Dr Sean Fleming: Why the Leviathan needs a leash
Dr Sean Fleming is a Junior Research Fellow at Christ's College and in the Department of Politics and International Studies at the University of Cambridge. His work is at the intersection between political theory, international relations and international law.
Building on his award-winning PhD thesis, which was described as “one of the very best [PhD reports] in the last 15 years at any university”, Dr Fleming’s recent book, Leviathan on a Leash: A Theory of State Responsibility, discusses the challenges in modern politics regarding issues such as sovereign debt, treaty obligations and historical reparations.
In this interview, Dr Sean Fleming speaks with senior editor Christian Overgaard Wessels about his academic inspirations, Hobbes’ theories of personhood and the state, and the central question of “why, and under which conditions, should we assign responsibilities to whole states rather than to particular individuals”.
To begin with, could you speak to your path into academia and what attracted you to political theory in particular?
It’s a happy accident that I ended up in political theory, or even in academia at all. Until my second-last year of high school in Canada, I wasn’t sure that I wanted to go to university. I was thoroughly bored with school and wasn’t eager to sign up to four more years of it. The science-and-math-heavy curriculum of my school nearly steered me away from university altogether. I hadn’t been exposed to the social sciences or humanities. Believe it or not, there was no requirement to take history – and I didn’t choose to take history, because I bought into the false narrative that science and technology provide the only path to a decent career.
This changed when I was in my second-last year of high school, bored out of my mind in math class. I started to read my friend's law book, and I was absolutely fascinated. So then I decided to take the law course in my final year. And after that, I decided I wanted to go to law school.
But law is not a first degree in Canada. You have to take an undergraduate degree before you go to law school. So, the question was, what's good preparation for law? I decided to do a degree in political science with a minor in philosophy. But I enjoyed political science and philosophy so much that I decided to pursue them further instead of going to law school.
“States are responsible for the actions of their authorised representatives”
What drew you to focus your academic work on state responsibility and are there any particular intellectual influences in the field that inspired you?
State responsibility interested me because it seemed to be the most illiberal feature of the liberal international order. Despite all of the individualistic talk in international relations - about human rights and international criminal law, for example - the primary mechanism of responsibility in international relations is an archaic form of collective responsibility. When political leaders and officials behave badly, sanctions are often imposed on the whole state – look at Iraq in the 1990s, or Iran or North Korea today. This looks like guilt-by-association on a grand scale. When corrupt leaders borrow money and squander it – think of Mobutu in Zaire – the public gets stuck with the bill. Why should all citizens suffer because of the self-serving decisions of their leaders? This seems indefensible from the perspective of liberal individualism. Yet, the practice of holding the state responsible is central to the liberal international order. States are blamed for wars and bound by treaties and held liable for debts and reparations. The subjects of the state are ‘subjected’ to the consequences, whether they like it or not.
As for intellectual influences, Toni Erskine’s work got me interested in state responsibility in the first place, when I was an undergraduate. She’s still doing some of the most interesting work at the intersection of political theory and international relations. Lucian Ashworth, my undergraduate supervisor, got me interested in the history of political thought – and that’s what ultimately led me to Cambridge. Antonio Franceschet, my MA supervisor, taught me how to do theoretical work that engages seriously with real institutions. He also got me interested in international law.
My PhD supervisor, Duncan Bell, has also been a key influence. He paved the way for a lot of work, including mine, that crosses the boundaries between political theory, international relations, and history. He was also the best supervisor I could ever ask for. I don’t know where I’d be without his guidance and support. David Runciman, who was my secondary PhD supervisor, also had a major influence on me. His work on Hobbes inspired mine, and his work on corporate personhood and political representation has influenced my work on state responsibility. Runciman also got me interested in technology. You can see Bell’s and Runciman’s influence stamped all over my work.
Moving on to your recent book Leviathan on a Leash: A Theory of State Responsibility. What would you say is the essence of your Hobbesian theory?
“What we need is a theory of responsibility that’s designed for the state. And that’s what my Hobbesian theory is”
Let me begin with some background. A theory of state responsibility is essentially an answer to the following question: why, and under which conditions, should responsibilities be assigned to whole states rather than to individual leaders or officials? A theory of state responsibility aims to justify the practice of holding states collectively responsible and to determine when collective rather than individual responsibility should apply. For instance, when a dictator borrows money, should the debt be assigned to the state or only to the dictator as an individual? In response to an aggressive war, should sanctions target the whole state (as in an embargo) or only the leadership (as in an asset freeze)?
In the introduction to “Leviathan on a Leash”, I break down the practice of state responsibility into three parts and three corresponding questions. The first part is ‘attribution’: what distinguishes an act of state from a private act? In order to determine what a state is responsible for, it is first necessary to determine whose actions are attributable to that state. The second part is ‘identity’: how can a state persist over time despite changes in its territory, membership, or institutions?This question was first posed by Aristotle in the Politics, and I don't think we have a good answer to it even today. Identity is crucial for state responsibility, because the debts and obligations of the state can persist only as long as the state itself persists. The third part is ‘distribution’: who should bear the costs and burdens of the state’s responsibilities? Since a state cannot act on its own, its responsibilities ultimately have to be ‘distributed’ to individuals in order to be fulfilled.
My Hobbesian theory of state responsibility is a set of answers to these three questions. What makes the theory ‘Hobbesian’ is that it takes Hobbes’ theory of personhood as its point of departure. The central idea is that states can be understood as ‘persons’ in Hobbes’s sense – that is, as entities that can speak and act vicariously via authorized representatives. When an authorized representative of the state – a state official – borrows money, for instance, that is an ‘act of state’; so the debt is attributable to the state. Relations of authorization and representation determine whose actions are attributable to the state, to what extent the state persists over time, and how the costs and burdens of the state’s responsibilities ought to be divided up among its members.
So, to sum up the Hobbesian theory in a sentence: states are responsible for the actions of their authorized representatives.
How does your theory differ from the from other existing accounts of state responsibility (the agential and functional theory) that you also discuss in your book?
The agential theory and the functional theory are two different attempts to understand state responsibility by analogy with individual responsibility. The core idea of the agential theory is that states are ‘moral agents’ like human beings, with similar capacities for deliberation or intentional action. The model for state responsibility is a simple case of individual responsibility – like an individual in courtroom.
The functional theory is more complicated. The core idea is that the state is responsible for the actions of its officials, much as, in a principal-agent relationship, the principal is held responsible for the actions of the agent. Think of how employers are held liable for the actions of their employees. The model for state responsibility in international law is a case of vicarious liability.
My argument is that neither of these analogies really capture the logic of state responsibility. Both are helpful heuristics, but both can easily become misleading, because state responsibility is in some ways disanalogous to all forms of individual responsibility. It’s often misleading to think of sovereign debts as household debts, or to think of treaties as contracts, or to think of reparations as torts. What we need is a theory of responsibility that’s designed for the state. And that’s what my Hobbesian theory is.
Why do you think that the traditional interpretation of Hobbes’ theory of the state is underappreciated by modern day scholars?
It’s not so much that contemporary scholars of political theory and international relations don’t appreciate Hobbes’ theory of the state. They’re more than familiar with Hobbes’ theory of the state, but they're unable to see the novelty of it because they interpreted it via their own theories of the state. In other words, they’ve projected contemporary theories of the state back onto Hobbes.
As I argue in the book, they’ve misunderstood a central part of Hobbes’ theory of the state – the idea that the state is a kind of ‘person’. Most readers of Hobbes read ‘person’ as a synonym for ‘actor’ or ‘agent’. On this interpretation, when Hobbes says that the state is a person, what he means is that the state is an actor – like the anthropomorphic actors that populate international relations theory.
I argue that Hobbes’ state is not an actor; to use his theatrical metaphor, it’s a character rather than an actor. It’s a made-up person that’s brought to life by political representation. The real actor is the sovereign, and the state acts only via the sovereign. Hobbes’ state is like a fictional character. It can't speak or act on its own. It has no will. It doesn't do anything except through the actor who plays its role. So, just as a fictional character is brought to life by an actor on the stage or on the screen, the state is this ephemeral fiction that is brought to life only via the device of political representation. Just as representation in the theatre brings Hamlet to life on the stage, political representation - representation on the political stage - brings the state to life. This theatrical metaphor is crucial for understanding what Hobbes means by the state as a person and why this isn't just an earlier version of the idea of the state as an actor that we find in contemporary political theory and contemporary international relations.
But the idea of the state as a collective ‘actor’ or ‘agent’ is so prevalent and so deeply ingrained that political theorists and international relations scholars can’t seem to recognise an alternative theory of the state when they see one.
You explore this theatrical metaphor and the nature of the Hobbesian state in your recent article “The two faces of personhood: Hobbes, corporate agency and the personality of the state”. What are the benefits of understanding Hobbes’ state as a fictional character rather than an actor?
This question is hard to answer succinctly, so let me just describe one benefit of thinking of the state as a character rather than an actor. The idea of the state as an actor comes with all sorts of metaphysical baggage – actors have wills, beliefs, desires, intentions, etc. Do we really believe that the state has these things? And are we really comfortable with anthropomorphizing the state to this extent?
If we accept this conception of the state, we might have to accept that states have genuine demands for freedom, even against their own members. If it's a genuine moral agent - a Kantian end-in-itself – then maybe the state can demand respect or autonomy in the same way as an individual can. If we think of states as actors or agents, I think we're much more likely to reify them and to lose control of them.
Thinking of the state as a character – as a fictional entity that's brought to life only through the actions of real human beings - helps to keep the state in its place. So, this is an ethical claim as much as an ontological one. If we open up the possibility that the state is a person in the actor sense, then we might have to accept that states have demands for freedom or autonomy, like individuals do. But if the state is just a fictional character, then we can represent that character however we want. We get to decide what kind of character it is. It doesn’t get to act independently of us.
You argue that the agential theory and corporate agency which is the consensus of state responsibility in political theory and international relations is based on Pufendorf’s adaptation of Hobbes’ fictional person into a moral person rather than Hobbes’ actual work. If it is the case that there is a strong theoretical tradition based on these ideas (or those of the functional theory primarily within international law), will your theory be able to change the contemporary structural mechanisms of holding states responsible or is the conception of the state as an actor simply too strong?
I hope so, but that remains to be seen! International lawyers have so far been very receptive to the argument, so that bodes well. They've been a lot more willing than I expected to treat me as a friendly interlocutor rather than a trespasser on their turf. And they are formidable interlocutors. In general, I think international lawyers have a better understanding of collective responsibility than political theorists do – not just more practical, but more theoretically sophisticated, too.
Political theorists and international relations scholars are actually the tougher customers. They’re much more stubbornly attached to the idea that the state is an actor or agent – they’re heirs to Pufendorf, not to Hobbes, and it’s hard to get them to the other side. But, so far, the reception of the book has been overwhelmingly positive.
So, are you still considering the possibility of becoming a lawyer?
Maybe I've become a lawyer through the back door! Maybe I've come full circle. My concerns about responsibility certainly intersect with the concerns of lawyers.
The theory of state responsibility I develop is intended to be action-guiding, and in order to be action-guiding it has to tie into international law. It has to speak a language that lawyers can understand. The Hobbesian language of authorization and representation and personhood, which is the vocabulary I use to develop my Hobbesian theory of state responsibility, is a kind of bridge-language or pidgin language between law and political theory. One of the advantages of the Hobbesian theory is that it’s intelligible to political theorists, philosophers, and IR scholars on one side, but also lawyers on the other. That's what makes it unique.
The philosophical language of corporate agents, actors, and intentions is much harder for a lawyer to latch onto. Lawyers tend to see this as metaphysical baggage, while the language of authorization and representation is their ‘natural’ language.
One thing that Hobbes says in Chapter 16 of Leviathan, which is where I'm getting a lot of these ideas, is that the language of representation doesn't only apply on the stage. It's not only a ‘theatrical’ language in the narrow sense. It’s also the language of the law courts. He's thinking of the courtroom as much as the theatre. The courtroom is a kind of public stage, and so it's no coincidence that the Hobbesian language I'm speaking resonates with lawyers.
How does the idea of “authorization by fiction” effectively deal with the problem that many subjects who cannot plausibly, or even possibly, count as authors of the state’s responsibilities?
First let me set up the problem. Why should you [a Danish citizen] bear the costs of debts or treaty obligations or reparative obligations that Denmark incurred before you were born? You can’t really be an ‘author’ of these debts and obligations, because you couldn’t possibly have authorized the governments that incurred them. So why should you bear the costs? The question, in Hobbesian terms, is how can you be an author of an obligation that your state incurred before you were born. How can you authorize – or, for that matter, perform any action - before you exist?
“I argue is that Hobbes’ state is not an actor; to use his theatrical metaphor, it’s a character rather than an actor”
My answer, which comes with lots of qualifications, is that you’re an author of Denmark’s obligations ‘by fiction’. Just as parents can authorize legal representatives for their children in certain circumstances, before the children can authorize legal representatives for themselves, parents can authorize political representatives for their children, or even for future generations. Your interests have some ‘presence’ in the decisions of past governments even though you could not possibly have authorized those governments. So there is a presumption that you should bear the costs of obligations incurred by past governments.
But this presumption is not absolute or unassailable. There is always the possibly that the people of the next generation will shatter this fiction of authorization and reject the decisions that have been made on their behalf. The fiction can be broken if the people of the future object and say, ‘our interests were not sufficiently accounted for in the decisions that the past’. If you accept that ‘authorisation by fiction’ is not quite as good as real authorization, then you open up the possibility that obligations that persist beyond the length of a generation are provisional. There's always a possibility that the people of the future will overturn them. This is one of the more radical implications of my theory of state responsibility: a ‘perpetual’ treaty can only ever be provisional.
Does this mean that we are moving into some kind of post-modern paradigm of legal theory where obligations can be interpreted by every generations, and that obligations may have to be renegotiated constantly?
This idea that the obligations of the state should be time-limited goes back to Thomas Paine and Thomas Jefferson and John Stuart Mill. This is actually a throwback to the 18th and 19th centuries rather than something post-modern.
John Stuart Mill argued that we don't have the right to make perpetual agreements because we don't have unlimited foresight. Because our capacity to predict the future is limited, so is our right to make agreements about the future. As he says – and I’m paraphrasing slightly - nations can't bind themselves or others beyond the period to which human foresight can extend. Anyone who makes a perpetual treaty is, in Mill's view, guilty of an egregious form of hubris. We have no right to bind posterity forever-after because that would require omniscience – we’d have to be all-knowing in order to make a perpetual treaty.
And think about it another way: if the state makes an agreement today, in a few decades, most of the people who were alive when that agreement was made will be dead. Half of the ‘authors’ of the agreement – the people who authorized the government that made it - will be dead in 50 years or so. So, on Paine’s view, human mortality marks the limit of agreements and engagements of the state. The authority of an agreement can’t outlive its authors.
So, I'm resurrecting an older way of thinking about international obligations rather than developing a postmodern understanding of international obligations.
In the book, you note that “We should be surprised – and sceptical – whenever someone claims that a thinker from a radically different time provides a grand solution to a contemporary problem”. You also say that “returning to Hobbes for a theory of state responsibility may seem antiquarian or anachronistic”. How do you reconcile your theory which is highly based on Hobbes’ account of the state and personhood with this general scepticism? Is it not hypocritical, and are you giving Hobbes more credit than he deserves?
This is a great question. My claim is not that Hobbes has all of the answers, or even most of the answers, to contemporary problems of state responsibility. If Hobbes did have all of the answers, there’d be nothing for me to write a book about! It would be a one-liner: ‘see these chapters of Leviathan, this chapter of De Cive, and this chapter of De Homine’.
My claim is simply that Hobbes’ forgotten way of conceptualizing the state lays the groundwork for a theory of state responsibility – but only the groundwork. Hobbes’ theory of the state helps us to conceptualize sovereign debts and treaties and reparations and economic sanctions in the present. What I take from Hobbes is actually rather modest. It's the particular way that he understands political representation and the idea of the state as a person. The rest of the theory is my own series of adaptations of Hobbes – and many of these adaptations require major modifications.
So, of course we should be surprised and sceptical about the claim that Hobbes can help us understand contemporary problems of state responsibility – and the purpose of the book is to overcome this scepticism, and to show that Hobbes really does have something important to tell us about contemporary politics.
You argue that a Hobbesian theory of state responsibility is possible by retaining the structure of Hobbes’ theory of representation while simultaneously rejecting his idea that states are “subject to none but their own Representative” (L XXII. 348). How do you justify what critics could argue to be cherry-picking of Hobbes’ ideas?
I am guilty as charged! I’m absolutely cherry-picking the ideas from Hobbes that I think are still useful for making sense of contemporary politics. Hobbes’ absolutist theory of sovereignty has little relevance in our world. We have more than enough experience with federalism and the separation of powers to know that divided commonwealths are a lot more stable than Hobbes thought. But the bare structure of his theory of representation is as relevant as ever.
The history of political thought is the history of cherry-picking ideas from past thinkers. Hobbes himself cherry-picked the ideas of authorization and representation from his adversaries, the parliamentarians! The borrowing is always selective, and this is precisely how political thought develops.
When discussing the distribution of liability, you argue that the legitimacy of distribution depends on whether it is diffuse or burdensome, and whether it is intragenerational or intergenerational. Does this mean there are no hard and fast rules for the legitimate distribution of liability to subjects and that each case needs to be evaluated according to its specific context?
First of all, let me explain the distinction I draw between diffuse and burdensome liability. Think of a million-dollar debt of the state – it’s so small relative to the size of the state’s budget that it doesn’t impose noticeable costs on the members of the state. So the members of the state don’t have a compelling objection to paying the debt. The costs are so diffuse that they can be disregarded. Objections to repaying a debt become more significant when the debt is burdensome – when it imposes significant costs on the members of the state. Think of Greece’s debts around the time of the financial crisis. Here there’s a real question about why Greeks should suffer serious disadvantage simply because their leaders were irresponsible.
Now, it might be argued that Greeks should bear the burdens of the debt because they elected, and hence authorized, the governments that borrowed the money. But this argument only works for some Greeks, to the extent that the debt is intragenerational – within a single generation. What about young Greeks, who were not alive when most of the money was borrowed? Why should they be seriously disadvantaged because their parents elected irresponsible leaders? The more intergenerational the repayment costs are, the more difficult they are to justify.
The short answer is, as you suggest, that there are no hard and fast rules for determining when the members of the state should bear the burdens of its responsibilities. What I provide are some helpful distinctions and guidelines. That’s the best political theory can ever do, I think. There’s always a role for judgment. It’s not possible to make ethical judgments perfectly deductive and mechanical.
Can you elaborate on the claim that it would be more helpful to ‘statomorphise’ individuals rather than anthropomorphising states?
We tend to think of states as ‘big people’. We say that Russia is plotting against the West, that the US is worried about the rise of China, etc. As my colleague Harry Gould puts it, this is a trope we forgot was a trope. And because we forgot that it’s a trope, or a metaphor, we’re often misled by it.
My suggestion is to turn the analogy on its head. Instead of thinking of states as big people, why not think of people as little states? This idea comes from Patrick Jackson – instead of ‘states are people too’, he says ‘people are states too’. But the term ‘statomorphism’ is mine.
Thinking of people as states seems strange and counter-intuitive. But that’s exactly what gives it theoretical power. We’ve milked the analogy for all it’s worth in one direction, so why not turn it on its head? The assumption is always that we can learn something about collective responsibility by drawing analogies with individual responsibility. My suggestion is that we might learn something about individual responsibility by drawing the analogy the other way.
Above all, ‘statomorphism’ is a useful way to break the mental habit of anthropomorphizing the state. Anthropomorphism is misleading because it seems ‘natural’. But ‘statomorphism’ is less likely to mislead because it’s so counter-intuitive, because it’s so obviously metaphorical. The most dangerous metaphors are the ones we no longer recognize as metaphors.
The book and your recent article “Leviathan on trial: should states be held criminally responsible?” both argue that it is unnecessary to hold states criminally responsible, and that state responsibility ought to be understood as “reparative rather than punitive”. Why is this and what is the reason that the idea of corporate crime cannot be mapped out onto the state?
It’s unnecessary to hold states criminally responsible because individual criminal responsibility (in domestic and international courts) already provides an outlet for punishment in the international realm. It is not necessary to hold bothstates and individuals criminally responsible. Instead, I suggest, there is a ‘division of labour’ between state responsibility (which is reparative) and individual responsibility (which is punitive).
There are also good reasons not to hold states criminally responsibility – at least, not yet. Here’s just one of several reasons. As it stands, there’s no international court with criminal jurisdiction over states. The International Criminal Court has jurisdiction only over individuals, and the International Court of Justice does not have criminal jurisdiction. There’s no central authority that can determine when a state has committed a crime and, if so, what the punishment should be.
So punishment is an all-too-easy pretext for vengeance. Imagine a system in which heavily armed corporations label each other criminals and punish each other as they see fit. That’s essentially the danger of introducing the concept of state crime into the current system of state responsibility.
“Thinking of the state as a character – as a fictional entity that’s brought to life only through the actions of real human beings - helps to keep the state in its place. So, this is an ethical claim as much as an ontological one”
Of course, even reparative responsibility can go way too far – just look at the crushing reparations levied against Iraq in the aftermath of its invasion of Kuwait. If this could be justified in reparative terms, then I can only imagine the kind of cruelty that could be justified by the idea of punitive damages against states.
You note that a ‘sovereigntist backlash’ has already begun, especially among developing states. What do you mean with this, and what are the implications for the relevance of your theory?
In that passage of the book, I was referring to the fact that, over the past few years, many developing states have repudiated or withdrawn from bilateral investment treaties with Western states. They’ve attempted to assert sovereign control over their economies and break long-standing asymmetrical economic relationships with the West. But there has also been a more worrying sovereigntist backlash against international institutions in the West itself: think of Trump, Orban, Brexit, etc.
One of my more controversial arguments, in the book and elsewhere, is that it’s sometimes legitimate for states to repudiate legally binding treaties – to refuse to uphold them, or to openly violate them. My theory tries to draw a line between self-interested treaty-breaking and ‘international civil disobedience’.
In the last section of your book, you discuss International Criminal Law, the proliferation of treaties and the development of new autonomous technology. Is political theory up to the task of making sense of these contemporary issues?
I certainly hope so, because these are some of the issues I’ll be working on for the next few years. I plan to publish two more articles on treaties over the next year, and the problems of responsibility posed by new technologies will be my focus over the next five years.
What do you think is the most interesting development in your field right now?
The turn to technology in both political theory and international relations is the most interesting development to me. There’s lots of great work now about mapping systems, the role of digital technology in diplomacy, autonomous weapons, and so on. To a large extent, the turn to technology follows a trend in the broader culture – we’ll all fixated on technology, and our lives are now almost entirely mediated by it. Our environment is now almost entirely technological instead of natural. It’s quite remarkable that we’re doing this interview in person, actually.
What would you say to young activists trying to get governments to agree to more climate change litigation which binds their state to certain goals?
Focus on forging an agreement between the top five or six carbon-emitting states. The fewer players there are, the easier it is to get them to commit to something substantial. Having an agreement that includes 200-plus states sounds better, but broad agreements tend toward the lowest common denominator. Many others have said this before.
I wish I were more optimistic that litigation and international agreements could solve the climate problem. They’ll make some difference, of course. But I think the economic and technological imperatives behind fossil fuels are far more powerful than governments. Political and legal systems are under the thumb of the technological system. So, law is only one front in the battle.
Finally, do you have any advice to young scholars considering a career in academia?
Start writing articles early, and send them to journals. It’s tempting to keep tweaking an article until you think it’s perfect, or until you’ve read some more. But resist that temptation. When you’re satisfied that it’s a solid and rigorous and well-written piece of work, send it out into the world.
Chances are good that your article will get rejected – that’s normal! You need a thick skin to survive in this crazy game. So far, I’ve had 21 rejections from journals, 26 unsuccessful job applications – six rejections after the interview – and plenty of other rejections from all sorts of things. I’m waiting for a few more rejections to roll in any day now.
If you’re ever down on your academic luck, email me and I’ll send you a copy of my ‘alternative CV’ that lists all of my rejections and failures – that’s an open offer to anyone reading this.
It’s been great to talk to you, Christian. I’ve really enjoyed this. Thank you for your thoughtful questions and for reading my book with such care and attention.