42. All the more fruitful elements in Spinoza's political doctrine
are lacking in that of Hobbes, but the principle of the two theories
is very much the same. Each begins with the supposition of an
existence of human individuals, unaffected by society, and each
struggling for existence against the rest, so that men are 'natura
hostes.' Each conceives 'jus naturale' as = 'potentia naturalis.'
But Spinoza carries out this conception much more consistently. He
does not consider that the natural right, which is might, ceases to
exist or becomes anything else when a multitude combine their natural
rights or mights in an 'imperium.' If the ostensible 'imperium' comes
into collision with the powers of individuals, single or combined,
among those who have hitherto been subject to it, and proves the
weaker, it _ipso facto_ ceases to be an 'imperium.' Not having
superior power, it no longer has superior right to the 'subditi.'
It is on this principle, as we have seen, that he deals with the
question of limitations to the right of a sovereign. Its rights are
limited because its powers are so. Exercised in certain ways and
directions they defeat themselves. Thus as he puts it in _Epist_.
L. (where he points out his difference from Hobbes), 'Supremo
magistratui in qualibet urbe non plus in subditos juris, quam juxta
mensuram potestatis, qua subditum superat, competere statuo.' Hobbes,
on the other hand, supposes his sovereign power to have an absolute
right to the submission of all its subjects, singly or collectively,
irrespectively of the question of its actual power against them. This
right he considers it to derive from a covenant by which individuals,
weary of the state of war, have agreed to devolve their 'personae,'
in the language of Roman law, upon some individual or collection
of individuals, which is henceforward to represent them, and to be
considered as acting with, their combined powers. This covenant being
in the nature of the case irrevocable, the sovereign derives from it
an indefeasible right to direct the actions of all members of the
society over which it is sovereign.
43. The doctrine may be found in _Leviathan_, Part II., chapter 17.
In order 'to erect such a common power as may be able to defend them
from the invasion of foreigners and the injuries of one another,'
men 'confer all their power and strength upon one man or upon one
assembly of men,' ... i.e. 'appoint one man or assembly of men to
bear their person.... This is more than consent and concord; it is a
real unity of them all in one and the same person, made by covenant
of every man with every man, in such a manner as if every man should
say to every man, 'I authorise, and give up my right of governing
myself to this man or this assembly of men, on condition that thou
give up thy right to him and authorise all his actions in like
manner.' This done, the multitude so united in one person is called
a commonwealth, in Latin _civitas_ ... which (to define it) is one
person, of whose acts a great multitude by mutual covenant one with
another have made themselves everyone the author, to the end he may
use the strength and means of them all, as he shall think expedient,
for their peace and common defence. And he that carrieth this person
is called sovereign, and said to have sovereign power; and everyone
besides, his subject.'
44. In order to understand the form in which the doctrine is stated,
we have to bear in mind the sense in which 'persona' is used by
the Roman lawyers, as = either a complex of rights, or the subject
(or possessor) of those rights, whether a single individual or
a corporate body. In this sense of the word, a man's person is
separable from his individual existence as a man. 'Unus homo sustinet
plures personas.' A magistrate, e.g., would be one thing in respect
of what he is in himself, another thing in respect of his 'persona'
or complex of rights belonging to him as a magistrate, and so too a
monarch. On the same principle, a man, remaining a man as before,
might devolve his 'persona,' the complex of his rights, on another.
A son, when by the death of his father according to Roman law he was
delivered from 'patria potestas' and became in turn head of a family,
acquired a 'persona' which he had not before, the 'persona' which had
previously belonged to the father. Again, to take a modern instance,
the fellows of a college, as a corporation, form one 'persona,' but
each of them would bear other 'persons,' if, e.g., they happened to
be magistrates, or simply in respect of their rights as citizens.
Thus 'one person' above = one sustainer of rights; while in the
second passage, ... 'carrieth this person,' it rather = the rights
sustained.
45. Hobbes expressly states that the sovereign 'person' may be an
_assembly_ of men, but the natural associations of the term, when
the sovereign is spoken of as a person, favour the development of a
monarchical doctrine of sovereignty.
Sovereign power is attained either by acquisition or institution. By
acquisition, when a man makes his children and their children, or a
conqueror his enemies, to submit under fear of death. By institution,
when men agree among themselves to submit to some man or assembly
'on confidence to be protected against all others.' Hobbes speaks
(II. 17, end) as if there were two ways by which a commonwealth
and a sovereign defined as above could be brought into existence,
but clearly a sovereign by acquisition is not a sovereign in the
sense explained. He does not 'carry a person of whose acts a great
multitude by _mutual covenant_ one with another, have made themselves
everyone the author, to the end he may use the strength and means of
them all, as he shall think expedient, for their peace and common
defence.' And what Hobbes describes in the sequel (c. 18) are, as he
expressly says, rights of sovereigns by institution; but he seems
tacitly to assume that every sovereign may claim the same, though he
could hardly have supposed that the existing sovereignties were in
their origin other than sovereignties by acquisition.
'A commonwealth is said to be instituted, when a multitude of men
covenant, everyone with everyone, that to whatsoever man or assembly
of men shall be given by the major part the right to represent the
person of them all, everyone, as well he that voted for it as he
that voted against it, shall authorise all the actions and judgments
of that man or assembly of men, in the same manner as if they were
his own, to the end to live peaceably amongst themselves, and to be
protected against other men' (c. 18). Here a distinction is drawn
between the covenant of all with all to be bound by the act of the
majority in appointing a sovereign, and that act of appointment
itself which is not a covenant of all with all. The natural
conclusion would be that it was no violation of the covenant if the
majority afterwards transferred the sovereign power to other hands.
But in the sequel Hobbes expressly makes out such a transference to
be a violation of the original compact. This is an instance of his
desire to vindicate the absolute right of a _de facto_ monarch.
46. Throughout these statements we are moving in a region of fiction
from which Spinoza keeps clear. Not only is the supposition of
the devolution of wills or powers on a sovereign by a covenant
historically a fiction (about that no more need be said); the
notion of an obligation to observe this covenant, as distinct from
a compulsion, is inconsistent with the supposition that there is
no right other than power prior to the act by which the sovereign
power is established. If there is no such right antecedent to the
establishment of the sovereign power, neither can there be any
after its establishment except in the sense of a power on the part
of individuals which the sovereign power enables them to exercise.
This power, or 'jus civile,' cannot itself belong to the sovereign,
who enables individuals to exercise it. The only right which can
belong to the sovereign is the 'jus naturale,' [1] consisting in the
superiority of his power, and this right must be measured by the
inability of the subjects to resist. If they _can_ resist, the right
has disappeared. In a successful resistance, then, to an ostensibly
sovereign power, there can on the given supposition be no wrong done
to that power. To say that there is, would be a contradiction in
terms. Is such resistance, then, a violation of the 'jus civile' as
between the several subject citizens? In the absence of a sovereign
power, no doubt, the 'jus civile' (according to the view in question,
which makes it depend on the existence of an 'imperium') would cease
to exist. But then a successful resistance would simply show that
there was no longer such a sovereign power. It would not itself be a
violation of 'jus civile,' but simply a proof that the conditions of
'jus civile' were no longer present. It might at the same time be a
step to re-establishing them if, besides being a proof that the old
'imperium' no longer exists, it implied such a combination of powers
as suffices to establish a new one.
[1] 'The 'jus naturale' is the liberty each man hath to use his own
power as he will himself for the preservation of his own nature; that
is to say of his own life; and consequently of doing anything which
in his own judgment and reason he shall conceive to be the aptest
means thereunto.' (_Lev_., I. 14.)
47. No obligation, then, as distinct from compulsion, to submit
to an ostensibly sovereign power can consistently be founded on
a theory according to which right either = simple power, or only
differs from it, in the form of 'jus civile,' through being a power
which an 'imperium' enables individuals to exercise as against each
other. Hobbes could not, indeed, have made out his doctrine (of the
absolute submission to the sovereign) with any plausibility, if he
had stated with the explicitness of Spinoza that 'jus naturale' =
'naturalis potentia.' That it is so is implied in the account of the
state of things preceding the establishment of sovereignty as one
of 'bellum omnium contra omnes'; for where there is no recognition
of a common good, there can be no right in any other sense than
power. But where there are no rights but natural power, no obligatory
covenant can be made. In order, however, to get a sovereignty, to
which there is a perpetual obligation of submission, Hobbes has to
suppose a covenant of all with all, preceding the establishment of
sovereignty, and to the observance of which, therefore, there cannot
be an obligation in the sense that the sovereign punishes for the
non-observance (the obligation corresponding to 'jus civile' in
Spinoza's sense), but which no one can ever be entitled to break.
As the obligatoriness of this covenant, then, cannot be derived
from the sovereignty which is established through it, Hobbes has to
ascribe it to a 'law of nature' which enjoins 'that men perform their
covenants made' (_Lev_., I. 15). Yet in the immediate sequel of this
passage he says expressly, 'The nature of justice consisteth in the
keeping of valid covenants, but the validity of covenants begins not
but with the constitution of a civil power, sufficient to compel men
to keep them; and then it is also that propriety begins.' On this
principle the covenant by which a civil power is for the first time
constituted cannot be a valid covenant. The men making it are not in
a position to make a valid covenant at all. The 'law of nature,' to
which alone Hobbes can appeal according to his principles, as the
source of the obligatoriness of the covenant of all with all, he
defines as a 'precept or general rule, found out by reason, by which
a man is forbidden to do that which is destructive of his life, or
taketh away the means of preserving the same; and to omit that by
which he thinketh it may best be preserved' (I. 14). When a law of
nature, however, is said to command or forbid, we must not understand
those terms in that sense which, according to Hobbes, could only
be derived from the establishment of an 'imperium.' This 'law of
nature,' therefore, is merely an expression in a general form of the
instinct by which, as Spinoza says, every living creature 'in suo
esse perseverare conatur,' as guided by a calculation of consequences
(for no meaning but this can be given to 'reason' according to
Hobbes). The prohibition, then, by this law of nature of a breach of
that covenant of all with all, by which a sovereign power is supposed
to be established, can properly mean nothing more than that it is
everyone's interest to adhere to it. This, however, could only be a
conditional prohibition, conditional, in particular, on the way in
which the sovereign power is exercised. Hobbes tries to show that it
must always be for the advantage of all to obey it, because not to
do so is to return to the state of universal war; but a successful
resistance to it must be _ipso facto_ an establishment of a new
combined power which prevents the 'bellum omnium contra omnes' from
returning. At any rate, an obligation to submit to the established
'imperium,' measured by the self-interest of each in doing so, is
quite a different thing from the obligation which Hobbes describes in
terms only appropriate (according to his own showing) to contracts
between individuals enforced by a sovereign power.
48. It would seem that Hobbes' desire to prove all resistance
to established sovereignty unjustifiable leads him to combine
inconsistent doctrines. He adopts the notion that men are 'natura
hostes,' that 'jus naturale' = mere power, because it illustrates
the benefit to man's estate derived from the establishment of a
supreme power and the effects of the subversion of such power once
established, which he assumes to be equivalent to a return to a
state of nature. But this notion does not justify the view that a
rebellion, which is strong enough to succeed, is wrong. For this
purpose he has to resort to the representation of the sovereign as
having a right distinct from power, founded on a contract of all
with all, by which sovereignty is established. This representation
is quite alien to Spinoza, with whom sovereignty arises, it is true,
when 'plures in unum conveniunt,' but in the sense of combining
their powers, not of contracting. But after all, the fiction of this
contract will not serve the purpose which Hobbes wants it to serve.
The sovereignty established by the contract can only have a _natural_
right to be maintained inviolate, for all other right presupposes it,
and cannot be presupposed by it. If this natural right means mere
power, then upon a successful rebellion it disappears. If it means
anything else it must mean that there are natural rights of men,
other than their mere power, which are violated by its subversion.
But if there are such rights, there must equally be a possibility of
collision between the sovereign power and these natural rights, which
would justify a resistance to it.
49. It may be asked whether it is worth while to examine the internal
consistency of a theory which turns upon what is admitted to be
historically a fiction, the supposition of a contract of all with
all. There are fictions and fictions however. The supposition that
some event took place which as a matter of history did not take place
may be a way of conveying an essentially true conception of some
moral relation of man. The great objection to the representation
of the right of a sovereign power over subjects, and the rights
of individuals which are enforced by this 'imperium,' as having
arisen out of a contract of all with all, is that it conveys a
false notion of rights. It is not merely that the possibility of
such a contract being made presupposes just that state of things--a
_régime_ of recognised and enforced obligations--which it is assumed
to account for. Since those who contract must already have rights,
the representation of society with its obligations as formed by
contract implies that individuals have certain rights, independently
of society and of their functions as members of a society, which they
bring with them to the transaction. But such rights abstracted from
social function and recognition could only be powers, or (according
to Hobbes' definition) liberties to use powers, which comes to the
same; i.e. they would not be rights at all; and from no combination
or devolution of them could any right in the proper sense, anything
more than a combined power, arise.
50. Thus the only logical development of that separation of right
from social duty which is implied in the doctrine of 'social
contract' is that of Spinoza. Happily the doctrine has not been
logically developed by those whose way of thinking has been affected
by it. The reduction of political right--the right of the state over
its subjects--to superior power, has not been popularly accepted,
though the general conception of _national_ right seems pretty much
to identify it with power. Among the enlightened, indeed, there has
of late appeared a tendency to adopt a theory very like that of
Spinoza, without the higher elements which we noticed in Spinoza;
to consider all right as a power attained in that 'struggle for
existence' to which human 'progress' is reduced. But for one person,
who, as a matter of speculation, considers the right of society over
him to be a disguised might, there are thousands who, as a matter of
practice, regard their own right as independent of that correlation
to duty without which it is merely a might. The popular effect of
the notion that the individual brings with him into society certain
rights which he does not derive from society,--which are other than
claims to fulfil freely (i.e. for their own sake) certain functions
towards society,--is seen in the inveterate irreverence of the
individual towards the state, in the assumption that he has rights
against society irrespectively of his fulfilment of any duties to
society, that all 'powers that be' are restraints upon his natural
freedom which he may rightly defy as far as he safely can.