States of War: Enlightenment Origins of the Political 9780231528665

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States of War

COLUMBIA STUDIES IN POLITICAL THOUGHT/POLITICAL HISTORY

COLUMBIA STUDIES IN POLITICAL THOUGHT/POLITICAL HISTORY

Dick Howard, General Editor Columbia Studies in Political Thought/Political History is a series dedicated to exploring the possibilities for democratic initiative and the revitalization of politics in the wake of the exhaustion of twentieth-century ideological “isms.” By taking a historical approach to the politics of ideas about power, governance, and the just society, this series seeks to foster and illuminate new political spaces for human action and choice. Pierre Rosanvallon, Democracy Past and Future, edited by Samuel Moyn (2006) Claude Lefort, Complications: Communism and the Dilemmas of Democracy, translated by Julian Bourg (2007) Benjamin R. Barber, The Truth of Power: Intellectual Affairs in the Clinton White House (2008) Andrew Arato, Constitution Making Under Occupation: The Politics of Imposed Revolution in Iraq (2009) Dick Howard, The Primacy of the Political: A History of Political Thought from the Greeks to the French and American Revolution (2010) Robert Meister, After Evil: Human Rights Discourse in the Twenty-first Century (2011) Paul W. Kahn, Political Theology: Four New Chapters on the Concept of Sovereignty (2011) Stephen Eric Bronner, Socialism Unbound: Principles, Practices, and Prospects (2011)

David William Bates

STATES OF WAR Enlightenment Origins of the Political

columbia universit y press   new york

Columbia University Press Publishers Since 1893 New York  Chichester, West Sussex Copyright © 2012 Columbia University Press All rights reserved Library of Congress Cataloging-in-Publication Data   Bates, David William.   States of war : Enlightenment origins of the political / David William Bates.     p. cm. — (Columbia studies in political thought/political history)   Includes bibliographical references and index.   ISBN 978-0-231-15804-6 (cloth : alk. paper) — ISBN 978-0-231-15805-3 (pbk. : alk. paper) — ISBN 978-0-231-52866-5 (e-book)   1.  State, The—History—18th century.  2.  Sovereignty—History—18th century.  3.  Natural law—History—18th century.  4.  War (International law)—History—18th century.  5.  Enlightenment.  I.  Title.   jc171.b38 2012   320.109′033—dc22 2011008695 Columbia University Press books are printed on permanent and durable acid-free paper. This book is printed on paper with recycled content. Printed in the United States of America c 10 9 8 7 6 5 4 3 2 1 p 10 9 8 7 6 5 4 3 2 1

References to Internet Web sites (URLs) were accurate at the time of writing. Neither the author nor Columbia University Press is responsible for URLs that may have expired or changed since the manuscript was prepared.

To the memory of my father, George William Bates (1930–2009)

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Contents

Foreword by Dick Howard  ix Preface  xiii

Introduction Constitutional Violence and Enlightenment Thought  1 Why Enlightenment? On Law and the Origins of the Political  5 The Concept of the Political and the Constitutional State  16

Chapter 1 The Autonomous State and the Origin of the Political  32 States of Law  35 The Instrumental State  41 Reason of State and the Origins of Legitimacy  44

Chapter 2 States of Reasoning: Modern Natural-Law Theory  52 Disembodied Reason and the Nature of Sovereignty in Grotius  55 Hobbes’s Political Robotics  63 Pufendorf ’s Concept of the Social  80

Chapter 3 Locke’s Natural History of the Political  93 Why Prerogative?  93

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Sovereign Decision and the State of Law  95 Nature, War, and the Nature of War  102 A Natural History of the Political  109 Law in the Postpolitical Age  115 A Political-Legal State  119 A Political Community  130

Chapter 4 Systems of Sovereignty in Montesquieu  134 Two Montesquieus  134 The State of War  139 The Political After War: Systems of Order  144 States in War  147 Exceptional States  151 Technologies of Balance  168

Chapter 5 Rousseau’s Cybernetic Political Body  171 Rousseau and the Political  173 The End of Natural Law  175 Humans In (and Out of ) Nature  178 Political Cybernetics  185 Political Bodies at War  204 Rousseau and the Modern State  210

Conclusion From the Concept of the Political to the Rule of Law  215 Notes  231 Index  253

Foreword Dick Howard, Series Editor

T

he question that motivates David Bates’s reconsideration of “Enlightenment origins of the political” is found in actual dilemmas facing contemporary political practice and its theory. His analysis concludes with a brief demonstration of how this historical reconstruction can offer more convincing answers to these questions than those proposed by Carl Schmitt and his heirs, including contemporaries such as Jacques Derrida, Étienne Balibar, Jacques Rancière, or Jean-Luc Nancy. Between these contemporary bookends, Bates proposes a conceptual rereading of some of the landmarks of Enlightenment thought that is grounded in an understanding of how historical context affects theories that seek to explain it. Bates’s title refers not to some mythical historical construct called the Enlightenment; his argument is more perspicacious and nuanced. For this reason, too, it fits well the framework of this series, Political Thought/Political History. Questions posed in our present illuminate the past, which in turn both casts light and demarcates shadows that were not perceived by practical-minded political actors. This same structure of reciprocal influence can be seen in the progress from chapter to chapter and even from subsection to subsection. Bates’s historical claim is that “the political” emerges in a specific historical conjuncture, but it doesn’t emerge full blown, like a racehorse wearing its own theoretical colors, so to speak. This is the burden of his first chapter, which sets the practical and theoretical stage on which an autonomous state first appears and then gropes for the source of its legitimacy by defining “the political.” The guiding thread of

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the book can be put in terms familiar to a modern reader: What is the relationship between the sovereignty of the state and the laws that effectively (or in principle) restrain the potential arbitrariness of sovereign power, particularly when the state faces problems that appear to threaten its very existence? This “existential dilemma,” which emerges precisely when and where the law is no longer effective, leads Carl Schmitt and even his critical followers to define “the political” as control over the “state of exception.” David Bates does not shy away from the dilemma or fudge the difficulties that it entails; he proposes to rethink its origins and thus to radicalize its weight. The fine examples of close textual reading offered by the four chapters that constitute the heart of the book propose a historical-conceptual progression through which the concept of “the political” (and its relation to law) is enlarged and developed. This brief foreword cannot do justice, for example, to Bates’s lucid account of the differences among the earlier theories of Hugo Grotius, Thomas Hobbes, and Samuel von Pufendorf and the way in which the latter provides the (social) grounds on which John Locke will inscribe his own vision of the parameters of the political (as opposed to the idea that the English Whig was replying to Hobbesian absolutism). A foreword can only call attention, for example, to the way Locke, and then Montesquieu, are read against themselves to provide new understandings of the questions that underlie their own theories. The reader will discover this, and more, soon enough. A final point should be mentioned concerning the place of this study of “enlightenment origins of the political” within the framework of the series Political Thought/Political History. Bates denies that “the concept of an autonomous political sphere is . . . a transhistorical category.” He insists that it “emerges at a very specific juncture in European history,” which was “conceptually established in the wake of [the 1648 Peace of ] Westphalia.” It is important to read this claim clearly; the “autonomous political sphere” to which Bates refers can be seen as one explicitly modern definition of the political. For this reason, Bates’s claim does not contradict the broader theses proposed in my historical study The Primacy of the Political (2010). Indeed, Bates’s interpretation of what he considers to be the fully developed concept of the political, which he finds in Jean-Jacques Rousseau, suggests that a fully autonomous political sphere is compatible with the rule of law. This interpretation is similar to what I call a “republican democracy”—that is, an institutional structure in which the republican form of the political ensures and secures a framework within which the active web of social relations (similar to Bates’s idea of the

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rule of law) can acquire a democratic form. In this way, Bates’s Rousseau, as well as my republican democracy, reject the inchoate populist version of democracy whose condemnation by Schmitt serves him, and those whom his apparent rigor has seduced, into a misleading definition of the political.1

Note 1.

With regard to Schmitt, see Paul W. Kahn, Political Theology: Four New Chapters on the Concept of Sovereignty (2010), which appeared in Political Thought/Political History. In the same series, see Claude Lefort, Complications: Communism and the Dilemmas of ­Democracy (2007).

Preface

I

first started reading Carl Schmitt seriously when I was a graduate student at the University of Chicago. My friend Steven Wolfe had urged me to attend a series of evening seminars led by Ellen Kennedy, who was visiting at the time, so I prepared by immersing myself in Schmitt’s Political Theology, The Crisis of Parliamentary Democracy, and Concept of the Political. At the time, I was starting my first serious work on the French Enlightenment and the French Revolution. What struck me as I read Schmitt was just how wrong he was about the eighteenth century. But at the same time, I was overwhelmed by his powerful insights into the nature of political identity. As I read more Schmitt and some of the intellectuals influenced by him, such as Reinhart Koselleck (who was a visiting professor at Chicago while I was there in the late eighties), I began to see more and more clearly how eighteenthcentury thinkers in France were concerned with just the problems Schmitt zeroed in on in his Weimar writing—namely, decision, emergency, political unity, enmity, constitutional foundations, and so on, although this was not the way most theoretical figures viewed the Enlightenment. In the end, I used the conceptual resources offered by Schmitt and other twentieth-century thinkers as a way of exploring the Enlightenment intellectual culture they often disdained. As I became more interested in understanding the ideas Schmitt was working with, I began to research more systematically legal and political theory in

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the early twentieth century. In particular, I was interested in the theological structure of legal concepts of the state in interwar Europe. I originally planned to see how eighteenth-century constitutional concepts might have been used by legal scholars between the wars. But, eventually, I worked more on the nature of political unity and its relationship with existential crisis. Here I saw just how historically specific Schmitt’s influential concept of the political was. And I also discovered how unexceptional Schmitt’s theories were when they were contextualized in this moment—legal theorists in France, Germany, and elsewhere were all struggling with just the same difficulty. How could one defend political unity and decisive authority when all metaphysical and sociological foundations of national identity were being radically questioned? The answer was this: the political was in essence the defense of unity itself, beyond any actual content or substantial identity. The justification of political decision beyond the law was based on a radically existential concept of security. Schmitt’s definition of the political as the decision on friend and enemy was consistent with the general effort at this time to defend some notion of political identity as essential to the survival of secure communities in an age of fracture, civil war, and transnational revolutionary movements. I was right in the middle of this research when September 11 intervened and the landscape of political discourse and political theory was dramatically changed. If interest in Schmitt had been in the ascendancy since the nineties, his books and ideas were quickly propelled to the forefront of political theory in the academy after September 11, when there was a sudden resurgence of debates around executive power, war, and emergency law that were prominent in interwar Europe. Of course, those more familiar with Schmitt’s long and varied career turned at this point not to the already famous Weimar-era works on sovereignty and emergency power (however relevant those works still were to the increasingly anxious discussions about executive power) but instead to his later, postwar work on international law. This was the crucial book Nomos of the Earth (1950) and its short follow-up work, Theory of the Partisan. In these texts, the history of the state (as a legal and constitutional form) was reintegrated into a larger narrative of European war and expansion. The state and the question of sovereignty was now understood by Schmitt to be just a part of the global story of how autonomous European states were born within a broader system of interstate relations, on the Continent primarily, but also in the larger arena that was the sphere of colonial competition.

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The juxtaposition after September 11 of two absolutely vital discourses (one concerning the nature of state authority and the law, the other the relationship of states within globalized networks of organization) was an uneasy one, and it was not at all obvious how to think about classical political theory questions in light of disruptive new historical forces and unprecedented global configurations. This was the origin of my own project to return to Enlightenment political ideas. It seemed to me that the question of law and the question of political power were somewhat confused in the complex context of a new global form of warfare. How were we to think about traditional political concepts, such as constitutionality, executive authority, emergency powers, and so on, now that we recognized the intimate relationship between the formation of these state structures and what Schmitt would call the “large-space” political units in a globalized world? Schmitt himself hardly had the answer for us—his own work was limited, inevitably, given its crucial historical orientation, to the analysis of Cold War formations and their implications for the conduct of war. After 1989, of course, the traditional nation-state form became much more important, or at least became more visible, as these Cold War units disappeared or were transformed. Given the new importance of foundational questions concerning political-state organization in this environment, my goal was to reexamine the long intellectual history of the legal state by returning to the Enlightenment, its acknowledged birthplace—but not simply to revisit the classic principles of the legal state, which have been articulated so thoroughly by generations of scholars and thinkers. Rather, I wanted to see how the problem of war and foundational violence was connected to this ideal of the legal state at a deeper level. In other words, I wanted to interpret Enlightenment concepts of legality and legitimacy through the lens of war. The point was not to fall into the trap of historicism and not to resurrect a lost intellectual world as though it could resolve the challenges we now face as we attempt to grasp, conceptually, the contemporary political order. My main goal was to defamiliarize the Enlightenment, the origin of so many of our constitutional ideas, so as to point the way to a new understanding of the legal state in its global context. I wanted to show that any attempt to imagine the rights of citizens and the constitutional structure of the legal state is impossible without a parallel investigation of the nature of foundational violence and the practice of interstate warfare. Enlightenment intellectuals (despite their reputation) were very much aware of this. I hope that a close analysis of their own struggle to understand

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political order and legal norms will encourage us to do the same—and I think that eighteenth-century thinkers were pointing out some promising paths.

ddd I am indebted to the many interlocutors who have helped me sharpen my arguments over the past few years. First, I thank the audiences at McGill University Faculty of Law in Montreal, the Political Theory Colloquium at the University of Minnesota, the French Culture Workshop at Stanford University, the Bloomington Eighteenth-Century Studies Workshop at Indiana University, the University of California Berkeley Early Modern Sodality Group, and various conference panels for their comments on early versions of these ideas. Interactions with scholars of twentieth-century thought were extremely useful for framing the argument; in particular, I am grateful to Stefan LudwigHoffmann, Sam Moyn, Wim Weymans, Stewart Motha, Knox Peden, Bill Rasch, Bill Scheuerman, John McCormick, and Michael Geyer. I was also lucky to cross paths with many early-modern scholars who had great intellectual breadth. I’ve learned a great deal from reading and conversing with David Armitage, J. B. Shank, Céline Spector, David Bell, Dorothea von Mücke, Joanna Stalnaker, Dror Wahrman, Harvey Mitchell, Sophie Rosenfeld, Peter Stacey, and Annelien De Dijn, among many others. I also very much appreciated the enthusiasm and patience of graduate students in my various seminars on political thought. For making Stanford seem like a second home, I am grateful to the Enlightenment circle of Keith Baker, Jessica Riskin, John Bender, and Dan Edelstein, all of whom have generously responded to my work and shared their own. In the crucial late stages of writing, James Martel selflessly read with great care several draft chapters and gave me a new perspective on the whole project. I owe a special debt to all those at Berkeley who have helped create a vital intellectual life. My thanks to Michael Mascuch, Hans Sluga, Alan Tansman, Ken Goldberg, Martin Jay, Carla Hesse, Samera Esmeir, and Nima Bassiri for making me think in new ways. And a special acknowledgment to my early-modern colleagues Kinch Hoekstra, Ethan Shagan, and Jonathan Sheehan, whose formidable intelligence and expertise always inspires me. Finally, Vicky Kahn made the book a reality, with her relentless encouragement, incisive criticism, and intellectual generosity.

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Finding the time to write this book was not easy. I relied (too much, I am sure) on my family and friends for support. Without my mother and late father, my sisters and their families, and my in-laws, life would have been significantly more difficult and infinitely less enjoyable. My greatest debts are to my children, Heather and Graeme, for making life so rewarding (and so much more interesting), and to Ann, who has offered me so much for so long that it is really impossible to thank her properly. Finally, I dedicate this book to the memory of my father, who, it seems fair to say, first taught me how to think.

States of War

Introduction

Constitutional Violence and Enlightenment Thought

T

he crises of the early twenty-first century have revealed once again a perennial conflict at the heart of the modern constitutional state. The demands of war, in particular, but also terror, civil conflict, and even economic catastrophe all have put a great deal of pressure on the theory and practice of constitutional states because they throw into relief the inherent tension between legal concepts of state power and more existential visions of political authority. This is not merely a question of constitutional theory. Given that the normative conceptions underlying constitutional ideas of legitimate authority also ground our deep commitments to civic and human rights, the radical autonomy that marks any existentially derived political power cannot help but be seen as a potential threat to our legal protections. At the same time, there must always be some recognition that legal norms cannot enforce themselves. Behind every constitutional order lie powerful assumptions about the sovereign authority that constitutes that order in the first place. Of course, from the start—during the French Revolution, for example— constitutional regimes have provided legally defined spaces for the exercise of emergency power, an attempt to fold the most extreme forms of political action back into the constitutional order as a whole.1 However, throughout the history of modern constitutional regimes, new challenges and obstacles, and especially new forms of warfare, have overwhelmed the available instruments of emergency rule and forced the creation of new crisis institutions that displace and even oppose foundational rights and constitutional provisions.

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In extreme conditions, and especially when the very existence of the constitutional state is threatened, decisive acts that preserve the existence of communities are acknowledged to be “purely political,” in that they exceed any formal, legal frames of limitation. Legitimation of these acts looks not so much to law but to foundational concepts of political unity, concepts that are often troubling because they invoke nationalist or even theological notions of identity. So whether we celebrate the primacy of the political, as Carl Schmitt did in his influential book on this question,2 or melodramatically lament the gradual ebbing of law in a “permanent state of exception,”3 or even claim that the very realization of law is always impossible because of the necessity of employing some anomic force,4 there is no question that both philosophically and practically speaking, the relationship between law and the political remains profoundly difficult to understand. The intersection of pure political power and constitutional forms of legal limitation needs to be continually reexamined because the clash between legal and political visions of the state has never been fully resolved.5 We have experienced this recently in acute form, in debates over the use of torture, for example, and in the struggle to delineate the proper relationship between a state’s existential interests and the obligations of international law. Not surprisingly, there has since September 11 been an immense flow of scholarship concerned with the theoretical and institutional difficulty of managing what Justice David Souter has called the “constant tension between security and liberty.”6 While much of this work on emergency and war powers draws on the history of political and constitutional theory, for the most part, the theorization of the relation between political and legal authority continually repeats the structural distinction between the two spheres.7 My claim is that this conflict between law and the political has a specific historical origin and therefore needs to be examined in that context before we can begin to understand the risks and possibilities inherent in our contemporary moment of crisis. I argue that because this deep conflict has its origin in the Enlightenment—when the modern constitutional state was first conceived in an era of absolutist, centralizing sovereign rule—a return to the Enlightenment has the potential to clarify our own thinking about the problematic relationships that link security regimes with the foundational rule of law. I do not claim that the substantial ideas from this period are somehow still relevant in our own. We must historicize the concepts and values to understand them properly. However, what is significant about Enlightenment thought is its recognition of just this

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problem of historicity when thinking about law and especially natural rights. My goal is to show how that deep reflection on the historical specificity of human communities and cultures led to a new theory of right that was grounded not so much in the substantial forms of human existence but instead in the very contingency of that existence. These were not merely formal or logical claims in a sense abstracted from the concrete: the understanding of natural right flowed from the fact of human historicity itself.8 So there is no question that returning to the eighteenth century just to reaffirm a simplistic commitment to the rights of the individual in society and to call for legal limitations on the power of the security state would be rather naive in our present condition of crisis. However, it would be equally naive to assume that our own current political condition has no connection whatsoever to the historical origins of the constitutional principles that animate our own state institutions, however much they may have evolved and transformed over the past centuries. While constitutional principles of the legal state today are recognized to be derived from Enlightenment notions of the individual and his or her foundational rights, it is too often forgotten that an existential logic of the political was articulated as the territorial state evolved into a militarybureaucratic security regime in exactly this same period. I am not reexamining this supposedly primal conflict lurking within these twin genealogies of the modern constitutional state, as though one could simply answer the question of which originary principle is the most significant for us today. Instead, I hope to understand the deep connection between these two visions of political community as a way of reimagining civic and human rights in the twenty-first century. Much contemporary theorization of the subject of rights—both within the state and within the larger networks of globalized international law—has dealt with the problem of negotiating the relationship between what are taken to be radically disjunctive spheres: on the one hand, an imagined democratic, egalitarian community governed by idealized norms and, on the other, historically specific, bounded political communities predicated on a systematic (and inherently violent) logic of inclusion and exclusion.9 This is the conflict between what Jürgen Habermas has called “facts” and “norms.”10 Contrary to the usual assumption, Enlightenment thought was not always so concerned with ideal, normative concepts. And it was not primarily concerned with the institution of some rational public sphere that would serve to coordinate the reality of politics and the ideal world of norms.11 The Enlightenment was, I believe, concerned with this challenging problem: understanding

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how a historically specific political regime might generate from within its own existential logic a systematic set of norms grounding the legal protection of the citizen. Much contemporary political theory recoils from the concept of sovereignty and all that it implies: unitary decisions, political unification and cohesion, ruptures of law.12 Sovereignty is linked with some metaphysical or, better, theological conception of absolute identity and therefore rejected as incompatible with modern (and postmodern) notions of plurality and essential ­fragmentation. Following Jacques Derrida, sovereignty can only be understood as a kind of fantastic delusion, an impossible figure of self-enclosed indivisibility.13 But is sovereignty inevitably a form of political theology? That is, must sovereign power always be modeled on the self-identity of some law-giving divine power? As Schmitt himself argued, there will always be a congruence between theological and political concepts in any era. However, he identified the dominant theology of the Enlightenment as deism.14 This is a rather impoverished picture of the Enlightenment worldview. We must, for example, take seriously the presence of a theological Enlightenment metaphysics that is not merely mechanical in the Newtonian sense. Eighteenth-century thinkers were, as we now know, interested in how emergent systematic orders were generated from natural, material forms of existence. The question of the organismic unity of life and its reproduction was one of the central concerns of Enlightenment natural history.15 The unity of a democratic sovereign in the Enlightenment was therefore not necessarily a perversion of some older theocratic notion of the absolutist ruler (pace Claude Lefort), and it was not inevitably linked with imminent or pantheistic concepts of democracy that rely on the idea of the people as some genuine metaphysical reality. What is important about the Enlightenment conception of political sovereignty is its nonfoundational character. The unity of sovereignty that underwrites both political community and the legal rights of political citizens emerges as a logical construct from the reality of disorder and is not at all informed by theological understandings of some higher authority that legitimated itself and stands above institutional forms of order. Therefore, before trying to understand the nature of rights and law in abstraction, the political as an existential category has to be articulated. And indeed, as I show, Enlightenment figures were not the first to tame the political with modern constitutional ideas, as we sometimes assume; they were the first to discover the very autonomy of the political, extricated from any substantial

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historical or metaphysical understanding. It was only then that they were able to deduce the legal implications of the logic governing this political sphere, thereby inventing a novel way of thinking about the political subject as a legal subject yet without ever sacrificing the existential legitimations of sovereign power inherent in the concept. Once we have traced this intellectual trajectory in Enlightenment thought, from the existential category of the political to the constitution of a legal state, we can ask whether these relationships between rights and sovereign authority are limited to the particular kind of state form as it emerged in the early-modern period—a centralized, administrative sovereign entity with strong roots in military organization. As I suggest, Enlightenment thought has a deeper legacy. It is possible, that is, to see how a much broader understanding of the political can be generated from these ideas—and with it a rather new perspective on the nature of rights and the rule of law beyond the traditional nation-state form.

WHY ENLIGHTENMENT? ON LAW AND THE ORIGINS OF THE POLITICAL The Enlightenment is a powerful conceptual resource for our attempts to manage the volatile, fraught relationship between law and the political; this is not, as we might expect, because Enlightenment intellectuals were vocal critics of absolutism and ardent defenders of civic rights. Enlightenment thought is a useful space to rethink our own political tensions because it was during this moment that intellectuals were forced to frame the very question of law, and especially foundational constitutional law, in light of the emergence of the modern unitary state form. The Enlightenment reveals rather clearly this peculiarly modern difficulty of defending both communities and individuals within a legal frame. So my goal is not at all to mine the intellectual history of the Enlightenment for concepts that would underwrite either a “political” or “legal” vision of authority. That would simply repeat the critical impasse facing political and legal theorists today as we repeatedly oscillate between these two categories. Instead, I want to work through our contemporary challenge—dealing with the uncomfortable presence of an autonomous political logic that haunts the structures of the legal state and now the sphere of human rights—by returning to the eighteenth century only because that was when the problem of the interrelation of autonomous political power and foundational legal norms first appeared.

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This might seem counterintuitive. Usually, we take eighteenth-century thought as primarily the intellectual source of the principle of individual rights in society and of the constitutional theory of the division (and therefore limitation) of governmental powers. That is, eighteenth-century political theory has been interpreted as an effort to legitimate and thereby domesticate the state by seeing it as a product of human convention and thus completely subject to normative restrictions derived from theories of community formation. According to this view, once the state was freed from its complex historical dependencies in the seventeenth century, it was subsequently integrated into the sphere of society to manage and guarantee new social and economic relations.16 As Michel Foucault would suggest, a whole new form of “biopolitics” emerged in the late eighteenth century as a result of this turn, displacing classical, singular sovereigns who had the decision over life and death with a whole complex technology of power aimed at managing large populations.17 The vital importance of “political economy” in the period only highlights this turn as theorists attempted to define and control the flow of resources, within populations and in larger global trade networks, to protect the integrity of the social body.18 This perspective is not incompatible with the more “realist” theory of political autonomy, exemplified by figures such as Schmitt, who see in Enlightenment thought only a naive and dangerous attempt to rid the state of its primary principle of operation—namely, sovereignty—by reducing it to a mere function of the democratic institutions that serve the will of “society.” For Schmitt, the political in its pure form does not concern itself with the normal internal management of a society but instead decides the existential question of that society’s own preservation. The only logic governing the political is therefore the decision on the friend and enemy. The political is never limited by any social, economic, or moral norm—but at no time is it motivated by those norms, and this is what insulated the political from conflicts generated in those fields, strengthening its “neutralizing” power to decide potentially destructive conflicts. The political figure only decides the question of a community’s continued existence. This is why Schmitt criticized the Enlightenment effort to integrate the state into a social order that harbored plural values and norms: the political institutions would then become a mere articulation of that complex order and not an independent force capable of identifying the threats that put into question the society’s future stability. Such a dismantling of the political only makes sense if one believes that society has its own internal, automatic principle of self-regulation. According to Schmitt, at least, Enlightenment

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thinkers, informed by a deist theology underwritten by Newtonian mechanics, believed exactly that.19 Such a naive faith would only lead to disaster, as the French Revolution confirmed. The supposed failure of Enlightenment thought, then, is the failure to separate properly a political form of power from civil society and the institutions constituted for its governance. This interpretation of Enlightenment political theory is demonstrably incorrect and therefore occludes some of the most interesting and powerful reflections on precisely the question a theorist of political autonomy like Schmitt is grappling with, in particular, the perennial difficulty of how to think through the legal basis of institutions alongside the necessity of maintaining civil order in complex economic societies while protecting the community from internal and external attack. Now, to be sure, eighteenth-century intellectuals did relentlessly criticize the figure of absolutist authority, and they did develop an inherently legal conception of civil society based on foundational principles of rights. However, we must remind ourselves that these Enlightenment theoretical efforts were, in their original context, first and foremost critical interventions, theoretical positions aimed at elucidating the limits of the current monarchical form of power, at least with respect to its increasing involvement and interference in civil society. That is, we can admit that the Enlightenment was in part an intellectual effort to establish the principle of the autonomy of society with respect to the interventionist powers of the modern, centralizing monarchical state. Yet this interest in the limits of state intervention in social orders did not at all mean that Enlightenment thinkers were not interested in theorizing this kind of state power more broadly, in all its manifestations: just the opposite, in fact. With the question of the political in mind, we see that Enlightenment thought struggled to integrate existential legitimations of the sovereign state with the demands for civic rights of individuals based on a commitment to natural-law principles. My main goal is to show that these civic rights were not just conceived in opposition to absolutist rule or wedded to eighteenth-­century concepts of individual identity. As we discover, especially with Charles-Louis de Secondat, baron de La Brède et de Montesquieu and Jean-Jacques Rousseau, Enlightenment critique was aimed primarily at conceptually separating political rights from the sometimes overwhelming practice inherent in the disciplining of complex modern societies. In an age that saw the emergence of large-scale capitalist transformation of the economy, early industrialization, and shifting social hierarchies, Enlightenment thinkers were as acutely aware

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of the social pressures threatening the freedom and equality of the individual as they were worried about the excessive incursions of state power. Indeed, as Foucault indicated, in new forms of governance such as Enlightened absolutism and cameralism, it was the conjunction of sovereign institutions and the new social-scientific knowledge regime that produced the greatest threat to individual rights. We have been fundamentally misreading the major theorists of the constitutional state as if they were simply critics of sovereignty and therefore opponents of Schmitt’s effort to establish an autonomous “concept of the political”—that is, a theory of political action that sets it apart from any other human domain, including the social and economic spheres.20 Perhaps surprisingly, we discover that Enlightenment thinkers looked to the conceptualization of political autonomy for a radical theorization of individual right. We have been missing an important, highly relevant dimension of the influential Enlightenment theories of constitutionalism and political right with our focus on normative or communicative ideals: namely, their intense interest in war and foundational violence as a key to the understanding of right. I demonstrate how influential Enlightenment thinkers took war and sovereignty—even decisive, personal sovereignty of the kind advocated by Schmitt—seriously in their seminal conceptualizations of the modern constitutional state. It cannot be denied that the “discovery of society” was an important development in Enlightenment thought21 and helped intellectuals move beyond the formal limitations of natural-law theory in its earlier, excessively individualist incarnations; still, it was also the case that the major theorists of constitutionalism traced the origin of political institutions to the overwhelming violence that threatened nascent communities—the violence of military conflict, most obviously, but also the violence of civil war. And this was an effort to isolate the proper political form of rights, a domain that could be threatened by both social and economic networks of power and by excessive interventions on the part of sovereigns or state institutions. Once we have traced this line of thought in the period, we see that Enlightenment constitutionalism was born at a moment when ideas about individual rights and the norms of social order did not so much displace as confront, for the first time, the sometimes brutal realities of the modern military-security state, in an era that was, we should remember, marked by intense social and military conflict within Europe and, crucially, outside of Europe as well, in the new global theaters of colonial competition. It was the confrontation between

i n t ro d u c t i o n  d  9 

sophisticated new conceptions of political sovereignty and deep theoretical commitments to forms of natural right protecting individual freedom that provoked a complex theorization of the political as a necessary yet autonomous form of action at the center of the operation of any modern constitutional state. My central claim is this: contrary to what we might expect, it was precisely this sustained reflection on the nature of the political, that dangerous and threatening territory of existential conflict, that generated some of the most interesting and richly productive approaches to the fundamental nature of law (and with it protection of the individual) within that very same state. I hope to defuse, then, the contemporary anxiety over the “contamination” of any normative conception of rights by the violence associated with even democratically organized sovereign states. As I suggest, especially with my reading of Rousseau, the great insight of Enlightenment thought was that a specific form of political liberty and equality can only be located within this autonomous logic of the political because it was in the separation of that political sphere from the realities of social and economic existence that individuals would find legal shelter. While thinkers like John Locke and Montesquieu struggled to work through this somewhat problematic link between political liberty and the demands of foundational and preservational political violence, this connection between liberty and the political is the key conceptual move that I study closely as a way of rethinking the fundamental relationship between the rule of law and the existential logic of sovereign power in modern states. One reason we have misunderstood Enlightenment thought and failed to see how it discovered the political is that we assume that Enlightenment critique was organized in opposition to the idea that the political was an autonomous realm. In other words, we often think that thinkers in this period were deploying notions of social and individual autonomy against a powerful contemporary image of an autonomous political sphere—namely, the classic sovereign of the absolutist state. Enlightenment notions of popular sovereignty supposedly legalized this ultimate authority. However, I do not argue that eighteenth-century thinkers and later French revolutionary actors emptied or somehow transformed earlier concepts of absolutist sovereignty, resulting in a new form of legal-political power with its own contradictory impulses.22 Whatever the merits of that kind of analysis, I want to start with a rather different claim: we have to recognize that there was in fact no such “concept of the political” in the early-modern period for Enlightenment thinkers to react to in the first place. It is easy to think that the emergence of the independent

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state, accomplished by the end of the sixteenth century, and the emergence along with it of the discourse of radical sovereignty and “reason of state” somehow demonstrate that a theoretical notion of the political as an autonomous domain had also emerged. This was not at all the case. Early-modern concepts of the sovereign state were not in the least theories of the political, at least in the sense I am using the term, following Schmitt. This sovereign power of the state, however independent it might appear from some perspectives, was never fully conceptualized as an autonomous zone and therefore could never function as the foundation for legal neutrality. It was, in other words, always defined as an essentially derivative concept. The state would always be legitimated by an array of powerful cultural, religious, and metaphysical norms, which were accepted as more foundational. What I am interested in, then, is not the Enlightenment transformation of the concept of sovereignty (from the monarch to the “people”) and its consequences but rather the Enlightenment discovery of a more specific concept of the political. For me, the problem of the Enlightenment was not so much the legitimation of sovereignty through its redefinition as a democratic power as it was a legitimation of authority tout court via the radical concept of existential political foundation. The Enlightenment discovery of the concept of the political was prepared by undermining the legitimacy of authority and opening up a more radical question of the state in the seventeenth century. In the wake of the religious wars, any consensus around these cultural and intellectual norms was in collapse. On the one hand, this turmoil spawned a deep skeptical turn, but, on the other, it prepared the way for revolutionary new methodologies and epistemologies, most notably the kind of inquiry associated with the New Science. At this moment, the sovereign state, which was theoretically (and to a large extent practically) stripped of its various historical, moral, and cultural constraints, constituted a whole new theoretical problem of legitimation. Only at the beginning of the seventeenth century was there any real effort to think of the independent state in its own terms because only then was the state’s independence a theoretical problem. Where did that power come from and what were its fundamental limits? Modern natural-law theorists paved the way for the Enlightenment idea of the political because they were the first to legitimate the state by tracking its foundational origin and development as a purely rational construction of human actors in a state of nature abstracted from all contingent historical

i n t ro d u c t i o n  d  11 

accumulations. Drawing on controversial philosophical and scientific ideas, natural-law theorists in the seventeenth century understood human beings to be atomistic, “natural” individuals, possessing only certain minimal attributes that could not be challenged, capacities such as reason or the instinct for selfpreservation. Humans were stripped, that is, of all of their contingent cultural and historical content so that the formation of the state, and its legal institutions, could be understood in its formal and logical purity. However, as I show in chapter 2, the natural-law theorists, including Thomas Hobbes most prominently, ultimately failed to elucidate a specifically political principle because they could never find a way beyond the logic governing these rational individuals in a state of nature. They could not imagine, that is, a logic of political action that was not reducible to the logic of individuals seeking their own security. The natural-law theorists were caught within a circular logic: the state, as an institution and practice, could only ever serve the interests of the individuals who demanded its appearance in the first place. Political principles were entirely congruent with the foundational principle of individual survival and therefore were not specifically political in any real sense of the term. Political community had no inherent justification. Indebted to the natural-law tradition, Enlightenment thinkers took up the challenge of conceptualizing the state in the absence of any viable legitimation strategies. However, having acknowledged the failure of early naturallaw theory to comprehend the kinds of complex relations generated in real human communities, they were interested in tracking the plural “logics” governing the different planes of human existence. Far from celebrating the liberal rational subject as the pure origin of political right, Enlightenment thinkers progressively complicated the idea of this human subject as they deepened their awareness of the historical, cultural, and even physiological processes that shaped individual subjects and their social relations. Without returning to older notions of identity or morality, eighteenth-century thinkers identified the underlying logic of first social and then political kinds of organization. This was not an attempt to legitimate any one particular political form or even a particular concept of sovereignty. Acutely aware of the plurality of human communities across the globe, they pushed beyond historically contingent institutions and orders to generate a theory of social and political formation that took those categories seriously as independent objects of study. So before they even tried to understand the limits of political sovereignty and the nature of individual rights, Enlightenment thinkers were forced to understand the

12  d  in t ro d u c t i o n

specific logic that generated a political community in the first place. The goal, that is, was to disentangle the contingent forms of human community and locate the general, formal principles that governed its appearance. Against prevailing narratives of the history of political thought, I argue that the concept of the political, a concept that clearly delineates political action as an autonomous sphere with its own self-sufficient criterion of legitimacy, was not at all the object of Enlightenment criticism but was the very discovery of Enlightenment thinkers. To be clear, when I say that the Enlightenment discovered the political, it is not to say that there were no modern, autonomous states before this era or that state power was never fully conceptualized. What I want to demonstrate is that Enlightenment thinkers were the first to develop a precise theory of the political as a thoroughly independent logic of existence— independent, that is, of the specific structural characteristics of early-modern sovereign states and, equally important, clearly distinct from the cultural norms and functions that organized the social bodies these states governed. However, my goal is not at all simply to confirm Schmitt’s own existential concept of the political, rigorously defined with respect to the existential decision on friend and enemy, by showing that it emerged much earlier, in the eighteenth century. What interests me is not just the surprising fact that it was Enlightenment thinkers who discovered the autonomy of the political and located its origin in the foundational existential crises of human community; equally important is that at the same time they were developing sophisticated notions of the legal state and identifying the crucial role of natural, individual rights in the articulation of these radical political concepts. Since our own basic ideas concerning the rule of law and the nature of the legal state (however complex and contested they may be) were first developed in their modern form within eighteenth-century writings, we are literally still living, to a large extent, in a world structured by Enlightenment ideas. If it was in that era that the constitutional state was first imagined, then with a critical return to that intellectual sphere the constitutional state might be completely reimagined. It is within the matrix of these ideas that we can again defend the rule of law—and without being accused of supporting some simplistic caricature of the rational liberal individual. Rereading Enlightenment thought from a Schmittian perspective— however productive that is for my preliminary effort to defamiliarize the canonical texts in the following chapters—does little justice to the richness of eighteenth-century thinking on just the issue we now face in the

i n t ro d u c t i o n  d  13 

twenty-first century: how to navigate the specificity of political and security interests with universalist concepts of law and human rights. We can revisit Enlightenment theory in our own age—one that has seen the resurgence of the political within the state and in new global configurations and the international spaces of law—as a way of provoking a fresh perspective on the nature of the legal state and political right as we have inherited them (institutionally and conceptually) from this Enlightenment tradition. To escape the rather unproductive and historically entrenched opposition between an existential logic of the political (so crucial to the functioning of the state in war and crisis) and the equally powerful desire to establish some legal limitation on the state’s monopoly of violence (crucial to the rule of law in constitutional regimes), I want to look carefully at this eighteenthcentury moment and trace how these concepts were first developed in relation to each other and not in direct opposition. In other words, I want to show how Enlightenment thought was trying to draw out the democratic and legal implications of a concept of the political that was, admittedly, founded on a radically existential understanding of community that might seem at odds with those constitutional principles and the nature of individual right. This was not some naive universalism, grounded in substantial (and resolutely Eurocentric) notions of reason and liberty that we must now reject as anachronistic. It was, I argue, a universalist position derived paradoxically from a rigorous understanding of the deep historicity and contingency of human social identity. The individual of Enlightenment thinking was really just a conjectural figure, one aimed at isolating a pure logic of protection that was difficult to articulate within human societies that were continually training and disciplining individuals to function as parts of complex cultural and governmental systems. The influential Enlightenment theoretical texts analyzed here demonstrate in different ways that the political is not at all reducible to the operations inherent in these historically determined, powerful systems of social organization—just as the social organization itself cannot be reduced to the logic of interaction between isolated individuals. Unlike early-modern natural-­ law theorists, such as Hugo Grotius and Hobbes, Enlightenment thinkers emphasized how the emergence of complex systems with independent rules of functioning could deploy individuals for those systems’ purposes. But if the social and the political spheres had their own appropriate logics of operation, and if both spheres conditioned individuals to serve their logics, the great insight of the period was that the political logic, if understood properly, could

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be the source of powerful guarantees of individual freedom, unlike the asymmetric matrices of power generated by the logic of social, economic, and cultural organization. Once we see that the Enlightenment conceptualization of an autonomous political logic was strongly tied to radical violence and warfare—that is, to a pure logic of protection and defense—an analysis of the formation of a constitutional order of limitation not only has to take into consideration this existential political logic but also has to interrogate the central role of war in the formation and preservation of political communities. This important topic in eighteenth-century political theory has often been neglected because of a focus on popular sovereignty, legal institutions, and representative forms of government. However, the strong link between war and constitutional order is crucial because the crises that today seem to interrupt the normal function of the constitutional state (and the international legal order of states) stem from these key domains: war, terror, and enmity. As we see, the supposed conflict between “constitutional” and “political” visions of the state was never an issue limited to the question of organizing individual states. Even as it was first constructed virtually within the Enlightenment imagination, the modern constitutional state was always a state among other states. Therefore, the question of political authority and its essential limitation must be simultaneously interrogated from two perspectives: civil society and the interstate order. Indeed, this is why Schmitt claimed that the nature of the political was bound up with the friend/enemy distinction and the possibility of real combat. A political community was articulated only in relation to other political communities.23 This importance of war in Enlightenment thinking about the political only increases the relevance of eighteenth-century thought for understanding the political complexities of our own position. The question of the political and its relationship to legal institutions and norms has assumed even more urgency as novel forms of warfare and enmity affect the operations of the legal state but also now intersect with accelerating demands for the articulation and protection of human rights across national borders. The state, in this contemporary moment, is still an important locus for these networks of power and law, despite the persistence of claims of the decline of the nation-state form and the waning of sovereignty.24 Just as civic rights are both protected and threatened by the existential logic of political authority in the modern military-police state, so are human rights at once threatened by the existential sovereign and military

i n t ro d u c t i o n  d  15 

operations of states but also institutionalized and defended by specific political regimes that have the decisive commitment to enforce, with military power if necessary, the norms and obligations enshrined in international law. The point is not to criticize, as is so often the case, universal human-rights claims by underscoring the contradiction between this discourse and the specificity of its political implementation. Rather, the goal is to think about how universal rights can be derived from that political specificity.25 That is the promise of the Enlightenment, at least, as I read it: not the space for the appearance of somewhat vague, ahistorical notions of human rights26 (since the supposed universality of these substantial concepts is easy to deconstruct or historicize), and not the site that makes visible the dissensus between abstract rights and real political networks of power.27 In fact, it is a resource for thinking seriously about fundamental legal protection of the individual as it emerges from within the heart of existential political communities, including communities that are not necessarily congruent with the historical institutional form of the modern nation-state. It is therefore crucial to focus on the conceptual interpenetration of political and legal visions of state power in this period within a broader framework that encompasses war and foundational violence in multiple incarnations. Defenders of constitutional orders and the rule of law are forever condemned to opposing the vagaries of exceptional political authority, without ever effectively constraining it, until we understand more clearly how war and the existential powers of decision can be the starting point for the foundational elaboration of the constitutional state in the first place, something eighteenthcentury thinkers well knew. That is, by taking seriously the Enlightenment state of war as the originary constitution of political community, we can begin to see how the understanding of this logic of war does not interfere with or oppose legality but in fact prepares the way for the first thoroughly modern theorizations of political right and the rule of law. That subtle interplay between right and foundational political action is an important line of investigation for any legitimation of a contemporary system of law, including transnational humanrights regimes. This line of thought opens up a way of thinking about the political that does not at all deny what I take to be important arguments made by thinkers such as Schmitt. But in thinking through the autonomy of the political in the terms of the Enlightenment, we do not succumb to the conservative tendency to repress fundamental legal rights and constitutional principles as if they were

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somehow always secondary to this more formative existential principle. After establishing that the Enlightenment thinkers first discovered the autonomy of the political—and that their principle of autonomy was more radical than even Schmitt would imagine it—I explore how this concept of the political could be integrated with the legal, democratic, and egalitarian ideals that animate Enlightenment thought and that still constitute an important dimension of our own political vision. My first task, then, is to be clear about the central term of this analysis—the “political”—and its relationship with the history of political ideas and modern states.

THE CONCEPT OF THE POLITICAL AND THE CONSTITUTIONAL STATE The political has been used in philosophy and political theory to distinguish between politics or government and conceptualizations of the “ground” that makes possible the identification of these varied forms of human action. Generally, the political as a concept helps identify what makes something politics in the first place. While this might seem tautological, the point is that much of what we take to be politics is not necessarily political in the more foundational sense of the term. At the very least, philosophical reflection on the political demands a theorization of its autonomy since only an independent notion would allow us to mark out certain forms of action with specific criteria. The difficulty is that politics and governance are intertwined with other human spheres and other human values. The goal of marking out the political as independent of any other sphere is itself controversial because it opens up the possibility of a political power defined by no external limit. Nonetheless, it would be difficult to deny the importance of this idea of the political. Theoretically, the political must be set apart from the various practices of politics or theories of specific governments if we want to identify what it is that constitutes specifically political behavior—not because we want to celebrate that autonomy but because separation is the only way we can gain some critical perspective on the institutions of governance. Only with the concept of the political can the legitimacy of specific state action (or a state organization in general) be analyzed and criticized. This is one reason the idea of the political has always had an uneasy place in modern constitutional regimes on both theoretical and institutional planes.28 Once we acknowledge that legal

i n t ro d u c t i o n  d  17 

institutions and norms cannot always function in abnormal conditions of crisis, the separation of the political can be seen as valuable, if somewhat risky. We must ask: Who decides when the political should break free from the constitutional framework in order to protect it? Who represents this pure political force? According to Schmitt’s infamous argument in Political Theology, the genuine sovereign figure is the one who first decides there is an exceptional situation that exceeds legal determination and who only then decides the exception in order to restore order to the community.29 Yet however important crisis government has been to the survival of constitutional regimes, the many grim examples of murderous “emergency” and dictatorial regimes that have exploited this principle of political autonomy in the twentieth century (and beyond) demonstrate the crucial significance of institutional restraint and the value of the rule of law as a counter to excessive power. We seem to be repeatedly caught within a historical oscillation: driven to establish and defend legal mechanisms of restraint to protect against wayward political power yet forced to acknowledge the relative autonomy of the political in its existential incarnation when new forms of crisis open up the space of the political, challenging the normal operation of constitutional states. So it is hardly surprising that there are still political and legal theorists willing to argue that the very mark of a true constitutional state is the total subordination of the political under the law, for they believe that even a minimal legitimation of a purely political force could spell the end of the constitutional order. No doubt, there are often real fears (in America under the Bush administration, for example) of the increasing autonomy of executive power in times of war and crisis. This stems from the seeming disregard for constitutional and other legal limitations, including international legal norms, that this autonomy cannot help but provoke.30 That said, even constitutionalists have to assume the existence of a purely political domain of action. The real question, then, is whether it is possible to banish this political force from the constitutional legal state. Recent theoretical work endlessly configures and reconfigures the relationship between authority and law. Some deny the fact that emergencies present us with a problem of sovereign decision.31 The more pragmatic may tacitly admit that the political cannot be fully eradicated while trying to control and contain it as much as possible within constitutional norms.32 Others explicitly acknowledge the necessity of political decision in crisis situations, construing political figures as the ultimate defenders of the legal state.33 Some combine the two by emphasizing the legality

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of the most extreme presidential power.34 The very existence of the political is always a potential threat to the continued existence of constitutional states. If the political is truly autonomous, it is forever a ­double-edged sword—potential savior, yes, but also the potential destroyer of law. The complexities underlying this tense relationship cannot be underestimated. We can, for example, point to the difficult question of the role of the constituent power in the formation of a constitution as one way of explaining the almost chiasmatic link between law and the political. The political unity of a people must precede the formation of a constitution, but it is also the case that the constitutional foundations of the legal state are what allow a people to “preserve and reconfirm itself,” and for this reason, constitutional law is eminently political because “it immediately addresses the existence, form, and action of the political unity.”35 So to even begin to think about the legal state, one must pay particular attention to the political as a concept that links sovereignty, political unity, and the constitutional foundation. Using Schmitt’s conception, we begin by addressing the problem of how to separate the political from other spheres of human life in order to distinguish the specific kinds of action that emerge in existential conflicts. Then we see how Schmitt’s concept was itself a critical intervention in the history of the legal state. We must always think historically, not only about the nature of the state and of constitutional orders but also about the theorizations of these problems understood as articulations of specific historical moments. Schmitt was writing at a time when the state and civil society had, he thought, effectively merged in modern administrative regimes. Schmitt’s emphasis on decision was part of an effort to rehabilitate the political as a concept that would allow for the continuing preservation of unity in the face of serious economic and social conflicts and divisions within the institutional organization of government itself. For Schmitt, the Enlightenment was a dangerous resource for ideas about the state, mainly because the philosophes were engaged in an effort to repress the political in favor of the social, and so they had no relevance to the modern challenge of maintaining political unity in the presence of intense conflict and fragmentation. Also, the Enlightenment was the origin of liberalism, which privileged the individual over the state and therefore interfered again with the primacy of the political. This leads us to Richard Tuck’s seminal effort to link the emergence of liberal rights discourse (important to the development of the constitutional state) to the powerful existential image of the absolutist state at war. The state,

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operating under conditions of natural liberty in a volatile international sphere, was legitimated in terms of that foundational autonomy. However, as Tuck argues, the early-modern period constructed the vision of the autonomous liberal subject by adapting the very arguments concerning the legal status of the sovereign state in early natural-law theory. Like Schmitt, Tuck shows that the Enlightenment emphasis on society dampened the autonomy of the political. However, Tuck argues further that this move unwittingly weakened the autonomy of the legal individual, as well, since this autonomy was intimately linked to the image of the state as actor. Tuck’s work is important for my account because it raises the possibility of a historical connection between political concepts (such as sovereignty) and notions of natural right in the seventeenth and eighteenth centuries, thereby linking the theoretical idea of the political as developed by Schmitt and other theorists to the intellectual history of the constitutional state. In the end, I show that this relationship is much richer and more sophisticated than the mere analogy between sovereign state and free individual implies. I juxtapose Schmitt and Tuck as a way of showing that the supposed theoretical problem of the relation between law and sovereign power must always be understood in relation to the historical specificity of all theorizations of the political. At the same time, a blind historicism occludes the crucial development that occurred in the Enlightenment, namely, the attempt to use the very historicity of the human as a way of rethinking the logical structure of political authority and with it the natural-law tradition.

Carl Schmitt’s History of the Political The conceptual task of identifying the political is more difficult than it first appears. In his landmark Weimar-era book, The Concept of the Political, Schmitt showed just how deceptively complex the question of the political really is.36 We often assume we know what political means. However, the term is often used only negatively, to distinguish certain acts from economic, social, or other kinds of behavior. When defined positively, the political is simply associated with the activities of the state. Yet the state is itself defined as a political entity. Politics clearly have something to do with governance, the state, and law, but how can we identify the essence of politics without any reference at all to the historical and sociological richness of the state’s development? The only way to evaluate the legitimate boundaries of the state would be to articulate the state’s

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essential political nature, which we would distinguish from other functions of the state. Schmitt’s book was therefore an effort to define the political in its own terms, to clarify what makes something political in the first place. This meant abandoning any vague assertions about the state. In the end, Schmitt believed we are often deceived because the political is not a specific kind of action or purpose or sphere: it is not, as he said, a substantial concept. The political is, instead, a certain form of intensity that is always parasitic in relation to historically concrete human communities, whatever their particular orientation and organizing principle. The political was, as Schmitt avowed, an existential concept. By that he meant it involved the logic of existence governing human groupings, not the content or form of those groupings. This is what I take to be the most important dimension of the political as an autonomous sphere—not its autonomy per se but its character as a certain logical principle that must be embedded within some true form of human life, even if it is not wholly defined by that form of life. For Schmitt, threat was the key principle for the emergence of a specifically political logic. If, when threatened with dissolution, an association was moved to defend its existence, then, at that moment, this particular collectivity attained political status.37 What made a community political was the collective sense that this community was a final grouping, the last bastion of order, one that had to be defended to the death. This is why Schmitt identified the decision on the friend and enemy as the very mark of the political. Although the definition of friends and enemies would always be conditioned historically by the kind of relationship determined by the contingent forms of human association, the fact that an existential decision (and with it the decision to kill and risk being killed) had to be made demonstrated, for Schmitt, the emergence of the political.38 Schmitt’s development of a concept of the political was clearly influenced by Max Weber’s earlier sociological work, in which we see this same emphasis on the political as a formal unity and not a specific content or institutional form. In his essay on political communities, Weber insisted that a genuine political structure is something separate from mere economic or social groupings. The political community is not, however, just another grouping that would exist alongside them. It is more an autonomous form of regulation that expresses the existential unity of the society. A political association (unlike social or economic associations) is capable of “arrogating to itself all the possible ­values

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toward which associational conduct might be oriented.”39 We might say the political has no value save the generic value of association in and of itself. Following both Schmitt and Weber, we can emphasize that one essential aspect of the political is its inherent mobility. Any human grouping may attain political status. But once it becomes political, a qualitative transformation takes place. The logic of political community is a logic of regulation and control oriented to the survival and preservation of the community. This is why, for Weber as for Schmitt, a political association demands that its members face death for the sake of the group. This is also why thinkers like Schmitt can argue that the political can never be completely subsumed by legal regulation. The legal order only comes after the political order.40 Regulation and control of the community as a whole derives from the existential legitimacy of political institutions as instruments of coercive control. The political, for Weber, is understood to be the shelter against threats of disorder, whether they arise within the community or arrive from outside. If order is guaranteed by law, law itself is guaranteed only by the monopolization of force within a society by political organs because that force both establishes legal form and compels it. Weber’s insight was that this monopoly cannot be given by law because the political only emerges when the community as a whole identifies itself in these comprehensive terms. The political therefore does not defend the existent community as it does the self-conscious unity and identity of that particular community. There can be no constitution of law or monopolization of force until that political unity has been identified, articulated, and defended by the organs of a state form. If Weber was interested in how, with the advent of the modern state, the political had become acutely visible in military-security regimes, Schmitt was more concerned with the possible disappearance of the political in modern liberal administrative-welfare states. The Concept of the Political was, at least in part, an attempt to refocus attention on the importance of an existential political logic for the survival of conflict-ridden nation-states—a logic that had too often been repressed in the legalistic theories and practices of modern constitutional republics.41 This is why Schmitt has so much animosity toward the Enlightenment, a movement he associated with the deistic belief in the selfregulation of social bodies. Schmitt wanted to rescue the political via a new definition of sovereign decision that was nevertheless appropriate for the constitutional age. If law represented order within the state, then the breakdown of legal norms in crisis situations would lead to catastrophic anarchy unless some

22  d  in t ro d u c t i o n

figure could emerge to restore order, preserve the community, and make the legal system function once again. Central to Schmitt’s analysis was the preeminence of the political as the space for the ultimate existential decision. Political decision legitimated itself according to the logic of friend and enemy. Such political authority was therefore not at all dependent on traditional notions of democratic representation. The sovereign was the representative of the whole community. Only, this community was represented in what we might call its abstract unity and not in its pluralistic reality.42 Schmitt’s identification of the essence of the political was framed as an articulation of a transhistorical category of community formation and defense. At the same time, Schmitt strongly argued that because of its ephemeral, parasitic nature, the political was not always well understood in its historical incarnations. More often than not, the political was assimilated to the contingent community associations out of which it grew. In other words, the authority of governments and states was legitimated with reference to these other, more tractable, categories of association—religious, ethnic, national, or class groupings, to name a few. According to Schmitt, only with the emergence of the early-modern European state did a more purified political arena appear and come to be recognized as such. As Schmitt explained, the breakdown of civil and interstate order in the wake of the devastating religious wars in Europe led to the radical reformation of the institution of the state. The state was repositioned, practically and conceptually, as the instrument of order. At that particular moment, the restoration of order required that religious and other values be put outside state institutions. The state’s ability to bring order was therefore the consequence of its absolute neutrality. Neutrality did not denote indifference or compromise. The state did not decide conflicts on their own terms so much as neutralize them in the name of peace by depoliticizing the sphere of conflict itself.43 The absolute sovereigns that solidified power in this period were, ideally at least, impersonal defenders of security. Politics could thus be instrumentalized because the political end of the regime was not any one particular form of order but only the condition of order itself. According to Schmitt, the early theorists of the absolute state, such as Jean Bodin and Hobbes, were the first to glimpse the outlines of a genuine concept of the political. While I disagree with Schmitt’s implication that the age of absolutism developed a conscious concept of the political, he is right to emphasize the function of the state in this period. The neutral (or better, neutralizing) state transcended the concreteness of European nation-state formations because it enforced an abstract

i n t ro d u c t i o n  d  23 

existential unity through rational decision making that was aimed primarily at the survival and maintenance of the state form. Essentially, the state was the visible incarnation of a new form of unity that transcended actual human communities, which had been brought to civil war through fractured religious and other differences. According to Schmitt, if a genuine theory of the political was made possible by the historical emergence of an independent neutral political entity like the absolutist state, then, in the Enlightenment, the political was once again almost immediately repressed. The history of the modern state, and along with it the history of the conceptualization of the state, is for Schmitt a history of the emasculation and domestication of the political. The contractual theories of state formation combined with the development of concepts such as “society” and “economy,” led to the radical democratization of the state. The state was now understood to be just the instrument of society, constrained by constitutions invented by the people. For Schmitt, the concept of the political was first revealed in the early-modern period, because the state emancipated itself from the competing logics of theology and morality. However, this concept was occluded in the Enlightenment when the idea that the state was simply the instrument of a rationally organized preexisting social order took hold. The liberal idea that the state represents society in all of its plurality is a dangerous one. It promotes the kind of neutrality that allows conflict to escalate. The parliamentary state that emerged in the nineteenth century was essentially unstable. According to Schmitt, it was always threatened internally by the very divisions that needed to be overcome by the state as representative of a neutral unity. In the wake of the Great War, this modern constitutional state was in serious crisis, buffeted by internal political, social, and economic conflict, threatened by the demands and challenges of modern technologized warfare, constrained by a lack of decisive leadership. Schmitt’s goal, in this situation, was to rediscover a source of order within this state. That is, he wanted to rediscover the representation of that early-modern neutrality within highly contested political and legal institutions. This was the sovereign as described in Political Theology, a twentieth-century constitutional figure who would nonetheless function as an analogue of the early-modern monarchical authority. The contemporary version was decidedly not an autocrat, but someone acting instead as an ephemeral “guardian of the constitution,” a protector of the state as incarnation of the people’s foundational political unity.44 The sovereign was a defender of

24  d  in t ro d u c t i o n

the political community that comprehended the fractured and multiple identities making up late-industrial European societies and governments. Whatever we may think of Schmitt’s efforts to locate a new incarnation of the political in modern constitutional states, first in the Weimar republic and then at the heart of the revolutionary Nazi regime,45 his work expresses one of the most fundamental tensions in the historical development of modern European states. On the one hand, as historians and sociologists have repeatedly argued, the modern state was born as a military institution and its expansion into civil society—indeed, its reconstruction and homogenization of civil society—was largely driven by the demands of military conflict in Europe and abroad.46 On the other hand, the modern state has been subjected to extensive legalization and processes of democratization. In crisis, the state as militarysecurity regime resists these restraints, reaffirming its existential origin, while civil society in turn strives to resist excessive political incursions and the violation of individual rights, seeking to use state power to mobilize and regulate processes within that society.47 This is not simply a conceptual impasse, as some theorists imply, but a deadlock directly related to the history of our political communities.

Natural Rights and the Absolutist State at War The involution of the security state and civil rights precludes easy theoretical resolution because the involution is a product of the very special historical development that led to the formation of European states. As Tuck has persuasively argued, the repeated conflict between “reason of state” discourse (emphasizing the autonomy of the state) and modern legal ideas of individual rights has long structured our thinking about politics. The tension between state power and natural-law concepts of rights has always been difficult to reconcile. In the wake of the French Revolution, nineteenth-century figures tried to understand this relationship in historical terms, claiming that the political state was the shelter that would eventually bring individuals to their potential as free beings. However, the practical reconciliation of strong states and rights discourse, reflected in Georg Wilhelm Friedrich Hegel’s historicist synthesis, never held up, as Friedrich Meinecke pointed out long ago, leaving naked reason of state (in the form of modern totalitarianism) to emerge unchecked in the twentieth century. The challenge for early-twentieth-century thought, Tuck explains, was to reimagine a new synthesis of state legitimation and ­natural

i n t ro d u c t i o n  d  25 

rights in a time of intense crisis. Tuck makes the intriguing suggestion that the conflict between reason of state and natural-law discourse in the modern era is a rather strange one, and it is a conflict that is never fully reconciled precisely because reason of state and natural law are not so opposed to each other in the first place.48 As Tuck goes on to explain, modern natural law was not a counter to reason of state, and reason of state was not wholly alien to natural-law doctrines. According to Tuck, defenders of the newly autonomous absolutist state could not depend on any of the traditional resources for understanding governments. These defenders instead drew upon classical concepts of the legal individual to underwrite the state’s actions on the world stage, and they paid special attention to Roman legal concepts concerning the right to self-preservation. In new theories of war and in justifications for absolutist control in domestic affairs, the state was defined as a radical individual in the Roman legal sense of the term, subject only to its own reason as it sought to defend itself against enemies and other threats. It was only in the wake of this resurrection of a discourse of self-preservation, reason, and radical autonomy on the state level, Tuck argues, that a new model of the individual was born from the same set of ideas. The liberal autonomous subject, who possessed natural rights that were inalienable, may have had roots in classical jurisprudence, but the immediate source for this concept was the newly reimagined autonomous state celebrated in reason of state discourse and natural-law theory. This figure was modeled very closely on the actual sovereign states. The famous state of nature in which these individuals interacted, for example, was no mere conjectural fiction. Natural-law writers had a very real example of this condition: they observed powerful individual states facing each other warily in an international state of nature with little in the way of legal restriction, especially in the colonial sphere of competition. With Tuck, we see there was, at least initially, no dichotomy between reason of state and modern natural-law theory. They were, rather, mirrors of each other. “The natural rights theorists . . . simply took the jurisprudence of war which had developed among humanist lawyers, and derived a theory of individual rights from it.”49 Like Schmitt, Tuck sees real difficulties arriving in the eighteenth century because Enlightenment thinkers introduced complications that threatened the symmetry between individual rights and state authority. Tuck suggests that by injecting new ideas of natural sociability in the state of nature, Enlightenment theorists weakened the analogy between the radically autonomous state and

26  d  in t ro d u c t i o n

the equally autonomous liberal subject, and this could only work to weaken the very status of that individual within this political culture. (The state, presumably, could fend for itself.) The implication is that individual rights of the modern sort can only be sustained by feeding off the logic of the autonomous state. Paradoxically, liberal societies require the kind of state sovereignty that they so often try to resist.50 Tuck’s goal is to show how thinkers like Rousseau and Immanuel Kant were very much aware of this paradoxical condition and therefore reconstructed natural-law theories of rights in line with new conceptions of state autonomy in the global sphere. But Tuck is not optimistic about the possibility of such a reconciliation of sovereignty on the political and the individual plane in our own era. Tuck despairs for the survival of individual rights and not just because of a theoretical confusion on the part of rights theorists. Tuck realizes that because the state (and especially the European state) has steadily lost its independence in the new global conditions of capitalism, the model of radical autonomy has disappeared. States no longer have their state of nature where their power and freedom can be given free rein. As Weber first acknowledged, the first modern state was historically a colonial European state. Tuck adds that in the saturated, complex matrix of relations that constitute the post– Cold War world, the state is subject to plural constraints and can never fully recover the kind of autonomy possessed by seventeenth-century colonial powers like Britain or France. The modern state (and along with it, modern rights theory) was part of a peculiar, historically contingent interstate order that no longer exists today. Both the theory of the state and individual rights cannot be sustained in this environment.51 Historicizing the relation between political authority and natural rights exposes the anachronistic foundations of some of our core legal principles. Without citing Schmitt’s texts, Tuck dismisses Schmitt’s work on the political as just “naked advocacy” of a modern form of reason of state in the Nazi era.52 Yet Tuck’s own argument on the relationship between natural-law theory and the emergence of the state unconsciously repeats some of the main themes of Schmitt’s postwar work on international law theory and the problem of war and peace. Tuck seems unaware that Schmitt, in his important book Nomos of the Earth (published in 1950), moves well beyond the arguments in Concept of the Political, arguing that the autonomous independent state arose in Europe in the sixteenth century as part of an interstate order that would go on to survive

i n t ro d u c t i o n  d  27 

for more than two centuries. Like Tuck, Schmitt argues that we cannot ­separate our understanding of the political, as it appears in the modern state, from our understanding of how states related to one another within Europe, and in the larger spaces of colonial operations. Schmitt believes that in the wake of devastating civil and religious conflict, the “neutral state” secured peace within the territorial boundaries of the individual European nations and legitimated its independence from religious and feudal authorities with arguments for sovereignty based upon classical legal concepts of the individual. Schmitt recognizes that the rights of individuals were developed in this context: as a consequence of the state’s own neutrality.53 But equally important, for Schmitt, this state, in conjunction with other neutral states, transformed war into a complex extension of diplomatic maneuvering, which served to eliminate its annihilatory force. By conceiving one another as individuals in a state of nature, war could be limited. This is because each state, as an individual, had to recognize the equality of all states. International law was based on the idea of autonomous, equal individuals facing one another in a condition lacking any overarching authority. As Schmitt goes on to demonstrate, these individual European states formed distinct spatial arenas of coexistence. On the continent, they recognized one another’s right to exist and sought to maintain a kind of balance of power within this European territory. War between states was like a duel between individuals. However, in the open spaces of the globe, the domain of colonial activity and competition, these individual states flexed their autonomy and will more freely. Indeed, Schmitt suggests that it was only because of these “open spaces” of conflict that an orderly existence within Europe could be maintained.54 Like Tuck, following Weber’s earlier insight, Schmitt realized that the contemporary era, which had seen a massive transformation of global political order, could not continue to underwrite the modern European state (and thus the legal status of citizens in such a neutral political regime). There was no longer an open colonial space for the free exercise of violent competition. In the Cold War, the world was essentially occupied, divided between East and West. And with the advent of air and submarine warfare, potentially waged with destructive nuclear weaponry, no space on earth was really “outside” of any one single battlefield.55 For Schmitt, the modern state (and the legal institutions defining it and its citizenry) was a product of a historically specific moment marked by a certain form of military organization and a certain capacity for

28  d  in t ro d u c t i o n

waging war outside of Europe itself. With the disappearance of those historical conditions, our legal and political institutions were necessarily threatened. “The traditional Eurocentric order of international law is foundering today, as is the old nomos of the earth. This order arose from a legendary and unforeseen discovery of a new world, from an unrepeatable event.”56 Yet this approach fails to notice that Enlightenment concerns with historicity and power suggested a way out of this impasse. As I show, Enlightenment thinkers did not base their arguments for legal rights directly on the systems of power and law in place in the eighteenth century. Not that I would claim that their ideas somehow transcend their history and are therefore timeless. In the eighteenth century, a new way of legitimating authority and grounding natural rights emerged. It was one that took as its point of departure not specific claims about the state or the human being but the idea that human beings determined themselves historically and therefore were never wholly determined by any one particular historical trajectory. In other words, Enlightenment thinkers did not universalize their historical moment. They took the historicity of all political and social life as the very starting point for their defense of individual rights and legal order. It is this approach that I take to be enormously valuable today, as the substantial norms and values underlying liberal constitutional states and human rights regimes are contested anew. But for the moment, the main point that we should take from Schmitt’s and Tuck’s two different analyses of the imbrications of war, state, and individual is that the traditional resources of a political theory that is centered on the bounded relationship between individuals and states is of little use in this context. A modern concept of the political must comprehend at once individuals, state formation, and interstate relations.57 However, against both Schmitt and Tuck, I argue that it was in the Enlightenment that such a concept of the political was in fact first developed, and, further, this concept was not at all limited by the specific historical form of the state in place during this period of absolutism and expansionist colonialism. After first isolating the existence of an autonomous logic of the political tied to war, defense, and social order, I demonstrate how Enlightenment thinkers developed the implications of that logic for the elaboration of political and legal institutions. Enlightenment constitutions were from the start intimately linked to the violence of their own constitution. While this idea did open up the space for extraordinary state violence within the heart of the constitutional order, it was not inherently opposed to that order. Following the origins of the

i n t ro d u c t i o n  d  29 

political in the Enlightenment is revealed the legal nature of extraordinary violence that repeated the foundational logic of the political community itself. This Enlightenment concept of the political was tied to war, but it was not tied to the specific forms of warfare characteristic of early imperial sovereign states—as both Tuck and Schmitt in their own ways assert. The Enlightenment separation of the political as a logic independent of history allowed eighteenthcentury thinkers to evaluate political obligation in a whole new fashion. They placed it logically outside the contingent relations of social and economic orders. Despite the keen interest in the historicity of political systems and in the variety of human cultural forms during the eighteenth century, the Enlightenment notion of political foundation was ultimately an abstract one. But in its logical abstraction, it was a concept that could be applied to any organized community, and this is what constitutes its continuing significance for modern theories of the constitutional polity and, potentially, modern theories of transnational rights. A contemporary anxiety shared by many theorists is that any claim to rights is always contaminated by the claim’s origin in bounded political unities that inevitably wield some form of sovereign violence. This anxiety can be displaced by insisting on the fact that sovereignty defends a political unity that is essentially defined by the rights of its members. A political community is not therefore limited by the traditional boundaries of nation-state forms, despite its existential character. The great achievement of the Enlightenment was the discovery that the formal characteristics of a political community were absolutely independent of the contingent formation of concrete human communities, which were increasingly understood to be prone to injustice and inequality. It was within this autonomous logic of the political that genuinely modern individual rights (as opposed to cruder seventeenth-century versions) became possible. It was also within this logic that a new kind of state sovereignty, more sophisticated than seventeenth-century absolutism, would be defined and legitimated. The purpose of the state was not wholly derived from the nature of the individuals who formed it (or, pace Tuck, vice versa), but neither were individuals simply subordinated to some higher sovereign power legitimated by its own systematic unity. Rather, in the eighteenth century, the logic of the political produced at once both political individuals and politicized states—and it was in the relationship between them that a new space of law was imagined. Enlightenment individuals were understood to be political in their very individuality, even if this

30  d  in t ro d u c t i o n

i­ ndividuality was a kind of virtual condition, a logical artifice that was not at all derived from one’s historical existence. It is this political logic that I track in the following chapters, from its initial appearance as a problem in seventeenth-century natural-law theory to its culmination in the political writings of Rousseau. The separation of the political from the sphere of individual and social existence, the source of so much fear in constitutional states threatened by the excesses of executive authority, turns out to be the exact source of a law that stabilizes the position of the individual in society, within the civil state, and within a global order defined by enmity and warfare. My method draws on both the practices of contextualized intellectual history and the rhetorical analysis of texts. To understand what is at stake in these theoretical interventions, we must track the specific intellectual and historical context of the texts in question. However, we must also recognize that, in the Enlightenment, the concept of the political was discovered by tracing the origin of society and of political community in narratively complex conjectural histories and comparative anthropologies. These origin narratives therefore demand close rhetorical reading. The central ideas are not usually developed in explicit modes of argumentation but through an account of significant transformational moments in a story of development. Reading these texts we must pay attention not only to the more discursive arguments and claims that are being made but also to the way the text as a whole is structured, even if these texts resist total coherence in frustratingly complex ways. As Hobbes himself once wrote, “It is not the bare Words, but the Scope of the writer that giveth the true light, by which any writing is to bee interpreted; and they that insist upon single Texts, without considering the main Designe, can derive no thing from them cleerly.”58 I therefore look closely at the way these accounts of the history of civil society unfold in time and space, that is, to see how other cultures, other polities can reveal certain structural developments invisible within the authors’ own contemporary Europe. First, however, we must show why the emergence of the autonomous state in the sixteenth and seventeenth centuries—and its subsequent theorization in reason of state doctrine—did not ever produce what I call a genuine concept of the political. While these historical and conceptual developments did raise fundamentally new questions about the legitimacy of states, it was not until the modern natural-law theorists focused on the problem of origin, as a rather

i n t ro d u c t i o n  d  3 1 

new mode of legitimation, that the way was opened up for the discovery of the political in the Enlightenment. And so to understand that crucial transformational moment in intellectual and political history, it is important to see just how conceptually problematic the state was as it developed in the earlymodern period.

Chapter 1

The Autonomous State and the Origin of the Political

T

he modern European state was the product of a historical development in which a certain form of coercive power was separated and set apart from competing ones and ultimately recognized as the preeminent power, the “final authority,” within a defined territorial space. We cannot assume that the emergence of such an independent sovereign state in early-modern Europe signals either the practice or the concept of the political as such. Without a doubt, the foundations of the modern sovereign state lie in the formation of a new space of authority, and their consolidation and centralization in the volatile conditions of the sixteenth century led to new theories of legitimacy, most notably in “reason of state” doctrine and sovereignty arguments articulated at the end of the century. But it would be a mistake to interpret this theoretical defense of the impersonal sovereign state as an elaboration of the concept of the political. For the logic of the state in the absolutist period was, right through the seventeenth century, not quite an independent logic. The reason of state doctrine divorced state action from prevailing ethical norms; however, it remained, essentially, an instrumental way of thinking. The state, as an autonomous entity, was therefore at its heart always tied to principles alien to its own formal operation. The history of the political cannot be traced, then, as if it was a natural consequence of the emergence of the autonomous state in Europe. This is an extremely important point of departure for any analysis of the relation between early-modern thought and contemporary debates on the nature of constitu-

The Autonomous State and the Origin of the political  d  3 3 

tionalism. If the idea of the political is identified with the idea of the autonomous sovereign state, then any legal attempt to constrain this state is always (at least potentially) actively resisted, always threatened by a political essence that escapes this legal formalization. Yet any effort to subordinate the political to some external principle of legitimation always has to face the challenge of controlling the modern state apparatus, with an independence stemming from its instrumental character. In other words, there is something about the modern state, seen as a technical instrument of order, that always threatens to exceed any logic of legitimation. The alternative approach I propose argues that the emergence of the modern state form in early-modern Europe was indeed necessary for the development of a genuine concept of the political, but the structure of this particular state form was not at all essential to that concept. The rise of the modern state did not immediately produce a new concept of the political, though its success did produce new questions of legitimacy that hastened the development of such a concept. Once a particular form of centralized power in Europe had freed itself from traditional constraints and limitations, justifying itself primarily in terms of preservation—as we see in the classic discourse of reason of state— paradoxically, the fact of the state’s own existence was put into question. How could this particular state, this particular form of governance, ever be justified? Once we push to the limit the utilitarian pragmatics of a Machiavellian state power, the persistence of a regime as an institution could hardly be justified theoretically because success was the only criterion for judging the legitimacy of state actions. By the seventeenth century, this would become a central issue for intellectuals and government officials interested in securing stable regimes. The contingency of an instrumental “reason of state” logic invited an endless contest for control of the neutral central power, raising the specter of repeated cycles of violence. What could possibly justify any one kind of regime when political authority was divorced from any traditional context of legitimation? The lingering presence of theological, metaphysical, and even feudal forms of legitimacy (both institutional and theoretical) in this volatile period could hardly obscure the critical lack of foundational claims for state power. This acute difficulty, I suggest, spurred the first serious efforts to think about the origin of the state as an essential prelude to any conceptualization of legitimate authority. In the wake of this intellectual turn, the legitimacy of the state would be bound to the origin narrative of the state. This originary foundation would serve to underwrite the extraordinary interventional powers of the state.

34  d  The Autonomous State and the Origin of the political

Of course, this origin narrative was often conceived of in contingent historical terms. That is, the state’s authority (not to mention prevailing social hierarchies and even feudal rights within political communities) could be reimagined, even in the seventeenth and eighteenth centuries, in terms of its instrumental function within a society. However, what was more important was the revolutionary move, first made within new natural-law theory in the seventeenth century, to think of the origin of the state in logical terms. What was the reason for the state’s existence, and how did that particular logic support the existing institutions of government in this period? A complete theory of the political, however, would have to await the discovery that the logic of political foundation was in fact independent of the actual constitution of states by human beings in history. The earliest formulations of this approach were in the realm of contract theories of the state, where rational individuals came together to form political institutions. In the Enlightenment, as I demonstrate, this concept was fully articulated, leading to the idea that political authority was not strictly limited by more primary conceptions of individual natural rights. The autonomy of the political, as elaborated by eighteenth-century thought, was predicated on an abstract logic of foundation (and refoundation) that produced (and reproduced) a wholly new form of community. The constitutional state was, for Enlightenment thought, understood to be a political community where authority flowed from the repeated refoundation of that original “constitution.” Emergency power and military action were conceived as recapitulations of this foundational moment of constitution, not as the irruptions of some pure, unregulated force that had to be tamed. Only after this concept of the political was isolated could the more radically republican and democratic implications of this political logic be grasped and a truly modern theory of the constitutional state be born. The origins of the constitutional democratic state did not directly emerge out of an opposition to the absolutist, war-making states of early-modern Europe. However, to appreciate fully the novelty of Enlightenment political theory, we need to trace the origin and development of the modern European state alongside its theoretical articulations. Only then can we see that the emergence of the state did not at all give birth to the idea of the political but instead revealed the dangerous absence of any such idea, paving the way for a discovery of the political and a revolutionary rethinking of the state in the eighteenth century.

The Autonomous State and the Origin of the political  d  3 5 

It is commonplace that medieval forms of government, even early instances of central government, were not “states” in the proper sense because they were subject to other forms of authority—most obviously, the Holy Roman Empire and the church. Even if this subjugation has been exaggerated in some accounts, the medieval monarchies were hardly autonomous even within the borders of their realm as they coexisted with regional authorities that possessed their own legal and economic powers. The medieval state was not a proper state because it was not autonomous and did not have a monopoly over coercive violence within its boundaries or even over the conduct of warfare.1 The history of the true modern state has therefore often been figured as a history of the emancipation, consolidation, and constitutional limitation of these centralized forms of authority. What is frequently neglected in these accounts is just how unsettling the emergence of autonomous state power was in early-modern Europe. At each key turning point in the history of such an autonomous authority, new concepts were necessary to make sense of these institutional powers. A genuine concept of the political—an independent logic of the sovereign state—was a rather late response to a particular development in the history of the European state. It is therefore important to trace out—in admittedly broad strokes—the ways state institutions attained their independence in Europe because modern political thinking as a genre originated as a reflection on this particular historical trajectory.

STATES OF LAW The earliest unifications that followed the collapse of the Roman Empire in Europe were more or less the result of local conquests. Though the language of Roman monarchy may well have been deployed, a genuine institutional structure was largely absent. The paradigmatic example of early medieval rule was the Germanic king, whose authority was grounded in personal recognition. Stability and continuity (in space and time) were severely limited in this personal form of rule.2 The first lasting unities were not so much political as religious in character. Indeed, it might be said that the first enduring government institutions developed in the wake of Christian community formation and were at their origin subservient to those religious identities. Most clearly with Charlemagne but even after the collapse of the Carolingian empire,

36  d  The Autonomous State and the Origin of the political

the dominant theories of kingship would emphasize the essentially religious nature of this authority.3 The king, that is, had a special divinely inspired duty to uphold justice and to be the protector of the society. The embryonic state, from the ninth century on, functioned primarily to defend existing rights and customs within territorially defined communities.4 The political, as Michel Senellart has observed, was therefore entirely absorbed by the spiritual in the early Middle Ages. In effect, the medieval monarch was conceptualized as having the divinely sanctioned role of constraining terrestrial bodies for the benefit of souls.5 In practice, of course, the definition and limitations of temporal authority with respect to the church were often confused, and it was difficult to distinguish a clear boundary between them. But in the wake of the investiture controversies of the eleventh century, when the church reasserted its legal right to control its own institutions, a clear conceptual boundary was redrawn. Though the initial effect may have been to weaken the centralized territorial authorities vis-à-vis the church, this conceptual separation of domains in fact strengthened the claims of these entities within the secular sphere.6 As Senellart has explained, the “realm” (regnum) of the state was originally defined mainly in spiritual terms. The secular power of government (the regimen) cared for the “bodies and souls” of the community. Later, in the aftermath of investiture, Senellart sees the realm and the regimen becoming increasingly identified—the realm was defined, that is, in terms of the existent leadership. Eventually, within the concrete territory of the realm, the prince became relatively autonomous, and the extent of his control was understood in territorial rather than spiritual terms, though, crucially, the sovereign retained the practices of constraint developed in the earlier systems of spiritual governance.7 But what was the function of this secular power? In societies that were developing a robust commercial life and undergoing urbanization, central governments were being repositioned as protectors of life and property rather than simply souls. Depending on the type and extent of commercial life, varying forms of governance emerged in the Middle Ages to defend and regulate society, from the agriculturally centered territorial principalities in the north, for example, to independent city-states on the Italian peninsula and city leagues in the German lands.8 The important point is that central government authorities from the twelfth century on played a crucial role in maintaining the order of increasingly complex social and economic organizations. Yet as Thomas Bisson has recently argued, despite the extraordinary changes in European societies in this period, the power of lordship, or dominium, was primarily a personal

The Autonomous State and the Origin of the political  d  37 

force, felt in its concreteness and immediacy and not exercised through impersonal government offices or institutions. Lordship was “an expression of public power, official and utilitarian, with no implied antithesis between arbitrary will and social purpose.”9 It was the revolutionary reception of Roman law, and in particular Roman civil law, that provided a whole new language for the regulation of property and for the resolution of disputes in Europe during and after the twelfth century.10 This legal revolution was important for three reasons. For one, the traditional feudal relations that wove monarchs, nobles, and common people together in interdependent networks of duty and obligation were rapidly transforming as rights, duties, and obligations were becoming understood as possessions (and increasingly defined in monetary terms). These possessions had to be prescribed and protected with legal instruments.11 Second, this legal development in turn provided the opportunity for the central institutions of government to provide dispute resolution and the administration of justice. Central authorities expanded to fulfill these demands, and with increased revenue from these services, they thereby increased their independence from feudal taxation systems.12 Finally, Roman law provided new ways to ­conceptualize and justify centralized authorities.13 The structure of Roman civil law was quite obviously biased toward the form of centralized government. But more significantly, medieval governments could draw on the rich domain of public law in Roman jurisprudence to underwrite their own preeminence within feudal socie­ties. These societies were, in property law for example, redescribed in terms of Roman concepts, allowing for a fundamental reorganization of relationships within communities.14 The reception of Roman law, along with increased economic and social development within medieval societies, allowed temporal authorities—even in the newly expanding territorial states—to exert a larger degree of control over these societies as a whole and, simultaneously, to defend that role on legal grounds. Justice therefore played a critical role in the contemporary theoretical legitimations of princely rule. At the same time, Roman law offered new ways to understand traditional notions about the legal limitations of central authority.15 For example, the idea that the power of the king is something entrusted by the people to the crown went a long way to counter the king’s claims of sovereign authority, with ultimate decision-making power. So it is important to see that the initial emancipations of secular state power prompted some of the first theorizations of

38  d  The Autonomous State and the Origin of the political

constitutional limitation—even before the flourishing of this kind of theory in the wake of the reception of Aristotle’s work. In any case, the medieval government was considered, from many different angles, to be primarily a “law state,” whether sovereign independence or formal limitation was emphasized. No longer simply upholding a vaguely spiritual form of “justice,” the medieval ruler now defended specific legal rights and obligations and was in turn grounded by certain kinds of legal argumentation—however contested these may have been.16 By the mid-thirteenth century, as historians have shown, these centralized powers were becoming strong enough to generate a whole new discourse of reform aimed at regularizing the operations of the agents of the state.17 The emergence of parliamentary bodies and the writing of key documents, such as the Magna Carta, in this period only underscore this increasingly legal conceptualization of relations within feudal society.18 Whether “descending” or “ascending” theories of legitimation (to borrow Walter Ullmann’s terms) were deployed, the importance of law in these discourses cannot be overestimated. The rediscovery of Aristotle’s Politics in the late thirteenth century (and with it the rediscovery of the very word political ) generated a whole new theorization of these legal-political regimes.19 Aristotle provided a methodology for the study of governmental institutions that emphasized their naturalistic origins, which only sharpened the conceptual separation between temporal and spiritual authority.20 However, the Aristotelian idea that the political community (city) aimed not only at the security and prosperity of a people but, importantly, at providing the good life—that is, justice in some form—opened up rather challenging questions about the nature and extent of secular power. How could the justice of the medieval state, understood now as a political and not spiritual community, be defined in terms of its temporal powers? The need to defend itself against papal claims of “full powers,” even in temporal spheres, only highlighted the need for a specifically civil concept of the nature of government. Thirteenth- and fourteenth-century thinkers therefore imagined, with Aristotle and Roman law in support, what form of temporal government would constitute the best polity. Ultimately, the question was which kind of regime would provide the greatest order and stability for a society. In the legalistic framework of the Middle Ages, the king’s ability to bring order and stability was linked to his ability to uphold the law. Furthermore, the king’s ability to defend law relied on his independence from other authorities within and outside the realm. Medieval political thought, as a genre, emerged as a discourse of legitimation for monarchical regimes. It was a way of asserting the independence of

The Autonomous State and the Origin of the political  d  3 9 

the monarch from the authority of the emperor or the pope and from well-­ established institutions and traditions, such as nobles’ claims for control of territory or the customary law of the people. These concepts of sovereign independence were intimately linked with the prevailing Roman legal culture, to be sure, but we should also recognize that these concepts were certainly congruent with economic notions of possession and control that were becoming predominant in these societies. The ruler “possessed” the realm and controlled its functioning, at least according to certain legal rights, duties, and obligations.21 Especially in times of crisis, the king was the protector. An early form of reason of state (ratio status regni) was formulated in this context. Since rapid action was often crucial, on occasion, law had to be dispensed with. Drawing on Roman ideas of public utility and public safety, and selectively using analogies with papal authority, court jurists argued that the monarch could transgress the law (civil but perhaps even natural law) in the name of defense, without sacrificing the ideal of justice.22 The concept of the public good “encouraged the king to breach feudal immunities.”23 Order was a kind of metaphysical legitimation in later medieval thinking.24 Some of these same ideas provided a rich resource for the development of what has been called a form of medieval constitutionalism.25 If someone like Marsilius of Padua could argue, in 1324, that the sovereign’s temporal power is not at all derived from the power of the pope and that there can be only one singular power in any given territory—defending the autonomy of the monarch within his dominium—he also believed that the ruler ruled only through the consent of the people.26 And while the conversion of feudal rights and liberties (as well as duties and obligations) into legal possessions strengthened the role of the state as the final arbiter of the law, these newly imagined rights in turn constituted a theoretical and practical limit on the central powers.27 Still, the legalistic discourse underwriting these rights only amplified the juridical conceptualization of the state, allowing these governments to draw on the same kind of argumentation in support of their preeminence. Moreover, the increasing power of the centralized authorities is important to recognize, in part because of their growing role in societies and the increasing revenues generated from judicial functions.28 By the later Middle Ages, the status—that is, the “condition,” or state, of the realm as a whole—was directly linked to the standing of the rulers themselves, however we might understand the precise nature of this rule or its possible limitations.29 The legal state was, to a certain extent, personified in the figure of the prince.

40  d  The Autonomous State and the Origin of the political

And so at the end of the Middle Ages, on the threshold to modernity, two parallel discourses have been set in motion. On the one hand, there is a defense of the central state as an independent power—sovereign in its territory—that brings order and justice to a particular society, while defending that community in times of crisis. On the other, there is an acute interest in discovering the best kind of regime to fulfill that task. For this reason, the autonomy of the state at this moment was always understood as the autonomy of a particular kind of authority. It was not an abstract logic of the political as we have here defined it. Therefore, even if these parallel discourses in combination would open up myriad possibilities for the institution of the state, including early forms of republican, constitutional, and absolutist rule, the autonomous state in the Middle Ages earned its autonomy, so to speak, by virtue of its capacity to bring order and justice to the community as a whole. Arbitrary rule and the social good were not incompatible. Rule was predicated on intimate networks of protection and violence felt directly by people and communities. For medieval thought, the capacity to bring order was always rooted in a concrete form of rule, a regimen. The just ruler maintained the state in two senses: he maintained the status of the government, for only then could the realm be governed properly and achieve its own healthy status. However, in times of extreme violence and disorder, the ability to produce order could be distinguished from the formal structure of rule within a particular realm, preparing the way for a modern instrumentalization of government institutions. For example, in the northern Italian city-states over the course of the fifteenth century, forms of republican self-rule broke down in civil war, and various “tyrannical” despotic governments emerged in their wake. These new regimes often preyed on weaker neighboring city-states. Within certain theoretical frames, tyranny could be discerned in the violation of legal and social norms. And yet these new princes could themselves draw on Roman legal and political concepts to justify their authority not just abstractly but precisely because in these chaotic historical circumstances the best regime was simply the one that could found and maintain political unity in the midst of anarchy. As the monarchs saved Rome from republican disorders, so would the Renaissance princes save their own communities from internal dissension and persistent, brutal violence.30 Using Senecan ideals as their source, commentators would claim that the best ruler was the one who used his own reason to bring order—both within himself, by controlling the unruly passions, and within the realm as a whole, by controlling the sources of disorder.31

The Autonomous State and the Origin of the political  d  4 1 

Once reason was positioned as the negative means of producing order in the face of ever-present conflict, there was a space cleared for the separation of the political from the specific forms of rule. In this space, the operations of state power could be instrumentalized and therefore freed from traditional formal definitions, even as the state was simultaneously legitimated by its relationship to justice through its power to bring order and good to the community. The vastly influential Aristotelian notion of politics as the art of good government is in essence supplemented in this era of acute violence and conflict by the competing notion of an independent art of the state. The status of the realm, from this perspective, is preserved by the ruler whose traits—namely, the Senecan principles of reason, virtue, and justice—are now understood to be purely techniques of rule conducive to order, not those things embodied within the actual institutions of rule.32 If the medieval ideal of good government was solidly linked to a concrete form of government that was maintained by the ruler, a peculiarly modern idea of the state—one that produces a much more radical notion of autonomy—begins with the claim that this Aristotelian good is attained through the rational deployment of the art of the state: an art circumscribed only by the limits of rationality itself.

THE INSTRUMENTAL STATE Niccolò Machiavelli’s scandalous intervention was made possible by this new conceptual turn. In The Prince, Machiavelli simply denied that there was anything more to politics than such an art of the state. But at the same time, he destroyed the Senecan illusion by emphasizing the importance of violence in the rational project to establish and maintain the secular realm. For Machiavelli, the plurality of ethical norms and contradictory interests within (and between) human communities necessarily entailed the persistence of conflict, violence, and war.33 The true skill of the prince was best described not by stoic norms of rationality (which implied a certain aloofness from the fray) but instead as the proper instrumental use of force.34 Machiavelli’s well-known, indeed infamous, separation of virtue and virtu must be seen in this light as the elaboration of a new skill of preserving the realm via the rational use of force.35 The status of the realm is now its own end. Regnum is concerned only with itself, completely detached from any higher goal, even the higher goal of a worldly justice.36

42  d  The Autonomous State and the Origin of the political

As numerous commentators have observed, at the heart of Machiavelli’s theorization of the princely state was the medieval sense of an absolute identity between the ruler and his realm. The logic of violence was, to be sure, detached from any traditional ethical or legal norms, but it was resolutely attached to the secular values of the ones who governed. This is even more obvious when we focus on the republican dimension of Machiavelli’s work. The common ownership of the realm, as opposed to singular monarchical rule, is celebrated only because it can best offer the opportunity for the cultivation of freedom and virtue.37 The logic of the state (the institution and the stato of the realm) is ultimately in the service of other values—whether we read Machiavelli as an observer of monarchical rule or as a republican. In Machiavelli, efficiency is substituted for justice, but governing is still the practice of the ruler and so derives its meaning from that figure. As Quentin Skinner and others have noted, Machiavelli does not really have a clear idea of the state as an independent entity with its own formal and normative character. The institutions of governance were more a visible space of intersection between the state of the realm and the state of the ruler. This is why there can be no reason of state in Machiavelli. The state is not yet self-conscious and cannot have its own interests distinct from the people who maintain the condition of the realm and the vitality of the government.38 The modern state requires then not just the liberation of civil rule from ethical and religious constraint but also the separation of the institutions of rule from the interests of those who rule and of those who are ruled—something Machiavelli could not really imagine. Only by the end of the sixteenth century, as Skinner tells us, do we find “the idea that there is a distinct form of ‘civil’ or ‘political’ authority which is wholly autonomous, which exists to regulate the public affairs of an independent community, and which brooks no rivals as a source of coercive power.”39 Only in the sixteenth century do European centralized states begin to acquire genuine autonomy in this double sense. The concept of the political depends on this peculiar form of neutral dominance, for only when governance is literally separated from the organs of government can the political sphere even be conceptualized in its own terms. However, the discourse of the state in the sixteenth century, including that of raison d’état, declared and defended this neutral sovereignty primarily over and against other forms of coercive power competing for control of European societies. As any modern concept of the political would depend on the establishment of

The Autonomous State and the Origin of the political  d  4 3 

these neutral sovereign powers, the form of that particular state would be an important precondition for its elaboration. The modern state form in Europe can be directly linked to the organizational demands of new military practices.40 In the fifteenth and sixteenth centuries, recently unified sovereign territorial states, such as France and Spain, consolidated their positions and began to expand, competing for control of territory within Europe and, increasingly, abroad. Military strength became critically essential for the survival of individual states in this drive to war and conquest. Indeed, numerous states disappeared in this period as stronger entities assimilated them into their realms.41 Exacerbating the importance of armed strength was what has been called the military revolution, the dramatic transformation of the practice of warfare through improved strategic techniques and impressive technological innovations in armaments.42 One of the key factors in the development of modern state institutions was the cost associated with this military revolution. European states entered a near-permanent condition of war, and the nature of warfare demanded resources far beyond the traditional revenues of the central governments. As historians and historical sociologists have detailed, to pay for the escalating costs of war, these authorities had to increase their extractions from the economy and even intervene in the economy to boost production.43 If regional powers resisted new forms of taxation, as was their legal right, the central state had to subjugate them or bypass them altogether if it wanted to maintain effective armed forces. The result was that, in the successful states at least, whole new bureaucracies had to be constructed to replace traditional local institutions.44 The neutral state emerged from this constellation of factors. First, the central state had to neutralize conflict within its borders, often with military force, to assume more and more direct control over revenue extraction and the organization of armies. At the same time, with the expansion of the administrative machinery in these states, the personal ruler inevitably became more and more displaced from the center of power. In the sixteenth century, where religious and civil conflict, colonial competition, and the battle for supremacy within the continent made warfare perhaps the single most important factor in the transformation of societies, the central state first began to acquire real autonomy—independence from competing powers within and without but also a kind of autonomy from the very figures who occupied the positions of power.

44  d  The Autonomous State and the Origin of the political

REASON OF STATE AND THE ORIGINS OF LEGITIMACY Reason of state was the term used to denote the logic of this new form of authority in the sixteenth century. The phrase was always ambivalent, employed not only to defend the primacy of the state as defender of the people’s interest but also to criticize the unchecked power of emergent absolutist regimes in the period. The earliest usages of the phrase, first by Machiavelli’s contemporary Francesco Guicciardini, then by Giovanni Della Casa, and even in Giovanni Botero’s seminal 1589 book with that title, all appear in the context of the reception of Machiavelli’s scandalous separation of the art of governing from the sphere of morality. Both Guicciardini and Della Casa, for example, acknowledged that states do have their own specific form of rationality—even the most cruel, horrendous actions have a certain logic to them, they are forced to admit. However, they also believed that this isolated logic, taken to extremes, would only lead to disaster. The forms of civil reason (which includes ideals such as justice and honesty) were invoked, by Della Casa for one, not to displace the reason of the state altogether but to provide a tempering force. Taken to their own extreme, civil forms of rationality might endanger the state too. A healthy regime would result from the balance of these two kinds of thinking.45 As the century unfolded, however, this question of morality retreated. Reason of state is an ideological weapon specifically deployed in the increasing (and increasingly violent) struggles for control waged between centralized state institutions and powerful regional authorities and interests. The claims of the state in the later sixteenth century mark an abrupt move away from the search for the best state as a way of bringing order and a shift toward addressing the contingent task of preserving existing states threatened by internal conflict, even civil war, as well as by attacks from neighboring states.46 The logic of preservation, according to theorists of the state, would vary depending on the situation of highly individual states. The key was knowing the condition of this particular individual state and its environment. “For each state at each particular moment there exists one ideal course of action, one ideal raison d’état,” explained Meinecke.47 This is why reason of state doctrine is often characterized (by both defenders and critics) as a potential violation of ethical norms and legal constraint. The state is now defined by its role in defending the very existence of the realm. The autonomy of the state,

The Autonomous State and the Origin of the political  d  4 5 

exemplified in its own form of rationality, derives from its superiority over all other authorities the power to make these kinds of existential decisions. What distinguishes sixteenth-century reason of state ideas from similar claims derived from Roman concepts of sovereignty in the Middle Ages is this: in the medieval period, the extraordinary power of the prince was invoked as a way of negotiating the limits of his sphere of operation, whereas in the modern era, reason of state was a way of locating final authority in the figure of the ruler. Reason of state could only develop at this historical moment when certain states were in fact strong enough to break down such opposition and claim these unqualified rights to unqualified existential authority.48 At first glance, the doctrine may seem to imply an independent logic of the political. Reason of state “tells the statesman what he must do to preserve the health and strength of the State.”49 However, it is important to recognize that reason of state, as it developed over the course of the sixteenth and early seventeenth centuries, did not necessarily imply the absence of all norms, as if there were some fundamental opposition between state power and normativity. Reason of state instead preserved for the state the decision on which norms should prevail in any given situation.50 The highly contested discourse of reason of state was thus a crystallization of the experience of conflict that shaped the role of the state in early-modern Europe.51 Older notions of state rationality, which extended back to Senecan Renaissance models of princely self-rule, were opposed by new models of state authority defined by the liberation from both tradition and the idea of natural order.52 Reason of state never referred to what was beyond the condition of the actual state in question. The end of the state was simply the true nature of the state.53 For this reason, the state could not be tied to any one specific interest or goal. To maintain its historically contingent state of being, the political state had to transcend the particularities of its own contingency to act as a neutral force of integration and preservation. The autonomy of the state, according to reason of state theory, lay in its separation from competing claims of authority and power. The development of the European state was therefore a long history of the liberation of power from authority, with the process culminating in the concentration (both material and symbolic) of power within the absolutist institutions. By the seventeenth century, model states, like France, would no longer be seriously threatened by, say, the power of the church or claims of the nobility, at least in their traditional feudal forms.54 However, the newly liberated state was, in a sense, threatened by the very retreat of authority, in that contestation for

46  d  The Autonomous State and the Origin of the political

control of state institutions could and did flare into civil war in this period. To resist such challenges, the state, solely with its own resources, had to re-create a structure of authority that would underwrite its comprehensive control of “bodies and souls.” Whereas the language of divine right and the feudal discourses may still have been alluded to, the subject of reason of state had no clearly developed concept of foundational authority.55 This question of legitimacy within the abstract and impersonal state is what animated Jean Bodin’s revolutionary theorization of sovereignty in the late sixteenth century. The crucial point of his argument was not so much that the sovereign was the supreme authority within the state (this had precedent, within Roman public law, for example) as it was that the sovereign power of the state could only be truly effective if it was separated from the form of government that enacted it.56 In part, this was a practical question, as the French state was almost overwhelmed by internal conflict and dissent. But it was also very much a critical theoretical question, for the foundational authority of the state had been defined mostly in negative terms. Bodin saw that important to any nation’s unity was the power of integration and order that flowed from the sovereign state. Only the state could maintain its population. However, he also recognized that this capacity for integration was threatened by the very conflicts the state sought to mediate. Hence the crucial separation of sovereign authority from the institutional functioning of the state. The abstract sovereign power informed the specific powers of those who defended the unity of the state and its functional ability to maintain the integrity of the nation. The state now becomes an omnipotent yet impersonal power, which is to say no one single figure truly incarnates sovereignty.57 Sovereignty binds together the multiple dimensions of governance in the early-modern state. For Bodin, this was all a way of bringing harmony to the functioning of regimes in a time when traditional legitimations of monarchical rule were no longer tenable. Bodin in fact rejected the usual metaphorical understanding of power. The system of the republic was not, he said, governed by a hierarchy of ordering understood as a series of commands flowing from a singular, all-powerful entity. The sovereign figure was, in Bodin’s portrait, hardly independent and self-sufficient; he relied on a substantial link with the citizenry and the “material support” of the “national community” as a whole.58 The well-ordered republic was therefore a “pyramid of functions” that produced a model of cosmic harmony through a totalizing process of ordering. An abstract sovereignty was the preeminent source of this ordering function. The princes

The Autonomous State and the Origin of the political  d  47 

drew their power from this foundational source of “order.” Ultimately, Bodin would figure this space as the domain of law. All human beings obeyed this law, even the sovereign of the realm. Admittedly, the actions of the sovereign power were not always constrained by specific legal provisions. Still, the legitimacy of extraordinary action—what we can call reason of state—flowed from the abstract ordering principle that animated the state. With Bodin, the constitutional state is grasped for the first time, for the institutional rulers are legitimated in terms of a fundamental law, not a written constitution, to be sure, but still a legal principle of order. The problem with Bodin’s theory of sovereignty, according to Meinecke at least, is that although in principle there is an abstract, legal concept of authority wholly separated from the practices of the sovereign regime, limiting them in theory, there is in fact no formal or institutional limitation restricting the powers of the sovereign figure—and there is not any real theoretical obstacle to rebellion and revolution. The adjudication of legal order was not located in any specific institutional mechanism. As many commentators have pointed out, Bodin’s own work was infused with a faith in cosmic harmony, a faith that precluded any serious inquiry into the epistemology of order. Bodin offered a test for the appearance of sovereignty within the realm; however, the only real test of legitimacy was success. Bodin’s own career, of course, demonstrates the dangers of relying on this faith in the principle of order at any one given historical moment. What we find in Bodin is the paradoxical fragility of legitimation within strong and increasingly independent state structures at the turn of the century. Reason of state was, for Bodin, a discourse of legitimacy that highlighted the normative independence of political decision. However, while Bodin’s constitutional form may well have effected a separation between sovereignty and actual sovereigns, hinting at the possibility of a logic tying the principle of preservation to the realities of state power and governance, he offered no way of navigating the indistinct boundary between them, precluding any conceptualization of a new kind of political action.59 Yet reason of state after Bodin was also a technique used by some sovereign powers to produce the kind of order and harmony necessary for the common good. The technique was founded on the gathering of information.60 Reason of state could then become a new form of knowledge deployed by executive power to predict the future and contain disorder. As such, it constituted the reason of a particular state, the reason of a political body seeking internal harmony

48  d  The Autonomous State and the Origin of the political

through control of its citizens.61 Extraordinary, extralegal acts of state (inside the realm or in the interstate order) were characterized as acts of self-control. In influential theories of the state developed by Justus Lipsius, the neostoic concept of reason introduced is not simply an instrumental art of governing, as it was for Machiavelli. Now in moments of civil conflict and crisis, reason brings harmony in the state as it does in the individual, by controlling the passions of the body. Reason of state in this neostoic form is not the reason of the one who rules but more the reasoning of the whole political body, analogous, in a way, to Bodin’s spirit of sovereign authority. Reason reacquires a certain moral dimension in this context. It is not that reason is simply in the service of moral norms but that it can be exercised in the name of order and harmony and thus constitute a kind of moral action.62 This stoic morality of self-discipline underwrites the neostoic state’s actual disciplining of the political body. The state is understood to be the organ through which this bounded body controls itself. This comprehensive technology of power effaces the centrality of the prince’s authority, revealing, more clearly than Bodin even, the independence of the autonomous state. The state is more or less a merely functional site of what we might call, with Michel Foucault, a comprehensive process of governmentality.63 As Foucault observed in this context, reason of state doctrine would always be limited by its assumption of the existing state, precluding any investigation into the legitimation of these existing political bodies: “no origin problem, no problem of foundation, no problem of legitimacy, no longer any problem of dynasty.”64 The state was authorized by its ability to preserve itself and the state of the realm, but nothing underwrote this particular state, this particular form of government. This theoretical openness to contestation was a difficulty that haunted European states such as France and England, as they experienced civil wars and other competitions for power through the seventeenth century. A modern concept of the political—and a modern ground for the autonomous state—had to specify not only external principles of legitimation underlying government institutions in general but also a self-contained logic of the state’s own proper existence. Hence the importance of origin narratives in the development of a modern concept of the political. These stories were the answer to the problem of how to legitimate the state as an institution and not just as a series of practices or goals. The very foundation of the state would mark the starting point of a truly political principle of government and serve to justify its ability to intervene in conditions of conflict, danger, and disunity.

The Autonomous State and the Origin of the political  d  49 

Gabriel Naudé’s Considérations politique sur les coups d’états (1639) exemplifies this important transitional moment in the history of political thought. As Louis Marin has pointed out, what is novel about Naudé’s justification of violent “exceptional” acts on the part of the sovereign is his emphasis on the origin of this violence. The sovereign did not merely act instrumentally (as reason of state would hold) to preserve the realm at all costs. The sovereign, in acting in an extraordinary way under extraordinary circumstances, was understood as reenacting the violence that founded the state in the first place.65 The coup was an exceptional decision made for the safety of the state, to be sure. But in its excess, with its terrible violence, the coup in fact reaffirmed that original need to act in a world that is fundamentally contingent and therefore always in flux. The sovereign enforced order within a tumultuous temporal condition characterized by disorder.66 Therefore, the moment of exception (which may seem to have been an occasion for the violation of norms and laws) reveals an insight into the very nature of the political—its function as the production of order amid chaos. Unlike Machiavelli, who believed crisis revealed the repressed violence at the heart of any political foundation, Naudé saw violence as an incarnation of something new. The legal status of Naudé’s sovereignty therefore differs from Bodin quite dramatically. In Bodin, the sovereign is an agent of a cosmic order and legitimated by that order. For Naudé, the sovereign is not so much agent as founder of contingent order in a situation of cosmic disorder. The violations of norms, long understood as hallmarks of sovereign state power even before the development of reason of state doctrine, are articulated by Naudé in a startlingly new way. Naudé moves beyond the assertion of state power over and against other competing powers; the violence of violation now constitutes a repetition of the foundation of the state as the space of order and safety. In its exceptional, violent form, the coup institutes a form of law. The realm of legalistic practice, which maintains order within the state, is therefore only the representative of this original violent force of the state that brings the community together in the first place. The coup cannot, according to Naudé, violate the laws of the realm because the laws are only the representatives of force within the state. There is no contradiction between exception and norm in Naudé’s theory, since the exception has been reinterpreted as the expression of the foundational power of law. As Marin explains, this perspective provided a new theory of legitimacy for the monarchical regime: through the “miraculous” acts of the king, the two realms of law and force were brought together in their originary form. Again, we can note the difference traveled

50  d  The Autonomous State and the Origin of the political

from Bodin’s theory of sovereignty. For Bodin, law, as the spirit of order and harmony, comes before the acts of the sovereign but cannot ever act directly, which meant that it was difficult to differentiate genuinely “legal” decisions of the sovereign from those that were merely expedient. In Naudé, force is what institutes order, and therefore law (and with it, legitimate power) derives its authority only from that original violence. We can see why it is only in times of real crisis that this extraordinary power needs to emerge, to repeat this original violence; hence Naudé’s insistence on the rarity and unusual character of authentic coups d’état. The challenge for seventeenth-century theorists of the state was constructing some principle of government that would not be overwhelmed by reason of state thinking. Naudé points to the importance of the origin of the state as the space for conceiving a new political principle. Indeed, the frame of the exceptional act extends back to the foundation of the state, unlike reason of state justifications, which are tied to the contingent moment of the act and the prospective benefits for the political body. The appearance of modern natural-law theory in the seventeenth century highlights the shift in thinking about the state in this period. Rather than seeking new “founding principles” to ground the functioning of the state—principles that would succumb to the instrumental logic of the modern state, not to mention the skeptical dismantling of all universalizing principles in this period—natural-law theory focuses on the logic of foundation as a way of legitimating the state’s authority. As Leo Strauss once remarked, Machiavelli prepared the way for this modern turn to natural law. When Machiavelli turned away from the ends of state action to focus on the causes of this action, he highlighted the inherent conflict at the heart of any human community. Machiavelli argued that “justice” is only ever possible within an established social order. This is why the defense of order is not constrained by principles of justice. Legitimacy is oriented to the necessity of human foundation: “the founding of civil society, the supreme case in politics, is imitated, within civil society, in all extreme cases.” For Strauss, this is why all modern political thinkers are committed to the idea that “the extreme case is more revealing of the roots of civil society and therefore of its true character than is the normal case.”67 Machiavelli’s own thinking about origins was relatively simplistic—any society was merely the contingent historical result of particular relations of force. What distinguished modern natural-law theory in the seventeenth century was its interest in interrogating the true, scientific origins of social and political institutions. Or as Strauss put it, “The complete

The Autonomous State and the Origin of the political  d  51 

basis of natural law must be sought, not in the end of man, but in his beginnings.”68 And so the state became an object of analysis in the seventeenth century only in part because it had largely established itself as an independent, autonomous entity in a time of civil and religious conflict, as Skinner demonstrated. At the same time, the pure instrumentality of reason of state discourse threatened the state’s preeminence from the moment it had established itself. The state, once freed from its historical constraints, demanded a new foundation at a time when a consensus on foundational truths had collapsed and the state had in fact gained its position by acting as a neutral arbiter in the ruthless struggle over principles and truths. But what was the foundation of this rather violent force of neutrality? The state had become an object of analysis at the end of the sixteenth century, emerging at the confluence of intertwined but disparate historical forces in early-modern Europe. However, the urgency of that analysis was driven by the very absence of this novel entity’s legitimation. Its history was vague, projected back into a primitive, “medieval” past, opening up the question of what constituted and grounded the novel modern form of the state.69 This is what made a new concept of the political imaginable. The legitimacy of the state could now be understood as a function of the logic driving its own formation, rather than in terms of its historical appearance. This speaks to the importance of natural-law theory in this period. Methodologically, the natural-law movement self-consciously abandoned both traditional principles of legitimation and cynical theorizations of power based on contingent historical developments. The goal of natural-law theory was to uncover the necessary logical foundations of authority and obligation, to provide a criterion for the evaluation and support of actual state power. Looking closely at the origin narratives presented in these theoretical texts, we see how these accounts are presented as a series of transformations, from an individual existence to a social one and from a social life to a civil and legal community framed by the institution of the state. To locate the space of the political means to locate that exact point where a new logic of human action begins, a logic not at all governed by the previous state of affairs that prepared its emergence. The achievement of natural-law theory was, first and foremost, the separation of the question of the political from the contingent appearance of actual state regimes. How these early-modern theorists disentangled this question is our first task in tracking the discovery of the political.

Chapter 2

States of Reasoning MODERN NATURAL-LAW THEORY

W

hile natural law has a long history and was a particularly important dimension of scholastic philosophy, the theory was deployed in the seventeenth century in a profoundly new context and with radically new methodological principles. It is too simplistic to locate that modernity simply in the secularism of the philosophical approach, exemplified in Hugo Grotius’s infamous claim—the so-called etiamsi daremus—that his derivation of natural-law principles would be true even if there were no God. As we know, neo-Thomistic writers were saying much the same thing in this period, echoing earlier scholastic use of this idea.1 Still, the fact that natural-law theorists, such as Grotius, Thomas Hobbes, and Samuel von Pufendorf, were still entangled in the language and maybe even some of the conceptual structures of scholastic thought cannot hide the fact that modern natural law thoroughly rejected the idea that any given social or moral order could be assumed to be legitimate. In an age of philosophical, religious, scientific, political, and economic controversy, the search for clear, universal principles of agreement shifted, because they had to take into account the exact condition of controversy, not to mention the violence and warfare that stemmed from it. What made modern natural-law theory modern was its starting point, taking human nature as it is presented in the early-modern period: it was incapable of epistemological certainty or of sustained agreement on any contentious issue, driven by self-interest, and prone to excessive violence.

States of Reasoning  d  5 3 

If the modern state had emerged in the early seventeenth century as an entity with no real rival for authority, that status had paradoxically stripped it of legitimacy. To legitimate the state meant to rediscover its true origins— that was the task of natural-law theory. Why was there a state in the first place? What was its essential purpose? What were its limits? The technique was to cut through all of the assumed moral principles (the obvious source of so much controversy) and establish the true origins of proper conduct. This required the portrayal of a more abstract, purified space, one that would precede any human community. By returning to a pure origin, natural-law theorists would be able to isolate the precise development of social and political order. Further, they would be able to understand the proper laws governing both the order of human communities and the relationship of these communities one to another. As Grotius put it, in an early treatise: “Where should we begin, if not at the very beginning?”2 The goal was to begin with principles that everyone agreed with and then derive obligations from that starting point. Natural-law theory attempted to do away with the problem of moral pluralism and relativism by returning to the individual human being in order to trace the implications of this creature’s capacity to decide its own good. In the process, it introduced a whole new problem. It presented the difficult challenge of locating the foundation of agreement in the isolated, purified individual. Ultimately, what human beings shared was neither an innate moral sense nor a common cultural inheritance. They shared only a singular will to self-preservation and, most important, a rational mind. If earlier skeptics had taken the fact of disagreement as an indication that maybe no universal moral truths were available, seventeenth-century figures would reimagine universality in light of new empirical epistemologies and naturalistic understandings of human nature. Modern natural-law theory is really a theory of human reasoning understood as resolutely human—that is, as self-legitimating. Moral truths (and their social or political consequences) could therefore be ascertained in a way analogous to other sciences. The radical nature of the theory lay in the fact that reasoning began not with the divine creation (however this might be understood) but with embodied, natural human beings, marked by their diversity of interests, desires, and passions. The trick of modern natural law was to use this diversity, and the evident conflictual tendency of human interaction, as a new foundation for universal claims. Behind this technique lay a redefinition of human rationality. No longer was it the

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capacity that linked us with a transcendent divinity; reason was now understood to be a particularly useful instrument of survival. With Richard Tuck, we can begin by remarking how seventeenth-century efforts to ground the authority of the new sovereign state borrowed extensively from the discourse of reason of state (with its emphasis on self-interest and selfpreservation). However, this doctrine was applied not to governmental institutions but instead to individual human beings in a state of nature.3 This was to be the new foundation of political order. The legitimacy of the state would flow from its origin as a product of individuals’ own reasoning about their condition. This origin would be staged as the encounter of individual sovereign entities, each possessing the ability to defend (rationally and physically) its own particular existence. Once the state was interpreted through the lens of a peculiar human rationality, reason of state was turned into something quite different—what I would describe as a state of reason. Nevertheless, in redefining the state in terms of a new logic of individual rationality, natural-law theory would tend to preclude the elaboration of an autonomous logic of the state; that is, it would fail to generate a genuine concept of the political. What was crucial to the development of a concept of the political in the Enlightenment was more the methodology of the natural-law tradition in the seventeenth century than its specific arguments. Legitimacy was now a function of origin. To understand the state, one had to begin at the beginning, to unfold a logical tale that could not be rationally denied. As with any logical narrative, the crucial goal was to identify the appearance of something radically new. Yet natural-law theorists, resolutely tied to strict definitions of individuality modeled on sovereign states, could only hint at something beyond the logic of individual rationality. Through an analysis of three exemplary seventeenth-century texts in the natural-law tradition (by Grotius, Hobbes, and Pufendorf ), I look closely at the way these authors isolate the logical development of social and civil forms of organization, paying particularly close attention to their understanding of human bodies and human cognitive functioning. If, as Carl Schmitt has claimed, all modern political concepts are secularized theological concepts, we should recognize that natural-law theory in its modern incarnation was drawing on radically new metaphysical principles grounding the New Science. That is, the congruence of political and metaphysical concepts can be traced in the new methods of analysis—to think of something as a kind of machine, to be understood by taking it apart and tracking its internal functioning. The human

States of Reasoning  d  55 

was just such an object, a thoroughly material creature with certain capacities and passionate motivations. Both Grotius and Hobbes rely on very strict conceptions of the natural, rational human being, but this rigorous method has a surprising result: on close inspection, their hugely influential accounts of political states and sovereign power are not, in fact, political at all. Only with the more complex portrait of human nature in Pufendorf do we begin to see how an independent concept of the political could ever emerge in an origin narrative that begins at the absolute beginning—in other words, with the individual human being alone in a pure state of nature. It is Pufendorf, then, who exemplifies the shift to a whole new way of understanding the logic of human community, opening up the way to an Enlightenment conception of an autonomous political being.

DISEMBODIED REASON AND THE NATURE OF SOVEREIGNTY IN GROTIUS It is somewhat ironic that Grotius is still ritually invoked as the father of modern international law. For as Tuck and others have so forcefully demonstrated, Grotius’s effort to systematize rationally the law of nations was, first and foremost, an attempt to legitimate some rather predatory forms of state (and nonstate) violence, and, assuredly, not a pacifist effort to control or eliminate the violence of war. For example, Grotius’s first major treatise, De Jure Praedae, a commentary on the law of prize and booty written in 1603, was a legal defense of the seizure, by a private trading company vessel, of the Santa Catarina, a Portuguese ship in Singapore Strait that was carrying a cargo worth a staggering sum, which was later auctioned off for profit in Amsterdam.4 Famously, Grotius claimed that because the seas were by nature open to all, the Portuguese (having declared ownership of these particular trading routes) deserved punishment according to natural law. What is more, this punishment could be inflicted by any representative of the natural law—an individual, a commercial association, or a sovereign state.5 Grotius’s tactics marked a significant shift in the way natural-law arguments were used. He emphasized not the order of God’s creation, an order that would ground principles of human action, but instead the peculiar characteristics of the individual parts of the whole creation. These entities have, Grotius noted, “received from Him certain natural properties whereby that existence may be

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preserved.” For Grotius, the “first principle of the whole natural order” was love, but this love was directed at one’s own self-interest. As he explained, expediency was in fact the “mother of justice and equity.” While Grotius denied any status to the natural order as a meaningful whole, he did propose a principle that was difficult for anyone to reject. He used this principle (that there is an impulse to self-preservation, even among inanimate objects) to deduce some basic natural laws.6 First, it was permissible to defend one’s life. Second, it was permissible to acquire and retain things useful to life.7 At the same time, Grotius recognized it was God’s will that there be “mutual harmony” between individuals in nature. Significantly, he argued that this harmony was not so much natural in itself as it was linked to reason, the singular human capacity. Human beings form societies because they realize the necessity of offering others security to receive security in exchange.8 This allowed Grotius to preserve the individual’s right to protect oneself, and, at the same time, to underwrite the legitimacy of acts that are to protect the rights of fellow human beings. This was the key move that led (after some very creative maneuvering) to the justification of the seizure of the Santa Catarina. In his famous and influential treatise, On the Law of War and Peace, a mature work written amid the Thirty Years’ War and published in 1625, Grotius “begin[s] at the beginning” with a description of individuals before detailing the emergence of social order and then civil institutions. The goal, again, is to locate the precise parameters of legitimate state violence. The key conceptual starting point, as Grotius had already noted in De Jure Praedae, is the nature of human rationality. In analogizing the individual and the state, Grotius endows the state with a new kind of organizing principle.

The Violence of Reason The starting point of On the Law of War and Peace is the culture of violence that marked early-seventeenth-century European history: civil and religious violence within states, war between states, and, equally important, violent conflict for the control of global trade. The European state was, in effect, a state of war, and the persistence of violence, in so many different spheres and forms, fueled the idea that the only law that could govern these conflicts was literally the law of the strongest. Though he couched his argument as a contribution to the debate over perennial issues that go back to ancient times, Grotius was of course responding to the radical rejection of any normative rules ­delimiting

States of Reasoning  d  57 

state conduct. Unlike earlier natural-law theorists, such as Francisco Suárez, Grotius’s goal was not to critique and limit violence but rather to give this prevalent violence some order and conceptual shape. As Grotius noted in his dedication to Louis XIII of France, to be “just” in this new climate meant acting according to rules that all would acknowledge to be true, thereby mimicking the “discipline of that age” when Christians all agreed on their faith. The point is that in this new age, in which Europeans were “wearied by strifes,” it was not at all clear where this agreement might be found.9 Grotius’s revolutionary move was to evade all traditional legitimations and begin with a neutral, minimalist conceptualization of the natural individual. This was one that could gain universal assent in a time of great intellectual controversy. Grotius is the first to agree that the present state of laws in the international sphere is rather shaky, leading to the realist position that there is no “natural law” other than the principle that men and animals alike “are impelled by nature towards ends advantageous to themselves.” Using the figure of the ancient skeptic Carneades to represent the reason of state arguments prevalent in the period,10 Grotius writes that these realists see no gaining of justice because acting for the benefit of another would be only a “supreme folly,” as it would be necessarily contrary to one’s own interest (P §5). Against this view, Grotius makes a crucial point, one that is key in the analysis and the foundation of his conception of human institutions. He says that men are not like animals—they have an impelling desire for social life, which he defines very carefully as “peaceful, and organized according to the measure of his intelligence, with those who are of his own kind” (P §6). This mention of intelligence (intellectus) is significant. For as Grotius says, even animals in the wild act against their own interests and help their fellow creatures—younger storks, for example, care for the elderly, and dogs generally do not eat each other. And human children, he reminds us, are often spontaneously good to others. However, Grotius does not want to claim that these natural inclinations could ever found universal moral principles. This is because these inclinations themselves have no foundational principle. They are external to the acts they produce and to the beings that perform them. Animals (and animal-like children) are essentially divided—they have an internal drive to act to preserve themselves, but sometimes they are driven by some other external natural force to help others. So what distinguishes human beings from animals (and genuine society from bestial associations) is what he calls intelligence—that is, reason, the

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capacity for understanding. Reason makes all human action internally coherent. We act for a reason, which is to say, we act according to principles that we have discovered ourselves over the course of our experiences. In human beings, the external principle of natural sympathy becomes internalized and generalized by the operation of reason (P §7). What Grotius has to explain is why we decide to act for others, why we live in a social order that demands certain sacrifices of our self-interest. The answer is extremely important. For as Grotius writes, the “maintenance of the social order, . . . which is consonant with human intelligence, is the source of law properly so called” (P §8). The logic of the social order, discoverable by reason, is the ground of all legal norms and the obligations that flow from them. Grotius’s goal of identifying “certain fundamental conceptions which are beyond question,” certain normative demands that “no one could deny them without doing violence to himself,” is now defined as the search for basic principles that are inherently rational, impossible to deny without denying one’s rational nature—one’s own humanity. While Grotius hardly dwells on what we mean by reason, he does suggest that it is first of all an ability to act in one situation according to how we acted in similar situations. Reason is the ability to generalize, and it results in the capacity to move out of the present and into a more complex temporality. What Grotius calls the human “power of discrimination” is in essence the power to evaluate our condition within a broad conceptual and chronological matrix. Reason in this form is what allows us “to decide what things are agreeable or harmful (as both things present and things to come), and what can lead to either alternative” (P §9). Because it takes place out of time, in an atemporal space generated by reason, the well-tempered judgment is not at all led astray by rash impulses, fears, or the allure of superficial pleasures—the demands of the body in its concreteness. Reason is therefore more important than bodily instinct, even though each is governed by what Grotius calls the “first principle” of nature—the drive to self-preservation. If, as he writes, we are bound to maintain ourselves in the condition nature gives to us (this holds true of humans and animals) and if this entails holding on to what is conformity to our nature and rejecting what is not, humans must look beyond what reason tells us is proper. We need to seek what is in conformity with reason, just because it is rational. Human nature is human because of this rational capacity, linked to our privileged position in nature, and this is why reason is “superior to the body” (1.2.1.1–2). Reason is therefore essentially disembodied for Grotius, in that it can ignore present conditions and act for the well-being

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of the ­individual according to a more complex understanding of conditions, even conditions that do not exist. This is the nature of man, his “essential trait” (P §12)—not his actual desires, inclinations, and passions, which are so diverse. It is this singular ability to act for an unknown future that is the nature of man. We as humans rely on this ability to see the broadest perspective on our present condition so that we are not driven by impulsive reactions to momentary problems or opportunities. Reason is the construction of a virtual world within the mind, a world that separates us from the insistent demands of the particular moment. At this point, Grotius wants us to agree that, clearly, any social order relies on certain basic rules being followed: abstaining from taking what belongs to others, restoring what belongs to others, fulfilling promises, making good of losses that are our fault, and inflicting penalties on those who disobey (P §8). Grotius is rather vague on why human beings find themselves in society in the first place, as he adduces a number of reasons why human beings desire to be together. However, he does point to one crucial factor strengthening the social order: “expediency” (P §16). If we do not exactly need other human beings to survive, it is certainly the case that, individually, we are very “weak,” and that we “lack many things needed in order to live prosperly,” making it expedient to join with others for mutual support (P §16). The main point is that once society is founded, the principles necessary for its existence are grasped quickly by reason. In following the law (these precepts of reason), we repress the momentary impulses of our bodies because we know society is important for our survival. To illustrate this claim, Grotius analogizes individuals and individual states: it is rational for a state to forgo its immediate interest in the pursuit of a peace if, in the end, this is more beneficial to the state. Just as a criminal violates law for “an immediate advantage,” but in so doing “breaks down” the order that secures real advantages “for all future time assured,” so too the state that transgresses the law of nature and the law of nations (the principles of international sociality) “cuts away also the bulwarks which safeguard its future peace” (P §18). Because the individual and the individual state may well need the help of another, they must therefore seek to maintain a functioning society (P §§21–22). Grotius is not advocating some utilitarian calculus so much as he is arguing for a disembodied reason to battle continually against the strong pressures of immediate passion. It is a “mark of wisdom” to obey law, even if no advantage is perceived, Grotius believes, because the sphere of law reveals our most human nature—our intelligent, rational capacity. Of course, it is the

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constant struggle between bodily inclinations and disembodied reason that raises the challenge of maintaining social existence, whether among individuals or among states. What Grotius argues is that the institution of the state, with its sovereign leader, is simply a rational solution to the problem of enforcing a natural law that may be easily discovered by reason, even if it is not so easily obeyed in particular moments. At the global level, however, there simply are no parallel institutions of enforcement. War, for Grotius, is a substitute for the kind of judicial decisions and enforcements that characterize state action within a society. This is why war can, according to Grotius, be governed by law. War is the instrument through which the society of nations maintains itself as a human society—one governed by universal rules understood by reason (1.1.1.3). For Grotius, a just war is, like sovereignty, just another expression of reason and not at all the failure of reason. But it is not reason of state. That was simply the justification of the immediate interests of single states. Grotius is interested in the kind of legitimation that emerges from universal principles. Given the parallel between sovereignty and war as vehicles of natural law, a closer look at the origin of the state reveals more clearly how violence in general is framed and delimited by natural-law theory. But does sovereignty introduce anything new (conceptually) to the equation?

Sovereignty as Artificial Mind For Grotius, the purpose of society is resolutely tied to the individual: “For society has in view this object, that through community of resource and effort each individual be safeguarded in the possession of what belongs to him” (1.2.1.5). When Grotius makes the point that any force threatening society is prohibited by natural law, it is because that threat ultimately is dangerous for the individual. Now, the figure who enforces this principle within a society is called the sovereign—the one who is not subject to legal control and hence can decide conflicts between individuals. Grotius makes it clear that the figure of the sovereign (who can be “one or more persons” according to national custom and law) is conceptually distinct from what he calls the “common subject” of sovereignty. This distinction is important. Grotius is really arguing that the function of sovereignty must be understood in conceptual terms. The legitimacy of sovereign power stems from its character as disembodied—literally extracted from the individuals making up the social order. This is why a particular person (for example, an infant king, an insane king, a captive king) may

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well be in fact the “sovereign” but cannot actually exercise sovereignty. Sovereignty is, as these examples tellingly indicate, the ability to instantiate the rationality of the society taken as a whole, and like human reason in general, its aim is to preserve the existence of its “body” (the society), and thereby protect the existence of all of its individual members. The sovereign is therefore not a new power with a new formal principle of activity. The logic of sovereignty exactly parallels the logic of reason that governs individuals in their efforts at self-preservation prior to the introduction of the civil state. The sovereign, “in order to maintain public tranquility,” simply takes over the same decisions about defending rights within society (1.4.2.1). And the sovereign duty to defend the society against enemies flows directly from the rationale of those who form society in the first place: “In the first instance men joined themselves together to form a civil society . . . of their own free will, being influenced by their experience of the weakness of isolated households against attack. From this origin the civil power is derived” (4.7.2). What makes the sovereign special is not the specificity of its action but rather its constitution as a site of reason extracted from the many particular views within the community. Sovereignty is in essence an artificial mind, a form of artificial intelligence that can see the long-term implications (for society) of any present action. The point to underline is that the rationality of the sovereign, just like the rationality of the mind, is predicated on a separation, because reason must ascend to a general view: as Grotius puts it, “We are considering the maker of laws not as a part of the community but as the one in whom the power of the entire body resides” (2.4.12.1). Sovereignty is defined less by this power than by its capacity to disembody itself, or, at least, its power is drawn from this capacity not to be any one place in particular. This is why there are no “rights” of resistance for Grotius—those who are not in the position of the sovereign are not even able to see the problems society faces, let alone deal with them effectively.11 In fact, no one has the right to kill even an acknowledged usurper because the genuine sovereign so displaced may well have decided that it is best for society that this usurper maintain his position, and the alternative might be that “the way should be opened for dangerous and bloody conflicts.” Grotius quotes Marcus Favonius, saying, “Civil war is a worse evil than unlawful government.” He adds this remark from Marcus Cicero: “Peace on any terms between citizens seems more advantageous than civil war” (1.4.19.1). The point is that we can never know exactly when the threat of civil war lurks, and so only the sovereign can make this decision.

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Grotius’s discussion of an emergency, one in which the sovereign is not truly present and the situation must therefore be dealt with locally, nicely illustrates the function of sovereignty. When there is no time to consult the sovereign, of course, one must act to preserve oneself and the social order. That is the first principle of natural law. “Of such a justification Lucius Pinarius, who was in command of the garrison at Enna, Sicily, availed himself. Having learned with certainty that the people of the town were planning to revolt to the Carthaginians, he had them massacred, and so held possession of Enna” (1.3.4.3). In this kind of case, Grotius makes clear, the official does not actually take over the decision-making power of the sovereign in his absence. While it is certainly possible that the sovereign may delegate war-making authority, without this specific legal affirmation, however, the public official cannot begin a “movement of arms” on his own (1.2.5.1). In an extreme emergency, the subordinate official does not try to do what the sovereign would have done in that situation. As Grotius says, “It is not enough to consider what under such conditions would be acceptable to him who holds sovereign power if he could have been consulted” (1.3.5.3). This is because the official, being local, has no capacity to see the situation from the perspective of the whole state and cannot therefore substitute himself for that view. Instead, in the absence of the sovereign the “real point,” for Grotius, is “what [the sovereign] would wish to have done without consulting him” (1.3.5.3; emphasis mine). What Grotius emphasizes here is the importance of what he calls the “general consideration,” the hallmark of genuine rationality and the prerogative of the sovereign, that artificial mind of the society. The general consideration (concerning the state’s safety, most critically) would be fatally compromised if these decisions were taken over by particular officials. As Grotius later puts it: “Individuals ought not to take it upon themselves to decide a question which involves the interest of the whole people” (1.4.19.2) because what constitutes the interest of the whole is itself a decision of the sovereign, the figure defined as the one who can disengage himself from the particularity of interests in the society to see most clearly the best path to security. Grotius, unfortunately, has little, if anything, to say about either the theoretical or the practical institutional difficulties involved in converting an actual individual human being, with his or her singular and limited reason, into such an effective site of generalized reason in the form of a “sovereign” mind. It is enough for Grotius that he establishes the sovereign as that figure of disembodied reason, the only person capable of deciding the fate of society. Therefore,

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that power then is essentially unquestionable, so long as it does not ever patently contradict the foundational principle that animates social order in the first place: the protection and safety of the individual body. Grotius points to a potentially new concept of the political (the construction and operation that would be specific to this new kind of “artificial mind”). However, he never fully theorizes this provocative and challenging conceptualization of such a distinctive zone of thinking and acting.

HOBBES’S POLITICAL ROBOTICS Like Grotius, Hobbes emphasizes the crucial role of reason in the development of a legitimate state. Grotius not only constructed but also evaluated the practice of sovereignty in terms of a disembodied individual rationality. While Hobbes obviously takes a great deal from Grotius’s approach to the problem of grounding the sovereign state, his own understanding is radically different and in many ways much more modern. For while Grotius adhered to a conception of rationality that did not significantly differ from earlier scholastic models, Hobbes’s cognitive theory was quite innovative, fully informed by the extraordinary developments in natural philosophy, physiology, and epistemology in this age of scientific revolution. Hobbes’s reason was, in contrast to Grotius’s, decidedly embodied. As is well known, Hobbes (like most leading intellectuals of his time) thought of the body in resolutely materialist terms, as if it were a “machine,” albeit a natural one. However, more provocatively, Hobbes (unlike most other intellectuals) was willing to assimilate the higher mental functions, including reason, to that machinelike entity. This is doubly significant, for Hobbes famously conceptualized the state as an analogue of this human “automaton,” even though the state was for him a decidedly artificial machine. As Grotius already observed, the sovereign was a kind of artificial reason. The question is, how did Hobbes understand that intelligence as thoroughly embedded within material “machines,” whether artificial or natural ones? In other words, if reason was not a disembodied capacity but just one more function of the material body, then how could we imagine an artificial mind as it was “embodied” in that artificial “great man” (homo magnus) that is the commonwealth? We might think the reason of the state would be roughly congruent with human reasoning, given Hobbes’s use of the automaton figure to describe both

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individual bodies and the great body of the commonwealth. There is, however, a fundamental disanalogy between the artificial state machine and the robotic individual in Leviathan, and it is this radical difference that raises some interesting—if somewhat neglected—questions about the nature of the political in Hobbes’s theory. Because the state is an artificial automaton, it necessarily takes a form that is quite different from a natural living body, despite the fact they share certain machine characteristics. The machine that is natural is organized in quite a different way than the artificial. This is why the state requires, according to Hobbes, a whole new kind of organ, one that has absolutely no analogue in the natural animate body—a “sovereign” organ of decisive unity. The functional distinctiveness of this artificial sovereign would seem to point to the emergence of an autonomous concept of the political in Leviathan. However, while I agree that Hobbes certainly raises the question of the political in his account of artificial sovereignty, his understanding of human nature and human cognition precludes any meaningful development of this concept within the terms of his own theory. The Hobbesian human robot is no doubt a complex machine with a sophisticated system of cognition and perception. Indeed, its greatest achievement, for Hobbes, is its ability to conjecture a political form that would resolve all of its existential anxieties—that is, the artificial body of the sovereign state. Yet this necessarily remains only an imagined, virtual edifice that never acquires (in theory or in practice) the kind of stable organization it needs if it is to do the work it is required to do. In other words, the artificial automaton is forever displaced into an impossible future. Hobbes’s political theory is not so much a theory of the political as it is a guide to individual survival in the very absence of the political.

The Robotic Soul If, as Hobbes claims at the start of Leviathan, “life is but a motion of Limbs,” it is fair to say that any artificial self-moving machine—an automaton—must have “an artificiall life.” But as Hobbes himself provocatively suggests, drawing on the latest developments of the “mechanical philosophy,” the human body is a kind of automaton, a machine whose motion, we might add, is governed by its form and structure, the overall design of its mechanism.12 However, the human robot is not like other complex automata imagined in this period, for it demonstrates not just self-motion but also the peculiar capacity we call reason. An artificial man, Hobbes implies, would therefore also have to be rational to

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some degree. So if the political body were such an artificial man, then reason would be the key feature that would have to be artificially reproduced, as Grotius already suggests in his own way. Hobbes’s project in Leviathan is to give an account of human reason as essentially embodied and then to suggest exactly what kind of “artificial intelligence” the state must possess to operate successfully as a kind of automaton analogous to the human being. As Hobbes mentions in De Cive, the usual metaphor of the body politic situates the supreme power in the head. However, he believes that a more accurate comparison would analogize the relationship between sovereignty and the body of citizens to that of the soul and the natural body. “For it is the soul by which man hath a will, that is, can either will or nill.”13 In line with more traditional conceptions, Hobbes can say that the will is a “faculty” of the soul.14 In Leviathan, Hobbes confirms and elaborates on this analogy when he remarks that the automaton that is the “Body Politique” is constructed artificially from a series of “Pacts and Covenants,” and within it “Soveraignty is an Artificiall Soul, as giving life and motion to the whole body” (9). The soul, it is implied, is “a mere component of a machine artificially manufactured by men.”15 Hobbes then goes on to map out the seemingly straightforward analogical similarities linking the political machine with the body: wealth is like strength, reward and punishment are like the nerves, and so on. Yet the key conceptual problem is of course rationality, for it was this capacity that usually defined the human soul, at least in the Aristotelian intellectual tradition so influential in the early modern period. It is particularly striking, then, that Hobbes argues at all for the existence of what he calls an artificial soul in the commonwealth. For as we well know, it is Hobbes’s daring materialist understanding of human beings that calls into question the very idea of the soul in any form. According to Aristotle, all living bodies have “vegetative” souls that give them life. Animals have feeling and perception because of their “sensitive” souls; however, only human beings have a rational soul, an “intellect.” All of these categories were put into question with the rise of mechanism in the new science.16 Hobbes is one of the more bold, infamously reducing the rational, intellectual capacities of human beings to the level of sensation and calculation, which can, in turn, he posits, be comprehended on an entirely materialist basis. Though we should hesitate to ignore the implication in Hobbes that natural bodies do have something akin to vegetative souls, in the guise of some organismic form of organization (this turns out to be crucially important, as I demonstrate), still, Hobbes rejects

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completely the idea that reason and intellect demonstrate the existence of some immaterial, disembodied soul. As he claims in his famous objection to René Descartes’s “Second Meditation,” we could explain human thought and reason perfectly well without referring to such a spiritual entity. In the later sections of Leviathan, on scripture, Hobbes further demystifies the theological concept of the soul, assimilating it into the new (and newly problematic) notions of organic life in this era of the mechanical philosophy. Hobbes tells us that “the soul in Scripture, signifieth always, either the life, or the living creature; and the body and soul jointly, the body alive” (425). When God breathed spirit into Adam, he was just giving him “vitall motion” (278). Hobbes also strategically quotes Deuteronomy: “Eate not the Bloud, for the Bloud is the Soule, that is, Life” (425). He is likely alluding to Harvey’s recent important discoveries concerning circulation and the function of the heart, but, at the very least, highlighting the material foundation of bodies and their vital functions. In an important sense, “life” for Hobbes was just the continued motion of the body in question. However, it was also the case that from the very beginning of the scientific revolution and the rise of the mechanical philosophy, theorizations of nature were never thoroughly reductionist, and Hobbes’s theories were no exception. Living bodies were no ordinary machines and could not be fully analogized to certain human artifices so often invoked in this period.17 Organic, animate bodies were understood to be organized in such a way as to continue their motion without external impulse—a watch, a plant, a human being, all were special kinds of “machines” precisely because their high degree of organization allowed them to produce from within their own motions, thanks to their intricate design.18 That structural form of organization was hardly explicable in purely mechanical terms. Hobbes says that “the Soveraignty is the Soule of the Common-wealth; which once departed from the Body, the members doe no more receive their motion from it” (153) and that “the Soveraign, is the publique soule, giving Life and Motion to the Common-wealth; which expiring, the Members are governed by it no more, than the Carcasse of a man, by his departed (though Immortall) Soule” (230). We therefore have to ask ourselves, first, what vital function this kind of soul would have in any living body, whether natural or artificial. Does Hobbes intend that we understand sovereignty as something external to the body, equivalent to the more theological notion of the soul as defended by Descartes? Or, alternatively, is the soul, for Hobbes, an analogue to the more ephemeral “organization” that characterizes natural bodies and that is imitated in the proper “design” of arti-

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ficial automata? We should remember that the figure of the automaton in early modern thought was as much an exemplar of the mechanical philosophy as it was a figure of the problem of “imitating” life with machine technologies.19 One way to approach this intriguing problem is to examine carefully Hobbes’s explanation of how a natural human body acts rationally in its own natural environment, without any need for a rational soul and only the aid of (perhaps) the functional equivalent of a vegetative one. Then we can see more clearly exactly why Hobbes gives the artificial machinery of the state a suitably “artificiall Soul”—and we can pinpoint exactly what functions this artificial organ takes over from its natural human counterpart, isolate any new ones it may introduce, then evaluate the viability of Hobbes’s political vision from this standpoint.

The Rational Robot It is ritually acknowledged, by virtually all commentators on Leviathan, that Hobbes grounds his argument concerning the state on a materialist understanding of human nature. However, it seems that these commentators are mostly interested in how this portrait of man that constitutes the first part of the treatise supports the claims about sovereignty and the state in the second part.20 (I leave aside the fact that the third and fourth parts, on Hobbes’s “political theology,” are often not read at all.) We might, however, approach Hobbes’s text from a different perspective. How can we read the theory of the state from the viewpoint of his claims about human nature and human cognition? As we know, Hobbes’s immersion in the scientific culture of his day was hardly superficial.21 If we take seriously his remarks on human cognition in particular, we can then see that while Hobbes introduces a novel idea of what the political might mean, he also shows us that it always remains virtual, a mere product of the human mind. Hobbes begins his argument with the claim that all “thoughts of man” come from the sensory organs of the body. While it is, he says, “not very necessary” to explain the neurophysiology involved in sensation (though he does explain it, at some length), the crucial point he makes is that our cognition is determined completely by the environment and by the body’s own physical organization. All thoughts come from impressions of the body originating in sensory organs. To explain rationality is to explain how these sensory impressions can be organized so that the organism “man” produces a complex

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response to his own environment. Hobbes’s project was not at all unique in the period of the mechanical philosophy. Many years earlier, for example, Descartes had developed his own sophisticated neurophysiological account of perception and cognition (in unpublished texts such as the Traité de l’homme and his late Passions de l’âme). Of course, while Descartes believed that much of human cognition (including memory and recognition) was explicable in physical terms, he also thought he had discovered—with some difficulty, we should remember—that the mind also possessed a fundamentally noncorporeal form of thinking not at all congruent with sensory experience. Hobbes’s theory of cognition was not nearly as developed as that of Des­ cartes. Still, Hobbes was intensely interested in physiology and, particularly, in the nervous system, and had worked with the younger William Petty on these subjects, even participating in dissections with him.22 While it would be wrong to pit Hobbes against Descartes on the nature of embodied cognition, since they shared an intellectual interest in the physiological underpinnings of our mental world, it was of course the case that Hobbes thought that all human thinking could be understood strictly in terms of our material bodies. For Hobbes, reason was not the transcendence of experience but simply its reorganization.23 Given the importance of reason in Hobbes’s argument about civil life, it is useful to trace carefully the role reason plays in the material depiction of “man” in part 1 of Leviathan. The first stage of all cognition is the constant flow of sensory impressions received from the body’s specialized organs (13–14). The second stage is what he calls “imagination,” which is precisely defined here, and contrary to tradition, as “decaying sense.” As Hobbes explains, because of vibrations in the body, sensations linger after the cause that initiates the motion has gone—dreams are offered as a demonstration of this (15–18). Now, once sense impressions linger in the mind, there is a possibility that they can come into contact with one another. This leads to a “trayne of imaginations,” what Hobbes calls “Mentall Discourse”—that is, a series of connected sense impressions (20). He emphasizes here that “transitions” between imaginations can only be repetitions of past connections or juxtapositions that took place at some point in the past—nothing totally new is ever produced in the mind. However, these connections are extremely productive, since lingering sense impressions can begin to connect with other impressions, in the mind, in ways that may not have happened in the actual experiences of the entity in question.

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What Hobbes wants to emphasize here is the purpose of these cognitive connections. Why would the robotic mechanical body need such an intellectual process? The answer is that these chains of thought allow the bodily passions to be satisfied in ways more complicated than direct stimulus and response. The train of thought is, Hobbes explains, usually “regulated by some desire, and designe” (21), which are the function of the passions, basic bodily impulses that keep the individual alive. These passions emerge strongly and often unpredictably, says Hobbes, but when they do appear in the mind, there arises at once “the Thought of some means we have seen produce the like of that which we aym at” (21). This is due to the past strong connections forged between passions and their object. When we are thirsty, for example, the idea of water appears. At that point, the mind produces a series of past connected ideas that lead from water to, say, the place where water is found and so on, back to the path leading to the water, until, at some moment, we come “to some beginning within our power”—that is, some idea that can be acted on in the present. This is how the higher animals navigate their complex environment. When passions alert the body to some need or situation to be dealt with, the mind moves backward through past experiences to locate a pathway that can be reenacted to alleviate that particular crisis. Perhaps the most important passage in the analysis of human thought appears at this juncture in the argument: Hobbes notes that there are in fact two kinds of regulated thought trains. One is “common to Man and Beast,” which is “when an effect imagined, wee seek the causes, or means that produce it,” just as in my example of thirst and water. However, there is another kind of discourse, possessed only by human beings: “when imagining any thing whatsoever, wee seek all the possible effects, that can by it be produced; that is to say, we imagine what we can do with it, when wee have it” (21). In the first case, humans and animals alike are at the mercy of their momentary passions—only with their appearance is a train of thought activated and necessarily oriented to the repetition of past experiences, or the “hunting out of the causes,” a “ReConning of our former actions” (22). In the second case, however, the human mind acts in an entirely new mode: we look into the future to “see” how useful some present object or opportunity might be for us, hunting now the “effects of some present or past cause” (21). The human mind can project possible futures, which are weighed according to their usefulness for satisfying the demands of the passions. Hobbes proceeds to explain what it is about the human mind that makes it capable of this “curiosity hardly incident to the nature of any living

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creature that has no other Passion but sensuall, such as are hunger, thirst, lust, and anger” (21). Famously, Hobbes locates the origins of a distinct human cognition in the capacity for speech. Given his materialist methodology, Hobbes cannot simply introduce some new faculty to explain this ability. He shows that speech is, at a basic level, nothing that interesting, just the “transferre” of our mental train of thought into words, which are of course just sense impressions themselves, originally. The advantage of this rather tautological transfer within mental discourse is stability: we can retain more clearly the chains of consequences in our thoughts. Because words stand in for numerous experiences, the links between them are that much more visible to the mind. As Hobbes goes on to note, the most important kind of word is the “universal” name—a word that stands in for many quite different experiences of “divers particular things.” His examples are terms such as “Man, Horse, Tree” (26). Once we have these kinds of words, we have the power to make new kinds of connections between thoughts—even though no new experiences have been introduced. Words are groupings of experiences under one umbrella marker. With careful organization of these terms, the relationship of one word to another can, Hobbes says, produce a novel form of cognition. For example, if our word man includes the idea of a living creature, then we can make this claim: “if he be a man, he is a living creature” (27). As Hobbes argues, the truth and falsity of such claims is strictly limited to the validity of the relationship between the words. There is no guarantee, therefore, that the world really behaves as our thoughts imply. But Hobbes is more interested in the usefulness of these claims. Although seemingly tautological, this tracing of definitions and chains of meaning can be extremely useful when done correctly (which, as Hobbes notes, is not always guaranteed, given the attention it requires). Reason, for Hobbes, is just the kind of computation of consequences that one can derive from universal names and their interrelationship. Reason is useful, we must always remember, for attaining what our passions demand, and nothing more, for that is the function of all cognition in the automaton. One way to think of this is to see reason not so much as “demonstration” but as a technique that allows the mind to move into an imagined future. Instead of being bound by sequences of experiences that occurred in the past, the mind can now move between experiences using words so that entirely unprecedented solutions may well be generated. I may never have drunk water, for example, at a particular inn before, but if in my definition of inn the procurement of refreshment is

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included, and water is included in that particular definition, then I may make the inference that water is in fact available there. Unlike the beast, who acts immediately when the object satisfying a desire appears, the human may project future consequences that interrupt that act— prompting him to perhaps save something for the future, say, or to avoid a future evil that may well be implied in some current action. In any case, the ability to conjecture futures that do not in fact exist is not a sign of reason’s disembodiment, as it was for Grotius, but rather a way that the body acquires a whole new tactic in the struggle for survival. For Hobbes, reason is in its essence nothing more than a servant of the passions, an important point as we move to his account of the origins of the state. In this cognitive model, reason is not capable of representing some higher interest, even the interest of the individual. As Hobbes put it in a crucial passage, “The Thoughts, are to the Desires, as Scouts and Spies, to range abroad, and find the way to the things Desired” (53). Reason, the technology of thought, conjectures possible futures in which such satisfaction is produced, while memory presents us with successful examples from the past. However, these are all tied to specific impulses arising in a particular body at a particular moment. For Hobbes, each passion generates its own cognitive pursuit of satisfaction; there is no separate faculty that would mediate these passions and decide which is in the best interest of the whole being. Reasoning is by nature pluralistic.24 The resulting will to act in one particular way is, according to Hobbes, not a decision by the unitary organism but instead simply the result of the first passion’s desire to locate a solution that is in fact possible; and in those situations in which more than one passion has found its solution, then according to the physics of physiology, the strongest one will be that which impels the body to act. The body is, according to Hobbes, rife with competing passions—“Appetites, and Adversions, Hopes, and Feares”—and at times we may even have conflicting passions. This complex mental competition (“divers good and evill consequences of the doing, or omitting the thing propounded, come successively into our thoughts”) is what Hobbes calls “deliberation” (44). And we should note that the very process of rational deliberation may well provoke a passion. The consequences of an action may, for example, raise the very possibility of our own demise. This is important for understanding the course of Hobbes’s own argument: as he frequently implies, the fear of death is always going to be the strongest passion due to our organization, since all others naturally fade in

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s­ ignificance in comparison to this existential demand. Reason, by conjecturing a possible future, can produce this fear, even in the absence of any one particular threat, and this helps explain Hobbes’s thinking about sovereignty.

Conjectural States Once we see reason as the flexible instrument employed simultaneously by multiple passions, it is important to locate what specific kind of reasoning allows the human automaton to be preserved in hostile environments. A natural law, Hobbes tells us, “is a Precept, or generall 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 be best preserved” (91). Note that this rule is discovered either through experience (we see someone die or we almost die ourselves, in some situation) or through conjecture when we notice from certain past experiences the potential deadliness of some future possibility. Clearly, natural laws flow only from the existential fear of death; no other passion could generate this kind of logical necessity within the robotic system as a whole. There can of course be many natural laws related to existence; however, Hobbes traces only those that relate specifically to our interactions with other human beings. These laws, it must be clear, are simply cognitive deductions, nothing more. Our “right to everything,” for example, is only our recognition of the necessity of protecting our lives against “enemyes” (91). The series of natural laws that flow from this first cognitive recognition is not at all automatic, we must remember, but depends on a specific exercise of reasoning. However, as the text demonstrates, we can be aided in our reasoning. Hobbes’s own series of deductions can substitute for a process of reasoning as long as we understand the implications drawn. Crucially important is a common understanding of the words used in these deductions (which is why Hobbes is very careful to define everything so strictly). So the move to the second natural law (that “men are commanded to endeavour Peace” [92], if at all possible) is just a logical demand discovered by reason, nothing more, and it matters not in the least if it is “discovered” after following Hobbes or done for oneself without aid. Hobbes’s Leviathan, as a text, is a prosthetic instrument, literally (for the reader), an artificial intelligence device. That is to say, the complete series of natural laws described by Hobbes over two chapters are really just futuristic projections, scenarios, and responses that

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relate to the complications that arise. Just as we think we find a solution to the search for peace (make contracts with others, for example), we find that our bodies may well interfere with the following of the law, if in the moment an advantage (the satisfaction of a passion) can be gained. This might seem contradictory—how could we violate the law of selfpreservation? But in fact Hobbes has given us the answer: if the fear of death is not present at any given moment, other passions may well come to the fore and impel actions that can be detrimental to our future existence; the reasoning paths of the other passions do not necessarily produce the awareness of those consequences. Laws are not commands, as Hobbes remarks, but rather “dictates of Reason,” really just “Conclusions, or Theoremes concerning what conduceth to the conservation and defence” of our existence. This is why the functioning of any natural law depends on the presence of the fear of death, for in the absence of that fear (or the absence of proper, and properly extensive, reasoning), individual human beings always act in ways that interfere with these same natural laws. (When Hobbes says that we also seek peace out of a desire for “such things as are necessary for commodious living; and a Hope by their Industry to obtain them” [90], we can understand these efforts as derivative of the fear of death, for without a secure means of existence, we would always be afraid of dying.) Hobbes’s own text strives to do two things: first, it obviously shows the consequences of certain actions. Second, and much less noted, is that in this process of demonstration, the reader’s use of “artificial” reason serves to activate the very fear of death that would prompt an individual to follow the laws so outlined. We can follow a “train of thought” because words have a certain autonomy in the mental system. Yet at some point, these thoughts can provoke a real passion. The text, therefore, provokes such a passion through the introduction of a train of thought—it does not, assuredly, address itself to some meta-­ reasoning capacity, since Hobbes resolutely denied the plausibility of that kind of faculty so critical to Grotius’s enterprise. Of course, that fear might be activated in other ways, which is why Hobbes did not, in Leviathan, ever deny the importance of eloquence and rhetoric in convincing people to act in ways that would serve their interests and the interests of others.25 However, the demonstration of the logical impossibility of acting in certain ways (because they would lead to the likelihood of death) was by far the most effective method of persuasion for Hobbes, given his theory of reason and cognition. At this critical point in the argument, right before the shift to what appears to be the emergence of a political body, it is easy to misunderstand Hobbes’s

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move to the construction of the commonwealth—it often appears, to firsttime readers, as a direct consequence of the series of natural laws outlined in the previous part. The sovereign is the one who maintains the natural laws, which is of course not at all the case. We can see that in fact Hobbes thinks he has already sketched out the complete set of laws that would dictate peace, the “means of the conservation of men in multitudes” (109). The problem is not the coherence of these dictates of reason but instead the constant interruption of reason—at least, the kind of reasoning propelled by the fear of death and the desire for peace. Most of us are “too busie in getting food, and the rest too negligent to understand,” but even with a basic understanding, the problem is that we are always prey to others who may well not understand the natural laws as well as we do (110). Hobbes can say that once individuals have enough “foresight of their own preservation,” along with the pressing desire for peace, human individuals see that the natural laws of reason require another force that would impel bodies to obey them—“the terrour of some power”—not because we are “divided” beings (that is, rational and passionate) but because reason serves many masters, and often the laws of nature related specifically to existence “are contrary to our naturall Passions, that carry us to Partiality, Pride, Revenge, and the like” (117). Existential fears are not guaranteed to be present at any one particular moment. As Hobbes reminds us, “All men are by nature provided of notable multiplying glasses (that is, their Passions and Self-love) . . . but are destitute of those prospective glasses (namely, Moral and Civill ­Science) to see a farre off the miseries that hang over them” (129). To best understand the function of the sovereign, then, it is necessary to see that Hobbes believed that human beings could work and live together in accordance with some approximation of the natural laws, but only so long as the fear of death was sufficiently active to maintain their presence in the minds of individuals. In Leviathan, as well as in earlier texts, like De Cive, Hobbes explicitly acknowledged that communities with some degree of security and stability would be formed, as it became clear to individuals and small groups that it was by far better not to be at war with all humanity. “And so it happens that through feare of each other we think it fit to rid ourselves of this condition, and to get some fellows; that if there needs must be war, it may not yet be against all men, nor without some helps.”26 It is the continuing struggle with the enemies that maintains some semblance of obedience to natural law within these groups, these “security-communities.”27 The stability of the community is a function of the enemy that produced it in the first place: “The Multitude

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sufficient to confide in for our Security, is not determined by any certain number, but by comparison with the Enemy we feare” (118). In the absence of the enemy, Hobbes tells us, it is entirely probable that competing interests drive individuals against one another again to the point where they “make warre upon each other, for their particular interests” (118). Astutely, Hobbes writes that the unanimity achieved by a victory over the enemy is never enough to generate lasting solidarity, for “afterwards, when either they have no common enemy, or he that by one part is held for an enemy, is by another held for a friend, they must needs by the difference of their interests dissolve, and fall again into a Warre amongst themselves” (119). Here we can see that Hobbes’s idea of the “common power” enforcing obedience is less a way of getting isolated individuals out of the insecure state of nature and into some organized community that would provide security than it is an artificial substitute for the transient kind of fear the enemy generates within a particular grouping of human beings. The primal fear of death encouraged the very formation of a community in the first place and spurred a basic commitment to maintain the existence of one’s fellows. But that commitment persists only insofar as the fear of death keeps it alive, and reason sees the importance of solidarity. As Hobbes describes it, the sovereign is not at all inside the logic of the natural laws that govern the formation of these enmity-driven communities. The sovereign enters the picture from outside, not so much to create community as to forestall the breakdown of that organization. The sovereign creates peace, which is the very object of the first natural law and the origin of our initial solidarity in the face of the enemy. The sovereign does not so much enforce our individual obedience to natural laws but rather undercuts the problem of performance by simply providing a secure existence. And this is accomplished on two different fronts. First, sovereigns make sure that individuals do not have the opportunity to threaten one another within the community, because sovereigns can induce fear of punishment that overrides the temporary advantages that might be gained. Second, sovereigns protect the community from foreign enemies that may threaten its continued existence. Within a condition of relative peace and security, Hobbes emphasizes, we need to be aware that once the fear of the enemy ebbs, a civil war is not only always possible, it is even likely, given the nature of human passion. So from this perspective, the reasoning of Leviathan as a text can work to provoke a new fear in the reader, precisely in the absence of the fear that comes

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with the prospect of a future insecurity, a prospect that is generated by the technology of reason. One way to read the book as a whole is to see that, eventually, with Hobbes’s aid, the mind is able to recognize that the only way a group of human beings could have a lasting peace is if they were to construct a permanent “Common Power” that would “defend them from the invasion of Forraigners, and the injuries of one another” (120). The elegant solution Hobbes proposes would now seem obvious to the reader aided by his rigorous exercise in artificial reason: we must each give all of our power and strength to “one Man or upon one Assembly of men” so there is only one single voice, one single will. There is then a “reall Unitie” in the group, Hobbes says, since it now moves as if it were one being. With all this strength, the sovereign in fact is able to conform all the wills into one, now that it wields this new form of terror (120). This new artificial body imagined first in the reasoning process of the embodied mind (“this Truth of Speculation” [254]) is in no way analogous to the natural human body, precisely because the natural body is already unified internally in its very organization and its given harmony of functions. Physiologically, the natural body’s physical organization is conducive to self-preservation, without any intervention. That is why Hobbes sees no need to introduce some idea of free will that would contradict the mechanistic metaphysical assumptions he begins with. This means that there is no sovereign control mechanism within natural organisms that would enforce the unity of the body’s parts. That unity is simply given. What happens, of course, is that this body must always react to the needs and desires that arise because of its fundamental lack of self-sufficiency. However, these needs and desires are, in a sense, “automatically” satisfied by a complex array of functions that take information from the environment and initiate reactions that maintain the integrity of the body as a whole. This is the importance of the human brain and its nervous system for Hobbes. Unlike animal systems, which can only respond to present and past information as it seeks survival, the human nervous system works constantly to navigate past, present, and future possibilities to satisfy its natural passions. Here we can see just how important the relationship among the passions is. The fact that the fear of death is always the strongest, when present, provides a kind of emergency system that overrides other, less important pursuits in moments of crisis. With our ability to project virtual futures through the use of language, humans, unlike animals, can see danger when it is not even present. This drives the formation of more complex organization of human social groups, as we have seen, but of course

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can also ground the kind of suspicions that encourage more violence within those groups. So we can make one crucial point: as Hobbes emphasizes, there is no “natural” community of individual humans. Such an entity must be artificially constructed, through covenants. The implication that we draw from this is that there is also no natural form of organization that serves to maintain its existence once it has been constructed. In fact, just the opposite is the case. For the very constitution of this great machine’s component parts (the passion-driven automata that are human individuals) would seem to guarantee internal disorder once some external force (for example, enmity) holding it together weakens or disappears. But to recognize that fact suggests another way of preserving this entity more permanently. To give the artificial state the unity and stability characteristic of a natural body, it needs to become an “automaton” that can preserve itself. Precisely because of its artificial nature, this political body, unlike the natural organism, needs an artificial soul. Or, to put it more carefully, the political body, because it is artificial, needs a soul to generate the kind of internal stability that the natural body acquires from its own given internal organization. This is why Hobbes argues for the supremacy of the singular sovereign ruler within the state. One cannot imagine the artificial body governed by a plurality of organs, since the artificial commonwealth would then have no inherent unitary organization. As Hobbes explains, the soul is the artificial source of unity. With two or more of these “souls” there inevitably is a civil war within the community and it breaks down. It is telling that Hobbes uses a medical example to illustrate this logical claim. When a living body is struck by what Hobbes calls “Epilepsie, or Falling-sicknesse,” a condition in which an “unnaturall spirit, or wind in the Head” disrupts the proper natural organization of the body, interfering with the functioning of the nerves and producing violent convulsions, it can no longer maintain its existence. So in an artificial state with multiple “souls,” the various parts of the body (individuals) are pushed and pulled in contrary directions, leading them into the “fire of civil war” (227–28). The soul is the source of the organization disrupted by epilepsy. But the real body needs no soul to begin with.

Virtual Sovereigns Hobbes’s concept of the political might be traced in this process to the production of an artificial but “reall Unitie.” Unfortunately, at this point in the

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argument, the idea of the political is just that, a conjectural possibility generated by the advanced reasoning of Hobbes himself and re-created, virtually, in the mind of the astute reader. What he provides is a picture of what a sovereign, that “artificiall soul,” would have to accomplish. After he is done detailing these key attributes, Hobbes makes a significant comment. He tells us that he has now given us “the markes, whereby a man may discern in what Man, or Assembly of men, the Soveraign Power is placed, and resideth” (127). In other words, the virtual production of the artificial body of the state, with its artificial soul, can only provide indicators of the kinds of functions we ascribe to this soul. The implication is that we, as readers of the text who have sensed the dangers inherent in the nonsovereign condition, must find and support a figure who best represents the nature of genuine sovereignty, for there we find the most security. However, by Hobbes’s own argument, the creation of a genuine political soul is in fact impossible. First, Hobbes gives us absolutely no method that would produce such an artificial soul machine that would have the requisite political unity. At best, he suggests real figures (such as relatively absolute monarchs) who may give us, with the least work, the closest approximation to the functions of this artificial soul. This is only because their private interests would coincide most closely with the “publique interest” (131) that we have identified logically through our reasoning. What is odd about the “artificiall Soule” of sovereignty and thus makes it absolutely impossible to construct is not the artifice involved but the fact that this soul must be indivisible, truly singular. A genuine commonwealth requires that its leader, as Hobbes put it, “must have the Soveraign Power (which I have shewn to be indivisible)” (129). The indivisibility seems unproblematic in the terms of this political argument; this is the standard definition of sovereignty. Yet in Hobbes’s own metaphysical universe, there cannot in fact ever be such an entity. Everything in the universe is divisible—made up of the atomic parts that possess only their fundamental materiality. The unity of any entity or object is dependent on the way these parts are organized—an object’s unity is what we would now call emergent. So as Hobbes pointedly remarked in Elements of Philosophy, “It is manifest, that nothing can rightly be called a whole, that is not conceived to be compounded of parts, and that it may be divided into parts; so that if we deny that a thing has parts, we deny the same to be a whole.” And he goes on to make this critical analogy: “For example, if we say the soul can have no parts, we affirm that no soul can be a whole soul.”28 Of course, natural

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living bodies and other natural objects maintain a genuine unity through the organization of their constituent elements. This is why the artificial soul of the sovereign cannot be real in this world. As Hobbes admits, the unity of the commonwealth is produced only by the sovereign functioning as a “representation” of political unity. The unity of the soul—its indivisibility—lies in its character as sign. But as sign, the sovereign representation of unity cannot really produce the unity among the parts that make up the commonwealth, even as it may prevent dissolution. This is because the sovereign soul does not possess true political indivisibility. It is indivisible in the sense that it is “atomic”—another individual component part like any other individual machine. Its status as sovereign soul arises in its representative capacity to substitute for a unity that does not in fact naturally exist in the contingent interconnections making up the civil state.29 Furthermore, while a simulacrum of a soul may well be formed if all the individuals agree with Hobbes and decide that a civil ruler always speaks their will and has the power to coerce their actions in order to generate this artificial exemplar of unity—“A Multitude of men, are made One Person, when they are by one man, or one Person, Represented; so that it be done with the consent of every one of that Multitude in particular” (114)—still, the nature of the human automaton making up the machine precludes its full integration into the unity that the will of the sovereign represents. This is why there is no genuine political logic in Hobbes’s account. There is only a logic of individual survival that wishes there was such a political logic as it conjectures possible solutions to its own insecurities, which are endlessly imagined by the cognitive processes of reason. The individual cannot become the part of a whole, in the physiological sense of the term, even with an artificial soul. “The end of Obedience is Protection; which, wheresoever a man seeth it, either in his own, or in anothers sword, Nature applyeth his obedience to it, and his endeavour to maintaine it” (153). What Hobbes means is that if at some point, the individual automaton’s own fear of death impels a contradictory line of behavior, it has to act against the sovereign’s will, subverting the integrity of the political body. While we might say that, in this case, the absence of protection means there is no longer any genuine sovereign, according to Hobbes’s argument, a better way of putting it would be this: there is never a genuine sovereign organ, that “artificial soul” that would guarantee the kind of continuing unity and protection provided by the natural organization of the body; there are only successive imitations of that artificial organ. The weakness of the political machine lies

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neither in its artificial nature nor in the difficulty of maintaining some kind of order in the commonwealth. Rather, the political machine is always fragile because, despite the presence of an artificial soul, the unity of this body is not guaranteed—because an artificial soul is by definition a nonfunctioning soul, in Hobbes’s world. An imitation of animate organization always fails because the logic of the parts making up this machine commonwealth precludes the formation of permanent, stable relationships. Hobbes noted that he wrote Leviathan “without other designe, than to set before mens eyes the mutuall Relation between Protection and Obedience” (491). In providing a solution to the eternal problem of security—the formation of an artificial body with an artificial soul and an artificial form of reasoning— Hobbes did hint at an entirely new mode of being, a form of community animated by some genuine unity that would mimic the unity of complex natural organisms. However, if this idea of the political hovers at the edge of Hobbes’s text, it is never truly grasped because it can only ever exist as a possible conjecture of the mind and never as a concrete reality. The question is how to change human bodies and minds to become part of a genuine unity—a genuine political unity that would protect the individual from the hazards of social life and the enmity provoked in and out of these communities.

PUFENDORF’S CONCEPT OF THE SOCIAL The first step toward such a political concept can be found in the work of the immensely influential natural-law theorist Samuel von Pufendorf. Pufendorf took seriously the question of what kind of community is formed by natural individuals and was open to the possibility that the kind of rationality inherent in social or civil forms of order was not exactly congruent with the rationality exemplified by the independent human. In other words, Pufendorf is interested in the coexistence of two kinds of rationality in the human mind, one related to individuality and another to the social way of life. The question of the political arises at the intersection of these two rationalities. Grotius did of course claim that humans were naturally social. But a closer look at Grotius reveals he really was only suggesting (and this is in line with what Hobbes later argues) that any rational individual would quickly see the advantages of being in society with others and thereafter work to maintain that condition to his or her own advantage. “We do not therefore by nature

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seek Society for its own sake, but that we may receive some Honour and Profit from it.”30 Pufendorf, I argue, was interested in society “for its own sake,” for he wondered what kind of discipline, what kind of systematic organization, maintained social order on its own independent plane? For Grotius, reason was resolutely individual; it was the disembodied instrument of bodily survival, capable of looking beyond the moment to safeguard the future existence of the individual. And that was what society held out for the individual: security. Similarly, the sovereign who was to safeguard this society would play the same role. The sovereign was the site of a society’s own rationality. This rationality was functionally identical to individual reason. The relationship between individual rationality and a social version on a large scale was left utterly untheorized in Grotius’s work. He could never offer a way of generating this kind of social rationality. And this was a real problem because, by definition, this form of reason had to be extricated from particular points of view or particular interests— that is, from actual embodied people. For Hobbes, again, reason was merely the neutral instrument of the passions, a technology for the production of conjectural futures that opened up new paths of action. The fear of death is what drove individuals to peace, to find relationships of order with other humans. Yet the reasoning, spun from this basic principle to seek peace with others, inevitably led to the conclusion that peace would never permanently endure without a concrete sovereign figure who could coerce individuals to refrain from violence. Here Hobbes introduced a new kind of organization, a political organization that would mimic the functional unity of an animate body. Like Grotius, though, Hobbes never conceptualized the method of generating this kind of artificial unity; indeed, his understanding of human nature seemed to preclude its possible construction altogether. So Pufendorf ’s work in natural-law theory is an important step toward the discovery of the political because it takes a new path. Responding to the extreme arguments of Hobbes in particular, Pufendorf nonetheless agrees with Hobbes that we had to acknowledge the embodied, passionate nature of human individuals. Yet he insists on the importance of locating an external sense of obligation that would provide a foundation for a universal morality that would constrain the individual without the use of force. Like his seventeenth-century counterparts, Pufendorf was not about to retreat into traditional notions of natural order—whether political, moral, social, or religious—as a way of providing this foundation. Instead, Pufendorf began to think seriously about how

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individuals could function as sites for the instantiation of forms of order that were not quite entirely congruent with the organization of their own particular bodies. That is, what Pufendorf does is isolate a particularly modern concept of the social, a crucially important development that prepares the way for the Enlightenment discovery of a concept of the political. The concept of the social demonstrates the autonomy of its logic of operation, but as Hobbes revealed, the crucial question is how to understand the radical natural individual as the concrete site for the enactment of this distinct logic. Pufendorf ’s influential work On the Duty of Man and Citizen (1673) aimed to demonstrate the autonomy of a rational logic governing social order. Further, it showed that this logic was not exactly at odds with the natural drive to selfpreservation but, surely, was not entirely identical with it either.31 For Pufendorf, the distinct demands of the social group opened up a division within the human mind as it struggled to navigate two separate sources of motivation. Ultimately, Pufendorf recognized the difficulty, perhaps even impossibility, of ever resolving that conflict, of ever achieving self-disciplined social individuals. While it may appear that he ultimately resolves this conflict with recourse to the kind of absolute political authority defended by both Grotius and Hobbes, in doing so, Pufendorf raised some interesting new questions about the nature of authority and its relation to individual bodies and minds. These questions are at the heart of the Enlightenment project to understand the nature of the political as an independent category, one logically and practically distinct from both the demands of social existence and the concerns of individuals as autonomous units.

On the Cultivation of Society Pufendorf opens his narrative account of human relations with a realistic portrait of a creature who has, like all other living creatures, a strong sense of its own existence and a will to defend that existence with the greatest passion. Echoing Hobbes, Pufendorf says that “this passion is usually so strong that all other passions give way before it.”32 Indeed, in repelling our enemies, a “hatred and desire for revenge” can persist long after the initial attack. At the same time, Pufendorf acknowledges the weakness of any individual human—unlike many animals who are, at birth, relatively independent, humans require much help from others to attain maturity and learn how to survive. Even if by some miracle we could ever survive abandoned to ourselves, the result would be rather

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dismal: a solitary, bestial being who is fearful, without knowledge or language, and utterly destitute (34). So even if we can imagine a natural state in which man had been left alone, it would be a condition “more miserable than that of any beast” and hardly the foundation of a proper human existence, as Grotius and Hobbes both implied (115). The point Pufendorf underlines is that human beings need each other not just for survival but to achieve their very humanity. At the same time, we have to admit we are rather unpredictable creatures, often dangerous to others because of our strong passions, and highly protective of our own self-interest. Pufendorf lists many reasons why human beings display a “considerable capacity for harm,” which include: our peculiarly permanent sexual desires, the predilection for titillating foods and interesting clothes, and our “mental ingenuity” when inflicting injury (34–35). However, perhaps the most important reason is one already identified by Hobbes—the “extraordinary variety of minds.” Indeed, even within the same individual an astonishing plurality of motivations can be found. Conflict is, it seems, inevitable in such conditions. As Pufendorf puts it, human beings have an “intense concern” for self-preservation but are “incapable of protection without the help of [their] fellows,” and while they are well suited to help one another, they are also, unfortunately, “malicious, aggressive, easily provoked and as willing as [they are] able to inflict harm on others” (35). The essence of Pufendorf ’s project lies in the resolution of this seemingly paradoxical human condition. To be safe and to develop our greatest capacities, we must be sociable. And to be sociable, we have to behave so that others are inclined to help us, not attack us. The principles of this resolution are what Pufendorf calls the “laws of sociality.” These are basic principles whose aim is to teach us how to behave, how to become a useful member of society. These principles are called the “natural laws.” The first (and most basic) law is this: we should do everything we can to “cultivate and preserve sociality” (35). Yet why do we need this explicit rule if we are suited to help one another? Obviously, our more aggressive tendencies may well conflict with this demand. Pufendorf stresses this potential conflict between individual passions and the logic of social behavior, even as he attempts to bring them into some kind of synthesis within the human mind, in order to overcome the difficulty Hobbes struggled with in his own theorization of obligation. Pufendorf ’s realistic picture of human nature is certainly in the spirit of earlier natural-law theory, yet his specific understanding of “sociality” marks a sharp turn away from the work of Grotius and Hobbes. According to those

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writers, the principles underwriting our relations with others in a society are ultimately reducible to the logic of our own rational self-interest. With Pufendorf, we find a novel approach: individuals recognize the necessity of society and work to preserve it, but in cultivating sociality, we understand that “society” has its own independent logic of operation. Society requires that we see beyond our own individuality, that we may be useful to others even if it costs us something (64). In his discussion of agreements, for example, Pufendorf describes the formal pacts not as strategies of individuals to gain future security and possible benefit from others but instead as particularizations of the general duty to act for the cultivation and preservation of sociality. In this context, it is clear that in deferring to the principles of social life, we are not simply agreeing to act consonantly with our self-interest by maintaining good relations with other individuals for the sake of our welfare. Rather, we enter into a whole new zone of being, a zone that demands certain kinds of disciplined behavior for the sake of the society and not just the individuals who make it up. This is Pufendorf ’s “concept of the social.”

Instantiating the Social As Pufendorf explains, a society “has its own will, interests, and proper rights which are distinct from the interests and rights of individuals as such” (88). This is why natural law, the law of sociality, may well be understood by individuals but not exactly embraced by them. The key problem is bringing that foreign logic into the very minds and bodies of actual people. This is not at all an impossible task, according to Pufendorf. As he argues in his earlier Elements of Universal Jurisprudence (1660), “A man’s will is capable of receiving an obligation from an extrinsic principle.”33 The challenge is converting such an external obligation into an internal one. Much of On the Duty of Man and Citizen is taken up with Pufendorf ’s effort to understand how individuals can obligate themselves to the external logic of social existence. This form of obligation is entirely psychological for Pufendorf. It is, he explains, a “kind of bridle on our liberty,” where we become imbued with an “internal sense” that compels us to see that any other action would not be right. For Grotius and especially Hobbes, there can be no such constraint— for Grotius, reason may well struggle with the body, but it always obeys its own logic. For Hobbes, it would be metaphysically impossible for there to be a free will that does not obey the causal processes inherent in any organized bodily

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form. But as Pufendorf remarks, if one acts according to the natural law out of sheer utility or physiological compulsion, it would hardly be worth calling it a law, which he defines as “a decree by which a superior obliges one who is subject to him to conform his actions to the superior’s prescript” (27). However, Pufendorf does not see true obedience as obedience to the force of the superior. Instead, a true sense of obligation arises from the recognition of the necessity of that prescription. The puzzle modern natural-law theory presents for Pufendorf is how to see human beings acting according to reason and selfpreservation but also according to a higher sense of obligation. Pufendorf often speaks of religious duty in this context, less to buttress theological doctrine than to give a model of obligation that requires the possibility of noncompliance for that obligation to have genuine moral value. It is not just a question of having the rational mind control the body. The mind (Pufendorf uses the term anima, or soul), because it is the “ruler” of the body, must somehow be “formed to accept social life with ease” (46). Pufendorf ’s many examples are revealing as they try to demonstrate how, in critical moments of decision, it is possible that we act at once to protect ourselves and still maintain the basic principles of sociality. What do we do, for instance, when our safety is endangered by another? Of course, we must defend ourselves, Pufendorf acknowledges. Nevertheless, for society’s sake, the goal must also be to moderate our defensive actions to conform as much as possible to the natural laws. I am under no obligation to sacrifice my own safety; however, I am obligated (by the natural law) to not “always take extreme measures when injury is threatened” (48). At times, Pufendorf ’s suggested compromises have a comical air—one should first, he says, try “cautious” remedies when attacked, such as blocking your assailant’s approach, hiding in a protected space, or trying to “warn the attacker to desist his fury” (48). But Pufendorf ’s point is not to claim that these are realistic solutions. Instead, he seeks to isolate more precisely those demands of society that need to be met, even as we seek our own self-preservation. Pufendorf has no qualms, for example, about someone hastening the death of another if that person threatens one’s existential safety. It is like the good swimmer who is weighed down by the nonswimmer in deep water. The swimmer, to survive, must push the other away, even though the nonswimmer will surely drown (54). Pufendorf works mainly to separate these two logics and only then to explore the possibility of some kind of harmony between them. Pufendorf proposes some rather baroque scenarios to make this crucial point as clear as

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possible. If, for example, we find ourselves on a lifeboat after a shipwreck and there are more people than it can carry, the logic of social life demands a fair solution. That is, “one should draw lots as to who should be thrown overboard” (53–54), although it is of course possible, even probable, that each individual may well simply fight to the death for his or her spot. Readers are also asked to imagine being pursued by an enemy who intends to kill them, but, as they flee, someone blocks the path in a narrow alleyway. A series of complex judgments come into play here: Can we knock this person flat, even if the individual will be injured? Only if we can warn him in advance, declares Pufendorf. But what if the person were “an infant or a cripple”? Here we must at least try to leap cleanly over the individual, though we will not be responsible if there is an injury. And, of course, if someone willfully obstructs us, it is completely permissible for us to hit and flatten the individual directly as we try to escape (54). With these examples, Pufendorf is displaying how, in the course of obeying one’s obligation to oneself, one can still follow the logic of the social. Whether we in fact do this depends on how strong the motivation is to obey that logic. This emerges as the real question for Pufendorf: How can the principles of social order become fused, so to speak, with our more automatic responses to immediate existential threat?

Defending the Social Pufendorf understands the formation of the institution of the state as a function of the logic of the social. As Pufendorf sees it, agreements among individuals serve as bridges between the hypothetical absolute obligations of the social discovered by reason and the concrete, specific obligations that govern our everyday behavior. The creation of the state is an agreement like this, but a rather unusual, almost self-referential one, since its explicit purpose is to strengthen the obedience to the principles of sociality (that is, natural law). There seems to be a paradox at hand. How can an agreement flowing from natural-law principles serve to uphold those same principles? Pufendorf ’s narrative of this peculiar agreement begins with a state of nature. This is not Hobbes’s fictional state of isolated individuals but a more historically plausible condition in which people live together in various forms of association. Like Hobbes, but for different purposes, Pufendorf uses the analogy of the international order to illustrate this condition. There exist a plurality of particular communities, having nothing in common with the others

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except their “quality of being human” (116). Pufendorf emphasizes the “natural liberty” of individuals in this condition. Since there is no human authority with the right and, more crucially, the power to subject others, each individual “decides for himself ” the means of self-preservation (117). Like Hobbes, Pufendorf says that in the natural state, disputes are endemic and it is, moreover, very difficult, if not impossible, to force others to perform agreements or make restitutions (118). The “cautious man,” who loves the security society can bring, is a friend to all, though he knows everyone is liable to become threatening at a moment’s notice. In Pufendorf ’s state of nature, then, our fellow human being is not so much an enemy as “a friend we cannot wholly rely on” (119). Unlike Hobbes or Grotius, Pufendorf does not move from this natural condition directly to the civil solution, where an authority is created specifically to maintain stability in communities prone to suspicion, conflict, and violence. Instead, Pufendorf looks more closely at genuine social bonds that arise between individuals, bonds that then generate a new logic of existence for those involved. That first exemplar of sociality is the family, or to be more precise, the act of marriage. The “burning attraction” of the sexes for each other would, left to itself, cause only “extreme nastiness and disorder in the human race,” says Pufendorf, implying that the pursuit of pleasure would lead to great competition and jealousies (120). Why do we, as individuals, give up sexual liberty to enter into marriage? For various reasons, according to Pufendorf, who cites, for example, the narcissistic desire men have for wanting to have children in their own image and the need for women to have support while raising their offspring. The point is that once a variety of admittedly contingent desires lead two people into such an agreement with each other, this established relationship spawns its own requirements necessary for its own survival. This miniature social order demands a certain “institutional” stability conducive to its continuing operation. That is, according to the logic of sociality, within a marriage, sexual behavior must now be controlled and constrained if the marriage bond is going to persist. As Pufendorf goes on to explain, any use of the “genital members” that deviates from this particular purpose (he helpfully lists not only adultery, homosexuality, and “filthy impurity” but also bestiality) is against natural law (120). Pufendorf is well aware that those same “genital members” may well naturally desire these other occupations; it is just natural law, which represents the logic of the social, that precludes these actions. Marriage is an agreement between a husband and wife to behave in certain ways conducive to the raising of children, but the resulting social bond that

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emerges was never the explicit goal of these individuals. Still, however contingent the origin of a marriage may have been, once it is established, our reasoning tells us the necessity of the obligations it imposes. The same goes for the next relationship Pufendorf analyzes, that of master and slave. However contingent the initial agreement between the two (and we should note that it is not necessarily a fair or equitable agreement!), once the relationship is established, both parties recognize that according to reason there are certain obligations that must be met—for example, a slave or servant must always be fed by the master (129–31). Again, Pufendorf stresses that we enter into relations that end up creating social realities whose purposes by definition exceed the intentions that spurred the forging of the initial bond. Reason sees the logic of those relationships, but of course Pufendorf is acutely aware that reason on its own does not provide the sense of obligation necessary to the survival of these (often quite asymmetric) relationships of power and subjection. Why were we not content with these early associations when our “natural desires and need could have been abundantly met” (132)? As Pufendorf says, human sociality may be natural, but the tendency to a political condition is not inevitable. The proof of this is the fact that most people never really succeed at becoming “political animals.” They do not “promptly obey the orders of those in power.” Further, they do not put public goods ahead of private ones, and they are not always well disposed to their fellow-citizens. Which is an understatement—as Pufendorf knows, humans can be fierce with one another, and he says that we can even take “furious pleasure in savaging [our] own kind” (133). So what would impel individuals to give up their natural liberty? There must be, at some point, a decision to found a new kind of order. Civil society, or what we might call political society, must have held out some advantage for our ancestors. Pufendorf looks to the “heads of households” for the site of this radical turning point. The “impulsive cause” of the state’s formation emerges from those who hold the most power in these social orders. Given Pufendorf ’s thoroughly realistic portrait of human nature, it is not difficult to imagine that those with the most onerous obligations imposed upon them by asymmetric social relations may well have difficulty obeying those obligations, even if rationally they recognize the necessity of those obligations. The problem of obedience (in the context of the social) largely concerns those who hold the power. So those stakeholders are the ones who will be the first to “build protection around themselves against the evils that threaten man from man”—namely,

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from the violence that flows out of the very logic of individuality that interferes with that of the social. The implication here is that the institution of the state takes over the problem of obedience by taking away everyone’s natural liberty and then enforcing the logic of the social with all the power of the concerted forces of the individuals. While it is true that Pufendorf gives an account of state formation that suggests the kind of abstract unanimous contract we are familiar with in naturallaw theory, he significantly admits here that the word citizen is often applied to a specific group—that is, those “certain persons by whose union and consent the state was originally formed,” which is the heads of households (138). Those with power in society are the ones who pool their strength to form a united civil state that enforces the demands of natural law. It is only after the creation of the state that all individuals, Pufendorf believes, see clearly the many benefits that accrue in this new civil condition, especially the kind of security that is provided by the laws (133–34). It turns out that the best way to “take precautions” against those friends who are always potentially enemies is to have the legal order of the state as protector. Still, Pufendorf reminds us that the origin of the state must be understood as a way of first enforcing a preexisting social order, with its own internal, and asymmetric, relationships of power. With the emergence of this new institution, the state, comes the hint of a new logic, independent of the logic of the social order and of the individual right to self-preservation—a very preliminary concept of the political, we can say. For once the unity of the political community has been established, the sovereign power that represents that unity, and who commands the integrated strength of the citizens, must now see to what Pufendorf calls the defense of the state. And this is not quite the same thing as defending the principle of sociality. Ensuring the “safety against outsiders of those who have united in one state” is, for example, one of the first duties of the sovereign, who thereby has the power to organize the common defense and to enter into treaties or carry on war (140). However, Pufendorf does not really focus on these new sites of sovereignty. It seems that the security of the state is, in essence, another way of speaking about the security of society and therefore Pufendorf does not see the need to elaborate a radically novel form of legitimation. What really interests Pufendorf is the role the civil or domestic state—with its unitary power and absolute control over the citizens—has in the functioning of natural law, which is really the starting point of his whole argument for the origin of the state in the first place. As Pufendorf elusively remarks, “It is

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the institution of the state that most favours the practice of natural law” (138). Yet we have to remember that the state is born from the difficulty in maintaining natural law. The state’s function is to help make natural law operational in society: “The over-riding purpose of states is that, by mutual cooperation and assistance, men may be safe from the losses and injuries which they may and often do inflict on each other” (139). However, it is crucial to recognize that for Pufendorf, the state’s ultimate task is not simply to use its power to force people to fulfill the obligations of natural law through the fear of punishment (140). Rather, as Pufendorf rather subtly puts it, the duty of the sovereign is to “lend [natural law] the force and effectiveness of civil law.” Both laws work to preserve the “moral integrity” of civil life in their own particular way, but in no way is it enough that the performance of individuals merely simulates the ideal of self-disciplined obedience to natural law (155). It is therefore important for Pufendorf that we obey natural law on its own terms. In obeying civil law (which we do mainly for utilitarian reasons because of our fear of punishment), we are put in a position where we can genuinely obey the natural law, whose obligation, we must remember, is entirely internal, a function of its inherent rationality. Pufendorf believes that society can defend itself properly only if the logic of that social order is thoroughly embedded in the psyches of all citizens, where it then acts as a constant “bridle” to the dangerous impulses of self-interested bodies.

From the Social to the Political In a rather curious final chapter, “On the Duties of Citizens,” Pufendorf veers in a new direction. He envisions the ideal citizen as a seamless coalescence of the individual with the state. “The duty of a good citizen to the state as a whole is that its safety and security be his dearest wish; that his life, wealth, and fortune be freely offered to preserve it; that he devote all the vigour of his intelligence and industry to extend its glory and increase its prosperity” (175). Note here that we have now a peculiar transmutation of the original injunction to obey the natural law—to obey the logic of sociality. Instead of thinking of the state as the institution that enforces obedience to the natural law by mimicking the commanding authority of God, Pufendorf sees that the real problem is not obedience but the kind of reliable discipline that can come only from within the individual person. If we think of civil law as a way of aiding our commitment to natural law, we can see that natural law can never really be achieved.

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With the structure of threat and reward that constitutes civil law always hovering in the background, obedience to natural law is never pure, never fully a free act. Given the divine (that is to say, wholly external) character of the injunction to obey natural law, it is impossible ever really to visualize a solution that would reconcile the state as civil power and the possibility of truly virtuous action by the individual. Even though the precepts of natural law “have a clear utility, they get the force of law only upon the presuppositions that God exists and rules all things. . . . For otherwise, though they might be observed for their utility, like the prescriptions doctors give to regulate health, they would not be laws” (36). This is why Pufendorf ends his text with a new way of thinking about civil law. The real task of political power, it is suggested, is to train the individual to become an ideal citizen, one who obeys the civil law not because of some fear of punishment or hope of advantage but out of a true sense of duty to the state. Here, natural law would, oddly enough, become superfluous, for the logic of society would be defended by these ideal “citizens” in its new form as a civil society. Yet what is gained here is the possibility of a true reconciliation of human moral freedom and the command to obey the law. The citizen can prove his or her devotion to the state in ways that cannot be reduced to following the civil laws and avoiding punishment. This is not really the case with natural law or even divine law. However, in suggesting how to resolve the difficulty of producing obedience to the natural law without external force, Pufendorf raises the new and very tricky problem of how to create these political beings who have fully identified with the state as a form of authority independent of any particular social bond. Pufendorf ’s theory suggests that a genuine political authority would not be legitimated by individual decisions predicated on a logic of self-preservation or by the demands of a social form of life that emerges from the challenges of the natural state. The political would be that activity legitimated by its own necessity. Obedience to the political cannot, then, be a decision that is based on some prior principle. At the same time, it is not automatic—produced by our bodily impulses. This is why thinkers like Pufendorf, while rejecting a theological foundation for political sovereignty, nonetheless borrowed its structure of authority to underwrite the power of civil sovereigns.34 The autonomy of the political, the autonomy of the civil form of organization, does not require consent from the citizens who formed it. Instead, to sustain that political community, the sovereign power has to remake the individual in its own image.

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This is why the discovery of the political is not simply the discovery of a pure principle of sovereignty. As Enlightenment figures first began to realize, if we recognize that the political is an absolutely autonomous principle, then its instantiation within concrete institutions requires the radical transformation of individual human beings and their societies—a possibility that natural-law theorists in the seventeenth century were loath to admit, since it would have weakened the very foundation of their arguments justifying the absolutist state. It is no accident, then, that Enlightenment versions of natural-law theory tended to underwrite a republican vision of state authority. Beginning with John Locke, then continuing with Charles-Louis de Secondat, baron de La Brède et de Montesquieu and Jean-Jacques Rousseau, we see that the Enlightenment discovery of a concept of the political was made, almost paradoxically, within the theoretical orbit of the law. The idea of law was not opposed to the realities of pure political power. Instead, both law and the political were taken as important implications of a more profound narrative of the human community. This is why these two spheres were not opposed. The autonomy of the political was integral to the development of the legal state because law has no proper function in a depoliticized natural condition.

Chapter 3

Locke’s Natural History of the Political

WHY PREROGATIVE? In the history of constitutional and political thought, John Locke is renowned for the idea that political power is fundamentally limited by the legal foundation of the state. If Locke’s thinking about law and political authority was indebted to a (peculiarly British) “tradition that believed power, where legitimate, was essentially judicial,”1 it is also the case that Locke’s argument opened up a particularly modern constitutional theory that grounded law (and its adjudication) in the power of the people to organize their own civil society. Not surprisingly, then, Locke has usually been interpreted as the first important modern thinker to define the state strictly in terms of law, to limit the powers of government (including the power of the sovereign monarch) by a constitu­ tional framework based on the people’s capacity to make their own laws. Political functions would always be subordinated to the more foundational conception of law. Therefore, it makes sense that Carl Schmitt often tied Locke to a tradition of legal rationalism that reached its apogee with Immanuel Kant, at the end of the eighteenth century. The obvious challenge to the legalistic interpretation of Locke has always been Locke’s explicit vindication of executive privilege, a kind of emergency power, within this constitutional framework. When Locke argued that “a strict and rigid observation of the laws may do harm,”2 he appeared to acknowledge some kind of extralegal domain of the exception—even as he carefully defined prerogative as a more or less constitutional instrument aimed only at the

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­“public good.” It was never really clear if the “good” of the people should ultimately be equated with their general happiness under the law, as he sometimes hinted, or with their existential safety. In any case, we are forced to demonstrate that prerogative is in fact fundamentally “legal,” or else admit that it points to a sphere beyond the law, which would disrupt the conceptual coherence of Locke’s whole constitutional order, and by implication, the conceptual stability of the modern legal state. Though it would be slightly misleading to say that prerogative has been completely neglected in earlier interpretations of Locke,3 there is no doubt that contemporary anxieties surrounding the legal state in times of war and crisis have prompted a new look at this aspect of Locke’s doctrine. In the immediate wake of September 11 and with the global resurgence of interest in the old question of the relationship of law to political authority in emergency and war-time conditions, Locke’s theory of executive prerogative has increasingly attracted attention from political and legal scholars interested in what we now call states of “exception.” Some, following Schmitt, see Locke as opening up a space for decisive sovereignty at the center of the legal state. Most, however—in opposition to Schmitt and other recent political “realists” who have defended the preeminence of emergency sovereign decision—have paraded Lockean prerogative as an inherently legal and constitutional solution to the political crisis of the “state of exception.”4 That is, scholars now see Locke as the conceptual starting point of a constitutional tradition that acknowledges the exception, even as it simultaneously brings it back within the orbit of the legal state, thereby protecting the primacy of law. It would of course be difficult to resolve this still vital theoretical problem just by examining Locke’s text. However, a closer look at the historical moment can help us articulate just what was at stake in Locke’s conceptualization of sovereign authority and its relation to the legal institution of the state. We can therefore frame with more precision the very question of the political in its relation to the legal state. In Locke’s day, this exact question was being debated and enacted: What was the boundary between sovereign decision and institutional control? Locke’s theoretical positions were interventions specifically targeted to this issue. My argument is that in his reflection on this vital question of law and authority, Locke did not simply develop a new theory of sovereignty or a new foundation for a legal-constitutional order, but instead he discovered, for the first time, a far more radical notion of the political as such. Locke reveals the

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foundational logic of the political in the formation and protection of communities, but he was also alert to the novel historical developments that fractured communities, and therefore necessitated some kind of legal organization to guarantee stability. Locke was able to perceive the pure logic of the political by focusing on the earliest and simplest forms of human community, and while he understood that this logic persisted in contemporary state forms, the pressures of modern economic life demanded new ways of organizing individuals and their property. Once we see that Locke understands one kind of authority as essentially political, in an existential sense, we can see more clearly how the nature of law intersects with (but does not wholly subsume) the role of the political. Locke’s challenge was not so much resolving the conflict between regulated and unregulated authority, between law and sovereignty, as it was figuring out how the existential logic at the heart of any political unity could be recaptured and integrated into a civil state order that was oriented to a different set of challenges facing fractured communities. The individual was not the starting point of Locke’s idea of the political; rather, the historical appearance of the individual interfered with what I call the natural history of the political in its earliest incarnation. The two logics, which are not historically congruent, are exemplified in the problematic distinction that opens Locke’s most famous text, the Second Treatise—the distinction between a state of nature (ruled by reason and natural law) and a state of war (ruled by an existential will to survive). My reading of this juxtaposition leads us away from the normal interpretation of Locke’s state of nature and back to the primal functions of command in communitarian regimes. Locke’s interest in sovereign decision in a state of war is no troubling supplement to his contractual legal state, because this constitutional construction is but a modern attempt to re-create the functional unity of the political body in an age in which political leadership of the natural kind was absolutely impossible due to the conditions of modern civilization and economic advance.

SOVEREIGN DECISION AND THE STATE OF LAW To understand this distinction between political unity and the state of law, we need to look at the precise nature of the problem Locke was himself facing in the late seventeenth century. As we know, the conflict between royal authority

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and legal institutions was a longstanding theoretical question in English political history and a key factor in the move to civil war in the seventeenth ­century. If some kind of extralegal authority was acknowledged to be an ­important dimension of royal power, it was also the case that normal administration of the realm was understood to be governed by law, as determined by judicial institutions—which would, by the sixteenth century, include Parliament alongside the traditional courts. From the fifteenth century, constitutional debates centered not so much on the conflict between royal and parliamentary authority as on the boundary between royal powers that exceeded the legal framework of the state and those that were taken to be firmly within the orbit of judicial examination. Parliamentarians and common-lawyers generally agreed that the crown could act in certain emergency situations without any such legal constraint. The influential fifteenth-century jurist Sir John Fortescue, for example, argued that some of the king’s powers, to tax and make certain laws, were themselves subject to common law adjudication, but at the same time, he saw that some regal powers escaped the sphere of law. In particular, “he recognized that the king had to protect the realm from invasion and domestic rapine.”5 Over the next two centuries, this dualistic approach to royal power was remarkably stable. The success of this model hinged on the acceptance of “a place for the ‘good’ sovereignty that fought enemies abroad and conspirators at home and provided for the kingdom’s occasions as they emerged,” without allowing for the “bad” sovereignty that would trample the rights and property of the citizenry or their representative institutions.6 Within this constitutional tradition, the question that produced the most controversy (in theory and practice) was concrete. It asked what constituted the exceptional crisis that would demand the exercise of “regal” (as opposed to ordinary) power. Supporters of the crown would of course assert that the monarch was the one to decide when such a situation arises, whereas opponents would look to the courts to decide these controversies. Significantly, both sides acknowledged the space of emergency. Drawing on Schmitt’s formulation (“sovereign is he who decides the exception”), it seems plausible that sovereignty in these cases was being defined by who decided what constituted an exception to the law, even if the monarch would in the end decide the exception through his or her own actions. Prerogative could be further split, conceptually, as it was early in the seventeenth century, with the idea of a distinction between “ordinary” prerogative, which was examinable by law, and “absolute” prerogative, which was determined only by the crown.7 In any case, in the

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s­ eventeenth century, the problem of the royal prerogative represented intense conflict in England.8 This was due to the way this power was deployed by the crown in the period before the English Civil Wars—in, for example, notorious cases, such as the ship money controversies, where traditional revenue meant for emergency defense of coastal regions was expanded and extended inland. However, another key factor was the transition in thinking about the relation between law and political authority in this period. Increasingly, the argument was made that royal will, unchecked by any legal constraint, was fundamentally arbitrary and hence illegitimate.9 Simultaneously, the idea was developed that Parliament could exercise “discretionary” power in times of crisis—in effect, the argument was that Parliament, the embodiment of law, was the institution to decide the exception. This issue did not disappear with the English Civil Wars, since parliamentary sovereignty would also be subject to similar criticism later in the seventeenth century, as radicals, royalists, and lawyers proposed “constitutional” limits to parliamentary powers. Given the deep importance of law within the English constitutional tradition, and also within Locke’s political thought (whether it was natural law or positive law), any concept of the political he may have developed has to be analyzed in its relation to the legal structure of the state. Rather than seizing on the seemingly decisionist characteristic of executive power in the Second Treatise, or simply assuming that prerogative is just automatically subsumed by the general legal framework of the constitutional division of powers, we take as our starting point the problem raised by prerogative, the problem of the priority of law within the Lockean state as it was imagined in the late seventeenth century. A Schmittian reading of prerogative is certainly plausible in this context, given Locke’s rather loose invocation of such ideas as safety, public good, and order. The sovereign act of prerogative does indeed appear in Locke as a decision in exceptional circumstances, a decision that reintroduces order and preserves the safety and common good of society. Yet this approach is flawed. Not just because it minimizes the importance of law, but, more critically, because it does not yield a very deep understanding of the essence of the political in Locke’s texts. As we have pointed out, the question of who decides the exception was a complicated one in this historical moment. Was the decision beyond the law? Or was it an alternative expression of the fundamentally legal form of all government? And in either case, could these decisions ever be adjudicated institutionally? The mere acknowledgment of prerogative by Locke tells us little

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about the origin and nature of this power. We need to focus much more closely on the question of the political in his work; that is, we have to see whether Locke developed a conception of autonomous political action that was not at all governed by the operation of law, in whatever form it might appear. In fact, Locke discovers such a logic, but it is not easily discerned in the conceptualization of prerogative, which has been the usual focus of attention. Locating the political in Locke is not an easy task, for his political ideas are embedded in a complicated historical moment. It is one marked by violent religious and civil war, the consolidation of state administrative institutions, a new international balance of power, mercantilism, colonial conquest and exploitation, and even revolution. And Locke was no distant observer; he was often practically entangled in the problems raised by these challenging circumstances.10 For generations, scholars interested in Locke’s political writings have zeroed in on these specific dimensions of his thought and mapped out the wideranging (and highly volatile) contexts for his ideas. The Second Treatise, the centerpiece of Locke’s political theorizing, is a difficult and maybe not even entirely consistent text precisely because of its multiple contexts and diverse ambitions. The Second Treatise has been understood as a polemical refutation of Thomas Hobbes’s ideas about absolute sovereign power, and, in particular, as a justification of the Glorious Revolution. Since the work of Peter Laslett and Richard Ashcraft, however, it has become clear that Locke was in fact positioning the argument of the Second Treatise as an intervention in earlier political crises over royal authority and religion, crises that Locke himself participated in (at great risk to his own life), though this contextualization hardly diminishes the relevance of the Second Treatise to the events closer to its actual publication in 1690.11 Of course, Locke’s arguments, so deeply concerned with individuals and their property, have also directed attention to the particular economic context of his political writings—specifically, the emergence of modern capitalism and the “possessive” individual underwriting the liberal idea of the state.12 At the same time, periodic resurrections of interest in Locke’s rather complex (and ambiguous) religious views have served to disrupt overly circumscribed interpretations of either the liberal civil state or the liberal individual, reminding us of the historical specificity of Locke’s assumptions about human beings and human community.13 In a similar vein, Locke’s notoriously evasive discussions of natural law throughout his long career have sparked controversies over whether Locke really believed in a foundational natural morality that would support our own positive law, or whether he ultimately understood our civil

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life as a response to a harsh Hobbesian condition of violence and conflict, as Leo Strauss infamously argued.14 More recently, the importance of Locke’s relationship to the colonies in America has sparked a series of innovative rereadings of his political work that emphasize the global dimensions of both his state theory and his thinking about property relations.15 What is so interesting about the Second Treatise is that it always seems to accommodate plural readings and multiple contextualizations. Widely varying perspectives are less incompatible interpretations of the text than they are various points of entry into a complex intellectual and historical order. The Second Treatise is not so much a contradictory text as it is one that harbors “multiple intentions.”16 Indeed, we admire Locke’s text not so much for any one particular claim or strand of argument but precisely for its persistent attempt to synthesize so many disparate aims—the defense of capitalism, the expropriation of the colonies, the exigencies of revolution, the constitutional division of powers, and the rights afforded executive emergency power, legal institutions, and so on. However, the very pluralism of the text presents a particular challenge for our specific attempt to isolate a distinct conceptualization of the political in this period—a conceptualization distinct from any specific claim about the nature of political authority. It is rather difficult to know where to begin looking for the political in Locke. While he does directly address the question early on in his major theoretical text, the Second Treatise, he unfortunately provides us with a definition that serves only to confuse the issue, as he ends up alluding to all the multifarious ambitions that animate his theory of the state: Political Power then I take to be a Right of making Laws with Penalties of Death, and consequently all less penalties, for the Regulating and Preserving of Property, and of employing the force of the Community, in the Execution of such Laws, and in the defence of the Common-wealth from Foreign Injury, and this only for the Publick Good. (§3)

There are at least six possible criteria suggested as the defining features of political authority: legislative capacity, right to decide life and death, relationship to property, power of execution, function to defend the state against enemies, and, lastly, responsibility to the public good. None of these immediately suggest an entirely independent or autonomous concept of the political, except perhaps for the idea that political power has something to do with the right to

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decide life and death—one traditional way to theorize political sovereignty in the early modern period. However, in an earlier text, the Second Tract on Government (ca. 1662), Locke explicitly rejected this idea of sovereignty, noting that these usual signs of authority are really secondary and derivative; they are just adjuncts to the superior power of actually making law.17 And for the most part, Locke is pretty clear in the Second Treatise that the power to make law is in fact the “supream power” within the state. However, any reader of the Second Treatise (whether liberal or decisionist) should realize that Locke was addressing an important question animating seventeenth-century natural-law theory—specifically, the question of the origin of the state and its legitimation through narratives of emergence. Analyzing the specific state form for a concept of the political is to miss some of the most important problems in this tradition of thinking. We must therefore look most carefully at the key transitions that move individuals and communities from a prepolitical condition of nature into a civil state. Only then can we see clearly what (if anything) in this new condition may be understood as a specific logic of the political. If it turns out that the apparently disruptive discretionary power of prerogative in the end merely represents a more foundational principle or logic already in operation (as seen in the modern natural-law theorists), then it can hardly be understood as truly political in the sense we have defined it. In my view, the relative priority of law and the political in Locke’s text can be ascertained only by tracing out the historical and logical origin of the state in his text. In this way, it emerges as a mode of being that is independent of what comes before it. The autonomy of the political is discovered not, as we might expect, within the orbit of the rather traditional question of prerogative but instead within the deeper narrative problem of the origin of the civil state in the first place. With this in mind, it is highly suggestive that Locke was reading Gabriel Naudé’s Considérations politiques sur les coups d’état (1639) while he was composing the Second Treatise.18 Admittedly, Locke strongly resisted what he thought was Naudé’s cynical use of the salus populi to justify the worst murderous excesses perpetrated by the state. However, Naudé’s orientation to the problem of the legitimacy of political authority points us to a new approach to Locke’s own thinking about prerogative and the question of the political. In this volatile period of European state formation, in the midst of civil war and the reorganization of the sovereign state form, prerogative—that ­exceptional

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power of the executive—was now linked more strongly to the radical foundation and refoundation of the constitutional state than it was to the more ­traditional question concerning the constitutionality of certain royal decisions. Therefore, in Locke’s vision, the discretionary authority, just like Naudé’s sovereign, may best be understood as a repetition of the very origin of the state, which means that the legitimation of exceptional acts would be derived from the structure of this original foundational moment. It is worth exploring, then, just how the specific threats and challenges facing the existent state might be, for Locke, best understood as occasions for the reaffirmation of the state’s ­fundamental basis, and not themselves the origin of “crisis authority.” This focus on foundation and refoundation with respect to executive power helps us locate the defining characteristics of a genuinely political authority in the Second Treatise. For in contrast to previous natural-law thinkers in the seventeenth century who emphasized the necessity of political organization while simultaneously subordinating it to the logic of what prompted its appearance, Locke emphatically tells us at the start of the Second Treatise that the move from nature into the civil state was never necessary in the first place. While this may seem overly paradoxical, I suggest that the very nonnecessity of the state’s origin opens up at least the potential for an autonomous logic of political power in Locke’s narrative. Once the state is freed from any inexorable logic that is supposedly already embedded within a human social organization, with its own legal form, it is possible to analyze political organization in its own terms. I demonstrate that for Locke, what comes before the law and what grounds the law is in fact also what legitimates the apparent violations of the law. But to follow this argument, we need to bypass the normal approach to the text, where the starting point is taken to be the state of nature as described by Locke in the early chapters of the text. Answering this question of the political relies on an understanding of what the state authority repeats and refounds, above and beyond the original (unnecessary) decision to enter into this new condition. Why did individuals construct a state in the first place, if it was not necessary? Was there a new principle that motivated its foundation or attended its birth? While Locke at times announces rather clearly that there was no such principle, the complexity of his narrative belies that assertion. We do not find this principle in the logical structure of individual human encounters in the state of nature (or the parallel state of war), and we do not find it in the states that open the text and seem to govern the development of the argument and that have therefore been the

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focus of so much commentary on Locke. Instead, we find the true origin in what I call the “natural history of the political” that is traced in the margins of Locke’s account. In these passages, we can see how political authority emerges within tightly knit, integrated communities, as strong leaders defend their societies against enemies. The challenge is to relocate that political moment in the fractured, individualistic conditions of modernity. The civil state associated with Locke is not a foundation but a refoundation of an earlier, lost community, and this refoundation creates a whole new framework for understanding the relationship between law and the political.

NATURE, WAR, AND THE NATURE OF WAR From the opening sections of the Second Treatise, it is clear that Locke is determined not to derive the origin of the civil state from a condition marked by violence and warfare. Like Samuel von Pufendorf (and unlike Hobbes and Hugo Grotius), Locke emphasizes a natural form of sociability among human beings in the original state. Locke is not that interested in exploring, in any systematic way, the logic of this sociability. The Second Treatise just assumes it: “God having made Man such a Creature, that, in his own Judgment, it was not good for him to be alone, put him under strong obligations of Necessity, Convenience, and Inclination to drive him into society” (§77). As he wrote earlier, in the Essays on the Law of Nature, a man “feels himself not only impelled by life’s experiences and pressing needs to procure and preserve a life in society with other men, but also to be urged to enter society by a certain propensity of nature.”19 Furthermore, and again following Pufendorf, Locke believes that as rational creatures, humans can understand what their obligations are to their fellow beings in society and even recognize their duties toward humanity as a species and ultimately their duty to God. So if Locke’s state of nature is one that is defined by a “perfect freedom,” this is a freedom bound by the limits of what Locke calls natural law. This is why the state of nature is not like Hobbes’s, where there is a perfect license and hence a perpetually dangerous condition of potential violence. According to Locke, reason clearly informs the human being: “No one ought to harm another in his Life, Health, Liberty, or Possessions” (§6). We are of course bound to preserve ourselves, but we are equally bound to preserve “the rest of mankind” as far as we are able, for we recognize each other as the equal “property” of God. However, Locke’s individuals

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in nature are not quite natural—or to put it another way, this state of nature is not quite the original condition it purports to be. Whatever we learn about the origins of civil society in the state of nature must be refracted through a deeper historical narrative that runs alongside the famous depictions that introduce the problem of law and its enforcement.

A State of Nature The straightforward laws of nature Locke articulated are those that are supposed to govern the interactions of individuals in the state of nature. However, as Locke describes it, and here he echoes Grotius, one must actively consult one’s reason in order to know these laws—they are not inscribed in the heart. As Locke explained in his early essays on natural law, reason must discover this law for itself.20 And while everyone who is rational has the potential to do this, not all are able to realize that potential: “Natural law can be known by reason, but from this it does not necessarily follow that it is known to any and every one.”21 The result is that individuals may very well be led astray, they may act without reason, or at least, without proper reasoning. Yet all minds can come to reason, eventually, Locke implies. Curiously, Locke never made the effort to produce a systematic statement of natural law and seemed to try only halfheartedly, if at all, to deduce a political system from the foundational principles discoverable in this state of nature, as some earlier natural-law theorists proceeded to do. This has led many to argue, with Strauss leading the way, that Locke’s empiricist epistemology prevented him from believing that reason could ever be infallible on these questions, which is why he refused to identify the core content of natural law.22 Whether that is the case, it is certainly true that Locke makes the epistemological problem of natural law a key dimension of his state of nature.23 In contrast to previous natural-law thinkers, then, Locke erects his civil order on the intrinsic instability of reason, and not on the specific conclusions drawn from reason. This condition of instability is what opens up the space where certain significant forms of violence intrude on the scene of nature. The basic principles governing the state of nature are, according to Locke, relatively unproblematic. However, it is also the case that individuals in this state may well veer from proper conduct and violate these principles, threatening other individuals. For Locke, a certain form of violence is justifiable when enforcing the law of nature against those that stray from its principles. One may

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sometimes take another’s health or property—perhaps even another’s life—but this is never justified according to the individualistic logic of self-preservation; these actions are right only when pursuing “Justice on an Offender” (§6). This is why everyone can represent the rationality of this law. Enforcement is not limited to the person whose rights and interests have been violated. Everyone is a kind of sheriff of the law—willing and able to enforce it. Society has its own logic, the basic logic of natural law. However, it is the possibility of aberration that prompts the first concrete operations of what we might call “civility.” So rather than pitting individuals against one another in the state of nature, Locke poses reason and its articulations against its others. Real human bodies shift position according to their relationship with rationality. The criminal, for example, is a victim, according to Locke. The criminal is a victim of, say, “passionate heats” or the “boundless extravagancy of his own Will,” while the enforcer of natural law is always the incarnation of “calm reason and conscience” (§8).24 When Locke speaks of “reparation” and “restraint,” it is in the service of reason and its domination of nature—the natural state is affirmed as a space of reason by bringing back the criminal (and the disrupted scene) to the original rational state of affairs. That is why all actions on behalf of natural law must be proportionate to the original transgression—the legitimacy of enforcement is measured by the idealization of normal behavior among rational individuals. Locke admits that this idea of individuals enforcing natural law in human groups is a “strange Doctrine,” and he also admits it is unlikely that these individuals who take on the task of representing reason and natural law would always be unbiased—indeed, this bias (encouraged by the passions and by habit) is inevitably a perennial feature of the state of nature as Locke describes it. Yet any move to the formation of a new civil state cannot be seen as a response to some anarchic condition of violent lawlessness that spawns endless deadly conflicts. The civil state is simply a remedy to some of the inconveniences of nature, not the total displacement of an unbearable natural condition. The main difficulty in nature is not the rule of reason but the stability of that rule. The civil state is a more consistent executor of natural law and is therefore simply an alternative way of enacting and enforcing the reason that already rules the natural society (§13). The state is an artificially consistent representative of the ideal of rule, not the correction of the absence of consistent rule. This is what sharply distinguishes Locke from prior natural-law theory. Political existence is not necessary according to the conclusions of an abstract natural-law logic (Grotius). And is it not necessary according to the conclusions reached by rational

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individuals in a condition of persistent instability and violence (Hobbes). Rather, the state offers just another possibility for the expression of natural law. The state is therefore not necessary according to the logic of natural law. So we must look closer at the function of natural law in adjudicating human conflict. For Locke, the criminal transgresses natural law by failing to recognize it. However, the transgressor can be returned to reason by the law’s representatives—whether the rational individual in the state of nature, or, later, the various arms of the civil state. Yet Locke hints in these passages on crime that some criminals are more than simply temporarily wayward. In certain situations, the offender commits a crime that “consists in violating the Law, and varying from the right Rule of Reason, whereby a Man so far becomes degenerate, and declares himself to quit the Principles of Human Nature, and to become a noxious Creature” (§10). The murderer is perhaps the clearest example of such a figure. It is reasonable, says Locke, for us (as rational individuals, as a civil state) to kill this murderer. This decision to kill is not just to deter others from this serious violation of natural law (though it may accomplish this) or even to punish the horrible crime with an equally horrible penalty. The most important factor, Locke explains, is the fact that this person has, by “Violence and Slaughter . . . declared War against all Mankind,” and he can, as a consequence, be “destroyed as a Lyon or a Tyger, one of those wild Savage Beasts, with whom Men can have no Society nor Security” (§11). What needs to be underlined is Locke’s legitimation of “destruction” in this passage through the process of reason: the murderer’s offense has been recognized, in the abstract, as a threat to society—indeed, a threat to humanity as a whole—and so it is logical to defeat this threat to preserve the very possibility of a peaceful society in the future. Locke is not arguing that murderous conflict drives us to certain actions in response. The formation of a state in particular cannot be seen as the foundation of a new zone of security to protect individuals from predatory violence. Reason governs nature, and our decisions in nature (even the decision to kill an offender who kills) are all structured according to the logic of natural law; that is, they are rational decisions taken to preserve and protect the lives and property of individuals in society.

The State of War The example of the murderer introduces a serious complication into Locke’s account of human interaction. Locke’s portrayal of the extreme offender as a

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“savage beast” who is to be killed like any other deadly animal destabilizes the defining context for the identification of enforcers and transgressors of natural law. The “noxious” creature has quit reason altogether. And not just momentarily in the heat of passion. For the most part, Locke sees the transgressor of natural law as a participant in the state of nature comprehended by that law. The murderer is however a liminal case. While we may, rationally, deal with the murderer from the standpoint of the natural state, Locke raises the possibility that such “noxious creatures” may well force us into confrontations that take place outside of that natural condition. This leads us into a wholly new sphere of interaction—that is, the state of war, which Locke makes a special effort to distinguish entirely from the state of nature. These are neither spaces in the literal sense nor successive states in a logical or chronological account. The state of war and the state of nature are different states of mind. What Locke shows in the chapter on war is this: we do not always have the luxury of punishing extreme offenders (those who have quit reason) under the conditions of natural law. Often, we must do battle with this “savage beast,” and the logic of this confrontation, as Locke repeatedly emphasizes, is hardly rational. The state of war is quite bluntly “a State of Enmity and Destruction.” Our opponent is our enemy, an existential threat to our well-being to be sure, but also an enemy of reason. This is not someone who has acted “without” reason and needs correction. According to Locke, we fall out of nature and into a state of war when another being shows that he has a “settled Design” upon our lives, an intention that is a total denial of natural-law reason. Now, it is not the case that in this confrontation with the enemy we somehow represent reason and human society in general by punishing a crime. The crime is not so specific. The crime is that of acting outside of human life altogether. We are therefore fighting for our existence against an enemy of the human; and we have a right, Locke says, to “destroy that which threatens [us] with Destruction” (§16). This conflict is governed by this existential logic, and not the rational logic of legitimacy. Therefore, our actions are governed by the immediate necessity of overcoming this threat of destruction, not by the conclusions of reason. And one may destroy a Man who makes War upon him, or has discovered an Enmity to his being, for the same Reason, that he may kill a Wolf or a Lyon; because such Men are not under the ties of the Common Law of Reason, have no other Rule, but that of Force and Violence, and so may be treated as Beasts of Prey,

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those dangerous and noxious Creatures, that will be sure to destroy him, whenever he falls into their Power. (§16)

The implication is that we must enter a new zone—a new psychological zone— to combat this enemy. While the right to destroy may well be grounded in the logic of natural law governing society, the practice is in fact governed by the logic of violence and the “unreason” of our enemy. There is therefore absolutely no proportion between this “crime” of radical enmity and the actions of selfdefense. Nowhere is this disjuncture more clear than in Locke’s favorite example, the thief. Locke describes various scenarios in which we must deal with thieves, precisely to show the distinction between the kinds of actions governed by reason in nature and those authorized by a logic of existential survival in a state of war. Locke implies that in the state of nature, we should imagine thieves to be those who stray from the natural law because their passions and base desires overwhelm them in a moment of weakness. We can correct this figure and the disruption caused by the crime: the stolen property is returned and we punish the offender. Whether in the natural state or in the more systematic civil condition that comes later, the thief is, for Locke, just the object of a rational decision that aims to return society to the law of reason that is its foundation. The thief strays but still exists largely within the human bond of a common reason. Locke then turns to another kind of thief, best represented by the highway robber; this is the one who confronts us directly and takes away our liberty by force, only then to deprive us of our property and maybe, we fear, our very lives.25 Locke is merciless: we can, he says (advises?), kill this thief in an instant. Not because we have some right to our property and can defend it but more because once our liberty is threatened (even in the slightest), we have no way of guaranteeing the fact of our very existence. This thief has therefore put us into a state of war by attacking our ability to act freely, even if he has not explicitly declared a design on our lives. Because this is now an existential battle, only the logic of violence prevails, and we may (should?) kill our opponent (§§18–19). As Locke explains, the difference between the state of war and the state of nature depends on whether reason has the opportunity and means to govern the situation. Locke demonstrates this with a complicated example. Imagine you have given £100 (a small fortune, in other words) to someone to hold while

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you get onto your horse, and you find that the individual refuses to return it and even brandishes a sword when you try to get it back. Locke insists that, in this situation, you must await the intervention of a rational enforcer of natural law, for what is at stake is the just reparation of a crime and not the fact of your foundational liberty as a human being. Locke offers a contrasting example that he describes in this way: “A Man with a Sword in his Hand demands my Purse in the High-way.” Though the purse holds only 12 d., Locke asserts, “This Man I may lawfully kill.” In the first case, you can literally wait for the law, wait for reason to restore the situation. However, in this second example, “The Law,” as Locke dryly notes, “could not restore Life to my dead Carcass” (§207). The distinction between the states of war and of nature allows Locke to acknowledge the possibility of deadly conflict between human beings while denying that such conflict defines the normal interactions of individuals in any society. The proper state of nature is ruled by reason, and the ­transgressions only serve as occasions to reaffirm its rule. The state of war is an existential battle with an inhuman enemy; this state ends only with the defeat of this enemy and the return to the logic of rational interaction in nature. The point Locke makes is that nothing interesting ever originates in the state of war. Because it is ruled by a logic of violence, it exists only in the presence of ­violence. So when that violence ends, the state of nature necessarily reappears. Now, it is true, as Locke says, that avoiding the state of war is one of the reasons we move into civil society (§21). However, it is not exactly the case that the mere possibility of finding ourselves in the state of war impels us to move into the civil state. In fact, what Locke focuses on is the real difficulty of bringing the state of war to an end. For even after the defeat of the enemy, the phase of reparation presents new possibilities of fresh violence, new opportunities for the eruption of war. What Locke really says is that the state of war is always a possibility (even in civil society). But with the emergence of a legal institutional order, the state of war ends with the defeat of the enemy, because any further remedies can be decided by the law of the state and enforced by the strength of the whole society (§20). The tension between the state of war and the state of nature is critically important for understanding the structure of Locke’s civil state. It is not the eruption of existential violence that is averted in a civil condition but the continuation of unnecessary violence. The state provides law that only indirectly resolves an existential crisis—and then just at the point where reason wants to reassert its control over the situation but cannot for the lack of any sustained support (§21).

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The criminal, in Locke’s view, is always just a disruption of the natural condition, not someone who defines that condition or even threatens its existence. The radical exception to nature is war, and this exception is always a possibility. However, war is a fall away from reason, not simply a momentary disruption of rationality. When Locke describes the transition from the state of nature to the civil state, what is changing is only the method for dealing with what I am calling these normal and expected disruptions of natural law. When Locke’s individuals in the state of nature eventually form a civil state, they essentially just repeat and confirm the logic of natural law. The more radical enemy (including the beast within) cannot be done away with, though our unavoidable confrontations with this enemy may well be shortened. The civil organization therefore precludes any systematic treatment of enmity, or the logic of violence in the state of war. This lacuna presents a major challenge to Locke’s conceptualization of the civil state. For how could such a state ever formalize or institutionalize its own relationship to violence and war? Locke does try to address this pressing question. Yet in answering it, he reveals a whole new set of very difficult problems. For it turns out that the constructed state is not simply a repetition of the logic of natural law. It serves as a reenactment of an earlier historical form of human social existence. In other words, the new state represents not only the consolidation and regularization of natural law and its enforcement but also an artificial reconstruction of the unity of a more primitive communal form of life. It is within that space of unity that a new understanding of war and political authority reveals itself in Locke’s text.

A NATURAL HISTORY OF THE POLITICAL It might seem as if Locke simply ignores the problems raised in the chapters on nature and war when he moves to his famous chapter on property. However, it is important to take note of a new strategy employed in this section—the method of “natural history.” This particular strategy disrupts the development of the argument. No longer does Locke describe the erection of civil institutions in a state of nature defined by individuality and the autonomous use of reason. From this point, Locke describes these civil institutions as part of an earlier, lost political condition—a refoundation, in a sense. The continuities and discontinuities between these two “natural” conditions complicate the

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relationship between law and the political as it appears within the modern state form. Commentators fixated on the opening state of nature can see political life only in relation to the law because they miss the significance of an earlier form of political life that has nothing to do with the challenges present in the state of nature usually associated with Locke’s theory of property-owning subjects, wary of threats to their rights and interests. In chapter 5, after Locke gives his highly influential account of the relationship between human labor and property, he goes on to explain how human beings go through different phases of property acquisition, showing us how each phase introduces new challenges to human communities. This historical turn shifts the context for thinking about law and government. For example, Locke says that as the original families increased in size, they needed more space, more livestock, and more possessions to sustain themselves. While for some time this did not entail any notion of fixed property, at some point, Locke tells us, these primitive communities moved into a more highly articulated economic condition. These communities, with their new forms of order, began to reorganize themselves as distinct legal entities with respect to other communities: “They incorporated, settled themselves together, and built Cities, and then, by consent, they came in time, to set out the bounds of their distinct Territories, and agree on limits between them and their neighbors, and by Laws within themselves, settled the Properties of those in the same Society” (§38). What is missing in this rather brief narration of the emergence of civilization and international law is any sense of what would constitute a logic of political organization. While Locke mentions that economic and civil relations are organized by a method of “Compact and Agreement,” and he refers to the leagues formed between “several States and Kingdoms” (§45), he gives no indication of how these relationships are formed and managed, either in a society or between distinct groupings. Locke strongly implies that the expansion and articulation of property is largely self-organizing; there does not seem to be any fundamental conflict that would drive people to create some new political or civil system. In other words, the logic of property and of property relations propels this narrative without any assistance from outside, without any conscious decision making whatsoever. Property has its own, entirely apolitical, logic of development. Yet near the end of the chapter on property, Locke makes a revealing remark. Pointing to the example of the Indians in North America, he shows that their lack of disciplined agricultural or mechanical labor precludes any of

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the “conveniences” of the modern European—the “king” in America is in fact worse off than an average English day laborer. What is unsaid here is that this economically primitive community clearly must have had some form of political life. The king may be economically deprived, but he is still a king (§41). This allusion to the political is also present in Locke’s many statements about states making agreements among themselves about the extent of their territories and influence—political organization seems to come before these disputes, and not as a result of them. So what constitutes these political orders? If we read the Second Treatise as it is usually read, we would answer that question by tracing the way somewhat restless individuals move from the state of nature and into a commonwealth. Yet in these sections on the history of property, the emphasis is on the development that takes place within integral communities and not between vaguely autonomous individuals. Significantly, Locke takes us back to the very beginnings of these integral communities to think through the origins of a distinctly political form of power. The original position of human society is framed not as a logical space of abstracted rational individuals, as it is in the opening of the Second Treatise, but instead as a historical formation. As Locke explains, in his following chapter on paternal power, the first societies were families. If the logic of authority was initially derived from the natural authority of the father over his dependent children, there is a crucial transition to what we might call political authority once those children come of age (which is another way of saying that they come to possess reason) (§55). As Locke puts it, at this stage, “without some Government it would be hard for them to live together,” though exactly why that is the case is not specified. The point is that the family moves into a political condition when the children “by express or tacit Consent” agree to a continuation of the father’s authority, though it was presumably only necessary at first because of the children’s dependency (§74). Anyway, Locke minimizes this transition as much as possible: it was, he says, “Easie, and almost natural for Children by a tacit, and scarce avoidable consent to make way for the Father’s Authority and Government” (§75). Not quite natural, not quite avoidable, this transition is entirely explicable, or so it appears. It is noteworthy that Locke minimizes so much the significance of this form of authority within the community. Because of their “little Properties” and consequent lack of conflict, the Father is deferred to by the family members only on those rare occasions when some dispute arises (§75). It is difficult to understand how Locke could think that such an ephemeral foundation of authority could ever serve as the origin of those enduring

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monarchical forms of power that emerge in the course of history (§76), for the Father only seems to confirm, when necessary, the relatively automatic functioning of the natural law in primitive societies. When Locke does at one point define the political as the power to protect property in society, it is not at all clear how such a political authority could ever be needed in the absence of a fairly complex economic body that would demand these concerted efforts to protect property and punish offenders (§87). Locke has already confirmed (explicitly and implicitly) that political authority can exist in the absence of developed property relations. The question then is what distinguishes the administrative management of rare property disputes from the kind of power wielded by more permanent forms of authority such as tribal leadership or monarchical institutions? For an answer, we must turn to Locke’s crucial chapter on the “beginning of political society,” because the nature of political (as opposed to economic or civil) authority can be precisely located. Unfortunately (but rather typically), Locke begins his discussion by confusing the issue: political power, he says, involves at once the agreement to unite for both the purposes of “comfortable, safe, and peaceable living” and for the “secure Enjoyment of their Properties.” He then adds another factor: to establish “a greater Security against any that are not of it” (§95). This last comment turns out to be the most significant, for once Locke proceeds to narrate the development of the earliest forms of political community (in answer to the objection that there never was such an original condition), we find that property is a relatively unimportant factor. Life within the community is more or less peaceable at its core. The crucial factor for the establishment of an institutionalized political authority turns out to be existential security, protection from enemies. We can start with Locke’s rather elliptical statement that we can define a political community by the decision taken to “unite into Society” and to form thereby “one Political Society” (§99). What would motivate the first effort to constitute such a unity? Locke tries to affirm (in the form of a natural history) the logic of association that governs the state of nature introduced at the start of the text. The father, like any individual, has the power to execute the natural law within society; indeed, he has special privileges given he is responsible for his children’s welfare. The turn to “government” is that moment when the father is given the power that he had previously possessed by nature (§105). The political institution that emerges from this (almost) natural development is not wholly legitimated by nature. Locke makes it clear that the families trust

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their father, who in turn loves and cares for them. The legitimacy of the persistence of this authority may flow from the consent of the community members, but the support of this form of power needs to be traced to the emotional identification between the ruler and the ruled in this family structure (§107). In a striking passage, Locke says that the earliest peoples (some of whom were thought to still exist, of course, in the New World, for example) had no desire to restrain the powers of their leaders, precisely because historical conditions had not yet poisoned that relationship of identity. They had no reason to be suspicious of their leaders’ actions. These communities chose the kind of government “best suited to their present State and Condition”—specifically, the leadership of a figure who could reenact the care and attention of the father. Locke repeatedly mentions that the paucity of property and the lack of covetousness marking these early family communities would most likely have kept them in a natural state of self-organization, with only occasional interventions by the paternal power necessary to resolve disputes. “The equality of a simple poor way of living confineing their desires within the narrow bounds of each mans smal propertie made few controversies and so no need of many laws to decide them: And there wanted not of Justice where there were but few Trespasses, and few Offenders” (§107). A permanent form of authority can arise only from the persistent potential threat of the enemy. This formulation depends upon a natural condition at odds with the supposed “state of nature” described in the opening of the text. Locke now reminds us that members of these early small communities could not help but have great affection and trust for one another; important is the negative implication that “they could not but have greater Apprehensions of others, than of one another.” Locke reveals in these comments a first crucial specification of the political: he writes that this early primitive condition “stood more in need of defence against foreign Invasions and Injuries, than on multiplicity of Laws” (§107). Locke continues, emphasizing the priority of enmity in this configuration of authority: “And therefore their first [emphasis mine] care and thought cannot but be supposed to be, how to secure themselves against foreign Force” (§107). So it is only natural, Locke points out, that the community come together to choose the government “which might best serve to that end; and chuse the wisest and bravest Man to conduct them in Wars, and lead them out against their Enemies, and in this chiefly [emphasis mine] be their Ruler” (§107). This is the genuine terrain of the political—not the legal administration of the community but its defense in an ongoing state of (potential) war.

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Locke confirms this structure in the very next section, when he tells us that the earliest leaders were chosen for their ability to lead the community in war. With few inhabitants and no money to tempt anyone “to enlarge their Possessions of Land, or contest for wider extent of Ground,” primitive political authorities (the “Kings of the Indians in America, which is still a Pattern of the first Ages in Asia and Europe”) were, according to Locke, “little more than Generals of their Armies.” Their leadership is therefore of a limited sort. In times of peace, they have little “dominium,” which is what we might expect given the existential origins of this position. In fact, even the decision for peace or war is taken by the community as a whole, says Locke (§108). With this comment, Locke seems to be hedging, retreating from his initial definition of political power in terms of enmity and defense. However, the effect is to ground political forms of authority in the problem of war and peace and not to internally administer a social organization governed unproblematically by the basic principles of natural law. As Locke returns again and again to the underlying logic of singular leadership in these early political societies, he highlights the crucial importance of trust—“Certain it is that no body was ever entrusted with [political power] but for the Publick Good and Safety.” And safety is what comes to the fore in Locke’s analysis of these powerful leaders: “And unless they had done so, young Societies could not have subsisted: without such nursing Fathers tender and carefull of the publick weale, all Governments would have sunk under the Weakness and Infirmities of their Infancy; and the Prince and the People had soon perished together” (§110). In this early golden age, there was “no contest betwixt Rulers and People” (§111) because the ruler was so closely identified with his people, and vice versa—hence the importance of locating the origins of the political in the paternal figure himself. As Locke once wrote, in a fragment on the nature of politics: “The kings of Canada are elective, but the sons never fail to succeed their fathers when they are heirs to their virtues, otherwise not, and their kings are rather obeyed by consent and persuasion, than by force and compulsion, the public good being the measure of their authority.”26 From the perspective of Locke’s natural history of the political, we can now see how the initial states described at the start of the Second Treatise—the state of nature and the state of war—are somewhat perverted versions of the original conditions framing the origin of early political communities. Political unity in the early history of human community was formed through the threat of the enemy, and the political leader, who loved his subjects and identified with them

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personally, defended their lives as he would his own. In early times, the state of war flows from the logic of community identity. Similarly, in this state of nature, society naturally expresses a fundamental harmony and integrity. The problem of transgression, so important to the opening depiction of the natural state, is muted in the early historical forms because of the near total absence of ambition and desire in these societies that lack economic complexity. The Lockean state of nature, as it is usually understood, is in fact a second phase, as much the result of a breakdown of human order in history as it is the playing out of some ahistorical logic of reasonable, laboring individuals interacting with one another. The Second Treatise is not at all structured like the earlier natural-law accounts it appears to imitate. Locke instead describes two rather different natural conditions. The book opens with a description of a fallen condition, a new state of nature that comes after the historical disappearance of the original social and political community form due to the disintegration of its foundational identity and the corruption of its institutions that were legitimated by that identity (including the legitimation of a political authority grounded in the existential conflicts with enemies). The real challenge Locke faces in the opening of the Second Treatise is the problem of reconstituting both a civil and a political form of unity that can substitute for the kind of leadership enjoyed at the origin of human history—where the leader was so intimately identified with his subjects that he would fight for their survival and bring them to unity whenever a crisis threatened the affective solidarity of social life.

LAW IN THE POSTPOLITICAL AGE As the Straussian theorist Richard Cox rightly noted in his study of war in Locke, the state of nature transforms, over the course of the Second Treatise, from a condition of essential peace and harmony to one of near anarchy and chaos.27 As Strauss himself pointed out, government becomes necessary for Locke only in this second state of nature—that “ill condition” of scarcity and competition in which peace is considered to be largely impossible.28 More recently, Richard Ashcraft has made a similar point, arguing that there are fundamentally two different states of nature in Locke’s text, one primitive and relatively uncomplicated, the other marked by advanced capitalism, urbanism, and extensive commercial exchange. Only in this second stage does the problem of

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political authority and consent really arise, Ashcraft notes, because only in this state do we find the key difficulty emphasized by Locke—the persistent “quarrelling about Title.”29 What is missing in these perceptive readings of Locke’s two states of nature is the fact that in the earliest phase of human life, Locke shows that the logic of the political is wholly independent of the property relations that dominate the evolution of his analysis, relations that arise only in the second state of nature. Some new form of civil government among individuals becomes desirable in this second, historically determined state once the pressures of a capitalist economic formation prepare the dissolution of naturally tight-knit social organizations. According to Locke, though, government in itself is not logically necessary for the continued existence of either individuals or societies, Strauss’s argument to the contrary. Locke’s second state of nature is hardly easy. However, it is not really Hobbesian because the natural law of reason still hovers over these newly fraught social interactions, containing them to some degree despite inconsistent enforcement. Tracking Locke’s account of the natural history of political communities, we see how in the next phase, new difficulties arise historically with the corruption of both the political leadership and the citizenry. The golden age produced “better Governours, as well as less vicious Subjects,” Locke asserts, because “there was then no stretching Prerogative on the one side to oppress the People; nor consequently on the other any Dispute about Privilege, to lessen or restrain the Power of the Magistrate.” In other words, there was no contest over political and civil power. The golden age begins to deteriorate, Locke argues, with the appearance of “vain Ambition, and amor sceleratus habendi, evil Concupiscence.” These passions serve to corrupt individuals and distort their idea of “true Power and Honour.” The corrupting influence is of course the desire for wealth. The “future ages” are all poisoned by “Ambition and Luxury.” The princes are taught, first of all, to have “distinct and separate Interests from their People.” Once that cleavage opens up, the people must be increasingly vigilant. One of the results of this degeneration, Locke points out, is the birth of what we might call “political theory”—for it becomes “necessary to examine more carefully the Original and Rights of Government; and to find out ways to restrain the Exorbitance, and prevent the Abuses of that Power,” whose only purpose is the people’s good (§111). At the origin of political communities, Locke reminds us that the identification of leader and subject was never in question and therefore the “constitutional” problem of restraint would never arise (§112).

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Locke’s anxieties with this postpolitical age were clear even in his early, more conservative tracts on government. With too much authority, there is tyranny; not enough, though, and there is anarchy. But how do we find that perfect balance of legitimate coercion? Locke finds the solution not in some specific constitutional technology, but instead in the “natural” identification of leaders with their subjects: All the remedy that can be found is when the prince makes the good of the people the measure of his injunctions and the people without examining the reasons, pay a ready and entire obedience, and both these founded on a natural confidence each of [the] other, which is the greatest security and happiness of any people, and a blessing, if ever, to expect now, and to be found amongst those miracles restored (and we hope will continue) his majesty to us.30

By the time he was writing the Second Treatise, such a miracle seemed unlikely, and Locke was moved to construct a whole new conceptualization of the state, one that would rediscover the initial intimate link between leaders and subjects—that bond which drove action in the existential space of the political while simultaneously governing the administrative space of the law. Ambition, luxury, wealth—these not only introduced corruption into institutions, they also created new distinctions between subjects themselves, producing new opportunities for conflict and even violence within the social body, something that would only exacerbate the crisis of political and civil authority. In the original political condition, it was the lack of substantial property that helped solidify social relations based on mutual trust and love. If, as we saw, Locke understands human beings to have a natural social inclination (however vaguely described), we can now see that the development of commercial and economic life (and in particular the invention of money) drives individuals apart—or better, actually produces the individual as a modern category of being. After all, only with the advent of large estates, commercial exchange, and concentrated forms of capital would Locke’s paradigmatic thief (whether highway robber or petty larcenist) ever really have a potential career.31 The challenge that structures the Second Treatise is that of finding a way for individuals to reconnect socially despite their new, probably ineradicable economic differences and the consequent myriad opportunities for theft, fraud, and more insidious forms of exploitation. The challenge operates on two distinct levels: the society first must be reformed as a unity against the centrifugal forces of

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economic activity; and then that unity must be preserved through a new form of institutional power, one that guards against the aberrations of human leaders, whom we realize cannot (unlike the early “paternal” figures) help being tempted to derive personal profit from their positions of authority. Individuals are inclined toward society to help protect their property only once there is enough property to protect—what Locke calls the “ill condition” (§127). This condition describes a state of nature that is neither the historical state of some early primitive society nor a transhistorical logical space. Instead, it is a specific modern condition encompassing individuals defined by their advanced economic lives. This new condition is a particularly difficult one precisely because the earlier forms of protection (both civil-legal and politicalexistential) are themselves fatally compromised by the specific conflicts created in this modern age of capital. That said, Locke did tell us that political leadership, operating within a state of war, is necessary, logically speaking. Any new form of civil government that aims to alleviate (never transcend) the “ill condition” that is the modern state of nature must accomplish two things: one, protect individuals and their property in a newly problematic social environment that lacks “paternal” supervision, and two, continue to protect the new unity of the reformed community against its inevitable foreign enemies. What is problematic in this situation is less the concept of the political as it has been identified than its incarnation (or resurrection) within a novel legal state. This state is erected to help resolve the perennial discord, conflict, and even violence that arise when one’s fellow citizens cannot easily be trusted and no trustworthy public authority exists to intervene consistently on behalf of justice. The initial formation of the civil state is understood by Locke as a move away from the inconvenience that is the modern condition and toward a new order that delimits the effects of conflict while recuperating something of the natural social identity characteristic of an earlier way of life. What is really at stake is the construction of an artificial form of leadership that would function as the original leaders did, protecting the integrity of the social body but also protecting the body as a whole against external threats. Without the luxury of such a paternal figure of authority—someone who loved and defended the social body as if it were his own—a civil society must create institutions that mimic that leader’s performance. Locke complicates and enriches his concept of the political by rethinking it in terms of the second state of nature. No longer can the political be understood solely on the plane of community, leadership,

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and enmity. When, in the absence of a perfectly harmonious social unity, a new form of unity is produced in the civil state, this unity is redefined. It has a legal identity—that is, a conceptual (or virtual) form of unity with its own logic of association and action transcending the problematic social bonds linking individuals (without ever going beyond the content of natural-law principles). The political function within the state now has to become accommodated to this new virtual identity. It defends not only the society understood as some collection of human bodies but also that legal simulacrum that substitutes for the original intimacy of human community, the guarantee of its continued harmonious functioning.

A POLITICAL-LEGAL STATE Once we recognize that the foundation of the civil state occurs in Locke’s new state of nature, not the primal one, we must analyze the features of that civil state in light of the original political and legal practices developed in the earliest phases of human government, still visible in the many “primitive” cultures Locke alludes to in this and other texts. The first thing to stress is that enmity—even though it exists as a possibility in these new, uncertain conditions that emerge in modern commercial societies—is not the originating factor for the formation of the civil state. As Locke has shown in his natural history, the political problem of enmity is one that logically follows the formation of an integrated, voluntary society. By contrast, in the second state of nature, there is society but no consistent integration, no community form that would mimic the family bonds grounding early social organizations. Therefore, it was entirely appropriate for Locke to define the state of war, as it functions in these new conditions, purely in terms of individuals and their peculiar existential threats. Locke recognizes that until an integrated society is reborn in the new state of nature, until there is once again a space of genuine unity, the problem of the political does not even arise. However, with the construction of an artificial state that aims to produce a new kind of uniformity—through the enforcement of natural law—we can locate the appearance of a novel kind of unity. While this unity is not the close familial identity of the early communities, artificial unity (under the law) is critical, for it grounds the possibility of a regenerated concept of the political. This new state then refounds the political on the basis of unity. However, it is

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a substantially new foundation because the form of that unity is on an entirely different plane. The political leader does not defend his society as if it were his family. The leader defends the ideal form of unity that arises from the very foundation of a legal community. So to understand the operation of the political in the modern state, we must first carefully trace Locke’s narrative of origin that produces a new legal condition in this second state of nature. The first step to civil society, according to Locke, is the move to regularize the actions of individuals with respect to basic rational principles. Locke insists this is not necessary because individuals may still enforce these natural laws of reason and work to maintain them, even without anything like the strong bonds of early social identity and even amid the continual disputes that characterize a commercial way of life. The “inconvenience” of this “ill condition” is a lack of consistency and predictability. In other words, Locke argues that individuals move into the civil state neither to attain a new kind of existence nor to return to an earlier golden age. Instead, they do so merely to regularize already existing principles and practices.32 It is not surprising, then, that Locke focuses on law as the key dimension of this civil organization. As is well known, Locke argues that the remedy to the inconsistency of the (modern) state of nature is the construction of a legislator and an arbiter who would take the place of the individual enforcement of the natural laws that govern the protection of property and life. As Locke puts it: “Those who are united into one Body, and have a common establish’d Law and Judicature to appeal to, with Authority to decide Controversies between them, and punish Offenders, are in Civil Society one with another” (§87). It is possible to separate out the legal functions of the new state form. What Locke calls the “legislative” power is the institutional body that specifies the obligations of the members of the civil state; that is, it takes over from the individual the task of articulating the precise demands of natural law in concrete circumstances. The legitimacy of the legislative flows from the content of natural law, which impels us to protect the lives, liberty, and fortunes of the citizens (§§123, 134). The legislative is the “supream” power, as Locke repeatedly affirms. And yet, if there is no doubt that law is the supreme power (in both nature and civil society), then that power is in fact entirely virtual because it exists purely as an abstract demand (however specific that demand might be). Whether the obligations of law are discovered by one’s individual reason or by its formal substitute, the legislative body, the demands of law must be enforced to be effective. In nature, Locke argued, everyone has the right to enforce ­natural

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law. However, under conditions of great instability, only the power of the community as a whole offers predictable and effective enforcement of the law. The “executive” power is the entity that takes on this role of enforcement on behalf of every single individual who exercises it in the natural state. The executive here represents for Locke not so much the content of the law as it does the force to make law real through obedience. Together, the legislative and executive powers mimic, collectively, the paternal function of the early leaders or, at least, the function of dispute resolution that aimed at the stabilization of relations among members of the social unit. At this point, Locke has, so to speak, reconstructed the early social form within the depersonalized spaces of state institutions. Once that has taken place, we see that the other (and much more important) function of those early leaders—the explicitly political one of defense—can now be addressed in light of the newly formed civil state. Locke points out that any integrated body is in a state of nature with respect to other similar entities. And so another power is needed, one that would mimic the political leadership of the early kingdoms— that is, the power to confront and, if necessary, destroy the enemies of the state. Locke notes that this is also a “natural” power because any individual also has the right to confront the enemy on the existential terrain of war (§145)—as he demonstrates in the chapter on war. This new power in the civil state is what Locke calls the “federative” power, one that “contains the Power of War and Peace, Leagues and Alliances, and all the Transactions, with all Persons and Communities without the Commonwealth” (§146). So far, Locke’s division of powers parallels both the powers of individuals in the dual states of nature and of war and the nearly natural powers of the leaders of early political communities—to enact and enforce law and to protect the community from enemies. However, in contrast to early societies, law and its execution are now exceedingly important in the new community because of the increased tensions surrounding property. This is a crucial point: in both early and modern states, the executive (legal) function and the federative (political) power of military defense are united in one figure. Only in the modern case does this unification raise significant difficulties, according to Locke. In the first societies, the coincidence of powers is really accidental—the father/ chief/monarch is simply the most trusted and respected figure, so he can play both roles equally well, and in any case, there is never a great deal of law making or executive decision making. However, in the new civil state, as Locke points out, the unification of the executive and the federative powers is now logically

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necessary, primarily because both must deploy the strength of the whole society to achieve their goals (§§147–48). There are two noteworthy consequences. First, Locke implies that the executive and federative powers compete for resources because both are continually active. Second, Locke seems to concede (and this is extremely important) that their respective goals may not always be entirely congruent; in other words, the independent logics of the political and of the legal may well be not just distinct but perhaps in direct opposition to one another. If that were the case, and these institutions were not united into one single entity, it “would be apt some time or the other to cause disorder and ruine”—that is, to introduce civil war (§148). So it is not surprising that at this critical juncture, Locke steps back from the functional mapping of the state’s various levels of authority to clarify the hierarchy of powers. Most of Locke’s energy is spent on the apparent conflict between executive and legislative authority. Here is where the problem of exception arises. However, we must remember that lurking behind this complex (and historically crucial) analysis of law and prerogative is Locke’s other “executive” power, the federative war power. We look first at how Locke’s executive intervenes within the legal state before analyzing the federative power and the difficulties it introduces.

Prerogative Decision and the Law Locke begins his chapter on the subordination of the powers in the commonwealth with a strong reassertion of the supremacy of legislative authority. Yet, immediately, he complicates the picture by noting that the legislative body has only a “fiduciary” power to act for certain ends. This opens the possibility that the people’s trust in that body is forfeited and the authority of the legislative dissolved (§149). Locke also opens up the possibility of what Schmitt would call the exception. The genuine end of the legislative body is the production of specific positive laws that are in accordance with natural-law principles— which is to say, with reason. The implication is that reason can intervene in the sphere of positive law. Locke defines executive prerogative as the vehicle of just this kind of intervention. Prerogative, he says, is that ability to act “not by old custom, but true reason” (§158). In this passage, Locke is speaking specifically of the occasional need to bypass outmoded mechanisms of representation in legislative bodies, yet he realizes that he is raising a serious matter of general principle. Prerogative, Locke goes on to claim, is the instrument that allows

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reason to prevail in a world marked by flux and unpredictability (§§157–58). The executive is the potential savior of reason when regular law fails. As Locke infamously declares: “Salus Populi Suprema Lex is certainly so just and fundamental a Rule, that he, who sincerely follows it, cannot dangerously err” (§158). It is interesting that Locke explicitly defines the prerogative of executive power as operating outside “legality” but nonetheless in strict accordance with the true spirit of law—which is linked by Locke to the foundational (naturallaw) principle of the safety and security of the people. As Locke writes, Prerogative being nothing but a Power, in the hands of the Prince, to provide for the publick good, in such cases, which depending on unforeseen and uncertain Occurrences, certain and unalterable Laws could not safely direct, whatsoever shall be done manifestly for the good of the People, and the establishing the Government upon its true Foundations, is, and always will be, just Prerogative. (§158)

The legislative is the normal channel for the operation of reason in the state, but, in exceptional moments, the executive steps in to enact reason.33 Therefore, there is nothing problematic, for Locke, about the executive acting not only outside the law but even in direct contradiction with it: “’Tis fit that the Laws themselves should in some Cases give way to the Executive Power, or rather, to this Fundamental Law of Nature and Government”—namely, the law of preservation (§159). And as Locke notes, even the “strict and rigid observance of the Law” can work against the basic principle of social organization. “This power to act according to the discretion, for the publick good, without the prescription of the Law, and sometimes even against it, is that which is called Prerogative” (§160). Locke’s example: the rational decision to pull down someone’s house to prevent the spread of a catastrophic fire in a city—exactly the kind of scenario used to defend the crown’s position in the controversies over ship money that erupted in 1634.34 The definition Locke gives us reveals clearly the seamless congruence of law and prerogative acts, even if they seem at first glance to be diametrically opposed to each other. Locke’s description of the primitive commonwealth only confirms this congruence. It is easie to conceive, that in the Infancy of Governments, when Commonwealths differed little from Families in number of People, they differ’d from them too

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but little in number of Laws: and the Governours, being as the Fathers of them, watching over them for their good, the Government was almost all Prerogative. (§161)

Prerogative is not an exception to the law but its most natural expression—it is reason deciding the public good in the moment of its application. Locke resurrects an earlier political theology that affirmed the legal spirit of royal discretion, as just another “manifestation of positive law, and not a suspension of its principles.”35 So executive prerogative is anything but the emergence of some decisionist force beyond the law. It is, rather, an embodiment of the principle of law in the unforeseen circumstances that mark a crisis.36 In the first section of the chapter on prerogative, Locke points out: “For the Legislators not being able to foresee, and provide, by Laws, for all, that may be useful to the Community,” it is necessary to have a force to protect the good of society (§159). If law cannot be prophetic (“it is impossible to foresee, and so by laws provide for, all Accidents and Necessities” [§160]), prerogative can at least substitute for prophecy by acknowledging the breakdown of law in the exceptional moment. Indeed, the very etymology of prerogative suggests this, its root derived from notions such as “omen” and “prognostication.”37 The executive’s decisions are not in fact oracles of truth; however, they do represent the human ability to adapt to an unexpected situation by rationally predicting the future consequences of an action in this new situation, when legislative solutions are simply too slow (§160). Locke’s prerogative is therefore not an expression of an autonomous logic of the political at the heart of the legal state. It is just the opposite. Prerogative is entirely consistent with the origins of the civil state in reason. And this emphasis on reason is what firmly sets Locke’s theory apart from earlier theological (essentially Trinitarian) conceptualizations of prerogative as an expression of the spirit of law. Because the prerogative decision is only aimed at maintaining the public good, it is therefore always subject to rational evaluation. In fact, the only measure of legitimacy for prerogative would be its success. As Locke often notes, since the basic principle of the state is the protection of individuals and their property, the abuse of prerogative power always becomes apparent—not immediately apparent, to be sure, but at least after a series of examples. Because executive prerogative is tied to the foundational principle of the people’s wellbeing, “the tendency of the exercise of such Prerogative to the good or hurt of

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the People, will easily decide that Question” (§161)—the people themselves realize whether they have in fact been helped or hindered.38 Locke once admitted that human beings could never know for sure whether an exceptional act that violates our expectations was a genuine miracle because we can never have insight into whether it was an act of the highest power of God.39 However, in the context of the civil state, we can decide the authenticity of the “miracle” of the executive because the purpose of the act is the good of the people—and we are the people. Locke resolutely denies the analogy between decisive acts of discretion and theological notions of miracle to forestall the idea that the executive authority was somehow not only above the law but above human reason altogether. The prince should never be worshipped as divine because then reason, law, rights, liberties, all would be understood “as oracles of those deities” and interpreted only as they (as representatives of a higher order) saw fit.40 For Locke, all these decisions of the executive are subject to reason and though he never really addresses the potential for conflicts between reasoning human beings (other than with his prescription for majority rule in the commonwealth), he clearly believes that reason would be exercised in crisis by the executive and that any such discretionary act would be eventually scrutinized by reasonable citizens. Locke outlined not so much a theory of popular sovereignty than a theory of the sovereignty of reason.41 The civil state was a state of law in the sense that it embodied the basic principles of natural law understood by everyone, which is another way of saying that reason had no one privileged location or expression in the state.

Federative Power and the Logic of Enmity Perhaps surprisingly, the power of prerogative does not point us to any concept of the political in the civil state. For that concept, we have to look to the state’s third authority—the federative power. We begin to see just how the logic of the political state intersects with the demands of the legal state in the new civil condition. At first, this federative function might seem relatively straightforward, given the scant attention Locke gives to the topic. However, in the wake of our analysis of the early history of human political communities, it is now clear that it is the space of war and peace that harbors a truly political logic. Locke has set up the distinction between the federative power and the legislative or executive powers in a way that parallels his initial distinction between the “state of nature” and “the state of war.” On one level, this split makes possible the

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erection of a civil state not predicated on the violence of a natural condition. The civil state (as embodied in the legislative and executive functions) mirrors the state of nature—by doubling, albeit in a much more systematic fashion, the organization and execution of natural law in human social communities. But we can see that once the state is formed around the structure of natural law, it immediately finds itself in a new condition. The state is in what Locke calls a new “state of nature” with respect to other like bodies (§145). This new natural state clearly mirrors the other natural condition—the state of war. The federative power, Locke holds, directs the state as a whole in its relationship to potential enemies. “The State of War,” remember, “is a state of Enmity and Destruction” (§16). Locke maintains that the federative power is the “management of the security and interest of the publick without, with all those that it may receive benefit or damage from” (§147). This formulation cannot help but remind us of Schmitt’s own definition of the political as the distinction between friend and enemy. The crucial point to emphasize, though, is the distinction between this political power and the domestic power of law and its execution. As Locke clearly states: “And though this federative power in the well or ill management of it be of great moment to the common-wealth, yet it is much less capable to be directed by antecedent, standing, positive Laws, than the Executive” (§147). Once we recognize that the federative authority functions only in the sphere of potential enmity and destruction can we understand why Locke goes much further beyond the law than in his depiction of executive prerogative. For the underlying assumption is that the federative power is not at all governed by the foundation principle of reason, as the executive and legislative always must be, even in exceptional moments, even when exercising discretion in the name of public safety. This federative power “must necessarily be left to the Prudence and Wisdom of those, whose hands it is in, to be managed for the publick good” (§147). Although Locke never said much about prudence in his other works, he draws on a long tradition of thinking about political wisdom. The origin of this idea can be traced to Aristotle’s concept of phronesis, the faculty of judgment that was not logical or theoretical but resolutely practical. These judgments concerned particulars and were understood to be potentially plural; the questions addressed in this mode were ones that were open to debate and multiple points of view. Rules were not appropriate guides in these ambiguous situations, or at least rules were necessarily adapted and transformed in the moments of decision. In Renaissance thought, prudence may have been

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subordinated to theoretical knowledge; however, it was acknowledged to be a crucial tool for navigating the more contingent domains, including, most notably, the contingent world of human affairs.42 So Locke describes the encounters of war and peace as essentially contingent—amenable only to prudent decisions in the moment, decisions that may well be taken otherwise. Reason retreats in these situations, Locke suggests, because the federative power deals with the foreigner, the potential enemy, and it is therefore largely a reactive power whose actions cannot be predetermined by rules or even basic principles. Reason cannot do its work of deduction and application because there is no inherent stability governing the situation. Human beings are not so predictable. The prudent leader needs to be flexible, creative, intuitive, reactive to the particulars of the events, and open to the nuances in the actions of the opponents being confronted. For the Laws that concern Subjects one amongst another, being to direct their actions, may well enough precede them. But what is to be done in reference to the Foreigners, depending much upon their actions, and the variation of their designs and interests, must be left in great part to the Prudence of those who have this Power committed to them, to be managed to the best of their Skill, for the advantage of the commonwealth. (§147)

The state must confront enemies on their own terrain, an approach not always governed by reason—especially when conflicts flare into the outright violence of military battle. The enemy acts instrumentally and is always potentially duplicitous; he can be matched only by using a parallel skill. Foresight is key when the state of war is unpredictable and fundamentally lawless.43 We can add that etymologically, prudence, like prerogative, alludes to the appearance of omens from outside. However, if prerogative produces a kind of simulated omen in the absence of a legal rule, the prudent one must intuitively seek out omens and signs because reason is never sufficient. Indeed, Locke did not at all privilege reason over intuition in his epistemological theory. In fact, it would be more accurate to say that what Locke labeled “short sighted Reason” was more a necessary substitute for intuition, which he called the “highest of all Humane certainty,” as it was an immediate recognition of a genuine connection between particular ideas. Intuition was the precursor to real discovery, but these “sparks of bright Knowledge” were not always available to be relied on.44

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The Lockean state of war is an existential drama in which the decisions taken, including the decision to kill, are entirely driven by the will to selfpreservation—there are no rational principles worth dying for. The federative power of the civil state must be perpetually focused on the enemy: “The usual, and almost only way whereby this Union is dissolved, is the inroad of Foreign force making a Conquest upon them” (§211). Of course, it is entirely possible to imagine a “society” of civil states acting rationally with respect to one another; still, any individual civil state must at the same time always be wary. As Locke sees it, the federative power only ever looks out for benefits that can be gained and damages that may be threatened; it has no mandate to defend natural-law principles of sociability among the states, as Grotius for one asserted. Locke radically separates nature and war as the space of law and the space of violence. He refuses to analogize the civil state with the individual. There is no logic governing interstate relations, only the possibility of war and existential conflict. The federative power does not mark the repetition of the individual facing other individuals in some condition of natural reason; rather, it repeats in a new form the political authority of the early paternal chiefs and tribal leaders who worked to defend the community formed by natural-law principles. That logic was always prudential, not rational. Therefore, we should say that the state of war that opens the Second Treatise, into which individuals sometimes fall, is really derivative of the more primal situation of enmity facing this early natural community, and not the other way around. Now we can see the true significance of Locke’s analysis of the separate powers at work within the civil state. Locke is not so concerned with the logic of the political as it plays out in the space of enmity, with respect to foreign states and other potential threats. And he is not so concerned with the logic of law as it is enacted within the civil state. The decisionistic dimensions of executive prerogative are not problematic for Locke. He believes that reason ultimately decides the legitimacy of any body dedicated to law. The real issue that Locke raises in this analysis is not the fact of a political logic that is distinct from the reason of law but the integration of the two into a single figure. The executive power and the federative power are governed by separate logics, yet they are represented by the exact same person, whom Locke vaguely calls the “executive.” Both of these specific powers require the “force of Society for their exercise” (§148). The civil state harbors two different kinds of power with two separate functions, but they both require the total strength of the state to do their work effectively. It may seem as though Locke is just being eminently practical when he suggests

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that the two powers be united to avoid “disorder and ruine”; however, lurking behind this assertion is the specter of a more radical conflict arising between the legal and the political. While both are obviously committed to the safety and good of the commonwealth, they are looking to operate in different places and act according to different principles. The difficulty here is not a competition for resources. The real danger is that the federative power may well interfere domestically by invading the actual space of the legal state, the space of law. This is no abstract question. In a chapter on political and despotic power, Locke castigates the abuse of power when arbitrary decisions over life and fortunes are made. A legitimate power, he argues, must make laws and annex penalties under the guiding principle of preservation. Strangely, though, Locke phrases it this way: the laws and actions of the state are defined as those that “may tend to the preservation of  the whole, by cutting off those Parts, and those only, which are so corrupt, that they threaten the sound and healthy, with which no severity is lawful” (§171). There is no question that the federative power, even more than the legislative or executive, may well confront a kind of internal enemy that would threaten the very existence of the state.45 In defense of the community, the federative power acts prudentially. Now, it is entirely possible that these prudential decisions may well be taken within the very body of the community. In this context, the leader, the somewhat ambiguous dual figure of the executive, would not be acting by executive prerogative because the actions concern the ultimate safety of the political body in its struggle with the enemy and not the internal demand to protect the operation of reason. If the leader acts with this federative power against internal enemies, he would not at all be limited by the demand to uphold the spirit of the law, a demand that always constrains the exercise of prerogative discretion and opens it up to critical evaluation. This distinction is hugely important because Locke’s infamous defense of the right of resistance (even revolution) assumes that the people can judge their government, which becomes their “enemy” when it fails to embody the reason underlying the foundation of the civil state. Yet the federative power, which acts in a prudential mode, does not really fit into that framework. While it might be argued that the discourse of enmity in Locke reveals a consistent logic of preservation that governs the operations of all three powers in the state,46 in fact, the situation is much more complicated. The legislative and executive powers are both subject to a kind of higher criticism of the people, who may judge (reasonably, after sufficient observation) whether these

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institutional actions are congruent with the aims of law in the civil state. However, the specific logic of the political embodied in the federative power is not so easily judged, if it can be judged at all. In the state of war, successful defeat of the enemy is the only measure of legitimacy. The federative power determines both the threat and the response to the threat. This is intrinsically hazy territory because it is the domain of diplomacy, secrecy, and intuition. Are the people prudent? Can they be prudent without the requisite perspective of the leader? While the rationality of the legal act is at least open to evaluation, the error of the federative power is hardly apparent—except, perhaps, in the event of the dissolution of the state (§211). Locke’s analysis raises one more difficulty. Given the necessary union of the executive (armed with prerogative) and the federative power within the single figure of the leader of the state, how could one ever distinguish between the acts of the executive and the decisions of the federative power?47 The existential threat (especially in the seventeenth century) could hardly be limited to opposing civil states, with clear boundaries between them. Who could possibly tell in advance what parts within might “corrupt” the “sound and healthy”? Locke’s distinction not just among the three powers but between two fundamentally different logics—the legal and the political—therefore entails a permanent indecision over the site of their appearance. The people may well have access to the foundational principle of law through reason, which is a general capacity available to all human beings. Yet the necessary political logic of defense is outside of reason, outside of the common, because it operates only in the moment of a confrontation with an often irrational enemy.

A POLITICAL COMMUNITY Although this dimension of Locke’s thought has long been obscured, in the Second Treatise he does isolate a concept of the political grounded in the logic of community preservation and not based on the formation of a rational civil state defending property-owning individuals. While the main course of the argument traces in some detail the legal structure and operation of that civil state, the political concept is first introduced in the margins, in Locke’s discussion of the history of early community formations. Neither the political nor the legal logic drives the original foundation of human societies. Locke’s society

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is always a natural form of organization. The legal and the political as explicit categories of practice emerge only when the society’s members voluntarily re­affirm the validity of the principles governing this natural order. A ­society affirms that law is necessary for its peaceful operation, and it also ­understands the importance of a strong defensive authority to protect itself. We can imagine, with Locke, the relative simplicity of these distinctions in the most primitive conditions given the isolation of these early communities in a world without extensive commerce and trade. The tension between law and the political emerges most clearly in the conditions of disintegration that follow in the wake of the corruption of the political institution of singular rule and after the escalation of social and economic conflicts engendered by new commercial relations and the accumulation of capital. The new state, the one described in the Second Treatise, is aimed first at the reconstruction of the integrity of the early community—but on an entirely new plane. Not one of intimacy, trust, and the personal bond; rather, in the space of law. If law at one early historical moment merely instantiated the way a community normally functioned without its overt presence, then in the civil state law binds individuals together through that principle, constructing an order that reason desires but that is not easily attainable for individuals with new opportunities for deviation. For that reason, law must always be present: it is the spirit of the state, its vital principle. For Locke, institutional acts must be understood as constant instantiations of this legal principle and not at all as a doubling of the desires and wills of the community. The legal form of the legal state is the abstraction that defines the community, not an abstraction of the actual community. This is the radical departure that distinguishes modern civil existence from primitive organizations. The political logic of defense is first embodied in the warrior chief and then later represented by the federative power of the civil state. This federal power is still a force that operates within a state of war. However, what the federative power defends is not quite what was defended in the early tribal or monarchical forms of government. The political leader once defended the community members as if they were his own family. The political leader in the civil state defends the legal state. While this figure may well defend the members of the state and their property, this is essentially an indirect function. The modern form of the political logic of war and enmity is defined in relation to the persistence of the civil state, one structured by principles, as an institutional vehicle of rational self-organization.

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After separating cleanly the logic of political and legal activity within the state, Locke brings them back together in a new, intimate relation, raising for the first time the difficult constitutional question of deciding their relative priority. Even more challenging, Locke unwittingly presents us with the problem of identifying whether the executive—that figure with the strength of the whole community at his command—has made a rational (hence, legal) decision or has intervened in the constant irrational struggle with the enemies of the state. The resolution of this predicament within the new legal states of the Enlightenment imagination requires a whole new conceptualization of the relationship between law and the political. If Locke is often associated with the development of the constitutional state and, specifically, the idea of a separation of powers, it is now clear that Locke simultaneously develops one of the first conceptions of a political power governed by its own particular logic. Locke’s natural history of the political shows us that his constitutional theory is not at all an attempt to limit and control political authority with a legal order that is grounded in the rational agreement of autonomous individuals. Rather, Locke’s narrative of human development aims to isolate two independent logics, a legal one and that of the political. Locke’s constitutionalism is of course a watershed moment in the elaboration of the legal state concept. However, it would be a mistake to repress the crucial concept of the political that emerges in his work. Locke’s constitutionalism is not about the separation of powers under the law; it represents, rather, a transitional moment in the history of thinking about the state. Having distinguished law and the political as equally important dimensions of any modern state form, Locke was confronted with the problem of understanding their relationship. Taking up this difficulty from Locke, the Enlightenment was therefore not concerned primarily with the domestication of sovereign authority by a law defined as the will of a rational society. Enlightenment political thought, having discovered the political and reframed the nature of law, and having brought them together in an intimate fashion within the state, was forced to reimagine the way sovereignty and law worked together in the fashioning of a secure but also legitimate community. I now take up Charles-Louis de Secondat, baron de La Brède et de Montesquieu’s influential work on the nature of political regimes. Rather than position his texts in a progressive narrative of liberal constitutionalism, I want to identify more precisely the role of violence—foundational political action—in

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the development of a legal community. Montesquieu resolves Locke’s difficult juxtaposition of the political and legal dimensions of state power by analyzing the historical and cultural processes that forged strong bonds between the two. Montesquieu shows just how important the autonomy of the political is in the structure and practice of governments. But he also indicates that the very autonomy of the political demands a certain cultural training and a form of “governmentality” for it to operate effectively, given the nature of human individuals and the contingencies of their social existence.

Chapter 4

Systems of Sovereignty in Montesquieu

TWO MONTESQUIEUS As a political thinker, Charles-Louis de Secondat, baron de La Brède et de Montesquieu is usually read from two fundamentally different perspectives. He is, on the one hand, often acknowledged as the first true political scientist, someone who tried to understand the sociological and even environmental foundations of political organization while making the effort (not always successfully, to be sure) to be objective about the plurality of political forms. Yet Montesquieu’s immense influence in the history of political thought and practice has been tied more to his constitutional theory—namely, his conceptualization of the division of governmental powers and their mutual balancing in a legal framework.1 Of course, these two positions are not wholly compatible. Why idealize one particular political form over and against any other? There is, from the sociological perspective, no reason to think that constitutional legal states would be appropriate for all nations and cultures. Indeed, Isaiah Berlin claimed that Montesquieu’s thought was inherently contradictory on this score.2 Montesquieu is notoriously elusive when it comes to any discussion of whether specific constitutional regimes (the examples he focuses on are ancient Rome and modern England) might figure as models or ideals. Nonetheless, numerous commentators have not hesitated to argue that Montesquieu clearly privileged the forms of liberty associated with these kinds of governments. While most of them feel that Montesquieu believed England’s modern form

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of liberty the most appealing, given its suitability to commercial societies organized around the pursuit of self-interest, others remind us that it is important to note as well his almost nostalgic depiction of republican Roman virtue.3 In these complex discussions of Montesquieu’s political position, a key fact is often overlooked: Rome and England, regimes that developed the key constitutional principles at issue, are presented in his texts as exceptional, in the radical sense that they are rather bizarre aberrations from what is understood to be normal political development. There is, as Keith Baker has pointed out, something “singular, even fantastic,” about England as portrayed by Montesquieu. His Rome too can be described as rather “monstrous,” to use Elena Russo’s term.4 Acknowledging the strangely aberrant status of these constitutional regimes may help explain the tension in Montesquieu’s reception. If most political systems simply obey the logic of historical and environmental determinism, England and Rome stand out because they seem to escape the normal course of history. In these regimes, people live freely under the law and not under complex systems of sovereign power supported by powerful cultural practices that reinforce obedience to authority. So in a sense, the vastly influential readings of Montesquieu, as if he were a theorist of some kind of abstract constitutional ideal with transhistorical and normative significance, are made possible only by his identification of constitutional states as outside of the normal terrain mapped by a careful historical and political sociology. Focusing on the exceptional status of these legal regimes, we see that there is nothing ideal about constitutional states like England and Rome. In fact, their aberrant status is a consequence of their peculiar and highly contingent historical origin and development. Yet Montesquieu is highlighting these states for a specific purpose and not merely reflecting on their unusual form. My argument is that Montesquieu saw that the emergence of a purely legal state depended on the notable absence of something essential to proper political development— namely, genuine sovereign authority. In other words, the ideal of pure constitutional orders like Rome or England cannot at all be understood as the formal restraint of sovereign power in the state, as we usually assume, since the form of a constitutional regime relies, according to Montesquieu, on the very absence of that sovereign power. This absence was hardly something to celebrate, for in his theory of government, Montesquieu would strongly emphasize how it was the violent conditions of war that initiated political community in the first place and that led to the formation of sovereign structures of power to protect and maintain it. Further, he did not think it was possible to eradicate

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sovereign power in favor of the law in a modern state. As Montesquieu repeatedly showed, sovereignty is the essence of the political, essential to the foundation and continued existence of any political regime. This means that his investigation into the nature of these exceptional constitutional regimes cannot be interpreted as a critique of traditional political systems, whether they were republican or monarchical. Montesquieu’s use of the constitutional model must be understood in relation to proper systems of authority centered on the idea and practice of sovereignty. Montesquieu’s definition of the political is congruent with Locke’s own concept, although Montesquieu goes on to develop a notion of law that is quite different. This idea of law is crucial, for only by comprehending the functioning of law within normal sovereign systems of political order can we see clearly what is exceptional about constitutional orders such as Rome and England. Then we can ask how these peculiarly exceptional forms of law we find there can have any possible significance for typical sovereign states. Montesquieu was, on this score, a conservative thinker. The eradication or even legalization of sovereignty was never a goal for him. He understood the necessity of an autonomous political function. So the lack of sovereignty in England and Rome was truly exceptional, and almost unnatural. However, Montesquieu recognized that there was something incredibly powerful lurking within these regimes. He was not interested in taming the political with constitutional institutions and norms; instead, he saw how such unusual examples of self-government revealed certain truths about the nature of political systems as systems with their own inner logic of unity and stability. What was interesting about constitutional states that lacked sovereignty was, ultimately, not the displacement of the political so much as it was the production of a kind of legal technology. These strange legal orders offered the possibility of improving and protecting the system of governance with a new technology that would support the sovereign political structures of modern states in crisis. A close reading of Montesquieu’s theory of the state reveals how the political is derived from an existential crisis that threatens the very life of a society. The theory of sovereignty Montesquieu develops depends on the idea that the political is a new form of action, one that spawns a new political form of human community absolutely independent in its organization from the original social order that first experiences this existential crisis. The specific political organization of any regime flows from the form of sovereignty that appears in the moment of origin and transforms the social group, rather than merely

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preserving it in the midst of war. All legal, institutional, and cultural practices are oriented to the preservation of a specific political configuration that intervenes in, and thereby completely restructures, the society that gave birth to it. With this concept of the political, Montesquieu reoriented the perspective on obedience and authority as it was figured in natural-law theory by emphasizing the historicity of human social and political organization. Montesquieu’s point was that individuals in these new political regimes had to be molded and shaped by social and cultural forms so that they could preserve the integrity of the whole and prevent further existential crises. According to Montesquieu, individuals do not come together to construct social and political forms and only then worry about the problem of obedience. A historical political form, as Montesquieu shows in Spirit of the Laws, generates a cultural and social system that maintains that form. Without always intending it, individuals act for the whole even when they are fulfilling their natural inclinations. The most stable social system (as Denis Diderot later argues in his Supplement to the Voyage of Bougainville) is the one in which the energy of individual desire is channeled through cultural practices that maintain the unity of the society with the least restriction of natural bodies and their wants. Montesquieu was not, of course, arguing that political systems once established would always maintain their stability. As the historical record shows, many societies succumbed to various pressures and either collapsed or had to transform themselves to survive. For Montesquieu, social and political forms of life had necessary laws that were as invariable as physical laws. However, what distinguished social and political forms from their physical analogues was their virtual status—they required concrete individual bodies to instantiate and sustain their very existence.5 It was always possible, Montesquieu said, that the natural human body would fail to obey a social or political law. This did not make the law any less necessary. However, society would, he implied, simply degenerate or disappear if individuals failed to embody the social form properly. The challenge for any regime was making sure these social forms were sustained, especially in new conditions that might threaten the status quo. Here Montesquieu introduced a role for reason. Unlike the natural-law theorists, he does not suggest that reason simply “recognizes” the necessity of certain laws by conjecturing the logical implications of our natural condition and only then sets to bring them into concrete existence. Instead, Montesquieu says that reason’s task is to study concrete social and political systems and to discover the laws that govern them. This would then make possible a critical evaluation of

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institutions and practices to see how they contribute to the particular kind of stability operative in any one regime. Spirit of the Laws marks an important transition in historical thinking about the nature of political obligation. First, Montesquieu repeatedly shows us how the human mind is in a crucial sense determined by its concrete historical formation. There is no “pure” human being that could ever serve as a foundation for some idealized legal or political order. Yet Montesquieu also shows that our cognitive capacity to discover necessary relations (in nature, in society, in global networks) allows us to get outside of our existence and look at this existence from a wider perspective. To be sure, we can hardly escape our historical condition altogether. However, knowing the laws of our historically constituted order gives us an opportunity to protect that order when it is threatened by the accidents of historical existence. The very possibility of interrupting our historical decline derives from our intellectual capacity to reason—to understand the inner order of a system and isolate the causes of its degeneration, while simultaneously conjecturing an alternate condition that might preserve that system in a new form. Montesquieu shows the examples of England and Rome to be strange interruptions of normal historical evolution. These unusual states were objects of admiration, in the dual sense of the word—admirable, but they also occasioned wonder. How did they ever appear? The aberrant status of the constitutional regime is a consequence of contingent, and very unusual, historical conditions. Of course, the exceptional status of these states has been noted before. However, their distinctly pathological character has never been clearly diagnosed.6 This has greatly interfered with a proper evaluation of Montesquieu’s perspective on liberty in the modern era, because a great deal of effort has been spent privileging these exceptions in relation to the normal political regimes that receive so much of Montesquieu’s historical and sociological attention. We need to bring the two Montesquieus back more closely together. We can do this by investigating the exact nature of the aberration that is constitutional rule, first to see how law functions in these unusual cases and then to see whether that function is dependent on those unusual conditions. As I argue, Montesquieu is not looking to the constitutional regime as a model for apolitical organization, but he is looking at these examples to see how we might rethink the role of law within proper sovereign political systems, such as his own French monarchical state. We can begin the analysis with the observation that the two paradigmatic regimes of exception (Rome and England) are—despite their deep

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d­ ifferences—linked by an abnormal relationship to war. They are both great empires, he tells us, yet they are so easy to defeat in their own homelands (IX, 8). This emphasis on war is extremely significant because Montesquieu’s fundamental definition of political community, which underlies his famous typology of regimes, turns out to be absolutely dependent on his initial theorization of the states of war. In unraveling the implications of this, we must track the nature of sovereignty, the nature of law within the sovereign regime, and, finally, the importance of foreign sovereign entities in the formation of any political culture. Only then can we address the precise nature of the exceptional regime and see just how unusual the emergence of a nonsovereign and therefore apolitical system of government is for Montesquieu.

THE STATE OF WAR Montesquieu opens his discussion of the political body with an elusive and elliptical reworking of the natural-law tradition, beginning with the very origin of social existence (I, 2). He is careful not to attribute any aggressive or violent impulses to natural human beings. Against Thomas Hobbes, Montesquieu claims that a human being, first dominated by the demand for self-preservation, would feel only “weakness” and the timidity of this creature would be extreme. The point is that everyone in the natural state feels inferior, “scarcely an equal,” and hence unwilling to attack anyone else. Peace, Montesquieu tells us, would be the first natural law. Of course, Hobbes said exactly the same thing. However, the main difference is that Montesquieu shows how fear of the other, and a feeling of inadequacy, impels the natural individual to avoid conflict, whereas in Hobbes, it is the continual and unavoidable conflicts between aggressive and competitive individuals that lead to the rational desire for the cessation of hostility. It is interesting that Montesquieu, referring explicitly to Hobbes’s depiction of people naturally at war—always suspicious of others, locking their doors and carrying arms—declares that only with the “establishment of societies” would individuals ever have the motives for “attacking others and for defending themselves.” Society literally induces individuals to attack and defend.7 Therefore, violence cannot itself figure as an origin of the social condition. So what is the origin of society according to Montesquieu? If it is not the need to secure peace in a condition of violent war, it is also not the need

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humans have for others for their survival. Montesquieu does say that after the feeling of weakness, humans do have a feeling of their needs—they seek nourishment. But that leads nowhere. The origin of society begins with both an intellectual moment of recognition and a series of bodily inclinations. Once human beings have an opportunity to form an idea of commonality, “the marks of mutual fear would soon persuade them to approach one another.” Yet alongside this intellectual recognition, bodily impressions serve to cement social bonds: human beings have the possibility of feeling “the pleasure one animal feels at the approach of an animal of its own kind.” And of course, sexual pleasure only increases this more generic social pleasure. Finally, Montesquieu adds that we have a kind of “natural solicitude” (  prière naturelle) to one another, which would further solidify our social existence. What is striking in this mini-narrative is how Montesquieu undercuts any real unitary origin for the formation of society. There is no one logic or set of factors, only a contingent series of encounters operating on different planes of our existence. Still, it is a particular reflective capacity that gives human society a strength lacking in animal communities—we gain knowledge of our social condition. Even without the direct presence of physically desirable others, we often remind ourselves of the advantages of the social, which produces a permanent form of desire. The desire to live in society, which is not a natural or necessary desire, is still for Montesquieu an outcome of our natural abilities and inclinations and therefore grounds a form of natural law. This emphasis on the contingent but powerful desire for social life prepares Montesquieu’s crucial turn to the theory of political order, elaborated through a series of extremely brief, though conceptually dense, passages. He writes, rather abruptly: “As soon as men are in society, they lose their feeling of weakness” (I, 3), presumably because they can now see precisely where their own strengths lie in relation to others. And in this very same sentence, Montesquieu isolates a key turning point: “The equality that was among them ceases,” he tells us, “and the state of war begins.” This is the Hobbesian moment in Montesquieu, but it is refracted through his own peculiar depiction of “natural” human beings and their pseudo-natural sociability. On one plane, the society as a whole “comes to feel its strength” in relation to other societies, producing a state of war among all the nations. Internally, another war erupts: for as individuals feel their own strength, they seek to turn the “principal advantages of this society” to their own benefit as individuals. What we have, then, is not a ruthless competition between individuals for resources but rather a competition among

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the members of the community over control of the community as a whole alongside a competition among such communities. “These two states of war [ces deux sortes d’état de guerre] bring about the establishment of laws among men” (I, 3). The entire economy of the text is generated from this origin of lawful order in two “states of war.” Montesquieu separates cleanly these two states of war to explain two very different kinds of law—first the law of nations and then the specific laws organizing particular nations, the latter divided further into those laws concerning political right (the forms of governing) and those related to civil right (the relations between citizens). However, it is exceedingly difficult to separate conceptually the two kinds of warfare when thinking about the origin of the political constitution of states. Montesquieu is telling us that the forms of political life must be understood not as tools for the management of a preexisting social entity but rather as solutions to the radical existential challenge posed to that society by the threat of both the external enemy and total social dissolution in a civil war. These two potential crises haunt the state throughout its existence. As the tradition of natural-law theory reveals, it is difficult to imagine how the unitary form of a sovereign political regime would ever emerge out of violent civil conflict in the absence of any common power. By juxtaposing the two states of war that befall a “natural” community, Montesquieu makes it easy for us to imagine exactly how the external threat of the enemy could galvanize the reintegration of a society—even one wracked by internal conflict. Remember that human beings do not really have a natural sociability, according to Montesquieu. The desire for society is historically and psychologically contingent. A community of people forms as a specific, concrete community of bodies, not an abstract logical organization. Given Montesquieu’s account, it is likely that in crisis this community would desire to continue to exist as one. It would not want to be destroyed or enslaved by others to whom it has no passionate attachment whatsoever. However we might imagine it, this is crucial: the origin of the political for Montesquieu is the origin of a form of power that preserves the unity of society in the face of two wars—or, more precisely, preserves the society by founding a new political unity of purpose and action. As Montesquieu suggests, “the strength of the whole society” is necessary both to resolve the civil war and to defend the community from its enemies (I, 3). Without the strength and support of the whole, the nation cannot be defended against enemies. What constitutes the origin of human governments

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(in all of their diversity) is the way this unity of strength is deployed in these existential crises. As Montesquieu notes, the strength of the whole “may be put in the hands of one alone or in the hands of many.” In essence, the specific types of political sovereignty emerge from the factual condition of who stepped up to the challenge and defended the unity of the community in these crises. The political form constitutes a refoundation of the original unity of the community in a new form. A monarchical or republican state is constituted by those who fought to protect the society as a whole. As Montesquieu stresses, “Individual strengths cannot be united unless all the wills are united.” The union of will is the “civil state.” In other words, sovereignty is the form supported by all members of society in a state of war—without that, there is only perpetual civil war. Only with the threat of the external enemy is a society ready to resolve the internal conflict in favor of such unity. Even Hobbes acknowledged the likelihood of this scenario. Montesquieu’s famous typology of states must be understood, then, as a series of generic forms of a foundational sovereign action necessary to preserve community in the state of war. The monarchical state, for example, is founded when a single powerful leader and the leader’s loyal followers are able to defend the community in a war crisis, when the rest of society is unable, or unwilling, to fight. Similarly, we can imagine an aristocratic state forming when one sector of the community takes on the responsibility of going to war—or a democratic one resulting from the fact that in the crisis every member of society fights for its survival. In all of these cases, there must be political solidarity in the form of total support of the military force that represents the strength of the whole society. Of course, once the state of war is over, the challenge for any society is to maintain this political form. The strength of the whole society has now been located in very specific sites of power within the nation. There are two challenges that arise. First, how does society make sure that the people who have sovereign power (which is derived from a monopoly of military violence) continue to serve and defend the interests of the whole community and do not use that power to further their own interests against society? And second, how does society make sure that those who do not have any sovereignty continue to support that political power? For in the absence of political solidarity, there would be a reemergence of the threat of civil war, of total chaos and violence, and of the repeated possibility of conquest. Montesquieu’s innovation is to look at these problems from the perspective of the system as a whole. What functions do the individuals and other organs of society perform?

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We can see that even at this early stage of the argument, Montesquieu has already framed the despotic state as essentially anomalous. The despot is obviously not the one who has defended a society and refounded its integral unity. He has most likely attacked and taken over a particular collection of people— either from within or from without. In other words, the despotic regime stabilizes a people not by articulating a genuine unity but instead by perpetuating in a new form the prepolitical conflict of the original social condition. The despot does artificially create unity, but no one is really united through this political form (I, 8–9). As Montesquieu hints throughout the text, despotic regimes are stable only when some other, nonpolitical (say, religious) identity preserves real unity among the people under his rule. Leaving aside for the moment the anomalous status of the despotic state, we can follow Montesquieu as he sketches out the various principles that make possible the preservation of historically contingent sovereign distributions. In essence, what he describes in his typology are various cultural forms and institutions that bind individual citizens (whether governing or governed) to the constitutional form of the regime by training them to behave in appropriate ways. From this perspective, we can interpret Montesquieu’s well-known discussion of republican and monarchical governments as a theory of how a society at once compensates those without power for their lack, binding them to the political society, while restricting the actions of those with power so that the regime continues to defend the interests of all. The spirit of the laws is the spirit of this system that first creates then maintains unity via asymmetric relations of militarized power. As Raymond Aron once observed, if Montesquieu is a “classical” political thinker in the sense that he stresses the preeminence of the political form in his theory of society, it is also the case that Montesquieu shows how the political can be understood only in terms of the social structure as a whole.8 This is not a paradoxical formulation. If we think of the social body in Montesquieu as a living “organism” (what Jean Starobinski calls a “unity that precedes and encompasses” the parts), then the state would be the structure developed to preserve continuously the life of the organism. The state is the “supreme organism,” or, better, the “organism of organisms.”9 This organizational entity is only part of the whole living body. To understand the culture of society and the state is to understand how a body maintains its unity through the instrument of the state, which requires that all the functions in the body serve the state in some way. “Each society has a specific structure and follows

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its own inner logic” and the institutions of order are just “expressions of a structure.”10 The most stable regimes, Montesquieu suggests, are those in which individuals express the logic of the sociopolitical order most efficiently—in other words, with the least resistance. In an echo of Hobbes and Samuel von Pufendorf, Montesquieu tries to explain how the “soul” of the state permeates the parts that make up the body of the political organism.

THE POLITICAL AFTER WAR: SYSTEMS OF ORDER Montesquieu’s typology of regimes begins with a definition of sovereign power. Then a systematic analysis unfolds, showing how that power must be integrated into a network of cultural forces that preserves it and protects it—and by extension, preserves and protects the social organism as a whole (V, 14). Montesquieu’s concept of sovereignty is less Schmittian than it is Foucauldian in that he stresses not the figure of the sovereign as possessor of power but instead the ways in which a whole cultural system must have specific sites of control and administration—networks of power distribution. Each form of sovereign power in a system presents its own difficulties and opportunities as it channels and organizes the passions of individual human beings within the systematic whole (III, 1). Humans may be naturally sociable, but they are not, as Montesquieu shows, naturally political. The challenge for the democratic society (one in which all citizens defend society) is essentially this: everyone is armed and is not giving up his power. Therefore, how are decisions made and enforced (II, 2)? The difficulty is to find a way to organize a complex body so that it can continue to act as a unity. The threat of civil war is greatest in this condition. With numerous sites of sovereignty existing within a nation, it is always possible that the unitary actions will be thwarted by a counterauthority. It is no wonder that republican democracies have an almost obsessive interest in voting and in procedures for the selection of magistrates. Since everyone has sovereignty at least in part, everyone must get a chance to exercise it. The goal of this particular social system is to manage the focalizations of sovereignty so that they do not become permanent and to make sure that individuals who share sovereignty obey these momentary focalizations of authority. This is the function of virtue in democratic cultures. One must learn to repress oneself, to not make use of the power one has. This is a painful act, as Montesquieu explains, and one must therefore be educated early

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and trained continually if virtue is to be sustained (IV, 5). One also must love equality in a democracy. This is another way of saying that individuals must respect every other sovereign citizen by not inflating their own power. Equally important, Montesquieu points out, is the idea that individuals must not give up their own power to others. The only reason people would be willing to take power or give up power is if it would benefit their personal interests (V, 3). This explains the requirement for extreme frugality. The democratic citizen must be trained to have literally no personal interests so that one would never wish to be better than, or “unequal” to, anyone else (V, 4). To maintain both the homogeneous distribution of sovereignty and its highly concentrated appearance in specific governmental bodies and decisions, the democratic culture must always train bodies not to be deflected by certain kinds of pleasures and passions. The citizen does not simply love the state in abstraction; rather, the citizen is habituated by the culture to love his or her particular relationship to power. Moving to the aristocratic republic, Montesquieu shows that from the perspective of the social order as a system, virtue is not needed to the same extent as it is in democracies (II, 3; III, 4). Put simply, those who do not share the sovereignty do not need to restrict themselves. The main challenge in this society is to manage the relationship between those who have power and those who do not. Montesquieu gives us many different suggestions. For example, it would be useful if those who are governed are poor, so as not to tempt the elites to exploit them. And those who govern need some kind of virtue (self-restraint), or at least moderation, which would lessen their desire to take advantage of the social order. It is also crucial that the aristocrats at least appear to blend in with the governed so the people forget their lack of power (V, 8). Overall, Montesquieu says that these relations and cultural practices are techniques deployed by the system as a whole to mold individual minds and bodies to protect the state as an institution of sovereign power. These are not strategies of those with power. As Michel Foucault reminds us, power is always a relationship within a complex order. In the monarchical state, an entirely different challenge emerges (II, 4; III, 5). The sovereign power is located in one particular individual, but his or her success in constituting the unity of the state is of course dependent on a whole body of loyal supporters and fighters. The problem of the new political regime is this: how is that singular power exercised throughout the whole of society once the concentrated space of military battle has been replaced by the

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extended territory of the whole nation? As Montesquieu famously observes, a monarchical regime requires “intermediary bodies” if the sovereign power is to operate beyond the limited range of the monarchical body. The difficulty is establishing a system of intermediary bodies through which power can flow outward but that do not ever constitute a competing site of sovereignty (V, 16). The question, then, is how to give power to a body while simultaneously restricting it and submitting it to the final authority of the monarch. Clearly, virtue is not the proper solution to this specific challenge because the intermediary bodies have not been given true sovereign power. The nobility must act as a channel of sovereignty without ever contesting for it. The way the social system induces the nobility to serve this particular power structure is through compensation, effectively, for its lack of sovereignty by giving the nobility social and economic benefits not shared by the rest of society (V, 9). Trained to obey the rules and regulations organizing its corporate bodies—trained to fulfill what Montesquieu calls “honor”—the nobility can continually serve its own interests while simultaneously serving the interests of the system taken as a whole—whether it intends to or not (III, 7).11 The despotic regime is less a proper regime type than a kind of inversion of the monarchical form. In the monarchy, the sovereign and the intermediary bodies alike, all depend on the system for the benefits they receive from the society (V, 11). In the despotic regime, no one can depend on the system for a position except the despot himself. Without any political solidarity, without even a proper social “organism,” the despot must produce unity mechanically, by literally forcing individuals to obey in a systematic fashion. The despot, like the monarch, cannot be everywhere at once. Power must be distributed. Yet there is no institutional structure possible because there was no initial solidarity of purpose. The solution despotic regimes discover is the use of fear— without the sword, individuals still obey the will of the sovereign because they fear the potential appearance of violence (III, 9). Despotism takes us “closer to nature” not only because it involves less art than other political regimes, as Sharon Krause has noted,12 but because it freezes an earlier stage of conflict previous to the origin of a new community form. In an important sense the despotic regime has effectively bypassed the genuine origin of the political in the foundational constitution of a unified state (a “union of wills”) and so operates in a prepolitical condition. It artificially creates a simulacrum of political order where none exists. As Montesquieu says, these are “monstrous” political forms, and he was always ambivalent about

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their legitimacy—that is, their status as proper political bodies. At any rate, the despotic simulation of political order requires a constant circulation of physical power, of coercion, because no striving toward unity has ever been internalized in the citizenry—if that is even the right word to describe the collection of people ruled (III, 10). The inherent tension, even violence, of this condition is highlighted by the procedures of organization necessary for controlling the seraglio described in the Persian Letters, that microcosm of despotic rule. Castration and the segmented control of women’s bodies and actions exemplify the sheer physicality of the coercion that despotic rule demands. This is why Montesquieu suggests that any stability in these despotic examples cannot flow from the brutal contingency of physical violence but instead can be traced to the existence of an internalized parallel psychological structure of order— namely, a religious identity, something that can supplement the lack of genuine community in the political sphere (IV, 3). Hence, Montesquieu’s comment (VIII, 10) that despotism is always corrupt from the start. It is only an accident that keeps it stable and enduring, some wholly external principle of order that props it up despite its own lack of any internal organic order. To this point, Montesquieu has established the origin of sovereignty in a condition of war. The political form that emerges in specific conditions must be maintained if the unity of the society is to endure. A culture of education and training habituates individuals to perform the functions in society that preserve the political structure of sovereign power and protect against its internal corruption. Put simply, the main goal of the social system is to make sure power is used for the good of the whole system and to make sure that those without power do not vie for it. This kind of training of individual bodies and minds requires more or less restriction of natural passions. For instance, in the democratic republic, most of our self-interests must be painfully suppressed, whereas in monarchical regimes, the prince and the nobility can work for the system while simultaneously seeking their own interests, in the form of status, glory, and wealth. The despotic regime is a shadowy other: it is a simulation of political unity, an artifice that requires constant coercion to preserve its illusory order.

STATES IN WAR As we move forward in the text, Montesquieu acknowledges that his analysis of the internal cultural forms of power depends on a rather artificial isolation

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of regimes. In his discussion of despotism, for example, he notes that certain characteristics internal to the state inevitably lead to repercussions in interstate relations (V, 14). Since the despotic regime has no real internal order, no law in even in the minimal sense, the despot as sovereign figure knows no resistance. Nothing stops his will. In fact, the only way any real governing can take place is if a substitute despot, the vizier, can imitate his sovereignty because the despot himself always loses himself in the endless pursuit of pleasure. When the despot comes up against resistance from beyond the borders, his response is one of natural fury, a kind of immature railing against any obstacle to his will. The despot unleashes this fury with all the military might of the state, which eventually weakens the state altogether. The new point Montesquieu makes is that the stability of this despotic regime depends upon a certain interstate order of things. The regime must be relatively isolated (and, hence, lacking enemies) to maintain stability. This raises a larger methodological and theoretical problem: given that the state is born in the two “states of war,” and the political culture is derived entirely from this origin, how do the persistent threat of war and the demands of military practice affect the internal structure of regimes? Montesquieu addresses this question directly (V, 19). First, he notes that the civil and the military functions need to be absolutely separated in monarchical systems, while they must be united in republican ones. This is because war in the republic can only ever be waged in defense of the laws and of the homeland. One is a citizen only to become, temporarily, a soldier. In the republic, one is trained to be attached to the whole, so war is simply an opportunity to repeat the origin of the political. In fact, in those aristocratic states where virtue does not exactly reign with vigor, the existence of an external enemy and the entailing “dread” of some deep catastrophe can help keep the leaders from sabotaging the system through corruption (VIII, 5). However, in a monarchical state, individuals (even the prince) do not really act out of the interests of the whole. They act for glory and distinction, and for fortune. In the context of domestic politics, this ambition only serves to further strengthen the whole system. Yet in the sphere of war, the drive for distinction or fortune may very well weaken the state (V, 19). To put it another way, the confident drive to war simmering within the monarchical regime is not at all a repetition of the origin of the political—a refoundation that would strengthen unity. It is, instead, a derived function of the culture of power that was constructed to maintain and control the sovereignty of the monarch. It is crucial, then, for a monarchical regime to limit the opportunities for warfare. This is another way of saying

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stable ­monarchies must exist under conditions that militate against the opportunities for war. In part 2 of Spirit of the Laws, Montesquieu takes up a more focused analysis of how war molds the contingent forms of sovereignty and the cultural logic that sustains them within given societies. For Montesquieu, “all size, all force, all power is relative” (VIII, 9). So he must revisit the typology outlined in part 1 to see how each “type” must operate as a state in war, and he reveals just how important military force is for the structuring of political order. As Montesquieu repeatedly emphasizes, because each political body enacts sovereign authority in its own way, each state has to have a territorial form conducive to military action defending that space from attack. A political regime’s health is therefore very sensitive to its size. If a republic is too big, for example, it leaves itself open to corruption, for there is not enough concentration of power to counter the centrifugal forces inside the group sharing sovereignty. Yet a republic cannot be too small, for even if that would aid in stabilizing power internally, the diminutive state would always be easily defeated by enemies. The solution, Montesquieu tells us, is a unique one: several smaller republics must ally together to form a hybrid political form, one that mimics the size and strength of a monarchy but still maintains the internal independence of each republican society (IX, 1). The monarchy is also a system that must be situated in a proper spatial configuration. It cannot be too small, for it is not only easily invaded by a foreign power, Montesquieu notes, but also (and, maybe, more important) a monarchy in a small territory suffers too much internal pressure on the sovereign. As Montesquieu remarks elsewhere, these small monarchical regimes would inevitably transform into republics (VIII, 17). Therefore, the monarchical state must be relatively big. But not too big, since it is essential that its borders be swiftly defended against any attack from without. The proper monarchical state is contained by strongholds defending the border so that armies can be deployed quickly enough to counter the invading forces, wherever they might appear. From this perspective, the capital is a space of centralized command, located precisely at the intersection of communication. Ideally, as in France, the capital is closer to problem regions so that information, troops, and supplies all can be organized and communicated quickly enough when necessary (IX, 5–6). Also, Montesquieu is alert to the importance of taking into account the historical development of military technology and strategy in assessing the viability of specific sovereign structures of political power. Already, in the Persian

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Letters, he is describing how military technology demands new forms of military organization—with inevitable political repercussions. For example, we hear that the invention of new artillery weaponry has “stripped liberty from all the peoples in Europe,” for it was no longer possible to defend certain military positions with elite bourgeois guards. Instead, large bodies of soldiers were now necessary with the result that sovereigns had at their disposal new instruments of population control.13 At the same time, modern battles are shorter and much less “bloody” precisely because of these new technologies (letter 103). Montesquieu seemed to be seeking, in this earlier text, some kind of limitation of warfare that went beyond the cynical “law” of nations that merely “taught princes to what extent they can violate justice without impacting their interests” (letter 91). In contrast, Spirit of the Laws is more concerned with demonstrating just how the structure of interstate relations—governed itself in part by the technologies of military practice—has a direct and powerful relationship to the order of political life within individual states. Montesquieu addresses, for example, the “right of nations” not as a separate domain of political activity but as a defining context for the understanding of any form of political stability. Like many natural-law theorists before him, Montesquieu analogizes the state and the individual, claiming that there is a right to kill in self-defense in both cases. The state can wage war for its own preservation. This repeats a maxim introduced in the Persian Letters: “There are only two kinds of just war: those that are to repel an attacking enemy, and those that aid an ally being attacked” (letter 92). The key difference between individuals and states is, of course, the fact that individuals always belong to a state, which means that the right to wage war for self-defense is taken over by the lawful state itself. One can attack another human being only if one cannot wait for the law to intervene, as Locke already explained. However, among societies, it is often entirely necessary that a state attack another to preserve itself. A condition of supposed peace may well be a situation where one state is simply accumulating the resources for an invasion. Therefore, a preemptive attack is perfectly justified, even in the absence of overtly hostile intentions (X, 2). Montesquieu’s discussion of war only further highlights the structural analysis of the political that he has so far emphasized. War is a relation between state entities—something that is fought by a “union” of men, a political community. Of course, amid actual battle, these political organizations must kill actual human beings. However, when the battle is done and the state has defended its preservation by defeating its opposing collectivity, there is no continued

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right to kill (as some theorists have maintained). For Montesquieu, the social and political formation is in reality a virtual space of order, and once it has been weakened or destroyed, the individual people are no longer vehicles of its operation. He even suggests that it is possible, with time, for conquered individuals to be gradually assimilated to the conquering state, to become “trained” in the laws and customs of the victorious state. Indeed, Montesquieu even remarks that a conquered people may well find advantages in being conquered if it was the case that their defeat was really a sign of their own political and cultural weakness. Whatever we might think of Montesquieu’s theorization of just war, the most important dimension of this discussion is the emphasis on a certain form of objective rationality in deciding for war. War is only justifiable as a practice of self-preservation. If that leaves a rather gray area of legitimation in practice (as Hugo Grotius first revealed so clearly), Montesquieu is really concerned with the use of war for other purposes. This is not so much a question of abstract justice as it is about stability—stability within the state but also between states in a larger space of order. In this volatile zone, the form and structure of the political state has a huge impact on the process of war, and vice versa. As Montesquieu puts it, there can be no “reason” for war, in the instrumental sense. War’s only function (and this looks back to the very origin of the political) is existential. If war is conducted for a specific purpose (glory, fortune, utility, propriety), then, inevitably, “tides of blood will inundate the earth” (X, 2). Only if war is understood as an existential act of preservation is there ever an essential limit to violence—namely, the sense of security. If war is just a means to an end wholly distinct from the practice of war itself, then there are always new opportunities for war. There is no end, that is, to the pursuit of glory, or fortune, or whatever else may motivate human beings. The crucial problem, then, is organizing the state in such a way that war is conducted only for existential preservation. The internal constitutional order must therefore not only counterbalance the forces within the state that could disrupt the functioning of sovereignty but it must also prevent the sovereign organization from engaging in selfdestructive military actions outside of the state borders.

EXCEPTIONAL STATES Now we finally arrive at the long, famously influential description of England and its constitution in book XI—and it is obvious right away that England

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eludes any easy categorization within Montesquieu’s typology of regimes.14 England’s unique constitutional organization has long been interpreted as a theoretical idealization of the principle of balance and a celebration of political liberty. Yet we see now that England is a striking model of a legal institutional form of self-regulation that eschews sovereignty and thus forgoes the cultural forms of power at the heart of traditional republics and monarchies. The status of this exceptional English state is ambiguous in Montesquieu’s text—precisely because it is so exceptional. Having read Spirit of the Laws from the perspective of the “political” (in Carl Schmitt’s sense of the word), the question of war emerges as absolutely essential to any understanding of political community and institutions. So England’s unique position in Montesquieu’s analysis of political organization should be interpreted with this in mind, and not from a strictly institutionalpolitical perspective. Given the foundational primacy of violence, war, and sovereignty in Montesquieu’s conceptualization of the political, it is crucial to understand just how England relates to the process of political formation traced in the critical early sections of Spirit of the Laws. Only then can we see that while England is so exceptional, it could hardly ever be a theoretical model for any normal state. Still, England’s strange constitutional system (mirrored by the equally unusual state of Rome, as described in Montesquieu’s earlier Considerations on the Causes of the Greatness of the Romans and Their Decline [1734]) may well offer these normal states some kind of benefit in their constant pursuit of stability. Once we see Rome and England as twin deviations from political normality, the frequently debated question concerning Montesquieu’s attachment to either “ancient” virtue or a “modern” commercial ethos turns out to be a non­ issue. Montesquieu recognized the historically accidental nature of both these exceptional states. The real question was not remaking politics in their image but, rather, using these historical exceptions to rethink the problem of the political in the modern age, when the culture of sovereignty and the practice of war are clearly in tension with the new economic, social, and military trends developing in a newly globalized political space. If we look carefully, we see that Montesquieu himself hints obliquely that the key to understanding the exceptional nature of Rome and England is found in their characteristic forms of warfare. In a chapter entitled “A Case Where the Defensive Force of a State Is Inferior to Its Offensive Force” (IX, 8), he quotes a remark once made to King Charles V, that “the English are never so weak or so

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easy to defeat as at home.” There is something odd about how the English organize themselves. Given Montesquieu’s theorization of the political, we would expect that a nation would fight the hardest to defend its homeland. Montesquieu then significantly adds, “This is what was said of the Romans.” These powerful imperial regimes are, paradoxically, unable to defend themselves at the heart of their own territory. Montesquieu explains this unusual condition by noting, “This will happen to any power that has sent its armies far away in order to bring together [réunir] by force of discipline and military power those who are divided among themselves by political or civil interests” (IX, 8). As he admits, in this condition, the state is weakened, made ill by both the original pathology (division) and the remedy (military order). As Montesquieu shows in great detail, both Rome and England are essentially divided, lacking in the foundational unity present in normal political communities. Their particular governmental organization lacks the very foundational character of sovereignty altogether. Montesquieu’s history of Rome and his detailed portrait of England serve to demonstrate how states that somehow lack the crucial function of sovereign power can still produce a stable institutional form without lapsing into despotism. This is what interests Montesquieu—not the idea that a whole new constitutional order might be founded in Europe or elsewhere. He is focused on the notion that these exceptional states accidentally discovered a kind of legal “technology” of stability, a technology that was not derived from any one particular political form, which therefore had the potential to be incorporated into other normal state systems. At least that is what I want to suggest. Still, any reading of England’s constitution of balance and Rome’s republican version must take into account the highly unusual development of these state forms, given the fundamental importance of origin narratives in Montesquieu’s account.

England Even before Montesquieu begins his detailed discussion of England’s constitutional order, we get a clue as to England’s special position in his typology of regimes. England is not just an outlier, or a hybrid state, but rather a form of government that paradoxically escapes the logic of the political altogether. In a short but crucial chapter on the purpose of states, Montesquieu lists a number of examples to show the diversity of purposes that any one political community might aim for, while emphasizing that every state has a common goal—

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namely, to preserve itself (XI, 5). This is entirely consistent with the logic of the political as we have understood it. As Montesquieu has shown, the contingent nature of the community shapes the final form of the political institutions and that of sovereignty most obviously. So as he lists the various purposes of diverse states (commerce, religion, and so on), we can see that the content of a state’s purpose does not affect at all the formal demands of political defense—the origin of the state in war. What Montesquieu calls “liberty” is just the opportunity for any member of the political community to be capable of obeying the particular political organization that sustains the sovereignty, which in turn sustains the existence of the original society. As he explains in preceding chapters, liberty (from the perspective of the constitutional order as a whole) is not “doing what one wants” but instead it is having the power to do what one should want to do. Liberty permits one to behave in a way that is consistent with preserving the system of power and organization that sustains the existence of the state and the society (XI, 2–4). The point is that no one political form is “intrinsically” free. Liberty inheres in any system that prevents as much as possible the abuse of power that ought to be used only to maintain the integrity of the whole political body. As Montesquieu once remarked, the only real purpose of liberty is security; indeed, “a subjugated people, which would have this security . . . would be as happy as a free people, moeurs being equal.”15 Liberty, then, allows for the proper functioning of a political-cultural system that itself aims to defend historical community with its particular aims and aspirations. So when Montesquieu says that a state like China could have as its specific purpose “tranquility,” it seems rather odd because any state, in wanting to maintain itself, would be seeking tranquility. But as Montesquieu explains in a footnote, there is something odd about a state like China: it has no external enemies. In this condition, the threat of civil war is what defines the formation of political sovereignty (VIII, 21). Since the society avoided the moment of existential crisis occasioned by the threat of the enemy, it has naturally focused on preventing the usurpation by any one of society’s advantages—hence the obsession with peaceful tranquility, as well as the persistent difficulty in stabilizing the political form. But when Montesquieu famously asserts that there is only one nation whose specific purpose is political liberty, the formulation is strikingly paradoxical and resists untangling. Liberty, as Montesquieu defines it, is entirely parasitic in relation to the political form of organization that emerges to defend a living

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community, whose purpose is derived solely from the historical conditions that shape its culture and economic life. For a community to have as its purpose “liberty” implies an impossibly circular political formation. Constitutional liberty is, according to Montesquieu, the ability to obey law—law that sustains a political form and in turn maintains the integrity of a social body. This gives citizens a feeling of security, their own particular brand of political liberty. Liberty therefore requires a foundation of order that defines its very space of existence. A foundation “of ” liberty would be entirely empty of meaning. This is all to say that Montesquieu’s depiction of England must explain not simply the specific character of that nation’s organization and political life that make it particularly “liberal” but something much more radical. It must describe ­England’s exceptional status as a regime that defies all of the normal relationships so far established among social structure, sovereignty, political institutions, law, and liberty. A state that has as its essential purpose political liberty is, in a strange way, not really a genuine state. At least, this is the only way the paradox can be resolved.

Sovereign simulations.  Montesquieu begins his analysis of England with a general constitutional point: all states have three specific powers. Borrowing from Locke, Montesquieu says that there is a legislative function, an executive function (establishing security and deciding war and peace), and a judicial function (deciding conflicts between citizens). The main point is that no one could ever feel secure (and therefore be politically free) if one body or person possessed all of these powers at once. But we must emphasize that for Montesquieu, the essence of liberty is the maintenance of a certain sovereign power capable of defending the unity of the social order. The argument against the unification of functions is simply this: the distribution of functions protects the stability of these complex sociopolitical systems by limiting the occasions for corruption. When Montesquieu turns to the English case, we can see that we are in a totally new world (XI, 6). There is not simply an institutional and cultural separation of these powers in a constitutional system that preserves their autonomous functioning. Instead, we find that in England there is something more akin to a constant circulation of powers—a stability gained more through mobility and instability than through deep, historically grounded relationships. We see this first in Montesquieu’s analysis of legislative representation. Representation is supposed to be a tool that allows a “body” (the people as a

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whole) to govern itself. However, Montesquieu immediately highlights an internal division. The nobility must have a separate representation to protect its distinctions within the state as a whole. But note that this distinction is not at all defined as a political distinction. The nobility is defending only an interest—an economic interest. The elevation of the social over the political is tantamount to a denial of the political, at least as we have, following Schmitt, defined it.16 Montesquieu hints at this when he explains how the nobility would have a “sovereign interest” in intervening in certain domains. The example here is literally money, levying silver coins to be exact. The legislative body is physically divided by two houses but more fundamentally by the lack of a singular political aim. The constitutional structure is one that contains difference, although it does not defend or produce genuine unity. Similarly, the executive power, held in England by the person of the monarch, is really only a simulacrum of sovereignty and not the genuine embodiment of the political community, as Montesquieu has previously described it.17 Unlike in normal monarchical regimes, sovereignty does not really inhere in the English crown, to be sustained by a complex social system that would at once preserve and check the formal exercise of this power in the name of the community as a whole. Instead, the English monarch does exercise certain executive functions but only because the singularity of the actual person lends itself to the job. For example, the monarch makes quick decisions about defense. The executive monarch is really only a pragmatic, functional entity in this system, with no real preeminence. This is why the legislative body is able to check the executive power in serious ways. And of course, the executive power is able to check the legislative power as well, highlighting again that in England there is no truly singular sovereign authority. The image Montesquieu chooses is striking. Each power is chained to the other but no one power dominates. “As its legislative body is composed of two parts, the one will be chained to the other by their reciprocal vetoing. The two will be bound by the executive power, which will itself be bound by the legislative power” (405/164).18 The implication is clear: the system is not animated by a genuine unity of purpose (as in normal states), a purpose that must be protected against the inevitable corruption of individuals or corporate bodies responsible for its execution. In England, unity is only an accidental production of a rather monstrous chain gang (itself an invention of the eighteenth century, incidentally). “The form of these three powers should be rest or inaction. But as they are ­constrained to move by the necessary motion of things, they will be forced to move in

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­concert” (405/164). This circuit of powers in the English constitution is necessary because the society has not committed to one single site of sovereignty that would in turn be protected by a division of constitutional functions.19 As several astute commentators have noted, Montesquieu nowhere speaks of the separation of powers but instead of their distinction from each other. The separation idea is a largely legal one, developed in twentieth-century jurisprudence.20 For Montesquieu, the identification of powers was a political problem—where was power actually located, how are powers related to one another, and how could these powers best serve the interests of the society as a whole? It is obvious that in England alone, law itself becomes a kind of “power,” which has surely complicated the reception of Montesquieu’s thinking about constitutionality in Spirit of the Laws. Law assumes a special position in this nation precisely because what law usually articulates (the sociopolitical order of a sovereign structure) is absent here. Unlike the communities founding their political unity in the crisis of war, England lacks this solidarity of citizenship. “As each individual, always independent, would largely follow his own caprices and fantasies, he would often change parties; he would abandon one and leave all his friends in order to bind himself to another in which he would find all his enemies; and often, in this nation, he would forget both the laws of friendship and those of hatred” (XIX, 27, [575/326]). As Montesquieu clearly puts it, “The men in this nation would be confederates [confédérés] more than fellow citizens [concitoyens]” because here each individual bows to no sovereign: “each would regard himself as the monarch” (582/332). Montesquieu depicts a system marked by a fundamental instability. Because there is a lack of a center to power, there is also a lack of intermediary bodies that might distribute power consistently and predictably within the state. Without the originary sovereign moment, executive power might sometimes simulate sovereignty but does not mark its genuine repetition. Here, England looks a great deal like “structural” despotism; that is, the unity of the political body is produced through a network of forces and not through a genuine community solidarity. The difference between despotism and the constitutional state is simply that the network of physical forces is centralized in the despotic state, whereas in England, something like a selfgoverning balance of circulating forces maintains this unity.21 English citizens obey the law not because it protects their established political regime but because law is the only thing containing the proliferation of highly mobile passions and interests.

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The question that must be asked now is, how did England find its way to this unusual and exceptional condition, and what can this tell us about the potential importance of the constitutional order developed there for other “normal” sovereign regimes? While a great deal of attention has been given to the details of Montesquieu’s depiction of English constitutional form, we must remember, given the theoretical foundations that govern his analysis of regimes, that “it is not the constitutional form that stands in the center of his theory, but its social substructure.”22

Sovereign individuals.  Montesquieu spends a considerable amount of effort explaining the sociological origins of England’s exceptional status, pointing repeatedly to the independence and even isolation of individual Englishmen. In a signature move, Montesquieu offers the climate as one important factor (XIV, 13). In contrast to the natural individuals described in the earliest sections of the book—those united into a social community by pleasure, feeling, and desire—the English are overwhelmed by their utter displeasure, thanks to their relentlessly unpleasant climate. By giving us “a nation whose soul is so affected by an illness of climate that it could carry the repugnance for all things to include that of life,” Montesquieu is precluding the seemingly universal political origin he began with, for, in England, one would perhaps not even feel it worth protecting one’s own life, let alone the life of that organic social body. What are the chances that individuals would form close bonds, when in England “everything can be intolerable”? In this condition, Montesquieu says, the “most suitable form of government”—which is his code for the system most likely to maintain a form of stability in this particular population— “would be the one in which they could not be allowed to blame any one person for causing their sorrows.” This should be fairly clear: given the irascible character of the English individual, if a person actually took power, that individual would be “intolerable,” and so no legitimate, stable authority figure could ever be established; “the impatient temper of the English . . . leaves scarcely any time for the king to impose his authority: submission and obedience are virtues they suffer the least.”23 Yet, to avoid total anarchy, something must contain the actions of individuals and preserve peace. The solution, famously, is this: “laws rather than men would govern.” Essentially, we have the origin of a state where law is the “sovereign” power that unites and stabilizes a people. But this is not quite true because sovereignty

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was defined, for Montesquieu at least, in terms of war and existential crisis. So why is there no war in England? Even given its protected island status, Montesquieu would have to take into account the critical possibility of civil war. But if we look carefully at his definition of civil war, we find that it begins only when people try to take advantage of the social body for their own particular benefit. This assumes the existence of the social bond. Montesquieu seems to deny that even “society” in this sense ever existed in England. This observation is amply confirmed in his earlier “Notes sur l’Angleterre,” written after his experiences living there for two years. He mocks his fellow Frenchmen, who often complained of the unfriendliness of their English hosts. “How could the English like foreigners? They don’t like each other.”24 In France, Montesquieu says, “I am friendly with everyone,” but while in England, Montesquieu adapts to the local culture: “I am friendly to no one.”25 Even more cutting, Montesquieu claims: “All an Englishman needs is money, a good dinner, and a girl; since he doesn’t spread himself around, and limits himself to this, when his money runs out and he can’t have this any more, he either kills himself or becomes a thief.”26 It is thus hardly surprising that Montesquieu finds a complete lack of commitment to political authority in England—as he writes: “Scarcely a day goes by that someone doesn’t lose their respect for the king of England.”27 If England is, unusually, a nation without a culture of power or a proper social formation, it does provide for its citizens a whole new way of living within a state. Because the state is, literally, a law-state, a state where law governs, individuals no longer have to fear one another. Even more important, individuals do not have to work together, in either the social or political sense of the term. In most nations, Montesquieu asserts, the commercial sphere must always give way to the political as the ultimate sphere. But in England, the situation is reversed: “Other nations have made commercial interests give way to political interests: England has always made its political interests give way to the interests of its commerce” (XX, 7). This is really another way of saying that there is no genuine “political” sphere in England. Again, Montesquieu’s language is revealing. He writes that England is “sovereignly jealous” (souve­ rainement jalouse) of its commercial life, hinting at how commerce might substitute for the political in the state. This language echoes that of the “Notes sur l’Angleterre.” Montesquieu there explains, for example, that “money is here sovereignly esteemed; honor and virtue little.”28 The most extraordinary actions are done only for money.29

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The point is this: the political system of constitutional government—if political is the right word—functions without the founding crisis of unity that begins the normal political state, whose main challenge is maintaining the pursuit of unity against the inevitable tendency of human beings to act in their own interest. Without this burden of unity, the English are safe, secure to pursue their individual interests, their commercial life. It is therefore perfectly logical (and not merely politically expedient) for Montesquieu to state that this is an “extreme political liberty,” a characterization not meant at all as an idealization that would disparage other forms of government.30 Just the opposite—the portrait of the English is almost perversely eccentric. It is entirely misleading to assert then, as Jonathan Israel does (and he can stand in for many others), that “Britain alone was a universal model from which the rest could learn.”31 We should not think England indicates for Montesquieu that “plurality and indetermination [are] the very object of politics” to the exclusion of unity.32 Whatever Montesquieu’s measured fascination with England, we cannot assume that its government and form of liberty would ever have much direct relevance for France.33 Montesquieu’s rather bland assertion at this juncture that “middles” (des milieux) are better than extremes tells us something interesting (407/166). He is hinting at the possibility of bringing together the complex cultural matrix that is the sovereign state system and the extreme political liberty of that exceptional constitutional state known as England. Unfortunately, he fails to develop this in any detail. It might therefore be useful to address the relationship between law and the political from another angle, by tracing out the origin and development of another exceptional state—namely, ancient Rome. Montesquieu’s depiction of Rome again shows how the peculiar liberty characteristic of a constitutional legal order is inextricably tied to a state that is never quite a genuine political body in the first place. That independence from the political turns out to be the crucial factor.

Rome At first glance, we might think that Rome, with its militaristic history, would be a paradigmatic state for Montesquieu, since he places so much emphasis on war as the origin of both a proper political community and its specific governmental structure. But, in fact, Rome’s military character masks an almost

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pathological form of social organization, one that precludes the development of normal sovereign authority, and with it, the kind of political unity that marks the functioning of typical states. As in the case of England, Rome’s unusual structural development makes possible the formation of a unique constitutional system, a legal form of authority that can substitute for the lack of a proper sovereign system of government. The question Montesquieu raises is not whether republican Rome—its constitutional system and the heroic virtue of its citizenry—should function as a political ideal.34 Montesquieu’s depiction of Roman history, which is influenced by Niccolò Machiavelli’s account in the Discourses on Livy, must be understood alongside English history if we are to make any sense of the implication that modern European states, France most notably, might adopt the kind of legal forms produced in these exceptional states.

Simulated society.  Just as he did with his abbreviated explanation of the origin of English society, Montesquieu emphasizes in the Considerations that at its origin, Rome does not really have a proper social body. But in contrast to England, it is not that the Romans shy away from one another. The Romans are simply not a self-sufficient entity; they have no critical mass that would form an organic community body. In his deflationary opening to the Considerations, Montesquieu highlights the dismal beginnings of this great city. It is not even a real town. It has no streets, and the houses are situated “without any order,” symbolizing the lack of any specific organization to this collection of people. Indeed, the Romans do not spend a great deal of time in their houses because they are always at work (89).35 And their work is in fact warfare. Montesquieu shows that Romans go to war not to defend their community and its integrity from a threat (foreign or domestic), but because they do not have a real, integral community to begin with. “To obtain citizens, wives, and land, Romulus and his successors were almost always at war with their neighbors.” There are literally not enough Romans to sustain a community, and, as such, Rome does not have enough land or activity to sustain its own economy. War is the method through which Rome overcomes its original lack. The Romans “returned to the city with spoils of grain and flocks from the conquered peoples, causing great rejoicing. Thus originated the triumphs, which subsequently were the main cause of the greatness this city attained” (89). As Montesquieu notes, the specific lack of identity on the part of the Romans is one of their strengths, for they are capable of radical adaptations of

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other people’s customs if these are useful and work to their advantage. Most notably, the Romans make full use of their opponents’ military tactics and technology. However, the Romans are not any one kind of people. Rather, they are an ongoing synthesis of multiple nations—they become stronger, for example, after their initial union with the Sabines, a people who are “hardy and warlike.” As Montesquieu puts it, “It should be noted that the main reason for the Romans becoming masters of the world was that, having fought successively against all peoples, they always gave up their own practices as soon as they found better ones” (90). Of course, once Rome acquired enough land and population, there was no reason it could not have formed a stable social community, which would then proceed to consolidate its political unity like any other. There would be an internal struggle or a foreign invasion (or likely both), resulting in the formation of a sovereign power that would refound the unity of the people in a political form. In fact, Montesquieu suggests exactly this: Rome very nearly became such a normal society with a relatively normal monarchical political form. “Numa’s long and peaceful reign was ideal for keeping Rome in a state of mediocrity,” Montesquieu writes. Contingent factors are what tip the balance: “If it had then had a less limited territory and greater power, its fate would probably have been decided once and for all” (90). The crucial turning point in Rome’s history was the death of Lucrecia and the opening up of the possibility of revolution against Sextus. In other words, Rome could have maintained the form of monarchical rule and remained a relatively small, poor state. Instead, in this revolution, a new form was chosen, one that made possible Rome’s great expansion and eventually the imperial structure of Roman rule. The key aspect of this new form was the mobility of institutional leadership in Rome, which echoes the mobility of individual political passion in England. The princes always had ambition at first but soon other passions emerged and eventually indolence would set in. However, in the new republic that emerged in Rome, the leaders changed every year, so ambition was fueled continually. The result, according to Montesquieu, was that the leaders “induced the Senate to propose war to the people, and showed it new enemies everyday” (93). War was now a function of the institutional system and not an instrument of defense. The state became defined by the production of enemies and the waging of violent war. As in England, the people of Rome were not a proper social community—they complained and demanded and were never entirely satisfied. War, and not commerce, was the distraction that directed their attention

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(and their energy) outside of the city. The obvious implication is that at the very origin of the republic there is hardly any inside to the city. As a consequence, Rome was “in an eternal and endlessly violent war.” Unlike normal states, which decide enmity on the basis of genuine existential threats, the Roman state always “regarded foreigners as enemies.” Anything outside was automatically a target for war. “Hostis . . . signified at the start a foreigner who lived under his own laws” (94, note c). This continual violence was hardly a recipe for political stability. “Now a nation always at war, by the very principle of its government, must necessarily perish.” Or, at least, as Montesquieu shows, the only way Rome could survive with war as its specific principle was if it could eliminate all of its immediate enemies. It would have to “overcome all the others who were at war only intermittently and were therefore never as ready to attack or as prepared to defend themselves as it was” (94). Rome was driven to keep fighting for the sake of its very existence, which was threatened by peace and inaction, given its fundamental lack of a proper social and economic identity. Montesquieu underscores the abnormality of the Roman state when he notes that the brief period of the decemvirs (ruling body of ten)—a kind of exceptional moment of genuine sovereignty in Rome—diminished Roman power. This is hardly surprising as no foundational unity could ever legitimate the actions of this asymmetric power structure, and there was nothing of substance to defend anyway. All that needed to be defended was the military organization itself. That was the essence of political life. The Roman fought for the system—a system of violence—because that system maintained his existence. Unlike Carthage (whose impressive military strength matched Rome’s), where great wealth paid for its armies, Romans fought only for the very existence of Rome. Mercenaries stop fighting when they are satisfied with their loot. The Romans were never satisfied, so to speak, because life in Rome was all about fighting in war—it was not instrumental and hence limited by the fulfillment of specific goals. This is why Montesquieu can argue that among the Romans there was no distinction between love of self, love of family, and love of the patrie (“homeland”): all were a function of the shared military experience. “Since they were always exposed to the most frightful acts of vengeance, constancy and valor became necessary to them” (94). War organized the state and the relations among people. Montesquieu takes care to point out how every citizen was linked in some way to military action. Even more important, every Roman was

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connected to the benefits gained from war. In contrast to Sparta, for example, where military strength was tied to a specific propertied class distinct from a general population “without courage,” the sharing of wealth and land in Rome was essential to its military power. Rome was hardly ever an egalitarian society, especially as the city expanded into an empire and wealth continued to stream into the society at home. In fact, as Montesquieu explains in a chapter on the “persistent divisions in the City,” a potential civil war often simmered in Rome. This internal struggle between the patricians and the plebeians, arising from the attempt to control resources and political authority, does not at all represent a version of normal political development. For in Rome, unlike in typical states, no one group emerges to dominate the political culture in the name of the city as a whole. The divisions persist. What gives Rome some form of political stability is only the balance of powers. As in England, it is the fact of Roman agitation and lack of systematic political stability that leads to a certain novel form of liberty—the balancing of powers in the city. What sustains any consistency in institutional order is precisely the legal form of those institutions. The institutions do not sustain an existing political form of sovereign authority. In Rome, as in England, the institutions are the source of order. Hence, law and constitution become the critical functions in the Roman republic. The laws constitute the method employed by this pathological state form to produce a unity that is not present in the population of the city. Freedom is found in law precisely because there is nothing else to sustain a more organic and coherent form of government. The legal constitutional state is a necessary instrument of order for those exceptional states that lack social, economic, and political unity and that are consequently in a constant state of motion and agitation: “In a word, a free government, that is, one that is always agitated, cannot last if it is not capable of being corrected by its own laws” (152).36

Sovereignty and the end of the republic.  The end of the republic is in sight once the balancing act between popular demands and senatorial wisdom is disrupted. Not that there is any final victory in this “hidden war.” What happens is that certain forms of authority are shifted outside of the city and become independent of any institutional control. Once the empire’s military operations extended beyond the Alps, for example, the long campaigns necessitated new powers for the generals. No longer were the soldiers

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a fighting citizenry loyal to the city. They now were loyal to the generals and fought only for them. Individuals in Rome could funnel resources directly to the generals, and so the Senate had no way of controlling these military figures (153–54). Montesquieu points to another cause of Rome’s ruin, and, again, it signifies a disruption of the delicate balancing of forces within the city. Rome had, from the start, always incorporated new ways of doing things, since at its heart it had no authentic “culture” of its own. Rome encouraged a certain general condition of conflict within the city. As Montesquieu puts it, we need to understand that “these divisions were necessary to it, that they had always been there and always had to be. . . . There had to be divisions in Rome, for warriors who were so proud, so audacious, so terrible abroad could not be very moderate at home” (156–57). What defined Rome for Montesquieu was its critical lack of a center of power. Its adaptability to endless war and internal conflict revealed Rome to be a kind of automatic or self-organizing system. Reworking Machiavelli’s celebration of discord in the republic, Montesquieu points to a form of unity dependent on the structure of containment. “That which is called union in a body politic [Corps Politique] is a very equivocal thing” (157). A genuine union does not entail great homogeneity or even accord. It is just the opposite. “The true kind is a union of harmony, where all the parts, however opposed they may appear, cooperate for the general good of society—as dissonances in music cooperate in producing overall concord.” Even in a state that seems chaotic, full of commotion, one can find a true unity, “that is to say, a harmony that results in happiness” (157). The harmony of Rome, like the harmony of England, flowed from persistent but controlled internal oppositions. However, unlike an Englishman, the Roman citizen was profoundly attached to the unity of the system as a whole—though this unity was without any substantial content. There was no concrete embodiment of unity and hence no contestation over it. A purified ideal of the city unified citizens despite an absence of real organic social ties.37 When the Italian subject cities eventually revolted against Rome and citizenship was extended to them in response, Roman identity became a kind of fiction: “the distracted city no longer formed a complete whole.” Montesquieu highlights the destruction of that abnormal form of unity forged by Rome as an exceptional state without sovereignty: “After this, Rome was no longer a city whose people had only a single spirit, a single love of liberty, a single hatred

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for Tyranny” (155). What was really fatal to Rome was not its extension of citizenship so much as the fact that these new citizens brought with them their “dependence on some great protector” (156). Dissension was not bound and limited by the legal structure of the republic because the conflicts were between independent powers attempting to seize control of the city. The deathblow to the Republic is staged by Montesquieu not as the escalation of a persistent division within Rome but more as a new form of conflict that demands decision and resolution. This is perfectly exemplified by Lucius Cornelius Sulla’s putative “rescue” of the republic. The brutal dictator enacted laws to curb disorder and then created a novel institutional form to preserve the fragile new order. As Montesquieu comments, “In the furor of his successes, he had done things that made it impossible for Rome to preserve its liberty” (165). First, he destroyed Roman military discipline by tying the soldiers’ advantage to looting, thereby corrupting them. They were no longer Roman soldiers but mercenaries. However, more important for us is the fact that Sulla invented the proscription. Montesquieu suggests that one could no longer defend Rome as an abstracted ideal, as that neutral system of legal order that contained all conflict even if it did not always resolve it. Indeed, the lack of an effective sovereign power precluded resolution—conflict was the motor that kept government active and energetic, preserving genuine liberty. The military culture of Rome was what drove every citizen to commit to the city and not to a particular political authority. Sulla’s proscriptions made it impossible to be attached to the republic in and of itself. There was no conceptual neutrality possible. One had to decide whom to support and this was a life-or-death decision (166). At this point, the republic was dead; it was only a matter of time before it was overthrown. The theory and practice of sovereignty had appeared but without any historical moment of foundational unity to legitimate it. This contrast is drawn even more starkly in Montesquieu’s brief, elusive, but highly evocative “Dialogue de Sylla et d’Eucrate,” which first appeared in 1724. Montesquieu uses the figure of the dictator Sulla to represent the violence of sovereign protection. Sulla was, in a way, a pure sovereign, in that he sought only to end civil conflict and protect the unity and liberty of the republic from foreign and internal enemies. This entailed, of course, a brutal, merciless elimination of those enemies. As Montesquieu sees it, Sulla embodied the existential, foundational nature of sovereignty, excised from any ­communitarian origin. He was, in a sense, an impossible figure. Sulla had no interest in ­governing once the crisis of unity was resolved. He operated only in

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the primordial sphere of violence and foundation. “I love to obtain victories, to found and destroy states, make alliances, punish usurpers” (315).38 His work was done when there existed no more enemies, no rivals for his power: “And I was never less satisfied than when I saw myself absolute master in Rome; when I looked around me and found neither rivals nor enemies” (316). Sulla thrived on the pure violence of foundation: he had no purpose driving him. He admitted that he had no “predominant love for the patrie” (318), which is to say, he did not represent the actual people of Rome, just the systematic order that was Rome, the abstracted “city.” His actions therefore did not proceed from emotion, hatred, revenge, or pity. Sulla was a spectral sovereign force who acted, abstractly, only from reflection. In Montesquieu’s dialogue, Sulla claimed to defend only liberty—a paradoxical formulation, given what Montesquieu later writes about the function of liberty in a political state. He says that liberty is what allows one to preserve the structure and culture of the political in any one state. To act for liberty is impossible, except in the case of those states without a proper functioning sovereignty, such as England and Rome. As Montesquieu demonstrates in this dialogue, pure liberty of the kind found in abnormal states such as Rome and England could never be sustained under conditions of sovereignty. Although Sulla believed he had refounded Rome against its domestic and foreign enemies, he failed to realize that the introduction of foundational violence had given Rome the concept and practice of sovereignty. Sulla had divulged a “fatal secret.” As Eucrates, the voice of moderation, said to Sulla: “When the Gods suffered Sulla with impunity to make himself Dictator at Rome, they proscribed liberty from it forever. They must now work too many miracles to root out of the heart of every Roman leader the ambition of reigning” (321). Montesquieu gestures in this dialogue to a pure concept of the political, one freed of any historical or social origination, just as he alludes to a pure logic of the law in those exceptional states that have skirted, miraculously, the normal development of sovereignty. These purified concepts reveal, in stark relief, first the deadly dangers of an unleashed political force and then the incredible power of a legal order itself liberated from its usual dependency on a political form. Given the logic of his analysis, Montesquieu could never advocate for a kind of revolutionary reform of sovereign regimes that would do away with sovereignty and institute such a “sovereignty” of law. However, he was acutely aware of the potential disaster of a sovereignty released from its social, cultural,

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and legal contexts. He was groping for a new way to think about eighteenthcentury states—states founded in historical periods far removed from the realities of modern economic, social, military, and even political existence. How does one preserve sovereign systems when the cultural practices necessary to sustain them were evidently anachronistic or deeply corrupted?

TECHNOLOGIES OF BALANCE Although Montesquieu has usually been read (even in the eighteenth century) as offering a relatively straightforward solution to this predicament in the form of a constitutionally enforced limitation and balancing of power within the state, we can now see that his depiction of these supposedly ideal constitutional regimes, where laws and not men reign, emphasizes the extreme abnormality of their origin and development. The revealing example of Sulla’s dictatorship shows the absolute gulf between the unusual republican liberty of the Roman legal sort and the structure of political authority present in normal republics and monarchical regimes. It is therefore appropriate that Montesquieu never argues for a specific reformation of political order along these lines in France or elsewhere. England was not at all a “dream” for France: it was not a vision for the abolition of its social and political system.39 The exceptional states of Rome and Britain are not paragons of virtue, ancient or modern. Montesquieu’s analysis of their unique constitutional orders does suggest, however, the possibility that they could be used as prosthetic instruments to shore up degenerating political forms. The best example would be, of course, Montesquieu’s own France. The sovereign monarchical power had systematically eliminated the privileged intermediary powers of the nobility during the seventeenth and eighteenth centuries, while simultaneously multiplying the offices of nobility through the practice of venality, creating a new elite hardly acculturated into the traditional principles of honor.40 Montesquieu was writing at a time of intense contestation over the historical origins of the French monarchical state. As we can see in Spirit of the Laws, Montesquieu sides with Henri de Boulainvilliers’s thèse nobiliare against J. B. Dubos’s thèse royale in the debate over whether the monarch was independent of the nobility, having inherited the legitimation of the Roman emperors, or whether it was originally elected by the nobility in the Frankish state (XXX, 3,

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23–24; XXXI, 4). But even accepting the thèse nobiliare, Montesquieu clearly recognizes the contemporary fracturing of the integrated cultural formation that had sustained the critical balance between sovereign and noble power.41 His consistent support for the judicial institutions of France was obviously one strategy for maintaining that balance. The exceptional constitutions we have studied could not (without disaster or civil war) replace a sovereign political formation like the French monarchy, yet because they did concretely incarnate, in a more purified form, the usually invisible principle of balance that is required in any political regime, they clearly pointed the way to a solution for France’s own political crises.42 This was the crucial importance of Rome and Britain as exceptional, nonsovereign formations. The value of their legal order was precisely that the instrument of constitutional law could not be tied to any political formation, indeed to any political principle whatsoever. This is to suggest that such principles of law could potentially be grafted onto a deteriorating regime without seriously disrupting the functioning of the political system or challenging the preeminence of the political force. That is, the constitutional orders that emerged in En­ gland and Rome, with their peculiarly nonpolitical evolution, showed that law, which is normally parasitic, had the potential to ground its own legitimation. This is true, assuming law could incarnate the inner principle of any regime’s internal order and not simply articulate the specific order characteristic of that regime’s historical institutions. Montesquieu’s concept of the political demonstrates that the violence of foundation constitutes a contingent, historically situated, legal-cultural regime that protects both states and their citizens. Liberty exists when these relations are stable and predictable. The real challenge for modern states was how to protect themselves (and the liberty of their citizens) from dissolution when those historically embedded cultural practices were failing in moments of great upheaval. The alternative was the collapse of order and return to the extreme violence of existential warfare—within and between individual states. Having discovered a concept of the political that articulated the existential foundation of organized community life and having shown that law is always parasitic in relation to the political, Montesquieu suggests how law could be traced to a more fundamental principle of order that haunts the very existential logic of the political.43 Yet that concept of order was ephemeral and its connections with the political community strangely elusive in Montesquieu’s texts.

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Jean-Jacques Rousseau would resolve these ambiguities. For Rousseau, the law was not so much parasitic in relation to a specific political configuration, understood historically as an existential response of some particular social body, as it was the necessary consequence of an even more radical political moment—a moment that interrupted history itself.

Chapter 5

Rousseau’s Cybernetic Political Body

I

n the early Enlightenment work of John Locke and Charles-Louis de Secondat, baron de La Brède et de Montesquieu, we see the political emerge as a distinct category of analysis: the principle and logic of defending a historically situated social formation against enmity and internal forces of disorder. However, this dependent relationship makes it difficult, if not impossible, to locate any kind of critical distance from the political—whatever serves the continued existence of the community so defined is inherently legitimate. Whether the community (as a social form of organization) is dissociated entirely from the operations of the political (as in Locke’s theory of federative power) or totally subordinated to the political system (as Montesquieu would have it), it seems clear that the rights of citizens defined by civil institutions would always be conditional, contingent on the function of a foreign political logic. The discovery of the political in the early Enlightenment therefore threatened to overwhelm any intellectual effort to secure the protection of individuals against established political forms of authority. Locke’s appeal to “heaven” to sort out these conflicts or Montesquieu’s own invocation of the ephemeral principle of order only betray a deep anxiety in this period. It is an anxiety generated by the clash between our acknowledged historicity and the intuitive feeling that there are deep injustices at the heart of modern economic, social, and political relations. Tracing the development and articulation of a political logic in JeanJacques Rousseau’s republican theory, we see how he brilliantly resolves this

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anxiety by imagining a new kind of politics outside of any historical determination whatsoever. He conjectures a political community that is defined by its ahistorical nature. This prepared the way for a total rethinking of the relationship between law and the political. For Rousseau, the law is not something that is to be deployed in opposition to a sovereign entity that defends certain social or economic systems. Rather, with a new concept of the political, sovereignty is redefined so as to highlight its profoundly legal and constitutional character. By separating the logic of the political from the historical evolution of specific societies, Rousseau insists that the real goal was not remaking one in the image of the other but seeing more clearly what was (and what was not) genuinely political about our own existence. The precise articulation of a genuinely political dimension makes possible a certain reorganization (not remaking) of the political body. I suggest we try to understand this reorganization as the institution of a certain cybernetic form of order. I do not use this term casually. Rousseau’s political body can be imagined as an artificial system of communication and control, modeled on the synthetic capacities of the nervous system as it was understood in the eighteenth century. This system made possible existential responses to sometimes hostile environmental conditions. In the end, Rousseau does not argue that the state is formed as a result of war or even in the face of the threat of war, as both Montesquieu and Locke claim. His surprising conclusion is that the artificial body that is the state is what makes war possible for the first time. This is an important insight for us to develop. For as Rousseau details the possibilities of remaking communities and their institutions so that political unity and the legal rights associated with it are established, he also admits that there is absolutely no hope for the creation of parallel institutions in the global sphere. This would seem to limit Rousseau’s contribution surrounding political power and human rights in the contemporary era. But I suggest the opposite is the case. Rousseau gives us the crucial conceptual tools to understand human rights across state borders as a new form of the political. In this context, we can see how universal rights of protection are not apolitical or antipolitical in orientation. Instead, they can be understood as new forms of political organization that arise from specific existential groupings. But for that reason, they are powerful instruments of equality and freedom. The possibility of legal protection flows directly from the logical (not substantial) purity of political unity.

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ROUSSEAU AND THE POLITICAL While thoroughly immersed in the natural-law tradition, Rousseau is not usually understood in that context.1 With his radically new ideas about popular sovereignty and the absolute will of the people, Rousseau seemingly turns his back on the natural-law effort to legitimate prevailing forms of authority with origin narratives. Rather than look backward, we tend to look forward when reading Rousseau’s political treatises, if only because his thought illuminates the revolutionary transformations at the end of the century, transformations that would forever alter the landscape of modern states. Society had its own order, its own principles of organization. It was capable of being studied and understood through scientific observation, and this led to a rethinking of political and legal institutions in relation to social realities. Society was pitted against the “absolutist” state, and much of the political discourse of the late eighteenth century reveals a turn (even among royalists) toward the idea that the state was a function of that larger social order. For many, Rousseau exemplifies this key development of the eighteenth century, what might be called the “discovery of society” and the reinterpretation of the role of government as the servant of society’s own will. From this perspective, Rousseau would appear to be diminishing the autonomy of the political. Indeed, those thinkers we most associate with this principle of autonomy view the Enlightenment (and especially Rousseau) as advocating a dangerous conflation of the social and the political. The inevi­ table result of this conflation is either a government without limits, wielding the will of the people, or a chaotic civil conflict where sharp divisions within society preclude political unity and harmony. Carl Schmitt castigates Rousseau for his role in developing a “constitutional dictatorship” with no limits, where the uncontested legal will of the people has no effective limitation. Rousseau was, according to Schmitt, a truly modern democratic thinker, willing to identify ruler and ruled, and the historical effect was that the political was overtaken completely by the idea of the people as sovereign dictator.2 Similarly, Hannah Arendt associates Rousseau with the French Revolution’s inability to separate law and the sphere of political action. By associating political power with the will of society, politics is overwhelmed by the un­­ ending demands of the people. For Arendt, Rousseau anticipates “the fateful instability and faithlessness of revolutionary governments.”3 For Sheldon

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Wolin, the ­Enlightenment “discovery of society” constitutes an “eclipse of the political,” because the idea that society is “self-subsistent” means that there is no room for an autonomous political sphere where diverse wills and desires are “endowed with a new coherence.” Rousseau in particular fails to see the essential difference between a society and a political community.4 Modern political theory can be seen, then, as an effort to reconceptualize the political in the postrevolutionary democratic state. My approach to Rousseau counters these interpretations. By emphasizing his links with the natural-law tradition, I want to show how he isolates, for the first time, a completely autonomous notion of the political, one entirely independent of all particular social formations. Rousseau’s language is deceptive—the “social” contract is nothing like the contingent, historical communities studied in Enlightenment human science. Taking seriously Montesquieu’s contextual and historical analysis of political regimes, Rousseau recognizes acutely how governments reflect the dynamics of social realities. The eighteenth-century state (whether cameralist, enlightened absolutist, or republican) is characterized by the interpenetration of social, economic, legal, and political forces and institutions. It is precisely this recognition of the blurring of the political and the social that prompts his search for a new concept of the political, one that reestablishes “right” in the face of all the pathologies characteristic of modern civilized social relations. This articulation of a pure political community is no utopian fantasy, as Judith Shklar, for one, would have it.5 Rousseau’s invocation of a political sphere independent of any existing historical community is a logical move. He isolates not so much the ground of a new form of government but a structural principle that could guide us in the evaluation and reformation of our political life. Rousseau is never interested in describing some ideal form of political order, because there is no such form. The political is only a certain logic of organization. The challenge, for Rousseau, as for all citizens of modern states, is to take that fundamentally ahistorical criterion of legitimacy and use it to reconceptualize the operations of a political order formed within the contingencies of a real historical evolution. This is where Rousseau departs from the natural-law tradition and from Enlightenment political sociology. He neither defines political institutions in terms of an ahistorical logic of individual association, as in natural law, nor in terms of a historical function, as in Enlightenment political sociology. He instead uses the problem of history to isolate a true political logic while simultaneously raising the question of how that logic could ever be integrated into the historically specific social worlds we live in.

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THE END OF NATURAL LAW In modern natural-law theory, origin narratives functioned as critical tools; they were virtual alternative realities that allowed the reader to identity legitimate institutions and acts within specific historically constituted civil configurations. Especially for seventeenth-century thinkers such as Thomas Hobbes and Hugo Grotius, natural-law narratives were logical (rather than chronological) structures that proceeded from a profoundly ahistorical foundation— namely, the purely independent individual human being, possessing a form of rationality constant and stable across historical time. Only with the appearance of a genuinely novel space of human activity—a wholly new logic of social organization that transformed individuals, introducing a form of rationality separate from the individual—would the political as such become even thinkable, as Samuel von Pufendorf first glimpsed. However, once a logic external to individual rationality was identified, the autonomy of the individual was thereby threatened. If we still look to the Enlightenment for powerful ideas about individual rights, there is no question that also in this period, which saw the invention of human science on a grand scale, individuals were positioned as participants in larger, more complex systems with their own rules of order and operation. Over the course of the eighteenth century, Enlightenment thinkers would increasingly emphasize the ways in which individual human beings were deeply shaped by their culture and history. This tension runs through much of later Enlightenment thinking. In the end, natural-law theory, which began with a positive affirmation of a human nature and a form of human reason that was completely devoid of historicity, would eventually give way to what would be called “conjectural history”—the attempt to explain the emergence of human societies and states in all their cultural and political plurality. Since Rousseau’s methodology relies so heavily on the conjectural method, it is worth dwelling a little on this mode of philosophical investigation. First, we should recognize that there were two major genres of conjectural history that represented two very different ways of responding to what I am calling the crisis of historicity in the eighteenth century. On the one hand, conjectural accounts deployed new concepts of human nature to explain the unfolding of particular societies in historical circumstances. These histories emphasized freedom and the possibility of re-creating our social and political institutions to better accord with our own nature.

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Thinkers such as Anne-Robert-Jacques Turgot and Marie Jean Antoine Nicolas de Caritat, marquis de Condorcet are the best examples of this kind of thinking. On the other hand, the conjectural method could be used to demonstrate that human nature was historically constituted. This method would stress the way in which human faculties, cultures, economies, religions, and political systems were conditioned by the contingent historical development of specific societies. The first genre transfigured modern natural-law theory, substituting a “natural historical” original human described anthropologically. This provided an abstract portrait of the rational individual to legitimate certain universal principles of right that were transhistorical. The second drew on the emerging fields of social and human science (not to mention early statistical concepts and practices), which deemphasized the importance of individuality. The individual was redefined as a site for the manifestation of broader social and historical forces that could be studied with the precision of natural science. Giovanni Battista Vico, François-Marie Arouet de Voltaire, David Hume, and Adam Ferguson could be cited here (alongside Montesquieu in his most sociological moments). Rousseau’s work would seem to be the final blow against modern naturallaw theory in that he radicalized the historicity of human existence by demonstrating how seemingly essential human attributes, such as reason and language, were products of a historical process of emergence. Yet Rousseau refused to endorse the positivist, historicist tendency of the later Enlightenment. Somewhat paradoxically, he developed one of the most extreme critiques of existing civilization and outlined a radical—some would say even ­revolutionary— new theory of political right. Although “there will always be men destined to be subjugated by the opinions of their century, their Country, their Society,” Rousseau declared, he himself aimed “to live beyond” his own historical moment, writing to all of humanity.6 Rousseau well knew that in order “to know man, it is necessary to study men; and to know men, it is necessary to study them in various times, in various places.” This was only a first step so that we could then begin to disentangle, within all these “vicissitudes,” all the accidents of time and place, “what is essential to man, what is inseparable, what one always finds in him.”7 However, unlike the natural-law theorists, Rousseau was not trying to locate some tangible new ground, a new definition of human nature that would then underwrite a theory and practice of right. Rousseau instead began with the question of human origin as the key starting point for any rethinking of

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political legitimacy. After first rigorously demonstrating the problematic contingency of all intellectual, moral, social, and political developments, Rousseau reveals that the only thing about us that is not determined contingently in history is the very capacity to be determined in the first place. What kind of being is open to such radical historical construction? Human freedom, for Rousseau, was that peculiar ability to become something through historical determination. This freedom would be the foundation of a new conceptualization of politics and law. The human capacity for interrupting one’s own present historical identity, to not be who we in fact are, is the origin of political right. Rousseau’s task is the reconstruction of political community independent of any contingent community formed by historical beings. Rousseau’s concept of the political therefore bypasses entirely the origin and development of society. With this radical separation, Rousseau can offer for the first time a genuinely independent concept of the political. But the difficult question Rousseau raises is how to reconnect this concept of the political to contingent human communities in history. This project, which unfolds in the Social Contract, details the construction of a political body within society itself. How does a purely political association devoid of any concrete relationships become something real? Rousseau, like Hobbes in his own way, has in mind the building of an artificial body. Although many have noted Rousseau’s occasional use of physiological metaphors in his political work, there has been no systematic analysis of how his body politic is organized along the lines of organic bodies as understood in the eighteenth century. Key physiological concepts from this period, such as sensibility, communication, and synthesis, frame what is essentially the creation of an artificial nervous system in the body politic, a two-way system of communication that would navigate the relationship between a purely political “soul” and the material reality of embodied social creatures. The body politic was an essentially cybernetic organism, struggling to survive in its environment. It possessed no fully autonomous sovereign mind, only a complex brain and nervous system that would work to produce a unity of perception and feeling from the diverse “tissues” and “organs” that constituted the organism. Reversing the natural-law approach and distancing himself from Locke and Montesquieu, Rousseau shows us how the political does not at all emerge from a real body (whether individual or social) at war. In fact, the emergence of a political state is the prerequisite for the exact possibility of war. Rousseau recognizes that the construction of these artificial cybernetic political bodies

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creates a wholly new state of nature, one that exists between individual states as they confront one another in their effort to maintain life. As Richard Tuck has argued, Rousseau in effect returns us to Hobbes in this regard.8 Rousseau here opens up a whole new question for modern thinking about the state. Is there a concept of the political that would transcend the state and make war obsolete? The answer to this question relies on a careful understanding of the idea of the political in Rousseau. Like the natural-law theorists, he must “begin at the beginning.” Or to be more precise: he begins with the problem of beginning as a way of avoiding the seemingly inevitable link that has been forged between violence and the political in thinking about the nature of the modern state.

HUMANS IN (AND OUT OF) NATURE In all his important texts on political right, Rousseau repeatedly criticizes the natural-law theorists for their methodological sleight of hand. Thinkers such as Grotius and Hobbes assume a natural human being as the starting point of their deductive arguments, but they, in fact, deploy a portrait of modern man. As Rousseau points out, we cannot “believe that we have known human Nature well enough by seeing the men that are around us.”9 In an early version of the Social Contract, Rousseau claims that “Hobbes’s error is . . . not to have established the state of war among men who are independent and have become sociable but to have assumed this state to be natural to the species, and to have given it as the causes of the vices of which it is the effect.”10 While thinkers such as Pufendorf, Locke, and even Montesquieu all tried to counter the Hobbesian vision of natural violence with a competing theory of natural sociability, still, the arbitrariness of all these definitions of nature discredited the deductions that followed, according to Rousseau. In the opening to the Second Discourse, Rousseau states the problem clearly: if the whole method of natural law relies on a clear and universally accepted definition of the natural human being, then the confusions and disputes surrounding human nature, which were so prevalent in the Enlightenment, will always interfere with this project. “It is this ignorance of the nature of man that casts such uncertainty and obscurity on the genuine definition of natural right [droit naturel ].”11 As Rousseau well knew, many modern natural-law theorists centered their definitions of the human on reason. They did this precisely to ground their deductions on a feature whose universality could hardly be denied. Not

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­surprisingly, though, reason itself became a contested site in the Enlightenment, as empiricist epistemologies and psychologies emerged in the wake of Locke’s seminal work on the history of human cognitive functioning. As Locke and his sensationalist followers, such as Rousseau’s friend, the influential philosopher Étienne Bonnot de Condillac, had demonstrated, reason was not a given faculty but instead a certain achievement of the sensing body. Further philosophical and anthropological speculation on the origin of language and reason recapitulated this genealogy of the individual mind within the species as a whole. Rousseau recognized that without this foundation of reason, natural-law theory was put into serious doubt. In the preface to the Second Discourse, Rousseau argues that he can salvage natural right but only by discovering two principles that come before reason itself. The first principle is the human sense of well-being leading to a will for self-preservation (amour de soi). The second is the human being’s natural repugnance at seeing any other sentient creature perish or suffer ( pitié). The simple point Rousseau makes is that reason is not necessary to account for relatively peaceful human interactions in the earliest historical conditions. Our minimal obligations to one another are entirely “natural” and therefore do not have to be “discovered” and enforced by rational actors, as the natural-law theorists always argued. Therefore, “one is not obliged to make a Philosopher of man before making a man out of him” (126/127). Now it would seem that Rousseau is simply pushing back the origin point, locating his own natural being to establish a novel system of natural right. This is not the case. First, Rousseau states that animals are not able to recognize natural law, though it would appear that they, like us, are animated by a will to preserve themselves, and they also share with us a natural form of pity. (As Rousseau later points out, horses, for example, will jump over a prone human figure to avoid injuring it [154/152].) The only reason self-interested creatures in nature restrain themselves from killing other beings, for even the slightest benefit to their own interest and well-being, is this natural response of pity. Rousseau’s invocation of the animal world is a clever counterdemonstration. Without a Hobbesian form of reason, why would any autonomous, selfinterested creature with a will to self-preservation stop itself from extreme violent behavior at any opportunity? Since violence does not completely overwhelm the natural world, it is plausible, Rousseau suggests, to assume this vague empathic capacity in all sensible creatures.

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So what is the origin of natural right if, in an important sense, it is not exactly necessary in the state of nature? There must be something unusual about humans that would distinguish their development from that of animals. Rousseau hints at this early on in the Second Discourse: natural right is not at all a direct consequence of the two principles embedded within natural creatures. He says, instead, it is “from the cooperation and from the combination our mind is capable of making between these two Principles, without it being necessary to introduce into it that of sociability, that all the rules of natural right seem to flow” (126/127). In other words, it is not self-preservation and pity that constitute natural right but instead the cognitive ability to identify and then combine in some new relation these radically different principles. While it might appear that Rousseau is simply redefining the natural human being, in fact, something different is going on in these preliminary passages. Rousseau is implying that human beings relate to nature in an unusual way, rather than possess an unusual nature themselves that would explain their peculiar historical development. When Rousseau writes, “It did not even enter the mind of most of our philosophers to doubt that the state of Nature had existed,” he tells us that we must be open to the radical possibility that we were never natural. His reference to scripture only highlights the structure of the human condition as already outside of “pure nature” (132/132). To be sure, Rousseau starts his account by imagining an original state of nature. But this is only to conjecture what kind of being we must be if we are to live in this natural state while still possessing the potential to become historical. After all, we know we eventually left this natural state. From the start, Rousseau describes the seemingly natural primitive human as not quite natural. As Rousseau notes, all of the animals divide the resources in nature, but the human is outside this economy altogether (135/135). Once he has “stripped” the human of all “supernatural gifts [dons surnaturel ]” (134/134) and all of the “artificial faculties” acquired in the course of history, it is not so clear that there is anything left over. Stripping the human of what is beyond the natural does not produce a mere natural being. This is the complication that drives Rousseau’s whole subsequent argument. Contrary to many interpretations of the Second Discourse, Rousseau is not speaking of “natural man” but is in fact referring to a human creature that is simply in nature—part of it but not wholly determined by it. Rousseau tells us this explicitly: the human has no nature, has no natural instincts that would allow it to survive in the natural world. Even with a will

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to self-preservation, no action is automatically at hand. Nature offers food and shelter to all sorts of animal species, those Cartesian automata (“ingenious machines”) (141/140), but humans are not quite animals. Men, dispersed among them, observe, imitate their industry, and so raise themselves to the level of the Beasts’ instinct, with this advantage that each species has but its own instinct, while man perhaps having none that belongs to him, appropriates them all, feeds indifferently on most of the various foods which the other animals divide among themselves, and as a result finds his subsistence more easily than can any one of them. (135/134–35)

Rousseau does not distinguish human beings based on some superior nature or ability but by their fundamental lack of a nature. As he later explains in Émile: “We are born capable of learning but able to do nothing, knowing nothing.”12 This is the essence of what Rousseau calls “freedom”—the open ability to choose rewritten as the capacity to choose one’s own determination. There is no “natural man,” only a “man in the state of nature” (139/138). The famous statue of Glaucus, disfigured by “time, sea, and storms,” is used by Rousseau to represent an endlessly modified humanity (122/124), but we can see the ambiguity inherent in this imagery. The statue is an artifact and the processes of denaturation are themselves entirely natural.13 While some still insist that Rousseau presents us with a natural human being who is essentially an animal open to change, however unnecessary that change may be, in fact, the status of the human in the Second Discourse escapes determination in terms of any single nature.14 From the perspective of natural-law theory, the point of part 1 is to demonstrate that the minimal human in this natural condition of plenitude would not establish even the simplest relations with other humans, let alone complex social, legal, or political institutions. Rousseau says we cannot assume (as Locke did)15 that there is a natural sociability among humans. This is because it is perfectly plausible—as this account is meant to demonstrate—that a creature with minimal humanity (freedom not to be determined by its nature and a vague sense of pity) would be able to survive, alone and isolated, and still be perfectly content, as long as the conditions were favorable. The absurdity of the scenarios Rousseau describes is not a weakness of the text (as so many commentators, beginning with Voltaire, have often assumed) but a key rhetorical strategy.

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If we want to imagine a natural human being who forms social bonds with other humans, Rousseau has told us, we would have to arbitrarily insert such a capacity into our definition of the human. While this would hardly seem controversial in the eighteenth century, Rousseau’s point is to challenge the reader. If we always assume the inevitable development of society, we lose any critical distance on those societies. The specter of an Aristotelian notion of “natural slavery” hovers over this account.16 The story of the human in nature is therefore structured as an antinarrative, a story of curbed development, because Rousseau wants to argue that society did not have to happen. Therefore, nothing within the logic of the social will ever legitimate relations (especially oppressive ones) that develop historically. What Rousseau does provide, eventually, is an explanation of the origin of society that relies on an entirely contingent foundation. The revolutionary turning point is the moment when a human being decides to build himself a hut. With the permanence of residency comes the first form of stable coexistence between two human beings; that is, sexual partners who would have wandered off and never crossed paths again now stay together in the hut for an extended length of time. This alone does not produce anything interesting. What Rousseau highlights, though, is the new opportunity for continued observation. With continued interaction, it seems, there is an intensification of comparison, a comparison of self and other. “The habit of living together gave rise to the sweetest sentiment known to man, conjugal love, and Paternal love” (168/164). As huts proliferate in certain locations, more and more opportunities for these comparisons and transformations arise, with the implication being that multiple bonds are created between individuals who recognize, again via an unnecessary cognitive judgment, some foundational commonality. This is what structures Rousseau’s primitive society, a collection of people powerfully united by moral—that is, cognitive—ties, yet still individually selfsufficient as physical bodies. Violence, as Hobbes says, is often the result of affronts, insults, jealousy, disrespect. Violence stems from the intense competition for preeminence in the eyes of others. But for Rousseau, these conflicts are resolutely not a Hobbesian struggle for one’s very existence. Within this “Nascent society,” in no way do one’s fellow members constitute a perpetual threat to physical self-preservation, any more than they provide a guarantee of survival. Rousseau coins the perfect phrase to define this social network—­ commerce indépendante, or “independent interaction” (171/167). On the cognitive, emotional level we are tightly bound to our fellow beings. We are attached

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to them. This expands our moral sense, but, at the same time, our bodily existence is entirely independent of this virtual world of interaction, which is why we are all equal in our existence, even as we are clearly unequal in this constructed world of social relations. As is well known, Rousseau marks as the “fatal turn” for this primitive society the emergence of a division of labor. With this development, one now absolutely depends on other individuals for one’s material existence. The division of labor frees up the logic of excess by disrupting the balance between physical need and the human propensity for superfluity. Now linked in a network of dependence, human individuals are forced to see that all the differences that distinguish them now seriously matter. As Rousseau so eloquently details, all the ills of civilization flow from this one revolutionary development. Once an individual depends on another for material survival, it becomes obligatory, according to the natural will for self-preservation, to exchange but also to dissimulate and to coerce. This logic of violence and deception has no warrant in nature, indeed, no warrant in primitive society. That is because it is impossible to cheat in the network of comparisons structuring that early social world. You cannot pretend to be a better dancer, a faster runner, a stronger fighter. And force is only so useful. You cannot force someone to approve of you. Only in an economic system of exchange, which requires an act of valuation linking the dissimilar, is manipulation possible and coercion (or even theft) existentially necessary. What Rousseau wants to show is that this period of history is the most violent and disorderly of all. It is truly the Hobbesian war of all against all, and what Rousseau so deftly demonstrates is that this eruption of violent conflict requires the previous emergence of a tight-knit network of dependence. This is because only when one loses independence does survival become a matter of maximizing one’s position in relation to others. Natural inequalities will always produce asymmetries once this network is established, and only some of them will be counterbalanced by successful dissimulation, outright fraud, or the use of force. Eventually, as Rousseau describes it, this continual competition for resources, but also for positions of control within this network of dependence, cannot help but produce what he calls “the most frightful disorder” (176/171). The largely peaceable nascent society gives way to “the most horrible state of war” (176/172). We now find ourselves, finally, on the terrain of the natural-law theorists, according to Rousseau. As Rousseau shows in his ghastly scenarios of violence,

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power, and corruption, contrary to the vision of the natural-law theorists, there is nothing in civilized society that would ever ground a legal framework and a legitimate political authority that would work together to protect the independence and freedom of individual citizens. In an advanced economic society defined as a network of dependency, independence and freedom have already been forever lost. The challenge presented by the Second Discourse is clear. Given the determinations we have acquired in the long history of civilized life, there is absolutely no question of some return to a primitive state of commerce indépendante. Rousseau never implies that we could even try to recapture such a primitive existence. What Rousseau is suggesting is a way of re-creating the structure of that form of existence within the pathological institutions of civilization. To employ one of Rousseau’s most pregnant metaphors, we must find a “remedy” within the poison that afflicts us.17 And the evil he has focused on is law. This is because law fixes the asymmetry of dependence, which disrupted nascent society and destroyed its natural equality. As he points out in Émile, the only “means to remedy this ill” of our mutual dependency is “to substitute law for man,”18 to become dependent on the law and avoid being at the mercy of another person’s interest. This would seem to be impossible. How does one remake law into a vehicle for equality and freedom? The answer lies in the one human capacity that still remains with us in this world of hyperrelativity: it is the ability to see things as they are not, to imagine them as something other than what they are. This was the power of conjecture all along. By imagining something, we can make it real. Now Rousseau’s task is to imagine law as if it were the instrument of our freedom and equality and not their deadly enemy. This gives us a clue as to how we might read the Social Contract, Rousseau’s attempt to reformulate the foundations of political right. In contrast to every previous thinker in the natural-law tradition, Rousseau revisits the narrative of the origin of society and government to reestablish on a firmer foundation law and politics—“those specious names, justice and subordination.”19 For as he has shown, there is no narrative that would allow us to transport the principles of nature into society. Rather than present a narrative, he poses a radical question. What is the origin of law and political authority in themselves? Because we must bypass our dependency on one another as modern social beings if we are going to achieve independence and freedom, Rousseau will have to bypass completely the origin of that dependency if he is to discover the principles of a purely civic order of existence.

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POLITICAL CYBERNETICS The problem of political right is the problem of understanding legitimate obligation. As Rousseau has argued, there are no obligations in nature. The initial affective bonds of social community are also inherently apolitical because no one person can ever be truly obligated to another in this condition as there are no permanent existential ties of dependence. On the other hand, the advanced economic society that develops from the division of labor establishes obligations that mirror the dependencies within a given historically determined community. There is no conceptual space for an idea of obligation that would be independent of the relations present in this society. Given Rousseau’s grounding of the human in radical freedom, there is no way that any dependent relation (a solidified determination) will ever be congruent with our own being. The project to reimagine the chains of oppression—laws—as instruments of freedom is difficult to envision. It seems paradoxical within Rousseau’s own terms. How can a determinate society free itself of determination and reestablish ties between individuals that would preserve natural freedom and natural equality? Since free individuals do not logically require society, there is absolutely no foundation for any enduring violation of our human identity. There is no reason for a human being to submit to another’s authority. The state of nature can offer no help here, because, as we have seen, the human in nature requires no relation with any other human being. Therefore, for Rousseau to rethink law and political authority as spaces of freedom, he has to completely disentangle these categories from the social organizations that emerge in historical time—not that we might return to a previous state but that we might imagine an alternative condition. The Social Contract is not so much a sequel to the Second Discourse as it is a conjectural history that returns us to the point of transition marked by the emergence of the hut. What Rousseau will do in the Social Contract is construct an altogether new scenario. Instead of detailing the origin of society—that affective community sparked by the transfer of self-love to another via an analogical substitution—Rousseau traces the origin of a purely political community. Unlike Locke or Montesquieu, Rousseau’s autonomous zone of the political is not parasitically tied to the social order that it strives to defend. And he does not try to argue that the political authority is subservient to the free individuals that constitute it in the first place. The political is governed only by the logic of its own formation.

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For Rousseau, the political is radically autonomous in that it originates independent of any existing ties of community among individuals. The social contract is really a contract to create a special kind of society—namely, a political society—in the absence of any preexisting contingent connections. The question then is, why would individuals submit to such a formation? And how can we imagine that they were able to maintain the kind of freedom and equality we know they possessed in the state of nature?

Pure Crisis To start, we must imagine the individual as developed in the early sections of part 2 of the Second Discourse. The individual has overcome a challenging nature. He has awakened a cognitive capacity to “see” things as they are not, to discover connections and create analogical imitations. He is at the stage where the building of a hut would perhaps create the condition for genuine social bonding. It is at this exact moment that Rousseau conjectures a new form of nature, a nature that is not just challenging but outright threatening. The “obstacles” that were more or less difficult puzzles to solve in the Second Discourse have turned into something much more sinister; they have become a direct challenge to existence itself. In the opening lines of the critical chapter on the origins of the “social pact,” Rousseau explains the new condition this way: “I assume men having reached the point where the obstacles that endanger [nuisent] their preservation in the state of nature prevail by their resistance over the forces which each individual can muster to maintain himself in that state.”20 As Rousseau says, this primitive ( presocial) state can no longer subsist. Every individual, not to mention humankind itself, “would perish if it did not change its way of being” (360/49). We have to understand that the independent human in this state of nature cannot see the “other” as anything more than an instrument of harm or ­benefit— friend or enemy. As Rousseau notes in the Second Discourse, the human in nature can distinguish between situations in which “common interest should make him count on the help of his kind” and those in which suspicion would be more appropriate. But the grouping in the first instance would be at most a “free association,” meaning that it “obligated no one and lasted only as long as the transient need that had formed it.” In the second case, the human must simply “seize his own advantage” by force or cunning (166/163). We find ourselves

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in a new situation somewhat analogous to the first scenario. We must unite with others who share a “common interest” in order to survive, except now this situation is recognized, on a cognitive level, to be a permanent condition. This is important to emphasize for two reasons. For one, we must find a form of organization that will enforce total cooperation. More important, though, on an existential level, we need this form of cooperation for our own self-preservation and we are driven to find a way to ensure the permanence of this particular organization. I do not permanently need any particular human counterparts (because in the plurality of threatening circumstances, different people may offer different advantages to me), but I absolutely need the guarantee of their cooperation. This is the conceptual point that needs to be clear. The social contract is not really a formalization of a specific structure of need for and dependence on a circle of fellow humans. It is a formalization that ensures the permanent durability of such a relation of cooperation, one that has not yet taken place. There is no previous social order threatened into formal consolidation. This is completely unlike Schmitt’s definition of the political, with its assumption of an existing community or association that only becomes political in the existential challenge of deciding friend and enemy. As Rousseau explains, we may well recognize the need to mutually support one another in a particular moment, but if it was in our self-interest to violate that mutual agreement, our individual will to survive would obligate us to abandon the others (like that individual from the Second Discourse who joins in the team of hunters to catch a deer but leaves his post to catch the hare that passes by). However, once we recognize that nature will kill us eventually if we remain alone, we cannot let such a situation develop. We must create a wholly new kind of arrangement that is permanent. The construction of a unitary organization is necessitated by the general and pervasive possibility of threat and not by a particular difficulty solvable with specific forms of (temporary) solidarity. As Rousseau remarks at this point in the text, we cannot engender new forces. We cannot, for example, simply assume the engendering of a new social bond that would underwrite some sense of obligation, facilitating the performance of cooperation. We can only “unite and direct” the powers that in fact exist, and these are, at this stage, resolutely individual in nature. The essence of the social contract, for Rousseau, is the transformation of these particulars into a unified form, because human beings “are left with no other means of self-preservation than to form, by aggregation, a sum of forces that might prevail over those obstacles’ resistance.”

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The sticking point, and the origin of a seeming paradox within this formulation, is that the only real weapons of survival we possess are the force we are given by nature and the freedom (liberté) to direct that force. These are the “primary instruments of self-preservation.” If it is understood that survival depends on the unification of our forces—“to set them in motion by a single impetus, and make them act in concert” in a sustained ­fashion—it is equally important that one’s own care not be neglected (360/49). Ideally, the natural individual simply wants other bodies to act as kinds of prosthetic survival devices. This is the logic behind Rousseau’s observation that the formal unification must not depend on a relinquishing of one’s independence. That independence is the only instrument of self-preservation we have. The difficulty, as Rousseau states it, is to find a form that will defend and protect us with the common force necessary to overcome the threat of nature. But within that unity we must remain absolutely free; which is to say, we need obey only ourselves and thereby maintain our natural liberty. This holds for all the others whom we need to support our own goal of survival. The solution to this problem is famously difficult to untangle, however. From our perspective, one crucial point stands in relief: Rousseau stresses that each of us must alienate completely our rights to the whole community, or more precisely, to the unity that is the locus of that community form. Equality is thereby maintained (since everyone alienates the rights simultaneously) and a certain form of freedom is also preserved, for no one person submits to any other person. Indeed, we do not even contract with one another. We submit only to the unity that would bind the individuals together. Since this unity is directed exactly to the same purpose as our individual selves—namely, our self-preservation—the will of the unified community can never itself deviate from the individual will to survive. We therefore lose nothing in the association (we are free, as we have chosen to act only in a way that will maintain our existence), but we have now gained the gathered force of all the other members in our own individual quest for security against an overwhelming and threatening nature (361/50). Since every member has exactly the same goal, which is to use the force of others to combat threats, there is a general will that can direct the combined forces without ever violating the individual integrity of each member of the association. The union is an artificial construct that harnesses the abilities of multiple beings for the individual’s own particular interest, the individual’s survival, and this is accomplished without ever subjugating any other

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being—since an individual is gaining exactly the same advantage as any other individual. The political body is born in this mutually cognitive commitment to use the individual’s force in concert with others. The “act of association,” as Rousseau calls it, instantaneously produces something novel—“a moral and collective body” composed of the members making it up. The body “receives from this same act its unity, its common self [moi], its life and its will” (361/50). The unity of this body is essentially virtual. It exists only as a psychological awareness of a new permanent relationship. The body, as imagined, has only two basic principles: one, to protect with the total force of the body the many individuals composing it, and two, to defend the unity of the body itself, the unity of the association, since that unity is the only thing that separates the individuals from the radical threat to their existence that looms over them in a state of nature. However, we have to acknowledge that this “whole” is not anything tangible at this stage of the argument. We are part of a unity with no actual content, because for Rousseau, there is absolutely no extant community to be politicized in the moment of existential threat. The whole development of the text of the Social Contract is the effort to translate that structural possibility into real activity.

Sovereignty and Sensibility: The Political Soul and the Body Politic If the state is a kind of “moral person” who owes its very life to the union of its members and whose “most important duties” are to its own self-preservation, then this entity must “have some universal and coercive force to move and arrange each part in the manner most conformable to the whole” (372/61). This new unity, understood as a possibility of real action, is what Rousseau calls the “sovereign.” The term is appropriate, for Rousseau tells us that this body politic cannot “impose on itself a law which it cannot break” (362/52). The general will that animates sovereignty in this political body has only one principle— the survival of the association and of the members that make it up. That principle is purely abstract in the sense that it demands no specific determination of what would be the right act in any one moment. Under the obligation to preserve itself, the body politic is never obligated to do anything in particular to fulfill that primary objective. “The Sovereign, by the mere fact that it is, is always everything it ought to be” (363/52). The sovereign is therefore not above the law or an exception to the law but rather that which comes before all law—

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the ability of a unified body to respond to that pure, generalized threat of nonexistence. But what exactly is this power? Rousseau has set up the will of the body politic as general in relation to all the individuals in the state but also as structurally general. The general will is a body acting to “preserve itself.” Because it emerges not from a particular threat to a preexisting social identity, not only is the general will not predetermined in operation, it has no possible path to determination. In the early version of the Social Contract, Rousseau suggestively points out that if there was in fact some natural “general society” among men, some unified body that acted as a genuine coordinated whole, then there would have to be “a kind of common sensorium which connects all of the parts [une sorte de sensorium commun qui serviroit à la correspondance de toutes les parties].” Human beings would then possess a “universal language” from birth, which would allow for perfect communication. This general society would more than merely coexist: “It would be . . . a moral being with qualities separate and distinct from those of the particular beings constituting it, somewhat like chemical compounds which have properties that do not belong to any of the elements composing them.”21 The “public good or ill” of this entity would not be a “simple aggregation” of individual conditions, “but would lie in the liaison uniting” these constituent parts—“it would be much greater than this sum.” As it stands, any concept like “humanity” ( genre humain) can only be what Rousseau calls a “purely collective idea,” with no supposition of a “real union between individuals.”22 Clearly, the artificial political body must incorporate these features of a genuine collective entity if it is ever going to survive. The difficult and seemingly magical transformation of independent, isolated individuals into a new unitary political whole must be understood as analogous to a chemical process. In this process, individual elements combine to produce something with a wholly new set of characteristics and capacities. This chemical allusion was no idle metaphor of Rousseau’s. He was deeply interested in eighteenth-century developments in this field, having attended, in the 1740s, along with many other leading intellectuals of the period, Guillaume-François Rouelle’s influential lectures at the Jardin des Plantes. Rousseau—introduced to the subject by Françoise-Louise de Warens, who was interested in alchemy and medicinal preparations—took extensive notes on Rouelle’s lectures and prepared his own treatise on the topic.23 In chemistry, Rousseau found a naturalistic example of

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something appearing sui generis from the interaction of autonomous parts. The social contract forms when, “at once, in place of the private person of each contracting party, this act of association produces a moral and collective body” with a new quality—namely, “its unity, its common self, its life and its will” (361/50). This compact mimics the mysterious transformation of matter into organized complexes with structures that literally enforce their own level of order. These living orders were defined by self-awareness. As Rousseau noted in Émile, the material universe “has nothing in it of the union, the organization, or the sentiment common to the parts of an animate body, since it is certain that we do not sense ourselves as parts of a sentient whole.”24 The key demonstration for the appearance of a genuine political being, then, would be the sentiment of this connection that follows the social pact. These key passages from the Geneva manuscript version of the text give us a critically important clue for understanding what is at stake in the Social Contract. The project is nothing less than a forging of a real political body to instantiate the purely virtual (though absolutely genuine) sentiment of unity produced in the moment of association. The key task is the formation of a network of “communication and control” that allows the individual parts to be consistently ordered within a genuinely collective organism. Unlike the bodies and systems found in nature, with their self-organizing capacities, the political body is artificial, without any means to order itself. Here we must zero in on one particular image Rousseau deploys in the first version of the text—that of the sensorium commune. With this allusion, Rousseau suggests that the main goal of the Social Contract is the conceptualization and construction of an artificial nervous system. The political community is understood to hover between the natural bodies that possess life, organization, and a unitary will and the mechanical world of lifeless matter. The formation of a new political body requires a system of communication that produces from within the kind of common sensibility characteristic of animate bodies. Before we dismiss this ideal of integration as a mere “synesthetic illusion,”25 we need to recognize that Rousseau was drawing on complex physiological notions. Rousseau’s use of the rather venerable metaphor of the body politic must be interpreted within the specific neurophysiological discourses of Enlightenment Europe. The idea of a sixth sense that would act as a sensus communis dates back to Aristotle and was prominent in medieval thought. According to this tradition, we have an ability to compare and integrate individual sensations coming from our bodies, producing a unified sense of both

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ourselves and the external world that we sense.26 This inner intuitive sense is located ambiguously within the body—it was first believed by some to be in the heart and later by others in the brain. However, the idea of the sensus communis attained new life in the context of the mechanistic physiologies opened up by the scientific revolution. In thinkers like René Descartes, most notably, this corporeal ability to unify and synthesize a plurality of sensory information was conceptualized in terms of a complex process performed in the nervous system. The integrative function was now located in an actual sensorium—the space of the pineal gland where encoded information is brought together and then redistributed throughout the body. The pineal gland was also notoriously considered the place where the soul interacts with the body. What is important to recognize is that the gland itself was thought to effect an integration of bodily experience, which was then presented to the soul. And the soul could direct the body only through this special site of unification. The soul was seen to interrupt and divert the flow of information at precisely the point where the brain’s image of the whole body could effect new actions via messaging conducted through the nerves. The sensorium commune was thought to be the seat of the soul (understood as the indivisible unity of will) because a kind of artificial—or better, virtual—unity was already formed within that organ.27 During the eighteenth century, the sensorium commune (which had been relocated to various other locations in the brain after Descartes) was reconceptualized.28 New generations of physiologists were interested in how the body produced that unity and organization through internal sympathies and nervous communication. Crucially, the unity of the body was not located in one specific site but was instead understood to be distributed throughout the whole organism. Indeed, even for Descartes, “the activity of the soul is not restricted to its point of junction with the brain, but it rather affects the whole brain and even the whole body.”29 The nervous system and particularly the brain and its sensorium commune were thought to be the spaces of this internal communication through which a whole new “state of being” beyond individual sensations could be produced.30 The sensorium commune could still be located as the “seat” of the soul; however, this seat was no longer a precisely identifiable locale. In the work of figures such as Herman Boerhaave, Robert Whytt, and Julien Offray de La Mettrie, the soul was identified with the body as a unity and located in the brain only because that was where the unity was articulated. To be sure, this unitary soul was still an important concept. As Georges-Louis Leclerc, count de Buffon, for example, would explain, the unitary vision of the

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whole body is what allowed that entity to survive in nature. The sensorium was “where the animal’s ‘present condition’ is sensed in a certain manner so that the useful movement, and it alone, will be activated.”31 The point to be underlined is that the sensorium commune was the anatomical space of integration that made possible both the unitary sensory experience of self and world and a unitary will that would direct that body in appropriate ways. The mind-body problem was bracketed in favor of focused anatomical research on the nervous system. This research was directed at uncovering the ways in which the nervous system could take multiple inputs from the sensory organs and produce a single vision that, in turn, would be distributed to those individual parts of the body.32 There was a blurring of the metaphysical and the neurophysiological such that contested notions of the soul could be displaced into the body, its functions taken over by materialized processes.33 This was not a materialization of the soul because matter in this eighteenth-century context was itself infused with various forces that could explain attraction, sensibility, irritation, and the like.34 Returning to the political “body,” we can see that Rousseau’s reference to the sensorium commune was highly significant and not just an opportunistic metaphor.35 Much of the confusion over Rousseau’s use of organicist alongside mechanistic language is due to a misunderstanding of the complex links between these discourses in mid-eighteenth-century physiological thinking.36 At any rate, it is clear that Rousseau was looking for a way of organizing the political body that would mimic the activity of the sensible nervous system. The ability to coerce and unify the members of political society would not be imagined as a higher-level sovereign force that would make this artificial beast move and act. That was Hobbes’s vision. Rousseau believed that the essence of political unity was this moral (psychological) sentiment of one’s own existence. It was the force of the mind that unified one’s plural sensible existence37 and the same structure that made that integration possible (namely, the nervous system) also communicated that unity to the individual parts of the body through networks of sympathy. The forging of a synthetic whole required the individual sensory inputs—an overall view was a generalization of the many views constantly in play within the animate body. The goal of the political body was to acquire such an instrument of generalization, an artificial sensorium commune. Again, these integrative functions were not easily specifiable in eighteenthcentury neurophysiology. As Rousseau himself remarks in Émile, the sixth sense that is the sensus communis does not have its own specific organ like the

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other senses. Drawing on contemporary neurophysiological theories of the nervous system (he cites Boerhaave at one point, for example38), Rousseau declares that this sensorium “resides only in the brain.” This internal sense is purely virtual in that it consists only of the integration, or “conjunction,” of all the separate senses. But only in that virtual synthesis is true knowledge of reality gained. The addition or aggregation of individual sensations will never show the unified perspective of the world that is revealed by the synthetic powers of the nervous system.39 In his marginal comments on Claude-Adrien Helvétius’s work on the human mind, Rousseau stresses the importance of distinguishing “purely organic and local impressions from the universal impressions that affect the whole body.”40 In a much later work, the dialogue Rousseau, juge de JeanJacques, the ephemeral quality of this spatialization is even more pronounced. Rousseau critically dismisses David Hartley’s theory that there is no unitary soul, a claim that was grounded exclusively on the fact that this “philosophersurgeon” could not find it anywhere among all the nerves. As Rousseau points out, sensibility is a relationship that will not be found by comparing “pairs of nerves” because it lies in the “attractive” forces that link the body into a unity. The nervous system is therefore a means of communication and not a physically stable site of unity.41 Analogically, then, the political body will not merely have a singular organ of the general will to direct the community. Rather, the general will must be produced in a process of organization that begins with the actual experiences making up the political body. The resulting unity will be a new idea, to be sure, one with properties separate and distinct (like a chemical compound) from what produced it. The political brain’s sensus communis would be the site for an act that would produce (and not merely represent) a unified vision of the body.42 Crucially, only with that virtual production would it ever be possible for the body to “see” what steps might be necessary to preserve that unity in its encounter with an environment. A comment by La Mettrie might be useful: “The soul acts on the body and is doubtless determined by its own specific activity, yet I do not know if it is ever active before having been passive. For it seems that, to act, the soul needs to receive the impressions of the spirits modified by the bodily faculties.”43 Rousseau confirms this in some suggestive passages on disembodied souls in Julie. He writes that a soul released from the body at death would not be able to affect our living souls because a soul “cannot perceive anything except through mediation of its organs,” adding that the

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d­ isembodied soul could not even “alert us to its presence” because it has no line of communication—it has no “point of purchase [ point de prise] for stimulating the organs of our brain.”44 We can now understand what is so unusual about the animated political body. As an artificial construct, it begins with the acute awareness of unity but only as a pure structural condition. At the same time, it has absolutely no concrete experiences or any means of coordination that would make possible a unified vision and a unified will to effect that vision. Indeed, in the moment of contract, there is no connection between the structural condition of unity and the concreteness of the parts making up that body. The body is much like the one imagined in Émile, in which Rousseau conjectures a fully grown physical human body born as if an infant—just like Pallas Athena, springing fully formed from the brain of Jupiter. This being would lack any perception of relations or connections. It would be unable to form judgments; it would be “a perfect imbecile, an automaton, an immobile and almost insensible statue.” Nonetheless, Rousseau remarks, “all his sensations would come together in a single point; he would exist only in the common sensorium [commun sensorium]; he would have only a single idea, that is, of the I to which he would relate all his sensations.”45 Again, the unity of the being is not in the substantial content of the experience but in its synthetic capacity of integration, a ­radical capacity that precedes any experience, any relationship being established within that integrated space. As Rousseau goes on to explain, this infant being would have to learn how to navigate its world. It would discover and make connections and realize its potential for reason—just as the humans in nature develop in part 2 of the Second Discourse. In the Social Contract, we have seen a political society born, like Rousseau’s infant man, with a minimal consciousness of unity and no innate knowledge or instinctual capacity for action. However, unlike the human machine, the political body also lacks an established network of nerves, centralized brain, and sensorium commune that would allow communication and coordination or learning and intervention, even to begin. Rousseau’s task, therefore, is first to imagine the construction of such an artificial nervous system—and only then to think about how a political body so constructed would learn to use that capacity to interact with its own world. For Rousseau, the first step in the construction of the artificial nervous system must be the elaboration of what he calls “law.”

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The Lawgiver: Design for a Political Brain Rousseau’s purified logic of the political indicates, “So long as several men united consider themselves a single body, they have but a single will, which is concerned with their common preservation, and the general welfare” (437/121). If the social pact gave existence and life to the body politic, then law is needed to give it “motion” and “will.” Life is the structural unity exemplified by the common moi of self-identity. Movement requires that some kind of communication take place between that unity and the parts that make up the body. “For the primordial act [acte primitif   ] by which this body forms and unifies itself still leaves entirely undetermined what it must do to preserve itself ” (378/66). Just like the automaton in Émile, the political body can perhaps feel the discomfort of its needs but has no way of providing for them.46 The nervous system is what translates the general existential imperative into real-time actions in a specific environment. At a foundational level, Rousseau understands law to be the way that the existing body is organized from the point of view of its unity. As he explains, in the Discourse on Political Economy: The body politic, taken on its own [individuellement], can be looked upon as an organized body, alive, and similar to a man’s. The sovereign power represents the head; the laws and customs [coûtumes] are the brain, [which is] the origin [principe] of the nerves and the seat of the understanding, of the will and of the senses, of which the judges and magistrates are the organs.47

If sovereignty establishes the very possibility of unity, the brain is the space where this unity achieves concrete form as communication, will, and decision, which are all mediated by the various organs of the bodily system. The foundational law functions as the brain: it constructs an organ within the body politic, one that will be capable of producing a unified perspective of the whole and capable of deciding how that entity will be engaged with its surroundings. Law is not the genuine soul of the body but its corporeal space of appearance, the “salutary organ” of the body’s will, as Rousseau puts it in the early version of the Social Contract. “Laws are the unique motive principle [mobile] of the body politic; it is only active and sensible through them. Without the laws, the State forms only a body without a soul; it exists but cannot act.”48 The challenge of the body politic is that the system must, in a way, selforganize if it is to construct its own unitary institutions. Of course, this is in

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fact impossible, as Rousseau admits. As Paul de Man has argued, only a “subterfuge”49 can get this process going, and many commentators have dwelled on the impossibility of this originary moment in which cause and effect are seemingly reversed. Where can this body, this “blind and mute monster,”50 ever express itself before these organs even exist (380/68)? The figure of the legislator is a necessarily external principle of order that organizes the newborn body so that it can begin to act as a coherent living being. Yet we might better understand the legislator as the figure who, in effect, brings into the body a self-organizing capacity that it lacks, rather than bestowing on it a precise constitutional order. The constitutional laws given to a new state are meant to bring about a process for the integration of parts and whole. First, they provide a space for the general will to be articulated and deployed. Second, they continually train the new citizens to become more and more identified with the unity that incorporates them. The “highest pitch of perfection” for this artificial body would be to mimic the natural body: a perfect integration of parts and whole (382/69). Rousseau’s point is that any institutional order that effects such integration can be understood as a legacy of some foundational principle of self-organization, without attributing any sacred character to its specific ordering principles. Drawing again on eighteenth-century physiological concepts, Rousseau has in mind the idea that the unity of the body is distributed, via the specialized functions of the body, throughout the communicative network of nerves. The general will is the virtual generalization of individuality and the sense of participation in that unity. For this reason, sovereignty is for Rousseau always popular sovereignty: it is not possessed by some specific organ; it is not even some vaguely locatable Cartesian sovereign intellect. Rather, it is a highly distributed sensibility that runs through the whole body. The miracle of the birth of the body politic was the emergence of the consciousness of unity before any substantialization of that unity. The lawgiver intervenes to construct a brain for the articulation of this unity—the general will. The incredible complications of this process of generalization have puzzled commentators for generations, in part because Rousseau’s explanations are so cryptic.51 The least we can say is that the process requires complete and total participation as it does in the animate body, for true unity must be a synthesis of all concrete positions. If the body is healthy, harm to the least part of the organism will be felt as a “painful impression” that is “conveyed to the brain.”52 As Rousseau suggests: “What happens if this communication ceases, if the

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formal unity vanishes, and the contiguous parts no longer belong together except by their juxtaposition? The man is dead, or the state is dissolved.”53 Once this will is formed, there is still a need for a nervous system that will be able to deploy that will, animating the body so as to preserve its well-being. The last phase of construction concerns what Rousseau calls “government.” It is the name for all the various “organs” in the body—its active functioning members—that effect communication and movement between the moi, or soul, whose seat is in the brain. Again, in eighteenth-century physiology, the soul is not so much a physical presence in one locus of the corporal body as it is an active process in the brain and nervous system. This is precisely because those organic loci are spaces of synthesis that integrate and communicate disparate information. With this in mind, we can begin to see how, for Rousseau, the sovereign general will needs an agent of its own within the body politic. Employing neuroanatomical metaphors once again, Rousseau notes that a “paralytic” possessed with a strong will cannot move its body any more easily than an agile body can move itself if it has absolutely no will to direct it. If the brain functions as the executive power, giving “movement to all the parts,” it is true that “the brain may become paralyzed and the individual still live” (424/109). If bodies do sometimes operate with a degree of automatic reflexivity (a key area of research in eighteenth-century physiology), at some point, the soul as the integral vision of unity will need to direct the body. However, this soul will require an intermediary that can effect motion between them. This agent, or “minister,” is what “unites [réunisse] and puts into accordance” the general will’s directives and the instruments to effect them. Government in the body politic “serves as a means of communication between the State and the Sovereign” and therefore explicitly functions analogically as the “union of the soul and body does in man” (396/82). As Rousseau noted in the early version of the Social Contract: “As in the constitution of man the action of the soul on the body is the abyss [abîme] of philosophy, so the action of the general will on the public force is the abyss [abîme] of politics in the constitution of the State.”54 This passage has literal meaning—the abîme is of course an actual space, a cave, but it is a cave with unfathomable depths, a space with no determined boundaries. It is at once somewhere in the body but nowhere precisely locatable. Rousseau offers little advice on solving the mystery of how these relationships can be established. However, just as neurologists bracketed the mind-body problem in favor of research into how sensibility was in fact distributed in the body, Rousseau focuses on how institutional structures would

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do this kind of work. “What, then, is Government? An intermediate body established between subjects and Sovereign so that they might conform to one another [  pour leur mutuelle correspondence]” (396/83). There is no such thing as a single form of good government because every artificial political body is unique and must be adapted (as Montesquieu already demonstrated) to the specific demands of its environment and of its peculiar internal constitution. However, Rousseau does say that we can judge whether we have a good government. The point of the political association, he reminds us, is the “preservation and prosperity” of the members. The existence of the political body is predicated on the appearance of a genuine sovereignty, that foundational structural unity that defines the nature of the body as an organized whole. But the day-to-day life of the being depends on the deployment of specific laws (the precise forms that the unity will take in given circumstances) and the decisions that maintain the integrity of this established whole along with the parts. Political legitimacy can now be defined by the proper operation of a synthetic institution acting solely to maintain and defend an organized body of individuals. The logic of the political lies in this process of communication and control. Sovereignty is the name for this structural unity, a unity that can never be isolated and then abstracted. This is why sovereignty cannot be possessed or even represented. It can only be performed as a totalizing process that begins with individual wills and ends with unitary action.

Exceptional Interventions As Rousseau demonstrates, the political body requires the construction of foundational laws to establish what I call an artificial nervous system, to provide a seat for the operations of sovereign will. The sovereign unity, once it finds its voice, can then produce commands (legal proclamations) that will organize the body’s activities for the purpose of survival. It might seem, then, that law (whether constitutional or statutory) is to a certain extent dependent on the political—it comes only after the pure foundation of unity. Yet as we have seen, the articulation of that unity requires a foundational legal constitution before it could ever act. Important in this structure is the fact that the legal organization works as a political “brain” yet the physical features of that substance can never guarantee appropriate action in the moment of decision and crisis. The brain must actively compare, relate, judge. The nervous system makes possible

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this work but does not itself provide the foundation for those synthetic activities. The body is therefore constantly reorganizing itself through its nervous system in order to maintain itself—that is why Rousseau says that the life of the body lies in the legislative power. If the constitutional laws construct the nervous system, the promulgations of law are like waves of commands that direct the body in its specific environment. This is to say that there is nothing obligatory about the individual laws produced by the sovereign authority. “Yesterday’s law does not obligate today” (424/109). Every moment, the unity of the body must decide for itself what constitutes the best path to survival. The lack of any interference with the laws only signals tacit approval and not the sanctity of any particular law. Rousseau is acutely aware of the problem of emergency, crisis, and disorder, but these are not, for him, paradigms of sovereign action. They are what we might call political pathologies. In this kind of crisis, Rousseau believes that the proper functioning of the body depends on exceptional (almost medical) interventions. Since no complex organized body can ever have an unproblematic single organ of expression, when the system of communication and control breaks down, some kind of intervention becomes necessary. For Rousseau, crisis is understood quite precisely as the disruption of the operation of the system as a whole and not the failure of individual functions that could be taken over by some higher sovereign authority within the body itself. The health of the system can be restored only if the balance between organs, nervous system, and “soul” is restored. Therefore, the political and legal dimensions of the constitution of the body are not separated in extreme emergencies. Rather, the logic of the political appears in a new space altogether, or better, in a displaced form. This is why Rousseau introduces into the constitution of the body politic curious institutional figures that are not exactly inside the constitutional order, even as they defend it. In his chapter on the Roman tribunate, for example, Rousseau explains that often the political body will sometimes find itself threatened by imbalances. Either the “proportion” between the constitutive parts cannot be firmly established or other “forces” are constantly upsetting the balance. In this condition, the body requires a novel form of magistracy, one that is “not incorporated” exactly with the others. Yet precisely because of its external position, it can restore the true relations between incorporated entities. This kind of magistrate is a “liaison,” or an intermediary, one who operates among the sovereign unity, the government, and the people and does not represent some active force. Specifically, says Rousseau, “This body, which I

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shall call the Tribunate, is the preserver of the laws and of the legislative power” (454/136). While “the Tribunate is not a constitutive part of the City,” it can intervene either to protect the sovereign against the government or to save the government from the people. It does this with a purely negative power—the power of veto. The tribune can do nothing, but prevent everything, Rousseau says. Invoking something analogous to Montesquieu’s legal principle of balance, Rousseau’s tribune foresees the dangerous path and works to close it off. He defends the laws by opposing any effort that would violate the boundaries of constitutional order. The tribune has no real constitutional authority (this is not a judicial institution), but it is, according to Roman tradition, a sacrosanct position, whose authority therefore comes from beyond the legal system itself. The important point is that the tribune does not draw its power or authority from the unitary will of the sovereign. Instead, the tribune must be understood as the defender of order within the body; he is, so to speak, a kind of internal homeostatic device that can maintain equilibrium in the absence of any definitive bulwark protecting the organismic relations of the political body.55 Because the political body, along with its nervous system and various organs, is entirely artificial, Rousseau posits the need for some entity that works to maintain the artifice. And for that entity to function properly, it can never itself be tied to one of the artificial powers within the state. Of course, in times of extreme crisis, of genuine emergency, Rousseau ad­­ mits that the principle of balance may not be adequate to the challenge facing the political body. As Rousseau explains, the “orderliness” and precision of for­ mal procedures require a “space of time [espace de tems]” that is not always possible in an emergency. “A thousand cases can arise for which the Lawgiver did not provide, and it is a very necessary foresight that one cannot foresee everything” (455/138). The body faces complete dissolution in these moments of disorder, of violence, war, and other existential crises. For these situations, a dictator may be necessary. If it is true that, as Rousseau puts it, “only the greatest dangers can counterbalance the danger of disturbing the public order, and one should never suspend the sacred power of the laws except when the salvation of the Fatherland is at stake” (455–56/138), it is also the case that any “free state in which great crises have not been anticipated is in danger of perishing with every storm,” as he advised the Poles.56 Rousseau emphasizes that these situations will be rare, but they will be clearly evident (“rares et manifestes”) (456/138). Yet what exactly is the power of dictatorship? For Rousseau, the figure of the dictator does not at all represent a purified sovereignty, shorn of its legal

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or institutional formalizations. Again, we must emphasize that in Rousseau’s conception, the sovereign by definition requires a complex interaction with its body, facilitated by the intermediary neurological structures we have traced. The sovereign speaks only through the general will. It is not possible that this power can bypass that complex system, even in crisis—especially in crisis. Still, we can say that in such extreme crisis, the general will demands any action that maintains the body’s existence. This is in fact a logical demand that governs the very constitution of the political body: “In such a case the general will is not in doubt, it is obvious that the people’s foremost intention is that the State not perish” (456/138). So it is entirely legitimate that a dictator silence the laws and simply use the public force in any way he imagines necessary to weather the storm that threatens the body. But the dictator is not simply the executive, suddenly making decisions beyond the law. The executive in the brain works only at the site of intersection between the sovereign soul and the orders of bodily organizations. The dictator is an external figure. Unlike the tribune, the dictator enters the body only to save it. He operates only for a limited time and only then to protect the physical integrity of the body. He introduces nothing new, nothing permanent—“he can make anything, except laws” (456/139). This is another way of saying, he can transform the system in any way possible in the moment, but the system must be restored as if the transformation never happened. If the tribune preserves the constitutional order by preventing internal imbalance, the dictator reorganizes the body in a desperate attempt to maintain life, which resides in the unity of the whole. But after this effort, constitutional order must be restored. During the crisis, the artificial political body becomes a kind of puppet, directed by the dictator. Yet this figure could never substitute for the organic unity characteristic of integrated communities. Individuals would be reduced to being mere instruments of a higher will and their natural rights thereby destroyed. In his later Considerations on the Government of Poland, Rousseau confirms that emergency institutions must be understood as external to the constitutional order. He describes a kind of hybrid institution that brought together the features of both the tribunate and the dictator. The Polish confederations (emergency government consisting of noble committees and an executive martial authority) were for Rousseau a necessary interruption of normal governmental operation in moments of real crisis. “Confederation is, without question, a violent state in the Republic; but there are extreme evils which render violent remedies necessary, and which one must try to cure at any price.”

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Like the dictator, the confederations work to “silence the laws in times of pressing peril.” However, unlike that Roman institution, which ultimately killed the republic, as Rousseau remarks, the confederations were not outside the law but instead dedicated to “consolidating and restoring a constitution under great strain.” In other words, the confederations were directly aimed at tightening and reinforcing the “slackened spring of the State” without actually breaking it, whereas the dictator operated in a new zone entirely absent of law, which opened up the danger of leaving law aside altogether.57 In any case, what Rousseau was interested in in these emergency institutions was their capacity to represent the ideal of order, a principle that was external to the historically concrete body politic yet that could intervene inside the body because it was not an altogether foreign entity. Rousseau persistently refuses to answer the Schmittian question of who decides on the exceptional conditions that require these suspensions, these silencings of law, even the constitutional law of the state. Rousseau’s argument is that the protection of the integrity of the body, which will necessarily be a more frequent occurrence in the early years of any artificial body learning to function and learning to deal with its environment, is logically and practically distinct from the hierarchy of functions internal to that bodily organization. Violation of the law can only be justified in the extreme case of a real threat to the existence of the state. It cannot be justified for a mere challenging circumstance that would constitute a difficult decision of what law to declare and how to apply it in the situation. Of course, Rousseau points out, we must have trustworthy dictators, if the state is to be returned to health and not simply dissolved in a conquest. However, we can say that the legitimacy of dictatorship of any kind (including the executive form outlined by Locke) flows only from the extremity of the challenge. It is decidedly not an opportunity to refound the state. The foundation of the political community rests on the radical decision to unite in a condition of the generalized threat to one’s existence. Only then can the political body itself begin to act in historical time for the preservation of the association and its members. The emergency, for Rousseau, is only a specific threat that must be met in a finite fashion. It is a threat that might require outside intervention, but it cannot (by definition) be a permanent condition grounding the structure of the body’s order and activity. While Rousseau can offer no solution to the problem of the dictator, he provides a clear criterion for his appearance—the real possibility of total political dissolution.

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Rousseau articulates the logic of a pure concept of the political in these final chapters on exceptional interventions. The general will is always what it is—the will of the political community to preserve itself and its members. The construction and preservation of the body’s nervous system and organ system is the only way that such a political community will ever be able to realize itself in historical time. The general will is a logic of unity that must be concretized— literally, in a series of constitutional spaces, and figuratively, in a train of decisions. The point is that the legal order of the constitution and the laws generated within that structure are measured by their foundational principle, which is a pure political unity. The extreme case of the dictator is in no way the paradigmatic exemplification of political unity because that unity is grounded in a bodily organization defined by stability and harmonious interaction. Yes, the dictator reveals in stark form the purity of the logic of the general will—the basic survival of the unity and its constituent members, even when that will is paralyzed. Yet the appearance of the dictator only raises again the question of the political for the community—the question of how to construct a body that produces and maintains its own unity as a self-enclosed system.

POLITICAL BODIES AT WAR The political arises as a condition of pure threat, not as a specific challenge to a preexisting community. There is no society to defend, just individuals and their equality and liberty. The existential logic of the political is not, therefore, a logic of warfare. However, once political bodies are established, the general will seeks to defend the unity and integrity of these bodies. Inevitably, the existential demands of the political will clash with other similarly constituted bodies. Obviously, this situation requires analysis if we are to understand the relationship between violence and political sovereignty as Rousseau develops it. Rousseau ends the Social Contract with an apology. If, after having discovered the “true principles” of political right and the genuine origin of the state, “it would remain to support it through its external relations” (470/152), relations that would include the “right of war and conquest,” among others, Rousseau admits he is not up to the task. “All this forms a new object too vast for my short sight,” he tells us. And yet, the question of war figures prominently in the opening to the Social Contract, and Rousseau does in fact sketch out the theoretical foundations of interstate relations in published writings and manuscript drafts.58

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As Rousseau lamented in his manuscript work “State of War,” the emergence of civil associations, those instruments of peace, has made possible the most frightful violence. With the spectacle of the Seven Years’ War no doubt in mind—and events such as the Battle of Prague (1757) where thousands of lives were lost in one day—Rousseau writes: “I see a scene of murders, ten thousand men slaughtered, the dead piled up in heaps, the dying trampled underfoot by horses, everywhere the image of death and dying.” He challenges the philosopher: “Read us your book on a battlefield!”59 Which is what we must do with Rousseau. How does the pure concept of the political that he discovered in the Social Contract relate to the brutal conditions of European (and global) warfare in the late eighteenth century? Would the legitimate state fuel military conflict, give it a legal form, or perhaps do away with it altogether in a new eternal peace? Rousseau believed that the appearance of the state is what made warfare possible in the first place. In “State of War” and elsewhere, he argues that human beings had no natural enmity, otherwise deadly violence would be the norm of our condition, even our civil condition. “The dreadful hatred of humanity would gnaw at man’s heart. The birth of his own children would distress him; he would rejoice at the death of his brothers; and upon finding someone asleep, his first movement would be to kill him” (611/164). While one human may well have a reason to hurt or even kill another, the contingency of that motivation is what is important for Rousseau. Whatever violence arises between human beings is always instrumental, never an end in itself. “There is, then, no general war between man and man; and the human species was not formed solely to destroy itself ” (602/166). So as Rousseau notes in the early part of the Social Contract, the reason why there is no war between individual men is because “the relation among them is not sufficiently stable to constitute either a state of peace or a state of war” (356–57/46). Only with an artificially stable set of affairs can there be a stable condition of enmity. “War is a permanent state which presupposes lasting relations, and such relations rarely obtain between man and man, where everything between one individual and another is in continual flux which constantly changes relations and interests” (602/166). Paradoxically, it is the legal institution of the civil state, which stabilizes the perpetual but contingent conflicts raised by property ownership and economic networks, that creates the possibility of a stable enmity with other like states. War is a “relation between things and not between men” (357/46), as Rousseau puts it in the Social Contract, implying that only artificial bodies like the state

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could ever enter into war. Like Pallas Athena, the political body is born not only fully grown but also fully armed. So with the emergence of the political, “we enter a new order of things,” Rousseau tells us. “We shall see men united by artificial concord, assemble to slaughter one another, and all the horrors of war arise from the efforts made to prevent them” (603/167). If it is true that “we have prevented private wars,” this is “only so as to set off public wars, which are a thousand times worse.”60 Yet why should a state find itself at war with another state? If the global terrain of states is indeed a new state of nature, then why are the conflicts between states not analogous to those that arise between individuals in the state of nature? That is, why is violence permanent and potentially annihilatory and not merely contingent and manageable? The key insight of Rousseau is that there is a fundamental disanalogy between individuals and states. The political body has no natural limits, whereas the human body clearly does. The state’s very being is essentially relative. In other words, the state’s identity is intertwined with the identities of other states. The political body has “no determinate measure.” This means it can literally expand and contract, and its own existence is measured through a comparison with other bodies (605/169). The state can therefore feel strong (or weak) solely with respect to neighboring states that may or may not threaten it. As Rousseau explains, the state “depends on everything around it, and has to take an interest in everything happening around it” because however independent it might wish to be, its own “nature” shifts with the changing conditions of its counterparts. Rousseau describes the global state of nature as a strange inversion of the human condition. The human being enters into this world of relational identity but only after becoming entangled in networks of dependence established by the division of labor. States, by contrast, are largely self-sufficient in a physical sense, but as “moral” beings, they are perpetually anxiety ridden, constantly comparing themselves to others and never assured of their own security. This is why, for states (unlike for individual humans), the very existence of another state can constitute a permanent threat. War is inevitable, Rousseau implies, because the state can never stabilize its relationship with another state because all states are inherently relative. The permanence of the condition that grounds the possibility of war lies in the impossibility of ever stabilizing a relation that is by definition ever changing. Still, it would seem that the state as a moral being, concerned with its selfpreservation, would prefer the condition of peace to that of war. And of course,

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this is in fact the case. The state will “reason,” Rousseau says, in such a way as to protect its position in relation to other states. However, this will never be anything more than a series of decisions about the status of friends and enemies—as he says, to decide by arms or through “fleeting treaties” (traités passa­ gers).61 Peace is not really the opposite of war, for Rousseau, because the state of war includes periods of mere potential hostility. These periods of nonviolence can be “more dangerous than war itself ” as they may signal the preparation for encounters of a more horrific nature (1903/174). Rousseau’s point is that we can hardly attach concepts of justice or right to these contingent relations. While a certain order may well emerge from these complex interrelations, it will be less a coherent and stable order capable of directly maintaining itself and more an “equilibrium” in a constant state of violent “agitation.” It is the kind of system Europe as a whole exemplified.62 A true order, between states as between individuals, requires “a coercive force to organize and coordinate [ordonne et concerte] the movements of its members so that the common interests and reciprocal ties are given the solidity they would not be able to have by themselves.”63 This is the key question then: why cannot states recognize the common predicament threatening them—permanent warfare—and forge something analogous to the social contract, allowing the construction of a globalized legal nervous system that would provide this faculty of organization? Rousseau took this question extremely seriously. His patient summary of the project for perpetual peace that was imagined by the Abbé Saint-Pierre is clear evidence for this. Indeed, many commentators have assumed that this project was Rousseau’s own, so convincing is the demonstration. Without detailing the project, we can see that its essence lies in the formation of a multistate unity and the creation of a set of institutions that would direct and manage that unity for the benefit of the whole association as well as for each member of the confederation of states. Rousseau does not deny the rationality of such a proposal. It is in the self-interest of each state and would be durable. Yet he is forced to point out Saint-Pierre’s naiveté: He innocently imagined that it was only necessary to assemble a committee, propose his articles to them, have everyone sign them, and that would be all. Let us agree that with all the projects of this good man, he saw quite well the effect of things after they would be established, but he judged like a child the methods for establishing them.64

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As Rousseau points out, the only way such a union would ever occur would be with great coercive violence, as one single monarch might try to create a unitary league of peace, as King Henry IV did generations earlier in Europe. Yet we might ask why this impossible origin is any different from the parallel paradox that necessitated the entrance of the lawgiver in the Social Contract? In other words, could we not imagine an interstate social pact that would create a new body, with a functioning nervous system, that would at least provide a theoretical foundation for a critique of prevailing interstate relations (in peace and war conditions)? Rousseau himself seems to suggest this in the Discourse on Political Economy, saying that the general will is general only for the members of the body politic. To others, it becomes just another individual and particular will. He goes on to suggest that “the great city of the world becomes the body politic of which the law of nature is always the general will, and of which the various states and peoples are merely individual members.”65 Our reading of the original foundational pact in the Social Contract will help explain why Rousseau ultimately refuses even to begin the project of international right along these lines. As we have seen, the original pact is a purely political origin that bypasses all relations among individuals. The original pact was grounded in a radical natural equality, a shared natural independence, that made possible the formation of a common moi. This formation would come out of the constellation of shared interests in a situation of common existential threat. The logic of the political (and with it the possibility of a seamless integration of force and law) is forever foreclosed in the state of nature made up of states. There is no condition of natural equality, no logical ground for a political body, and no substantial ground for a logic of legal protection, precisely because the state is at its core an artificial entity with no stable identity. Even in a situation of deadly peril, independent states cannot recognize their common predicament and thereby create a new association, a super-political body analogous to their own artificial bodies, because they are by their artificial natures never equal to even themselves. The leap that constitutes the social contract cannot be made by a state, however powerful—or necessary—the desire to avoid the constant threat of war. However, Rousseau does not end with this rather pessimistic assessment of the state at war. If there is no possibility of an interstate theory of political right that would render war illegitimate, there is a way to locate a critical perspective on the violence of war. The logic of war, and its inevitability, flow from the artifice of the political body, its generic structure, and not its identity and

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contingent interests and desires. War, as a permanent condition, relates these bodies as “moral” beings in the sense that war is defined by the unitary structure of the body as a whole. According to Rousseau, war is about the life and death of these artificial bodies and not at all about the violent slaughter of the real people who constitute them, or for that matter, about the devastation of a territory. Of course, one can kill or injure a state—as with any living body—by seriously injuring the parts that make up the body politic and that sustain its activity and life. Without exactly condemning these actions, Rousseau implies that if the definition of war is the “manifest will to destroy” one’s enemies, then legitimate acts of war can only be related to that particular goal. As he notes, “if one cannot reach the seat of life” of the state—which is, we know, the general will (1900/171)—only then will it be necessary to destroy what preserves the state’s life (government, laws, morals, goods, possessions, men) (1900– 1901/171). However, if a state is capable of destroying its enemy’s “seat of life,” it is obligated to do just that, Rousseau suggests. “Basically, the body politic, since it is only a moral person, is only a being of reason. Remove the public convention, straightaway the state is destroyed without the least change for the worse in anything that makes it up” (608/176). Rousseau’s ideal war is a pure killing of the virtual unity that is the sovereign power, a kind of surgical dismantling of the nervous system: “If the social pact could be severed with a single stroke, straightaway there would be no war; and with that single stroke the State would be killed, without a single man dying” (608/176). Rousseau’s pure concept of the political, understood as the relation that binds individuals together in a virtual unity of will as opposed to a substantial unity of dependence, provides the foundation for the total delegitimation of military violence, even as it acknowledges the logical necessity of war among states. War, which is possible only between constituted political bodies, is legitimated only in terms of the life and death of that purely political form of community. Far from opening up a logic of nationalism and total war, Rousseau’s concept of the political provides the first conceptual foundation for separating the logic of military conflict and the specific identity of societies. The autonomous character of the political opens up a violent state of nature between political bodies, each body driven by its own principle of self-preservation. War is endemic to states not because they are analogous to autonomous individuals, as the natural-law theorists would have it, but in fact because they are not at all like individual human beings. The artificial nature of the political body

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produces a condition of permanent instability and warfare because only stable bodies can ever be in a position of genuine equality. However, as Rousseau has demonstrated with rigorous clarity, war is a relation between states, between the artificial unity that organizes human bodies, and not between aggregates of human beings. The perfect war—and by that I mean the only truly legitimate war—is a virtual war waged by virtual beings. The perfect war is one in which the enemy is attacked at the core of its being, its very self, the point of unity distinct from the plurality making it up. That is a purely neurological death, one that preserves the integrity of the material flesh of the body politic so that it might live again.

ROUSSEAU AND THE MODERN STATE The significance of Rousseau’s writing on natural right lies in his seemingly paradoxical merging of two approaches—he at once acknowledges the deep historicity of human social and political organizations while celebrating a theory of political legitimacy and right that transcends that historicity. Rousseau accomplishes this difficult trick by deriving political right from a human nature capable of historical determination. The political, as he articulates it, does not flow from a particular determination or even a process of determination but instead from the identity of the human as “open” to the possibility of transformation. If, in the Second Discourse, Rousseau demonstrated just how unnecessary the contingent social and political organizations in history were, he also demonstrated that there was no pure natural state that could ever be the image of a new order. In the Social Contract, Rousseau imagined a new beginning to human community, one that bypassed altogether the social formations that emerged in the complex historical development of the human species. The political community outlined in this text was, in contrast to any other naturallaw theory in this period, entirely independent of a social organization. What Rousseau showed in pure form was the logic of mutual protection we encountered in Locke and Montesquieu but now decoupled from its parasitic relationship to some other substantial grouping. Rousseau’s concept of the political stressed the foundational character of unity, but this political unity, a body with a singular will, was anything but the omnipotent will of a society, as so many interpretations of Rousseau’s work assume. The political will was a unitary will without any content and its

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legitimacy therefore flowed from its minimal, purely existential character. Of course, that logic of existence required decisions in particular conditions. At this point, the logic of the political intersected (even if it was not reduced to) the specific form that a community took in historical time and in a particular environment. The great challenge, Rousseau saw, was to produce a set of institutions— and in particular, what I have called an artificial nervous system—that could, without bias, produce a vision of this purely political unity from within embodied social formations defined by their unstable plurality of interests and associations. Without ever giving a solution to this difficult institutional problem, Rousseau was showing us how any one political regime might be evaluated as legitimate or not. Legitimacy was a function of existential decision making that concerned the health and preservation of the whole body. Logically, this entailed the equal protection of every individual within that body. So Rousseau’s detailed logic of proper political decision and action furnished a whole array of criteria that could be applied to existing regimes and their activities. At one level, certain kinds of political behavior contradicted the principles of this pure political association and were therefore illegitimate on their face. Of course, there was no unambiguous method to determine the legitimacy of every political decision, for in the unpredictable crises and encounters of the state, existential decisions were never predetermined in their content. In some ways, it is frustrating that Rousseau never really laid out in any detail the ideal forms of political organization. However, his theory of the autonomous nature of the political precluded its translation into any one particular form. The political was a logic, one that required a certain institutional embodiment so that it could act in the world, but this embodiment was defined only in terms of its functional capacity of integration, not the specifics of participation and execution. This was the reason Rousseau’s theory was so important in the context of the eighteenth-century state. This period of rapid centralization, which saw the foundations laid for the modern administrative and military state, was a moment in which the state became intimately intertwined with the lives of its citizens in unprecedented ways. There was an increasing theoretical and practical redefinition of the state as an instrument of social organization. Rousseau’s concept of the political was a reaction to the idea that the state was wholly subservient to the idea of society. For Rousseau, in line with mainstream Enlightenment thought, societies ran according to their own logic and this was not always in accordance with individuals’ happiness.

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By separating completely the political from the social, Rousseau went beyond Schmitt, who understood the political as a form of intensity achieved by some human community, however defined. By tracing the independent formation of the political in his conjectural narrative of existential crisis, Rousseau demonstrated how individual freedom and equality were part and parcel of the political body. This body was now understood as an effort to defend and preserve the association of free individuals that made it up. The political was therefore inherently legal; it required a certain institutional embodiment so that it could act in the world. This embodiment was defined not as a capacity to represent or articulate a preexisting will or set of interests but instead as a genuine process of integration and decision. This political logic functions as a criterion of legitimacy: only governmental actions that seek to preserve this particular form of political unity are genuinely political. In another sense, though, Rousseau provided a challenge that was much more concrete. To develop a genuinely political order, it was necessary to acknowledge that political unity was a function of integration and synthesis. The political was not a logic that could be enacted in any single site. It was instead a principle of total organization that depended on what I call an artificial nervous system to enable communication and control across the entire body. The rediscovery of this autonomous concept of the political in the eighteenth century can initiate rethinking of the origins of the constitutional state, and, with that, a rethinking of the fraught relation between political authority and law in those states. If we follow Rousseau’s narrative of origin, we can see that the constitutional state is the formation of a constitution analogous to the organization of a living body. The principle of such an organization is life—the existence of the body—but that principle is effected only in the complex integration of organs and tissues. Rousseau’s distributed notion of organic unity is a powerful metaphor for political organization. The citizen is not simply the material instrument of a unitary command, and citizens are not independent voices clamoring for control of the body. The body becomes a unity only in the synthesis of individual decisions and actions. There is no general will of the political community until a series of institutions make possible that synthetic operation and then deploy it through the body. We are, as the kind of political beings imagined by Rousseau, obligated only to the logic of the political, to the logic of our existence as a political community, which is a form stripped of any specific social or cultural content and hence purged of any specific sources of antagonism. Because that political

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community is purely existential, legitimacy is derived only from the persistence of that community as a fully integrated whole. No other form of identity interferes with it. Yes, the political will is unregulated in its operation, in the sense that there is no principle foreign to it that could override its decisions. And yes, those decisions may well involve certain domestic restrictions or outright violence directed against external threats (even if those threats are inside the boundaries of the state). Still, what Rousseau does is redefine the ­legitimation of violence in strictly existential terms. Political enmity has no content, so to speak, and thus can never be justified by conflicts engendered by existing ­people. And while this kind of pure violence denies any higher legal order, as Rousseau shows in his theory of war, it is also true that political violence is ­limited by its purely existential character. One cannot legitimately fight, as a political state, for the content of a principle or ideal—only for the minimal goal of one’s own political existence. To return to the problem of political authority and legal restraint, we can make two observations. First, the fact that the political is existential does not entail the concentration of authority in single decisive figures: just the opposite. If we take Rousseau seriously, the unity of the political body cannot be ascertained without a whole set of complex institutional orders, and it cannot be acted upon without another series of institutional functions. That is, legally formed institutions are not entities to be bypassed in emergencies. They are instead the instruments for the formation of political unity itself. Second, if a figure does emerge to claim an authority beyond the law, that figure has declared itself to be a dictator in the resolutely classical sense Rousseau gave the term. While the dictatorial solution is certainly one that must be entertained in moments of grave crisis, only the gravest political crisis—by that I mean the demonstrated collapse of all institutional authority—would ever justify it. So while we might logically defend the dictatorial actions of, say, an Abraham Lincoln in a time of civil war, it would be difficult to justify the abandonment of law and institutional decision making when the state itself is resolutely not in question. The suspension of law in favor of external authority is never, according to Rousseau’s concept of the political, a function of the danger of existential crisis—even at the level of nuclear war or extreme terrorism—but could be entertained only if the vitality of the political organism itself is in question. To the extent that we still live in administrative states that constantly intervene in and manage the lives we lead in society, this idea of the political is still critically important. No matter what form human society takes, our political

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being can never be determined by that form. The boundaries of this concept of the political are therefore not at all fixed by the historical contingency that is the nation-state, which first began to emerge in the eighteenth century. The idea of political community we see in Rousseau offers the possibility of participating in a sphere defined only by our absolute equality as citizens, members of a unity with no agenda or goal other than our existence. That is the rule of law.

Conclusion

From the Concept of the Political to the Rule of Law

I

n the constitutional state, political authority is necessary to protect the rights of the individual citizen and to uphold the law. Political power is enabled by the constitution for this purpose, but it also must be fundamentally restrained so that the state and its agents do not overwhelm and threaten the legal norms underlying the existence of the state in the first place. The relationship between a political authority that must exercise some autonomy and the legal framework that institutes that authority has long been a vexing question throughout the history of political thought and constitutional theory. One of the pressing difficulties, particularly in times of crisis, has been the problem of conceptualizing existential defense in terms of constitutionality and law. In unprecedented emergency conditions, the state must often act to defend the political community, even at the expense of the law. It is possible to defend such actions as lawful because all law, even constitutional law, requires the stability of a political body and a situation of peace to function properly. However, the very recognition of such an existential legitimation of political power undermines the very foundational character of constitutions—and the rights enshrined in their formal structures. In this book, I have made two interconnected claims, one historical and the other theoretical. The first claim is that the idea of an autonomous political sphere did not originate in early-modern notions of “reason of state.” And it was not discovered in the twentieth century by thinkers such as Max Weber or Carl Schmitt. The concept of the political was first identified and articulated in

216  d  Conclusion

the European Enlightenment, as thinkers grappled with the legacy of naturallaw theory and the appearance of the new state form in the seventeenth century. The Enlightenment concept of the political recognized the importance of foundational violence and sovereign unity as essential dimensions of all political society. At the same time, Enlightenment thinkers emphasized the legal and cultural implications of this autonomous political sphere, not, as we usually think, to tame or diminish pure political power but to investigate systematically the way law and constitutional order extend the logic of a foundational political unity. This leads to my second claim: that Enlightenment thinking about the political holds a new way of understanding constitutional states and existential violence beyond the historically specific context of the eighteenth century. Especially with the thought of Jean-Jacques Rousseau, we can see in the Enlightenment how a theory of political right can at once defend the autonomy of the political while providing a solid ground for the rule of law and the protection of individual rights. This does not at all entail a return to an eighteenthcentury perspective on social or political life. On the contrary, crucial to this Enlightenment argument is the recognition of the deep historicity of all social, economic, and governmental systems. The Enlightenment individual was never an autonomous being, the “possessor” of rights and abstract rationality. The individual was a rights-bearing entity with radical independence only within a political community defined now strictly in terms of a pure concept of security extricated from any particular threat. The key argument is this: the very autonomy of the political is what provides the shelter for individuals and groups overwhelmed by the conflicting demands and systemic oppression marking historical communities. The idea of the political as existential has long been considered a serious threat to constitutional theories of the state and to the rule of law in general. My reading of Enlightenment thinking alters our perspective on this tradition and therefore suggests a response to the many contemporary efforts to challenge (or deconstruct) the concept of the political in the name of some other kind of freedom. Many are responding in particular to Schmitt’s concept of the political, especially his articulation of a logic of existential defense that zeroes in on the formation of political unity in concrete confrontations with potential enemies. But often Schmitt is misread as an anti-constitutional thinker simply because he is so critical of democratic and liberal theories of government. The situation

Conclusion  d  217 

is more complex. For Schmitt, whatever the contingent forms of community (religious, economic, racial, and so on) that might exist at any given historical moment, a political community is formed when that specific type of organization is understood to be “final,” and therefore is defended at all costs. Schmitt’s point was to separate the formal logic of the political, which concerns only the decision about existential conflict—to decide, that is, who is in fact a friend or enemy of political unity. This serves to minimize the influence of the historical motivations in those decisions about the formation and preservation of a certain political community. But in any case, political unity, the decision to be a “people” in this political sense of the term, must precede any formal articulation of the institutions of the state. In other words, the constitutional order, however it may be defined, depends upon a previous decision to become political.1 In this sense, sovereignty logically precedes constitutionality if we understand the sovereign as the voice of that decision on enmity and friendship. For Schmitt, the democratic constitutional order was inherently problematic because the idea that the sovereign is the people was philosophically confused. In no way is it plausible that a whole population could, taken together, “decide” anything more than their adherence to the institutions of political unity. At best, leaders would manipulate the idea of popular will for very specific purposes. The concept of popular sovereignty developed first in late Enlightenment France with figures such as Rousseau, Gabriel Bonnot de Mably, and Emmanuel-Joseph Sieyès2 was dangerous, according to Schmitt, because it inevitably destabilized the institutionalization of decision within the state. If the people were the ultimate decision makers, then, at any moment, they could intervene and suspend the legal order of the state. So, paradoxically, Schmitt’s preference for personal leadership is meant to support a legal understanding of the constitutional state. Actual decisions, including the decisions surrounding constitutional organization, were specific decisions and therefore locatable only in specific sovereign figures. The state as embodiment of political sovereignty comes before all formal legal articulations of the state as a system of governance. But the state as an institution remains the only legitimate space of sovereign decision as long as some autonomy for emergency action and the suspension of all concrete law is built into the system as a whole. Schmitt’s powerful arguments for the autonomy of the political formed part of a larger discourse about law and existential decision in the early twentieth century.3 Repeated historical examples of the necessity of extreme existential

218  d  Conclusion

action outside of the law, in particular during the crises of the interwar period and then during the Second World War, forced theorists of the constitutional state and civic rights to recognize the problematic status of this foundational power. This issue does not disappear in the moment of revolutionary origin or existential emergency but continues to haunt the constitutional order from within. Whatever the complex difficulties surrounding the institutional and conceptual relationship between political forms of action and the legal organization of the political body, the political form can never be reduced to its purely legal foundation. Even if we admit that the political and legal dimensions of the state are always parasitic in relation to each other so that the term Rechtsstaat, or “legal state,” is only a kind of “grandiose tautology,” to borrow Niklas Luhmann’s phrase, still, it is the case that the political is, on a certain level, an autonomous system, a system that has a genuine priority precisely because it must be the one to prevent violence and protect social order. As Luhmann suggests, the legal rights of the citizenry, and the formal order of the constitution itself, are less restrictions of a given political system than “self-descriptions” of the border of the political articulated within the political sphere itself. Therefore, law and constitutional structures are not foundational limits on the exercise of political authority.4 In a way, Jürgen Habermas would agree. He saw how the political functions autonomously from other logics within the social order. Communicative reason is a form of relational discourse aimed at recuperating the normative dimensions of such action and is decidedly not the application of self-sufficient norms to a political zone that would be expected to accept these norms passively and then translate them into real decisions.5 What has become especially problematic about the state as the embodiment of political unity is the structure of unity itself. Whether understood democratically or not, the essential characteristic of the political, according to Schmitt, is this presence of such a primordial existential unity, a totalizing logic of inclusion and exclusion. This is what constitutes sovereignty—even before the decision there is a unitary decision maker, representing in its institutional unity a political body understood as “sovereign” and complete. As Jacques Derrida claimed in some of his last work, this notion of the political and the related notions of rights, constitutions, and even war are all complicated when we recognize that this “phantom” of sovereignty has lost its potency and credibility in our own era. How can we really believe in real political unity or the homogeneous identity of a people? What would be the metaphysical or conceptual

Conclusion  d  219 

foundation of such a unity? For Derrida, sovereignty cannot be extricated from its “theogonic mythology” and its “ipsocentric” structure of being. We can no longer uphold such concepts. Sovereignty must be indivisible, pure and unitary. Yet no such sovereignty really exists, according to Derrida. It can only be “posited.” Therefore, failure to achieve unity is essential to the operation of any sovereign figure. “Abuse of power is constitutive of sovereignty itself,” Derrida argues, so we must call into question the very “logic of nation-state sovereignty” by eroding its principle of indivisibility.6 “Dictatorship is always the essence of sovereignty,” even the democratic form of “popular sovereignty” that underlies modern constitutional states. For Derrida, there is no real solution to this impasse. In the end, he invokes the idea of human rights “beyond” the nation-state form not as a gesture to found a new universalism or to extend sovereignty to new spaces but to encourage the interruption of the ipseity (namely, the enclosed singular self-identity) of the sovereign. The invocation of human rights points to a logic outside of the unitary decision of the state even if it is a realm that is never fulfilled.7 Derrida is not alone in this rather negative understanding of rights that are not grounded in principles but operate solely as persistent reminders of the impossibility of sovereign decisions or universal norms. Responding to Schmitt’s identification of the logic of the political, some contemporary theorists attempt to recuperate an alternative political concept not by positing new foundational norms or universal principles that might restrain sovereignty but by emphasizing the internal contradictions and tensions marking any such concept of political unity. Like Derrida, Étienne Balibar, for example, notes that even with the so-called decline of the nation-state form, the structural unity of the sovereign people “always returns . . . to haunt political space.” This is because any notion of democratic civil rights is intimately tied to this idea of the democratic sovereign state, and the very structure of sovereignty as a form of bounded political unity entails a decisive logic of inclusion and exclusion. In other words, sovereignty precedes the declaration and preservation of rights and therefore the unity of the sovereign voice haunts these supposedly universal legal protections.8 The specificity of any political unity disturbs the legal abstractness of rights, and, as Balibar has noted (in agreement with Hannah Arendt’s earlier claim in Origins of Totalitarianism), rights must always be sustained by some kind of political body. This leads to a “double-bind” in that rights must guarantee participation in political decision making. However, the very nature of the political body as a body—even a democratic body—entails

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a disjuncture between the universal nature of those rights and the specificity of political decision making as an autonomous function of a popular sovereignty predicated on exclusion and internal asymmetry.9 This problem underlies Jacques Rancière’s argument. He posits that perhaps the genuine political subject is not the individual who is integrated within a unitary form of collective sovereignty but instead the one who is a site of “dissensus,” embodying the tension between this idealized community, which is only ever a fiction of homogeneity, and the operation of real historical community formations that are anything but equal, free, or just. However, Rancière does see the liberatory potential of these fictions of unity; they are projections that can disrupt the often oppressive conditions of human community, even if they never really take their place permanently.10 In a sense, this form of action might be called a démocratie impolitique because it denies the possibility of any ideal democratic political action.11 In a similar vein, Jean-Luc Nancy has focused on the idea of genuine community as rupture, not identity, emphasizing the multiplicity inherent in any origin—even one that purports to initiate a unitary identity. Following Martin Heidegger, the genuine community is defined by Nancy as a “coexistential” being and not as some common participant in a real metaphysical unity—not in terms of an authentic “Beingin-truth,” the “people,” or the “nation,” for example. The law, understood here as the incarnation of this fantastic singular unity, is always therefore haunted by its own factual contingency, according to Nancy. The mythical sovereign always constitutes itself in a logic of exclusion—the elevation of pure singularity over and against genuine multiplicity. Therefore, however necessary the sovereign decision might be in unprecedented, exceptional conditions (Nancy, like Derrida, is willing to admit the necessity of imperfect decisions in historical circumstances), that which is excluded always returns to interrupt the illusion of sovereign identity.12 Ultimately, these critical responses to the problem posed by the political can hardly sustain any substantial defense of the rule of law within political communities. They cannot defend a normative principle such as civic equality. At best, only the repeated exposure of the constitutive difference between historically specific political unities and the abstract normative universality of legal concepts could ever constitute justice. This is precisely what Derrida was willing to claim: only deconstruction is justice.13 What I have tried to do in this book is approach this contemporary theoretical impasse by probing the genealogy of the concept of the political that

Conclusion  d  2 21 

has provoked the difficult question of relating sovereignty and the law. The first point to make is that the concept of the political was not a discovery of the early twentieth century. And this concept of an autonomous political sphere is not a transhistorical category. As I have argued, the idea of such political autonomy emerges at a very specific juncture in European history, when the territorial sovereign state was conceptually established in the wake of Westphalia. It was the emergence of the autonomous state that first prompted a peculiarly modern reflection on the legitimacy of the state in its own terms. The naturallaw theorists, and after them Enlightenment figures, tried to grasp the state as a political form that was the consequence of an independent logic of organization. Narrating the origins of the political body, they moved from individuals in nature to preliminary social orders and then to governmental institutions and law. Their narratives served to locate what it was that made a community specifically political in form. The natural-law theorists were, I have argued, unable to locate such a specific political principle because they put so much pressure on the rational autonomy of the natural individual. Hugo Grotius and Thomas Hobbes could only imagine the possibility of a true political sphere: they were never able to grasp it entirely. They remained resolutely limited by the implications of the autonomous rational actor. Only Samuel von Pufendorf, who took very seriously the idea that social organization had a logic entirely independent from the interests and motivations of individuals, could even hint at a clear concept of the political. However, even Pufendorf could only envision state institutions as guarantors of a social order, effectively diminishing any autonomy for the political sphere with respect to society. With John Locke, we can locate the first isolation of a pure political concept, though we do not find it in the most well-known sections of the Second Treatise. Locke’s main emphasis on the problem of autonomous individuals navigating their property interests in a state of nature masks a deeper concern with the essence of integrated political bodies. In what I have called Locke’s “natural history of the political,” we find a description of early communities untainted by the conflicts generated by property. The political emerges as precisely the decisive principle of defending the community as a whole from the threats of enemies. In the earliest forms of political life, there is no institutional question because the political leader is simply the paternal figure trusted by the community. The problem of restraining political power through law simply does not arise: the existence of political authority and its proper exercise are

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intimately linked via the notion of trust—either the leader is leader or he is not. What fractures the integrity of the community is the emergence of property and especially the advent of capitalist accumulation. This not only produces new conflicts internal to the community but, more important, destroys the trust in leadership as corruption becomes endemic. Locke’s liberal political theory must be understood as a response to the challenge of reconstituting political unity, the decisive existential community, in conditions of fragmentation, distrust, and outright violent hostility among groups and individuals. Locke’s conception of prerogative executive authority and federative war powers shows that the legal state, as he understands it, is not one in which political authority is constitutionally constructed and then strictly delimited. And it is not the case that a legal state has, only as a kind of supplement, a sovereign to be used in states of exception. Locke does something much more powerful: he refounds political unity by reestablishing trust in the agent of political unity, a unity defined now through a set of legal set commitments and principles. The problem in Locke’s theory is not the existence of a problematic Schmittian sovereign figure; rather, it is the fact that this political figure is literally hidden in the normal operations of the legal regime. The agent of political unity, the federative sovereign, embodies the exact same space as the legally constituted (and legally constrained) instruments of internal conflict resolution. The executive power, which is always bound by natural law and the rationality that it entails, along with the federative power, which is responsible only for the defense of the community in conditions of irrational war, are, for Locke, incarnated in exactly the same figure. The danger, conceptually and practically, is that the domestic instrument of law usurps the authority and legitimacy of the federative power, thus blurring the lines demarcating these independent spheres, each with its own autonomous forms of action. The problem is not the existence of a singular agent of pure political unity but the possibility that this existential logic could migrate inappropriately into the functioning of the legal state. And this could occur simply because a single figure represents two different kinds of activity with two different forms of legitimation. Charles-Louis Secondat, baron de La Brède et de Montesquieu takes up Locke’s idea that the formative origins of political community are to be found in warfare. If Montesquieu is willing to admit a certain natural form of sociability among human beings, or at least imagine a set of contingent conditions that would lead to such a social form, he marks the origin of the political community in a more radical rupture. It is the threat of war, both civil war and the

Conclusion  d  2 23 

war against the foreign enemy, that challenges the social body, converting it into something quite new. For Montesquieu, the political body is one that has constructed a field of power (sovereignty) with the capacity to defend the community as a whole—and not just one interest within that society. So the political has its own criteria of operation. And these criteria are not quite congruent with Schmitt’s logic of the political. Montesquieu’s society is not a community that is spurred to political consciousness as a unity, spawning a sovereign figure to defend it. Rather, for Montesquieu it is the recognition of the threat of a radical dissolution of the community that prompts a refoundation of the society as a unity. This unity is a brand-new form and not at all continuous with the set of social relations that preceded it. The unitary sovereign power defends this new social body. But this same sovereignty may well destroy it again if left unchecked as nothing in the original society would naturally preserve unity. It would be just the opposite, of course, because it is the threat of civil war alongside foreign invasion that prompts the appearance of the sovereign in the first place. In Montesquieu’s view, sovereignty is the essence of the political: a political body is formed only in war. The problem, institutionally and culturally speaking, is that of limiting the exercise of violence in the time of peace that comes after the refoundation of political unity. This is the background for Montesquieu’s distinctive theory of law. He argues that a political body can survive only if sovereignty remains an agent of the social system as a whole. This requires a kind of self-restriction on the part of those who have military power so that they do not deploy it for their own ends. At the same time, if society is to become at all stable, those who must obey that armed power must be trained to obey, for constant physical coercion is both impractical and psychologically unstable—it is the logic of despotism for Montesquieu, and despotism has no genuine order, no intrinsic stability. In Spirit of the Laws, Montesquieu unfolds a historical sociology and political typology. It is, in effect, an analysis of how different regimes sustain their power. It examines how unitary political regimes maintain their unity despite the possibility of individuals manipulating the system to their own advantage or resisting the embodiments of that systematic unity. What he calls political liberty has nothing to do with participation in sovereignty and it does not name a certain autonomy with respect to the sovereign power. Instead, liberty is defined as the ability to act in accordance with the law. It is the freedom to sustain the sovereign system as a whole, for only with that kind of stability can one feel secure, which is why security constitutes the essence of liberty for Montesquieu.

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As I have shown, Montesquieu’s depiction of England’s constitution and Rome’s constitutional framework was not meant as a model of legal order that would “give” liberty to citizens oppressed by sovereign powers or despotic regimes. Instead, he used these rather peculiar aberrations from normal political development to show that only in unusual cases—the case in which sovereignty does not appear and political unity does not establish itself—are purely legal states constructed. Law reigns only because no one actually rules a unitary social body. But the legal constitutional regime Montesquieu analyzes does have relevance for the normal political regimes founded in sovereign power and for the cultures that sustain them. The core political principle is really unity, the existential maintenance of the political body. Inherent in that concept of the political is the ideal of balance. The principles embodied by the English constitution deny this unity and the sovereignty that protects it, but the constitution does exemplify balance and harmony in a kind of purified form. The suggestion (Montesquieu is never explicit about this) is that citizens’ liberty in normal sovereign regimes is further protected by the prosthetic form of a “constitution.” This body of law would articulate and defend the boundaries already present in, say, monarchical political cultures as those boundaries were being eroded by the inevitable progression of modern commercial society. In other words, the ideal of a purely legal constitution functions not as a restraint on some pure political authority, the sovereign unity of the political body, but instead as a supplementary guard to protect the internal and historically constituted system of legal and cultural restraint already operative in the political society but now threatened by contingent developments in the civil sphere. Rousseau was influenced by the kind of deep historical analysis exemplified by an Enlightenment thinker such as Montesquieu. But Rousseau was not content to think of liberty as a mere function of a secure, stable sovereign system that was sustained by myriad social and economic networks. Rousseau demonstrated that the kind of political, legal, cultural, economic, and social relations described so well by Montesquieu were structurally asymmetric. Individuals were condemned to functioning as mere sites for systematic exploitation. In the account of civilization offered in the Second Discourse, Rousseau showed that political power was inevitably just a reflection of power relations operative within the socioeconomic sphere. Law was only ever an instrument consolidating formally the entrenched exploitation endemic in any complex commercial society. So to find some ground for individual liberty and to establish some form of equality analogous to that we enjoyed in the conjectural condition of

Conclusion  d  2 25 

nature, Rousseau had to locate another form of life, one that was not conditioned at all by the development of human communities in history. Agreeing with both Locke and Montesquieu, Rousseau realized that political and legal institutions were parasitically tied to the specific communities that generated them historically. The institutions of the state mirrored and defended the current power relations inherent in a given society. But unlike the earlier thinkers, Rousseau recoiled at the implications of this for human freedom. This is why Rousseau had to imagine a political community that was untainted by the imbalances generated within any specific social order. So for Rousseau, the origin of the political lies not in the crisis experienced at the heart of an established community, as it does for Locke and Montesquieu, but in the more generalized (yet not at all abstract) threat to the existence of individual human beings in difficult natural conditions. This move is important. Unlike Locke and Montesquieu, who understand that the political has an autonomy with respect to social life but who nonetheless see the political as something that arises only from within the realm of the social, Rousseau argues that the political is radically independent of any communal relation linking individuals together in society. Rousseau’s origin is therefore more radical than these earlier— essentially Schmittian—concepts that emphasize the political as a logic of existential survival but one that is necessarily parasitic in relation to the community that seeks its own preservation. For Rousseau, the political is also an existential concept, and it is ultimately related to a particular community, but this community is defined as a political community that is only born at the very moment of this existential crisis. By linking the political to the existential crisis of the individual, rather than to society, Rousseau is able to imagine a political community that is defined solely by its capacity to protect that individual. While the political society that is so formed is a specific grouping, and not an empty abstraction, its unity and logic of operation do not derive from a historically contingent social formation that came before. The specificity of the political is contingent therefore only on its structural characteristics—namely, the principles of equality, freedom, and independence. This is why political society is not fundamentally exclusionary at its origin. The unity is not a fictional homogeneity that masks a concrete heterogeneity. The unity of political society emerges from the absolute logical consensus of free individuals seeking their own preservation within a coordinated whole. Their only object is the preservation of the group’s members. This has two implications. For one, the political society is not limited in its membership—

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the unity and integrity of the political form is not affected by the addition (or subtraction) of individual members. Second, the political constitutes a shelter from the demands of social and economic relationships, not a regularization of those relationships. We can see then that the political is not at all congruent with the social and may well not overlap with the contours or boundaries established by historically constituted human communities. We might, with Immanuel Kant, see this slippage as a problem of integrating the purely formal logic of civic association and the imperfect organization of actual political bodies—a slippage that would be overcome only in the slow historical evolution of political societies. As Kant argued, we must obey the sovereign absolutely not because it expresses the logic of political association but because it represents an initial turn away from lawlessness and toward some idea of law. Kant’s idea of political origin is nowhere near as radical as Rousseau’s, in that it relies on a scenario of private dispute rather than a powerful mutual recognition of existential threat.14 Therefore, we can best understand Rousseau’s separation of the historically contingent realm and the logic of the political as the source of an opportunity and not a sign of failure or imperfection. While a political body needs to be embedded in a cultural social formation, it is never integrated with it completely. While this might seem like a limitation, in that we are never truly free of dependence and oppression in our lives, we can look at it from the opposite perspective: no matter how we live, there is always the possibility of living free and independent lives in the sphere of the political. And that, to me, is the most powerful implication of the Enlightenment concept of the political. As we have seen, the real challenge of Rousseau’s argument is not so much the logic of the political as it is expressed in the general will. The real difficulty is constructing a proper political body that could produce the general will (in its political purity) in specific contingent circumstances. This construction would seem to entail the kind of violent “exclusion” that contemporary critics of popular sovereignty and its “singularity” resist. But we have to remember that for Rousseau, as I have stressed, the institutions of the political body are essentially cybernetic in function—institutions of communication and control that are driven only by the singular logic of the general will. And this singular logic is not a unity of content that must override the difference inherent in each individual. The singular logic mirrors perfectly the singular logic of the autonomous individual will—the logic of pure survival. My point is that the entrance into political community is marked only by the participation in the institutions

Conclusion  d  2 27 

of law and governance that function as the conduits of information and will. And this entrance is motivated only by the feeling of radical insecurity. There is nothing about the threat that ties one individual to any other; indeed, the specificity of the threats may well be incongruent. This is another way of saying that the origin of the political cannot be enmity in the Schmittian sense of the term because this would imply an existing community that would become “politicized” in the moment of a recognized threat. For Rousseau, the social contract that forms a new political society not only demands no such identity but precludes identity altogether. Enmity and war are therefore produced by the emergence of a political unity, and not the other way around. Thus, for Rousseau, war is not essential to the formation of political society, though war becomes an important space for political decision and will. This is important if we want to think about how the principles of political justice—equality, independence, freedom—can be extended beyond what we like to call the nation-state. Against theorists such as Rancière or Balibar, Rousseau demonstrates that political sovereignty is not dependent on a unity that is inherently violent and exclusionary. The “ipseity,” or self-identical unity, of the Rousseauist sovereign is a purely logical unity and hence not at all violent in its existence and operation. The unity of the political is legitimated precisely by its absolute mimetic relationship with individual existential demands. The point is not that this individuality (at either level) is unproblematic or even always possible. As Rousseau relentlessly details, the individual is always determined by forces outside of itself—with both negative and positive implications flowing from these determinations. The point is that the individual human, precisely because it can be so determined by historical and cultural formation, must be understood as radically open, radically free. It is that aspect of every human being that Rousseau seizes on as the foundation of the political: all individuals, in their very determination by external forces, reveal their essential non-determination. The political society is developed not from the selves that are historically existent but by the natural individuals defined by their freedom, their openness. The unity that results from their unification is not an extension or consolidation of some particular form of life, a particular people even, but just a logical outgrowth of our natural freedom to determine ourselves. From this perspective, we can see that Rousseau’s theory opens up the possibility of thinking about political right beyond the specific territorial and cultural identities governed by states in the modern era. The political, we must

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remember, is primarily a critical concept, a tool for the evaluation of actual forms of governance. Rousseau’s logic of political association is just such a tool, a powerful one for determining the legitimacy of any one political system of power and decision. He is less interested in any revolutionary implications for the total reconstruction of existing states and legal institutions. Yet this concept of the political encourages a new way of thinking about the rule of law and the protection of individual rights. While Rousseau is adamant that the general will must be produced in specific historical circumstances and with the participation of a specific set of participants, the fact that the political as a concept is separated from history means that the successive incarnations of political society are not at all fixed—either by predetermined populations or by conditions of enmity. As I have said, the origin of the social contract is only the feeling of permanent insecurity. There is nothing preventing us from seeing political society as extendable in many different directions as long as individuals are willing to commit to the demands of political life as expressed in the general will. To be sure, Rousseau’s constant emphasis on the formation of a “people,” his insistence on the difficulty of creating a citizenry capable of achieving genuine political community, must not be ignored. But we should not be misled into thinking that the political is dependent on such a bounded community. However difficult it may be to create the conditions for the rule of law and the protection of individuals in institutional terms, there is nothing in Rousseau that would preclude the extension of the political wherever people feel the kind of solidarity that is produced by insecurity and threat to their existence. This solidarity, because it is not defined by the content of the threat, is completely divorced from any positive relationships in the world. Yes, Rousseau despaired of legitimate political life in large nations and he may well have been suspicious of the idea of broader political communities forming in the large spaces of a truly globalized world. But that does not mean that there is anything illogical about such formations, and institutional and technological developments may well have opened up new possibilities of political communication in our own era. Rousseau’s particular anxieties reflect the contingent historical moment of the late eighteenth century, which is hardly congruent with our own. The challenge then is to think about how our new political communities (of the Rousseauist sort) might be formed institutionally, which is to ask: How can we think about establishing the rule of law as a system of communication and control across well-defined entrenched asymmetries that now exist within and between traditional political-legal states? The idea of law Rousseau gives

Conclusion  d  2 29 

us is not an abstract concept of justice. It is existential, it implies sovereignty, and it almost always implies conflict and even warfare. The only questions are, who is part of the political community and how does that unity find a way to defend itself and its participants? Unlike Schmitt’s idea of the political, Rousseau’s does not even imply a human enemy for its appearance. As long as human beings feel threatened in their existence, a political community is always possible. And there is nothing inherently contradictory about thinking through the opportunities for establishing such a community across the borders of historical states or political Großraume (“large spaces”). However, such a new foundation would inevitably lead to new existential conflicts. For we can only belong to one political community, even as we submit to other demands in many other spheres of life. Ultimately, we find our security in the law and equality and therefore in freedom. Some of us may find our political community in the traditional form of the nation-state as it functions today. Yet these political forms may well be giving way to new configurations with their own institutional and military organizations.15

Notes

Introduction 1.

2. 3. 4. 5. 6.

7.

See, for example, Paul Romain, L’état de siège politique. Histoire, déclaration, effets, levée (Albi: Imprimerie des Orphelins-apprentis, 1918); Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton, N.J.: Princeton University Press, 1948); and Oren Gross and Fionnuala Ní Aolaín, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge: Cambridge University Press, 2006), chap. 1, “Models of Accommodation.” Carl Schmitt, The Concept of the Political, trans. George Schwab, new ed. (Chicago: University of Chicago Press, 2007). Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005). Jacques Derrida, “Force of Law: The ‘Mystical Foundation of Authority,’” Cardozo Law Review 11 (1990): 919–1046. On this point, it is worth returning to Carl J. Friedrich, Constitutional Reason of State: The Survival of the Constitutional Order (Providence, R.I.: Brown University Press, 1957). Quoted in M. Katherine B. Darner, Robert M. Baird, and Stuart E. Rosenbaum, eds., Civil Liberties vs. National Security in a Post-9/11 World (Amherst, N.Y.: Prometheus, 2004), 19. Some key recent works that seek to defend notions of law and norm against the existential idea of political legitimacy include David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006); Richard Posner, Not a Suicide Pact: The Constitution in a Time of Emergency (Oxford: Oxford University Press, 2006); Bruce Ackerman, Before the Next Attack: Preserving Civil Liberties in an Age of Terror (New Haven, Conn.: Yale University Press, 2006); Clement Fatovic, Outside

232  d  Introduction

8.

9. 10. 11.

12.

13. 14. 15.

16.

17.

18.

19. 20. 21.

the Law: Emergency and Executive Power (Baltimore: Johns Hopkins University Press, 2009); and Nomi Claire Lazar, States of Emergency in Liberal Democracies (Cambridge: Cambridge University Press, 2009). Some context for these positions can be found in Phillip Bobbit, Terror and Consent: The Wars for the Twenty-first Century (New York: Knopf, 2008); and Gross and Aolaín, Law in Times of Crisis. For a guide to the earlier literature, see William Scheuerman, “Survey Article: Emergency Powers and the Rule of Law After 9/11,” Journal of Political Philosophy 14 (2006): 61–84. Foucault would locate this recognition of the “doubling” of the human in the nineteenth century. See Michel Foucault, The Order of Things: An Archeology of the Human Sciences (New York: Vintage, 1994), chap. 9. See, for example, Étienne Balibar, “Is a Philosophy of Human Civic Rights Possible? New Reflections on Equaliberty,” South Atlantic Quarterly 103 (2004): 311–22. Jürgen Habermas, Between Facts and Norms: Contributions to a Discourse Theory of Law and Democracy, trans. William Rehg (Cambridge, Mass.: MIT Press, 1996). As Habermas famously argues in Structural Transformation of the Public Sphere: An Inquiry Into a Category of Bourgeois Society, trans. Thomas Burger with assistance from Frederick Lawrence (Cambridge, Mass.: MIT Press, 1989). Recent examples include Bonnie Honig, Emergency Politics: Paradox, Law, Democracy (Princeton, N.J.: Princeton University Press, 2009); and Wendy Brown, Walled States, Waning Sovereignty (New York: Zone, 2010). Jacques Derrida, Rogues: Two Essays on Reason, trans. Pascale-Anne Brault and Michael Nass (Stanford, Calif.: Stanford University Press, 2005). Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Cambridge, Mass.: MIT Press, 1985), chap. 3. See Jacques Roger, The Life Sciences in Eighteenth-Century French Thought, trans. Keith Benson (Stanford, Calif.: Stanford University Press, 1997); and Peter Hans Reill, Vitalizing Nature in the Enlightenment (Berkeley: University of California Press, 2005). For one version of this narrative, see Norberto Bobbio, Democracy and Dictatorship: The Nature and Limits of State Power, trans. Peter Kennealy (Minneapolis: University of Minnesota Press, 1989), 79. Michel Foucault, “Society Must Be Defended”: Lectures at the Collège de France, 1975–76, trans. David Macey, ed. Mauro Bertani and Alessandro Fontana (New York: Picador, 2003). For a powerful analysis of this dimension of Enlightenment thought, see Istvan Hont, Jealousy of Trade: International Competition and the Nation-State in Historical Perspective (Cambridge, Mass.: Harvard University Press, 2005). Schmitt, Political Theology, chap. 3. Schmitt, Concept of the Political, 25–27. See Keith Michael Baker, “Enlightenment and the Institution of Society: Notes for a Conceptual History,” in Main Trends in Cultural History: Ten Essays, ed. W. Melching and Wyger Velema (Amsterdam: Rodopi, 1994); and an earlier essay by Marcel Gauchet, “De l’avènement de l’individu à la découverte de la société,” Annales, E.S.C. 34 (1979): 451–63.

Introduction  d  23 3  22.

23. 24. 25.

26. 27. 28.

29.

30.

31. 32.

33. 34.

See Claude Lefort, Democracy and Political Theory (Cambridge: Polity, 1988); François Furet, Interpreting the French Revolution, trans. Elborg Foster (Cambridge: Cambridge University Press, 1981); and Marcel Gauchet, The Disenchantment of the World: A Political History of Religion, trans. Oscar Burge (Princeton, N.J.: Princeton University Press, 1997). Schmitt, Concept of the Political, 35. A recent example is Wendy Brown, Walled States. The waning of sovereignty is here just asserted and never argued for systematically. On the specificity of the modern origin of human-rights regimes and the norms underlying them, see two recent works: Stefan-Ludwig Hoffmann, ed., Moralpolitik: Geschichte der Menschenrechte im 20. Jahrhundert (GÖttingen: Wallstein, 2010); and Samuel Moyn, The Last Utopia: Human Rights in History (Cambridge, Mass.: Harvard University Press, 2010). A recent example of this unconvincing approach is Lynn Hunt, Inventing Human Rights: A History (New York: Norton, 2008). Jacques Rancière, “Who Is the Subject of Human Rights?” South Atlantic Quarterly 103 (2004): 297–310. As demonstrated in the excellent overview by Kim Lane Scheppele, “Legal and Extra-legal Emergencies,” in The Oxford Handbook of Law and Politics, ed. Keith E. Whittington, R. Daniel Kelemen, and Gregory A. Caldeira (Oxford: Oxford University Press, 2008). Carl Schmitt, Political Theology, 5. On Schmitt’s concept of sovereignty and the Weimar context, see John McCormick, Carl Schmitt’s Critique of Liberalism: Against Politics as Technology (Cambridge: Cambridge University Press, 1999), chap. 3, “Emergency Powers”; William Scheuerman, Carl Schmitt: The End of Law (Lanham, Md.: Rowman and Littlefield, 1997); and Peter C. Caldwell, Popular Sovereignty and the Crisis of German Constitutional Law: The Theory and Practice of Weimar Constitutionalism (Durham, N.C.: Duke University Press, 1997). On this question, see Eric A. Posner and Adrian Vermeule, “Accommodating Emergencies,” in The Constitution in Wartime: Beyond Alarmism and Complacency, ed. Mark Tushnet (Durham, N.C.: Duke University Press, 2005), 55–92. For example, Lazar, States of Emergency. This seems to be the direction suggested by Alan Dershowitz’s controversial efforts to rehabilitate the use of torture within the constitutional frame. He imagines dire existential crises that demand “decision” over and against the rights of individuals. See Dershowitz, Is There a Right to Remain Silent? Coercive Interrogation and the Fifth Amendment After 9/11 (Oxford: Oxford University Press, 2008). Mark Tushnet, “Emergencies and the Idea of Constitutionalism,” in The Constitution in Wartime, ed. Mark Tushnet, 39–54. The much-vilified jurist John Yoo in effect fused these approaches, using a rather tendentious reading of the Constitution and early constitutional debates to argue that as commander in chief, the president is not hindered by any explicit limitations and could therefore, as Yoo infamously suggested, legally order the torture of children if necessary— something that may well have been the case. See John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (Chicago: University of Chicago Press,

234  d  Introduction

35.



36. 37. 38. 39.

40. 41.

42. 43. 44. 45. 46.

47.

48. 49. 50.

51. 52.

2006). Cf. Yoo’s recent Crisis and Command: A History of Executive Power from George Washington to George W. Bush (New York: Kaplan, 2010). On the torture question, see the review by David Cole, “What to Do About the Torturers?” New York Review of Books, January 15, 2009. Ernst-Wolfgang Böckenförde, “The Concept of the Political: A Key to Understanding Carl Schmitt’s Constitutional Theory,” Canadian Journal of Law and Jurisprudence 10 (1997): 8. Schmitt, Concept of the Political, 20. Schmitt, Concept of the Political, 38. Schmitt, Concept of the Political, 36. Max Weber, “Political Communities,” in Economy and Society, 2 vols. (Berkeley: University of California Press, 1978), 2: 902. Schmitt, Political Theology, 13. See esp. Carl Schmitt, Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge, Mass.: MIT Press, 1985); and Schmitt, Legality and Legitimacy, trans. Jeffrey Seitzer (Durham, N.C.: Duke University Press, 2004). On this idea of representation, see Carl Schmitt, Roman Catholicism and Political Form, trans. G. L. Ulmen (Westport, Conn.: Greenwood Press, 1996). Carl Schmitt, “The Age of Neutralizations and Depoliticizations” (1929), in Concept of the Political, 89. Schmitt, Die Hüter der Verfassung (Tübingen: Mohr, 1931). I have traced this trajectory in “Political Theology and the Nazi State: Carl Schmitt’s Concept of the Institution,” Modern Intellectual History 3 (2006): 415–42. Charles Tilly, “Reflections on the History of European State-Making,” in The Formation of National States in Western Europe, ed. Charles Tilly (Princeton, N.J.: Princeton University Press, 1975). See Michael Mann, “The Autonomous Power of the State: Its Origins, Mechanisms, and Results,” in States in History, ed. John A. Hall (Oxford: Blackwell, 1986). For a recent examination of this tension in postwar American history, see Gary Wills, Bomb Power: The Modern Presidency and the National Security State (New York: Penguin, 2010). Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999), introduction. Tuck, Rights of War and Peace, 11. Tuck, Rights of War and Peace, 13. Dan Edelstein argues that the merging of natural-right discourse and liberal republicanism had deadly effects in the French Revolution. See his The Terror of Natural Right: Republicanism, the Cult of Nature, and the French Revolution (Chicago: University of Chicago Press, 2009). Tuck, Rights of War and Peace, 14–15. Tuck mentions Schmitt only in a discussion of Leo Strauss, who, as Tuck points out, recognized that modern natural-law theory was in fact as “amoral” as “reason of state” argumentation. As Tuck observes, “This historical insight must have appeared very disturbing to Strauss himself, for it seemed to undermine what had been seen traditionally as the principle modern defence against reason of state (and Strauss had particular reasons for

1. The Autonomous State and the Origin of the Political  d  23 5 

53. 54. 55. 56. 57. 58.

being alarmed by this possibility, faced as he was in his youth by the naked immoralism of the Nazis and the equally naked advocacy of a politics of struggle and domination in the writings of Carl Schmitt)” (Rights of War and Peace, 4–5). Schmitt, The “Nomos” of the Earth in the International Law of the “Jus Publicum Europaeum,” trans. G. L. Ulmen (New York: Telos, 2003), part 3, chap. 1. Schmitt, Nomos, part 3, chap. 3. Schmitt, Nomos, part 4, chap. 7. Schmitt, Nomos, 319. I am guided here by Michael Geyer, “Historical Fictions of Autonomy and the Europeanization of National History,” Central European History 22 (1989): 316–42. Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 2005), 415.

1. The Autonomous State and the Origin of the Political 1.

2.

3. 4. 5. 6.

7. 8. 9. 10.

F. H. Hinsley, Sovereignty, 2nd ed. (Cambridge: Cambridge University Press, 1986), 72, 75–76, 100; Perry Anderson, Lineages of the Absolutist State (London: Verso, 1979); Charles Tilly, “War Making and State Making as Organized Crime,” in Bringing the State Back In, ed. Peter Evans, Dietrich Rueschemeyer, and Theda Skocpol (Cambridge: Cambridge University Press, 1985). Malcolm Todd, The Early Germans (Oxford: Blackwell, 1995); Raymond van Dam, Leadership and Community in Late Antique Gaul (Berkeley: University of California Press, 1985). Walter Ullmann, The Carolingian Renaissance and the Idea of Kingship (London: Methuen, 1969). Hinsley, Sovereignty, 53–58, 62. Michel Senellart, Les arts de gouverner: du “regimen” medieval au concept du gouvernement (Paris: Seuil, 1995), 40–41. Joseph Strayer, On the Medieval Origins of the Modern State (Princeton, N.J.: Princeton University Press, 1970), 22–25; Brian M. Downing, The Military Revolution and Political Change: Origins of Democracy and Autocracy in Early Modern Europe (Princeton, N.J.: Princeton University Press, 1992), 21; Brian Tierney, The Crisis of Church and State, 1050– 1300 (Toronto: University of Toronto Press, 1988), part 2. Senellart, Les arts, 41; cf. James J. Sheehan, “The Problem of Sovereignty in European History,” American Historical Review 111 (Feb. 2006): 5–6. See Hendrick Spruyt, The Sovereign State and Its Competitors: An Analysis of Systems Change (Princeton, N.J.: Princeton University Press, 1994). Thomas N. Bisson, The Crisis of the Twelfth Century: Power, Lordship, and the Origins of European Government (Princeton, N.J.: Princeton University Press, 2009), 10. Harold J. Berman, Law and Revolution: The Formation of the Western Legal Tradition (Cambridge, Mass.: Harvard University Press, 1983); Walter Ullmann, Law and Politics

236  d  1. The Autonomous State and the Origin of the Political

11. 12. 13. 14. 15. 16. 17. 18. 19.

20. 21.

22.

23. 24. 25.

26. 27.

in the Middle Ages: An Introduction to the Sources of Medieval Political Ideas (Ithaca, N.Y.: Cornell University Press, 1975); M. P. Gilmore, Argument from Roman Law in Political Thought, 1200–1600 (Cambridge, Mass.: Harvard University Press, 1941). Alan Harding, Medieval Law and the Foundations of the State (Oxford: Oxford University Press, 2002), 2. Downing, Military Revolution, chap. 2; Strayer, Medieval Origins, 41. Peter Riesenberg, The Inalienability of Sovereignty in Medieval Political Thought (New York: Columbia University Press, 1956). Janet Coleman, “Property and Poverty,” in The Cambridge History of Medieval Political Thought, c.350–c.1450, ed. J. H. Burns (Cambridge: Cambridge University Press, 1988). Rees Davies, “The State: Tyranny of a Concept?” Journal of Historical Sociology 16 ( June 2003): 280–300. Strayer, Medieval Origins, chap. 1; Antony Black, Political Thought in Europe, 1250–1450 (Cambridge: Cambridge University Press, 1992), 34–41. Harding, Medieval Law, chaps. 5–6; Downing, Military Revolution, 33–34. Tierney, Crisis, part 3. See Jean Dunbabin, “The Reception and Interpretation of Aristotle’s Politics,” in The Cambridge History of Later Medieval Philosophy: From the Rediscovery of Aristotle to the Disintegration of Scholasticism, 1100–1600, ed. Norman Kretzman et al. (Cambridge: Cambridge University Press, 1988); and Nicolai Rubinstein, “The History of the Word Politicus in Early-Modern Europe,” in The Languages of Political Theory in Early-Modern Europe, ed. Anthony Pagden (Cambridge: Cambridge University Press, 1985). This kind of inquiry was authorized by Thomas Aquinas’s belief that naturalist studies were not incompatible with divine knowledge. Janet Coleman, “Dominium in Thirteenth- and Fourteenth-Century Political Thought and Its Seventeenth-Century Heirs: John of Paris and Locke,” Political Studies 33 (1985): 73–100; cf. Riesenberg, Inalienability. Gérald Sfez, Les doctrines de la raison d’état (Paris: Armand Colin, 2000), 10–12; Christian Lazzeri, “Le gouvernement de la raison d’état,” in Le pouvoir de la raison d’état, ed. Lazzeri and Dominique Reynié (Paris: Presses universitaires de France, 1992), 101; Gaines Post, Studies in Medieval Legal Thought: Public Law and the State, 1100–1322 (Princeton, N.J.: Princeton University Press, 1964); Strayer, Medieval Origins, 27. Sfez, Doctrines, 11. M. S. Kempshall, The Common Good in Late Medieval Political Thought (Oxford: Oxford University Press, 1999). Quentin Skinner, The Foundations of Modern Political Thought, 2 vols. (Cambridge: Cambridge University Press, 1978), 1: 65; James Blythe, Ideal Government and the Mixed Constitution in the Middle Ages (Princeton, N.J.: Princeton University Press, 1992); Downing, Military Revolution, chap. 3. Skinner, Foundations, 1: 52, 62–63, 65. Annabel Brett, Liberty, Rights, and Nature: Individual Rights in Later Scholastic Thought (Cambridge: Cambridge University Press, 1992); Blandine Kriegel, The State and the Rule of

1. The Autonomous State and the Origin of the Political  d  237 

28. 29. 30. 31. 32.

33. 34. 35. 36. 37. 38.

39. 40.

41.

42.

43. 44. 45. 46.

Law, trans. Marc A. Lepain and Jeffrey C. Cohen (Princeton, N.J.: Princeton University Press, 1995). Strayer, Medieval Origins, 32. Quentin Skinner, “The State,” in Political Innovation and Conceptual Change, ed. Terence Ball et al. (Cambridge: Cambridge University Press, 1989), 91–95. Skinner, Foundations, 1: 24–25. Peter Stacey, Roman Monarchy and the Renaissance Prince (Cambridge: Cambridge University Press, 2007), 96. Maurizio Viroli, From Politics to Reason of State: The Acquisition and Transformation of the Language of Politics, 1250–1600 (Cambridge: Cambridge University Press, 1992), 2–3. Lazzeri, “Le gouvernement,” 104; Stacey, Roman Monarchy, 234. Stacey, Roman Monarchy, 210, 234. Skinner, Foundations, 1: 184. Senellart, Les arts, 41. Sfez, Doctrines, 27–30. Exemplary versions of this interpretation include Skinner, Foundations, 2: 353; Skinner, “The State,” 102–3; Martin van Creveld, The Rise and Decline of the State (Cambridge: Cambridge University Press, 1999), 174; Harvey Mansfield, “On the Impersonality of the Modern State: A Comment on Machiavelli’s Use of Stato,” American Political Science Review 77 (1983): 849–57; and Michel Senellart, Machiavélisme et raison d’état (Paris: Presses universitaires de France, 1989), 9–10. Arguably, this problem is even more clear in the Discourses. In the absence of the prince, it is very difficult to locate the ground of a political sphere that can produce unity and security (and liberty) by containing dissension within evolving institutions. Skinner, “The State,” 107. A classic formulation of this argument is Otto Hintze, “Military Organization and the Organization of the State,” in The Historical Essays of Otto Hintze (New York: Oxford University Press, 1975). Steven Gunn, “War, Religion, and the State,” in Early Modern Europe: An Oxford History, ed. Euan Cameron (Oxford: Oxford University Press, 2001); M. S. Anderson, Origins of the Modern European State System, 1494–1618 (London: Longman, 1998). The classic work is Geoffrey Parker, The Military Revolution: Military Innovation and the Rise of the West, 1500–1800 (Cambridge: Cambridge University Press, 1996); however, cf. the earlier book, William H. McNeill, The Pursuit of Power: Technology, Armed Force, and Society from a.d. 1000 (Chicago: University of Chicago Press, 1982). Downing, Military Revolution, 74–82. Tilly, “War Making,” 175. See the histories of reason of state doctrine, including Viroli, From Politics to Reason of State; Senellart, Machiavélisme; Sfez, Doctrines. Friedrich Meinecke, Machiavellism: The Doctrine of Raison d’État and Its Place in Modern History, trans. Douglas Scott (New Haven, Conn.: Yale University Press, 1962), 19.

238  d  1. The Autonomous State and the Origin of the Political

47. 48. 49. 50. 51. 52. 53. 54. 55. 56. 57. 58.

59. 60. 61. 62.

63. 64. 65.

66. 67.

68. 69.

Cf. Étienne Thuau, Raison d’état et pensée politique à l’époque de Richelieu (Paris: Armand Colin, 1966), 386. Meinecke, Machiavellism, 1. Meinecke, Machiavellism, 25. Meinecke, Machiavellism, 1. Lazzeri, “Le gouvernement,” 134. Thuau, Raison d’état, 9. Thuau, Raison d’état, 405–6. Michel Foucault, Sécurité, territoire, population: cours au Collège de France (1977–1978), ed. Michel Senellart (Paris: Seuil, 2004), 264–65. Tilly, “War Making,” 183. Senellart, Les arts, 233–34. Hinsley, Sovereignty, 120–21. Skinner, Foundations, 2: 355–56. Claude-Gilbert Dubois, “La ‘nation’ et ses rapports avec la ‘république’ et la ‘royauté,’” in Jean Bodin: Nature, histoire, droit, et politique, ed. Yves Charles Zarka (Paris: Presses universitaires de France, 1996), 109; Simone Goyard-Fabre, “Le magistrat et le people,” in Jean Bodin, 116. See Anna Maria Battista, “Morale ‘privée’ et utilitarianisme politique en France au xviie siècle,” in Le pouvoir, 229. On this aspect of politics in the period, see Jacob Soll, Information Master: Jean Baptiste Colbert’s Secret State Information System (Ann Arbor: University of Michigan Press, 2009). Foucault, Sécurité, 280–84. Tuck, Philosophy and Government, 1572–1651 (Cambridge: Cambridge University Press, 1993), 54–62; Gerhard Oestreich, Neostoicism and the Early Modern State, trans. David McLintock (Cambridge: Cambridge University Press, 1982), 7–9. For this approach, see Senellart, Les arts, 230–41. Foucault, Sécurité, 265. Louis Marin, “Pour une théorie baroque de l’action politique,” preface in Gabriel Naudé, Considérations politique sur les coups d’état, ed. Frédérique Marin and Marie-Odile Perulli (Paris: Les Éditions de Paris, 1988), 19. Daniel Engster, Divine Sovereignty: The Origins of Modern State Power (Dekalb: Northern Illinois University Press, 2001), 104–5. Leo Strauss, “On the Spirit of Hobbes’ Political Philosophy,” Revue internationale de philosophie 4 (October 1950): 415. This is of course an allusion to Schmitt’s claim that “precisely a philosophy of concrete life must not withdraw from the exception and the extreme case, but must be interested in it to the highest degree. . . . The exception is more interesting than the rule.” Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Cambridge, Mass.: MIT Press, 1985), 15. Strauss, “Hobbes,” 416. On this point, see Kathleen Davis, Periodization and Sovereignty: How Ideas of Feudalism and Secularization Govern the Politics of Time (Philadelphia: University of Pennsylvania Press, 2008), chap. 1.

2. States of Reasoning  d  23 9 

2. States of Reasoning 1. 2. 3. 4.

5.



6. 7. 8. 9.

10.

11.

12. 13. 14. 15.

16.

Knud Haakonsen, “Hugo Grotius and the History of Political Thought,” Political Theory 13 (1985): 248–49. Hugo Grotius, Commentary on the Law of Prize and Booty, ed. Martine Julia van Ittersum (Indianapolis: Liberty Fund, 2006), prolegomena, 8. Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999), esp. introduction. Tuck, Rights of War and Peace, chap. 3. Tuck estimates the fortune seized as close to the annual expenditure of the English government at the time and notes that the capital raised founded the famed Dutch East India Company. For a thorough, complex analysis of the commercial and juridical contexts of Grotius’s work, see Martine Julia van Ittersum, Profit and Principle: Hugo Grotius, Natural Rights Theory, and the Rise of Dutch Power in the East Indies, 1595–1605 (Leiden: Brill, 2006). Grotius’s larger treatise remained unpublished; however, the key chapter on the freedom of the seas was published and drew many critical responses, most notably from John Selden in Britain. Grotius, Commentary, 9. Grotius, Commentary, 10. Grotius, Commentary, 11–13. Hugo Grotius, On the Law of War and Peace, trans. Francis W. Kelsey, 3 vols. (Indianapolis: Bobbs-Merrill, 1925), dedication, 3, 5. Further references to this edition will be in the text to book, chapter, section, paragraph—except in the case of the prolegomena, which will be referred to with the abbreviation P and section number. While Richard Tuck insists that Grotius’s target really is skepticism, in its early-modern form as exemplified by writers such as Pierre Charron and Michel Montaigne, it is clear that Grotius has “reason of state” theories in mind. See the persuasive analysis by Thomas Mautner, “Grotius and the Skeptics,” Journal of the History of Ideas 66 (2005): 577–601. The only exception here is when the sovereign demonstrates a “hostile intent to destroy a whole people,” because this reveals a self-evident logical contradiction of the very purpose of sovereignty. By becoming an “enemy of the whole people,” the sovereign effectively renounces that sovereign power, Grotius believed (1.4.8.11). Thomas Hobbes, Leviathan, ed. Richard Tuck (Cambridge: Cambridge University Press, 1993), introduction, 9. Further page references to this edition will be in the text. Thomas Hobbes, De Cive: The English Version, ed. Howard Warrender (Oxford: Oxford University Press, 1983), chap. 6, §19. Thomas Hobbes, Tripos, in The English Works of Thomas Hobbes of Malmesbury, 11 vols. (London: J. Bohn, 1839), 4: 266. Carl Schmitt, The Leviathan in the State Theory of Thomas Hobbes: Meaning and Failure of a Political Symbol, trans. George Schwab and Erna Hilfstein (Chicago: University of Chicago Press, 2008), 34. On the context of Hobbes’s rethinking of soul in the age of mechanism, see Daniel Garber, “Soul and Mind: Life and Thought in the Seventeenth Century,” in The Cambridge

240  d  2. States of Reasoning

17. 18.

19. 20.

21. 22. 23.

24. 25.

26. 27.

28.

29.

History of Seventeenth-Century Philosophy, ed. Daniel Garber and Michael Ayers (Cambridge: Cambridge University Press, 2003). Otto Mayr, Authority, Liberty, and Automatic Machinery in Early Modern Europe (Baltimore: Johns Hopkins University Press, 1986). It would be perilous to follow Quentin Skinner here. He not only rigidly separates organic and mechanical metaphors of the state in Hobbes but also completely denies the significance of the organic type. See Skinner, Reason and Rhetoric in the Philosophy of Hobbes (Cambridge: Cambridge University Press, 1994), 387–88. See Jean-Claude Beaune, L’automate et ses mobiles (Paris: Flammarion, 1980). The most thorough example of this approach may be Michael Esfeld, Mechanismus und Subjektivität in der Philosophie von Thomas Hobbes (Stuttgart: Frommann-Holzboog, 1995). See Paul P. Christensen, “Hobbes and the Physiological Origins of Economic Science,” History of Political Economy 21 (1989): 689–709. Carl Zimmer, The Soul Made Flesh: The Discovery of the Brain—And How It Changed the World (New York: Free Press, 2004), 96–100. See the stimulating account of Samantha Frost, Lessons from a Materialist Thinker: Hobbesian Reflections on Ethics and Politics (Stanford, Calif.: Stanford University Press, 2008). The argument is hampered by a rather limited knowledge of Descartes’s physiological theory, but Frost nicely highlights Hobbes’s idea that the higher cognitive faculties can be understood as the capacity to interrupt more direct responses to the environment, even though they arose within the material body. This dimension of Hobbesian “reason” is often missed, even by astute readers such as Skinner. See Reason and Rhetoric, 429, 433. The best examinations of the relation between reason and rhetoric are: Victoria Kahn, Rhetoric, Prudence, and Skepticism in the Renaissance (Ithaca, N.Y.: Cornell University Press, 1994), chap. 4; Skinner, Reason and Rhetoric; and James Martel, Subverting the Leviathan: Reading Thomas Hobbes as a Radical Democrat (New York: Columbia University Press, 2007). Because reason is only ever the servant of passion, the problem with rhetoric, for Hobbes, is that it may well inflame the wrong passion, interrupting the reasoning that should flow from the primary fear of death. Hobbes, De Cive, 50. Murray Forsyth, “Thomas Hobbes and the External Relation of States,” British Journal of International Studies 5 (1979): 201. For a complementary view on this problem, see Paulo Pasqualucci, “Hobbes and the Myth of ‘Final War,’” Journal of the History of Ideas 51 (1990): 647–57. Hobbes, Elements of Philosophy, part 2, chap. 7, in English Works, 1: 97. As Hobbes noted, the problem of the soul’s location mirrors that of God’s—can it be everywhere and in every part if it is itself a genuine whole? See Hobbes, “An Answer to Bishop Bramhall’s Book,” Tripos: English Works, 4: 297. About the seventeenth-century debates on these intertwined physiological, political, and theological questions, see Rob Iliffe, “‘That Puzleing Problem’: Isaac Newton and the Political Physiology of the Self,” Medical History 39 (1995): 433–58.

3. Locke’s Natural History of the Political  d  24 1  30. 31.

32.

33.

34.

Hobbes, De Cive, 42. On this crucial dimension of Pufendorf ’s work, see T. J. Hochstrasser, Natural Law Theory in the Early Enlightenment (Cambridge: Cambridge University Press, 2000), esp. 63–65. Samuel von Pufendorf, On the Duty of Man and Citizen, ed. James Tully, trans. Michael Silverthorne (Cambridge: Cambridge University Press, 1991), 33. Further page references in the text. Samuel von Pufendorf, Elements of Universal Jurisprudence, in Political Writings of Samuel von Pufendorf, ed. Craig L. Carr, trans. Michael J. Seidler (Oxford: Oxford University Press, 1994), 79. See Thomas Behme, “Pufendorf ’s Doctrine of Sovereignty and Its Natural Law Foundations,” in Natural Law and Civil Sovereignty: Moral Right and State Authority in Early Modern Political Thought, ed. Ian Hunter and David Saunders (New York: Palgrave Macmillan, 2002), 43–58.

3. Locke’s Natural History of the Political 1. 2.

3.

4.

Alan Cromartie, The Constitutionalist Revolution: An Essay on the History of England, 1450–1642 (Cambridge: Cambridge University Press, 2006), 279. John Locke, Second Treatise, in Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1988), §159. Further references to the Second Treatise (by section number) are in the text. As some claim: Paulo Pasquino, “Locke on King’s Prerogative,” Political Theory 26 (1998): 199; and Clement Fatovic, “Constitutionalism and Contingency: Locke’s Theory of Prerogative,” History of Political Thought 25 (2004): 277. However, see earlier works that cite Locke, such as Carl J. Friedrich, Constitutional Reason of State: The Survival of the Constitutional Order (Providence, R.I.: Brown University Press, 1957); Carl Schmitt, Die Diktatur: Von den Anfängen des modernen Souveränitätsgedankens bis zum proletarischen Klassenkampf (Berlin: Duncker and Humblot, 1921); and Clinton Rossiter, Constitutional Dictatorship: Crisis Government in the Modern Democracies (Princeton, N.J.: Princeton University Press, 1948). Some recent variations on these themes include Clement Fatovic, “The Political Theory of Prerogative: The Jurisprudential Miracle in Liberal Constitutional Thought,” Perspectives on Politics 6 (2008): 487–501; Pasquino, “Locke”; Paulo Pasquino and John Ferejohn, “The Law of the Exception: A Typology of Emergency Powers,” International Journal of Constitutional Law 2 (2004): 210–39; Douglas Casson, “Emergency Judgment: Carl Schmitt, John Locke, and the Paradox of Prerogative,” Politics and Policy 36 (2008): 944– 71; Oren Gross and Fionnuala Ní Aoláin, Law in Times of Crisis: Emergency Powers in Theory and Practice (Cambridge: Cambridge University Press, 2006); David Dyzenhaus, The Constitution of Law: Legality in a Time of Emergency (Cambridge: Cambridge University Press, 2006); Kathleen Arnold, “Domestic War: Locke’s Concept of Prerogative and Implications for U.S. ‘Wars’ Today,” Polity 39 (2007): 1–28; Lee Ward, “Locke on

242  d  3. Locke’s Natural History of the Political

5.

6. 7.

8. 9. 10. 11.

12. 13.

14.

15.

Executive Power and Liberal Constitutionalism,” Canadian Journal of Political Science 38 (2005): 719–44; Benjamin A. Kleinerman, “Can the Prince Really Be Tamed? Executive Prerogative, Popular Apathy, and the Constitutional Frame in Locke’s Second Treatise,” American Political Science Review 101 (2007): 209–22; Leonard C. Feldman, “Judging Necessity: Democracy and Extra-legalism,” Political Theory 36 (2008): 550–77; and John Yoo, Powers of War and Peace: The Constitution and Foreign Affairs After 9/11 (Chicago: University of Chicago Press, 2005), chap. 2. See Michael Mendle, “Parliamentary Sovereignty: A Very English Absolutism,” in Political Discourse in Early Modern Britain, ed. Nicholas Phillipson and Quentin Skinner (Cambridge: Cambridge University Press, 1993), 102. Mendle, “Parliamentary Sovereignty,” 103. See Francis Oakley, “Jacobean Political Theology: The Absolute and Ordinary Powers of the King,” Journal of the History of Ideas 29 (1968): 323–46. Also see Cromartie, Constitutionalist Revolution, 194, for Edward Coke’s version, in particular. Francis D. Wormuth, The Royal Prerogative, 1603–1649: A Study in English Political and Constitutional Ideas (Ithaca, N.Y.: Cornell University Press, 1939). Cromartie, Constitutionalist Revolution, 204. James Tully, An Approach to Political Philosophy: Locke in Contexts (Cambridge: Cambridge University Press, 1993), 9–10. Peter Laslett, “Introduction,” in John Locke, Two Treatises of Government, ed. Peter Laslett (Cambridge: Cambridge University Press, 1960); Richard Ashcraft, Revolutionary Politics and Locke’s “Two Treatises of Government” (Princeton, N.J.: Princeton University Press, 1986). C. B. Macpherson, Political Theory of Possessive Individualism: Hobbes to Locke (Oxford: Oxford University Press, 1962). John Marshall, John Locke: Resistance, Religion, and Responsibility (Cambridge: Cambridge University Press, 1994); Joshua Mitchell, Not by Reason Alone: Religion, History, and Identity in Early Modern Political Thought (Chicago: University of Chicago Press, 1993); John Dunn, The Political Thought of John Locke: An Historical Account of the Argument of the “Two Treatises of Government” (Cambridge: Cambridge University Press, 1982); Kirstie McClure, Judging Rights: Lockean Politics and the Limits of Consent (Ithaca, N.Y.: Cornell University Press, 1996); Jeremy Waldron, God, Locke, and Equality: Christian Foundations of John Locke’s Political Thought (Cambridge: Cambridge University Press, 2002); James Martel, “Love Is a Sweet Chain”: Desire, Autonomy, and Friendship in Liberal Political Theory (London: Routledge, 2001), chap. 2. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1965); William von Leyden, “John Locke and Natural Law,” Philosophy 31 (1956); William von Leyden, “Introduction,” in John Locke, Essays on the Law of Nature, ed. Von Leyden (Oxford: Oxford University Press, 1965); John Yolton, “Locke on the Law of Nature,” Philosophical Review 67 (1958): 477–98. Tully, Approach; Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999); David Armitage, “John Locke, Carolina, and the Two Treatises of Government,” Political Theory

3. Locke’s Natural History of the Political  d  24 3 

16. 17. 18. 19. 20. 21. 22.

23.

24.

25.



26. 27. 28. 29. 30. 31.

32.

32 (2004): 602–27; Vicky Hsueh, “Cultivating and Challenging the Common: Lockean Property, Indigenous Traditionalisms, and the Problem of Exclusion,” Contemporary Political Theory 5 (2006): 193–214. Richard Ashcraft, “Locke’s Political Philosophy,” in The Cambridge Companion to Locke, ed. Vere Chappell (Cambridge: Cambridge University Press, 1994), 227. John Locke, “Second Tract on Government,” in Political Essays, ed. Mark Goldie (Cambridge: Cambridge University Press, 1997), 56–57. See Dunn, Political Thought, 163; and Richard Cox, Locke on War and Peace (Oxford: Oxford University Press, 1960), 194. Locke, Essays on the Law of Nature, 157. Locke, Essays on the Law of Nature, 111. Locke, Essays on the Law of Nature, 113. Strauss, Natural Right, 223–24; Thomas Pangle, The Spirit of Modern Republicanism: The Moral Vision of the American Founders and the Philosophy of John Locke (Chicago: University of Chicago Press, 1988), 176–80, chap. 16. See Jerome Schneewind, “Locke’s Moral Philosophy,” in The Cambridge Companion to Locke, 221. On the complexity of reason in Locke’s political and religious thinking, see Martel, “Love Is a Sweet Chain,” chap. 2. Cf. Essays on the Law of Nature, 113. “For how few there are who in matters of daily practice or matters easy to know surrender themselves to the jurisdiction of reason or follow its lead, when, either led astray by the violence of passions or being indifferent through carelessness or degenerate through habit, they readily follow the inducements of pleasure or the urges of their base instincts rather than the dictates of reason.” On the ubiquity of highway robbery and other forms of banditry in this period, and the real possibility of being killed in such encounters, see Julius Ralph Ruff, Violence in Early Modern Europe, 1500–1800 (Cambridge: Cambridge University Press, 2001), chap. 7. Some contemporary examples from the seventeenth century are given in Andrew Barrett and Christopher Harrison, Crime and Punishment in England: A Sourcebook (London: UCL Press, 1999), 125–27. Locke, “Politia” (March 25, 1679), in Political Essays, 274. Cox, Locke on War and Peace, 76–77. Strauss, Natural Right, 225, 228, 239, note 113. Ashcraft, “Locke’s Political Philosophy,” 247–48. Locke, “First Tract on Government,” in Political Essays, 6. On the pervasive fear of disorder in this period, see, for example, D. E. Underdown, “The Taming of the Scold: The Enforcement of Paternal Authority in Early Modern England,” in Order and Disorder in Early Modern England, ed. Anthony Fletcher and John Stevenson (Cambridge: Cambridge University Press, 1987), 116–17; and John Briggs et al., Crime and Punishment in England: An Introductory History (London: Palgrave Macmillan, 1996), esp. chap. 5. Also see the earlier work of Christopher Hill, Change and Continuity in Seventeenth-Century England (London: Weidenfeld and Nicolson, 1974), chap. 8. The theological underpinning of this historical view is nicely explicated by Mitchell, Not by Reason Alone, chap. 3, esp. 96–97.

244  d  3. Locke’s Natural History of the Political 33.

34. 35. 36. 37. 38. 39. 40. 41.

42. 43. 44. 45. 46. 47.

This understanding of reason is perfectly consistent with Locke’s epistemological theory in Essay Concerning Human Understanding. While our framing and conceptualization of the world can be stable and internally consistent, there is no guarantee that the world’s behavior will be consistent with our conceptualization of it. The future is always unpredictable, Locke tells us in Essay. However, in the new situations we can deploy reason to reconceptualize our experience and once again organize our responses accordingly. Prerogative, Locke wrote, “belongs to truth alone,” but he immediately qualifies this by saying that truth commands authority “by and in proportion to that evidence which it carries with it.” John Locke, Essay Concerning Human Understanding, ed. Petter H. Nidditch (Oxford: Oxford University Press, 1979), 4.19.2 (p. 698). Mendle, “Parliamentary Sovereignty,” 106–8. Cromartie, Constitutionalist Revolution, 114; cf. discussion of Finch and Coke as well, 202–4. Fatovic, “Constitutionalism,” 277. OED, s.v. “prerogative.” On these issues in Locke, see François Saint-Bonnet, L’état d’exception (Paris: Presses universitaires de France, 2001), 263–73. Locke, “A Discourse on Miracles,” in The Works of John Locke, 12th ed., 10 vols. (London: T. Tegg, 1823), 8: 262. Locke, “A Letter from a Person of Quality,” in The Works of John Locke, 10: 243. For the larger context of this turn, see Frederick C. Beiser, The Sovereignty of Reason: The Defense of Rationality in the Early English Enlightenment (Princeton, N.J.: Princeton University Press, 1996). Victoria Kahn, Rhetoric, Prudence, and Skepticism in the Renaissance (Ithaca, N.Y.: Cornell University Press, 1985). Schmitt, Die Diktatur, 42; Fatovic, “Political Theory of Prerogative,” 492. Locke, Essay, 4.17.14–15, p. 683. For the context of these ideas, see my “Idols and Insight: An Enlightenment Topography of Knowledge,” Representations 73 (2001): 1–23. Sheldon Wolin, “Democracy and the Welfare State: The Political and Theoretical Connections Between Staatsräson and Wohlfahrtsstaatsräson,” Political Theory 15 (1987): 485. See §§149, 158. On this problem, see Mark Neocleous, “Security, Liberty and the Myth of Balance: Towards a Critique of Security Politics,” Contemporary Political Theory 6 (2007): 136. While Neocleous is right to note how Locke opens up a slippage between the federative power and the executive authority, he does, to my mind, misread the nature of these two powers and their competing modes of legitimation.

4. Systems of Sovereignty in Montesquieu 1.

Exemplary of the first position is Raymond Aron, Main Currents in Sociological Thought: Montesquieu, Comte, Marx, Tocqueville, trans. Daniel J. Mahoney (New Brunswick, N.J.: Transaction, 1998). Offering very different versions of the second are Thomas Pangle,

4. Systems of Sovereignty in Montesquieu  d  24 5 

2. 3.

4.

5.

6.



7. 8. 9. 10.

11. 12.

13.

14. 15. 16.

Montesquieu’s Philosophy of Liberalism: A Commentary on the Spirit of Laws (Chicago: University of Chicago Press, 1973); and Judith Shklar, Montesquieu (Oxford: Oxford University Press, 1987). Isaiah Berlin, “Montesquieu,” in Against the Current: Essays in the History of Ideas (New York: Viking, 1977), 130–61. Leo Strauss, What Is Political Philosophy? And Other Studies (Glencoe, Ill.: Free Press, 1959), 49–50; Pierre Manent, The City of Man, trans. Marc A. Lepain (Princeton, N.J.: Princeton University Press, 1998); Jonathan Israel, Enlightenment Contested: Philosophy, Modernity, and the Emancipation of Man, 1670–1752 (Oxford: Oxford University Press, 2006); Mark Hulliung, Montesquieu and the Old Regime (Berkeley: University of California Press, 1976); James W. Muller, “The Political Economy of Republicanism,” in Montesquieu and the Spirit of Modernity, ed. David W. Carrithers and Patrick Coleman (Oxford: Voltaire Foundation, 2002). Keith Baker, “Public Opinion as Political Invention,” in Inventing the French Revolution: Essays on French Political Culture in the Eighteenth Century (Cambridge: Cambridge University Press, 1990), 176; Elena Russo, “Monstrous Virtue: Montesquieu’s Considérations sur les romains,” Romanic Review 90 (1999); cf. Brian Singer, “Montesquieu on Power: Beyond Checks and Balances,” in Montesquieu and His Legacy, ed. Rebecca Kingston (Albany: SUNY Press, 2008), 108. Charles-Louis de Secondat, baron de La Brède et de Montesquieu, Esprit des lois, in vol. 2, Pléiade edition, Oeuvres complètes (Paris: Gallimard, 1951), book I, chap. 1. Further references are in the text (book, chapter). Translations are from Montesquieu, The Spirit of the Laws, trans. and ed. Anne M. Cohler et al. (Cambridge: Cambridge University Press, 1989), at times modified. Richard Myers does highlight the “freakish” case of Rome but only to emphasize the admirable liberty of the English. See “Montesquieu on the Causes of Roman Greatness,” History of Political Thought 16 (1995), 37–47. Aron, Main Currents, 56. Aron, Main Currents, 63. Jean Starobinski, Montesquieu (Paris: Seuil, 1979), 111–13. Franz Neumann, The Democratic and Authoritarian State: Essays in Political and Legal Theory (Glencoe, Ill.: Free Press, 1964), 119. See Céline Spector, Montesquieu: Pouvoirs, richesses et sociétés (Paris: Presses universitaires de France, 2004), esp. chap. 1. Sharon Krause, “Despotism in The Spirit of the Laws,” in Montesquieu’s Science of Politics: Essays on “The Spirit of the Laws,” ed. Paul A. Rahe and Michael A. Mosher (London: Rowman and Littlefield, 2001), 258. Charles-Louis Secondat, baron de La Brède et de Montesquieu, Lettres persanes, in Oeuvres complètes (Oxford: Voltaire Foundation, 2004), vol. 1, letter 102. Further references (by letter) in the text. Baker, “Public Opinion,” 177. Montesquieu, “Mes pensées: Liberté,” OC (Pléiade), 1: 1431. Michael Mosher points to the “uncertain identity of this sovereign,” but I think we need

246  d  4. Systems of Sovereignty in Montesquieu

17. 18.

19. 20.

21.

22. 23.

24. 25. 26. 27. 28. 29. 30. 31. 32.

33.

to go further. See his “Monarchy’s Paradox: Honor in the Face of Sovereign Power,” in Montesquieu’s Science, 181. Because of the length of the chapters concerning England, further references in the text are to the pages of the Pléiade edition and the Cambridge translation, respectively. See Hulliung, Montesquieu, 48, who believes that Montesquieu approves of this reversal. Cf. Pierre Manent, “Modern Democracy as a System of Separations,” Journal of Democracy 14 (2003): 114–25. As Manent writes, “In effect, since citizens cannot act within such a system by commanding one another, they see no other path for their activities and ambitions than that of ‘making their independence worth their liking’ by directing their desires and efforts toward domains that are foreign to power or to politics properly so called, domains in which one does not strictly speaking exercise power over other members of society. All that remains to citizens is to exercise their talents, and to become rich or famous by doing so. In a political regime set up in this way, the principal spheres of life are the economy and culture” (120). Carl Schmitt, Verfassungslehre (Munich: Duncker and Humblot, 1928), chap. 15, p. 373. Charles Eisenmann, “La pensée constitutionelle de Montesquieu,” in La pensée politique et constitutionnelle de Montesquieu: Bicentenaire de “L’esprit des lois,” 1748–1948, ed. Boris Mirkine-Guetzévitch and Henri Puget (Paris: Sirey, 1952); cf. Louis Althusser, Politics and History: Montesquieu, Rousseau, Hegel and Marx, trans. Ben Brewster (London: NLB, 1972), 88–92; Simone Goyard-Fabre, Montesquieu: La nature, les lois, la liberté (Paris: Presses universitaires de France, 1993). Otto Mayr has suggested that self-governing automatic machinery in the early-modern period offered a model for just this kind of political liberalism. See Mayr, Authority, Liberty, and Automatic Machinery in Early Modern Europe (Baltimore: Johns Hopkins University Press, 1986). Neumann, Democratic and Authoritarian State, 142. Montesquieu, Lettres persanes, 101. On the impatience of the British, see Paul A. Rahe, “Forms of Government: Structure, Principle, Object, and Aim,” in Montesquieu’s Science, 86, 90; and C. P. Courtney, “Montesquieu and English Liberty,” in Montesquieu’s Science, 285. Montesquieu, “Notes sur l’Angleterre,” in OC (Pléiade), 1: 867–68. Montesquieu, “Notes,” 1: 877. Montesquieu, “Notes,” 1: 877. Montesquieu, “Notes,” 1: 877. Montesquieu, “Notes,” 1: 878. Montesquieu, “Notes,” 1: 880. On the extremity (and fragility) of English liberty, see Céline Spector, Montesquieu: Li­ berté, droit, et histoire (Paris: Michalon, 2010), 174–92. Israel, Enlightenment Contested, 293. Bernard Manin, “Montesquieu et la politique moderne,” in Lectures de “L’Esprit des lois,” ed. Céline Spector and Thierry Hoquet (Bordeaux: Presses universitaires de Bordeaux, 2004), 216; cf. 230. As Paul Rahe does assume, without much evidence, in Montesquieu and the Logic of Lib­ erty: War, Religion, Commerce, Climate, Terrain, Technology, Uneasiness of Mind, the

5. Rousseau’s Cybernetic Political Body  d  247 

34.

35. 36.

37.

38. 39. 40. 41.

42.

43.

Spirit of Political Vigilance, and the Foundations of Modern Republics (New Haven, Conn.: Yale University Press, 2009). As Vanessa de Senarclens writes, one of Montesquieu’s goals as a historian was to comprehend “the irreducible alterity marking each epoch or culture.” See her Montesquieu, historien de Rome: Un tournant pour la réflexion sur le statut de l’histoire au XVIIIe siècle (Geneva: Droz, 2003), 12. Page references are to the OC (Voltaire Foundation, ed.), vol. 2. The relevance of England is explicitly remarked upon here by Montesquieu: “Le Gouvernment d’Angleterre est un des plus sages de l’Europe, parce qu’il y a un Corps qui l’examine continuellement, & qui s’examine continuellement lui-même” (152). Elena Russo sees this oppositional political system in Montesquieu’s Rome, with its “precarious balance,” as essentially “modern.” Russo, Styles of Enlightenment: Taste, Politics, and Authorship in Eighteenth-Century France (Baltimore: Johns Hopkins University Press, 2007), 190. Page references are to OC (Voltaire Foundation, ed.), vol. 8, part 1. As Hulliung, for one, suggests; see Montesquieu, ix, 76. See Neumann, Democratic and Authoritarian State, 109–11. On Montesquieu’s complex contribution to this debate, see Annelien de Dijn, French Political Thought from Montesquieu to Tocqueville: Liberty in a Levelled Society? (Cambridge: Cambridge University Press, 2008), 20–32. See Daniel Brewer, “Thinking History Through Montesquieu,” in Montesquieu and the Spirit of Modernity. Brewer nicely details the problem of the historicity of the monarchical form. However, I would disagree that Montesquieu’s aim was the displacement of sovereign power by “institutions and laws” (232). See Céline Spector, “Quelle justice? Quelle rationalité? La mesure du droit dans L’Esprit des lois,” in Montesquieu en 2005, ed. Cathérine Volpilhac-Auger (Oxford: Voltaire Foundation, 2005), 219–42. Spector claims that law was essentially about proportionality. The only normative principle that one can derive from Montesquieu’s historical analyses is therefore that of “moderation.”

5. Rousseau’s Cybernetic Political Body 1.

2.

Robert Derathé emphasizes Rousseau’s debt to the natural-law tradition, countering C. E. Vaughan’s earlier position that Rousseau marks a wholly new way of thinking. ­Robert Derathé, Jean-Jacques Rousseau et la science politique de son temps (Paris: Presses universitaires de France, 1950); C. E. Vaughan, The Political Writings of Rousseau (Cambridge: Cambridge University Press, 1915). For a recent review of the question of Rousseau’s relationship to the natural-law theorists, see Helena Rosenblatt, Rousseau and Geneva: From the First Discourse to the Social Contract, 1749–1762 (Cambridge: Cambridge University Press, 1997), chaps. 3–4. Carl Schmitt, Die Diktatur: Von den Anfängen des modernen Souveränitätsgedankens bis zum proletarischen Klassenkampf (Berlin: Duncker and Humblot, 1921), chaps. 3–4;

248  d  5. Rousseau’s Cybernetic Political Body

3. 4. 5. 6.

7.

8. 9. 10. 11.

12. 13. 14.

15. 16.

17.

18. 19.

Schmitt, Crisis of Parliamentary Democracy, trans. Ellen Kennedy (Cambridge, Mass.: MIT Press, 1988), 13–14, 26–27. Hannah Arendt, On Revolution (New York: Viking, 1965), 77; cf. 155–56, chap. 2. Sheldon Wolin, Politics and Vision: Continuity and Innovation in Western Political Thought (Princeton, N.J.: Princeton University Press, 2008), 8, 273, 280, 336. Judith Shklar, Men and Citizens: A Study of Rousseau’s Social Theory (Cambridge: Cambridge University Press, 1969). Jean-Jacques Rousseau, Discours sur les sciences et les arts, in Oeuvres complètes de JeanJacques Rousseau, ed. Bernard Gagnebin and Marcel Raymond, 5 vols. (Paris: Gallimard, 1959–96), 3: 3. (This edition hereafter abbreviated OC.) Translation in Rousseau, The Discourses and Other Early Political Writings, ed. Victor Gourevitch (Cambridge: Cambridge University Press, 1997), 4. Jean-Jacques Rousseau, Treatise on the Sphere, trans. Christopher Kelly, in Collected Writings of Rousseau, ed. Roger D. Masters and Christopher Kelly, 13 vols. (Hanover, N.H.: University Press of New England, 2007), 12: 134–35. Richard Tuck, The Rights of War and Peace: Political Thought and the International Order from Grotius to Kant (Oxford: Oxford University Press, 1999), 202–7. Rousseau, Sphere, 135. Rousseau, Du contract social, ou essai sur la forme de la République (première version), in OC, 3: 288. Rousseau, Discours sur l’origine et les fondemens de l’inégalité parmi des hommes, in OC, 3: 124; trans. in Rousseau, Discourses, 125. Further page references in the text (French/ English), with translations modified at times. Jean-Jacques Rousseau, Émile: or, On Education, trans. Allan Bloom (New York: Basic Books, 1979), 61. Richard Velkley, Being After Rousseau: Philosophy and Culture in Question (Chicago: University of Chicago Press, 2002), 37. See Marc F. Plattner, Rousseau’s State of Nature (Dekalb, Ill.: Free Press, 1979); and Christopher Kelly, “Rousseau’s ‘Peut-être’: Reflections on the Status of the State of Nature,” Modern Intellectual History 3 (2006): 75–83. Velkley, in Being After Rousseau, emphasizes the lack of instinct in these “natural” human beings (42); however, he takes what I think is an overly Heideggerian view of Rousseau when he writes that the human’s “openness to Being exposes him to the non-being of death” (48). See note XII to the Second Discourse. See Ioannis D. Evrigenis, “Freeing Man from Sin: Rousseau on the Natural Condition of Mankind,” in Rousseau and Freedom, ed. Christie McDonald and Stanley Hoffmann (Cambridge: Cambridge University Press, 2010), 11. Jean Starobinski provides a thorough and penetrating analysis of this metaphor in Rousseau’s oeuvre, in his “The Antidote in the Poison: The Thought of Jean-Jacques Rousseau,” in Blessings in Disguise, or the Morality of Evil, trans. Arthur Goldhammer (Cambridge, Mass.: Harvard University Press, 1993), 118–68. Rousseau, Émile, 85. Rousseau, Émile, 236.

5. Rousseau’s Cybernetic Political Body  d  249  20.

21. 22. 23.

24. 25. 26. 27.

28. 29. 30.

31. 32. 33. 34.

35.

Rousseau, Du contract social, ou, principes du droit politique, OC, 3: 360; trans. in Rousseau, The Social Contract and Other Later Political Writings, ed. Victor Gourevitch (Cambridge: Cambridge University Press, 1997), 49. Further page references in the text (French/English) with translations modified at times. Rousseau, Contract social (première version), OC, 3: 284. Rousseau, Contract social (première version), OC, 3: 283–84. See Bernadette Bensaude-Vincent and Bruno Bernardi, eds., Jean-Jacques Rousseau et la chimie (Paris, 1999); Rousseau, Institutions chimiques, ed. Bruno Bernardi and Bernadette Bensaude-Vincent, special issue of Corpus 36 (1999); and Rousseau, Confessions, OC, vol. 2, book 7. Rousseau, Émile, 273. As Paul de Man describes it. See Paul de Man, Allegories of Reading: Figural Language in Rousseau, Nietzsche, Rilke, and Proust (New Haven, Conn.: Yale University Press, 1979), 260. See David Summers, The Judgment of Sense: Renaissance Naturalism and the Rise of Aesthetics (Cambridge: Cambridge University Press, 1990), chap. 5. See René Descartes, Traité de l’homme (ca. 1632) and the later Passions de l’âme (1649), available in René Descartes, Oeuvres de Descartes, ed. Charles Adam and Paul Tannery, 11 vols. (Paris: Vrin, 1965–75), 11: 119–202 and 11: 301–486, respectively. On the embodiment of the Cartesian soul, see Walther Riese and Ebbe C. Hoff, “A History of the Doctrine of Cerebral Localization: Sources, Anticipations, and Basic Reasonings,” Journal of the History of Medicine and Allied Sciences 1 (1950): 53–55; and Nima Bassiri, “Dislocations of the Brain: Subjectivity and Cerebral Topology from Descartes to Nineteenth-Century Neuroscience” (Ph.D. diss., University of California, 2010). Ann Thomson, Bodies of Thought: Science, Religion, and the Soul in the Early Enlightenment (Oxford: Oxford University Press, 2008), chap. 4. Riese and Hoff, “Doctrine of Cerebral Localization,” 53. Anne C. Vila, Enlightenment and Pathology: Sensibility in the Literature and Medicine of Eighteenth-Century France (Baltimore: Johns Hopkins University Press, 1998), 28–34; Jessica Riskin, Science in the Age of Sensibility: The Sentimental Empiricists of the French Enlightenment (Chicago: University of Chicago Press, 2002), 25–27, 45–46. Jacques Roger, Buffon: A Life in Natural History, trans. Sarah Lucille Bonnefoi (Ithaca, N.Y.: Cornell University Press, 1997), 244. Karl M. Figlio, “Theories of Perception and the Physiology of Mind in the Late Eighteenth Century,” History of Science 12 (1978): 181–84. Riese and Hoff, “Doctrine of Cerebral Localization,” 56. See Elizabeth L. Haigh, “Vitalism, the Soul, and Sensibility: The Physiology of Théophile Bordeu,” Journal of the History of Medicine and Allied Sciences 31 (1976): 31–40; William E. Burns, Science in the Enlightenment: An Encyclopedia (Santa Barbara, Calif.: ABC-CLIO, 2003), s.v. “Physiology”; and Sergio Moravia, “From ‘Homme Machine’ to ‘Homme Sensible’: Changing Eighteenth-Century Models of Man’s Image,” Journal of the History of Ideas 39 (1978): 45–60. This has been often argued. See Judith Schlanger, Les métaphores de l’organisme (Paris: Vrin, 1971), 134–37; and Maurizio Viroli, Jean-Jacques Rousseau and the Well-Ordered

250  d  5. Rousseau’s Cybernetic Political Body

36. 37. 38. 39. 40. 41. 42.

43. 44. 45. 46. 47. 48. 49. 50. 51.

52. 53. 54. 55.

56. 57.

Society, trans. Derek Hanson (Cambridge: Cambridge University Press, 2003), 38–40. However, some recent accounts stress the significance of Rousseau’s scientific language in this context: see, for example, Bruno Bernardi, “L’invention de la volonté générale,” in Rousseau, Discours sur l’économie politique (Paris: Vrin, 2002), 103–20. In earlier debates on this issue, see Derathé, Rousseau et la science politique, app. 4. Rousseau, Émile, 272. Rousseau, Émile, 66. Rousseau, Émile, 157–58. Rousseau, Sur l’esprit de Helvétius, OC, 4: 1121, 1123. Rousseau, Rousseau, juge de Jean-Jacques, OC, 1: 804. See Bernardi, “L’invention,” 105–7, for a complementary account. Bernardi emphasizes the scientific dimension of Rousseau’s language in the depiction of the social contract, though he argues that it is primarily chemical (rather than neurophysiological) in orientation. Julien Offray de La Mettrie, Treatise on the Soul, in Machine Man and Other Writings, trans. and ed. Ann Thomson (Cambridge: Cambridge University Press, 1996), 64. Rousseau, Julie, ou La nouvelle Heloïse, OC, 2: 727. Rousseau, Émile, 61. Rousseau, Émile, 61. Rousseau, Discours sur l’économie politique, OC, 3: 244; trans. in Social Contract, 6. Rousseau, Contract social (première version), 3: 310. De Man, Allegories of Reading, 274. De Man, Allegories of Reading, 274. The contextualizing work of Patrick Riley has done much to elucidate the main structural difficulties through an analysis of the theological origins of the problem of the general will. However, Riley does not take into account the physiological problem of generality and unity as it appears in the Social Contract. See Riley, The General Will Before Rousseau (Princeton, N.J.: Princeton University Press, 1988). Rousseau, Discours sur l’économie politique, 3: 244. Rousseau, Discours sur l’économie politique, 3: 245. Rousseau, Contract social (première version), 3: 296. I would disagree with John McCormick, who argues that Rousseau “neuters” the office of the tribune, though I think he is right to point out that Rousseau’s often neglected discussion of concrete Roman institutions opens up the possibility of an “aristocratic oligarchy” at odds with Rousseau’s supposed democratic and populist leanings. Rousseau’s physiological body politic would, it seems to me, easily accommodate the idea of a functional hierarchy—even as all individuals are assimilated into the body, some would serve a higher “synthetic” purpose in the operation of the political nervous system. See McCormick, “Rousseau’s Rome and the Repudiation of Populist Republicanism,” Critical Review of International Social and Political Philosophy 10 (2007): 3–27. Rousseau, Considérations sur le gouvernment de la Pologne, OC, 3: 998; trans. in Social Contract, 220. Rousseau, Considerations, 998/219.

Conclusion  d  251  58.

59. 60. 61. 62. 63. 64. 65.

On this dimension of Rousseau’s thought, see Stanley Hoffmann, Rousseau on International Relations (Oxford: Oxford University Press, 1991); Grace G. Roosevelt, Reading ­Rousseau in the Nuclear Age (Philadelphia: Temple University Press, 1990); and Patrick Riley, “Rousseau as a Theorist of National and International Federalism,” Publius 3 (1973): 5–18. Rousseau, État de guerre, OC, 3: 609; trans. in Social Contract, 162. Further page references (French/English) in the text. Rousseau, Extrait du projet de paix perpetuelle de Monsieur l’Abbé de Saint-Pierre, OC, 3: 564. Rousseau, Extrait, 569. Rousseau, Extrait, 572–73. Rousseau, Extrait, 569. Rousseau, Jugement sur le projet de paix perpetuelle, OC, 3: 595. Rousseau, Discours sur l’économie politique, 3: 245–47.

Conclusion 1. 2. 3.

4.

5. 6.

7. 8. 9. 10. 11.

Carl Schmitt, Verfassungslehre (Munich: Duncker and Humblot, 1928). Carl Schmitt, Die Diktatur (Berlin: Duncker and Humblot, 1921), chap. 3. I have outlined some of these debates in my “Political Unity and the Spirit of Law: Juridical Concepts of the State in the Late Third Republic,” French Historical Studies 28 (2005): 69–101. Niklas Luhmann, Law as a Social System, trans. Klaus A. Ziegart (Oxford: Oxford University Press, 2008), 370, 113–15. For a perceptive discussion of Schmitt in relation to Luhmann, see William Rasch, “Conflict as a Vocation: Schmitt, Lyotard, Luhmann,” in Sovereignty and Its Discontents: On the Primacy of Conflict and the Structure of the Political (London: Birkbeck Law Press, 2004), 22–48. Jürgen Habermas, The Theory of Communicative Action. Vol. 1, Reason and the Rationalization of Society, trans. T. McCarthy (Boston: Beacon Press, 1984). Jacques Derrida, Rogues: Two Essays on Reason, trans. Pascale-Anne Brault and Michael Naas (Stanford, Calif.: Stanford University Press, 2005), xii, 17, 101–2, 157. For a largely sympathetic reading of Derrida’s political ideas, see the recent collection Derrida and the Time of the Political, ed. Pheng Cheah and Suzanne Guerlac (Durham, N.C.: Duke University Press, 2009). Jacques Derrida, The Beast and the Sovereign, trans. Geoffrey Bennington (Chicago: University of Chicago Press, 2009), 67. Étienne Balibar, We the People of Europe: Reflections on Transnational Citizenship, trans. James Swenson (Princeton, N.J.: Princeton University Press, 2004), 182, 184. Étienne Balibar, “Is a Philosophy of Human Civic Rights Possible? New Reflections on Equaliberty,” South Atlantic Quarterly 103 (2004): 319. Jacques Rancière, “10 Theses on Politics,” Theory and Event 5 (2001). For this idea, see Pierre Rosanvallon, La contre-démocratie: La politique à l’âge de la défiance (Paris: Seuil, 2006).

252  d  Conclusion 12.

13. 14.

15.

Jean-Luc Nancy, Being Singular Plural, trans. Robert Richardson and Anne O’Byrne (Stanford, Calif.: Stanford University Press, 2000); Nancy, “La décision de l’existence,” in Une pensée finie (Paris: Galilée, 1990). Jacques Derrida, “Force of Law: The ‘Mystical Foundation of Authority,’” Cardozo Law Review 11 (1990): 965. Immanuel Kant, The Metaphysics of Morals, trans. Mary Gregor (Cambridge: Cambridge University Press, 1996), 87–138; Kant, “Perpetual Peace: A Philosophical Sketch,” in Political Writings, ed. H. S. Reiss (Cambridge: Cambridge University Press, 1970), 93–115. As suggested in Didier Fassin and Marielle Pandolfi, eds., Contemporary States of Emergency: The Politics of Military and Humanitarian Interventions (New York: Zone, 2010).

Index

absolutism, 2, 4, 5, 7, 9, 18, 22, 23, 24–31, 34, 40, 44, 45, 92, 173, 174 animals, 57–58, 65, 69, 76, 82, 105–6, 179–81, 193 Aquinas, Thomas, 236n20 Arendt, Hannah, 173; Origins of Totalitarianism, 219 Aristotle, 38, 41; on the soul, 65 Aron, Raymond, 143 Ashcraft, Richard, 98, 115 automata, 63–67, 70–71, 77, 79, 181, 196, 246n21 Baker, Keith, 135 Balibar, Étienne, 219–20, 227 Berlin, Isaiah, 134 Bisson, Thomas, 36 Bodin, Jean, 22, 46–47, 49 Boerhaave, Herman, 192 Botero, Giovanni, 44 Boulainvillier, Henri de, 168 Buffon, Georges-Louis Leclerc, count de, 192 Bush administration, 17

Carthage, 163 Catholic church, 35–36, 45 Charlemagne, 35 Charron, Pierre, 239n10 chemistry, 190–91 China, 154 Cicero, Marcus, 61 civil war, xiv, 8, 23, 40, 44, 46, 61, 75, 77, 96, 97, 98, 100, 122, 141, 142, 144, 154, 159, 164, 169, 213, 222, 223 Cold War, xv, 26, 27 colonialism, xiv, 8, 25, 26, 27, 28, 43, 98 Condillac, Étienne Bonnot de, 179 Condorcet, Marie Jean Antoine Nicolas, marquis de, 176 conjectural history, 30, 175–76, 185 Considérations politiques sur les coups d’état (Naudé), 49–50, 100–101 Cox, Richard, 115 cybernetics, 172, 177, 226 Della Casa, Giovanni, 44 de Man, Paul, 197 Derrida, Jacques, on sovereignty, 4, 218–19, 220

254  d  Index Dershowitz, Alan, 250n32 Descartes, René, 66, 68, 192 dictatorship, 17, 166–67, 168, 173, 201–4, 213, 219 Diderot, Denis, 137 Dubos, Jean-Baptiste, 168 Dutch East India Company, 239n4 English Civil War, 97 English constitution, 151–60 Favonius, Marcus, 61 Ferguson, Adam, 176 First World War, 23 Fortescue, Sir John, 96 Foucault, Michel, 144, 145; on biopolitics, 6; on governmentality, 8, 48, 133, 232n8 French Revolution, 1, 7, 9, 24, 173 Glorious Revolution, 98 Grotius, Hugo, 13, 52, 53, 54–63, 80–81, 82, 83, 84, 87, 103, 175, 221, 239n10; on animals, 57–58; De Jure Pradae, 55; on international law, 55–56, 57, 60, 151; On the Law of War and Peace, 56–62; on sovereignty, 60–63 Guicciardini, Francesco, 44 Habermas, Jürgen, 3, 218 Hartley, David, 194 Harvey, William, 66 Hegel, Georg Wilhelm Friedrich, 24 Heidegger, Martin, 220, 248n14 Helvétius, Claude-Adrien, 194 Hobbes, Thomas, 13, 22, 52, 54–55, 63–80, 81, 82, 83, 84, 86, 87, 98, 102, 105, 139, 144, 175, 177, 178, 182, 193, 221; on animals, 69, 76; on automata, 63–67, 70–71, 77, 79; De Cive, 74; on interpretation, 30; Leviathan, 64–80; on the soul, 64–67, 77–80 Holy Roman Empire, 35

human rights, 1, 3, 5, 14–15, 172, 219, 233n25 Hume, David, 176 investiture controversy, 36 Israel, Jonathan, 160 Jardin des Plantes, 190 just war, 60, 150–51, 208–10, 213 Kant, Immanuel, 26, 93, 226 Kennedy, Ellen, xiii Koselleck, Reinhart, xiii La Mettrie, Julien Offray de, 192, 194 Laslett, Peter, 98 Lefort, Claude, 4 Lipsius, Justus, 48 Locke, John, 9, 92, 136, 155, 171, 172, 177, 185, 210, 221–22, 225; on (American) Indians, 110–11, 113, 114; on animals, 105–6; on epistemology, 244n33; Essay Concerning Human Understanding, 244n33; Essays on the Law of Nature, 102–3; on executive power, 121–22, 123–25, 128–30, 132, 244n37; on federative power, 121–22, 125–32, 171, 222, 244n47; on legislative power, 120, 122, 123–24; on prerogative, 93–94, 96–98, 100, 116, 122–26, 127, 129, 130, 222; Second Tract on Government, 100; Second Treatise, 95, 98–130 Louis XIII, 57 Luhmann, Niklas, 218 Mably, Gabriel Bonnot de, 217 Machiavelli, Niccolò, 41–42, 48, 50, 161, 165 Magna Carta, 38 Marin, Louis, 49 Marsilius of Padua, 39 materialism, 4, 55, 63, 65–66, 67–68, 70, 78, 177, 191, 193

Index  d  255  Meinecke, Friedrich, 24, 44, 47 military revolution, 43 Montaigne, Michel, 239n10 Montesquieu, Charles-Louis de Secondat, baron de La Brède et de, 7, 9, 92, 132–33, 171, 172, 177, 178, 185, 199, 201, 207, 210, 222–24, 225; on the aristocratic state, 142, 145, 148; on China, 154; Considerations on the Causes of the Greatness of the Romans and Their Decline, 152, 161–66; on the democratic state, 142, 144–45; on the despotic state, 143, 146–47, 148, 157; “Dialogue de Sylla et d’Eucrate,” 166–67; on the English constitution, 151–60, 169, 224; on Hobbes, 139; on just war, 150; on the monarchical state, 142, 145–46, 156; “Notes sur l’Angleterre,” 159; Persian Letters, 147, 149–50; on political liberty, 134–35, 154–55, 164, 167, 168, 223–24; on Rome, 135, 153–54, 160–68, 169, 224; Spirit of the Laws, 137–60, 168–69 Nancy, Jean-Luc, 220 Naudé, Gabriel, 49–50, 100–101 neostoicism, 48 nervous system, 65, 68, 76, 77, 172, 177, 190–91, 192–200, 201, 204, 208, 209, 210, 211, 212, 250n55 New Science. See scientific revolution Newtonianism, 4, 7 Numa Pompilius, 162 Petty, William, the younger, 68 phronesis. See prudence Poland, 201, 202–3 prerogative, 62, 93–94, 96–98, 100, 116, 122–26, 127, 129, 130, 222 prudence, 126–30 Pufendorf, Samuel von, 52, 54–55, 80–91, 102, 144, 175, 221; on animals, 82; Elements of Universal Jurisprudence, 84; on

marriage, 87–88; on master and slave, 88; On the Duty of Man and Citizen, 82–91 Rancière, Jacques, 220, 227 reason of state, 32–33, 42, 44–51, 54, 239n10 religious wars, 10, 22, 98 Roman law, 25, 37, 38, 39, 40, 45–46, 164, 168 Rome, 135, 152–53, 160–68, 169, 224; decemvirs, 163; dictatorship, 166–67, 168, 203, 250n55; empire, 35, 164–65, 168; monarchy, 35, 40, 162; republic, 40, 135, 161, 162–66, 168, 203; tribunate, 200–201, 250n55 Rouelle, Guillaume-François, 190 Rousseau, Jean-Jacques, 7, 26, 30, 92, 170, 217, 224–29; on animals, 179–81, 193; Considerations on the Government of Poland, 202–3; on dictatorship, 201–3; Discourse on Inequality (Second Discourse), 178–84, 187, 224; Discourse on Political Economy, 196, 208; Émile, 181, 206, 191, 193–94, 195, 196; on Hobbes, 178; Julie, 194–95; on the nervous system, 190–91, 193–94, 196–98; on Poland, 201, 202–3; Rousseau, juge de Jean-Jacques, 194; Social Contract, 177, 178, 185–91, 195–204, 205, 208; “State of War,” 205–10; on the tribunate, 201 Russo, Elena, 135 Saint-Pierre, Abbé de, 207 salus populi suprema lex, 100, 123 Schmitt, Carl, xiii, 93, 94, 96; on the concept of the political, 2, 6, 8–10, 12, 18, 19–24, 152, 212, 215, 216–7, 219; on constitutions, 23, 216–17; on the friend/ enemy distinction, 14, 20, 216–17, 218; on international law, xiv–xv, 26–28; on political theology, 4, 7, 17, 54; on Rous­ seau, 173; on sovereign decision and the exception, 17, 94, 97, 122, 203, 222,

256  d  Index Schmitt, Carl (continued) 238n67; in the Third Reich, 24, 26, 234n52 scholasticism, 52 scientific revolution, 10, 11, 54, 65, 192 Second World War, 218 Senellart, Michel, 36 sensus communis, 190–95 September 11, xiv–xv, 94 Seven Years’ War, 205 ship money, 97 Shklar, Judith, 174 Sieyès, Emmanuel-Joseph, 217 skepticism, 10, 50, 53, 57, 239n10 Skinner, Quentin, 42, 51 Souter, Justice David, 2 Sparta, 164 Starobinski, Jean, 143 Strauss, Leo, 50, 99, 103, 115, 234n52 Suárez, Francisco, 57

Sulla, Lucius Cornelius, 166–67, 168 Supplement to the Voyage of Bougainville (Diderot), 137 Tuck, Richard, 18–19, 24–29, 54, 178, 234n52 Turgot, Anne-Robert-Jacques, 176 Ullmann, Walter, 38 Vico, Giovanni Battista, 176 Voltaire, François-Marie Arouet de, 176, 181 Warens, Françoise-Louise de, 190 Weber, Max, 26, 215; on the monopolization of violence, 21; on political unity, 20–21 Whytt, Robert, 192 Wolin, Sheldon, 173–74 Yoo, John, 250n34