature, arguing that “the state of nature has a law of nature to govern it, whichâ€¦teaches all mankindâ€¦that being all equal and independent, no one ought to harm another in his life, health, liberty, or possessions” (Locke 9). Locke attack on Hobbes’s descriptive analysis of the state of nature is particularly damning because it has never occurred. Locke furthers that his notion of the state of nature is historical, that great societies began in the way that his theory described. He cites that the “beginning of Rome and Venice were by the uniting of several free and independent of one another, amongst whom there was no natural superiority or subjection” (Locke 54). This is because Locke believes that this moral nature has been instilled in humanity by an “infinitely wise makerâ€¦sharing all in one community of nature, there cannot be supposed any such subordination” (Locke 9). Unlike Hobbes, who believes there is no ethical frame for punishment during the state of nature, Locke argues that “transgressing the law of nature” means one “declares himself to live by another rule than that of reason and common equity, which is that measure God has set to the actions of men” (Locke 10). Locke believes that “every man hath a right to punish the offender, and be executioner of the law of nature” to criminals in the face of God.
From a philosophically rigorous perspective, Locke’s justifications are a copout to constructing a normative frame. But at a descriptive level, he may be correct: both Hobbes and Locke agree that it is through reason that mankind transcends the state of nature and enters a state of sovereignty. An elementary comparison of these two versions of the state of nature boils down to the fact that Hobbes’s interpretation is one that begins with a lack of reason and Locke’s starts with reason programmed into mankind by a maker. Is it not possible that the Locke’s state of nature simply follows Hobbes’s? Indeed, in Hobbes’s model, man must come upon reason prior to entering the social contract, meaning as a collective, they must eventually reach some form of Locke’s state of nature. Whether God exists or not, a social consciousness must develop for both authors to successfully continue their theories. This returns us to the epistemological contradiction presented earlier in the fourth paragraph: why do men lose their ability to analyze the benefits of subjugation to a sovereign, if they needed to attain this level of rational deliberation to have accepted the social contract to begin with? It is because Hobbes ignores this concern, but Locke answers it (albeit with God, rather than a development of rationality, as I suggest), that Locke’s interpretation of sovereignty is far more convincing.
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It is easiest to discuss Locke by making a series of modifications on Hobbes’s theory of sovereignty. Of course, the difference between the two theories is far more complicated, but in regards to the thesis, it is sufficient to identify three very closely-related, key differences. First, Locke dismisses Hobbes’s assertion (which I have showed to be contradictory multiple times) that subjects give up the right, in fact, the ability, to judge their sovereign when moving from the state of nature to sovereignty. Effectively, Locke makes the contract a two-way agreement instead of a one-way subjection, termed in his works as “fiduciary power” in Chapter XIII. Second, for Locke, ‘ultimate’ sovereignty resides always in the people. One on hand, the supreme sovereign will always be God, but beneath his throne, men can delegate power to one another, but there will never be a permanent hierarchy of power. The supreme power of the legislature is amassed from a conditional grant by the people; every man is bound by its laws, notwithstanding disagreement. By extension of this logic, Locke makes two foundational claims of his notion of sovereignty, which Hobbes does not adopt: one is that no part of the sovereign government will ever be above the law, the other is that power can be retracted from the government at any time, pending agreement of the people (these derivations are explored in detail in Chapters VIII and IX).
The third and, perhaps most important, difference is that for Hobbes, sovereignty is a perpetual, indivisible power belonging to a particular individual. Indeed, this disagreement is the crux of this paper. For Locke, there are a variety of powers necessary for the protection of the public good, just as in Hobbes, but there is no need to unite them all in one body. Here Locke presents idea of the sovereignty of law itself: “there is no need, that the legislative should be always in being, not having always business to do” (Locke 76). The laws “have a constant and lasting force, and need a perpetual execution” that is provided by the executive power (Locke 76). While Hobbes agrees to the need of these aspects of sovereignty, he refuses to divide them. Locke, on the other hand, demonstrates that a ‘division of labor’ can very feasibly exist, especially because he touches upon the idea of a natural power that pertains to other duties. Federative power, which relates to “the power of war and peace, leagues and alliances, and all transactions” (Locke 76), could easily be invested in entirely separate bodies from both the executive and legislative powers.
The last question to answer, then, is whether the division of power is good. Luckily, Locke tackles this issue, arguing that “the inconveniences of absolute power, which monarchy in succession was apt to lay claim to” could never compete with “balancing the power of government, by placing several parts of it in different hands” for in doing so, citizens “neither felt the oppression of tyrannical dominion, nor did the fashion of the age, nor their possessions, or way of livingâ€¦give them any reason to apprehend or provide against it” (Locke 57). For Locke sovereignty is the “supreme power” on loan from the people to the legislative to set laws that look after the public good by dividing duties amongst the executive and other governmental agencies. Power is easily, helpfully, and safely split up into different bodies: easily due to Locke’s dismissal of Hobbes’s contradictory objection to doing so, helpfully because the division of labor allows for increased efficiency and greater productivity, and safely because the division of powers acts as a set of checks and balances to protect the people from arbitrary abuse.
Just as it seems that the question Can sovereignty be divided? is answered, a concession of sorts to Hobbes appears with the concept of prerogative, a powerful modification of the way Locke’s theory functions in practice. Locke concedes in Chapter XIV that the natural generality of law makes it inapplicable to certain cases and unable to cover every eventuality. The executive is therefore invested with prerogative, the “power to act according to discretion, for the public good, without the prescription of the law, and sometimes even against it” (Locke 84). It is possible that Hobbes would see this as an admission that Locke’s legislative theory is flawed, that the executive does indeed hold supreme power, as both creator and enforcer of laws. This, however, would be a serious misinterpretation.
In many ways, Locke disagrees with Hobbes most sharply on this point. Locke’s emphasis on the need of governance to provide for the public good is so strong that he argues any violation of the social contract, by the sovereignty, would be grounds for the dissolution of government. He notes that citizens will be willing to cope with the application of prerogative as long as it aligns with the public good, even if they recognize that there is no legal precedence for the actions. While Locke’s discussion of prerogative initially appears to be a return to Hobbesian absolutism, it is their most essential disagreement. In Hobbes’s theory, prerogative is sovereign authority, with no external check. When the sovereign’s prerogative fails to lead towards the public good, subjects have no recourse but simply accept things. For Locke, prerogative is a minor modification of the authority delegated from the people to the legislative and thence to the executive. It is not crucial to the existence of government because should subjects find that the executive’s application of prerogative does not lead to the public good, they can simply retract authority from the sovereignty.
When compared with the work of Thomas Hobbes, John Locke’s social contract theory comprehensively proves that government can be separated into several branches. By comparing the steps in their methodologies, along with analyzing their different starting points, one arrives at the conclusion that Locke is right. As this paper progressed, it was revealed that Hobbes made two main objections to a divided sovereignty: first, his notion of the forfeiture of “person” and second, his negative view of human behavior in the state of nature. Hobbes’s latter objection was easily answered back by comparing Locke’s interpretation of the state of nature and demonstrating that the standard of reason created a double bind for Hobbes. Either his state of nature transitioned into a Lockean state of nature, which would then progress to sovereignty, or, a jump must occur from a Hobbesian state of nature straight into absolute sovereignty, which creates a number of contradictions. The former objection was answered on multiple levels, ranging from the is-ought fallacy to Locke’s strong defense of a system of sovereign checks-and-balances. By juxtaposing Hobbes and Locke’s social contract theories, one can decisively conclude that sovereignty can be divided, not only to two branches, but to as many as necessary for the public good.
The version of Leviathan cited in this work is the Edwin Curley edited edition. The version of Second Treatise is the same as the one noted on the syllabus.
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