Making good the lack: the form of the phantom in the progress from sovereignty to civility

Making Good the Lack

The Form of The Phantom in The Progress from Sovereignty to Civility

In Chapter 1, I introduced some themes, the subject, law and empire, and reflected upon their interactive natures. Empire as an impulse represents, I suspect, an always unsuccessful striving for certainty by the subject. How does s/he know what s/he knows, or even that s/he is? The 1999 Wachowski brothers film, The Matrix, in which the hero is “chosen” to release dormant humans from the illusion that is only a dream of living, is merely a modern version of the nightmare. The Matrix began implausibly with a plausible question – how can we know? – but quickly descended into bathos, its ill-advised sequels rendering the question apparently pointless.

Clifford Bax put it more eloquently in 1919, set appropriately hauntingly to sixteenth century music:

Earth might be fair and all men glad and wise.

Age after age, their tragic empires rise, built while they dream and in that dreaming weep.

Would man but wake from out his haunted sleep,

Earth might be fair and all men glad and wise.

The “dream” was, of course, both divine knowledge, but that secular unity on Earth, “all her people one” be achieved. It was bound, as the English colloquialism has it, “to end in tears”.

De Saussure, the structural linguist from whom Lacan derived a good deal, related language to the world as the signifier, that which points, or gestures toward a worldly signified, identifying it and giving it a place in the human social world. Together the signifier and the signified produce the sign, something in the real world, and something that we may alter as we learn more about it, or which changes as society and language practices change in relation to it. His is a science designed to demystify. But language is, for Saussure, unlike Bax, grounded in something that lies beyond a dream, or revelation. The truth, in the words of a famous TV series, is out there.

Lacan, by contrast, wants to remove the signified. He wants to emphasize the impossibility of the sign. What he means by an expression he often used, “the endless play of the signifier”, is that human symbol-users never arrive: their entire world exists in the language they use. Unlike the Wachowski brothers, who were, it seems compelled, ultimately to ground their illusion in the Big Other of the machines who created the illusions, Lacan settles, like Hume before him, for uncertainty.

To return to specifics, the cruciality of which I continually stress, the English subject as it emerges is one such substitute for the lack of a sign. It is, to use a phrase of Lacan’s a point de capiton, like the quilting points in, for example, a duvet which stop the filling from sliding everywhere; it halts, or appears to halt, the endless and chaotic play of the signifier, so that we can understand. To the politically aware Englishmen of the Tudor period, the sign was the sovereign, sanctioned ultimately by god. The confusion of the changing of the gods by the Henrician reformation of the 1530s and the brief return to Roman Catholicism under Mary, 1553–58, may explain the enormous popularity of The Book of Martyrs, published by John Foxe after the accession of Elizabeth in 1558. It chronicled, or purported to chronicle, the cruelties of Catholicism, identifying the English subject as necessarily protestant, under a protestant sovereign. For Henry VIII in the sixteenth, as for James VI/I in the seventeenth century, sovereignty and empire were closely related, but empire here meant mostly, independence from Roman ecclesiastical interference. What I argue below is that, whatever the attraction of empire and sovereignty may have been to the political classes under the Tudors, sovereignty as the Stuarts understood it, and attempted to practice it, began increasingly to seem irksome to England’s rulers. They searched for another sign, as in order to conclude the convulsions of the seventeenth century, and found it in the notion of civility. The Scots, I argue in Chapter 3, powerfully assisted with this project.

The Sovereign as the Emperor

One can hardly over-emphasize the importance for the understanding of Tudor and Stuart symbolism of the fact that the Divine Right of Kings to rule over both church and state was a derivation from the claims of Roman Emperors to be represented in the councils of the church.¹

Chapters 3 and 4, continuing the themes opened earlier, look specifically at the suspicion which the English seem to have entertained about doctrines of sovereignty exercised outwith the political and legal processes upon which the political classes had agreed. In Chapter 3, the emphasis lies principally with the Scottish influence. Chapter 4 looks at the influence of empire, which was, to a significant extent, in the opposite direction, challenging civility with imperial authoritarianism. The Scots, in the Lowlands, at least, whilst for their most part determinedly Scottish, tied their fortunes to the English, so long as their Kirk and their law remained distinct. Whilst theologically dogmatic – a quality which mellowed in the eighteenth century – the Kirk looked skeptically at claims to political authority. Because the Scottish education system was far superior to the English, Scottish professors provided a powerful dynamic driving the claims of liberty and property, and placing the identity of law at any one time in a moral and, as we shall see, socio-historical context, something not entirely at odds with post-Revolutionary Whig principles.

In a prelude to the constitutional struggles of the seventeenth century, the English lawyer, Coke’s exclamation to his king that English kings had, since medieval times, been subject not only to God (as Hobbes would argue for his Sovereign), but also to the law, and that, no, James I could not adjudicate in the courts that sat in his name. Courts sat Per Curiam, the King was within, not outwith or above the law. Coke was not noted for his tact and, perhaps he was unduly abrupt, but perhaps not controversial. The Scots were familiar with the idea that principle had to be weighed against authority and might prevail. James’ fear that a similar doctrine was developing in his new realm was no doubt alarming to a monarch wishing to establish absolutist government. Deference among the commons² was one thing, since it existed within a framework of local customary expectations, even if they were frequently disappointed, but abjection and despair seems not to have been considered. Writing of Henry VIII’s reign, Loades says:

In theory, every aspect of a man’s life was tightly controlled by the king, the Church, or his local trade guild, but in practice the inefficiency of all these agencies left most men a good deal of freedom, especially if the community was indulgent, as it often was.³

There was a surprisingly high level of male literacy, even in England, and a surprisingly high level of political awareness and engagement among both men and women, though less so in England than Scotland. The Scots entertained a certain nervousness, which I think it is as well to bear in mind: could the English be trusted to maintain the accomplishments of the post-Revolutionary settlements, a balanced constitution and a divided sovereignty and the integrity of law, however corrupted and compromised it might on many occasions be? A strange alliance between the still-stern Calvinist Kirk of Scotland and the somewhat languid Latitudinarian Church of England after the 1707 Union of the countries seems to have resulted in an internally, relatively mild regime, hedged about with restric-tions; and a viciously aggressive external state. Adam Smith, as we saw, never published his works on law, but significantly began his writing with discussions on moral sentiments. They were the basis, he had clearly learned from Locke and Shaftesbury, upon which law rested. The English called this their constitution. Yet the ghost of the sovereign and its certainty, whether resented or a comfort, lay heavily on continental European civilization.

Yates writes that the “phantom” of empire had haunted Christendom from the time that Romulus Augustulus, the last western Roman emperor, was deposed in 475. It was a phantom that took many forms. Dominus mundi, the Emperor as lord of the world in Roman law, translated in feudal terms into claims of suzerainty over mere monarchs by those claiming the imperial inheritance. The Pope, for example, claimed secular superiority under the forged Donations of Constantine, in which the secular but Christian Roman emperor appeared to have ceded his worldly power to the spiritual head of the universal church. Charlemagne, crowned lord of the world by the Pope in 800, saw himself, not merely as head of the earthly city in opposition to Augustine’s City of God, but as the worldly defender of the eternal. The widely accepted logic to which Yates refers, takes (the later) Filmer one step further than he might have wished to go in justifying divine right in terms of the patriarchal entitlements of the father in a family:

As all the powers within an individual man must be under one ruler, his intellectual power; as there must be one to rule a family, the paterfamilias; one to rule a city; one to rule a kingdom; so there must be one to rule the universal world.⁴

Here is the yearning for a lost union and the desire for the desire of the Big Other, as Lacan or Zizek might phrase it. But this vision of oneness and certainty in hierarchical authority as the only precondition of world peace, was shattered by the multiplication of political authorities until briefly revived by the inheritance by Charles V of all the then Habsburg territories in Europe, from the Netherlands, through Germany to Spain and Italy; and to the Americas. His defeat of France in 1525 and the crushing of the Protestants at Muhlberg in 1547 carried the promise of a new world order informed by Catholicism under the protection of a new Roman Emperor. Ironically it was he who, through his control over Pope Clement, denied Henry VIII’s application for a papal annulment of marriage to Catherine of Aragon and ensured the breach of England from Rome. Roman Emperor, Dominus mundi, guarantor of the certainty of the one true faith, he was not to be: he retired to the certain world of a monastery in 1555 and divided his empire.

The legacy of Yates’ “phantom”, though, has two important implications. Its notion of One-ness as a sine qua non of peace under God gave us not only Charlemagne and Charles V, but also the Crusades and other forms of Christian complicity with territorial aggression and conquest. It gave us in addition the particular ideas of imperium that would cause so much difficulty later. Post-Reformation monarchs, at least in England, were not simply secular sovereigns, but also the secular arm of God, emperors of a tiny imperium with a divine obligation, and thus divine blessing. James Simpson⁵ is doubtless correct to stress that one appeal to Henry of the Evangelical movement that sprang especially from Tyndale’s translation of the Bible into English was that opposition to the king was therein understood as opposition to God. He is also no doubt correct to imply that if the authority of the Catholic priesthood had not been undermined by the direct textual access permitted by the translation, the Reformation would not have been as relatively acceptable politically as it was. This was why Henry, sensing excommunication and a break with Rome if he convened a court that would annul his marriage to Catherine and subsequent marriage to Anne Boleyn, was able successfully to seek help from Parliament.

What is obscured in Simpson’s text is the political dimension, hence the connection between constitutional politics, religion, and legality which was to surface more violently in the seventeenth century. Catherine of Aragon, who bore to Henry “only” a girl, Mary, was the widow of Henry’s deceased brother, Arthur. So convinced was Henry that political stability depended on his leaving behind a male heir (perhaps deluded: Roman Catholic Mary was a disaster, although perhaps not: would Elizabeth have been such a success without the protestant martyrs Foxe was so eloquent in deploying? Would we have the Bloody Mary?) that he allowed himself to be persuaded that the Old Testament insistence that a marriage to a brother’s widow would be childless really meant boy-less.

Appreciating that Pope Clement, dominated by his enemy, the Habsburg Emperor Charles V, would never permit Henry’s curial divorce from Catherine in the Vatican, Henry set up his own court in England under Archbishop Cranmer, which declared an annulment of the marriage to Catherine of Aragon and he married Anne Boleyn, who was then crowned queen. But if Henry VIII’s claim to be reforming a corrupt church by resiling from Rome was a brilliant propaganda coup, it had unforeseen consequences. To put it in terms that contemporaries would not have done, if Protestant communities came to require spiritual guidance and advice but not the intercession of the priest in their collective worship, the church would become an organization of administrative experts, albeit with a unique moral authority, and its head, the imperial monarch, a head of state – in other words, potentially something less than an extension of the divine. Much of Yates’ later discussion is devoted to an account of the rich layers of ritual and mythology attached to the image of Elizabeth, the Virgin queen, efforts, largely successful, to maintain the monarch’s unique relation to the divine; efforts that began rapidly to lose their efficacy under her successors.

In light of the above brief discussion of Yates’ opening section, it comes as no surprise that, in Canny’s account, “the word ‘empire’ was particularly favored by Henry VIII after his breach with Rome, and called to mind the relative isolation of England through the centuries rather than its dominion over foreign territories”.⁶ It was connected to a particular view of what was meant by sovereignty: not simply a realm not subject to authority from without, but a ruler not subject to authority within. The Act in Restraint of Appeals of 1553 was in much the same mind, although as a parliamentary measure it probably implied a more inclusive sovereignty than that of Henry.⁷ But “a coterie of royal legists and rhetoricians (who) appropriate(ed) the exalted concepts associated with princely rule by court humanists in High Renaissance Italy” had made possible a “court humanism” in the context of which Henry could claim, even in 1515, two decades before the Reformation, that “kings of England have never had any superior but God himself”; and later, “we, of our absolute power, be above the law”.⁸ This should perhaps be qualified in a manner that will resonate with arguments later in my book, by Penry Williams’ observation, quoted above, that in a relatively affluent society, government by consent was possible.⁹

The efficacy of Henry’s rule had a more mundane basis than he cared to admit. And there was non-English territory there within Henry’s realms. Wales, from which the Tudors claimed to originate, was one, formally assimilated to England in 1536. Henry’s post-Reformation, “imperial” assertion of sovereign independence from Rome was also coeval with the continued English assertions of what can now be conceived to be a colonial imperium over Ireland, with all the incidents of imperial rule and, ultimately exogenous rule, even if contemporaries understood the relation with Ireland to be one of feudal overlordship.¹⁰ It was not a pretty sight:

The distinguished historian and Abolitionist, Henry Hallam (1777–1859) pointed out the racist affinity of the Spanish genocide of the Moors and the English oppression of the Irish … The preeminent Anglo-Irish historian William Lecky (1838–1903) noted how the people of the English Pale in Ireland came to “look upon the Irish as later colonists looked upon the Red Indians”.¹¹

Michael Collins, the Irish patriot, writing about the good that came from the failed rising against the British in 1916,¹² could well have been writing about the British occupation of Australia: massacres, the attempted suppression of religion, language and law, and the theft by the invaders of indigenous land.¹³ Some of what was lost was irrevocably lost, some could be regained; and what above all was achieved was the assertion of self respect. Ireland was in many different ways, an early laboratory of empire, of colonialism and of resistance to it. The liberation of what became Eire has led, eventually, to the creative vitality and prosperity that the country was denied by British rule. Canada’s grant of semi-autonomy to first nations people will doubtless produce a similar outcome.¹⁴ After a decade of political somnambulance, with a federal government with a mindset familiar from the 1930s, Australia’s new federal Labor government has opened the possibility for both Aboriginal equality and difference from European and Asian Australia, releasing, not xenophobic nationalism, but openness and a shared creativity.¹⁵

The Stuarts and the Figure of the Emperor

James VI of Scotland, Elizabeth I’s nominated successor to the throne of England was also, like Henry, much taken with the imperial idea, referring to his post-1603 dual monarchy as “great Britainne’s imperial crowne” or, the “Empire of Great Brittaine”.¹⁶ What distinguishes the Stuart monarchy is the rigorous attempt by its members to unite four peoples in two islands into one political entity¹⁷ which then, of course, established “plantations”, i.e. colonies of settlement, largely under crown charter, in North America.

The attempt failed, to the extent that relations with Ireland remained one of dominance and exploitation – and here the resemblance with the settler colonies to which Allen draws attention recur. English and Scots Protestants who settled in Ireland were looked down on by English governments as lacking cultivation whilst the settlers themselves were if anything more severe colonists than the metropolitan governments – something later echoed in Australia. Also, as is clear from the later Union debates under Anne, the last of the Stuarts, the English governing classes, whilst putting up with James’ fantasies about his empire of Great Britain, had been most unwilling to share their trade and commerce with the northern part of the phantom empire, with the Scots.¹⁸

As to the sovereign claims which James associated with his “empire”, the Jesuit, Salamonio’s, conclusion, that a sovereign, whilst superior to each of his subjects individually, is inferior to them collectively, and his fellow Jesuit, Suarez’s, insistence in the early seventeenth century, that there is a right of resistance to a monarch where “it becomes necessary for the preservation of the commonwealth itself”¹⁹ “cut right across the doctrine of the divine right of kings enunciated by James VI in his Trew Law of Free Monarchies”.²⁰ According to this text “Kings are not only God’s lieutenants upon earth, but even by God himself are called Gods … Kings exercise a manner or resemblance of Divine power on earth”.²¹ Suarez, a “monster”, according to James, had his writings burned by royal decree in London.²² “A lawfull good king, having received from God the burthens of office, whereof hee is accountable”²³ acts according to law “yet hee is not bound thereto but by his good will”. The sovereign sits “upon God his throne on earth”.²⁴

In the famous episode in 1608, James’ assertion that judges were mere delegates of the king was, as we have seen, challenged by Sir Edward Coke, Chief Justice of Common Pleas, who, on his own account of the encounter at least, “replied that that Bracton saith, quod Rex non debet esse homine, sed sub Deo et lege”²⁵ – in effect, the King is subject to none but God – and the law. But, of course, Coke’s Bracton was not the medieval Bracton, the man of deep canon law learning and perhaps learned in whatever Roman Law was then available.²⁶ That Bracton was, Milsom suggests, at a crossroads. Bracton (whoever he actually was) proposed a university textbook in Latin which would have been based on systematic principles. It could have been a fruitful union of what Roman law was then known, and common law. English law could have become a scholarly discipline. But Oxford and Cambridge which, until the eighteenth century taught only Roman and Canon law, did not for the most part trouble themselves with common law. Common law practitioners were:

Professional men, literate men, but men not at home in the Latin tongue and not interested in the riches to which it gave access. The common law had started its career as an alternative learning, cut off from even the legal learning of the universities … What centuries of learning had made so clear centuries earlier was to them alien learning; and they were starting again.²⁷

It was this starting again was what enabled Coke to argue against those who understood sovereignty to be necessarily “indefeasible and illimitable”, and that Stuart sovereignty moreover permitted “no appellate jurisdiction for if there were, then that jurisdiction and not the king’s would be sovereign.”²⁸ For some common lawyers the argument seemed to be this: if the king drew his authority from the law, then he was subject to it, as Coke has Bracton say; if law took its rise from the king then it was properly subject to the king. This is the logic, but where was the empirical basis for either position? As Pocock has shown, the common lawyers were on shaky historical ground.²⁹ However, Skinner finds a second argument against the Royal Prerogative, and Royal claims to possess:

the prerogative right to tax, to imprison and execute his subjects whenever he judges such actions to be in the public interest. To claim such discretionary powers, it was objected, is to leave everyone in dependence on the will of the king. But to live in such dependence is to live as a slave and to live as a slave is to be bereft of liberty.³⁰

The rhetorical force of the freeman – not a slave or a villein, but, like them, a legal category nevertheless – was to have an eventful political career taking freedom into Anglophone politics in England and America. It is the birthplace of citizenship. In an early enunciation of the doctrine of the separation of powers, Coke continued: “The King in his own person cannot adjudge any case … betwixt party and party … cannot take any case out of any of his courts and give judgment upon it himself … judgments are always given per curiam and judges are sworn to execute justice according to the law and customs of England”. Whatever law was to become, with Parliament, it was at this time, in Maitland’s phrase “tough law” and could see off a king or two.

It is difficult to know if the violence of James’ reaction was mere outrage at the blithe assertion by Coke of a public “state” beyond the patrimony of the King, or some belated recognition that England had already begun charting new courses. The latter seems more likely. James was brought up a Scottish Protestant, among his tutors being converts from Roman Catholicism like George Buchanan. Buchanan was fiercely opposed to the doctrine of divine right and in favor of resistance to tyranny. It was said that Buchanan’s refusal of divine right and his insistence that kings were servants of their people provoked James’ conviction that the opposite was the case.

Pre-empting parliamentary claims to participate in his divinely imposed tasks, James warns the two Houses in 1609, “doe not meddle with the main points of government, that is my craft, I must not be taught my office”.³¹ In a further preempting, this time of judicial claims to insulation from Royal government, he reasserts “that he was the supreme judge” – an oddly canon law position for a Protestant – “inferior judges (being) his shadows and ministers … and the King may if he please sit in Westminster Hall in any court there and call their judgments into question. The King being author of the law is the interpreter of the law”.³² In 1616, he instructs the justices assembled in Star Chamber that he merely delegates his power of adjudicating according to the law administered in his name, he does not relinquish it. He compares the questioning of his prerogative to blasphemy. He tells them he knows of the common lawyers’ love of arcane dogma but, “if your interpretation be such as other men which have logic and common sense understand not, I will never trust such an interpretation”.³³

The narrative of the English and Scottish responses to Stuart claims is well enough known, and some of it has already been adverted to. Hume’s overview is difficult to better, although, of course, his History has long been superseded by the work of intervening centuries, more recently by the detailed scholarship of Christopher Hill and others.³⁴ Superstition, which Hume associates with later Stuart Catholicism, “is an enemy to civil liberty and enthusiasm a friend …”. On the other hand, the evangelical Protestantism which alone at the time had the capacity to resist the incursions of the monarchy, was characterized by “hope, pride, presumption, a warm imagination, together with ignorance, the true sources of ENTHUSIASM”.³⁵ One, the Protestant evangelism noted by Simpson, had been necessary to counteract the other, superstition, but the prudent conclusion for the present, having survived that confrontation is, “moderation in all our political controversies”.³⁶

The response to James I, of lawyers, property owners, merchants and the artisans who were to form the radical element during the years of the debates about the nature of government may have informed Locke’s conviction later in the century that people will not easily abandon their obligations to government.³⁷ James died of natural causes – perhaps because he was firmly opposed to both Catholicism and evangelical Protestantism – whilst Charles, his son, married to a French Catholic and with a High Church (i.e. a cleric perceived by suspicious Enthusiasts as quasi-Catholic) preference, evidenced, in their eyes, by his later attachment to Archbishop Laud, but who made not dissimilar claims to authority, was tried by a court which, he argued, with technical correctness, had no legal jurisdiction over him. Perhaps the political nation and the lawyers took some time to estimate the distance between the conception of the state that they were compelled to adopt in order to transact their day-to-day business, and that of the court. Charles was executed in 1649. But if James kept his head, this does not mean that there were not, as we have seen, moments of high drama, moments in which the logical conundrum was confronted which earlier imperial doctrines, claims to absolutist rule, were meant to resolve.

Holdsworth – who notes James VI/I’s struggle with Coke over the relation between the Royal Prerogative and the independence of the judiciary, which anticipated his struggle with Coke over the independence of Parliament, Coke’s other resort³⁸ – quotes a contemporary observer of Coke’s assertion of the “public” rather than the patrimonial nature of Royal justice, to the effect that Coke’s proposition rendered the courts of record, and in particular, the King’s Bench, the supreme arbiters of government, leaving the king and his officers little to do. Was the King’s Bench a sovereign of some kind? As an outcome, this was unlikely, for the practical reason that judges were appointed and could be dismissed by the king, whilst Parliament was a more formidable foe, since if not summoned it could, and in fact did, refuse to fund government; and if summoned, could refuse funding save on its terms, which is what happened when the Presbyterian Scots occupied Newcastle upon Tyne on what turned out to be the eve of the civil war. The Commons refused to fund an English army to challenge the Scots, provoking hostilities between themselves and the king and the defeat, trial and execution of Charles. The logic of the situation might be that the country had, in the legislature, a new sovereign. But legislatures do not by themselves make very effective governments, and the Long Parliament was purged in 1648 to render it less of a debating chamber and one more amenable to the Army leaders. Following this the Rump which remained was effectively displaced by Cromwell as Lord Protector, who governed with the aid of an expensive army. The New Model, formed out of a parliamentary counties’ association, the Eastern Association, was an army, moreover, that considered itself “no mere mercenary army”. Politically conscious and committed to its cause, it had been stunningly successful against Royal forces to the point of invincibility. Of more relevance here, for a time:

it was the common people in uniform, closer to their views than to those of the gentry or Parliament. And the free discussion which was permitted in this unique army led to a fantastically rapid development of political thinking.³⁹

By the end of the Protectorate, the army, itself having lost or been purged of many of its radicals, was doubtless much less radical, but its reputation remained. The general radicalism led some historians to see incipient communism in the air.⁴⁰ The literate and articulate heroes of the battles of Marston Moor (1644) and Naseby (1645) against royal forces notoriously failed to see why their discipline, commitment and exposure to danger should deliver them nothing more than the old society with, perhaps, some minor changes at the top. Thus the radical, John Lilburne:

The only and sole legislative law-making power is originally inherent in the people and derivatively in their commissions chosen by themselves by common consent and no other. In which the poorest that lives has a right to vote, as well as the richest and greatest.⁴¹

In the (parliamentary) Army debates at Putney in 1647 and Whitehall in 1648 about the future of government, the Levelers gained some prominence in arguments about the future shape of politics and the state. Colonel Rainsborough, opposed during the debates by the conservative Ireton for seeking to subvert the special claims of the propertied to control the country’s future, is worth quoting at length:

… I really think that the poorest he that lives in England hath a life to live as the greatest he; and therefore, truly, sir, I think it’s clear that every man that is to live under a government ought first by his own consent to put himself under that government; and I do think that the poorest man in England is not at all bound in a strict sense to a government that he has not had a voice to put himself under … I should doubt whether I was an Englishman … that I should doubt of these things.⁴²

Even before this, sentiments such as, “I hope within this year to see never a gentleman in England” had initially caused the wealthier parliamentary supporters to hesitate before advocating hostilities against the king. The wealthy, whose motives in supporting Parliament had to do with the security of their property from the monarchy now saw it equally threatened by the radicals, and welcomed the Restoration of the Stuarts in 1660. But the continued vulnerability of the courts and the cavalier approach to Parliament taken by the restored Stuarts after 1660 was not reassuring.

At the end of the seventeenth century, however, many of the better- and less well-off felt that they had stared into the abyss of social disintegration. But having glimpsed the meta-legal experiments of the Tudors and having experienced the sovereign pretensions of the Stuarts and Oliver Cromwell’s Protectorate, the men of 1689 – and before, if we think of Locke and the first Earl of Shaftesbury and their opposition to a Catholic king with predictably absolutist intentions – were unlikely to find any consolation in the solution to disorder and conflict offered by Hobbes’ precisely meta-legal sovereign, the figure of the emperor to whom one must surrender all but “bare life”. Yet the alternatives Hobbes set out had a famously brutal logic: “men by themselves … outside of civil society, can have no moral science because they lack any certain standards against which virtue and vice can be judged and defined”.⁴³ This would be denied.

The clamor of opposing, equally legitimate and therefore nugatory rights, he located in the state of nature. Men are not necessarily good judges of their best interests, nor are they naturally sociable, but they do have a rational fear of one another, each not knowing the intentions of the other. “On going to bed, men lock their doors, when going on journeys they arm themselves because they are afraid of robbers … Each (man) tries to probe the other’s mind. The cause of men’s fear of each other lies partly in their natural equality, partly in their willingness to hurt each other”⁴⁴ – and partly, of course, in their inability to read each other’s minds. If Hobbes’ account of disorder seemed to better-off contemporaries so resonant of recent experience, it seemed also to have no resolution except the alienation he recommended, of all rights claims, to one, or one body above the fray, who “cannot be bound to the civil laws, for this is to be bound to himself; nor to any of his citizens”.⁴⁵ For the quality of his justice and the beneficence of his regime, the sovereign could be answerable only to God, for to permit secular questioning was to risk returning to the very problem of social chaos, the solution to which Leviathan was intended to be. “By the social compact, the subject has ‘made away all power of judging and caring for the common good’”:⁴⁶

To the care of the Sovereign belongeth the making of Good laws. But what is a good law? By a good law I mean not a just law, for no law can be unjust. The law is made by the Sovereign Power, and all that is done by such a power is warranted and owned by every one of the people, and that which every man will have so, no man can say is unjust … a good law is that which is needful for the good of the people and withal perspicuous.⁴⁷