If the Law is a[n] ass, what is the state?


The famous frontispiece to Thomas Hobbes’s Leviathan depicts the head and torso of a long-haired, mustachioed man. Upon close scrutiny, it becomes evident that the man’s torso and arms are composed of tiny individual persons, crowded closely together and each looking toward the head of the composite Leviathan. The image suits Hobbes’s argument well. Hobbes argues that a sovereign should be understood as an artificial person, created by a social contract to represent each individual member of a political community. Of course, Hobbes also argues that the best sovereign is also a natural person: a single human individual who rules as an absolute monarch. But whether political sovereignty rests in a single monarch, in democratic institutions, or in some other form of government, Hobbes urges us to think of the state as a person. The metaphor is simple, accessible, intuitively appealing—and it may be inescapable. Long past the age of absolute monarchs, we still speak of states as entities that intend, and act, and are vulnerable in ways similar to the ways in which individual persons intend, and act, and are vulnerable. This conception of the state shapes American law in significant ways. For example, many questions of constitutional law turn on whether the state acted or what the state intended, and many scholars have noted incoherence in the jurisprudence of state action and state intention.

Maybe we just don’t have convincing ways of thinking and talking about states other than the language of personhood. I’m looking for alternatives, so please let me know if you have suggestions.

In a work in progress called Political Anthropomorphism, I try to escape the metaphor of the state as a person—or at least stand far enough from it to evaluate it critically. I’ll present this paper tomorrow at the annual meeting of the Association for the Study of Law, Culture, and the Humanities, held this year at Georgetown Law Center in Washington, DC. I haven’t attended ASLCH before, but the program certainly looks enticing. Those interested in legal metaphors—the law is an ass or others—may want to attend Metaphors of Power / The Power of Metaphor, where I’ll discuss Political Anthropomorphism and my esteemed co-panelists will discuss the use of metaphors in the legal discourses of marriage, tort liability, and Native American rights to sacred sites or remains. Should be fun.

You may also like...

5 Responses

  1. Paul Horwitz says:

    Alice, you may want to hunt down a recent paper by Daryl Levinson called “Personified Government and Constitutional Morality.” I don’t know whether it’s even on SSRN, but a workshop draft is available somewhere on UCLA Law School’s website, in the area devoted to workshops and colloquia. I haven’t read it yet, just skimmed the opening, but it looks as if it would be in your line of interest.

  2. Mike O'Shea says:

    That’s a very interesting project. Presumably one reason we in the liberal tradition (descendants of Hobbes) are prone to treat the state as a person is because we view the state as an agent of the governed, and the most familiar form of agency is one (natural) person carrying out the will of another (natural) person. Indeed it is hard to imagine attributing agency-on-behalf-of-a-principal to something that is not a person.

    I suppose one competing model is the state as machine? My thermostat keeps my house temperate, and I want it to do that, but it isn’t my agent. Likewise, if my thermostat malfunctions and turns my house unbearably hot, it isn’t disobeying me, it’s just a bad thermostat that needs to be replaced.

    Popular sovereignty, the model that seems to underpin the Declaration of Independence, raises its own issues. If we evaluate the state based on how well it serves “the people’s” aims (whether we conceive the state as agent-person or as mindless machine), we still seem stuck attributing personhood to “the people” — who actually aren’t a person, they are a lot of different persons.

  3. Patrick S. O'Donnell says:

    I would think metaphorical language found in the anarchist tradition: Godwin, Proudhon, Kropotkin, Bakunin, Goldman, to some extent Gandhi, Tolstoy, etc., as well as the utopian socialist tradition(s), might also prove interesting by way of comparison to the canonical Liberal tradition.

    However, and more importantly, I’m not convinced of the urgency or severity of the problem here: as Robert Goodin has argued, ‘arguments for letting individual moral agents off the hook have the effect of putting collective moral agents such as the state, on it, in their stead.’ In other words, the state is a solution to (a) coordination problem(s) and it is, in this sense, ‘group action’ (i.e., your action with theirs, etc.), one reason why the detailed image of (individual bodies making up) the Leviathan is rather telling. As Goodin explains, there are various means whereby one can achieve the actual coordination (delegation, task assignment outside the group, etc.). In not a few cases, including that of the state, coordination is neither spontaneous nor natural, and such schemes will necessarily involve intentionality in their engineering and construction as well as ongoing compliance. Collective agency allows for collective responsibility and it does indeed seem that by analogy or metaphor an artificially created agency has many of the attributes associated with moral agency (it has goals, gives expression to values, articulates ends; and its executive and legistlative ‘organs’ pursue these ends, aim to realize these goals, engage in practical and deliberative action) even if we concede the state is not, literally, a moral agent in the paradigmatic sense. Analytically, it would seem important that, in principle, all collective responsibilities are, in some sense and in the end, the responsiblities of individuals. Collective responsibility is the converse of ‘no individual responsibility’ in cases with a coordination problem solved by collective agency, here, the State. And the State can compel individuals to play their necessary parts in discharging collective responsibilities because delinquents ‘actually hinder others from discharging their own responsibilities under a coordination scheme,’ in other words, they undermine the moral agency of others.

    In short, perhaps it’s best we *not* search for language for the state that gets too far away from personhood or moral agency, as that may signal the abdication of the moral agency that gave birth to a solution to a coordination problem in the first instance, and the associated duties and responsiblities that follow the collectivity established therefrom.

  4. Patrick S. O'Donnell says:

    Incidentally, we can go back much farther than Hobbes to Plato: Socrates constructs the ideal polis by way of illuminating the individual soul, the picture of the ideal state being a metaphorical soul writ large to better explain the nature of the triune soul….

  5. Patrick S. O'Donnell says:

    Where the concept of personhood has indeed caused no end of problems is not so much with the state, in my opinion, as with the corporation, in particular, owing to the fact that the corporation became a ‘person’ within the meaning of (first the equal protection and later the due process clauses of) the Fourteenth Amendment beginning in 1886. [For contemporary consequences: see Joel Bakan’s The Corporation: The Pathological Pursuit of Profit and Power (2004), and for the historical, legal and political context, see Scott R. Bowman, The Modern Corporation and American Political Thought: Law, Power, and Ideology (1996); for an articulate attempt to address some of the resulting and recalcitrant ethical and legal problems, see Christopher Kutz, Complicity: Ethics and Law for a Collective Age (2000)].