Transformation of the sovereign

The discourse about the sovereign and sovereignty started from French jurist Jean Bodin in the sixteenth century. Still, the interpretation that Bodin brought in appeared not to be ideal (Schmitt, 1992, p. 17). The problem with the word or concept ’sovereign’ is in its multiple interpretations. Though neither Thomas Hobbes nor Jean Bodin or Carl Schmitt precisely define who is the sovereign (a person, assembly, people’s representatives), they make plausible arguments. Hobbes in “Leviathan” claims that the Leviathan, the sovereign, bases its authority on the will or the consent of those governed, has full control over everything to ensure civil peace and security and only if there is a direct threat of death, the governed may protest and overthrow the Leviathan. Schmitt claims that “Sovereign is he who decides on the exception” (Schmitt, 1992). Both Hobbes who lived in 17th century and Schmitt who lived in 20th century were products of their time. Their interpretation highly depends on the historical context. This paper will present a historico-philosophical analysis of the concept that Jean Bodin brought into extensive usage, and Carl Schmitt and Thomas Hobbes interpreted.

Bodin defines sovereignty as “absolute and perpetual power” (Suganami, 2007). To prove this statement, he gives an example of a situation when an immediate response from sovereign is needed but the sovereign is obliged to follow some procedures, like consulting with assembly or people, to make decisions. If the consultation happens, then the sovereign “would have to be prepared to let his subjects dispense with him.” Thus the whole process becomes absurd. For Bodin, this is a case when it becomes necessary to give up some commitments, change laws or to suspend them completely as indicated by the necessities of a circumstance. Otherwise, a a chaotic situation will be created when “in some cases, the people and some of the time the king would rule, and that would be in opposition to all reason and all law (Schmitt, 1992). Bodin thus refers to gaps in constitutions and laws. He claims that in extraordinary situations and emergencies that by their nature cannot be predicted by lawmakers, therefore cannot be prescribed by law, gives the authority to the ‘sovereign’ to make decisions. Bodin continued by claiming that “If we insist however that absolute law “means exemption from all law whatsoever, there is no prince in the world who can be regarded as sovereign, since all the” princes of the earth are subject to the laws of God and “nature, and even to certain human laws common to all nations” (Suganami, 2007). Thus what Bodin wants to say is that though the ‘sovereign’s’ power is absolute, it doesn’t mean that he is above the law.

Thomas Hobbes lived in an exceptionally interesting time, and it affected his perception of state, political, civil, and the ‘sovereign.’ In his book “Leviathan,” initially published in 1651, he claims that Leviathan is the absolute ruler. Leviathan shall have complete control over religious, educational institutions, publishing houses, and overall anything that might form different opinions among the public than the sovereign has. According to Hobbes, the sovereign’s authority is to protect the interests of the governed by maintaining civil peace and security. The issue with this statement is that it is difficult to identify what are “the interests of the governed” because they change over time, leaving a gap that the ‘sovereign’ may use to fulfill his/her private interests. Thus, if the sovereign is an individual, either elected, appointed or a monarch, there is a risk that there will be a clash of public, interests of the governed, and his/her private interests. To this concern, Hobbes’s answer is that “The riches, power, and honour of a Monarch arise only from the riches, strength, and reputation of his subjects” (Hobbes, 1994, p. 211). Thus, if they are prospering hen the sovereign is also prospering. This is true if this thesis is considered in idealistic world, where the sovereign creates all the necessary preconditions for the prosperity of its subjects that would eventually bring him/her glory. This is not always the case. Because ‘the passions of men are commonly more potent than their reason,’ should ‘the public interest chance to cross the private’ then the individual ‘prefers the private,’ which includes ‘the private good of himself, his family, kindred and friends’ (Blau, 2008).

Hobbes insists that any state is built upon its people’s complete obedience to the sovereign. Hobbes’ basic idea on this matter is that if one takes obedience from any kind of the state, then they not only stop flourishing but also start to dissolve. The only reason of opposing to the sovereign is the threat of death. Thus, the subject cannot dispute the sovereign’s power until there is a direct threat to their life. Though, this statement is a weak one because what if the sovereign because of its wrong foreign policy gets involved in war, that people believe is unnecessary, but the sovereign makes them to go to war which means to sacrifice the only priceless thing that all humans have, life. Isn’t that a direct threat to people’s lives, but at the same time, “declaring a war” is a sovereign right. An additional argument to why Hobbes believes that complete obedience is necessary is the people’s inability to understand principles. Hobbes states that “though, the principles be right, yet common people are not of capacity enough to be made to understand them” (Hobbes, 1994, p. 221). Schmitt, just like Hobbes, believed that common people are unable to understand certain things and “that man is dangerous and that his primary goal is physical security” (Schmitt, 1992). That’s why “Schmitt opted for a strong state that would ensure order, peace, and stability” (Schmitt, 1992). The discourse about people being unreasonable is from top to bottom an unhealthy one because all of what Hobbes and Schmitt’s state is only valid if ‘common people,’ whatever that might mean, “are not of capacity enough to be made to understand [principles].” (Hobbes, 1994, p. 221).

In the twenty-first century, with the internet and globalized world, people compare their county not only with the neighboring one but any other even at the farthest point of the world map. Hobbes believes that this is destructive. “The people are to be taught, first, that they ought not to be in love with any form of government they see in their neighbor nations, more than with their own, nor (whatsoever present prosperity they behold in nations that are otherwise governed than they) to desire change” (Hobbes, 1994, p. 222).

If Hobbes was our contemporary, he would support this argument with the examples of revolutions in post-Soviet countries, like Georgia ,Ukraine, Armenia, most recently Belorussia that desired change in their country so that its governing system copies the European one.

So far, these post-Soviet courtiers failed it, which ultimately supports the arguments that Hobbes brought in. Hobbes continues by stating that “for the prosperity of a people ruled by an aristocratically or democratically assembly cometh not from the aristocracy, nor democracy, but obedience and concord of the subjects; nor to people flourish in a monarchy because one man has the right to rule them, but because they obey him” (Hobbes, 1994, p. 222). This is very idealistic.

No matter how much the “sovereign” oppresses people, there will always be an opposite opinion, and that is unstoppable. Perfect twenty-first-century example of Hobbes’s idealistic state governed by a “sovereign” where people are the most obedient is North Korea and its leader Kim Jong-un.

Of course, there are no objective criteria that one can use to understand which state is the most successful and which one is not. Anyway, North Korea is not the most successful state because disregarding the full obedience of its people to the sovereign; they are unable to flourish.

Both Hobbes and Schmitt were products of their time. For example, three years before Hobbes’ publication of “Leviathan,” in 1648, the Treaty of Westphalia was signed (“Britannica,” 2020). Treaty of Westphalia ended a century-long religious wars ignited by Protestant Reformation. Treaty, following the ideas of Jean Bodin, declared that the individual sovereign state would henceforth become the highest level of authority. This ended universalist claims of the Holy Roman Empire.

According to the treaty of Westphalia, each state henceforth was to be sovereign and have its own religion. Head of each state was granted the right to determine the religion of the state. This ended the claims of a single universalist church that was predominant before (“Britannica,” 2020).

Thus, the sovereignty and what it means was already present in the public discourse, and it is of no surprise that Hobbes touched on that concept of ‘sovereign’ in his book “Leviathan” published in 1651, three years after the Treaty of Westphalia was signed. He was lucky enough to meet Galileo and he grew up in the last years of Elizabethan era. He was a boy when Shakespeare’s famous plays were first performed. He left England for France after the 1640s civil war in England when Charles I was beheaded (“Britannica,” 2020). Considering the historical background, “Leviathan” was perceived differently by different segments of the people. To the churchmen, he was an atheist, to the republicans, he was a royalist “and to the monarchists, he was a dangerous skeptic and free thinker”(Hobbes, 1994, p. 463). They might all be right or all wrong at the same time. God was present in any academic and non-academic discourse.

Hobbes claims that they (royalists, clergymen) claim that “God is prime cause of law and also the prime cause of that and all other actions, but no cause at all of the injustice” (Hobbes, 1994, p. 463).

Hobbes remarks that if justice is caused by God, then it is logical to say that the injustice is also caused by God, but this statement appears too republican to the clergymen and royalists and a result of dangerous acts of free-thinking to the republicans. That is why he calls it “a vain philosophy” (Hobbes, 1994, p. 463).

Carl Schmitt was a 20th-century German jurist who “deserves to be called the Hobbes of the twentieth century” (Schmitt, 1992). He published his “Political Theology” in 1922 and joined the National Socialist German Workers Party (Nazi party) of Adolf Hitler in 1933 and stayed a member until 1936. He even published several works that supported and strengthened the ideology of the Nazi party. Some of his works were anti-Semitic (McCormick, 2020).

“Schmitt perceived the role of the state as the securing of conditions under which citizens could pursue their private wills” (Schmitt, 1992).

To understand what kind of citizens and what kind of private wills, one needs to understand Schmitt’s idea of ‘the political.’ To Schmitt the concept of the state presupposes the concept of the political. There should be a state so that there is the political component in it. The political cannot exist without the state. He refers to different categories to better explain what he means by saying ‘the political.’

For example, morality is about the distinction between good and evil, the aesthetics are the distinction between beautiful and ugly, economics is the distinction between profitable and unprofitable, in the same way ‘the political’ is the distinction between friend and enemy.

The enemy doesn’t have to be evil or ugly or profitable in the economic relationship. That is the primary reason why ‘the political’ doesn’t collapse into the economy or any other category (Schmitt, 1992). For Schmitt, enemy cannot be an individual, it is always a group of people, that potentially can kill you. This is when Schmitt completely rejects the Christian concept of “love your enemy” because he believes this doesn’t mean to embrace your enemy. Enemy is always the other. Though, religious is not political, Schmitt believes that if the discourse becomes intense enough to form friend and enemy grouping, then it is political. In general, to cause something political means that there is a public grouping of friends and enemies that is oriented the possibility of real killing. He argues for this by bringing the example of history. Schmitt claims that even the descriptions of political life are oriented towards friends and enemies. The extreme consequence of this grouping is the war. Here Schmitt clarifies that this doesn’t impose that he is anti or pro-war because that is more a moral distinction than a political one (Schmitt, 1992).

The state has the ultimate right to decide who the enemy is and whether to go on war or not. This is what marks the state as political. All the other decisions, due to Schmitt, are technicalities, though they are also important. The state has the monopoly of politics and is the only entity able to distinguish friends from the enemy and thereby demand of its citizens the readiness to die” (Schmitt, 1992).

Schmitt explains the sovereign in just one sentence. To him, “Sovereign is he who decides on the exception” (Schmitt, 1992). Though, through this one sentence explanation Schmitt tried to be as clear and precise as possible, it is not clear what he means. “Schmitt is saying that it is the essence of sovereignty both to decide what is an exception and to make the decisions appropriate to that exception, indeed that one without the other makes no sense at all.” (Schmitt, 1992).

Like Hobbes he references to the gaps in the laws. Law for everyday, normal, predictable situation can be regulated by laws, but what happens in exceptional cases.

We have some knowledge about the general normality, but “if one wants to study the general correctly, one only needs to look around for a true exception. It reveals everything more clearly than does the general.” (Schmitt, 1992). It is evident that any constitution or any law even the ones written by the most honest and objective lawmakers cannot correspond to every situation. Out of the framework of regular normal life, there are exceptions, like emergencies that a lawmaker may try to predict and regulate by law. Still, it won’t be ideal regulation anyway, and if it is not ideal, then it doesn’t work anyway. If we consider this statement as accurate, then who has the right to decide that it is an exception and who is responsible for making a decision? Schmitt’s answer for both is the sovereign. Schmitt explained his argument by digging deep into the concepts of jurisprudence. Thus, the more complicated explanation of his key sentence is that “…every legal order is based on a decision, and also the concept of the legal order, which is applied as something self- evident, contains within it the contrast of the two distinct elements of the juristic-norm and decision. Like every other order, the legal order rests on a decision and not on a norm” (Schmitt, 1992). Therefore, it is the the decision that is fundamental in jurisprudence because if there is no decision then legal orders and norms lose their meaning. That is the reason why Schmitt believes that all law is “situational law” (Schmitt, 1992). It is the sovereign who has the monopoly to decide. “Therein resides the essence of the state’s sovereignty, which must be juristically defined correctly, not as the monopoly to coerce or to rule, but as the monopoly to decide” (Schmitt, 1992). A good example is the US’s refusal to join the League of Nations because it limited “US Congress’s constitutional right to declare war” (Suganami, 2007).

Both Hobbes and Schmitt tried to define the sovereign, and though their concepts are plausible, they lack specificity. It is understandable because it is difficult to predict political systems of the future to be able to concretely identify who is the sovereign: it is the people, people’s representatives, it is an individual or a group of people? Hobbes, considering the time he lived, mentioned God many times in his “Leviathan,” which is not that true about Schmitt. For Hobbes’ time that was natural because it was only recently that religious wars ended and the transformation was yet to come. From Monarchy, where the concept of the sovereign is very simple, God is the sovereign and gave his powers to his representatives on earth, kings, to liberal democracy where people are the sovereign and gave their powers to their elected representatives, the idea of sovereign transformed.

*This paper was written for Professor Gregory Areshian’s Study of History class on May 4, 2020/

References

Hobbes, T., (1994) Leviathan. Hackett Publishing Company. Cambridge, ISBN: 978–1–60384–486- 4

The Editors of Encyclopedia Britannica (January 23, 2020), Peace of Westphalia. Derived from https://www.britannica.com/event/Peace-of-Westphalia

Blau, A. (September 12, 2008). Hobbes’s Failed Political Science. Manchester Metropolitan University. Retrieved from www.socialsciences.manchester.ac.uk/disciplines/politics/ researchgroups/mancept/workingpapers/

Schmitt, C., (1992) Political Theology: Four Chapters on the Concept of Sovereignty. The University of Chicago Press, Chicago and London. ISBN-13: 978–0–22673889–5

McCormick, J. P., (April 3, 2020) Carl Schmitt: German Jurist and Political Theorist. Retrieved from https://www.britannica.com/biography/Carl-Schmitt

Suganami, H. (2007). Understanding Sovereignty through Kelsen/Schmitt. Review of International Studies, 33(3), 511–530. Retrieved May 3, 2020, from www.jstor.org/ stable/40072190