The State in Analytical and Normative Profile

Max Weber Lecture by

Philip Pettit (Princeton and Australian National University)

18 May 2016, 17:00-19:00
Badia, Refettorio

Summary by MW Fellow Guy Aitchison (SPS 2015-2016)

Professor Philip Pettit began his lecture with the observation that much recent political philosophy has focused on what the state should do, rather than what the state should be. This is a shame because there is a rich historical tradition of thinking about what a state is and how it should be organised and it is vital that we revisit these issues in thinking about our politics. There are, Pettit said, four fundamental questions in thinking about the state: i) Is the state an agent or not?; ii) Can the state be popularly controlled?; iii) What sort of constitution should the state have?; iv) And should the constitution be presidential or parliamentary?

Following the legal philosopher HLA Hart, Pettit noted that a state exists wherever there is a system of primary rules regarding conduct (such as prohibitions on stealing and violence) and secondary rules that set procedures for determining whether a violation of the primary rules has taken place, coercively enforcing those rules and changing them if required. If we think of an agent as an entity that has a particular purpose and is capable of forming representations of reality to act on that purpose, it is an open question whether some states are in fact agents. Ancient Athens, for example, relied upon a random selection of citizens to enforce the law and – in exceptional circumstances – to change it, and so seems to lack the consistent, systematic approach to law we would associate with agency.

Historically, the idea that a corporate body, such as a state, is an agent arose in the context of theological debates within medieval Italy.  The pope argued that although the University of Paris is a legal person, it cannot be excommunicated because it does not have a soul. It is, the pope said, a persona ‘ficta’, meaning a fictional or artificial agent. In the 16th and 17th centuries, Jean Bodin and Thomas Hobbes introduced the idea that the state must be a unitary sovereign in opposition to their Monarchomach and republican opponents who regarded the people as the ultimate authority  over government. For Bodin, law is a command by the ‘res publica’ to its members, and this requires a single unitary commander. Since you cannot give a command to yourself, it follows for Bodin that the state must be above the law and there cannot be any other body above it.

Can such a state be subject to popular control? Not for these authors. Although the state begins with a moment of popular control, when the people authorise someone to speak for them, this initial transfer of power is irrevocable. Hobbes added to this line of thinking the influential idea that the people only become a single body through the act of authorisation. Prior to this, they are a collection of individuals, a mere ‘mob’ in a state of nature and lacking a single voice. This argument later influenced Kant, who proposed that the regicide committed by the French revolutionaries was a form of suicide, since in withdrawing power from the king, the people ceased to be. Rousseau, too, argued that there must be a single ultimate sovereign, although his preference was for a democratic assembly of the whole people rather than a monarch.

In endorsing a unitary conception of sovereignty, these authors rejected the republican tradition of the ‘mixed constitution’ derived from republican Rome and celebrated by Machiavelli. According to this tradition, with which Pettit aligned himself, it is possible to have different voices contributing to the making of law, provided there exists some co-ordinating constitutional device to ensure that the ultimate direction is consistent over time. The mixed constitution has multiple agents and the sharing of power with collaboration between different bodies, such as courts, electoral commissions and various other bodies. The mixed constitution, which is the most common state system around today, may be further sub-divided into presidential and parliamentary systems. If the system is a parliamentary one, there is a single ‘author’ of the law in the form of the governing party with a fixed majority and many ‘editors’ of the law in the form of opposition parties, courts, and civil society actors. If the system is presidential, there are multiple authors and editors and law is generated through a form of deal-making between the different bodies. In thinking about which constitutional system is best for a political community, Pettit concluded, it is vital to have a solid grasp of the analytical issues involved and philosophers would do well to draw on the relevant insights of earlier eras.

Watch the video of the lecture