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Fictional Utopias, Dystopias, and the Problem of Evil

Fictional utopias of the early modern time, as an alternative and an opposite to classical social contract theories, and fictional dystopias of the 20th century, as the opposite of the democratic and liberal rule of law, remain a major reference or for our contemporary political debates when it comes to characterize warn against considerable dangers entailed in political options, regimes, opinions etc. Today, classical utopias are mostly overwhelmingly considered in a negative way, although there were initially designed to be a more comprehensive solution for the problem of political evil than the social contract theories. From the beginning, dystopias were designed as the greatest political evil ever. Yet, both are not only fictional, but also radically impossible to ever b realized, for reasons that have not been really analyzed yet. In the following, I enquire into these reasons.


Part 1: What do classical utopias lack in order to offer a feasible solution to the problem of evil?

Utopias offer a full-fledged, maximalist solution to the problem of evil: Unlike political contractualism, the other major modern political tradition that deals with the problem of evil, utopias offer not only a minimalist remedy for the worst evil, which is considered by contractualist theories to be Hobbes’ state of nature with a war of all against all. They also offer a model of a perpetually stable community in which all members enjoy the highest possible happiness. Unfortunately, these are either fictions or projects that have never been fully realized. It is important to note that not all utopias are fictions, some are projects. This is the case in Charles Fourier’s New Amorous World, John Rawls’ “realist utopia” (Rawls 1999, 13) and Robert Nozick’s “framework of utopia” (Nozick 1974, chapter 10) as well as of the numerous real, although short-living utopian communities that have existed since the 19th century (cf. Meißner, Meyer-Kahrweg et Sarkowicz 2001). But classical utopias, mainly from the early modern period, are fictions, and I will discuss them in what follows. According to fictionalist theories, some fictitious constructions may still have a practical value, because they present the conditions of the possibility of experience, and, more precisely, of both real and possible experience, and of both desirable and non-desirable experience. In the case of classical utopias, the practical value would be obvious: They might help with achieving the greatest happiness as the most radical remedy for the problem of evil. However, classical utopias constitute a certain kind of fictionalism, i.e., the kind of fictionalism in which fiction not only refers to nothing in the real world, but also cannot refer to anything in the real world.

In the following, I understand fiction as what is described by the authors of these fictitious utopias. By fiction, I do not mean the presuppositions or theses of utopian authors that we may consider as improbable or even as false. Fictions contained in classical utopias are really useful for the constitution of real experience. In fact, contrary to some interpretations of classical utopias (see for instance, Forst 2006), there has never been any utopian writing that intended to be either a mere satire of the utopian fictitious community that it describes or a mere critique of the real society by means of a comparison with a utopian one.

Who does use fictionalism in classical utopias? No member of the utopian community does this, because none of them consider their utopia as a fictitious world that they must pretend really exists. For each member of a utopia, the utopia does exist. The founding fathers of these utopias formulate utopia as a project, i.e., as a normative model that they implement, and not as an actual reality.  Only the authors of classical utopias present their utopia in a fictionalist way of the kind mentioned above, i.e., as something that not only does not exist, but also could not exist.[1] In the following, I will explain why it seems to me that these authors use utopias in the aforementioned fictionalist way. For the sake of convenience, I will refer only to three major classical utopias: Thomas More’s Utopia (1516), Tommaso Campanella’s Città del Sole (1602), and Francis Bacon’s New Atlantis (1624).

Classical utopias teach us (1) what the greatest good in a human community consists of, and (2) that it is impossible for human beings to achieve the greatest good, at least during their life on earth.[2] These two theses are not trivial. In fact, a typical contemporary interpretation asserts that the authors of dystopias (for instance, George Orwell and Aldous Huxley, the most well-known writers from this genre that was born in the early 20th century) teach us that the greatest happiness, as it is shown by classical utopias – which these authors of dystopias supposedly referred to in their writings – is not the greatest happiness, but instead either the greatest infelicity or the worst evil. This widespread opinion is false, because – for several reasons that I will not address here – dystopias follow a radically different intention and model than utopias. Thus, dystopias are not appropriate for either demonstrating or refuting the aforementioned thesis (2). Besides this, thesis (2) does not imply that the attempt to realize utopias leads to the establishment of a dystopia or to the greatest happiness or to the worst evil. For explaining why exactly, from the point of view of the authors of utopias themselves, it is impossible to realize utopias, i.e., the greatest good in a human community, I will inquire into the way in which these authors use fiction in their utopian works.

At first sight, the fiction that stands at the core of utopia is not related to its functioning, but also to its perfect perenniality. Yet, this fiction has a lesser fictionalist significance than one may believe at first sight, as I will explain in the following. I will then address a second fiction that, although at first sight it stands in the background, has more important consequences than the first one with respect to fictionalism: the fiction related to the institution of utopia as opposed to its functioning once it is already established. Finally, I will criticize Robert Nozick’s attempt to exclude this fiction from the utopian model in order to make it easier to realize utopia.

The perfectly perennial utopian community connects the greatest happiness with virtue under a premise of equality among all of its members. The relevant virtue consists in the opposite of what justifies leaving the initial common lordship over the land, i.e., the dominium terrae, and establishing the institution of private ownership in accordance with medieval and early modern natural law theories. The justification for instituting private ownership was (1) the vice constituted by the discord among human beings, which in turn results from other vices, namely (2) the desire of each human being to benefit from the fruits of the earth to an unlimited extent, (3) regardless of others and (4) without contributing to the production of such fruits. In medieval and early modern natural law, private ownership is justified because it makes it possible for each human being to enjoy admittedly less than in the initial community of possession, yet at least more than in the Hobbesian state of discord characterized as a state of nature of all against all. In contrast, utopias institute very detailed rules for living together, and these rules are extensively obeyed.

These rules pertain to (1) the enjoyment of the fruits in common, (2) the division of labor and the exercise of labor in order to attain common enjoyment of the fruits, which is (3) supposed to suppress the causes of discord, i.e., rivalry, desire to possess, desire of domination, and desire of glory, in order to guarantee each member the greatest possible happiness. Indeed, utopias are neither the land of milk and honey, nor original paradise, and labor and the constraints of nature exist in utopias too. Furthermore, in utopias, enjoyment is never individual, but instead always an enjoyment in common, which implies that this enjoyment always happens under the scrutiny of others in a situation of transparency.

Yet, how can one set very detailed rules for living together that are extensively obeyed while there exists the aforementioned vices (2) to (4) that precisely oppose such rules, so that in natural law theories, as well as in social contract theories (including Rousseau’s social contract), the second-best solutions of introducing private ownership must be adopted? Natural law theorists mention only one exception to the development of vices, which is the case of small communities striving for the best—or even for perfection—and the example that is always given are convents, which are supposed to exercise virtue in their communal living.

Does utopia consist in the fiction of the disappearance of all of the vices of the entire human species? Utopias’ fiction does not consist in the absence of the inclination to such vices, but in the fictitious situation that hinders this inclination to face temptation. (Kant’s realm of ends works in a similar way.). If so, then utopias fiction would consist in a situation in which: (1) each member not only believes that utopia will ensure her an enjoyment of the same share of the fruits as others, and that utopia will provide her with an extensive as possible share of the fruit, but also that exercising the aforementioned vices would be obviously disadvantageous to her, and (2) no other motivation would surpass her desire to advantageously enjoy these fruits in this way.

Yet, this conviction cannot originate in the mere comparison with the evils of the existing society, although the authors of utopias extensively describe the evils of the existing society of their time, which they consider as an instantiation of the aforementioned state of vice in which no social norm is really respected, but instead in which all social norms are violated by each individual, including the norms that should rule property rights, i.e., the right of necessity (ius necessitatis) and the right of harmless use of others’ property (ius innoxia), resulting in various evils. Concerning punitive torture, More writes in Utopia:

Therefore in this point not only you, but also the most part of the world, be like evil schoolmasters, which be readier to beat than to teach their scholars. For great and horrible punishments be appointed for thieves. Whereas much rather provision should have been made, that there were some means, whereby they might get their living, so that no man should be driven to this extreme necessity, first to steal, and then to die.

However, the motivation for setting very detailed rules for living together that are extensively obeyed does not originate in the comparison between utopia and the existing society. This point is demonstrated by the two following facts. First, the fictional narrative of utopias does not pursue — directly nor indirectly — the intention of incentivizing the members of the existing society to migrate to the utopian island. Only involuntary shipwreck victims sometimes decide to remain on this island. Second, neither the founders’ generation nor the following generations ever chose the utopian institutions instead of adopting the same rules as in the existing societies. Admittedly, one does not hide from the members of the utopia the existence of other societies. Utopia prohibits its inhabitants to travel and to get in touch with other societies, but they remain free to definitively emigrate from their island. Now, none of them decides to definitively leave it, because to all of them, utopia seems to be more advantageous than any other society. Yet, it was not for the members of utopias to decide to adopt these utopian institutions, and neither did the founders make such a decision.

In the following, I will first have a look at the way in which the utopian community is established in utopian fictionalism, in order to then answer the question: What makes possible the creation of very detailed rules for living together that are exceedingly obeyed?

The utopian order is established by a founding father, e.g., Utopus in More’s Utopia, a member of the “House of Solomon” in Bacon’s New Atlantis, etc., with each founding father receiving divine revelation. As for the political and social organization of the community, this divine revelation does not have the same content as religions. The political and social organization part of utopian divine revelation (1) constitutes the main part and the core of the utopian revelation, or even the entire utopian revelation (eschatology is widely missing, as well is pure contemplation, and the purity of the earth etc.), and (2) this social and political content is very detailed (unlike e.g., the Ten Commandments), since it contains all the utopian social norms, so that the institutional powers of utopia has to make decisions only on either technical problems or on disagreements between individuals, which, unlike in existing societies, are extremely seldom. Instituting rules out of divine revelation is radically different from social contract theories. Now, utopia and contractualism both have their starting point in two fictions. Utopia and contractualism share the first fiction, but are in opposition as to the second fiction. The first fiction is the state of nature as a state of war of all against all. For contractualists, it is the initial state of humankind without social contract; for utopias it is the existing society. (In the case of Rousseau’s Discourse on the Origin and Basis of Inequality Among Men.)

The second fiction concerns the institution of the community or of the society.  Contractualist theories explain why and how all individuals adopt a social contract and establish the sovereign. In utopias, the fully detailed divine revelation happened in the past and was experienced by the founding father(s). From this second fiction there result several consequences that are indispensable for utopias.

First, in contractualism, the submission of all to the law and to the sovereign is explained by them matching the interest of each contractor. Each contractor has a fundamental and immediate interest in her survival and for the pursuit of her happiness, i.e., to the enjoyment of a sphere of individual freedom. Now, the only way to reach this situation is the submission to the law, and the only way to protect oneself against the violation of the law by other individuals is the submission to the sovereign. In Hobbes, human beings do not have any further fundamental interests. Thus, the other interests are not guaranteed by the conclusion of the social contract, and there cannot be any unanimous agreement on them. Contractualism – whether Hobbesian or Rousseauist – consists in avoiding summon malum, because in the view of contractualism, human beings cannot reach any agreement on a more ambitious goal.

On the contrary, utopia aims at the summum bonum, on which the members do not need to find any agreement, because there is no need to determine the summum bonum. In fact, the summu bonum is already fully defined by the divine revelation. Furthermore, unlike contractualist legal provisions, the rules of the utopian community are immutable.

Second, the object of the second contractualist fiction is the process of establishing civil society, whereas the object of the second utopian fiction is the community at a much later stage than its establishment. The typically contractualist problem is the fear that others will benefit from the advantages of the social contract without contributing to or obeying it. (For the problem of the free rider, prisoner dilemma, see Gauthier 1969 ; Kavka 1986). This problem does not exist in utopias, because in the utopian community it has already been established, social norms are already much more obeyed by all than in the contractualist society. The famous argument of the “fool” is indispensable to Hobbesian contractualism. It shows that the one who decides to violate the law of the Leviathan, to which she declared full submission, is in a situation that is much worse than the state of nature as a state of war of all against all. Indeed, this violator faces the risk that the others obey the Leviathan and that she be destroyed by the Leviathan and by all united citizens of the Leviathan, which is an extremely unequal situation, unlike the initial state of war of each individual against each individual, without a unanimous and stable coalition of other individuals. Thus, the equality of vulnerability, which characterizes Hobbes’ state of nature, no longer exists for this violator.

Such a violation is foolish. In a utopia, an argument such as Hobbes’ argument of the fool is unnecessary because each individual who might submit to the temptation of free riding does not face the risk of facing a united society, but will certainly face an existing community that is even more united than a society that is governed by much more extensive rules guaranteed by full transparency. Indeed, almost all activities (labor, exchange of goods, meals, hobbies) take place either in common or according to common rules (see conjugal life in More and reproduction in Campanella). Thus, the one who violates the utopian norms must be a true fool, that is, not merely a reasonable person tempted by a behavior the foolishness of which she ignores. In other words, only the utopian fool, not Hobbes’ fool is a true fool. Although, like the contractualist society, the utopian community punishes the fool, the utopian punishment is slavery, not the death penalty or torture. Now, according to Aristotle, slavery is the status appropriate for those who are unable to lead their own life.

At first sight, there is less to learn from the second utopian fiction than from the second contractualist fiction. Indeed, it avoids two problems: (1) the problem of a disagreement on the determination and the interpretation of the institutions and rules, thanks to a divine and fully detailed revelation, and (2) the problem of the free rider, thanks to the presumed existence of a rather wide majority of the utopian community obeying the utopian order. On the contrary, the second contractualist fiction explains how political institutions can exist in spite of two real problems, and it explains it by referring to a situation in which those problems are raised in the most extreme way, i.e., the thought experiment of the state of nature. Utopia presupposes that the two problems mentioned above are already solved. A reason why utopia and contractualism are so different consists in them not dealing with the same issue, as we have already seen.

Now, whereas human beings can avoid the summum malum thanks to the social contract, of which they are the authors, they cannot reach on their own the summum bonum, since they are not the authors of divine revelation. Now, none of the authors of the classical utopias claim to report on a true revelation. The revelation reported on is explicitly a fiction. But from this, we can learn that it is impossible for human beings to reach sovereign happiness, at least in our life on earth. Unlike dystopias, classical utopias do not suggest that this implies that the pursuit of the greatest good on earth is either not desirable or even damaging. Because of the mere negative conclusion that can be drawn from them, classical utopias have never been conceived of or considered as a competitor of either political contractualism or religious conceptions of the highest good.

The intention of Robert Nozick’s “framework of utopia” formulated in his Anarchy, State and Utopia (1974) is to (1) realize utopia through suppressing the second fiction mentioned above through (2) taking into account all consequences of the renunciation of the second fiction, while (3) not renouncing of some aspects of the utopian project, but instead while (4) realizing it more perfectly than the second fiction.

Robert Nozick (Nozick 1974) provides the following reason for rejecting the second fiction of classical utopias. Desires, ends, talents, relations and emotions among individuals etc. are inherent to human nature and are so complex that it is extremely unlikely that one is able to determine the highest happiness and the virtue that is necessary to reach it. Even if a genius — like the founding father(s) of classical utopias — were able to do it, it is very unlikely that all individuals trust in the infallibility of this ability. By the way, Nozick observes that among all utopias that have been presented until now, there is not a single pair of utopias that would be compatible with one another. Therefore, Nozick replaces the second fiction of classical utopias by a double disposition.

First, the problem of the too high complexity of the utopian task is resolved by including in Nozick’s model the possibility to modify or to replace any utopian order, in order to experimentally find out what is the best utopian project. Second, the problem of the lack of trust is solved by the principle of the consent to utopia. Each individual is free to choose either one utopian community of her choice or not to choose any, each community is free to either accept or reject any participant as a member, and any member is free to leave her utopian community whenever she would like. This double disposition fulfills the two tasks of the second fiction of utopia. The first task was to avoid through revealed rules having members determine and interpret in a consensual way the rules of the utopian community, which they are unable to do. The second task consisted in avoiding the problem of the free rider through the already established existence of the utopian community.

At first sight, Nozick’s utopia of utopias seems to better realize the core intention of utopia than any other utopia. In fact, on the one hand, it guarantees that no individual will be coerced to enter a utopia she does not want to. Nozick assumes that the person who can best make a judgment on the individual’s happiness is the individual herself. Thus, if a utopia does not make its members happy, they will leave it, and it will disappear. This, in turn, motivates the members of any utopia to contribute to the happiness of each member, i.e., to be virtuous. Indeed, if some members did not contribute to the happiness of others, the other members would refuse to remain living in the same utopian community. Of course, some members might be tempted to leave the community only in order to take the benefits to which she did not contribute. In order to fix this problem, Nozick sketches a system of compensation. Thus, the Nozickean utopia, based on mutual consent instead of the obedience towards the institutions and their founding father(s), seems to ensure, on the one hand, happiness, virtue and the equal freedom of all members, and, on the other hand, the possibility for each individual to freely adhere to a very hierarchical and restricting utopian order, if she would like.

Last but not least, Nozick’s framework of utopias authorizes all utopias that have been formulated until now, with the exception of “imperialist utopias” that requires all individuals to become its members and to obey its rules. Since classical utopias do not intend to exercise domination over the whole humankind, the exclusion of imperialist utopias does not seem to modify the concept of utopia. Since Nozick’s model of utopia provides each individual with the framework that allows her to find out what she considers to be the true utopia, i.e., the utopia that will give them the highest happiness, Nozick’s model claims to be both a framework of utopias and a utopia in its own right for each member of a utopia, while allowing those people who do not wish to live in a utopia to remain in the sole contractualist framework.

In fact, for Nozick, the contractualist framework and the framework of utopias are the same. To this extent, Nozick’s work can be understood as an attempt to demonstrate that contractualism is the theory that is best able to make utopia possible without coercing anyone to enter in any utopia. In other words, utopia is made possible by the fiction of social contract. This raises the following question: Does the condition of possibility of any true utopia consist in abandoning the utopian fictionalism and adopting the contractualist fictionalism? One remark made by Nozick casts doubt on such an idea: The framework of utopia “is compatible with the realization of almost all particular utopian visions, though it does not guarantee the realization or universal triumph of any particular utopian vision.” (Nozick 1974, 319)  Indeed, it remains possible that there is no solution to the problem of determining the greatest possible happiness for all and the virtue leading to this happiness. Let us assume that it is impossible to demonstrate that there is no solution to the problem of determining the greatest possible happiness for all and the virtue leading to this happiness.

Still, it remains true that, until now, all attempts — whether actualized or merely projected — to provide a solution obviously failed, with the exception of what one never tried to realize, i.e., classical utopias that are the fictions of the realization of utopias. Utopian projects have always had few followers, and all real attempts to realize utopian communities have been short-lived and on a small-scale. All of them failed to consensually determine the greatest happiness for all and the correlative virtue, as well as—first of all—to solve the problem of the easy-rider. Now, consensus and perenniality are core elements of the concept of utopia, so that only fictitious utopias are really realized, although only within fiction. In other words, Nozick’s framework for utopias allows it to try to realize utopias, but it does not make it possible to realize utopias in any way. Asserting that it does would be a non sequitur similar to the following implication: Since the rule of law does not prohibit us to live in Socrates’ century, it makes it possible for us to live in Socrates’ century, which a time machine could make possible. The most likely outcome is that the permission given by Nozick’s framework of utopia would be used successfully first of all by communities that are neither contractualist nor utopian, that is, for example, by religious communities. In fact, religious communities can and do exist in a contractualist framework.

It belongs to the core concept of utopia in its fully developed form that utopia is a fully determined and immutable order so that it is already realized. Thus, such a utopian order is possible only in the realm of fiction. Therefore, theories that value emancipation against fixed orders — for example Nozick as well as Ernst Bloch who theorized the “spirit of utopia” — cannot account for any fully developed kind of utopia. Nozick accounts only for the permission to try to realize utopias. In the three volumes of his classical work, Bloch does not inquire into classical utopias, but into fragmentary dreams and strives that he considers as being utopian. The failure of all utopias that have been attempted has confirmed what we can learn from the fictionalism of classical utopias, i.e., the thesis according to which it is impossible for human beings to reach the greatest happiness, at least in our life on earth. The fiction represented by classical utopias shows what would be required in order to enjoy the greatest happiness, but it does not show how to reach it, which suggest that although human nature could live without evil, human beings cannot find the way to such a life without evil.


Do dystopias, which systematically destroy memory, really succeed in trying to make any resistance impossible?

The intellectual and emotional bugbear of the early modern time certainly was the experience of civil war as theorized by Hobbes’ state of nature as a war of all against all. The most formative intellectual and emotional experience of the 20th century certainly was the possibility of nuclear annihilation of the earth – in the 21st century gradually superseded by global warming – and, first and foremost, totalitarianism. And it still is. Almost all of the academic or political theorizations and instrumentalizations of these 20th century and early 21st century experience refer at some point to a fictional corpus that is still exerting a stronger impression than did fictional utopias in the early modern time: dystopias. Yet, between dystopias and totalitarianism, there is a decision difference, which I try to explain in the following.

Dystopias are conceived as the opposite of classical utopias, since they do not depict a community experiencing the greatest happiness, but, instead, a state of the world in which prevails the greatest unhappiness for human beings (or for animals meant to symbolize human beings). In fact, dystopian regimes are even unhappier than Hobbes’ famous state of nature that is a state of war of all against all. Social contract theories draw their legitimacy primarily from being the remedy against this Hobbesian state of nature that they conceive as the summum malum, the greatest evil. Now, the evil entailed in dystopias is even bigger than what social contract theories consider as the summum malum. This fact results from at least the three following reasons. All three of these reasons seem to imply the impossibility of any resistance to dystopia, despite each human being having numerous major reasons to resist them, whereas, in classical utopias, nobody has any reason to resist the utopian regime.

(1) The first reason for the impossibility of any resistance against dystopias: Hobbes’ state of nature is a thought experiment intended to demonstrate the legitimacy of the Leviathan, i.e., the legitimacy of the power of the sovereign state and its laws. This legitimacy results from the contrast with the evils that are unavoidable in the state of nature, which only the Leviathan can remedy. However, the infallible means for implementing this remedy already lie entirely in the state of nature, as an analysis of the state of nature reveals. This analysis of the state of nature, which I will contrast with the second and third reasons for the impossibility to resist dystopia, provides hope to anybody who complains about the evils of the state of nature (or of civil war) and who strives for escaping it.

On the contrary, a core and constitutive feature of dystopias is that it is allegedly impossible to leave them. This explains why in dystopias the resistance is limited to a single individual, and why there is no real organized resistance against dystopias. On the one hand, all dystopian novels detail the measures taken in order to hinder anybody to leave them, while, on the other hand, all dystopian novels tell the story of the failed attempt of a single dissenter or of a small group of dissenters not to destroy or remove the dystopian order, but merely to escape it for herself, at least in some sphere of her life. Like the gate to hell in Dante’s Divine Comedy, the title page of every dystopian novel could bear the inscription “Abandon all hope ye who enter here”. The impossibility of escaping from a dystopian regime, even individually or even only in some sphere of one’s life, results from the negation of the two following elements constitutive of the Hobbesian state of nature.

(2) The second reason for the impossibility of any resistance against dystopias: In Hobbes’ state of nature all individuals are equal with regard to their permanent, entire and mutual vulnerability, that is, with regard to their very self-conservation and to all of their belongings, at least while they are either sleeping or when they momentarily find themselves facing a coalition of other individuals. Only the Leviathan is able to guarantee the life and belongings of each individual. As soon as the Leviathan no longer guarantees them, the Leviathan would not only become illegitimate, but it would also no longer exist.

In dystopias, one person or more, and, first and foremost the dystopian order itself, are not vulnerable towards anybody whereas each individual is permanently and entirely vulnerable towards those few persons and the dystopian order itself. This is obvious in the case of the animals in George Orwell’s Animal Farm, all of whom are vulnerable against the pigs and dogs. It is also obvious in the case of the hybrid monsters in Herbert George Wells’ The Island of Doctor Moreau, as well as in the case of the humanoids devoid of many human capabilities, that is, the epsilons, in Aldous Huxley’s Brave New World. It is less obvious, but still a matter of fact, in George Orwell’s 1984, in which Winston Smith’s failed attempt to write a diary provides the evidence that he is unfortunately not capable to have more structured thoughts than those of a toddler. On the contrary, utopias either care about equally developing the capabilities of all of their members, as is the case in Thomas More’s Utopia, or establishing institutions that ensure that everyone has access to knowledge, as it is the case of the House of Solomon in Francis Bacon’s New Atlantis.

(3) The third reason for the impossibility of any resistance against dystopias: In Hobbes’ state of nature, individuals are able to behave in a fully rational way, and they exert this ability: They rationally pursue their fundamental interest, that is, the guarantee of their self-conservation and of the possibility to pursue happiness. Utopia’s members know that there exist other models of social organization and they know of which evils our societies are suffering. They understand of which advantages each member of utopia is benefiting from. The distributive advantage provided by a utopia is the greatest happiness for all. They also understand that the condition for enjoying such an advantage is that everyone be virtuous and obey the strict utopian norms.

The inhabitants of dystopias are not only unable to think and act rationally, but they are even, in the first place, incapable of developing this ability. Here I distinguish the ability from the capacity. For instance, I am unable to understand Chinese, but, because I have no pathology affecting my organs of language, I am capable of learning it if circumstances and my will are favorable. Contrary to this, the embryos and toddlers of Brave New World, who are not alphas, are submitted to a chemical and physical treatment as well as to psychological conditioning that destroys their capacity to develop any rational judgment. Among the alphas (and even the alphas plus), only the capacity of judgment related to the rationality of the ends is destroyed. Before Big Brother’s dystopia had been established, Winston Smith benefited from only the emotional education of the first stage of childhood, not the ability to rationalize or make critical judgments, which belongs to a later stage in the growth of the child in non-dystopian societies. Therefore, Winston Smith can experience the nostalgia of the society before Big Brother, but his attempt to write a diary that fails right from the beginning shows that he is not capable of thinking. The “two minutes of hate” and the fake news produced by the “ministry of truth” provokes in him, unlike in the other members of Big Brother’s dystopia, a feeling of strangeness. Yet, he is not capable of conceptualizing this feeling of strangeness into a rational judgment, and even less to transform it into a rational motivation to act for the removal of Big Brother’s regime. The intellectual capabilities at stake are also missing in the hybrid beings living in torments of Wells’ The Island of Doctor Moreau as well as in the animals of Orwell’s Animal Farm, in which even the necessary physical capacities are missing.

One –and perhaps a major– cause of the worst evils constitutive of dystopias is the definitive lack of two premises that utopias share with social contract theories: the equal, mutual vulnerability of all human agents and their –instrumental as well as formal– rationality. But one should critically inquire into whether this definitive lack can really occur in a dystopian regime. Yet, this decisive question is not addressed in essays about dystopias, nor do those essays provide any elements for answering this question. This may be due to the fact that, at first sight, dystopias look much more realistic than utopias to the extent to which they appear much easier to be realized than utopias. However, this appearance might result from circumstances related to the later period of history in which they were written. This later period of history introduced new fictional elements: new techniques of monitoring and control (for instance, the ubiquitous cameras and television screens as well as the medias of propaganda in Orwell’s 1984, and in-vitro-fertilization, somatic conditioning and synthetic drugs in Huxley’s Brave New World).

A widespread explanation of the unrealism of utopias is that human beings are allegedly not capable of complying with the strict rules and the demanding virtues underlying such utopian societies as Thomas More’s Utopia and Tommaso Campanella’s City of the Sun. This explanation is wrong, since human beings are capable of such compliance. In fact, the fundamental anthropological premises of utopias are the same as those of existing societies. The part of the utopian fiction in classical utopias that cannot be realized pertains to the transition from a pre-utopian society to the utopian community. This unrealistic transition entails the following elements: (1) It arises with a catastrophe that breaks the link to the former society in a nonreversible way; (2) institutions and rules of the classical utopian communities are presented as the product of either a divine revelation of a transcendent inspiration of a remote founding father or as never needing any modification, since they are allegedly perfect, perfection which, in turn, is due to their origin. These two features of the transition to utopia –and particularly the second one– could never be realized as they presuppose an unrealistic transcendent revelation that would be immediately and definitively adopted by all future members of the utopian regime because of its evident perfection, thereby excluding from the outset any skepticism thus ensuring its immutable validity. Utopia is attractive because it is an experiment beyond the existing societies, but it is also repulsive because it prohibits any other experiment.

The transition from existing societies to dystopian regimes shares only the first element of the transition from existing societies to utopian regimes: (1) It begins with a catastrophe that breaks the link to the former society in a nonreversible way: a war that annihilates existing societies in their deepest roots and plunges them into duress, in Brave New World as well as in 1984, the alcohol addiction of the farmer who neglects his animals so much that he lets them starve, in Animal Farm, the scandal resulting from the uncovering of Doctor Moreau’s experiments by the press in The Island of Doctor Moreau, his subsequent flight to a desert island, his odd experiments on that islands that cause the most painful torments to his hybrid and monstrous creatures. (2) The chaos and the misery that result from these catastrophes seem, at first glance, to lead to the easy establishment of a dystopian regime. But where does this impression originate? This impression is due only to the fact that (a) this catastrophe seems to completely sweep away any element of the past and that (b) the establishment of a dystopian regime occurs in a way that is no more likely than a miraculous revelation. Now, these two elements that lead to the dystopian regime easily establishing itself are not convincing. In order to demonstrate it, I must first distinguish between two kinds of dystopias as well as two kinds of explicatory factors for the irreversible establishment of the dystopian regime.

A dystopian regime may originate either from a non-utopian will of unlimited domination or from an apparently genuine utopian intention that nevertheless represents, in our view, the worst evil. The showcase example for the second kind is Huxley’s Brave New World, because it seems to have truly realized the goal of all utopias: At first sight, Brave New World is a society in which everybody seems to be entirely happy. On the contrary, in the first kind of dystopian regimes, most of the members seem to be even unhappier than in the state of nature. This is the case with 1984 and Animal Farm, for example. In the following I will call the first kind dystopias of domination, and the second kind dystopias of utopian intention.

The explanatory factor offered for declaring irreversible the establishment of dystopias of domination is the disappearance of any division of powers and of any institution of control as well as the disappearance of social norms caused by a catastrophe. Additionally, there can be a state of (real or fake) war, as in 1984, in which three empires are allegedly in constant conflict with each other. In 1984, one may doubt as much the existence of that war as the existence of the domestic enemy Goldstein, to whom a daily “two minutes of hate” are devoted, because there is no way for the inhabitants to obtain evidence of the existence of either external or internal enemies. What matters though is the everlasting state of war.

These factors (the disappearance of any division of power and of any instance of control, and the constant state of war) make it possible for the leaders to generate a full atomization of society and an omnipresent fear –or even a constant terror– which motivates the inhabitants to blind and unlimited obedience. A total lack of interpersonal sentiment prevails, with the exception of a general and radical distrust of everybody towards everybody. For instance, in 1984, the members of the party are forced to adopt sexual and sentimental abstinence and children are trained to denounce their parents, while in The Island of Doctor Moreau, Doctor Moreau terrorizes his hybrid creatures through practicing cruel surgery in the so-called “house of pain”. During the daily “two minutes of hate” that refers to the external and the internal enemy, Big Brother intends to arouse an ostensive, yet fake communion among the members and a real and direct subjection of each towards him, Big Brother.

In the case of dystopias of appearant utopian intention, the circumstance that makes it possible for dystopias to establish themselves in an irreversible way is the fact that they seem to pursue a rational project: to achieve the happiness of all members. For example, the establishment of the Brave New World was based on a diagnosis related to the causes of the economic catastrophe and of the war that overthrew the previous society: (a) imbalances between supply and demand, (b) underlying demographic fluctuations and (c) rivalries and social tensions and fights. Brave New World follows the following principles: (a) establishing a permanent and perfect equilibrium between supply and demand, (b) a strict demographic planning, and (c) a conditioning as well as a permanent drug supply and constrained drug consumption, which is supposed to ensure the happiness of all members in all social classes. We certainly have good reasons to consider Brave New World as a nightmare, as its author himself did, but, contrary to Big Brother’s intention in 1984, pig Napoleon’s intention in Animal Farm, and of Doctor Moreau’s intention in The Island of Doctor Moreau, Brave New World seems to pursue the common good, or more precisely the happiness of all, by seemingly rational means, although at a closer look, it pursues stability rather than the happiness of all members.

All circumstances mentioned above are designed to ensure, on the one hand, the establishment of a dystopian regime and, on the other hand, its irreversibility.

Let us first examine the case of dystopias of domination, especially the case of those staging animals (Animal Farm) or hybrid creatures (The Island of Doctor Moreau), which I distinguish from the epsilons of Brave New World, who are humanoids void of numerous human capabilities, because the dystopian regime designs them to feel happy –and therefore not to be unhappy about the lower tasks that are assigned to them–, which is the opposite of the farmer’s animals and of Doctor Moreau’s hybrid creatures. All animals of the farm are vulnerable to the pigs and the dogs, and all hybrids monsters are vulnerable to Doctor Moreau, without the reverse being true. With the exception of the pigs, the animals of the farm cannot read, nor remember, nor think rationally. The animals of the farm merely have emotional reactions of a low degree of complexity, and the hybrid creatures feel emotionally confused and are deprived of any genuine instinct. They know neither how to resist nor why they should resist. They just express their deep dissatisfaction or even fugacious aggressiveness, the cause of which they are unable to analyze.

Therefore, they are unable of any preventive attack, which would generate a Hobbesian state of war of all against all. Now, since this one-sided vulnerability and this lack of rationally originate in their very nature, they are not capable to overcome them, and their offspring has the same incapacity. The demonstration of the impossibility to resist would be almost made, if it would be about human beings. The reason why I say “almost” is that, even in the case of Doctor Moreau, for hybrid monsters deprived of any rationality, resistance is possible, and it can even reach victory. Moreau’s hybrids creatures finally kill Doctor Moreau and, thus, they seem to escape dystopia. Although their lack of rationality and of any genuine instinct doom them to a fatal war of all against all without any way out, Moreau’s hybrid creatures victoriously resisted their torturer. The pig Napoleon could also end up like the farmer.

Let us now assume that resistance is impossible and doomed to fail in the case of the animals as well as in the case of the hybrid creatures. Human beings –including the human beings represented in 1984 and Brave New World– are different from these animals and these hybrid creatures. Winston Smith in 1984 and Bernard Marx in Brave New World show several times that they are able to (1) make an overview judgment of the whole dystopian regime and understand its functioning, (2)  overcome fear, (3)  use cunning ruse, and (4)  become active dissenters, if necessary. The latter eventually leads them to be arrested, but this provides the evidence that they in fact resist, such that it is not impossible to resist. Additionally, nothing shows, in these two writings, that Winston Smith and Bernard Smith will always remain the only dissenters. Admittedly, both heroes have characteristics that make their case special. Winston Smith can remember the family feelings of his childhood. But perhaps other party members or proletarians outside the party have similar remembrances. Furthermore, dystopia had been established before the young Winston Smith reached the stage of his development at which intellectual education would have been given to him. Could other party members or proletarians outside the party have received such an intellectual education?

One could not answer negatively without fully skipping a generation or two. Now, without these intermediary generations, the population of 1984 would not exist, because 1984 does not foresee any system of artificial procreation including a moratorium of a generation or two. Such a generation gap is not only as unlikely as the miraculous revelations of the classical utopias, it is simply impossible. Additionally, despite his lack of intellectual education, and despite his lack of any contact with persons who would orientate him in this direction, Winston Smith is able to analyze the functioning of the so-called “new speak” and of Big Brother’s propaganda, for which he is working at the “Ministry of Truth”. He is also able to refer to a factual criterion of truth as well as to the principle of non-contradiction, which is incompatible with this propaganda. If he is able to this, there is no reason why any other person of his generation would not be capable to develop this ability, as well as any person of future generations in this dystopian regime. Furthermore, since the existence of Big Brother’s domestic enemy Goldstein is asserted only by Big Brother himself and since Big Brother systematically lies, one may doubt the existence of Goldstein and of his opposition network of active resistance, but there is no evidence either that Goldstein’s opposition network does not exist. The arrest and the brain washing of Winston Smith obviously show that resistance may fail. Yet, they do not demonstrate that any attempt to resist must inevitably fail, because logically an example can refute a universal thesis, but it cannot demonstrate any universal thesis.

What about the case of dystopias of utopian intention? Brave New World, based on the search for stability at any cost, seems to sincerely intend to make all members of society happy, including those of the lower class, i.e., the epsilons. We may disagree with the underlying conception of happiness that considers happiness as the absence of any pain. Another more widespread definition of happiness, formulated by John Stuart Mill, sees it as an entire set in which pleasure, or joy, alternates with pain, the first one being the predominant feeling, to the largest possible extent. However, despite this concept of happiness that is likely to be erroneous, and contrary to dystopias of domination, Brave New World partly shares at least one premise of equality with utopias: the goal to make all members as happy as possible, although, unlike in the case utopias, this greatest happiness is radically not the same for all, because alphas and epsilons do not experience the same amount of pleasure, since they are not capable of experiencing the same amount of pleasure. If Brave New World realized this greatest pleasure for all, one would observe at the same time an absence of any motivation to resist and an absence of any coercion, i.e., of any sanction.

Now, this is obviously not happening. Admittedly, the preference of the dissenter Bernard Marx for freedom and for experimenting with other ways of life is explained at the beginning of Brave New World as the result of a defect in the industrial artificial procreation process, that is, i.e., by the accidental addition of acid in the test-tube containing his embryo. But all inhabitants of the “brave new world” are regularly subject to moments of pain and depression, for which they must immediately take a pill in order to forget. Abstaining from immediately consuming this drug at such times amounts to an immediate resistance to the dystopian order. In Brave New World, a woman becomes pregnant, which is a serious violation of the social order and a reason for banishment, the hero Bernard Marx develops a predilection for useless aesthetic experiences, Marx’s favorite colleague is interested in knowledge for its own sake, i.e., for useless knowledge, and both are tempted to strive for banishment in Iceland, although this banishment is designed as a severe kind of punishment.

The need for the drug mentioned above shows the imperfections of industrial artificial procreation and of the somatic conditioning of embryos and, later on, of children. Furthermore, in the novel, nothing demonstrates that the combination of either displeasure or depression, on the one hand, and the command to immediately take this drug in such situations necessarily results in individuals taking this drug in order to feel relieved. Even with the most elementary knowledge of psychology, one knows that the reaction to either displeasure or depression does not necessarily consist in trying to get immediate satisfaction, nor in having recourse to a drug in order to temporarily relieve oneself from the feeling of pain or depression. Displeasure and depression can also lead one to behave in a way that violates the dystopian order of Brave New World. Now, the lack of any true punishment and of any real fear in Brave New World should certainly contribute to the success of any resistance. The suicide of the member of the Indian reservation that Bernard Marx exhibits in the “brave new world” should also been seen as a form of resistance against the utopian social order.

The thesis of the unavoidable failure of any resistance in dystopian orders does not pass the test of an analysis of the dystopias. Instead, analyzing dystopias shows that resistance remains possible. The reader’s impression that any resistance in dystopias is impossible originates in stylistic techniques. On the one hand, the dystopian novels show the broad range of technical and institutional means used by the dystopian regime as well as its monitoring and control over all spheres of life. On the other hand, the dystopian novel tells the story of an isolated individual that fails in its attempt to resist the dystopian order. The contrast between both arouses an impression of oppression that suggests unavoidability, irreversibility, and thus the impossibility to resist. Now, the impossibility to resist presupposes the lack of any capacity of will and efficacy, how ever strong or weak they may be.

Yet, one would misunderstand my analysis of dystopias if one concluded that its intention is to deliver a message of optimism. Indeed, although, on the one hand, as long as there are human beings, resistance will always be possible, even if it is eventually defeated, there is, on the other hand, an evil that is even worse than the Hobbesian state of nature as a state of war of all against all and that might make it extremely difficult, or nearly impossible, for resistance to be successful. In real life, extermination camps and nuclear weapons make it possible to destroy several times over the entire planet earth. Unfortunately, it is neither utopian, nor dystopian, yet it belongs to the real world.



Forst, Rainer 2006: Zur Normativität der politischen Philosophie des Nirgendwo. In: Abel, Günter (eds.): Kreativität. 20. Deutscher Kongress für Philosophie. Hamburg: Meiner, 92-103.

Fourier, Charles 1816. Le nouveau monde amoureux: http://classiques.uqac.ca/classiques/fourier_charles/nouveau_monde_amoureux/nouveau_monde_amoureux.html

Meißner, Joachim, Meyer-Kahrweg, Dorotee, Sarkowicz, Hans 2001: Gelebte Utopien. Alternative Lebensentwürfe, Frankfurt a.M. 2001.

Nozick, Robert 1974. Anarchy, State, and Utopia, New York: Basic Books.

Rawls, John 1999: The Law of Peoples, Cambridge, Mass.: Harvard University Press.

Walton, Kendall 1990: Mimesis as Make-Believe: On the Foundations of the Representational Arts. Cambridge, Mass.: Harvard University Press, 1990.



[1] For this reason, nobody suggested to apply Kendall Walton’s « make-believe » theory (cf. Walton 1990) to classical utopias so far.

[2] Utopias do not deal with the greatest happiness in the life after death.

Thinking of the Shadow. Conceptions of Cruelty in the History of Western Thought

As regards thinking of the shadow, I can contribute to the present discussion qua intellectual historian who, together with the theologian Michael Trice, has reconstructed in recent years the understanding of a particular manifestation of the shadow in the long life of Western philosophy: cruelty. Between 1998, when I started investigating Judith Shklar’s and Richard Rorty’s liberalism of fear, and 2017, when I completed a volume of collected essays of mine to be published by Northwest Passage Books under the title Philosophy of Cruelty, I devoted considerable time and attention to retrieving, mapping and reflecting upon the conceptions of cruelty developed in the history of Western thought. What follows here is a concise overview of the five most common and/or most articulate conceptions that I have identified in the course of my studies, and repeats almost verbatim what I state in the aforementioned collection of essays of mine. Longer and more detailed analyses can be retrieved in my older publications on this subject. Please note also that my research is intentionally limited to explicit uses of the terms “cruelty” and “cruel” in the languages accessible to me.  Extending it to cognates such as “violence” or “aggressiveness” would make the project unmanageable.

Cruelty as Vice

Cruelty has been regarded very often as a quintessentially human vice affecting specific individuals. This conception of cruelty is characteristic of ancient and medieval philosophers, whose approach to ethics typically centres upon the notion of personal character rather than upon the notion of rightful or good actions and norms—the latter being predominant amongst modern and contemporary thinkers. Also, this former conception of cruelty takes a chief interest in observing what consequences cruelty has for the perpetrator, rather than for its victims, as commonplace instead for modern and contemporary approaches to cruelty. In particular, ancient and medieval philosophers suggested that cruelty is a vice affecting persons involved in punitive contexts, e.g. courtrooms, schools, armies and households. In De Clementia, Seneca claims that “cruel are those who have a reason for punishing, but do not have moderation in it”.[1] Besides, he claims that, as concerns the person who “finds pleasure in torture, we may say is not cruelty, but savagery – we may even call it madness; for there are various kinds of madness, and none is more unmistakable than that which reaches the point of murdering and mutilating men.”[2] “Cruelty” is thus defined as “harshness of mind in exacting punishment”, rather than unrestrained lust for blood.[3] As a vice, ‘”cruelty” is said to be “an evil thing befitting least of all a man”,[4] and it can take private forms (e.g. family feuds) as well as public forms (e.g. tyranny, insofar as “[t]yrants”, unlike kings resorting to cruelty “for a reason and by necessity[,…] take delight in cruelty”).[5] Cruelty is the opposite of clemency, yet “it is as much a cruelty to pardon all as to pardon none.”[6] Clemency, according to Seneca, does not mean indiscriminate forgiveness, but rather a balanced blend of moderation and justice.

As famously discussed by Aristotle, our vices are said to spring from a lack of balance within the human soul; to exceed in forgiveness is as conducive to vice as to exceed in harshness. Aquinas’ Summa Theologica echoes Seneca’s position and combines it with Aristotle’s ethics:

Cruelty apparently takes its name from “cruditas”[rawness]. Now just as things when cooked and prepared are wont to have an agreeable and sweet savour, so when raw they have a disagreeable and bitter taste. Now it has been stated… that clemency denotes a certain smoothness or sweetness of soul, whereby one is inclined to mitigate punishment. Hence cruelty is directly opposed to clemency.[7]

Also for the doctor angelicus [angelic doctor] of the Catholic Church is “cruelty… hardness of the heart in exacting punishment”,[8] hence a form of “human wickedness”; whereas “savagery and brutality” are a form of “bestiality”.[9] Cruelty contains an element of rational deliberation, which “savagery” and “brutality” do not possess: these, in fact, “take their names from a likeness to wild beasts… deriving pleasure from a man’s torture.”[10] Cruelty is therefore something evil that we do intentionally and which corrupts our character by exceeding in what would be otherwise acceptable; but it is also something that we can do something else about, for all vices can be remedied by proper self-correction. As Aristotle and the medieval pedagogues used to teach, whatever the initial endowment of inclinations and talents in our character, each of us is responsible for the kind of person she becomes.

Cruelty as Sadism

The distinction drawn by Seneca and Aquinas between cruelty and bestiality, epitomised by sadistic pleasure, seems to vanish with several modern thinkers, who actually take sadism as the paramount, if not the sole, example of cruelty. This is a second, fairly common conception of cruelty, according to which cruelty turns into something worse than a vice, indeed something devilish or extreme. To some, cruelty becomes so extreme a tendency that it transforms into a sheer figment of our imagination, i.e. some kind of philosophical or literary ‘ghost’. Thomas Hobbes, for instance, argues that “Contempt, or little sense of the calamity of others, is that which men call cruelty; proceeding from security of their own fortune. For, that any man should take pleasure in other men’s great harms, without other end of his own, I do not conceive it possible.”[11] Bishop Joseph Butler, on his part, states that “[t]he utmost possible depravity, which we can in imagination conceive, is that of disinterested cruelty.”[12] David Hume, on this point, affirms: “Absolute, unprovoked, disinterested malice has never, perhaps, had place in any human breast”.[13]

The element of rational deliberation that Seneca and Aquinas observed in cruelty is adamantly underplayed in this second conception of cruelty, as Thomas Hobbes’ understanding reveals once more:

Revenge without respect to the example and profit to come is a triumph, or glorying in the hurt of another, tending to no end (for the end is always somewhat to come); and glorying to no end is vain-glory, and contrary to reason; and to hurt without reason tendeth to the introduction of war, which is against the law of nature, and is commonly styled by the name of cruelty.[14]

Rather than a vice, for which a person must take responsibility, cruelty morphs into a malady of the soul, the result of a poor, incompetent or broken mind, which reduces the humanity of its carrier and makes her closer to wild animals. Perhaps, this malady can be cured, or at least confined by appropriate measures of social hygiene. After all, animals can be tamed and trained; though sometimes they are put in cages or butchered. And the cruel human person, now likened to the beast, can be treated instrumentally, like commonly practised with horses and pigs; all this, naturally, being the case for the greater good of the commonwealth to which she and her victims belong.

Cruelty as Avoidable Harm

The idea of cruelty as something sick, if not even something sickening, colours also the work of the French Renaissance sceptic Michel de Montaigne. In his Essays, Montaigne observes that “cowardice is the mother of cruelty”[15] and states:

I cruelly hate cruelty, both by nature and by judgment, as the extreme of all vices. But this is to such a point of softness that I do not see a chicken’s neck wrung without distress, and I cannot bear to hear the scream of a hare in the teeth of my dogs… Even the executions of the law, however reasonable that may be, I cannot witness with a steady gaze.[16]

As for wars, it is worth repeating that Montaigne remarks: “I could hardly be convinced, until I saw it, that there were souls so monstrous that they would commit murder for the mere pleasure of it… For that is the uttermost point that cruelty can attain.”[17] The conceptions of cruelty as vice and sadism are accounted for in Montaigne’s reflections, but they are also subtly advanced to a broader condemnation of cruelty as harm to be avoided: capital punishment might be reformed, hunting abandoned, and wars prevented. In this perspective, his contribution to the understanding of cruelty in Western history is momentous, just as momentous were his Essays for the West’s intellectuals in the three centuries following their publication, and it connects the modern conceptions with the ancient one. Moreover, Montaigne is the first Western intellectual to devote an entire essay to the topic of cruelty—a stark sign of how genuine was his hatred for cruelty. “Montaignesque” is therefore the third conception of cruelty to be presented, i.e. cruelty as harm to be avoided.

The champions of the European Enlightenment are probably the most vocal and best-remembered members of this approach. Montesquieu, for example, labels as “cruel… torture” and gruesome “punishments”, legal servitude for insolvent debtors and colonial occupation.[18] In his essays On Tolerance, Voltaire describes as eminently cruel all wars of religion, whilst in Candide he condemns as such rape, corporal punishment and mutilation, even when lawfully administered in the name of justice.[19] Adam Smith, champion of the Scottish Enlightenment, ascribes the attribute “cruel” to infanticide,[20] personal vendetta,[21] economic monopolies,[22] burdensome taxes of succession or of passage of property,[23] the suffering of the “race of labourers” in periods of economic recession,[24] and mercy to the guilty.[25] In Italy, Pietro Verri argues that “[r]eason can show [what] is unjust, extremely dangerous, and immensely cruel”—and reason led him to condemn “torture” as “cruel”.[26] Cesare Beccaria, the most influential penal reformer of all times and both a friend and a student of Verri’s, condemns torture as cruel too, whilst also noting: “man is only cruel in proportion to his interest to be so, to his hatred or to his fear.”[27] Hence, it ought to be a duty for the legislator to “[c]ause men to fear the laws and the laws alone. Salutary is the fear of the law, but fatal and fertile in crime is the fear of one man of another. Men as slaves are more sensual, more immoral, more cruel than free men”.[28] For Jean-Antoine-Nicolas, Marquis de Condorcet, instead, “cruel” is the institutional neglect of “the progress of education”, for it constitutes nothing but the shameful misdeed of “abandoning men to the authority of ignorance, which is always unjust and cruel”.[29] Even the non-instrumental Enlightenment thinker par excellence, Immanuel Kant, does espouse the spirit of reformation of his age, and calls “most cruel” the institution of “slavery” exercised in the “Sugar Islands” by Dutch landowners,[30] whereas merely “cruel” are the “duels” fought in the name of “military honour”, which, like “Maternal Infanticide”, lead to cases of “Homicide” as distinguished from “Murder”.[31]

19th– and 20th-century political and legal reformers followed in the footsteps of the ‘enlighteners’ of the 18th century. Amongst them are also Judith Shklar and Richard Rorty. Judith Shklar, who was a Montaigne scholar, defines cruelty in two ways. The former reads: “Cruelty is… the wilful inflicting of physical pain on a weaker being in order to cause anguish and fear… [it is] horrible… [it] repels instantly because it is ‘ugly’… and disfigures human character”. The latter reads: “Cruelty is the deliberate infliction of physical, and secondarily emotional, pain upon a weaker person or group by stronger ones in order to achieve some end, tangible or intangible, of the latter.” Judith Shklar believes that cruelty, to a meaningful extent, can be controlled by appropriate doses of liberalism, which is itself in many ways a child of the 18th century: “the first right is to be protected against the fear of cruelty. People have rights as a shield against this greatest of human vices. This is the evil, the threat to be avoided at all costs. Justice itself is only a web of legal arrangements required to keep cruelty in check.”[32] Good laws and good political arrangements can reduce the pain that we impose upon/suffer from weaker/stronger creatures like us. That is the hope animating the American and the French Revolutions, as well as many of the emancipatory struggles fought during the following two centuries. Still, additional cruelties can be retrieved—and rejected—in other areas too. Giacomo Leopardi, for one, aims at a different target. He associates cruelty with the rewards and punishments awaiting us post mortem [after death], which he claims to be nothing but the sorrowful fictional creations of tragically misguided philosophies and religions. Whether “healthy or sick”, these creations are, in his view, signs of “cowardice” and mere “childish illusions” that were developed in the face of “the absence of any hope, …the desert of life, …men’s infelicity[,]… and destiny’s cruelty”.[33] Though living as such is cruel in and for itself, even crueller it is to live in fear of the priest’s gloomy superstitions or the philosopher’s hollow concepts.

Tom Regan sketches a fascinating taxonomy of cruelty, which he derives from yet another area that seems engulfed with cruelty: the human treatment of animals. As Regan writes:

People can rightly be judged cruel either for what they do or for what they fail to do, and either for what they feel or for what they fail to feel. The central case of cruelty appears to be the case where, in Locke’s apt phrase, one takes ‘a seeming kind of Pleasure’ in causing another to suffer. Sadistic torturers provide perhaps the clearest example of cruelty in this sense: they are cruel not just because they cause suffering (so do dentists and doctors, for example) but because they enjoy doing so. Let us term this sadistic cruelty… Not all cruel people are cruel in this sense. Some cruel people do not feel pleasure in making others suffer. Indeed they seem not to feel anything. Their cruelty is manifested by a lack of what is judged appropriate feeling, as pity or mercy, for the plight of the individual whose suffering they cause, rather than pleasure in causing it… The sense of cruelty that involves indifference to, rather than enjoyment of, suffering caused to others we shall call brutal cruelty…Cruelty admits of at least four possible classifications: (1) active sadistic cruelty; (2) passive sadistic cruelty; (3) active brutal cruelty; (4) passive brutal cruelty.[34]

Whichever class of cruelty we encounter in life, Regan believes that we must try to eliminate it. In particular, he focuses on (3) and (4), i.e. the types of cruelty that seem to characterise the human-animal relationship in contemporary societies. Persons are not only cruel to other persons: as long as pain is taken to be a relevant ethical factor, then also animals can become victims, and maybe even perpetrators (though Regan does not explore this avenue).

Cruelty as Paradox

As inheritors of the projects initiated in the 18th century, we can find Shklar’s and Regan’s definitions rather appealing. However, how many types of cruelty and cruel areas of behaviour can be actually tackled? How many revolutions, with their load of gunpowder and dynamite, should be fought? If three centuries of worldwide-expanding liberalism, culminated with Francis Fukuyama’s post-Cold-War proclamation of “the end of history”, have not eliminated it, what reasonable expectations can be entertained vis-à-vis the future?[35] Few are the philosophers who have pondered upon the paradoxical character of cruelty—a fourth conception that can also be retrieved in the history of Western thought. Cruelty persists within our lives and societies despite its being commonly denounced as something extremely negative and, above all, despite the recurring attempts to promote social progress and reform existing institutions. Judith Shklar herself admits that “cruelty is baffling because we can live neither with nor without it” and this is probably the reason why:

Philosophers rarely talk about cruelty… I suspect that we talk around cruelty because we do not want to talk about it… What we do seem to talk about incessantly is hypocrisy, and not because it hides cowardice, cruelty, or other horrors, but because failures of honesty and of sincerity upset us enormously, and they are vices which we can attack directly and easily. They are easier to bear, and seem less intractable.[36]

Philip P. Hallie marks a notable exception to the commonplace avoidance of the subject denounced by Judith Shklar. Firstly, Hallie defines “cruelty” as “the infliction of ruin, whatever the motives”[37] or, in two alternative versions, “the activity of hurting sentient beings”[38] and “the slow crushing and grinding of a human being by other human beings”.[39] He then distinguishes the instances of “cruelty upon humans” between those “fatal cruelties” that are due to nature and the far from uncommon “human violent cruelty” that is due to our fellow human beings.[40] To the latter he adds “implicit” or “indirect” cruelties, i.e. cruelties arising from “indifference or distraction” rather than from evident “intention to hurt”.[41] Thus understood, human cruelty can be further divided into “sadistic” and “practical”: whereas the latter refers to forms of instrumental cruelty, the former is “self-gratifying”.[42] By way of this articulate taxonomy, richer than Tom Regan’s itself, Hallie attempts to encompass and map the vast, polymorphous universe of cruelty, whose intricate nature explains perhaps its little permeability to philosophical analysis. Secondly, Hallie cuts the Gordian knot of cruelty’s intrinsic complexity by referring to it as a paradox, candidly and straightforwardly—in a book’s very title. Why simplifying something that cannot be simplified? Why misrepresenting it, in the attempt to represent it clearly? Hallie has in mind five particular cases of paradoxical cruelty:

  1. Cruelty brought about without any open “intention to hurt”, but in the name of altruism, happiness, justice, etc.[43] “Substantial maiming” can derive from “wanting the best and doing the worst”.[44]
  2. Cruelty caused by genuine “intention to hurt”, but aimed at educating and therefore avoiding worse cruelties, e.g. “in terrorem” [terrifying] literary techniques.[45] As 20th-century French literary scholar André Dinar also observes: “The cruel authors cauterise the wounds that can be healed and mark with hot irons the incurable ones, so to expose their horror”.[46]
  3. “The fascinosum [lure] of cruelty”,[47] as well as its ability to titillate “sexual pleasure”,[48] higher “awareness”,[49] the liberation of sensual “imagination”[50] and “masochistic pleasure”,[51] are all pursued willingly and proactively, very often, by fully conscious persons.
  4. Cruelty implied by the “growth” or maturing of any individual through painful “individualisation” for the sake of “human authenticity”.[52] No person becomes mature, well-rounded and responsible without facing a significant amount and variety of pain in her life, and without learning how to face probable, if not inevitable, later doses of the same bitter medicine.
  5. “Responsive” cruelty enacted in retaliation to “provocative” cruelty,[53]g. penal chastisements and just wars, although “mitigation” is recommended.[54]

Being a devout Christian, Hallie has no desire to promote cruelty. Quite the contrary, his work on this topic begins as an effort to reduce it. Nevertheless, as he deepens his understanding of it, Hallie comes to recognise that not all cruelty ought to be avoided, for its disappearance would be more harmful than its persistence. This is particularly true of the painful processes of growth and maturation, as well as of artistic disclosure of sorrowful truths or extreme sexual elation. Moreover, in an implicit reminder of Beccaria’s own wisdom, Hallie admits that cruelty may be a necessary evil in the public sphere. As baffling as this may be, cruelty seems to find rather easily assorted justifications for enduring in many aspects of life.

Cruelty as Good

Some philosophers have stepped beyond the sole acknowledgment of cruelty’s paradoxical character and entertained plainly the seemingly contradictory notion that it might be good. This is the fifth and last conception of cruelty, which comprises two main groups of thinkers.

In the first group are included those thinkers who have argued that cruelty does not need to have intrinsic value (or disvalue), but instrumental value alone and, as such, that cruelty may be capable of fulfilling a positive function. For instance, cruelty can be a tool to promote the common good. Niccolò Machiavelli is among them. According to him:

Every prince ought to desire to be considered clement and not cruel. Nevertheless he ought to take care not to misuse this clemency. Cesare Borgia was considered cruel; notwithstanding, his cruelty reconciled the Romagna, unified it, and restored it to peace and loyalty. And if this be rightly considered, he will be seen to have been much more merciful than the Florentine people, who, to avoid a reputation for cruelty, permitted Pistoia to be destroyed [by the rioting between the Cancellieri and Panciatichi factions in 1502 and 1503].[55]

Jacques Derrida states something analogous when he writes in recent years: “Politics can only domesticate [cruelty], differ and defer it, learn to negotiate, compromise indirectly but without illusion with it… the cruelty drive is irreducible.”[56] Instead of combating cruelty at all costs, one ought to learn how to draw as much good as possible from it. After all, the initiation of social life makes itself use of cruelty: why should its continuation be devoid of it? This is what Gilles Deleuze and Félix Guattari seem to suggest, for example. The acquisition and continuation of the shared semiotic abilities that allow for human communities to develop is never devoid of cruelty. Schooling and socialisation are no free meal: “Cruelty is the movement of culture that is realized in bodies and inscribed on them, belabouring them.”[57] Sharing a similar awareness, Clément Rosset explores the instrumental role of cruelty in the private sphere, rather than the public one, and writes provokingly: “Joy is necessarily cruel”.[58] According to him, “[c]ruelty is not… pleasure in cultivating suffering but… a refusal of complacency toward an object, whatever it may be.”[59] Now, “the ‘cruelty’ of the real… is the intrinsically painful and tragic nature of reality.”[60] For instance:

[T]he cruelty of love (like that of reality) resides in the paradox or the contradiction which consists in loving without loving, affirming as lasting that which is ephemeral – paradox of which the most rudimentary vision would be to say that something simultaneously exists and does not exist. The essence of love is to claim to love forever but in reality to love only for a time. So the truth of love does not correspond to the experience of love.[61]

For Rosset, the answer to cruelty’s paradox lays in the nature of reality, which is ultimately cruel. Rosset’s thought could then be regarded as belonging legitimately to the fourth conception of cruelty as well, i.e. cruelty as paradox. In truth, the distinction between the fourth and the fifth conceptions is not clear-cut, and the same can be said of the distinctions between the other conceptions previously presented (especially between the first and the third, and the second and the third). These distinctions are mostly a matter of different conceptual emphasis, rather than of mutual incompatibility; and as we emphasise the fifth conception, it can be stated that, to a relevant extent, persons are shaped by cruelty and are bound to encounter it also and above all if they wish to derive a modicum of satisfaction from their mortal existence. The only way to live well, for Rosset, who was a Schopenhauer scholar, involves learning to embrace the suffering that life unavoidably unloads upon us. In the field of drama, Antonin Artaud echoes and expands Rosset’s tragic awareness: “Death is cruelty, resurrection is cruelty, transfiguration is cruelty… Everything that acts is a cruelty.”[62] To be is to be cruel—there is no way out of cruelty, which, however, must be conceived anew: “Cruelty is not just a matter of either sadism or bloodshed, at least not in any exclusive way… [It] must be taken in a broad sense, and not in the rapacious physical sense that is customarily given to it.”[63] Although never as clear as Rosset on what this novel understanding of cruelty may be like, Artaud developed a new set of shock- and scandal-filled stage techniques and communication devices, i.e. his Theatre of Cruelty, which was aimed at eliciting higher levels of personal awareness in the audience: “All this culminates in consciousness and torment, and in consciousness in torment”.[64]

In the second group are included those thinkers that have argued that cruelty might be intrinsically valuable, maybe even a virtue, which enriches our lives in a unique way and allows for the full realization of our nature. The most ‘in-famous’ example in this sense is that of the Marquis de Sade, who argues: “Cruelty is imprinted within the animals… that can read the laws of Nature much more energetically than we do; [cruelty] is more strongly enacted by Nature among the savages than it is among civilized men: it would be absurd to establish that it is a kind of depravity”.[65] Sade, who approves also of more refined forms of cruelty (i.e. the civilised libertine’s), infers from the naturalness and unavoidability of cruelty a reversed Rousseauvianism:

Remove your laws, your punishments, your customs, and cruelty will not have dangerous effects any longer… it is inside the civilized domain that it turns into a danger, as those capable of it are almost always absent, either because they lack the force, or because they lack the means to respond to the offences; in the uncivilized domain, instead, if it is imposed over the strong, then he shall be able to react to it, and if it is imposed over the weak, it will not be else than conceding to the strong according to the laws of nature, and this will not be inappropriate at all.[66]

Equally notorious is the case of Friedrich Nietzsche, whom the reader has already met repeatedly in this book. Idealising and idolising primeval societies, barbaric bravery and warrior mores, Nietzsche wishes to:

[E]mpathise with those tremendous eras of “morality of custom” which precede “world history” as the actual and decisive eras of history which determined the character of mankind: the eras in which suffering counted as virtue, cruelty counted as virtue, dissembling counted as virtue, revenge counted as virtue, denial of reason counted as virtue, while on the other hand well-being was accounted a danger, desire for knowledge was accounted a danger, peace was accounted a danger, pity was accounted a danger, being pitied was accounted an affront, work was accounted an affront, madness was accounted godliness, and change was accounted immoral and pregnant with disaster![67]

If Sade reverses Rousseau’s bon sauvage [noble savage (the term was never used by him, but is commonly associated with him)], Nietzsche reverses Seneca’s treatment of cruelty as vice. For Nietzsche, cruelty used to be a virtue in prehistoric or barbaric times, it is a fixed element in the human make-up, and it survives in countless rarefied forms today:

Cruelty is what constitutes the painful sensuality of tragedy. And what pleases us in so-called tragic pity as well as in everything sublime, up to the highest and most delicate of metaphysical tremblings, derives its sweetness exclusively from the intervening component of cruelty. Consider the Roman in the arena, Christ in the rapture of the cross, the Spaniard at the sight of the stake or the bullfight, the present-day Japanese flocking to tragedies, the Parisian suburban laborer who is homesick for bloody revolutions, the Wagnerienne who unfastens her will and lets Tristan und Isolde “wash over her” – what they all enjoy and crave with a mysterious thirst to pour down their throats is “cruelty,” the spiced drink of the great Circe.[68]

Given all this, as Nietzsche concludes, cruelty should be recovered in an honest and healthy way, for human beings are cruelty-prone animals that live in the mundane world, not the God-like, spiritualised, ‘fallen’ and heaven-seeking creatures of which religion and philosophy have pointlessly blared about for centuries. Just like all other animals, so do human beings have bodies, selfish selves, and ‘knightly’ instincts calling for competition, predation and domination. Humans are born to race against one another and the most deserving ones, in the end, ought to survive and lead. Any departure from this natural logic is a concession to degeneration and, essentially, an unhealthily indirect manifestation of repressed cruelty, which cannot but harm our species by letting slaves dominate over masters, priests over knights, and ignorant masses over cultured elites. Instead of understanding and embracing the cruel but actual reality of the world, which is the only place where true existential meaning can be found, the degenerate pursue mystification and escapism. Exemplarily, the loathed magician/pope of Nietzsche’s grand and initially ill-received philosophical allegory, i.e. his 1883–91 Thus Spoke Zarathustra: A Book for All and None, discovers this hard truth in his delirium, as he realises that his own pantheon of abstract instruments of power (angels, demons, God, etc.) is the utmost and most cruel betrayal of any chance for real fulfilment. Nothing of what he has been preaching during his life, in order to lead his flock, is true and truly valuable: “In vain! / Pierce further! / Cruellest spike! / No dog – your game just am I, / Cruellest hunter! /…/ Speak finally! / You shrouded in the lightning! Unknown! Speak! /…/ Surrender to me, / Cruellest enemy, / – Yourself![69]

Concluding Remarks

This brief overview of the five most common and/or most articulate conceptions of cruelty that can be retrieved in the history of Western thought shows already how diverse the interpretations of this term can be. Cruelty, like many other concepts that we employ regularly in our language, whether in ordinary or technical discourses, is inherently contested, i.e. it allows for a variety of readings, usages and applications. As Michael Polanyi used to argue in the 20th century, it is important for concepts to be adequately ambiguous, insofar as they are meant to grasp a plethora of subsidiary details that we are only tacitly aware of, and of some of which we may become aware by subsequent processes of analysis, elucidation, comparison, critique, reflection, study, etc. These processes may even lead to a breakdown in the applicability of the concept, which is then abandoned in lieu of alternative ones. This abandonment does not mean that the concept is mistaken or useless. Quite the opposite, a concept is correct and useful insofar as we successfully interact with other persons by referring to it, that is, by referring to phenomena by means of it. As a concept in both ordinary and philosophical language, cruelty is no exception to the way in which several conceptions can be produced of any such item, and an array of diverse realisations about human affairs can be unpacked from it by reflecting upon it—in this case, by thinking of the shadow.



[1] Lucius A. Seneca, De Clementia, translated by John W. Basore, London: Heinemann, 1928–35[55 AD], II.iv.1–4. Whenever possible, given the great variety of editions over the centuries of Latin classics, I use the standard referencing system for such sources.

[2] Ibid.

[3] Ibid.

[4] Ibid. I.xxiv.1–xxv.2.

[5] Ibid. I.xii.1–4.

[6] Ibid. I.ii.2–iii.3.

[7] Thomas Aquinas, Summa Theologica, translated by Fathers of the English Dominican Province, 1920[ca. 1268], <http://www.newadvent.org/summa/>, part II of part II, question 159, art. 1. I utilise here the standard scholarly referencing system for Aquinas’ Summa.

[8] Ibid.

[9] Ibid., art. 2.

[10] Ibid.

[11] Thomas Hobbes, Leviathan, London: Andrew Crooke, 1651, <http://socserv2.socsci.mcmaster.ca/econ/ugcm/3ll3/hobbes/Leviathan.pdf>, part I, chapter VI.

[12] As cited in British Moralists 1650–1800, edited by D.D. Raphael, Indianapolis: Hackett, 1991, vol. 1, 334–5.

[13] As cited in ibid., vol. 2, 72.

[14] Thomas Hobbes, Leviathan, part I, chapter XV.

[15] Michel de Montaigne, The Complete Essays, translated by Donald Frame, Stanford: Stanford University Press, 1998[1580], II, 27.  Given the great variety of editions of Montaigne’s essays, I do not refer to page numbers and use the standard scholarly system instead, i.e. book and essay number.

[16] Ibid., II, 11.

[17] Ibid.

[18] Montesquieu, The Spirit of the Laws, translated by Thomas Nugent, New York: Cosimo, 2011[1748], book VI, chapter, 12; book XV, chapters 1, 7 & 15; book XXVI, chapter 22.

[19] Cf. Voltaire, Oeuvres complètes de Voltaire, edited by Louis Moland, Paris: Garnier, 1877[1769].

[20] Adam Smith, The Theory of Moral Sentiments, 6th edition, London: A. Millar, 1790, <http://www.econlib.org/library/Smith/smMS.html>, part V, chapter I, §25.

[21] Ibid., part VI, chapter III, §12.

[22] Adam Smith, An Inquiry into the Nature and Causes of the Wealth of Nations, edited by Edwin Cannan, Indianapolis:  The Online Library of Liberty, 1901[1776], <http://www.econlib.org/library/Smith/smWN.html>, book IV, chapter 8, §17.

[23] Ibid., book V, chapter 2, §§116 & 125.

[24] Ibid., book I, chapter 11, §263.

[25] Ibid., book II, chapter I, §27.

[26] Pietro Verri, Osservazioni sulla tortura, Rome: Newton, 18 (translation mine).

[27] Cesare Beccaria, Crimes and Punishments, translated by James Anson Farrer, London: Chatto & Windus: 1880[1764], 140–1.

[28] Ibid., 243.

[29] Condorcet, Esquisse d’un tableau historique des progrès de l’esprit humain, Xème & IIème époque, 2004[1793–4], <http://www.eliohs.unifi.it/testi/700/condorcet/index.html> (translation mine).

[30] Immanuel Kant, Zum ewigen Frieden. Ein philosophischer Entwurf, part II, chapter 2, §3 (translation mine).

[31] Immanuel Kant, Philosophy of Law. An Exposition of the Fundamental Principles of Jurisprudence as Science of Right, translated by W. Hastie, Edinburgh: T. & T. Clark, 1887[1796], part II, section I, chapter 49, art. E.

[32] Judith Shklar, Ordinary Vices, Cambridge: Belknap, 1984, 237.

[33] Giacomo Leopardi, Operette morali, “Dialogo di Tristano e di un amico”, <http://www.leopardi.it/operette_morali.php>, (translation mine).

[34] Tom Regan, The Case for Animal Rights, Berkeley: University of California Press, 1983, 197–8 (emphases removed).

[35] Francis Fukuyama, The End of History and the Last Man, New York: The Free Press, 1992.

[36] Judith Shklar, Ordinary Vices, 3, 7 & 44.

[37] Philip P. Hallie, The Paradox of Cruelty, Middletown: Wesleyan University Press, 1969, 14.

[38] Encyclopaedia of Ethics (edited by Lawrence C. Becker, New York: Garland, 1992), s.v. “Cruelty”, by Philip P. Hallie, 229–31, 229.

[39] Philip P. Hallie, Lest Innocent Blood Be Shed: The Story of the Village of Le Chambon, and How Goodness Happened There, New York: Harper & Row, 1985[1979], 2.

[40] Philip P. Hallie, The Paradox of Cruelty, 5–6.

[41] Ibid., 13–4 & 29–31.

[42] Ibid., 22–4.

[43] Ibid., 15–20.

[44] Ibid.

[45] Ibid., 20–2.

[46] André Dinar, Les auteurs cruels, Paris: Mercure de France, 1972[1942], 7.

[47] Philip P. Hallie, The Paradox of Cruelty, 70–5.

[48] Ibid., 41 & 46.

[49] Ibid., 43.

[50] Ibid., 42 & 50.

[51] Ibid., 48.

[52] Ibid., 55–8 & 60–2.

[53] Ibid., 33.

[54] Ibid., 79–82.

[55] Niccolò Machiavelli, The Prince, translated by W.K. Marriott, 1908[1515], <http://www.constitution.org/mac/prince00.htm>, chapter XVII.

[56] Jacques Derrida, Without Alibi, translated by Peggy Kamuf, Stanford: Stanford University Press, 2002[2000], 252.

[57] Gilles Deleuze and Félix Guattari, Anti-Oedipus, translated by Robert Hurley, Mark Seem and Helen R. Lane, New York: The Viking Press, 1977[1972], 144.

[58] Clément Rosset, Joyful Cruelty: Toward a Philosophy of the Real, translated by David F. Bell, New York: Oxford University Press, 1993[1988], 17.

[59] Ibid., 17–20.

[60] Ibid., 76.

[61] Ibid., 98 (emphases removed).

[62] Antonin Artaud, The Theater and its Double, translated by Mary Caroline Richards, New York: Grove Press, 1958[1938], 101–3 & 85.

[63] Ibid., 102.

[64] Ibid., 114 (emphasis removed).

[65] Sade, La Philosophie dans le boudoir ou Les Instituteurs immoraux, Paris: Larousse, 1966[1795], 139 (translation mine).

[66] Ibid., 140–1 (translation mine).

[67] Friedrich Nietzsche, Daybreak, translated by R.J. Hollingdale, Cambridge: Cambridge University Press, 1997[1881], §18.

[68] Friedrich Nietzsche, Beyond Good and Evil, translated by Judith Norman, Cambridge: Cambridge University Press, 2002[1886], §229.

[69] Friedrich Nietzsche, Thus Spake Zarathustra, translated by Thomas Common, 1891[1883–91], part IV, §65, section 1 (generally known and translated as Thus Spoke Zarathustra).

Arguments for the Normative Validity of Human Rights. Philosophical Predecessors and Contemporary Criticisms of the 1789 French Declaration of Human and Civic Rights

Introduction to the Field of Discussion

The French Declaration of Human and Civic Rights from 1789 is the first European legal document to ground state laws on the idea of individual human rights.[1] As is well known, the French constitutions built upon the original declaration did not succeed in creating a stable and peaceful French state in the 18.th century.[2] Nonetheless, it is under influence of this document that the conception of public rights of the individual has developed in the positive law of the states of the European continent. Modern France continues to pay tribute to the ideal of the Declaration as the fundament of the republic. It makes up the preamble of the constitution of the fifth and current French republic of 1958. Likewise, the declaration of human rights issued by the United Nations in 1948 relied on inspiration from the original French Declaration. A difference between the UN declaration of human rights and the French Declaration consists in the different legal roles ascribed to human rights. Article 16 of the 1789 Declaration pronounced that any society in which no provision is made for guaranteeing the rights mentioned in the Declaration has no constitution. Thereby the French Declaration thought of human rights as the fundament of any constitutional state. In contradiction hereto, the UN worded human rights as a standard of achievement.

I shall discuss two historically precedent philosophical sources to the French Declaration, namely Thomas Hobbes’ Leviathan (1651) and Jean Jacques Rousseau’s Social Contract (1762). The French Declaration cannot be said to have been inspired directly by Hobbes as it was by Rousseau. The exposition of Hobbes and Rousseau is undertaken in order to come to grips with two paradigmatic examples of how early modern European thought established a tradition of natural rights independent of divine authority. In their political philosophies both Hobbes and Rousseau developed systematic explanations as to the interconnection between natural rights, laws and justice. Hobbes expounded an original conception of natural laws as laws of reason without reference to divine commandment, whereas Rousseau ridiculed the concept of natural law as “established … on such metaphysical principles, that there are very few persons among us capable of comprehending them, much less of discovering them…,” (Rousseau, 1755: 46).

A main difference between Hobbes and Rousseau consists in their view on justice. Hobbes expounded a conception of natural law that lead to the legitimation of an autocratic state power. The apparently paradoxical result of Hobbes’ view is a rejection of the meaningfulness of any conception of justice outside of positive law. Rousseau, on the other side, dispensed with the conception of natural law in order to argue for a humanly and thereby artificially established universal conception of justice that functions as a principle of justice to measure the justice or injustice of positive law in existing states. I shall point to central differences in their political philosophies but argue that these rest on important similarities in their argumentation. As ground-breaking thinkers of early modern political philosophy, Hobbes and Rousseau comprise an important philosophical background for the French Declaration of Human and Civic Rights as well as for the criticism launched against it.

First, I shall look at how Hobbes developed a refined differentiation between natural right and natural law as a foundation for his conception of just sovereignty as an absolute authoritarian state power over the populace. The next step will be to follow how Rousseau turned the tables on Hobbes’ position offering an argument of an original social compact that lead to the sovereignty of the people and their rights. Thereafter the attention is turned to the French Declaration of 1789 and the criticism raised against it by the French feminist and girondist Olympe de Gouge (1748-1793) and the British utilitarian Jeremy Bentham (1748-1832). As a look at the year of death of de Gouge palpably displays, she was one of many victims of the reign of terror of the committee of public security (comitée de salut publique) with Maximilien Robespierre (1758-1794) as its active leader in the period of September 1793 to July 1794. Bentham, looking at the uproar in France from calm Britain, was horrified by the events. There is a slight but important time difference between Bentham’s and de Gouge’s texts. Whereas de Gouge wrote in 1791, as France officially was a constitutional monarchy, Bentham’s criticism of the French Declaration for simply amounting to nonsense upon stilts was written in 1795 after the fall of Robespierre.[3] Thus, Bentham lived to evaluate the values and faults of the French Revolution whereas de Gouge lost her life to its cause. de Gouge, a keen supporter of the Revolution and ally of the girondist faction, was loyal to the idea of a constitutional monarchy. Her alternative Declaration of the Rights of Woman was addressed to the queen, Marie Antoinette. de Gouge argued to develop the revolution further to also encompass women’s political rights by grounding her – at the time – controversial claims for gender equality within a tradition of thinking about human rights as inalienable divine rights. Bentham was a severe critic of almost all aspects of the Declaration. Had he known de Gouge’s argumentation he would have opposed it just as vehemently as he opposed the Declaration of the national assembly. Bentham took issue with the idea of founding juridical laws on a foundation of natural rights. His comprehensive rejection of the conception of natural rights makes him more radical than Thomas Hobbes who – as we shall – see did operate with a concept of natural right.

Two Types of Commonwealth in Hobbes’ Leviathan

In Leviathan Hobbes set forth to explain two manners of transition from the state of nature to an established commonwealth with rule of law. One is “by natural force” which Hobbes called “a commonwealth by acquisition” thereby implying that some person or group had acquired enough power to subdue a people (Hobbes 1651: 121). The other he called “a political commonwealth or commonwealth by institution” (Hobbes 1651: 121). It was founded on the conceptions of natural right and natural law that Hobbes had explained beforehand in his discussion of the state of nature. According to this manner of arguing, human beings in a state of nature could by use of reason envision that they would be better off if they contracted to form a commonwealth ruled by a declared sovereign external to the covenant. We shall come back to the content of Hobbes’ argument, but beforehand it is important to note that Hobbes equated the two ways of moving out of the state of nature into law governed society. According to Hobbes it is irrelevant for the evaluation of a law governed society whether it is founded on a voluntary social contract between all its members or the sovereign power has been acquired by force. The only difference, Hobbes argued, is “that men who choose their sovereign [by way of a social contract], do it for fear of one another, and not of him whom they institute. But in this case [where sovereign power is established by force], they subject themselves to him they are afraid of,” (Hobbes 1651: 138).

A general presupposition of Hobbes’ political philosophy is that the state of nature is worse than any functioning commonwealth. The state of nature entails a “war of every man against every man … [in which] nothing can be unjust. The notions of right and wrong, justice and injustice have there no place. Where there is no common power, there is no law: where no law, no injustice. Force and fraud are in war the two cardinal virtues. Justice and injustice are none of the faculties neither of the body nor mind,” (Hobbes 1651: 90). Hobbes’ conception of the state of nature involves two strong claims about human nature. Firstly, human beings are naturally enemies. Secondly, the animosity between humans cannot be controlled by any other means than domination and concentration of power in the hands of the sovereign (let it be a monarch, an aristocracy or parliament). The equation between the two manners of establishing a commonwealth amounts to an argument that maintains that in order to create peace force is necessary. The origin of the commonwealth does not alter the fact that laws need force in order to be effectively steering human actions.

Therefore, Hobbes argued the important differentiation is between the state of nature and any established commonwealth. The meaning pertaining to words such as justice, good and evil, right and wrong only arises out of the civil laws of the commonwealth and are incomprehensible in the state of nature. The erection of the commonwealth Hobbes compared to the creation of an artificial man. The individual members tie themselves to a commonwealth in order to attain peace and conserve themselves. In the commonwealth individuals “made artificial chains called civil laws which they themselves by mutual covenants have fastened at one end to the lips of that man or assembly to whom they have given the sovereign power; and at the other end to their own ears. These bonds in their own nature but weak may nevertheless be made to hold, by the danger, though not by the difficulty of breaking them,” (Hobbes 1651: 147). Hobbes argued that the individuals living in a commonwealth had consentingly subjected themselves to the civil laws of the sovereign. This subjection amounts to the same regardless whether the sovereign power had been attained through a mutual covenant between all members or by force.

Only in the artificial state of a commonwealth do concepts such as justice, right and wrong obtain any discernible meaning, namely the meaning ascribed to them by civil law. In modern wording Hobbes can be said to argue from a legal positivist point of view. In accordance with the terminology of his times, Hobbes maintained a nominalist understanding of law and justice. There is no such thing as a measure of justice or rightness apart from the civil law of a given society. Predicates such as ‘justice’, ‘right’ and ‘wrong’ obtain their meaning from the formulation of the civil laws in the specific commonwealth. Actions are right or wrong in accordance with positive, civil law, which amount to being right or wrong in accordance with a dominant power that punishes the wrong deed and permits the right. Therefore, it is impossible to compare the relative justness or rightness of different societies. As long as the sovereign power is able to uphold its civil laws, it is legitimate. Justice is an internal feature of actual positive law of a given society.

From a traditional perspective of natural law, the result of Hobbes’ analysis is highly astonishing. Typically, natural law would imply a universal and definite standard of justice by reference to divine commandments. Thus, in order to understand how Hobbes could assert such a position, we need to look closer at his understanding of natural right and natural law.

Natural Right and Justice according to Hobbes

Despite the fact that Hobbes denied any universal measure of justice or rightness across different sovereign states, he did advocate for a conception of natural right. In the first part of Leviathan Hobbes introduced a differentiation between natural right (jus naturale) and natural law (lex naturalis). He defined natural right as ”the liberty each man has to use his own power as he will himself for the preservation of his own nature,” (Hobbes 1651: 91). Natural law Hobbes characterized as ”a precept or general rule found out by reason by which a man is forbidden to do that which is destructive of his life or takes away the means of preserving the same,” (Hobbes 1651: 91). Hobbes’ definitions entail a disparity between natural right and natural law. The natural right is singular and consists in the liberty to self-preservation. Natural law, on the other hand, amounts to an instruction it would be wise to follow. Natural laws are rational guidelines thought up by human reason. Reason obliges the individual human to abstain from self-destructive behaviour and thus the natural laws can be said to unfold and elaborate on the natural right to self-preservation. According to Hobbes the main challenge consists in how to make mutual obligations between people constrain their individual actions.

The natural right to self-preservation is inalienable and constant in the state of nature as well as in any commonwealth. Thus, if the sovereign power of a commonwealth accuses or condemns a citizen to death, the sovereign power is right to do so. But the citizen is “not obliged not to resist,” (Hobbes 1651: 98). Natural right implies for each person “the right to save himself from death, wounds, and imprisonment, … and therefore the promise of not resisting force in no covenant transferred any right; nor is [it] obliging” (Hobbes 1651: 98). Hobbes thus argued that the natural right to fight for one’s own self-preservation overrules the obligation to obey the law. The natural right to self-preservation is inalienable. It implies that “there be some rights which no man can be understood by any words or other signs to have abandoned or transferred,” (Hobbes 1651: 93). In a functioning commonwealth the power of the sovereign is so much greater than the power of the single subject. The sovereign, consequently, can force its will upon the subject. However, if the sovereign power – as is the case in modern Western democracies – abides to a rule of law according to which an accused is innocent until proven guilty, it implies that a guilty citizen may be acquitted if evidence of his guilt has not been proven because he is “not bound to give” truthful testimony to a court (Hobbes 1651: 98).

The natural right to self-preservation legitimises the individual’s attempts to resist force. At the same time, it follows from the absolute power of the sovereign that “whatsoever he [the sovereign] does it can be no injury to any of his subjects; nor ought he to be by any of them accused of injustice,” (Hobbes 1651: 124). The sovereign produces the law and it is by the force of the law that the individual members of the commonwealth have escaped the state of nature with its condition of war. This entails that in order to obtain peace the individual subjects in a commonwealth have themselves authorised the demands of the sovereign. Being subject in a commonwealth amounts to “acknowledge himself to be author of whatsoever he [the sovereign] … shall act or cause to be acted in those things which concern the common peace and safety and therein to submit their wills everyone to his will,” (Hobbes 1651: 120). Hence, no actions of the sovereign can be unjust or an injury to the subject. Subjects may hold that the sovereign “commit[s] iniquity” (Hobbes 1651: 124) but they cannot charge the sovereign of injustice since the meaning of justice is defined by the sovereign’s law making.

Natural laws and the Political Contract

Natural law being only a precept or general rule does not contain the same permanence as natural right. Natural law indicates that the individual rationally carries an obligation to comply. From the general precept that it is forbidden to do that which is destructive of one’s own life Hobbes deduced nineteen laws of nature. The first law declares: “that every man ought to endeavour peace as far as he has hope of obtaining it; and when he cannot obtain it that he may seek and use all helps and advantages of war,” (Hobbes 1651: 92). Seeking peace is conducive to self-preservation. If there is no prospect of peace it is, however, rational for the individual to use all means of war. As we have seen, Hobbes held force and fraud to be cardinal virtues in war. Therefore, humans in the state of nature are left in a deadlock that can only be overcome by a common commitment to seek peace but peace seeking needs to be mutually obliging to be beneficial.

The second law of nature says “that a man be willing when others are so too as far as for peace and defence of himself he shall think it necessary to lay down this right to all things and be contend with so much liberty against other men as he would allow other men against himself,” (Hobbes 1651: 92). By way of the second law of nature the individuals in the state of nature can rationally establish a way of overcoming the condition of war. By reciprocally giving up on the natural right to everything the contracting individuals reciprocally win the possibility of peace and cooperation. In this act the individuals oblige each other. Thus the second law of nature points to the possibility of individuals reciprocally entering into a contract. The only problem is that there is no guarantee that the individuals fulfil their part of the contract. Only if individuals actually fulfil the contracts they enter can they gain from them. Therefore, Hobbes’ third law of nature says “that men perform their covenants made: without which covenants are in vain and but empty words and, the right of all men to all things remaining, we are still in the condition of war,” (Hobbes 1651: 100).

By rational thought it is possible to come to realise the beneficial outcome of mutual and reciprocal contracts. But reason only compels rational thought. Through reason we come to realise that we ought to comply with the obligations we freely have entered: “when a man had … granted away his right then he is said to be obliged or bound not to hinder those to whom such right is granted … from the benefit of it. And that he ought and it is his duty not to make void that voluntary act of his own. And that such hindrance is injustice and injury as being sine jure,” (Hobbes 1651: 92-93). Thus we realise that breach of a contract is unjust because it is – as Hobbes calls it – “an absurdity to contradict what one maintained in the beginning,” (Hobbes 1651: 93). Not to fulfil a contract one has freely committed oneself to, is to act against one’s own rationality; it amounts to a simple contradiction and as such it is absurd and irrational.

But reason is weak in comparison to the passions and physical actions. Hobbes discussed this difficulty by setting up a distinction between obligations that bind the inner court of the individual’s rationality or conscience (in foro interno) and obligations that bind the outer court of the individual’s actions or public conducts (in foro externo). Hobbes point was that “the laws of nature oblige in foro interno, that is to say, they bind to a desire they should take place. But in foro externo, that is, to the putting them in act not always. For he that should be modest and tractable and perform all he promises in such time and place where no man else should do so, should but make himself a prey to others and procure his own certain ruin contrary to the grounds of all laws of nature which tend to nature’s preservation,” (Hobbes 1651: 110). Even as a law of reason it cannot be required at all time to perform one’s duty and act in agreement with obligation. For in the state of nature others might not perform their part. If others do not comply, it turns my promise keeping into a self-delimitating or even self-destructive act not supported by the first law of nature. If everybody complies, the laws of nature are indeed “immutable and eternal. For injustice, ingratitude, arrogance, pride, iniquity … can never be made lawful. For it can never be that war shall preserve life and peace destroy it,” (Hobbes 1651: 110). But if men “call [these dictates of reason] by the name of laws, [they do it] improperly. For they are but conclusions or theorems concerning what conduced to the conservation and defence of themselves. Whereas law properly is the word of him, that by right had command over others,” (Hobbes 1651: 1651). For a precept to be a law it needs a force to back it.

The conclusion of Hobbes’ exposition is that laws of nature cannot be called laws in the proper sense of the term if they are not backed by force. Thus, there is no way that rational thinking alone can oblige humans to act in accordance with their promises or freely entered contracts. This further entails that the civil laws founded on the monopoly of force of the sovereign are the only possible representations of natural law. It is through the act of sovereign power that the “rules of property (or meum and tuum) and of good, evil, lawful, and unlawful in the actions of the subjects” are determined, (Hobbes 1651: 125). The right of the sovereign to judge good and evil, right and wrong implies that only the sovereign can resolve “controversies which may arise concerning law either civil or natural or concerning fact,” (Hobbes 1651: 125). At the end of the day it is the sovereign who decides the content of even natural law because natural law would be vain if its only trial took place in the inner conscience of each individual – the obligation in foro interno. As Hobbes plainly puts it: “covenants without the sword are but words and of no strength to secure man at all,” (Hobbes 1651: 117).

The transition from the state of nature to a commonwealth where civil laws can be enforced by threat of punishment requires the concentration of power in the hand of the sovereign. The rational manner of erecting such a sovereign power is through a reciprocal contract: “I authorise and give up my right of governing myself to this man or to this assembly of men on this condition that thou give up thy right to him and authorise all his actions in like manner,” (Hobbes 1651: 120). The contract will be enforced because all individuals give up their rights and transfer them to the external man made sovereign who thereby “had the use of so much power and strength conferred upon him that by the terror thereof he is enabled to conform the wills of them all to peace at home and mutual aid against their enemies abroad,” (Hobbes 1651: 120-21). Thus the contract brings about a transformation of the multitude of individuals into one person governed by the will of the sovereign. This association between all individuals through the law is what Hobbes calls the Leviathan, the mortal god of law ruled society.

According to Hobbes the only inalienable natural right is the right to self-preservation that, nonetheless, may justly be subdued by the sovereign. Any rights the individual subjects of a commonwealth may enjoy are only bestowed upon them by the civil law. The laws are the making of the more or less capricious will of the sovereign. Hobbes put forward a political philosophy that rests on the natural right to self-preservation as an inalienable right and at the same time delivers all possible power to the sovereign who establishes right and wrong, just and unjust. The autocratic rule of the sovereign is normatively legitimised by the contra-factual reference to the much worse situation of living under the condition of war in the state of nature. The civil law enables subjects to be accountable to each other and leaves them in a state of constraint. The only real liberty in the commonwealth according to Hobbes “depends on the silence of the law. In cases where the sovereign has prescribed no rule, there the subjects have the liberty to do or forebear according to his own discretion,” (Hobbes 1651: 152).

In connection with the question of the normative validity of human rights Hobbes’ political philosophy only accepts one human right, namely the inalienable right to self-preservation. It is inalienable because a negation of the right to self-preservation implies a negation of the nature of the human being by simple annihilation of the possibilities of continuous living. This is the meagre positive result. Hobbes’ political philosophy clearly does not have its main significance as proposing positive arguments for human rights. It has, however, immense significance by posing the problem. Hobbes discussed the meaning of natural rights, natural law and obligations exempt from the idea that these are binding because of divine commandment. Consequently, reading Hobbes’ political philosophy forces us to consider what source of authority rights, laws and obligations might have. If we are not satisfied with Hobbes’ answer nor the tradition of natural law reaching back to Augustin that the final source of authority rests in the divine commandments of God, an alternative argument as to why humans comply with promises and laws should be supplied. Rousseau tried to formulate such an alternative.



Rousseau turns the Table on the Relation between Power, Obligation and Right

In the Social Contract Rousseau famously declared “Man is born free; and everywhere he is in chains,” (Rousseau 1762: 181). Human existence in societies paradoxically amounts to the enslavement of the naturally free human being. Hobbes’ recommendation that social order be established by instituting a monopoly of force in the hands of the sovereign amounts in Rousseau’s mind to simply enslaving individuals: “Force is a physical power, and I fail to see what moral effect it can have. To yield to force is an act of necessity, not of will – at the most an act of prudence. In what sense can it be a duty?” (Rousseau 1762: 184). Rousseau was trying to answer the same question as Hobbes, namely how humans come to adhere to laws and what impels us to comply with obligations. But to answer that someone met the terms of a law or complied with an obligation because she was forced to do so or feared punishment was not adequate according to Rousseau: “force does not create right” and furthermore, “we are obliged to obey only legitimate powers,” (Rousseau 1762: 185). Thus the question Rousseau posed was how legitimate authority can be established. And thereby he maintained that justice and legitimacy amount to more than merely civil laws backed by sufficient physical enforcement: “it is an empty and contradictory convention that sets up, on the one side, absolute authority, and, on the other, unlimited obedience,” (Rousseau 1762: 186). There must be a standard of justice and legitimacy to discern the “difference between subduing a multitude and ruling a society,” (Rousseau 1762: 189). This standard Rousseau found in the original social compact which transformed the aggregation of subdued individuals into the association of a people working for the public good.

The social compact consists in its essence in a reciprocal contract between individuals in accordance with the following: “Each of us puts his person and all his power in common under the supreme direction of the general will, and, in our corporate capacity, we receive each member as an indivisible part of the whole,” (Rousseau 1762: 192). The idea of contracting in Rousseau’s original compact is parallel to Hobbes’ social contract. The main difference being that Hobbes thought the contracting individuals should hand over the sovereignty to an external ruler, where Rousseau argued that the social compact establishes legitimate authority by handing over the sovereignty to the general will of the people produced by all contracting individuals. For Hobbes the social contract entailed the establishment of a society which he thought of as an artificial and mortal god, that constituted its own standard of justice and was legitimated because it freed the individuals from the state of nature. The social compact for Rousseau created “a corporate and collective body, composed of as many members as the assembly contains voters and receiving from this act its unity, its common identity, its life, and its will,” (Rousseau 1762: 192). As such it contained the answer to the question of how to legitimate authority: “the sovereign, being formed wholly of the individuals who compose it, neither has nor can have any interests contrary to theirs,” (Rousseau 1762: 194).

Sovereignty in the social compact amounts to the establishment of a general will of the people. And this implies that “those associated in it take collectively the name of people, and severally are called citizens, as sharing in the sovereign authority, and subjects, as being under the laws of the state,” (Rousseau 1762: 193). Thus, Rousseau argued that we are obliged to comply with laws and obligations that are in conformity with the general will. The legitimacy of state authority, of sustaining civil laws, depends upon the double role of the individual members of the state being both lawgivers as part of the sovereign expressing the general will and subjects who are forced to comply with the law. The standard to measure the justice and legitimacy of a given state is thus to ask whether the individuals living under state rule also themselves have formulated the ideal of its laws.

Rousseau turned Hobbes argument for grounding the autocratic rule of the sovereign on a social contract upside down. For Rousseau it was clear that “since no man has a natural authority over his fellow, and force creates no right, we must conclude that conventions form the basis of all legitimate authority among men,” (Rousseau 1762: 185). Therefore, Rousseau’s argument for the social compact amounted to establishing a moral standard to judge whether state authority in any given society lives up to the standard of justice. Legitimate authority stems from the social compact because it assures the self-government of the people. In order to pull such an argumentation through, Rousseau presented an alternative view of the state of nature. His political philosophy rested on the assumption that humans in a state of nature were more or less indifferent towards each other and only the want of plenty of natural resources made them find together in societies. Where Hobbes operated with two possible circumstances under which humans could exist, namely the condition of war in the state of nature and rule governed society, Rousseau projected three: the state of nature and the different states of illegitimate and legitimate societal life. He imagined the state of nature as a state of “indolence … the happiest and most stable of epochs,” (Rousseau 1755: 91) and argued that the real predicament was the state of enslavement of human beings under illegitimate states. According to Rousseau the passage from the state of nature to societies indicated a thorough transformation: “the voice of duty takes the place of physical impulses and right [takes place] of appetite … [so that the human being] find that he is forced to act on different principles, and to consult his reason before listening to his inclination,” (Rousseau 1762: 195). However, this transformation of the human being from a “stupid and unimaginative animal” into “an intelligent being and a man” (Rousseau 1762: 196) was abused in the authoritarian rule of most states where the free human being “everywhere … is in chains” (Rousseau 1762: 181).

Rousseau’s main ambition consisted in producing an argument that could make the states legitimate. His argumentation was directed at a future social contract which should remedy the faults of existing states where force overrules civil and moral rights. According to Rousseau it was simply nonsense to assume that force in itself could explain what a right is, since force cannot explain obligation: “As soon as it is possible to disobey with impunity, disobedience is legitimate … But what kind of right is that which perishes when force fails? If we must obey perforce, there is no need to obey because we ought; and if we are not forced to obey, we are under no obligation to do so,” (Rousseau 1762: 184).

Rousseau’s ideal of the original social compact which would create an association of citizens who by self-governance attained civil and moral liberty was built on a completely different conception of justice, law and right than Hobbes had purported in Leviathan. According to Rousseau moral liberty is generated by the ability to comply with self-imposed laws that correspond with the collective justice and utility of an associated people. The collective justice involves basic rights of all citizens to partake in producing the law under which the same citizens as subjects are subdued. Thus, Rousseau’s ideal of justice is procedural and his conception of rights relates to the formal roles of the citizens as participants in the production of laws. An important insight from Rousseau which spurred the French Revolution and was carried over to the French Declaration of Human and Civic Rights was that rights germinate out of a people’s free self-governance and sovereignty.

The French Declaration and its Ambiguous Conception of Law

In the beginning the Social Contract Rousseau pointed out that he was no legislator for had he been that “I should not waste time in saying what wants doing: I should do it, or hold my peace,” (Rousseau 1762: 181). The idea of changing the fundamental laws in order to make society adhere to the ideals of justice mounted by Rousseau can be read as the slogan for numerous subsequent political changes in Europe and Northern America. However, I do not want to argue that Rousseau’s Social Contract was the prime mover of the political changes.[4] Rather I should like to point out how aspects of Rousseau’s political philosophy were incorporated in the French Declaration of Human and Civic Rights along with other –and sometimes – conflicting conceptions.

Firstly, the formation of the National Assembly in July 1789 can in itself be seen as an attempt to change the French state from authoritative monarchical sovereignty to self-governance of the people thereby changing the political system in accordance with Rousseau’s ideal of legitimate political authority. As the “representatives of the French People … [the] National Assembly … resolved to set forth, in a solemn Declaration, the natural, unalienable and sacred rights of man …,” (French Declaration). However, already in the description of the rights of man the National Assembly departed from a strict Rousseauian position. For Rousseau, legitimate political law was based on human artificially construed conventions and thereby neither natural nor sacred. According to Rousseau the rights of man could be understood as inalienable in the sense that any breach with these would make the political authority illegitimate. As the National Assembly described the rights of man as natural and sacred they might have wanted to point to the tradition of divine natural law. As we shall see in the case of Olympe de Gouge this tradition was reinterpreted by proponents of the French Revolution as a justification of the changes in state rule. Divine natural right was thus interpreted as a standard of justice which buttressed the revolutionary political actions. The reference to natural and sacred rights can be understood as way of broadening the scope of the possible source of legitimacy within the Declaration.

Article 6 contains the most conspicuous reference to Rousseau’s political philosophy as it states that “the law is the expression of the general will.” The National Assembly follows Rousseau in claiming that the legitimacy of the law stems from the people’s “right to take part, personally or through their representatives, in its making,” (French Declaration: art. 6). The mirror image of article 6 is article 12 that declares the necessity of “a public force” to guarantee the rights of man. The public force is “established for the benefit of all, and not for the particular use of those to whom it is entrusted,” (French Declaration: art. 12). Thus, the Declaration solves the problem of the legitimacy of public force by underlining that force should only be used in ways that corresponds to the public good and the command over the public force should be placed in the hands of the lawgivers. Thereby the Declaration underscored that the use of force needs to have public acceptance as its legitimating source. This is clearly in keeping with Rousseau’s conception of how laws become morally binding by the act of self-governance. The legitimacy of laws makes it legitimate to utilise force to uphold the same laws. Thus, the Declaration, Hobbes and Rousseau all agreed that public force is a necessary element of any law governed state. The difference consists in the emphasis Rousseau and the Declaration put on the procedure of law making. If laws stem out of the self-governance of the people – or according to the Declaration their representatives – it is justified to use force to compel the subjects to abide to the laws. Hobbes thought, on the other side, that force was a necessary prerequisite of any laws and the ability to create a power monopoly granted any ruler legitimacy.

The article which poses the greatest difficulty to align with Rousseau’s political philosophy is article 4. It states: “Liberty consists in being able to do anything that does not harm others; thus, the exercise of the natural rights of every man has no bounds other than those that ensure to the other members of society the enjoyment of these same rights. These bounds may be determined only by Law,” (French Declaration: art. 4). This definition of liberty could have been taken directly from Hobbes as he stated that liberty amounts to the silence of the law. In contradiction hereto Rousseau differentiated between “the natural liberty and an unlimited right to everything he [the human] tries to get and succeeds in getting” in the state of nature, on the one hand, and the “civil liberty and the proprietorship of all he possesses” which is gained in society, on the other. If the society is just Rousseau claimed that the human being also “acquires moral liberty, which alone makes him a truly master of himself; for the mere impulse of appetite is slavery, while the obedience to a law which we prescribe to ourselves is liberty,” (Rousseau 1762: 196). For Rousseau moral and civil liberty were tied up to the procedure of law making of the general will which all subjects take part in. Thus, to be free, according to Rousseau, is to live in accordance with one’s own laws. Liberty is not contrary to law, rather just laws are the expression of human liberty. The Declaration, on the other hand, seemed to follow the tradition of thinking about liberty to which Hobbes belonged. Hobbes’ view was that “in all kinds of actions by the law pretermitted men have the liberty of doing what their own reasons shall suggest for the most profitable to themselves,” (Hobbes 1651: 147). The only addition hereto by the Declaration was that these free actions that concern matters which the law has not regulated should not harm others. This conception of liberty, the absence of coercion from the law, is in blatant opposition to Rousseau’s ideal of moral liberty being the act of making one’s actions conform to the law articulated by one self and all other members of the general will. Rousseau thought of moral liberty as a rational ability to be self-governing and to be in accordance with the other self-governing citizens, whereas Hobbes and the National Assembly thought of liberty as free choice outside of the reach of any law.

The discussion of articles 6 and 4 points to an ambiguous conception of law in the Declaration. On the one hand the law is viewed as an expression of the general will and thereby legitimised as a law which justly obliges all subjects because the same subjects are citizens who partake in the process of law making by the general will. On the other hand, liberty is viewed as the exemption from the ruling of the law. This implies an understanding of the subjects of the state as individuals who are coerced by the law and free in those actions that stand outside of the scope of the law. Hobbes would agree with this view. But it is difficult to unite it with the ideal that laws are obliging because the subjects themselves are the authors of these laws. It is, of course, possible to argue that human beings simultaneously can be subjects and citizens who produce and oblige themselves to the law by taking part in the sovereignty of the state and individuals concerned with their private interests in all those matters of life where the law is silent. Such a view implies a combination of the procedural understanding of justice put forth by Rousseau, namely that laws become just if they are in concordance with the general will of the people, with an understanding of the human being as more than a political law maker and law abider, namely an individual with private ideas of how to live. These private ideas are protected as individual rights as long as they do not harm others. Though it might be possible to conjoin these views the Declaration was not exempt from harsh criticism.

Two Different Criticisms by Olympe de Gouge and Jeremy Bentham

Bentham was no supporter of the Declaration of Human and Civic Rights. Concluding his overview Bentham wrote that the fundamental principles of government put forth in the Declaration amounted to “execrable trash,” (Bentham 1795: 66). He compared the misconception of French politics in the Declaration with the leading role of French chemistry at his time. Bentham did not develop further why he thought France leading in chemistry but probably he hinted at the revolutionising discoveries of Antoine Lavoisier (1743-1794). Bentham wanted to underline a procedural difference between chemistry and politics in France. So apart from the fact that the rest of Europe unanimously credited France and Lavoisier for important discoveries within the field of chemistry, while the French Revolution and its Declaration of Human and Civic Rights were greatly disputed across Europe, Bentham pointed to a problem of how the French approached the questions of politics. Bentham wrote: “Comparatively speaking, a select few applied themselves to the cultivation of chemistry – almost an infinity, in comparison, have applied themselves to the science of legislation. … In chemistry there is no room for passions to step in and to confound the understanding – to lead men into error, and to shut their eyes against knowledge: in legislation, the circumstances are opposite,” (Bentham 1795: 66-7).

According to Bentham it was a serious mistake to let political decisions and the writing of legal documents be in the hands of the people: “What, then, shall we say of the system of government, of which the professed object is to call upon the untaught and unlettered multitude (whose existence depends upon their devoting their whole time to the acquisition of the means of supporting it,) to occupy themselves without ceasing upon all questions of government (legislation and administration included) without exception – important and trivial, – the most general and the most particular, but more especially upon the most important and most general – that is, in other words, the most scientific – those that require the greatest measure of science to qualify a man for deciding upon, and in respect of which any want of science and skill are liable to be attended with the most fatal consequences?” (Bentham 1795: 67).

Bentham put forth an ideal of politics, legislation and administration as a science in need of skilled and learned scientists to perform it. This ideal stands in profound opposition to the ideal of self-governance of the people. The Rousseauian ideal claims that a law attains legitimacy and is thus normatively binding if the subjects of the law also – as citizens – are the authors of the law. Bentham, in contradistinction, argued that National Assembly, being mere amateurs and an “untaught multitude”, was not equipped to formulate laws. Thus Bentham argued that he did not “mean to attack … this or that country – not this or that citizen – not citizen Sieyes or citizen anybody else, but all anti-legal rights of man, all declarations of such rights. What I mean to attack is, not the execution of such a design in this or that instance, but the design itself,” (Bentham 1795: 68).

The criticism of Bentham can be boiled down to two main faults in the design of the rights of man: (1) they were not formulated by the legal expert, or as he called it, “the rational censor”, but by an “anarchist”, (Bentham 1795: 50) and as such they amounted to various verbal inconsistencies; (2) the conception of natural rights anterior to the establishment of governments is nothing but “nonsense upon stilts,” (Bentham 1795: 53). In the following I shall focus on (2). Bentham almost echoed Hobbes as he pointed out that “we know what it is for men to live without government … we see it in many savage nations, or rather races of mankind … no habit of obedience, and thence no government – no government, and thence no laws … liberty, as against regular control, the control of laws and government – perfect; but as against all irregular control, the mandates of stronger individuals, none … In this state …, judging from analogy, we, the inhabitants of the part of the globe we call Europe, were [at a time]; – no government, consequently no rights … no legal security – no legal liberty: security not more than belongs to the beasts – forecast and sense of insecurity keener – consequently in point of happiness below the level of the brutal race,” (Bentham, 1795: 53). What Bentham depicted was similar to the state of nature envisioned by Hobbes. In accordance with Hobbes, Bentham underlined that right was established by law which attained its power from government that rests upon the monopoly of force: “All governments that we have any account of have been gradually established by habit, after having been formed by force,” (Bentham 1795: 55).

In his rejection of natural rights Bentham also came to reject the natural right to self-preservation which Hobbes had maintained. According to Bentham “the language of reason and plain sense” claimed that “as there is no right, which ought not to be maintained so long as it is upon the whole advantageous to the society that it should be maintained, so there is no right which, when the abolition of it is advantageous to society, should not be abolished,” (Bentham 1795: 53). Thus, the formulation of rights and the decision whether a right should be maintained is flexibly judged in connection with the advantage of the specific right to society. But the question, which Hobbes and Rousseau were both struggling with, remains unanswered by Bentham: who decides what is advantageous to society? Bentham hints at an answer by pointing out that the legal scientists should formulate the law. But do they know what will be more advantageous for society? According to Hobbes the responsibility of deciding what is advantageous to society was – in the political commonwealth – delivered to the sovereign by the people who rationally subdued themselves. But at the same time the individual kept her natural right to self-preservation. Even though this right could be overruled by the sovereign it still posed a restrain to the rightfulness of society’s usage of the individual. Rousseau, on the other side, answered the question of what rights are indispensable by pointing out that rights can only legitimately be obliging if they are formulations of the general will of a sovereign people. Therefore, “as soon as [a people] can shake off the yoke, and shakes it off, it does even better,” (Rousseau 1762: 181). It is apparent for Rousseau that most governments succeed in forcing the people, but as long as they only do this by way of force, the individuals are not morally obliged to compel – they are simply forced to do so.

Rousseau would probably have applauded the Declaration for formulating the requisite basic rights that enable the general will of any sovereign people to act as law maker. But, as Olympe de Gouge pointed out in her Declaration of the Rights of Woman, there was a discrepancy between the universally formulated ideals of the Declaration and its actual scope. Despite the fact that the Declaration was meant to construe a just foundation for government, de Gouge started her alternative declaration with the question: “Man, are you capable of being just? It is a woman who poses the question,” (de Gouge 1791: 89). The injustice pointed out by de Gouge was the manifest inequality between men and women. The National Assembly was an assembly of men and it was only upon men that political rights were bestowed – and only those of economic independence and mature age.

In her argument for the injustice of the exclusion of women from political rights, de Gouges brought a conception of divine natural rights into play. She asked men “what gives you sovereign empire over my sex? Your strength? Your talents? Observe the Creator in his wisdom; survey in all her grandeur that nature with whom you seem to want be in harmony with, and give me, if you dare, an example of this tyrannical empire. Go back to animals, consult the elements, study plants … and distinguish, if you can the sexes in the administration of nature. Everywhere you will find them mingled; everywhere they cooperate in harmonious togetherness … Man alone has raised his exceptional circumstances to a principle. … He wants to command as a despot a sex which is in full possession of its intellectual faculties; he pretends to enjoy the Revolution and to claim his rights to equality in order to say nothing more about it,” (de Gouge 1791: 89).

de Gouge’s argument by way of the conception of natural and divine rights can be read to underline and point out that the injustice of keeping women exempt from political rights amount to a blatant contradiction within the aims of the French Revolution. If the National Assembly thought of itself as restoring or creating justice in an unjust political order, they themselves instituted injustice by way of their suppression of women. This inequality between the sexes was, so seems de Gouge’s argument to run, not part of the natural, inalienable and sacred rights of humanity. Thus it is important for the weight of de Gouge’s argument that it is not only a question of construing a general will of the people to be producers of the law. If this was the only normative source of political rights it would be possible – as have conservatives throughout history done – to create an argument that would have women represented in political deliberations by their fathers or husbands. Therefore, it was more transparent that the lack of women’s political rights was unjust, as de Gouge argued, if this lack was a corruption of the order of the Creator and of Nature.

However, as de Gouge wrote her alternative Declaration of the Right of Woman as a mirror image of the Declaration of the National Assembly, she furthermore pointed out how the exclusion of women from law making amounted to a contradiction within the concept of law. Article 10, which in the Declaration of the National Assembly declared the right to free speech (“No one may be disturbed on account of his opinions…”), de Gouge formulated so that it displayed inconsistency in the Declaration of the National Assembly: “No one is to be disquieted for his very basic opinions; woman has the right to mount the scaffold; she must equally have the right to mount the rostrum, provided that her demonstrations do not disturb the legally established public order,” (de Gouge 1791: 91). To force a man to comply with a law he has no possible occasion to influence is the basic definition of illegitimate ruling according to Rousseau. de Gouge pointed out that this was exactly the situation of women as long as they were not equal citizens.

The criticisms of Bentham and de Gouge point to an underlying issue of how to argue for the normative validity of human rights that has continuous importance. If we reject the idea that human rights can be more than legal restrictions construed by existing political powers, as results from Bentham’s line of reasoning, it becomes difficult to block arguments that claim it to be advantageous for nation states to discard with international law concerning human rights of, for example, refugees. If, on the other hand, we amplify our arguments as to the inalienability of human rights by reference to a divine order of either Nature or God, then the argument might have the opposite effect. It is easy for nonbelievers to discard the argumentation of believers as metaphysics. And the discussion within believers can be moved from the question of rights to the right interpretation of the commandments of the Creator, just as the discussion of the order of Nature can be bent to concern whether there really is harmony between animals or other parts of nature. Therefore, I want to argue that the only feasible route to defend human rights is procedural. By pointing out that we through the procedure of collective deliberation can construe arguments for certain restraints and certain rights as the result of weighing between principles of justice, equality and utility for all humans we can also give an explanation and justification of human rights as the best possible explanation of the source of obligation of laws, if it is not simply force. Laws are morally obliging and can be stated as human rights, if everybody can agree to their justice seen from the perspective of the common good they further while acknowledging personal autonomy.


Bentham 1795: “Nonsense upon Stilts”, in Nonsense upon Stilts. Bentham, Burke and Marx on the Rights of Man, ed. Waldron, Meuthen, 1986

Declaration of Human and Civic Rights of 26 August 1789, internet page: http://www.conseil-constitutionnel.fr/conseil-constitutionnel/root/bank_mm/anglais/cst2.pdf

de Gouge 1791: “The Declaration of the Rights of Woman” in Women in Revolutionary Paris, 1789-95, ed. Levy et al., University of Illinois Press, 1981

Hobbes 1651: Leviathan, ed. Tuck, Cambridge University Press, 1996

Rousseau 1755: “What is the Origin of Inequality among Men, and is it Authorized by Natural Law?” in The Social Contract and Discourses, transl. Cole, updated Jimack, The Everyman Library, 1973

Rousseau 1762: “The Social Contract” in The Social Contract and Discourses, transl. Cole, updated Jimack, The Everyman Library, 1973


[1] The American Declaration of Independence from 1776, of course, precedes the French Declaration as a legal document built on the idea that unalienable rights of humans make up the fundament for the state and its legislation.

[2] The self-appointed national assembly drafted and confirmed the Declaration of Human and Civic Rights in August 1789 as a legal document to steer the fundamental rights of the French people and legitimate a new parliamentary system of state legislation. The Declaration became the preamble of the constitution of the French constitutional monarchy lasting from October 1791 to September 1792. With the announcement of the French republic in 1792 and the abandonment of the monarchy the Declaration underwent small changes but remained an important legal document. However, the 1793 reign of terror, the increasing number of executions, and the incessant political turmoil undercut the Declaration as well as parliamentary rule and as Napoleon finally in 1804 announced himself emperor of France the Declaration of Human and Civic Rights was completely abandoned.

[3] The text was not published until 1816 but is expected to have been written in 1795 – see Jeremy Waldron, Nonsense upon Stilts, Methuen, New York, 1987, p. 4.

[4] In his famous 1895 study Georg Jellinek argued that “the Declaration of August 26, 1789, originated in opposition to the Contrat Social. The ideas of the latter work exercised, indeed, a certain influence upon the style of some clauses of the Declaration, but the conception of the Declaration itself must have come from some other source,” Jellinek, The Declaration of the Rights of Man and Citizen. A Contribution to Modern Constitutional History, transl. Max Farrand, New York: Henry Holt and Company, 1901, p. 12. Jellinek successfully proved the immense impact of various North American sources on the wording of the French Declaration of Human and Civic Rights.