Emergency Powers: Hobbes vs. Locke and COVID-19

What constitutes an emergency? When can the government act outside of the law? Who decides when this is the case? In this episode, we cover emergency powers and how they stem from social contract theory. We compare the social contracts of Hobbes and Locke. And we apply their theories to emergencies today like COVID-19.

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Emergency Powers: Hobbes vs. Locke and COVID-19

There are a few words for when the government gets to act outside of or in violation of its own rules- such as emergency powers and freedom of movement, but we're gonna call it what Locke does: prerogative. What does that have to do with the social contract? Well, prerogative is actually at the heart of social contract theory. Thomas Hobbes, the first social contract theorist, comes up with the idea in response to years of tumult going on in England culminating in the civil war, also known as the Great Rebellion. There are a lot of factors involved in the start of the war, which are rooted in disagreements between parliament and the King, and are quite interesting, but in terms of political philosophy, one thing sticks out most: who gets to decide when there's an emergency?. And, as we'll see, Hobbes, in his 1651 masterpiece Leviathan, answers this question very differently and presents a very different social contract than Locke will about 40 years later.

The question of prerogative certainly wasn't new to the time of Hobbes, but the answer to this question of who gets to declare an emergency was not set in stone. Going back to the Roman Republic, the senate would declare an emergency,  then appoint a dictator, which means "he says," (yes, that's where the word dictator comes from) who would be in charge for chunks of six months and/or the emergency was deemed over. Believe it or not, this system worked great for over 400 years before Julius Caesar decided he deserved to be dictator for life. We'll cover the Roman Republic and its enormous influence on our current political life in depth in future episodes.

In times more modern to Hobbes, the King claimed that God have given him the right to declare anything an emergency even without parliament's consent. This came to a head in what is famously known as the ship money trial. In the 1630s, King Charles, having spent lavishly on himself and in need of money, declared that there was an emergency, circumventing parliament, and levied ship money taxes, a law that hadn’t been used for hundreds of years. But, a man named John Hampton didn’t buy the kings excuse of an emergency, and said he wasn’t going to pay. So thus it came to the court, who gets to decide if there is an emergency? The king or parliament?

Hobbes then comes along and says that the King is, in fact, in charge of declaring emergencies and that his word is irrefutable, but not for the reason people thought at the time, which was that the King’s authority came from God. No, the reason whatever the King says goes is- guess what?- you already agreed to it. So when the King says he needs those ship taxes, he's right, because you already said he was. That's what, to Hobbes, the social contract determines that the sovereign can do, which is whatever he wants within the laws of nature. You might be tempted to think of this idea as archaic and ridiculous. But, I ask you to please be open minded and think about the merits of his argument I'm going to lay out. Because you can't justify our current, liberal, Lockean social contract without being able to refute the ideas of absolute sovereignty.

To get to understand Hobbes' conclusion, let's start at the beginning of his argument, which is in the state of nature. His opinion of the state of nature is very different from Locke's that we covered in last week's episode. So, let’s get into it.

To Hobbes, everything is about motion. It’s about things colliding into each other and creating causes and effects. So, all of our actions are driven by our passions, that which causes us to feel good or bad, and all voluntary action is us using reason to fulfill our appetites and aversions. He’s what's called a moral relativist. Meaning that we call good what makes us feel good and we desire- and evil is what makes us feel bad and we despise. Nothing is naturally good or bad- except peace. Peace is good. This will come into play later, so store it away.

Like, Locke, Hobbes believes all people are born equal. He defends this by saying no one is strong enough or smart enough to have complete dominion over everyone and that weaker people can still kill stronger people, as well as a stupid person can still fool a smarter person. Because we are all equal, he calls us diffident,  which means modest or shy resulting in a lack of self-confidence. What does this diffidence result in? War. Since people are of roughly equal powers and want the same things from nature where such things are scarce, we must all compete for the same things. In this condition nothing can be unjust. Force equals validity. All have a right to whatever they judge necessary- including the lives and bodies of others. This is, to Hobbes, the state of nature, and it sucks. Everyone is everyone's enemy. In the state of nature, which is the state of war, there is no room for industry or agriculture and life is "solitary,  poor, nasty, brutish, and short." And, as a result, every individual who lived in it, if given the chance to leave- would. (pause). So, right off the bat, we see a difference between the Locke’s state of nature, which is peaceful and separate from the state of war, and Hobbes, who says the state of nature is a state of war.

What is the law of nature to Hobbes? You have a natural right to preserve yourself and are obliged not to destroy yourself. You don’t have to worry about preserving the rest of mankind like Locke says. And, you conclude, as a general rule of reason, that it is rational to seek peace as far as it can be hoped, but if it fails, defend yourself with war.

So, how do you get out of this horrible state of nature? You agree to the social contract and join society. What does this look like? Well, when you and a bunch of other people are ready to have peace, you'll lay down your right to all things and be happy with your liberty amongst other people being the same as you'd want their liberty to be against you. Explain more? (pause). We make this deal with the community for peace. (pause). But, the problem with the state of nature is that there is no one to enforce this or any other deal. So, as a community, we're gonna pick a government to enforce it for us. We can pick whatever type of government we want, but Hobbes thinks we should choose a King not a republic because the more divided power is, the weaker it is, and the weaker it is, the worse it is at protecting us. So we give all power to a sovereign or government. We get protection in return for our right to everything. The Sovereign, in turn, has a total right to everything; because without him there is no society at all.

So, to Hobbes, if the sovereign declares that he needs to take over all manufacturing plants to make masks or ventilators for COVID-19 measures, the owners of those plants have no right to oppose him.

The rightness and wrongness of behavior is now up to the sovereign- this is referring back to moral relativism. Nothing is inherently good or bad, so the sovereign decides. (pause) The conferring of powers makes all wills one. Literally they are all the same person. We all make up the state and he rules for us. There's no contract between the sovereign and the people because he's not bound by the law because he is the law. Why? Because we, as a community, agreed to make him such. So, the sovereign can do nothing unjust. You already agreed to all of his actions. You have no right to revolt unless your life is in immediate danger. Only then can you break the contract because you’re back in the state of war where no contract is enforceable.

Why do you agree to this? Because all life is fear. (pause). There's no escape from it on this side of the grave- you just get to choose different forms of it. The worst possible fear is that your neighbor is gonna violently kill you at any time. So joining a commonwealth and agreeing that what the king says goes in order that you don’t get murdered in your sleep is the only reasonable decision.

Afterall, isn’t it better to be ok with the President declaring a border emergency that you might disagree with than to not feel safe in your own home?

You might be thinking that this agreement under fear isn't a free choice. Not so fast. Hobbes believes in what is called compatibilism. That is that you are free to choose, but you are constrained in your choice. Any binary choice is a free choice, even if it’s constrained. This means things that what you do in fear you actually consented to. Every act of conquest and acquisition has become a contract. So, if I threaten to kill you unless you give me your wallet, we've actually entered into a contract. We have an agreement. You are making a choice to give me your wallet or get killed, you being afraid doesn't matter, because life is fear, so no choice is devoid of it. Think about it. Why do you pay your taxes? Fear of being audited. Why do you eat healthy or exercise? Fear of death. Why do you recycle or make environmentally healthy choices? Fear of climate change. In fact, almost every decision you make boils down to fear.

Your next objection might be about your freedoms. You might say that not being allowed to go to a restaurant during the pandemic is a violation of your freedom. Hobbes would say you definitely are free. You can do whatever the government doesn't say you can't do. It's the same amount of freedom as any other government. (pause). It goes back to compatibilism. You are free to make the binary choice to follow the law or not follow the law. Any rational, self-interested person would choose to follow the law because it's better for them.

So why does the sovereign act in order to protect the state? Well, beyond the right of the sovereign to make decisions on behalf of the people, the sovereign is compelled to do so because he remains in the state of nature, and thus in the state of war. This is because there is no authority above him to enforce contracts. Accordingly, the sovereign’s existence is one of “continuall feare, and danger of a violent death” (pause). Because of this continual fear and danger, the sovereign must always be ready to adapt to and be flexible in the face of the inevitable and natural threats to his power in order to assure his self-preservation, and, in turn, the preservation of the state as a whole. So, if the president wants to make a deal with Ukraine to benefit him personally, he gets to decide that that means it benefits the state.

This is where prerogative comes into play. The sovereign decides when the state is under threat on your behalf. If you contradict the sovereign, you're not contradicting God, like divine right of king believers insist, you're contradicting yourself. Because you made this agreement when you joined the government. So when the king said that he needed that ship tax money, John Hampton was actually contradicting his own will when he refused.

To recap: If you listened to last week’s episode, you can tell that this is very different from Locke’s idea of the social contract. But it holds a very important similarity: consent of the governed. Because of how horrible and terrifying life is in the state of nature, you, a rational, self-interested person, decide that you want peace. You realize the best way to do that is if you agree with everyone around you to be peaceful. So, you all agree to give up your right to everything in exchange for peace. But, there’s one problem, you don’t have anyone to enforce the agreement. So, you guys all decide on a king to rule for you. In this decision, you have consented to the rule of the king. So, the king can never violate your will because they’re acting on behalf of it. So when the king uses their prerogative to break the law because of an emergency, you have already agreed that it is an emergency.

But, what’s an example of Hobbesean prerogative now? As I mentioned briefly, it’s President Trump’s boarderwall. As you all assuredly remember, the border wall was a huge part of his candidacy. And when he became President, he started to build it. Only Mexico wasn’t paying for it like he said they would. So what did he do? He declared an emergency. And used his executive prerogative to move money from the pentagon to build the wall. This is technically illegal. But, to Hobbes it wouldn’t matter. By electing Trump the chief executive of the country, he decides on our behalf what an emergency is.

I know that was a lot, so let’s take a deep breath, ok?... and move on to Locke. I promise that in a couple minutes you’ll have new insights into what’s going on today.

Like we talked about last week, America is founded on Locke’s ideas, and he believed that the “inalienable” rights of the people that the government is obliged to protect are life, liberty, and possessions. (pause). In order to fulfill its obligation, the state must be able to exercise prerogative. Locke defines prerogative as “nothing but the power of doing the public good without rule.” This means that the “rulers [can] do several things, of their own free choice, where the law was silent, and sometimes too against the direct letter of the law, for the public good.” In what was defined by Plato as “for reason of state” justification, Locke identifies that, in certain circumstances, the regular proceedings of government are inadequate to address certain problems, thus requiring that government exercise prerogative to meet the demands of the moment.

Locke justifies the use of prerogative by pointing out the inherent limitations of procedural governance as being too slow. For example, in the immediate moments following 9/11, there wasn’t enough time to have congress convene and vote on if we should shut down air travel and the borders. One person had to make that decision. 

Furthermore, he says that prerogative also allows leaders to break the law, such as tearing down someone’s house to stop a fire from getting out of control and burning down the whole town. Locke justifies this undemocratic quality of prerogative by reasoning that the preservation of the state is more important than a strict adherence to a legislative decision making process. This is because “the end of government [is] the preservation of all.” (pause). Locke claims that in order for the end of government to occur, prerogative must be allowed, otherwise the government itself may not survive, thus making impossible the achievement of its end.

To Locke, however, this power of prerogative has way more limits than Hobbes. Why? Because the people ultimately will have a direct say in the legitimacy of the prerogative taken by the executive. How? Well in the final analysis, the legitimacy of prerogative action will be decided by if it did the people good or harm. And the people get to make the estimation in elections and in law making. So there is a sort of after the fact evaluation of the executive’s actions. For an historical example, look no further than the American revolution. The king exercised prerogative in placing troops in Boston and denying fair trials to the colonists among other things, and the colonists decided that this prerogative harmed them, and we know how that turned out.

So now that we have looked at both Hobbes and Locke’s ideas of executive prerogative, let’s apply their philosophies to modern times.

First, prerogative was used as a defense in President Trump's impeachment by his lawyer, Alan Dershowitz. He claimed that in attempting to create a quid pro quo with Ukraine in exchange for information on Hunter Biden the President was using prerogative to act in his own best interest, which is inherently the best interest of the state. That the interests of the President and the nation are one in the same. 

If this argument reminds you of what Hobbes said about executive authority- then you're spot on. The executive cannot do something unjust or not in the public good because what he says is just and in the public good is what is just and in the public good. We've entrusted him to make that decision on our behalf.

But what would Locke think? Locke certainly does not agree that what is good for the executive is what is good for the public good. However, the President was not indicted and removed from office by the legislature, which is the arm of the people. So does that make President Trump's use of prerogative in this case legitimate? Or does the fact that the people then voted him out delegitimize it?

Finally, let’s take a look at a more current emergency: COVID-19 and specifically the shutdowns. We talked last episode about how mask mandates, according to our founding principles, are not a violation of your individual rights, but that actually not wearing a mask is a violation of my right to life. But, statewide shutdowns can be seen as a whole different matter. Let's consider the recent supreme court decision to overturn Governor Cuomo's limits on religious gatherings. I'm not a lawyer, so I'm not going to comment on any legal truth. Rather, we're gonna focus on what in philosophy is called the normative truth, which is what ought to be, not necessarily what is. What would Hobbes, Locke, and the founders say?

I believe Hobbes would use this as an example of why there must be one person in charge absolutely. Because, as I said, he believes that the more divided power is- the weaker it is. Agree or disagree with the shutdowns, it's inarguable that this court decision limits the power of the executive of the state of New York, and limits his prerogative. To Hobbes, this is a bad idea and illogical. You put government in charge to make decisions to enforce contracts and protect you, not fight with each other and delay implementation of your protection. We see this in other places as well. For example in Florida, there are local officials who want to enforce mask mandates and limit business' hours, but the governor has put a ban on such measures. Local officials are trying to find legal avenues to get around the governor, and we don't have agreement on what to do. To Hobbes, all of this would be avoided if there was one clear voice in charge because if you don't, then really no one is in charge.

But, what about Locke and the founders?

Locke and the founders, I believe, would oppose the ruling of the supreme court on normative grounds. Starting with the founders, this isn't actually that big of a hypothetical. In 1793, there was an outbreak of yellow fever in Philadelphia, then the country's capital. Even harsher lockdown measures than now were put into place, including limits on citizen’s freedom of movement in and out of the city, and no opposition was raised by George Washington or his administration.

For Locke, who was one of the ideological fathers of separating the church and the state, he would not think it ok for religious centers to be exempt from these executive measures. 

Much has been said by people that believe individuals should be able to make their own free choices about the virus. That adults should be able to calculate their own risk tolerance and go about their lives accordingly. I firmly believe that Locke and the founders would disagree. Remember the point of government in an emergency for them, "the preservation of all."

I think an apt analogy to this idea of individuals believing that they should be able to make their own choices when it comes to COVID is the blitz in London. In 1939, the British were under intense, nightly bombings from the Germans and strict measures were enacted by the government. One of them was a mandatory black out. You couldn't leave your lights on at night because it would allow the German planes to see where to bomb. If a person in London were to oppose this measure and say that their countryman, John Locke, would deem this a violation of his liberty to make his own choices; and that he is willing to take the risk of being bombed in order to celebrate his birthday with all his friends and family, he would be wrong to do so. Why? Because the bomb might not hit his house. In fact, it probably won't. His actions do not only affect him. So, in the interest of "preservation of all," the choice is not his to make. I believe Locke would view COVID shutdowns and policies the same way. Because, as we noted last week, the law of nature dictates that you are never to harm another's life, liberty, or possessions and to the best of your ability, you must preserve the rest of mankind