The Silence of the Law


In his book Leviathan, Thomas Hobbes has a chapter on liberty in which he notes that the greatest liberty of subjects exists there where the law is silent. One can read this as Hobbes’ honest confession that the law ultimately cannot cover every aspect of life: the sovereign is all-powerful, but “in cases where the sovereign has prescribed no rule, there the subject has the liberty to do, or forbear, according to his own discretion”. Although Hobbes in Leviathan presents a theory of absolute, indivisible sovereignty, he nevertheless also acknowledges a strange kind of limit to that power—areas of life for which this power might not have written a rule, in which this power does not speak, and the subject is therefore at liberty to determine her or his own actions.

Traditionally, John Locke is presented as the political theorist who saved humanity from the pitfalls of Hobbesian sovereign power. In response to the power that Hobbes theorized, Locke called for a separation of powers into legislative, executive, and federative power. As long as there is no common power to which the people can turn in the case of a conflict between the people and the prince, humanity is still living in the state of war that Hobbes so powerfully evoked in his Leviathan. Hobbes’ theory of sovereignty does not live up to its promise: rather than liberating humanity from that state, it merely perpetuates it under the conditions of absolute sovereignty.

What risks to be forgotten, however, is that Locke does not leave Hobbesian sovereignty behind. Recognizing, as Hobbes does, that the law might not foresee everything that might conceivable happen in life, Locke reserves for the executive power the privilege of what he calls the “prerogative”, namely “the power to act to discretion, for the public good, without the prescription of the law, and sometimes even against it”. Silently quoting Hobbes, Locke writes that the executive would thus act in those realms “where the law was silent”, thus saturating the very place where according to Hobbes the greatest freedom of the subject exists with power. Whereas Hobbes still leaves a possibility of liberty next to the absolute power of the sovereign, here that possibility is done away with, and power comes to speak even where the law is silent.

It is no wonder then that Michel Foucault in his lectures on biopolitics can refer to Locke as a figure of governmentality’s saturation of life with power. “Locke does not produce a theory of the state”, he writes; “he produces a theory of government”. As Foucault explains in the same book, this is the moment when “economy”—under the name of “property”, in Locke—becomes the truth of politics. From this perspective, Locke did not save us from Hobbes, but was merely a step in the progressive intensification of power.

References: Hobbes, Thomas. Leviathan. Oxford: Oxford UP, 1998; Locke, John. Second Treatise of Government. Newton Abbot: Dover, 2002; Foucault, Michel. The Birth of Biopolitics: Lectures at the Collège de France 1978-1979. Ed. Arnold I. Davidson. Trans. Graham Burchell. New York: Picador, 2008. Image: Martijn Hendriks, Untitled (The Birds Without the Birds), 2007-ongoing.


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