Thomas Hobbes & Social Contract Theory: Where Leviathan Stopped

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Hobbes in 1651: a man who had seen hell

In 1651, in London, during the final years of an English civil war that had killed hundreds of thousands and ended with the execution of a king, a sixty-three-year-old philosopher published a book he had been writing for a decade. Its title was the name of a sea monster from the Book of Job. It argued that the only thing standing between human beings and perpetual war was a single absolute authority that every person had, by tacit or explicit agreement, submitted to.

The philosopher was Thomas Hobbes, and the book was Leviathan, and the situation it described was not imagination. The English had spent a generation killing each other over religion and king and Parliament, and Hobbes had watched it, and he had written a book about what he thought would keep it from happening again.

His argument was brutal and lucid. Human beings, left to themselves, cannot agree on anything important. They cannot agree on God, they cannot agree on the good, they cannot agree on truth. Each of them pursues what seems good to them, and their pursuits collide. In the state of nature, Hobbes wrote, there is "continual fear, and danger of violent death; and the life of man, solitary, poor, nasty, brutish, and short."

What prevents this? Not reason, not religion, not virtue. Only a power. A sovereign. Something every person has agreed to obey, in exchange for the sovereign agreeing to keep the peace. Once there is a sovereign, law becomes possible, because the sovereign can enforce it. Once law becomes possible, the war of all against all stops. The sovereign's word is law. There is no appeal above the sovereign, because if there were, the appeal would become the new sovereign and the system would unravel.

Where Hobbes stopped three steps too early

But like Descartes thirty years earlier, Hobbes stopped three steps too early. What he saw was real. What he missed was that the sphere of rights, the sphere of law, the sphere of equal standing before the public order, is not a sovereign's creation. It arises from a reality that is already there in every human relationship the moment two human beings meet. Equal standing is not a convention. It is not a construct. It is a fact the rights sphere discovers and protects, not a fact the sovereign creates by fiat.

Because Hobbes missed this, he could not distinguish between a sovereign that keeps a healthy rights sphere alive and a sovereign that uses the rights sphere as a tool for other ends. For him, they were the same. The sovereign's law was law. There was no standard above it by which the sovereign's law could be judged.

The stream continued past him. Locke tried to fix him with natural rights and the consent of the governed, but grounded those rights in the fact of property and the labour mixed into it, which anchored the rights sphere in something actually belonging to the economic sphere. Rousseau tried to fix him with the general will of the people, but collapsed the three spheres into the one will of the unified social body, reproducing the original error at a populist rather than monarchical scale. Kant tried to fix him with the categorical imperative, but left the ground of that law hanging in a noumenal realm nothing empirical could reach. Rawls, three hundred years later, tried to fix him with the veil of ignorance, but the rationality and the ignorance together produced principles that human beings in actual situations rarely acknowledge as binding.

Each of them saw one more step. None finished the walk, because none of them located the ground of equal standing where it actually lives.

Back to the stoplight: how you knew

In the prologue, somewhere in your day, you found yourself briefly in a place where no one was above you and no one was beneath you. A grocery line, a waiting room, a sidewalk, a stoplight. For a few seconds you and a stranger were simply two human beings occupying the same moment, each with the same quiet claim on existing there.

How did you know?

Not because the law told you. You were not thinking about the law at the stoplight. Not because a philosopher told you. You were not reviewing Hobbes or Rawls at the stoplight. Not because you had calculated the rational advantages of equal standing, or signed a social contract, or taken an oath of citizenship that morning.

You knew in a way that was already present, already felt, already operating. The other person in the next car was a human being. That was the whole thing. You did not have to reason your way to their equal standing. You met them, briefly, in a mode older than reason, and in that mode the standing was simply there.

Why standing cannot be grounded in any measurable quality

Now notice what happens if you try to account for that standing in any other way.

Suppose you tried to ground it in intelligence. Some people are more intelligent than others. If standing came from intelligence, some people would stand higher than others in the rights sphere. That cannot be right. Cognitively disabled people do not have lesser standing before the law than professors.

Suppose you tried to ground it in usefulness. Some people contribute more to society than others. If standing came from usefulness, the sick and the old and the newborn would stand lower than the productive. That cannot be right either. We know it cannot be right, and any legal system that tries to organise itself on that basis immediately generates horrors.

Suppose you tried to ground it in virtue. Some people are more virtuous than others. If standing came from virtue, the virtuous would have more rights than the vicious. That cannot be right either. A murderer on trial has the same right to a fair trial as the victim's family has to a fair trial. The equality of standing holds even when the virtue is wildly uneven.

Suppose you tried to ground it in wealth, in class, in tribe, in faith, in race, in gender, in citizenship, in any of the countless categories by which human beings have classified each other. Each attempt has produced, when genuinely tried, a society that most of its own citizens, on reflection, do not want to live in. Each has produced slavery in one form or another, even when the slavery was called something else.

Standing does not vary. Standing is what you and the stranger at the stoplight share that none of the measurable qualities reach.

What equal standing actually is

It is the bare fact that each of you is a person. Not a case, not a unit, not a bundle of preferences, not a producer or consumer, not a demographic. A person. A being in whom something irreducible looks back at the world from the inside.

That is the ground of equal standing. It is not a construct. It is a recognition. It is what is already happening between human beings when they meet in the mode that is older than calculation.

This is what Hobbes could not see, because the metaphysics he had inherited had no room for what is irreducible about a person. For him, persons were sophisticated machines with appetites, and equal standing had to be assembled from the appetites by contract. What actually happens at the stoplight is simpler and deeper. You and the stranger are not assembling standing. You are recognising what is already there.

Equality as the principle of the rights sphere

The principle of the sphere of law and rights is equality. But the word has to be handled carefully, because the sphere has had its word stolen in public conversation and used to mean several things at once.

Equality in the rights-sphere sense does not mean equality of intelligence, wealth, strength, talent, or outcome. Human beings are wildly, gloriously unequal in all of these. No one has ever met anyone who is equal in talent to anyone else. Equality of this kind would not be a value; it would be an erasure.

Equality in the rights-sphere sense is equality of standing. Every person meets every other person in this sphere on the same ground, with the same claim on the protection of the law, the same right to be heard before a court, the same standing as a member of the political community. It has nothing to do with their attributes and everything to do with their being a person at all.

Equality of standing is not equality of condition. It does not require or produce sameness. It is the precondition for a society in which the immense difference between people can be held without violence. When equal standing is intact, a brilliant person and an ordinary person, a wealthy person and a poor person, a member of the majority and a member of the minority, can disagree fiercely, compete hard, argue without limit, because at the bottom of the argument both stand on the same ground and neither can be removed from that ground.

Equal standing is what makes the differences survivable.

What democratic deliberation is actually for

There is a specific question this chapter has to answer directly, because it is the question that most public confusion about equality now circles. What is democratic deliberation actually for?

In a healthy three-sphere society, democratic deliberation, the formal process by which adult members of a political community together decide matters of shared life, belongs to the rights sphere and to nothing else. Its scope is the scope of the rights sphere: what counts as equal treatment, who is a citizen, what protections the community affords its members, what procedures the community uses to hear and judge disputes.

Democratic deliberation is not for deciding what is true, what is beautiful, what is good, what a person should believe, or what art should depict. These are cultural-sphere matters. Fifty-one percent of a population believing that two plus three equals six does not make two plus three equal six. Fifty-one percent preferring one kind of poem does not make the other kind bad. Truth and beauty are not democratic quantities.

Democratic deliberation is also not for deciding what should be produced, in what quantities, for whom, at what price. These are economic-sphere matters. They belong to the associative processes in which producers, distributors, and consumers work out, in continual communication, what is actually needed and what is actually possible.

This is a narrower scope for democracy than most contemporary societies give it. The current arrangement either gives democratic deliberation too much scope (asking it to decide cultural and economic matters it cannot adequately decide) or too little (allowing professional administrators to make rights-sphere decisions that should be made by citizens themselves). Both distortions are symptoms of the three-sphere confusion.

When the rights sphere is colonised

When the cultural sphere rules the rights sphere, you get law organised around what people believe rather than around who they are. Theocracy is the ancient version. Ideological law is the modern version. In either case, the rights of a person depend on whether that person holds the correct beliefs, belongs to the correct group, or displays the correct allegiance. The equal standing that should hold across all believers and non-believers, all groups and all individuals, has been overruled by a cultural content that has moved outside its own sphere.

When the economic sphere rules the rights sphere, you get law organised around wealth. Plutocracy is the old name; today's name shifts. Rights become unevenly available depending on the resources of the litigant. The equal standing that should be untouched by wealth becomes, in practice, the standing of those who can afford to invoke it. The current arrangement is a particular pattern of this collapse, and we will describe its specific shape in chapter six.

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