Portal de Periódicos da CAPES

The Uses of Insincerity

2003; Routledge; Volume: 15; Issue: 3 Linguagem: Inglês

10.1525/lal.2003.15.3.371

1541-2601

John M. Kang,

Political Philosophy and Ethics

AbstractUnlike some contemporaries who favor a sincere embrace of people’s equal worth, Thomas Hobbes saw the political uses for insincerity in culturally diverse societies teeming with contentious and distrustful characters. In fact, insincerity for Hobbes was as vital to the welfare of civil society as his more familiar account of authorization. This article explores a relatively neglected aspect of Hobbes’s theory by working up an account of his arguments about insincerity in law and social norms and using it to revisit our contemporary situation of racial conflict and mistrust. Notes* *This article is part of a larger project on insincerity. The interested reader may wish to consult selected explications of this theme in “The Case for Insincerity” in volume 29 of Studies in Law, Politics and Society (2003) and “The Irrelevance of Sincerity: Deliberative Democracy on the Supreme Court,” in volume 48, issue 2 of the Saint Louis University Law Journal (forthcoming). I thank Mark Brandon and Kim Smith for their always astute comments, and Don Herzog, who has given me the benefit of his illuminating views on Hobbes as well as his incisive wit. Thanks also to Ed Curley for giving to students and teachers everywhere a beautifully edited Leviathan and for listening to some of the ideas presented in this article. My greatest debt of gratitude must go to Arlene Saxonhouse, without whose insights, made available to me in the form of generous and instructive criticisms, this article would, even more than Hobbes’s state of nature, remain a hypothetical. Of course, convention dictates that neither Arlene nor anyone else I have thanked should be liable for the problems with this article; that lonely burden falls on me, although I should wish that, to the extent that I get him right, Hobbes, too.1. I focus on race for this article because of its prominent place in public discourse and political history, although I’m reluctant to join an unqualified prophecy that “the problem of the Twentieth Century is the problem of the color line.” W.E.B. Du Bois, The Souls of Black Folk (New York: Signet Classic, 1995), 41 [Google Scholar].2. “Declaration of Independence,” in The Federalist Papers, Charles R. Kessler and Clinton Rossiter, eds. (New York: Mentor, 1961), 496 [Google Scholar].3. Martin Luther King, Jr., “Letter from a Birmingham Jail,” in Writings and Speeches that Changed the World, James M. Washington, ed. (San Francisco: Harper, 1986), 94 [Google Scholar].4. Id., at 88–89.5. King’s narrative strategy resembles the structure of Jefferson’s narrative in the Declaration about the colonists’ suffering. “Declaration of Independence,” supra note 2 at 497–98.6. King, supra note 3 at 88–89.7. Id.8. Id.9. Id., at 96 (emphasis in original).10. Id., at 89.11. Id.12. Kenneth L. Karst, Belonging to America: Equal Citizenship and the Constitution (New Haven: Yale University Press, 1989), 1–5 [Google Scholar], 29–42.13. Id., at 207.14. Id.15. Id.16. Id., at 208.17. Id., at 206.18. Barber offers his most sustained argument on this point in Barber, On What the Constitution Means (Baltimore: Johns Hopkins University Press, 1984), 39–62 [Google Scholar] (hereafter cited as Constitution Means). He defends it in other works: Barber, “Fidelity and the Constitution Aspirations,” 65 Fordham Law Review 1757–60 (1997) [Google Scholar]; and Barber, The Constitution of Judicial Power (Baltimore: Johns Hopkins University Press, 1993), 28–29 [Google Scholar], 32, 61, 102–3.19. Constitution Means, id. at 93,143, 212–13.20. Perhaps the authoritative study is Donald R. Kinder and Lynn M. Sanders, Divided by Color: Racial Politics and Democratic Ideals (Chicago: University of Chicago Press, 1996) [Google Scholar].21. Id., at 246–47.22. See for example, Constitution Means, supra note 18 at 8: “ I do not assume that the test of my interpretations is some version of what is politically feasible in America today, for my aim is to discover what the Constitution means, not whether it is workable.”23. See, for example, Ruth W. Grant, Hypocrisy and Integrity: Machiavelli, Rousseau, and the Ethics of Politics (Chicago: University of Chicago Press, 1997) [Google Scholar].24. For such an instrumentalist reading of Hobbes, see, for example, David Gauthier, The Logic of Leviathan (Oxford: Clarendon, 1969) [Google Scholar].25. Leo Strauss, The Political Philosophy of Hobbes: Its Basis and Genesis, Elsa M. Sinclair, trans. (Chicago: University of Chicago Press, 1963) [Google Scholar]. See also Don Herzog’s argument, which differs from Strauss’s in important respects, but which also argues against the view that Hobbes was preoccupied with instrumentalist arguments for material welfare. Don Herzog, Happy Slaves: A Critique of Consent Theory, chap. 3 (Chicago: University of Chicago Press, 1989) [Google Scholar].26. Strauss, supra note 25 at 11–12, 18, 20, 112. By suggesting this account, I do not mean to ignore what Hobbes regards as the other causes of war in “competition” and “diffidence.” Thomas Hobbes, Leviathan, Edwin Curley, ed. (Indianapolis: Hackett, 1994), 76 [Google Scholar].27. Strauss, supra note 25 at 11–12, 18, 20,112.28. Id., at 11–12, 18, 20.29. Id., at 11–15.30. Hobbes says that what differentiates man from animal is “strife about honor or acknowledgement of one another’s wisdom … from whence arise envy and hatred of one towards another, and from thence sedition and war.” Thomas Hobbes, The Elements of Law Natural and Politic, J.C.A. Gaskin, ed. (Oxford: Oxford University Press, 1999), 105 [Google Scholar]. Consider also Hobbes’s statement that “all joy and grief of mind (consists) in a contention for precedence to them with whom they compare themselves.” Id., at 163.31. Hobbes, Leviathan, supra note 26 at 76.32. Id.33. Id.34. Don Herzog argues that Hobbes is not a liberal because there is no possibility for social role-differentiation in his theory. See Herzog, Happy Slaves, supra note 25 at 146–47. But Michael Oakeshott and Leo Strauss argue that Hobbes is a liberal because of his emphasis on individual rights. See Michael Oakeshott, “Introduction to Leviathan,” in Rationalism in Politics and Other Essays (Indianapolis: Liberty Press, 1991), 264–65 [Google Scholar]; Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1953), 181–82 [Google Scholar]; and for a stronger claim, Leo Strauss, “Notes On Carl Schmitt,” J. Harvey Lomax, trans., in Carl Schmitt, The Concept of the Political, George Schwab, trans. (Chicago: The University of Chicago, 1996), 91–93, 107 [Google Scholar].35. Given the differences regarding the definition of liberalism, not to mention the differences regarding what Hobbes might say about any given definition, perhaps the best that we can do is to agree with Stephen Holmes that there is an ambivalence and hence uncertainty about whether Hobbes is a liberal. Holmes, Passions and Constraint: On the Theory of Liberal Democracy (Chicago: University of Chicago Press, 1995), 69 [Google Scholar].36. Unless indicated otherwise, when I use the term “contemn” and its variations in speech in contemnor, contemned, and contempt, I mean to use our contemporary understandings of the term, not Hobbes’s definition which by our lights seems rather selective. Hobbes writes: “Those things which we neither desire nor hate we are said to contemn.” Leviathan, supra note 26 at 28. See the compact discussion of Hobbes’s definition of contempt in William Ian Miller, The Anatomy of Disgust (Cambridge: Harvard University Press, 1998), 213–17 [Google Scholar].37. Hobbes declares: “Joy arising from imagination of a man’s own power and ability is that exultation of the mind which is called GLORYING; which, if grounded upon the experience of his own former actions, is the same with confidence.” Leviathan, supra note 26 at 31. Bernard Gert suggests that part of the reason for Hobbes’s apparent carelessness in saying “glory” instead of “pride” is due to the fact that “[b]oth he and his audience knew what was meant by these terms, and his definitions were merely an attempt to show that all of the passions could be explained by relating them to some simpler passion.” Bernard Gert, “Hobbes’s Psychology,” in Cambridge Companion to Hobbes, Tom Sorell, ed. (Cambridge: Cambridge University Press, 1996), 162 [Google Scholar]. Be that as it may, it still seems distressing that someone such as Hobbes, who was so obsessed with precise definitions, would use glory instead of pride, especially at such a crucial point in the text.38. It is telling that Hobbes, following the Book of Job, calls Leviathan “King of the Proud” (Leviathan, supra note 26 at 210) and that he states that breach of the ninth law of nature “is pride” (Leviathan, supra note 26 at 97).39. Leviathan, supra note 26 at 41.40. I discuss honor further in the section below, Honor as Insincerity. For now, it suffices to say that for Hobbes, “[h]onorable is whatsoever possession, action, or quality is an argument and sign of power.” Leviathan, supra note 26 at 53.41. Leviathan, supra note 26 at 41.42. Id., at 4143. Id., at 32. Hobbes provides an account of “vainglory” that tends to resemble his definition of pride more than glory Id., at 96. Also, “great vain-glory” “is commonly called pride and self-conceit.” Leviathan, supra note 26 at 41.44. See Herzog, Happy Slaves, supra note 25 at 89–90.45. This is so because everyone must sleep and leave himself vulnerable, and since the weakest may combine his power with others to kill even the strongest. Leviathan, supra note 26 at 74. See also Thomas Hobbes, On the Citizen, Richard Tuck and Michael Silverthorne, eds. (Cambridge: Cambridge University Press, 1998) [Google Scholar], 26: “[S]ee how easy it is for even the weakest individual to kill someone stronger than himself.”46. Leviathan, supra note 26 at 96.47. Id., at 75.48. Id., at 51.49. See Hobbes, On the Citizen, supra note 45 at 49: “[E]xisting inequalities, for instance in wealth, power, and nobility of birth, arose from civil law” (emphasis in original); Hobbes, Elements, supra note 30 at 93: “The question, which is the better man, is determinable only in the estate of government and policy, though it be mistaken for a question of nature, not only by ignorant men, that think one man’s blood better than another’s by nature; but also by him, whose opinions are at this day, and in these parts of greater authority than any other human writings (Aristotle).”50. Leviathan, supra note 26 at 51.51. Id., at 78. I’m indebted to Strauss’s discussion in Strauss, supra note 25 at 15–29. It is worth noting though that Strauss appears to miss how fear itself can also be a cause of war, since Hobbes states that “safety” is a cause of war, and thus presumably so too is its animating passion in fear. Leviathan, supra note 26, at 76. There is an important challenge to Strauss’s thesis raised by Don Herzog’s illuminating arguments. Herzog steeps himself in the historical circumstances and argues that Hobbes’s statements about fear are meant not as a descriptive account of how war-happy aristocrats and religious lunatics transformed into peace-loving citizens but to supply the philosophical justifications for those who really were peace-loving citizens and who wanted to discipline the aristocrats and zealots or to eliminate them entirely from society Happy Slaves, supra note 25 at 87. I don’t believe it necessary for my purposes to settle the tempting question of whether Herzog or Strauss is right, although I attempt to indicate in places how the different views might affect my arguments.52. Leviathan, supra note 26 at 78.53. Norberto Bobbio, Thomas Hobbes and the Natural Law Tradition, Daniela Gobetti, trans. (Chicago: University of Chicago Press, 1993), 119 [Google Scholar]. See also id., at 121.54. Leviathan, supra note 26 at 100. There is textual evidence to suggest a straightforward view that Hobbes was not a natural law theorist in any meaningful sense and that he actually undermines the foundations of natural law altogether. In “A Discourse of Laws,” the young Hobbes delivers a clear break from the natural law tradition by sharply decoupling law from its religious foundations, focusing exclusively on its secular uses for civil society Hobbes writes: “For where Laws be wanting, there neither Religion, nor life, nor society, can be maintained.” And instead of trying to interpret society’s laws in terms of religious revelation or faith, he turns sharply to the secular reason necessary for civil society: “Law and Reason are twins, the absence of one, is the deformity of the other… . the reverence, and duty we owe to Laws, is nothing else but obedience to reason, which is the begetter, corrector, and preserver, of the very Laws themselves.” Thomas Hobbes, “A Discourse of Laws,” in Three Discourses: A Critical Modern Edition of Newly Identified Work of the Young Hobbes, Noel R. Reynolds and Arlene Saxonhouse, eds. (Chicago: University of Chicago Press, 1995), 109–10 [Google Scholar], 115. See also Arlene Saxonhouse’s useful commentary about the “Discourse” in “Hobbes and Modern Political Thought,” id., at 148–54.The picture of Hobbes as legal theorist, then, is much closer to the American legal realists in advocating for a conception of law whose ultimate practical significance depends far less on its theoretical origins—a constant fascination of both natural law theorists and legal positivists—and considerably more on its explicit societal functions.55. Leviathan, supra note 26 at 96.56. Id.57. Id., at 97.58. Id., at 95.59. Id., at 97.60. Id., at 95.61. Id., at 100.62. But see the minority view in J.W.N. Watkins, Hobbes’s System of Morals (London: Hutchinson & Co., 1965) [Google Scholar].63. Leviathan, supra note 26 at 100. See also Elements, supra note 30 at 82.64. Leviathan, supra note 26 at 100.65. Don Herzog offers an illuminating interpretation of Hobbes by deftly situating him in the political problems of his day. The laws of nature, under this reading, thus serve as an explicit justification by commoners for disciplining the aristocrats; for Herzog, the laws of nature aren’t solely or perhaps even chiefly matters of abstract philosophical speculation. Happy Slaves, supra note 25 at chap. 3, especially 85–95.66. Leviathan, supra note 26 at 97. Hobbes provides a very similar account in On the Citizen: “If then men are equal by nature, we must recognize their equality; if they be unequal, since they will struggle for power, the pursuit of peace requires that they be regarded as equal. And therefore the eighth precept of natural law is: everyone be considered equal to everyone. Contrary to this law is Pride.” On the Citizen, supra note 45 at 50. For another similar statement, see Elements, supra note 30 at 93: “[A]s long as men arrogate to themselves more honor than they give to others, it cannot be imagined how they can possibly live in peace: and consequently we are to suppose, that for peace sake, nature hath ordained this law, That every man acknowledge other for his equal. And the breach of this law, is that we call Pride.”67. Or more precisely, the language of the ninth law of nature implies that insincerity regarding others’ worth is the theoretical prerequisite for authorization itself, for the latter is required to “enter into conditions of peace.” Leviathan, supra note 26 at 97.68. For example, both Strauss and, on the other end of the political spectrum, C.B. MacPherson argue that Hobbesian man undergoes a theoretical change from warring aristocrat to subdued bourgeoisie. They thus provide little account of how the passions of honor and perhaps even pride and vainglory linger into civil society and must be masked by insincerity. See Strauss, supra note 25; and C.B. MacPherson, The Theory of Possessive Individualism (Oxford: Clarendon, 1962) [Google Scholar]. But see Herzog, Happy Slaves, supra note 25 at 87, suggesting that for Hobbes the vainglorious aristocrats were to submit themselves to the virtues of modesty required by the laws of nature, whether they sincerely agreed with such virtues or not.69. Strauss, supra note 25 at 120,126–28.70. William Ian Miller, The Mystery of Courage (Cambridge: Harvard University Press, 2000), 227 [Google Scholar].71. Leviathan, supra note 26 at 97. For similar statements, see On the Citizen, supra note 45 at 52.72. Leviathan, supra note 26 at 97. See also the sixteenth law of nature where “seeing every man is presumed to do all things in order to his own benefit, no man is a fit arbitrator in his own cause.” Leviathan, supra note 26 at 98. See also Elements, supra note 30 at 95. For similar accounts from other theorists, see John Locke, Two Treaties of Government (New York: Hafner Press, 1947), 127 [Google Scholar]; and James Madison, “Federalist 10,” in The Federalist Papers, supra note 2 at 47.73. Leviathan, supra note 26 at 97.74. Id.75. Id.76. Id.77. Id., at 96. See also Elements, supra note 30 at 91: “For Pardon is peace granted to him, that (having provoked to war) demandeth it… . not to pardon upon repentance … is never to give peace.”78. Leviathan, supra note 26, at 96.79. Id., at 97. See also Elements, supra note 30, at 91.80. Although Hobbes grants that trying but being thwarted is also acceptable. Leviathan, supra note 26 at 100.81. Leviathan, supra note 26 at 99.82. Leviathan, supra note 26 at 99. See also Elements, supra note 30 at 97.83. For similar interpretations that the “in foro interno” desire refers to the political uses of the laws of nature and not their inherent moral worth, see Bobbio, Thomas Hobbes, supra note 53 at 122. See also Elements, supra note 30 at 97.84. Leviathan, supra note 26 at 100.85. John Aubrey, Brief Lives, Oliver Lawson Dick, ed. (Harmondsworth: Penguin Books, 1972), 316 [Google Scholar]. See also Hobbes’s “Verse Autobiography,” Leviathan, supra note 26 at liv: “And hereupon it was my mother dear/Did bring me forth twins at once, both me and fear.”86. The English Works of Thomas Hobbes of Malmesbury, vol.4, William Malmesbury, ed. (1668; London: J. Bohn, 1839), 232 [Google Scholar] (hereafter cited as English Works). But Hobbes also sympathizes with the plight of commoners and the poor. See Leviathan, supra note 26 at 228.87. Herzog, Happy Slaves, supra note 25 at 98.88. Leviathan, supra note 26 at 221.89. English Works, supra note 86 at 233.90. Strauss, supra note 25 at 120, 126–28. C.B. MacPherson, “Hobbes’s Bourgeois Man,” in Hobbes Studies, K.C. Brown, ed. (Oxford: Basil Blackwell, 1965), 169–83 [Google Scholar].91. English Works, supra note 86 at 399.92. Elements, supra note 30 at 19–20.93. Id.94. Leviathan, supra note 26 at 1, 2.95. Both Keith Thomas and Don Herzog answer this question by usefully juxtaposing two rival views in elitists, such as Thomas Pope Blount, and egalitarians, such as the Levellers. See Thomas, supra note 90 at 185–236; and Herzog, Happy Slaves, supra note 25 at 89–90.96. Elements, supra note 30, at 49.97. Ruth Grant provides an illuminating explication of this thesis in Machiavelli. See Grant, supra note 23 at 20–21, 23.98. Donald Matthews, “The Folkways of the United States Senate,” 53 American Political Science Review 1069–71 (1959) [Google Scholar]. This is not to say that new forms of contempt can’t be crafted by sarcastically invoking formal titles of honor. See Don Herzog, Poisoning the Minds of the Lower Orders (Princeton: Princeton University Press, 1998), 167 [Google Scholar].99. Strauss, supra note 25 at 114.100. Elements, supra note 30 at 48.101. Kurt Vonnegut, “Harrison Bergeron” in Welcome to the Monkey House (New York: Dell, 1988) [Google Scholar].102. This is logically consistent with Hobbes’s broad view of value: “The manifestation of the value we set on one another is that which is commonly called honoring and dishonoring. To value a man at a high rate is to honor him; at a low rate is to dishonor him.” Leviathan, supra note 26 at 51. Furthermore, value, and hence honor, can fluctuate depending on the social circumstances: “An able conductor of soldiers is of great price in time of war present or imminent; but in peace not so. A learned and uncorrupt judge is much worth in time of peace; but not so much in war.” Leviathan, supra note 26 at 51.103. Elements, supra note 30 at 48–49.104. Id., at 49.105. Id.106. Id.107. Id.108. Id.109. Id.110. Id.111. Id., at 49–50.112. Id., at 92. On the Citizen, supra note 45 at 49. Leviathan, supra note 26, at 76.113. Leviathan, supra note 26 at 97.114. Patricia J. Williams seems to hint at this point in “Alchemical Notes: Reconstructing Ideals from Deconstructed Rights,” in Critical Race Theory: The Cutting Edge, Richard Delgado, ed. (Philadelphia: Temple University Press, 1995), 84–93 [Google Scholar].115. Judith Shklar provides a view of liberalism similar to the one I offer here. Judith N. Shklar, Ordinary Vices (Cambridge: Harvard University Press), 77–78 [Google Scholar]. See also Grant, supra note 23 at 53–55.116. Shklar, supra note 115 at 77.117. Id., at 78.118. Id.119. Patricia J. Williams, The Alchemy of Race and Rights: Diary of a Law Professor (Cambridge: Harvard University Press, 1991), 146–65 [Google Scholar].120. Id., at 164. See also Kimberlé W. Crenshaw, “Race, Reform and Retrenchment,” 101 Harvard Law Review 1384–87 (1988) [Google Scholar].121. Peter Berkowitz argues along these lines in Virtue and the Making of Modern Liberalism (Princeton University Press, 1999) [Google Scholar], chap. 1.122. Id.