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.