Op/Ed

Victor Nuovo: Sovereign law makes us free

Thomas Hobbes perceived that politics was all about power; the power to govern, to command, to make laws, and to enforce them, along with the power to levy taxes, regulate public opinion, and to make war and peace. The right to exercise this power is the sole right of the sovereign, whoever or whatever it may be. 
He recognized that there were different opinions about who is sovereign, and therefore different forms of government. The sovereign may be a single individual, or a select group of them, or a whole people, and the government a monarchy, an aristocracy, or a democracy. Hobbes’ personal preference was for a monarchy, although he didn’t rule out the others. 
However, he was firm in the belief that wherever sovereignty resided it must be absolute. Keeping with the metaphor of the civil state as an animal, he equates sovereignty with its soul. I have no doubt that this notion of sovereignty would please Donald Trump. But it is a dangerous idea.
In the light of this idea, the American Revolution would be judged sedition. In his behalf, Hobbes did not suppose that sovereignty allows its bearer to do whatever he or she or they please. They are subject to the laws of nature, which require them to exercise their power with justice and fairness, but, by not allowing the right of rebellion against tyranny, he leaves it to God to punish wicked sovereigns who rule unjustly. Those who suffer injustice must patiently await judgment day. Nevertheless Hobbes grants that citizens have the right of resistance, even to kill a tyrant if their lives are threatened by him, which follows from the chief motive in creating civil societies in the first place: self-preservation.
Yet, I am inclined to believe that there is a point to Hobbes’s absolutism that is worthy of consideration. He is right that politics is all about power, and it is inconceivable that any civil government can operate without it. But power need not be all in one place, nor its use the consequence of one will. Herein lies the wisdom of the principle of the separation of powers, which Hobbes also did not allow. But if we allow for it, when the procedures of government, which are regulated by law, have been followed to their conclusion, there is an end, and the outcome stands without challenge. 
I’m reminded of the 2000 presidential contest between Albert Gore and George W. Bush, which was not decided until the Supreme Court issued a decision. Many, including myself, did not like that decision, but accepted it nevertheless. The dispute was decided, and the state of the Union remained secure. The finality of the court decision was an expression of sovereignty. There is worry, that if Donald Trump loses the forthcoming presidential election he will refuse to leave office, and use every means, legal and illegal, to remain. But if he were to do that, he would become an outlaw, and there would be an absolute right to remove him, and even prosecute him. But this is all worry, speculation, with a touch of wishful thinking. 
In the United States, the people are sovereign, and in this respect, our system of government is democratic, a form of government that Hobbes did not favor. But the role of the people, in the creation of the United States of America is a limited one. Ours is a constitutional democracy; it is founded on a fundamental law: the Constitution is the supreme law of the land, and thus an expression of the will of the people, to which the people by willing it, become its subjects. It is the seat of sovereignty in our system, hence the expression: the rule of law. We can call it the sovereignty of law, for the rule of law is absolute, because the Constitution, by the act of the people, is supreme.
But here also, Hobbes was ahead of us, for he was able to foresee how a mere multitude of individuals might remake themselves into a people, and by covenanting together also create a civil society ruled by a sovereign law. This is the true power of the people; it is established in the right to vote. “Power to the People, Right on!”
And there is more. Everything beyond the scope of this fundamental law is free and open. A civil society that operates under the absolute authority of a fundamental sovereign law is in all other respects free and open; its legal walls enclose a vast domain of freedom. Here, I am looking well beyond Hobbes, although only in my imagination. If Hobbes were our contemporary, I’m confident that he would have understood it perfectly, and would have added a few additional insights.
Victor Nuovo is professor emeritus of Philosophy at Middlebury College and a Middlebury selectboard member.

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