Forgiveness withheld

POLITICAL FORGIVENESS Abstract: Pardons, amnesties, truth and reconciliation commissions, and official apologies; it is commonplace to consider such endeavors indispensable to achieving political forgiveness. In my dissertation, I problematize the historical roots of political forgiveness to demonstrate the insufficiency of contemporary measures to address past wrongs through such methods. I argue that such methods are portrayed as reparative when in fact they are mere palliative measures. I defend this claim by exploring the roles forgiveness and mercy have fulfilled in western political thought and argue that sovereign authorities have long used and abused forgiveness as a practice to pacify subject populations, seize opportunistic temporal erasures, and erect facades of faux mercy. I claim the centrality of the relationship between sovereignty and forgiveness is that the latter enables the reproduction of the conditions and exercise of sovereign power. Considering this, how should we make sense of calls for reconciliation when these calls are detached from and in conflict with the roles of forgiveness and mercy as imagined in western thought? Can political forgiveness serve an alternative function to the palliative and discipling one I discover and defend? I contend that there remains the potential that political forgiveness might also offer a reparative function. POLITICAL FORGIVENESS Forgiveness withheld: A critique of the sovereign prerogative By Paul Londrigan February 8, 2022 Submitted to The New School for Social Research of The New School in partial fulfillment of the requirements for the degree of Doctor of Philosophy. Dissertations Committee: Dr. Banu Bargu Dr. Rafi Youatt Dr. Daniel Loick Dr. Joan Scott POLITICAL FORGIVENESS Table of contents Introduction – a youthful conviction A most frustrating denial – pg. 1 Grounding the problematic – pg. 6 Critique of the contemporary paradigm of political forgiveness – pg. 11 Conceptual lexicon – pg. 31 Methodological commitments – pg. 41 The chapters ahead – pg. 48 Raising the stakes – pg. 60 Chapter I. Jean Bodin – political forgiveness and the power of life and death In spite of sovereignty – pg. 62 Sovereignty, from limited to absolute – pg. 64 Sovereignty’s specificity – pg. 73 Pardon and prerogative – pg. 76 Of kings, tyrants, and confessors – pg. 81 An exception and a normative critique – pg. 91 Conclusion – pg. 96 Chapter II. Thomas Hobbes – fear and forgiveness Building on Bodin – pg. 99 Hobbes in history – pg. 102 Fear – pg. 105 II POLITICAL FORGIVENESS The sixth law of nature – pg. 112 A question of equity – pg. 119 The sovereign power of forgiveness – pg. 124 Radicalization through rights – pg. 131 An anti-juridical alternative – pg. 134 Chapter III. Locke –(re)discovering remittance and reparation A change in trajectory – pg. 142 Man, context, text – pg. 148 Resistance and prerogative – pg. 150 The need for tolerance – pg. 154 Power versus authority – pg. 158 The ‘other’ of forgiveness – pg. 162 Misunderstood readings – pg. 171 Of affirmations and injunctions – pg. 180 Chapter IV. Beccaria – retribution, reform, repudiation Displacing mercy – pg. 186 The Beccaria of On Crimes – pg. 190 Beccaria’s social contract – pg. 192 Political Sacrifice – pg. 200 Rule of law – pg. 205 Inconsequential logic – pg. 209 III POLITICAL FORGIVENESS Beyond insufficiency – pg. 213 Rather alienation – pg. 219 Forgiveness and repudiation – pg. 224 Conclusion – pg. 229 Chapter V. Machiavelli – recompense, reconciliation, and resistance A different approach – pg. 233 Tumultuous forgiveness – pg. 236 The lesson of Machiavelli – pg. 239 Political opportunity and forgiveness – pg. 243 Machiavellian mercy – pg. 247 Realism and reconciliation – pg. 249 Dialectics of conflict and forgiveness – pg. 252 Forgiveness in The Florentine Histories – pg. 257 Forgiveness as a restive power – pg. 262 The nameless ciompi – pg. 272 Chapter VI. Towards a reparative politics Reflections – pg. 280 Forgiveness withheld – pg. 282 A reparative possibility – pg. 285 Destituent potential – pg. 290 Concluding thoughts – pg. 292 IV POLITICAL FORGIVENESS “You have heard that it was said, ‘Eye for eye, and tooth for tooth.’ But I will you, do not resist an evil person. If anyone slaps you on the right cheek, turn to them the other cheek also. Mathew 5:38-40 Introduction - a youthful conviction A most frustrating denial: Mathew 5:38-40 is widely understood as a Christian invocation that one ought to be forgiving. I was brought up in the Roman Catholic church and as early as I can remember I had a different interpretation of this passage from Mathew’s Gospel. In this passage, Mathew is remembered and cited most often for those things that he says most explicitly. Mathew says that we should not resist an evil person, he says that we should reject vengeance, and finally, he instructs us that if we are stuck on one cheek to turn the other cheek, presumably so that it may be struck too. For my part, I have always been more interested in those things that Mathew did not say in this passage. Mathew does not explicitly say that we should forgive an evil person or an assailant Nor does Mathew specifically explain why we are to turn the other cheek; it is not made clear that one ought to do so in deference to one’s assailant. I do not think my understanding of the message in Mathew 5:38-40 could be described as subversive, but it certainly is not orthodox either. Where others read Mathew as counseling an act of submission, I understand the turn of the cheek as a practice of defiance. For me, turning the cheek was precisely an act of resistance; resistance to forgiving those who would continually assail you. In the practice of turning the cheek, guarding pg. 1 POLITICAL FORGIVENESS my forgiveness, and holding it in abeyance, I found a unique capacity to subvert asymmetries of power (sometimes abuses of power) in social relationships…and it felt good. I propose that this unique power is grounded in denying forgiveness to one’s transgressor, which I understand to be something that they not only desire as a token of their moral victory, but require to establish their superior position. This dissertation is about political forgiveness, it investigates the theoretical tradition that has assigned forgiveness its functions and roles, and it inquires whether there are political practices that are analogous to my heterodox reading of Mathew. It may seem trite to inquire into political forgiveness at this moment. After all, we are not living in a particularly forgiving moment in political history. It might even seem as though the vast majority of people have adopted, in some way, my heterodox reading of Mathew. This would be too simple an understanding of my interpretation of Mathew, for in the contemporary rejection of forgiveness I read an express desire for revenge. My reading of Mathew insists on withholding forgiveness, not on exacting vengeance. It enables me to deprive my opponent his power over me. Agonism, antagonism, conflict, contestation, oppression, and repression abound in every corner of political life. Is this condition really unique, is this moment really that different from any other, has there ever been a moment that could appropriately be called forgiving? It would seem that at best, we can point to examples of moments or acts of political forgiveness rather than a span of time defined by an orthodox understanding of the teaching of Mathew’s gospel. Yet if we endeavor to consider these tumultuous features of the political realm more holistically, we gain a different understanding of political life. This is an understanding that attends not only to agonism and antagonism, conflict, and contestation but to their co-constitutive features as well. These are: conciliation, forgiveness, mercy, reconciliation, and reparation. This is what makes this political moment unique and pg. 2 POLITICAL FORGIVENESS different from others. These examples of political forgiveness today have opened new conversations about forgiveness. Is there a practice of political forgiveness that can be appropriate to emancipatory politics? I believe the answer to these questions is yes. Take for example the public fascination with two political stories that roiled American politics in 2020. These were the very different stories of how President Donald Trump used his pardon power and the nationwide protests for racial justice in America. In the waning days of his presidency, Donald Trump did something that has become a tradition in American politics, he used his prerogative of pardon to commute or forgive federal criminal sentences. Trump granted one hundred and forty-three last-minute commutations and full pardons. Historically, there is nothing unusual about presidents mounting last minute displays of forgiveness as they leave office, However, Trump wielded his prerogative of pardon in a manner that seemed to be inspired more by spite for his enemies than mercy or forgiveness for the recipients of his ‘grace.’ This was indeed the claim of his critics. They said the pardons Trump granted were not authentically merciful, but were rather crass examples of cronyism. The problem with that critique is that it is simply wrong, because it failed to grasp the function of political forgiveness. What Donald Trump did was precisely an exercise of political forgiveness in the classical sense. As the memory of Donald Trump faded from the public’s immediate consciousness, so too did the hysteria over his use of the pardon power. As that hysteria faded so did the opportunity for the public to interrogate the roles of political forgiveness. How should one go about juxtaposing the explicit use of political forgiveness as represented in the case of Trump’s pardons against the national reckoning for racial justice, a story which does not appear to have an explicit referent for political forgiveness? I contend that the pg. 3 POLITICAL FORGIVENESS presumed absence of political forgiveness in this instance is but another missed opportunity. In this dissertation, I argue that the surreptitious power of political forgiveness is found not only in its express utilization but in its being held in potential as well. Might we understand the protests for racial justice through the paradigm of my heterodox reading of Mathew? If so, I think it is inadequate to attempt to give an account of the protests of 2020, or other protests in the future, without taking stock of the role of political forgiveness in them. After all, my understanding of Mathew suggests a role for forgiveness, a defiant one to be sure, but a role nonetheless. I think one way we can understand the protests (ostensibly but not exclusively inspired by the police killing of George Floyd) that erupted across the country in the summer of 2020 is that they were conditioned by the potential and possibility for political forgiveness. The argument I develop in this dissertation aims to show that those who were (are) engaged in the fight for criminal justice reform, police abolition, racial justice, and true political representation, are enabled and empowered by the very same conditions of political forgiveness that vest the president with the pardon power. This is how I justify juxtaposing these two seemingly disparate stories. We should understand the protests for racial justice in America as a nationwide harbinger and an emerging political consciousness of the potential power of denying those forces that would continue to oppress and repress communities of color, and their allies, the recuperative power of forgiveness. I propose that it is through this denial that the public at large, as well as local, state, and national authorities began to feel a force pressing them to face up to the structural inequities and injustices that have plagued the country for too long. One clue to the potentially subversive power of political forgiveness is found in the fact that in both of these stories the dispensation or withholding of forgiveness was assessed as a threat. Whereas Donald Trump’s use of his prerogative of forgiveness represented an implicit?? threat, it was the participants in the protest pg. 4 POLITICAL FORGIVENESS movements refusal to grant forgiveness that their opponents identified as an express threat. The former threat, however hollow, was apparently directed at the institution and norms that undergird the presidency. The latter threat, as I understand it was expressed as a fear that not only were the protests licentious and lawless, but their demands, to abolish or defund the police, would also result in a generalized social lawlessness. Critics argued protestors should exercise mercy, quell their rage, and adopt a forgiving attitude towards the foot soldiers of the structures of oppression. How should these two stories be understood in theory? Taken together, under the heading of political forgiveness, they represent the classical understanding of political forgiveness theorized by the great thinkers of modern political thought: Jean Bodin, Thomas Hobbes, John Locke, Cesare Beccaria, and Nicollo Machiavelli. To these thinkers, Donald Trump’s pardons would appear as a clear expression of the sovereign’s prerogative. In the political unrest that was stoked by the ‘mercy’ of the law that was the ground for countless police acquittals, in the resistance prompted by Trump’s pardons, and in the protests spurred on by the hope of leniency or pardon we can read the anxiety, preoccupation, and polemics of those classical thinkers. In the delight with which Donald Trump’s pardons were welcomed by his supporters, I see an expression of the “palliative power” these thinkers attributed to forgiveness; for it was the rage and disgust that Trump’s opponents expressed at his dispensations of forgiveness that so satisfied his supporters. Finally, in the as-of-yet unrealized reckoning with racial injustice, I see the missed opportunity of the potential of political forgiveness held in abeyance, a secret potential waiting to be discovered in these thinker’s texts. The contribution that I hope to make with this dissertation is not limited to theoretical inquiry. I am expressly interested in the question of what practices of political forgiveness might be theorized out of the experiences of those who protested for racial justice in the past, and pg. 5 POLITICAL FORGIVENESS continue to do so today. Can the practice of withholding forgiveness, and in so doing holding the future hostage, transcend mere palliative politics? Are reparative politics possible through strategies of refusals of obedience that signal the de-legitimation of authority? How do the potential of forgiveness and the abandonment of submission to authority relate to one another? Why has it been, in the history of political thought, to grant such wide and sweeping powers of forgiveness to heads of state and what have the intended functions of that power been? To answer these questions I will argue that although political forgiveness is at once conformational and restorative of sovereign power, it can constitute a challenge to sovereign power. To make this argument, I will engage the work of a variety of thinkers in the tradition of political thought. I will question whether (the withholding of) political forgiveness can be used as counterpower to sovereignty. My conviction is that political forgiveness is a powerful tool, one of the master’s tools, but I want to ask, as well, if the master’s house can be deconstructed with that tool, wielded as a counterpower and turned back against sovereignty—as the recent protests for racial justice demonstrated. Grounding the problematic: Abolition, amnesty, pardons, debt forgiveness, reconciliation, reparations. Are these concepts the hope of progressive politics in the early 21 st century or tools of conservative reaction? The impression given by proponents of egalitarian political ends is that they have the power to be leveraged against the excesses of a sovereign order in the pursuit of justice, reconciliation, and truth. I contend that these concepts are part of a larger political problematic that is tied together under the umbrella of mercy and forgiveness. I propose that this umbrella of concepts did not pg. 6 POLITICAL FORGIVENESS always possess a capacity to be expressed with a positive connotation. Instead, in this dissertation, I put forth the argument that it has been in the history of political thought to assign to political forgiveness a conservative role where political forgiveness was a tool of the sovereign rather than a potential force to be leveraged against that sovereign order. For this reason, I contend that now, even the most aspirational forms of political forgiveness possess an inner logic that could have ramifications that cut against the purposes of those who use it to secure political domination as an aspect of their sovereignty. To ground this assertion I turn to the history of political thought that was instrumental in shaping the contours of the logic internal to political forgiveness so that it might serve as a guide in its use in contemporary practice. The twin themes of mercy and forgiveness are as old as political life itself, however, the specificity of the problematic that I identify and will address in this dissertation is much younger. Six hundred years ago in Western Europe the state form was just emerging, it was in this time that mercy and forgiveness were theoretically and practically sutured to sovereignty. I begin this dissertation with the assertion that all attempts to theorize the roles appropriate to political forgiveness and the deployment of these roles in politics have misunderstood the concept. The various misunderstandings are the result of investigations that purport to be theoretical but never turn to the canonical works of political theory and endeavor to find out what the authors of those texts have actually written about mercy and forgiveness. This is part of the project that I undertake in this dissertation, to ask how the early theorists of state power understood the functions of political forgiveness. I read the texts of Bodin, Hobbes, Lock, Beccaria, and Machiavelli to establish a trajectory and tradition of political forgiveness. The tradition that I reconstruct ties political forgiveness firmly to sovereignty. Over the course of this dissertation, I explore the different prescription these thinkers offered for pg. 7 POLITICAL FORGIVENESS sovereigns to wield political forgiveness. In my attempt to establish the trajectory of political forgiveness, I propose, somewhat paradoxically, that the trajectory does not, in this case, amount to path dependency. I propose that over time and across thinkers the trajectory and functions assigned to political forgiveness changed as thinkers’ anxieties were made aware of the potential dissidence inspired by the possibility of forgiveness and as they discovered how the different prescriptions they offered opened logical inconsistencies in the roles each hoped political forgiveness would fulfill for the sovereign. For instance, as I will argue, that where Bodin thought political forgiveness had the capacity to recuperate diminished sovereignty, his thought betrays the fact that political forgiveness might also be deleterious to sovereignty. In essence, the trajectory might be understood as a type of learning curve that finds thinkers championing elements of political forgiveness while at times within excoriating the practice for the dangers it represented. Sovereignty, as with so many other political concepts, is not a unitary concept. In his recent work A Critique of Sovereignty, Daniel Loick engages the history of theories of sovereignty Loick begins with what he calls “traditional theories of sovereignty” that date “from the sixteenth to the nineteenth century - from Bodin up to, but not including Marx.”1 The hallmark of traditional theories of sovereignty is that they “only spell out the concepts of legitimate state power that are somewhat different than its real manifestation rather than placing it fundamentally into question.”2 I mention this here because the authors in this dissertation are representatives of those traditional theories of sovereignty. In the chapters that follow I catalogue not only their articulations of sovereign power, but also the shifting sights of palliative politics that are expressions of political forgiveness. I do not adopt their traditional theories and understandings of sovereignty to defend them, rather I present them while offering a critique of pg. 8 POLITICAL FORGIVENESS that tradition. My critique is that the repression, violence, and exceptional powers characteristic of the traditional theories of sovereignty often find their expression in the practices of political forgiveness. I contend that these are not the only form forgiveness can take, and I suggest that there are unspoken anxieties, preoccupations, and polemics in the authors I read that provide a clue as to how the power of political forgiveness can be deployed against sovereign power. In inaugurating the discourse on sovereignty, Bodin described sovereign power as “absolute.”3 What made it absolute was that it was not “subject in any way to the commands of someone else.”4 This means that those with sovereign power stand in a unique relationship to the law. The sovereign may promulgate law but he may also abrogate law as he sees fit. For Bodin, forgiveness at the zenith of its power is, as sovereignty is, absolute. The absolute quality of forgiveness is expressed in its power of pardon in the final instance and as I will argue as well as in its capacity to recuperate sovereignty diminished by infractions against it. Bodin’s move to suture political forgiveness to sovereignty set political forgiveness on a trajectory shaped by that concept’s status as an element of sovereign prerogative. Following in the footsteps of Bodin, Hobbes further sedimented the tradition of linking forgiveness to sovereignty. Hobbes, however, advanced the trajectory of political forgiveness further than Bodin. He put political forgiveness in conversation with a diverse constellation of concepts including fear, prudence, and equity, while maintaining the sovereign’s position as above and outside of the law. The Hobbesian sovereign, as the result of a covenant to which it was not a party, becomes the institution with the power to dictate the law but is not subject to that law, as the sovereign is external to the covenant they remain external to the law. 5 As one contemporary commentary on Leviathan’s frontispiece put it, the sovereign appears on Leviathan’s cover as both inside of and outside of the city at the same time, meaning both inside pg. 9 POLITICAL FORGIVENESS and outside of the law. Following in the footsteps of Hobbes, Locke discussed political forgiveness in terms of pardon in The Two Treatises of Government in the chapter on the prerogative power6. With Locke’s thought, I propose the trajectory of political forgiveness alters course. I consider his concept of political forgiveness through the alternative lens of punishment, remittance, and reparation. Although Locke explicitly discusses political forgiveness in the form of pardon in his discussion of the prerogative power I maintain that the most fertile discoveries about that subject matter are to be found not where they are explicitly discussed but in places you would not expect them. Like his contemporaries, Cesare Beccaria also understood that sovereign power was the supreme political power of command. But as I will argue, Beccaria gives his reader the impression that although supreme, sovereignty is fragile; and political forgiveness is a particular threat to sovereignty’s stability. As a result, Beccaria finds himself attempting to strip the prerogative of forgiveness from the sovereign and hide it away inside the law as mercy. This becomes a logic internal to his project of augmenting and re-articulating the exercise of sovereign power. This dissertation begins and ends with Machiavelli. It begins with Machiavelli because it was he who inaugurated a break and new science of politics. It ends with Machiavelli because it was he who perhaps best demonstrated the power of political forgiveness, and as I discover, its insufficiency as a tool of resistance. Furthermore, because Machiavelli was the political realist, I place him as a unique figure in the quest to understand the role of mercy and political forgiveness. It is my conviction that the vast majority of political thinkers have theorized the role of forgiveness in politics from a normative and moralizing position. This however stands in stark contrast to the way that individuals and groups choose to dispense with, or withhold, their pg. 10 POLITICAL FORGIVENESS forgiveness. Rather, it is my conviction that Machiavelli expresses the ‘real’ manner in which individuals and groups choose to wield their power of forgiveness. With each successive thinker, it is apparent that political forgiveness becomes increasingly understood as instrumental to disciplinary and palliative politics. The question that I pose is whether this disciplining role is the only potential for political forgiveness. In searching for an alternative I attempt to dislocate the magisterial significance of sovereign mercy and forgiveness. I will argue that it may be the case that in the hands of the sovereign political forgiveness is a disciplinary tool, but I also argue that the anxieties, preoccupations, and logical inconsistencies expressed by “my” theorists, suggest a potential for theorizing political forgiveness as a counterpower, a destituent power. The alternative potential that I will look for in political forgiveness is the capacity to catalyze restive and resistant political moments and movements. And yet, this possibility has evaded those scholars that have made a study of the contemporary manifestations of political forgiveness. In what follows I engage the literature on political forgiveness. I base my primary intervention on the assertion that heretofore relevant political thought has not been engaged, sufficiently or otherwise, nor has forgiveness been sufficiently problematized within the field of politics. I turn to this body of literature now to illustrate, in part, this insufficiency. Critique of the contemporary paradigm of political forgiveness: Considering the specificity with which political theorists such as Bodin and Locke have positioned forgiveness as a co-constitutive feature of sovereignty, it is interesting to note that contemporary studies are largely silent on the relationship between them. Instead, much of the pg. 11 POLITICAL FORGIVENESS current literature assumes that political forgiveness is a public good, a normative end worth pursuing. Contemporary theorists neglect the relationship of political forgiveness to the question of sovereignty. The topic of political forgiveness is generally approached in the literature along two trajectories. The first, exemplified by the work of Hannah Arendt, Mark Amstutz, P.E. Digeser, and Donald Shriver, approaches political forgiveness from a historical or genealogical perspective. The second, exemplified by Jeffrie Murphy, Jean Hampton, and Charles Griswold, doubts whether we should, or even can, speak of something called political forgiveness. There is no necessary relationship between the two. There is also scholarship that traverses the two trajectories. It is notable that few, if any, of these scholars begin their study of the role of forgiveness or mercy in politics by referring to any of the canonical texts of western political thought. That shortcoming notwithstanding, I begin here with an engagement of those thinkers who situate their study of political forgiveness in a historical text or event. Martha Nussbaum in her recent Anger and Forgiveness, pursues the question of forgiveness in attaining what she calls, “everyday justice” and “revolutionary justice.” 7 Accordingly both types of justice that Nussbaum is interested in interrogating are constitutive elements of what she calls in this work the political realm. Nussbaum begins Anger and Forgiveness with a recapitulation of the last of the four books of Aeschylus’s Oresteia, the Eumenides. The actors that interest Nussbaum in the Eumenides are the furies. The furies are vengeance-seeking Greek mythological beings. The problem, as Nussbaum retells it, is that the rage of the furies, rage driven by a lust for revenge and vengeance, destabilizes life within the city. At the end of Aeschylus’ play, the Furies are transformed into the Eumenides. This transformation, both cognitive and physical for the Furies, represents the transformation of pg. 12 POLITICAL FORGIVENESS vengeance to a more forgiving model of reconciling wrongs, justice. In itself, the transformation is not an act of forgiveness, but representative of accepting forgiveness as a better alternative to the destruction and strife that vengeance is responsible for. Nussbaum recounts Aeschylus’ Eumenides, to situate political forgiveness as a feature of political life that can be dated as far back as the ancient Greeks. The significance of which is that for Nussbaum, as for others like Nicole Loraux as we shall see, the Eumenides is a play that centers on the attainment of political justice. 8 Nussbaum informs the reader that the Eumenides and its author Aeschylus “suggests that political justice does not just put a cage around anger, it fundamentally transforms it, from something hardly human, obsessive, bloodthirsty, to something human accepting of reason, calm, deliberate, and measured.” 9 Hence the transformation of the Furies at the end of the play from vengeful beings. Political justice, to follow Nussbaum, is the condition of possibility of forgiveness reigning in the political realm, and in doing so makes anger and political justice mutually exclusive. But is Nussbaum, and for that matter Aeschylus correct in this account? The functional intent of justice that Nussbaum posits can help answer this question, she writes, “justice focuses not on a past that can never be altered but on the creation of future welfare and prosperity.”10 What is precluded automatically is anger, the assumptions that it is only through forgiveness that future welfare and prosperity can be conjured. What I hope to be able to show is that future welfare and prosperity can be secured, perhaps not explicitly through anger, but neither explicitly through the form of disciplined calm forgiveness that Aeschylus and Nussbaum by extension espouse. I hope to show how there is a third term not entertained here, forgiveness withheld, that can fulfill the same promise that a disciplining forgiveness might. We might also pause here to critique Nussbaum’s assumption that political justice will be served through just institutions, but institutions are not always just, pg. 13 POLITICAL FORGIVENESS as I detailed above, and even when institutions are just mistakes and miscarriages of justice are possible. One should point out that in Nussbaum’s discussion of what she calls everyday justice she calls into question the efficacy of retributive methods of attaining justice, as such she also calls into question punishing certain activities. This comports with her assertion “that the appropriate response to injury is forward looking and welfarist, incorporating, in addition, ideas of generosity and reintegration…”11 Once again, I concur with Nussbaum regarding the need for political forgiveness to be forward looking, but simultaneously call into question the call to generosity and reintegration. These latter requirements push Nussbaum’s form of political forgiveness and everyday justice into the realm of palliative politics that I identify in this dissertation. When Nussbaum transitions from discussing everyday justice to revolutionary justice she does so by acknowledging that which I have already critiqued, that institutions are not always just. This in and of itself, labeling the section of her work “revolutionary justice” makes it seem as though the status of institutions producing unjust outcomes is a limit case, an exception to the rule if you will. I am not sure of the utility of this, nevertheless, when she does venture down this path it is here that Nussbaum also proposes a third term between anger and transactional forgiveness. Nussbaum’s third term is what she calls “unconditional generosity” she prefers this route under the conditions that require revolutionary justice because it “is both more useful and, at least in many cases, morally more defensible because less tainted by the payback mentality.” 12 This approach is what one might call the liberal moralization of forgiveness. How can one expect those who have been served injustice through the auspices of unjust political institutions to adopt a position of unconditional generosity? To be sure, I am not arguing that anger is the correct response, although I do not condemn those that might adopt anger in response to injustice, pg. 14 POLITICAL FORGIVENESS however, unconditional generosity in the face of systemic injustice? Another scholar who situates the inauguration of a tradition of political forgiveness in a historical context is Nicole Loraux in her excellent The Divided City. In that work, Loraux traces the role of forgiveness in politics back to not just any act of political forgiveness but perhaps the very first act of political forgiveness in 403 B.C.13 The event in question that Loraux begins her study with is what she claims was perhaps the first example of amnesty ever to be declared. Loraux’s work puts the question of the meaning of forgiveness into conversation with the possibility of political life as such. It was this amnesty that brought the rule of the thirty oligarchic tyrants to an end after the closure of the Peloponnesian War. 14 Reading and engaging with Loraux’s work the significance of this event is found, perhaps, less in the act of the declaration and more in the political actors that undertake the action. The amnesty declared, according to Loraux, was done so under the auspices of the return to power of the democratic resistance.15 The meaning of amnesty declared under democratic auspices is taken up by Loraux, she reminds us that, “whenever the majority wins “for the good,” such a victory is usually gained by a narrow margin; and the ideal remains that of unanimous decision, as if, in loudly proclaiming the unity of that totality called the polis, it were a matter of forgetting the space of a moment - the moment of debate, that is, of the assembly - the city is necessarily divided.”16 It is for this reason that Loraux refers to the return of the democratic resistance to power as a founding forgetting. The invocation of the need to forget is twofold, in the first place Athenian citizens are asked to forget the violence and division of the civil war that is now past, in the second place they are asked to forget that the very foundation of their polis is an act of erasure, as Loraux says, the specific form of the invocation is “not to recall the misfortunes.”17 This fact that Loraux brings to the reader’s attention presents this dissertation with a difficult question, a pg. 15 POLITICAL FORGIVENESS question that Loraux herself formulates. She writes that this question arrived to her as something of a hypothesis she formulates thusly, “the egalitarian polis of consensus…, whose essential propositions are disseminated throughout Greek discourse, exists because actual cities are divided (because, in large and small cities alike, decision and combat, these two subjects of historians, suddenly interfere with each other).” 18 The hurt of division in Loraux’s work is quelled by the palliative nature of amnesty. The question she possess to us is whether, rather than a palliative politics that is engaged as a salve on the division inherent to political life, might there be a reparative politics appropriate to a democratic politics that does not deny division and conflict? This questions gestures at another element essential to Loraux’s work, the notion of memory. She draws her reader's attention to the not inconsequential etymology of amnesty and its relationship to the act of forgetting and amnesia.19 In the case of amnesty what is in question is similar to amnesia, albeit slightly different in that what is requested of those subject to an amnesty is a willful forgetting. And what is it that must be forgotten? Loraux presents her reader with an often-overlooked element of amnesty, it is the totality of the actions in question that must be cast aside, she points out that in questions of conflict it is both the loss and the victory that must be forgotten and not recalled.20 This indicates there is a relationship shared between Loraux’s discussion of memory and what I have called politics. Palliative political acts of forgiveness carry with them an injunction to forget, the question remains whether today this injunction is still directed at both the defeated and the victors of political conflict. A final element of Loraux’s work that bears mention, and one that is of some consequence for this investigation, is her archeology of the process of reconciliation in Athens. In it, I think we can glimpse, once again, the functioning of a palliative politics and a dire pg. 16 POLITICAL FORGIVENESS absence of a reparative pathway. Loraux presents to her reader an account of how in the years following 403 B.C. in Athens citizens had recourse to arbitration in reaching reconciliation with one another.21 Loraux argues that one of the functions of arbitration was to prevent the state from dispensing justice, when contemplated in relation to the recent amnesty the injunction “was the prohibition on initiating legal proceedings related to these events that the city wanted to erase from its memory,” now we can “understand better everything that associates an act of civic reconciliation, whose conciliatory essence is artificially maintained, with a procedure of arbitration, but a “pure” or purified arbitration that never leads to trial.” 22 Loraux might as well be describing the contemporary truth and reconciliation model, a model that attempts to circumvent formal legal institutions to prevent recent and persistent anger over past wrongs from erupting and the impression that the state is in some way complicit. This of course overlooks the fact that in pursuing reconciliation the state is always already complicit in the pursuit of palliative political forgiveness. Other scholars turn to an alternatively salient history to ground political forgiveness in the past. Hannah Arendt is probably the most well-known contemporary thinker associated with the tradition of political forgiveness. Rather than situating political forgiveness in an originary act as Loraux does, or textually as Nussbaum seems to, Arendt turns to the Christ story. She does so not to claim that political forgiveness had its originary moment with that story, but rather to demonstrate that forgiveness is in fact a political concept, albeit one that has been forsaken by the tradition of political thought, as Arendt argued. Arendt’s most detailed discussions of political forgiveness arrive in The Human Condition as well as The Promise of Politics. In the latter work, Arendt speaks of forgiveness as if it were the condition of possibility of political life itself. This lofty claim is backed up readily when one considers the centrality of the category of action to Arendt's thought and her conception of politics. For Arendt pg. 17 POLITICAL FORGIVENESS without the possibility of forgiveness humans would be trapped in a condition in which acting anew was impossible because we would be beholden to the past, without action, no political life. In The Human Condition Arendt argues that “forgiving and acting are as closely related as destroying and making.”23 She writes of forgiveness that it, is the only strictly human action that releases us and others from the chain and pattern of consequences that all action engenders; as such, forgiving is an action that guarantees the continuity of the capacity for action, for beginning anew, in every single human being, who, without forgiving and being forgiven, would resemble the man in the fairy tale who is granted one wish and then forever punished with that wish’s fulfillment. 24 In The Promise of Politics Arendt speaks of this movement in the following way, she says of forgiveness that its “great boldness and unique pride…as a basic relationship between humans does not lie in the seeming reversal of the calamity of guilt and error into the possible virtues of magnanimity or solidarity. It is rather that forgiving attempt the seemingly impossible, to undo what has been done, and that it succeeds in making a new beginning where beginnings seemed to have become no longer possible.”25 Arendt has lofty expectations for forgiveness, however, such expectations can only be met if forgiveness is practiced with great abundance. In this work, I am critical of approaching forgiveness from this position, that it is in its abundance that it has the greatest purchase for political life. That forgiveness is a political act Arendt is certain of, she asserts to those that would doubt her, claiming instead that forgiveness is a specifically religious practice, that the tradition of political thought merely lost sight of the significance of forgiveness and “the relationship between doing and forgiving as a constitutive element of the intercourse pg. 18 POLITICAL FORGIVENESS between acting men, which was the specifically political, as distinguished from religious, novelty in Jesus’ teachings.”26 Arendt writes in The Human Condition that do to the “highly selective” nature of the tradition of political thought certain experiences, even political experiences, have been excluded from thorough treatment, by which, in this context, she means forgiveness.27 That Arendt is correct in her appraisal of the political nature of forgiveness is certain, however, it is the content of her conception of forgiveness that I find troubling. For Arendt forgiveness is, in fact, must be, “unconditioned by the act which provoked it and therefore freeing from its consequences both the one who forgives and the one who is forgiven.” 28 To return to my earlier concern about the abundant nature of forgiveness in Arendt’s thought, this seems very much similar to Nussbaum's notion of unconditional generosity. Furthermore, if the only content of forgiveness is its capacity to begin anew this seems a rather large abstraction. I turn now to the second of the two trajectories which I laid out above, the studies that put a greater emphasis on the question of whether there is even a category of political forgiveness at all. Within this body of scholarship one can identify two distinct approaches one might call the believers and the doubters. The former, like Mark Amstutz, P.E. Digeser, and Donal Shriver, proceed with their scholarship in support of the category of political forgiveness. The latter, like Charles Griswold and Jeffrie Murphy, are skeptical of the utility or, even existence of political forgiveness. I turn now to a discussion of their work beginning with Mark Amstutz's book The Healing of Nations. Before he turns to the substantive and empirical elements of his study, Mark Amstutz begins his inquiry on familiar ground inquiring if forgiveness, a concept he argues we usually associate with religion, can have a political expression. His inquiry leads him to the conclusion that there is no reason the sphere of religion should have a monopoly on forgiveness, and that in pg. 19 POLITICAL FORGIVENESS fact, we can have a completely secular appreciation for it.29 Amstutz’s work engages a large swath of empirical research, work which is interesting, however, I do not preoccupy myself with it here. It is the earlier sections of his book where Amstutz builds his conceptual understanding of forgiveness that interests me here. In service of this goal, Amstutz asserts that political forgiveness entails “healing” and the “restoration of relationships.” 30 Furthermore, he claims that political forgiveness is “rooted in interpersonal repentance and forgiveness,” and that “political forgiveness will necessarily build on the structure of individual forgiveness.”31 In this way Amstutz's political forgiveness is figured as little more than a palliative kind of politics. There is little discernible difference between interpersonal forgiveness and political forgiveness in his work. I trace this pitfall in Amstutz’s theory to his specific avowal of focusing on political forgiveness as a process to be traveled and not as an act. 32 To be sure, there are examples of process-based forgiveness in politics, the truth and reconciliation model is an example of one, but many examples of political forgiveness abound that are the result of decisions and thus comport more with acts over process. In and of itself this might appear to be a distinction without a difference, but it is not. Process-based models of forgiveness often require the victims of past wrongs to engage the process whereas decisions and acts of forgiveness are frequently derived from sources of sovereign authority. With Amstutz’s focus on what is essentially an interpersonal model of forgiveness it is not difficult to see why he focuses so much on process, it is the healing and restorative process that he sees as having the potential to result in forgiveness, but what he does not see is that it is also this very process that can have a disciplinary and moralizing effect on its practitioners. Amstutz ultimately makes some contestable claims in his work. One such claim is that successful political forgiveness is dependent upon the appraised legitimacy of governmental actors. Beyond the fact that legitimacy is a politically contestable pg. 20 POLITICAL FORGIVENESS concept, it seems likely that under circumstances that might suggest acts of political forgiveness there will always be one party, single or plural, that views the government as illegitimate. Finally, Amstutz assumes from the outset that political forgiveness is normatively good, that we ought to aim to achieve it, and this automatically precludes the investigation of what it might mean for those practitioners amidst a process of forgiveness to withhold rather than dispense with their forgiveness. In An Ethic for Enemies, Donald Shriver makes the same normative assumptions, political forgiveness is beneficial, and ought to be aimed at achieving. Shriver begins his book with what he calls a factual-moral claim that without “forgiveness and its twin repentance, political humans remember the crimes of ancestors only to entertain the idea of repeating them.”33 It is with this claim that Shriver sets out to define what a concept of political forgiveness might entail. He settles on political forgiveness as “an act that joins a moral truth, forbearance, empathy, and a commitment to repair a fractured human relation.” 34 Disaggregated the moral truth is the acknowledgment of a wrong done, forbearance is the rejection of vengeance, and empathy is co-equal with a recognition of one’s enemy’s humanity and the injunction to repair. It is not clear how the role of forgiveness in politics differs in kind from interpersonal forgiveness for Shriver. Furthermore, if this is political forgiveness one might question the utility of such an abstracted and ideal definition when so few events comport with it. More frequent than this are the myriad pardons, amnesties, and cases in which the nonapplication of law counts as a form of forgiveness. My contention with Amstutz and Shriver is their versions of forgiveness are not what I will call political forgiveness in this dissertation. I contend that what the likes of Amstutz and Shriver have done in their works on forgiveness and politics is replicate an ethical or moral pg. 21 POLITICAL FORGIVENESS model of forgiveness, and applied it to politics without appreciating the specificity of the political. This model’s adoption of an interpersonal mode of forgiveness in the political realm is a lateral move that presents serious problems least of which revolve around how the possession of political power and or authority augment the impact and outcome of political forgiveness. What they call forgiveness in a political context is what I seek to critique and move away from, this is what I call palliative politics. Theirs’s an ethical and moralizing model of forgiveness. It is most at home conceived of as how sovereign power exercises political forgiveness as abundance, and with those that wish to accept these acts. This model fails because it relies on both reciprocity, and the belief that vengeance and forgiveness are mutually exclusive categories. When one begins to think about the withholding of forgiveness the result is to bring into question and problematize the relationship between forgiveness and vengeance. In contradistinction to Amstutz and Shriver, P.E. Digeser begins her study on political forgiveness with an acknowledgment that there is something different about politics, a specificity that renders interpersonal models of forgiveness suspect. Digeser asserts that there is an “underlying assumption that there is something dissatisfying about the ordinary understanding of forgiveness and their employment in politics.”35 As a result of this suspicion Digeser “seeks to redescribe our ordinary understanding of forgiveness in the hopes of rendering it compatible with a vision of politics that emphasizes action over motivation and the ability of people to receive their due.”36 I concur with Digeser on most of that which she espouses in the above two quotes, however, the retributive angle pursued at the end of the second quote should give pause. In this dissertation I am not opposed to individuals receiving their due, in the conclusion I pursue a discussion of reparations, a practice which is defined by attaining such a due. I contend that perhaps we ought not to tie forgiveness to due in such a conditional manner. Part of the impetus pg. 22 POLITICAL FORGIVENESS of this dissertation is to call into question and investigate the potential for a reparative politics that does not rely on such conditionality. Nevertheless, there is much in Digeser’s approach to political forgiveness that is noteworthy. For instance, she expresses a contemptuousness for “commonsensical understandings of forgiveness” because “they are so burdened with psychological and religious assumptions that their connection to politics is occluded.” 37 As a result of this she pursues “a secular, performative notion of forgiveness, one that takes as its cue the practices of forgiving debts and pardoning criminals…” 38 I would like to pause here and raise the question of what the performative aspect of this approach entails. It would seem to entail undertaking an act, and in the cases of debt forgiveness and pardoning the actor necessarily is a sovereign government. Digeser’s intentions are good, however, the performative aspect of her definition creates two problems, one is it sediments a power imbalance between the actor forgiving and those in need of forgiveness. Additionally, it requires that for individuals or communities to receive their due some form of performative act is necessary. I have made reference to the potential of the power of forgiveness in its abeyance and the idea that through such an abeyance groups can achieve their just due. Digeser’s model would appear to rule out this form of politics in the service of justice. Finally, Digeser asserts “that the practices of pardoning and financial forgiveness provide a glimpse of what I call political forgiveness.”39 To be fair, I also call those practices elements of political forgiveness, our arguments differ however in that Digeser attempts to uphold those practices as net social goods and recuperate them when they go astray whereas I interpret those practices on the terrain of sovereign prerogative. Digeser claims “it is neither unusual nor exceptional to view pardoning and the forgiveness of financial debt as forms of forgiveness,” therefore, “we can identify something called political forgiveness as sharing the characteristics of these two activities.” 40 In other words, pardon and debt pg. 23 POLITICAL FORGIVENESS forgiveness are usual and exemplary forms of political forgiveness. My claim is just the opposite, they are exceptional and unusual. Pardon and debt forgiveness are in fact literally exceptional in the fact that their specific political function is to except a past crime from legal sanction. Finally, we might take issue with Digeser’s claim that political forgiveness, when successful, “settles past claims.”41 What we should be after in attempting to theorize political forgiveness is not an act that settles the past, indeed, many of the events appropriate to political forgiveness are of a magnitude unable to truly be settled. Rather than settling the past political forgiveness might only be able to be attentive to the past, acknowledging as much might be the only way to transcend a palliative forgiveness for a reparative one. Whereas Amstutz, Digeser, and Shriver’s approach and my own differ conceptually, thinkers like Charles Griswold and Jeffrie Murphy challenge the category of political forgiveness itself, and in doing so present an altogether more difficult intellectual engagement. Charles Griswold begins his investigation into political forgiveness with the acknowledgment that “it is now a widely used phrase.”42 In making this statement he has P.E. Digeser’s work in mind. Although Griswold acknowledges its wide usage, he calls into question the veracity of that usage and the utility of the category of political forgiveness in general. Griswold’s doubts about political forgiveness emerge straight away with his musing that “political forgiveness seems to describe exchanges that look rather like the giving or appeal for pardon, clemency, debt relief, or reconciliation.”43 Notice the skepticism, political forgiveness seems to be akin to the official acts he lists. Griswold’s approach is to question if there is “a coherent concept of political forgiveness distinct” from those official acts already mentioned. 44 The necessity of this search for a coherent concept is grounded in Griswold’s obvious rejection of acts like pardon or debt relief as possibly being political forgiveness or fulfilling the role of political forgiveness. The problem with these pg. 24 POLITICAL FORGIVENESS official acts for Griswold is that “they are not about forgiveness in the paradigmatic or moral sense.”45 According to Griswold paradigmatic forgiveness involves several components, the ability of injured parties to communicate with one another, a requirement of reciprocity, and a moral relationship. Here some confusion enters, for Griswold wants to reject the official acts noted above as political forgiveness because they do not fit the paradigmatic model, however, as soon as he rejects them he turns to a discussion of the specificity of political relations. Griswold writes “that the political sphere possesses structural characteristics, tensions, and dynamics that in relevant and significant ways differ from those present in the interpersonal context upon which I have thus far focused.”46 I fully agree with Griswold that there is a specificity to the political sphere, but Griswold does not entertain, or see for that matter how acts such as pardon, clemency, debt relief, etc. could be the appropriate forms of forgiveness to the political sphere. The explicit question is, if there is a specificity to the political sphere, why is Griswold attempting to find a form of forgiveness appropriate to it that is of the paradigmatic kind? Griswold thinks he has found the answer to this puzzle in what he calls political apology, he prefers this term to political forgiveness and in his support for this term calls into question, if not rejects outright, political forgiveness as a category. Furthermore, in political apology, Griswold thinks he has found a category akin to forgiveness that can function in the political sphere and maintain a paradigmatic form. Even so, Griswold acknowledges that the two categories “map onto each other only imperfectly.”47 Griswold’s preference and support for political apology over political forgiveness can be put in the following terms, “political apology is more closely reliant conceptually on traceable links from the willingly involved parties to the parties originally concerned.”48 Thus, political apology draws itself very near to what Griswold calls paradigmatic forgiveness. The issue with Griswold’s argument is the structural, or systemic, problem of his pg. 25 POLITICAL FORGIVENESS attempt to find a form of forgiveness that is paradigmatically appropriate to the political sphere while simultaneously acknowledging that there is something different about that sphere. This is not to say that Griswold’s argument might not be convincing to some, to be sure it is a rather well-argued piece of philosophy, and in its status as philosophy we find another potential deficiency, the question of the potential political practice implicit in the work. As Griswold acknowledges, political forgiveness is a widely accepted term, even amongst the public, and in that public’s imagination and dominant ideology, those things which count as political forgiveness do include pardon, clemency, debt forgiveness, and reconciliation. If the events I reference at the beginning of this introduction have taught us anything it certainly must be that this utterance is true, people are well attuned to political forgiveness, and pardon, for instance, counts as one such form. While preoccupations with the utility of ones’ work to political practice may not be one of Griswold’s (I have no way of knowing if it is, he does not indicate this explicitly) it is a preoccupation of this dissertation. As such, I would argue in contrast to Griswold that adopting those acts which are accepted practices of political forgiveness amongst the wider public and theorizing what their practice means and the roles appropriate to them is a prudential necessity. Perhaps a place to end, one that might provide a useful pathway forward, or a glimpse of what is to come is with the work of Jeffrie Murphy. I indicated that for Griswold and Murphy the existence of a category of political forgiveness was one that they called into question and, or, explicitly doubted. Murphy’s work that interests me here does not explicitly engage with the, as Griswold called it, political sphere. However, what Murphy’s work does do, which for important reasons is relevant to the project of this dissertation, is to call into question the act of forgiveness as a virtue and, importantly, the relationship between forgiveness and resent. To understand pg. 26 POLITICAL FORGIVENESS Murphy’s position on forgiveness one must chart a course through his thought pertaining to resent. For Murphy resent is not always necessarily negative, in fact, resent is best understood as an expression of self-respect. The individual that experiences or harbors resent does so as a manifestation of feeling as though they have been the recipient of a wrong. As Murphy explains, “proper self-respect is essentially tied to the passion of resentment, and that person who does not resent moral injuries done to him is almost necessarily a person lacking self-respect.”49 From this position it is a short logical extension that individuals who forgive too readily due so out of a deficit of self-respect, self-esteem, and “a perception of his own worth, of what he is owed.”50 Murphy does not deny that resent is problematic, he knows that it is, however on my reading of him resent can be an important road to be traveled on the way to forgiveness. The problem with resent arrives when it is treated as “a final bottom line as the response we take to those who have wronged us.”51 Here we can already begin to see the utility that Murphy’s approach to forgiveness and resent might provide for the project of thinking a reparative politics that does not require victims of past wrongs to engage in acts of forgiveness that might be deleterious to their political agency or sense of self-worth. The relationship that Murphy attempts to chart between forgiveness and resent is mutually supportive of one another, he has a critique of forgiveness, but so too does he have praise for it. “Forgiveness,” writes Murphy, “heals and restores; and, without it resentment would remain as an obstacle to many human relationships we value.” 52 Yet he continues to caution that forgiveness might be “a vice because it may be a sign that one lacks respect for oneself.”53 So when is forgiveness categorically a virtue, and when does forgiveness comport with the positive dimensions of resentment? Murphy explains that it “is acceptable only in cases where it is consistent with self-respect, respect for others as responsible moral agents, and allegiance to the rules of morality.”54 This defense of resentment and qualified support for pg. 27 POLITICAL FORGIVENESS forgiveness as a virtue presents extremely attractive possibilities for political practices. I think in important ways Murphy’s account of forgiveness comports with the idea of the potential power of holding forgiveness in abeyance, rather than, as Arendt puts forward, an abundance. Murphy’s account of forgiveness has yet other dimensions important for the political sphere. Because he writes forgiveness “is primarily a matter of how I feel about you” those that dispense with their forgiveness have the potential to change their mind and “when old resentment rise up again, I may say, I was wrong - I really have not forgiven you at all.”55 Although the essay by Murphy in question is not an explicit investigation of the intersection of forgiveness, resent, and the law or politics, towards the end of the essay in question he does entertain the notion of law and in doing so offers a final interesting insight. Murphy writes that even when one has “ceased to hate the person who has wronged me it does not follow that I act inconsistently if I still advocate his being forced to undergo punishment for his wrongdoing- that he, in short, get his just deserts.”56 Because Murphy is talking about the field of law one can imagine that in this example we can substitute the individual actor above for an institution, entity, or government. I think there is a way in which one can cease to hate but still not forgive, which is as I understand compatible with Murphy’s argument, which provides an interesting way to consider how political agents might withhold forgiveness, preserve their agency and self-worth, and still extract concessions from political institutions, entities, or governments that have wronged them. The studies of political forgiveness engaged above address the nature of political forgiveness and often they engage with the shortcomings and failures of political forgiveness, yet they do not engage what I appraise to be the darker side, and perhaps true nature, of political forgiveness. In After Evil Robert Meister begins to pick apart the implications of the act and process of political forgiveness that other thinkers either do not or ignore the instrumental nature pg. 28 POLITICAL FORGIVENESS of. Of the individuals that hold the possibility of forgiveness in their hands, Meister writes that, “mainstream literature on transitional justice tends to assume that past victims never really win their choice is whether to persist in struggle or stop - and that stopping makes sense if they can declare a moral victory that seems to put oppression in the past.” 57 I agree with Meister that we should be critical of this position precisely because a moral victory might make certain parties to a conflict feel better about what has happened but often such moral victories come at the expense of attaining a more reparative politics. Meister also calls his reader's attention to an alternative view of forgiveness, the possibility that forgiveness might fulfill the function of revenge. For Meister, it is not just that sovereigns can engage in forgiveness but that forgiveness is itself “a sovereign act - potentially an act of indifference, rather than compassion, that might be more humiliating than a punishment.”58 Accruing to this fact one can understand Meister’s position that “forgiveness is compatible with revenge - it might sometimes be the best revenge.”59 Meister’s critique draws our attention to the problem inherent in all those studies that take as their point of reference pardon, for instance, or other acts of political forgiveness that flow from sovereignty. It is not just that such acts are extra-judicial and incumbent upon sovereign prerogative, it is also that they abscond the agency of political subjects, prevent even mere palliative politics and foreclose reparative possibilities. One of the logical conclusions of Meister’s critique can be found in the work of Martha Minnow. Minnow includes in her critique of political forgiveness the argument that forgiveness is not only frequently itself institutionalized, but is itself an institutionalizing power. 60 Forgiveness, she claims, institutionalizes forgetfulness and ignorance. 61 There are other ways that political forgiveness acts as an institutionalizing power. When sovereigns engage in political forgiveness a record of winners and losers of a conflict is created, an official historical account pg. 29 POLITICAL FORGIVENESS inaugurated, and a counter-history of the oppressed occluded as heterodox. There might be longstanding legal and political results that are institutionalized. Therefore, it is not only forgetfulness and ignorance but a much wider array of potential effects that become sedimented by fiat in official and unofficial political and social institutions. Meister and Minnow present the opportunity to draw this survey of the contemporary scholarship on political forgiveness to a close on a terrain familiar to that which I will plod in this dissertation. I am sanguine about political forgiveness as is Minnow, for she withholds the possibility that forgiveness might be redeemed and re-conceptualized in a way that is appropriate to the exigencies of oppressed political subjects. Her idea for this is to theorize forgiveness as a power rather than as a right held by sovereignty. This objective is one of the central commitments of this dissertation's intellectual and practical goals. For the reader to fully grasp these goals in the section that follows I attempt to give greater specificity to the terminology that I will be using over the course of this dissertation. There is far too much about all of these writers. The way it stands now, this section takes us away from the argument you say you are making—that the ties between sovereignty and forgiveness are not all there is to forgiveness—that, in the readings you will do of Bodin, et al, there is another aspect at once acknowledged and repressed; the question of forgiveness from below, as it were, forgiveness withheld by victims of sovereign power. I think you need to stick to that argument. If you want to say things about these authors who write about forgiveness without taking sovereignty into account, you should do it briefly. But the way you do it here, just muddies the waters and makes your own argument much less clear. pg. 30 POLITICAL FORGIVENESS Conceptual lexicon: Forgiveness is a concept that we are all familiar with. But the forgiveness found in the texts of Western political thought that I will examine are not the same as that kind shared between one person and another. Political forgiveness is not synonymous with interpersonal forgiveness. We can understand this distinction by turning once again to Hannah Arendt. In my critique of contemporary scholarship, I used Arendt to demonstrate that she understood forgiveness to be a properly political phenomenon. Now I return to her to understand the role of forgiveness in politics. I will argue that Arendt’s thought offers a firm ground for expanding the notion of political forgiveness. In The Promise of Politics Arendt investigated the “purely negative right to pardon” as a “political expression [of] forgiveness.”62 Arendt, however, knew there were alternative expressions of forgiveness proper to the political realm. As I noted earlier, one could say that for Arendt forgiveness was the condition of possibility for politics. Arendt’s fondness for forgiveness derives from her view that forgiveness is a restorative act that offers humans the opportunity to begin anew.63 As the political theorist of new beginnings par excellence this should come as little surprise to those familiar with her work. Hannah Arendt’s thoughts on forgiveness are illustrative of why we ought to think about political forgiveness differently and how we might do that. Here I begin to sketch this vision out. In The Human Condition Arendt defends the position that forgiveness is a properly political concept by arguing that the absence of an intellectual tradition attendant to the role of forgiveness in politics does not a priori disqualify forgiveness from being properly political. 64 Arendt’s position is that Western political thought has merely overlooked the significance of pg. 31 POLITICAL FORGIVENESS forgiveness. She writes, “[i]t has been in the nature of our tradition of political thought to be highly selective and to exclude from articulate conceptualization a great variety of authentic political experiences.”65 For Arendt the promise of forgiveness is that it serves as a remedy to what she calls, “action’s predicament.” 66 The specificity of the predicament is that in acting we set in motion a series of events the consequences of which we do not know in advance, thus resulting in outcomes that are, as Arendt says, “irreversible.” 67 Forgiveness, according to Arendt, serves to “undo,” as she puts it, the irreversible outcomes which are set in motion when we act. Without the possibility of being forgiven, Arendt reasons, our potential to act, and act anew, would be attenuated and “confined to one single deed from which we could never recover; we would remain the victims of its consequences forever, not unlike the sorcerer’s apprentice who lacked the magical formula to break the spell.” 68 Parsing Arendt’s thoughts on forgiveness it becomes clear that she believes, as indicated by her assertion that forgiveness can “undo” what has been done, that forgiveness has a reparative function. But the aspirational role she ascribes to forgiveness and the prudential function it plays betray one another. The purpose of forgiving is, for Arendt, to enable beginning anew. Beginning anew does not expressly require that forgiveness carry out a reparative function, merely that it palliates what has occurred enough such that the future is bearable. It is here that Arendt offers us the opportunity to consider my supposition that political forgiveness might have both a palliative and reparative function. In this dissertation, I attempt to theorize a certain form of political forgiveness that I will call palliative politics. I do so because I see in practices of political forgiveness an attempt to relieve the affective and psychic dimensions of the antagonism and conflict that are constitutive of politics without, however, dealing with the root causes of the problem. In deploying this biopolitical terminology I hope to convey that the functions of palliation found in the field of pg. 32 POLITICAL FORGIVENESS medicine have, in certain forms of political forgiveness, a corollary in political life. The functions of palliation I have in mind are the powers of calming, sedating, and soothing but not ameliorating. I will argue that palliative politics has multiple expressions all of which demonstrate the failures and shortcomings of certain forms of political forgiveness. The injunction that one should forgive and forget is the most obvious form that a palliative politics embodies. While forgetting may soothe the experience of political oppression or repression, for instance, it does nothing to address the structures that enabled the oppression or repression in the first place. Recall Martha Minnow’s critique that when forms of political forgiveness, such an amnesty, are pursued a result is an institutionalized form of forgetting one result of which is to turn a blind eye to beneficiaries of past oppression or repression while asking that the victims of affective, psychic, and material acts of violence bear their scars in silence. We can find another expression of this form of palliative politics in Nicole Loraux’s scholarship. Loraux demonstrates that when the democratic resistance triumphed over the oligarchs in 403 B.C. Athens, they admonished citizens to “not recall the misfortunes of the past.”69 What is common to these expressions of palliative political forgiveness is that they are designed to mute the past experiences of some political subjects such that political life might continue unabated. One can argue that the intentions of this form of palliative politics are not necessarily sound, but neither are they explicitly motivated by a desire to continue past oppression or a quest for revenge (although that might be their practical effect anyway). Yet, there are examples of the exercise of political forgiveness in a palliative register that do have revenge or vengeance as their explicit objective. If we turn back to the scholarship of Robert Meister we can find in his critique of forgiveness and vengeance clear examples of this. Meister drew our attention to the way that sovereigns might engage in pardons or amnesties that favor pg. 33 POLITICAL FORGIVENESS beneficiaries and perpetrators of past crime or violence in an explicit effort to wreak vengeance on political enemies. The net effect of which is to rob the agency and moral autonomy of victims of past crimes. A similar movement can be discerned in Jeffrie Murphy’s work. Recall that it was Murphy’s critique that those who forgive too easily do so out of a deficit of self-respect and selfworth. When victims of political wrongs are pressured by political and social actors to forgive against their will not only has their agency and moral autonomy been diminished, but so to is it a possibility that their self-respect and self-worth have also been injured. In this form of palliative politics those that reap the benefits of ‘feeling better’ do so at the expense of others, essentially, having political ire soothed at the pleasure of seeing others suffer revenge and vengeance. I want to suggest that a palliative politics are only one potential articulation of political forgiveness, but nevertheless, I believe it is necessary to plumb the depths of this form of political forgiveness so that I might theorize an alternative articulation. It is my suspicion, and conviction, that doing so will enable the theorization of a reparative politics that has the capacity to transcend mere palliation. I will argue that such a reparative politics should be directed at the structural and systemic roots of political problems. I suggest turning to Arendt’s thoughts about forgiveness in this context, for I believe it gestures at another opportunity to give greater form to what I will argue are the contents of a reparative political forgiveness. As I argued above, Arendt portrays forgiveness as an abundance, and in its abundance allows for novelty in the world to flourish. Novelty becomes consequent to forgiveness and demonstrates its unique power. I understand this abundance to be but one expression of the power of forgiveness. I find, ironically, Arendt’s portrayal of forgiveness as an abundance to indicate that forgiveness might express its power alternatively. What Arendt’s thought does is invite us to consider the power of forgiveness as both abundance and refusal. If forgiveness in its abundance has the power to pg. 34 POLITICAL FORGIVENESS inaugurate novelty and new beginnings so too does it possess the power, in its non-exercise, to hold the future hostage. I argue in this dissertation that understanding forgiveness as a something that can be refused is key to grasping the complexity of political forgiveness. This is not to say that political forgiveness is anathema to forgiveness as such. Rather I am suggesting we conceive of political forgiveness as manifest in both its power and potential. To this end, we might also think about Arendt’s citation of the sorcerer’s apprentice. I find this reference telling because it indicates the awe and power that she understands forgiveness to have. I think Arendt is correct, there is something uniquely powerful about forgiveness. However, Arendt’s thought ascribes to forgiveness several troubling attributes which should give us pause and potentially guide this inquiry. The first of which is that Arendt makes it seem as if forgiving is a mundanely commonplace occurrence that happens between individuals. This impression that Arendt gives her reader betrays the unique power that she also ascribes to forgiveness, but in that betrayal exists the kernel of an additional truth that Arendt expresses, perhaps unknowingly. One of the things that makes forgiveness unique and powerful is that it is precisely ours to dispense. That Arendt makes it seem as though we do so commonly and mundanely is not the point, that in doing so she gives expression to the power that forgiveness holds for each and all is key for thinking a reparative political forgiveness. One more element of political forgiveness is worthy of note before proceeding further. The question of the consciousness of political forgiveness. As I will argue in what follows, much of the anxiety expressed regarding forgiveness in the modern political literature is a result of consternation over the knowledge, as I said, a consciousness that forgiveness or mercy is a political possibility. The preoccupation that political subjects might have their actions guided by the consciousness that their acts might be forgiven. An anxiety that was often expressed over the pg. 35 POLITICAL FORGIVENESS potential of political subjects to act in concert with one another to force the hand of political authorities to forgive. With this nascent understanding of political forgiveness in place I turn to the tradition of political thought (which consequently Arendt falsely claimed did not display a tradition of thought addressed to forgiveness), and the place of forgiveness in that thought. The desire to think of withholding political forgiveness as a power of the weak (in James Scott’s formulation) derives from the abundance of the power of forgiveness in the hands of sovereignty and the potential to put that abundance to work in the form of palliative politics. I will argue that reparative politics become possible only when the potential of political forgiveness is withheld, and when unwelcome futures are prevented from being inaugurated. An example is illustrative here. The summer of 2020 in the United States was a summer marked by heady discussion of mercy and forgiveness in politics. There was no mercy or forgiveness offered to protestors at the hands of the police, or counter-protestors, as demonstrated in the tragic deaths of Anthony Huber and Joseph Rosenbaum who were shot and killed by Kyle Rittenhouse. Rather I suggest that it was the mercy and forgiveness that were withheld that had a unique quality. I propose that we understand the protest movements for racial justice in America as a direct manifestation of the lack of mercy and appetite for forgiveness vast swaths of the population had for the police, police misconduct, and the broader racist structure of the American politics and policing. In the face of what was evident for far too long, the inherent racist structure of the criminal justice system and policing in America, no palliative politics could suffice. My purpose in deploying this scenario as an example is that I understand it as illustrative of a desire for a reparative politics of forgiveness where the potential for forgiveness was held in abeyance. A novel, new, or renewed future inaugurated by what I have argued are palliative politics was not willingly going to be accepted. For a novel, new, or renewed future surely would be one in pg. 36 POLITICAL FORGIVENESS which countless more people of color would be slain by police. I think we should understand the power of political forgiveness as the power to hold the future hostage to be the agents who shape that future rather than allowing sovereign power to dictate the conditions of novelty and future politics. In pursuit of thinking about the potential of political forgiveness as a power against sovereignty that resists institutionalization, I question; can these politics qualify as a new paradigm of destituent power? Destituency is discussed in the literature variously as a power, a potential, and a political activity. These three approaches represent a divide, a contestation over what constitutes destituency. The first term remains the same in each case; destituent. At a bare minimum, destituent politics must mean rendering destitute through deprivation or desertion. If one deprives a being of the necessities of life long enough it shall perish. The confusion enters when one begins to interrogate how that deprivation takes place. Does destituency’s power come from action, or a lack thereof? This conundrum is reminiscent of the problem that Michel Foucault encountered in his study of biopower. Destituent power is similar to biopower in that it can be exercised in a variety of ways through action (making life live), or inaction (depriving life to the point of death).70 Different thinkers have imagined destituency as a variety of different actions that are not always similar to one another in practice and strategy. The second term in each formulation above (power, potential, and political activity) is further complicated by the fact that of the three modifications of destituency only one can take the form of an adjective rather than a noun. Power; noun.71 Activity; noun. Potential; noun or adjective. Each different grammatical deployment of destituency essentially maps onto a differing theoretical deployment. Destituent power’s most explicit advocates are Raphael Laudani, Georgio Agamben, and most recently Michael Hardt and Antonio Negri. The objective of what follows is to put their varied pg. 37 POLITICAL FORGIVENESS understandings of destituency into conversation with one another. Doing so will aid my argument that the withholding of political forgiveness might be a new paradigm of destituent power. Raffaele Laudani believes disobedience is neither a political idea, nor is it exactly a concept; he believes the closest we can come to defining disobedience in a modern political context is “as a political practice that acquires sense and theoretical depth in relation to the way the agents that practiced it assumed, re-elaborated, and criticized the fundamental concepts of modern politics.”72 It is in the synthesis of the re-elaborations and criticisms that take place via disobedience referenced above that Laudani finds the fundamental possibility of “alternative articulations” of modern political concepts.73 It is through acts of disobedience like these, defined by and consummated in acts of “withdrawal”, that are both “continual and open-ended” that Laudani sees the operation of destituent power. 74 Like many of his contemporaries that work with the concept of destituency, Laudani is quick to assert that his understanding of destituent power is influenced by and indebted to theories of constituent power. In fact, in Laudani’s thought, one could say that destituent power takes on the form of constituent power’s dark mirror. We can say this because Laudani understands both forms of power as being manifestly conflictual. However, where one, constituent power, has as its focus creation, destituent power has as its focus withdrawal and re-articulation of already constituted institutions and forms of power.75 According to Laudani, both forms of power, constituent and destituent are latent capacities of political subjects, he regards both as “potency,” and “power” that seek to achieve novelty in the political scene. 76 Perhaps the crux of Laudani’s articulation of the relationship between these two forms of power comes in the guise of each power’s relationship to institutions. Laudani explains this by arguing that the actions that motivate constituent power and pg. 38 POLITICAL FORGIVENESS its related concepts like revolution, are institutionalizing powers; destituent power’s actions resist any such institutionalization, the agents behind destituent actions attempt for their acts to remain “extrainstutional.”77 Because Laudani theorizes destituent power as an extra-institutional power, and not an anti-institutional or institutionalizing power, it is insulated from the aforementioned critique. Therefore, sovereignty is acknowledged, but so too is an ever-present counter-power juxtaposed against it. To Laudani’s paradigm that focuses on disobedience, we can add Agamben’s approach which investigates the possibility of destituent power yielding what he calls inoperativity. It is an alternative politics if it is a politics at all that Agamben hopes a theory of destituent potential might achieve. Already Agamben’s attempt to theorize a destituent potential presents the reader with a central difficulty, it is not at all clear that Agamben himself understands what achieving a destituent potential would look like. At times it seems that the fulfillment of a destituent potential would herald a novel form of politics altogether freed from the lawlessness and violence of sovereignty. At other times Agamben’s thought veers toward an anarchism with little form. Agamben argues that achieving such an alternative politics, “a different figure of politics” as he calls it, will require the abandonment of constituent power which has been the paradigmatic form of power harnessed in the West to achieve radical political change.78 Modern thought, according to Agamben, has always looked to constituent power as the source of political change, the problem in doing so is that constituent power is “inseparable from constituted power, with which it forms a system.”79 Agamben understands constituent power to “remain external to the State even after its constitution, while the constituted power that derives from it exists only in the State.”80 Nevertheless, because constituent power has the potential to be harnessed for radical political change and as such can threaten the foundations of the very system which it founds it is pg. 39 POLITICAL FORGIVENESS necessarily, “confiscated and captured in the constituted power to which it has given origin and survives in it only the power of constitutional revision.”81 Such is the need for a theory of destituent potential, as Agamben calls it. A central problem with Agamben’s desire for and attempt to erect a theory of destituent potential is that he never actually tells his reader in what way a destituent potential can be realized, how destituent power might act, and what types of practices might constitute destituent actions. The paradigm of destituent power that Hardt and Negri work in, like Laudani is defined by concrete acts of political resistance. There is, however, a crucial difference between the way the duo deploys their paradigm of destituent power. Whereas Laudani’s characterization of destituent power relies on an amalgamation of disobedient political acts, some passive in nature and others active, Hardt and Negri’s is a decidedly more active mode of resistance. This is an important difference and raises a crucial question: whether or not destituent power’s mode of operation is, or should be, characterized by inoperativity or if the goal of destituent power is a rendering of inoperative the powers it opposes. Hardt and Negri offer a clear picture of how they understand destituent power’s operation and objectives. For the two destituent power is not merely a potential but definitive political action taken with the express purpose of rendering an opposing locus of power inoperative. For the above reasons, it becomes clear why Hardt and Negri prefer to utilize the semantic term ‘destituent political activity’ rather than destituent power. Their concept of destituent political activity arrives in Assembly rather abruptly and without warning. This is noteworthy given that destituent power, or destituent political activity is, to be fair, a rather obscure concept. The two spend no time introducing what they mean by the term, and so the reader is left to parse what, and why, the two deploy the term from the context of its use. For this reason, it is fair to question whether or not Hardt and Negri are truly using the pg. 40 POLITICAL FORGIVENESS term destituent for purely semantic purposes and drawing upon the etymology of the word to denote deprivation or abandonment. This dissertation is indebted to these paradigms of destituent power. Given the relative obscurity of the concept I have sketched out these dominant approaches here for the reader. In this dissertation I deploy the paradigm of destituent power as an evacuative power that is signified by negativity, and withdrawal. In this work, I resist the temptation to conceptualize destituent power and destituency as that which aims at utopia or has a utopian agenda. I also resist the temptation and tendency to link destituent power with simple-anarchism and postsovereign politics.82 Rather, this dissertation conceptualizes destitutent power as a counterpower, a power of resistance. 83 A power that is at once disarming and defiant. Methodological commitments: The canonical texts of Western political thought have delivered the idea of political forgiveness to us in an oblique and often curious manner. Understanding the meaning of political forgiveness for a particular author often requires nesting that meaning within the larger context and intent of an author’s political project. For that reason, I will pursue a method that places great importance on the written word of the text, where in the text the words that signify forgiveness appear, and where in the text one would expect to find political forgiveness, yet in its place is an absence. Often the appearance of political forgiveness is brief and fleeting, but as I will argue this brevity should not be confused for superfluity. The context in which forgiveness appears, how forgiveness emerges and arrives often appears concordantly across thinkers, but this is a surface appearance that disguises nuance and difference across thinkers. The presence of pg. 41 POLITICAL FORGIVENESS words that signify forgiveness is important, for as I will discuss below, political forgiveness is but a category. For this reason, Machiavelli may explicitly use the word “mercy” or “reconcile” and I understand him to be discussing political forgiveness. To animate the claims this dissertation will go on to make and pursue the questions that I have posed so far, I propose to read political theory with the intent of extracting the salience and significance of its thought for contemporary political practices. In so doing I follow the heritage of a long tradition of critical theorists for whom thinking and writing were not enough. Although I confess a textually-based method of reading and thinking, I do so to quote Bernard Harcourt, “to change this world in these times of utter crisis.” 84 In what follows, I will situate where my practice of reading political theory falls. When one reads one does not simply consume texts. Texts of political theory present readers with the question of meaning. What did Machiavelli mean when he wrote that “each prince should desire to be held merciful and not cruel; nonetheless he should take care not to use this mercy badly.”85 How did Locke intend for his reader to understand his assertion that the prerogative power, the exercise of which pardon is an example, of a Prince “is, and always will be just Prerogative.”86 It is because readers bring to a text a series of commitments about how one extracts meaning from the words read that it is necessary to situate ones’ commitments to reading. Because it has been in the history of political thought a practice to read its texts with different commitments and intents different methods of reading have developed into their own schools of political thought. Is there a way that a text of political theory could transmit its meaning to its reader without the letter of the text explicitly stating that meaning? Leo Strauss and his Straussian acolytes have answered this question in the affirmative, and in doing so have developed a method of reading the canonical texts of political theory such that a reader can extract the pg. 42 POLITICAL FORGIVENESS exoteric and esoteric meaning of those texts. In Persecution and the Art of Writing Strauss outlines the reasons he asserts that certain texts have esoteric content as well as the general principles for conducting an esoteric reading. Esotericism, Strauss claims, is a result of the possibility of the persecution of the authors of certain texts. The context of this claim, according to Strauss, is nested in the philosopher’s pursuit of truth and freedom of thought which cuts against societies’ often outright hostility towards heterodox ideas. Strauss explains that the great benefit that philosophers and theorists have is that they transmit their ideas in text rather than in speech acts, as such the philosopher “can utter them in print without incurring any danger, provided he is capable of writing between the lines.”87 For Strauss writing between the lines had a very specific meaning, to write between the lines is not haphazard, nor do all thinkers engage such a practice. The first and obvious question is how so many texts which so many are familiar with could possibly contain an esoteric meaning available to so few? Strauss would explain it is a result of the vast majority of a text being presented in the orthodoxies of an author’s time to evade persecution, only when the author “reached the core of the argument would he write three or four in that terse and lively style which is apt to arrest the attention of young men who love to think.”88 The possibility of this technique rests on Strauss’s assertion that the majority do not have the ability, nor are intelligent enough, to catch on. As Strauss quips, “thoughtless men are careless readers, and only thoughtful men are careful readers.” 89 Strauss’s principles for reading between the lines are rather straightforward. According to Strauss one may not read between the lines “where it would be less exact than not doing so.”90 Before one is permitted to read between the lines one must have a perfect understanding of the text and context of the statement in question. “If a master of the art of writing commits such blunders as would shame an intelligent high school boy,” Strauss writes, “it is reasonable to assume that there are intentional, especially pg. 43 POLITICAL FORGIVENESS if the author discusses, however incidentally, the possibility of intentional blunder in writing.” 91 Yet another principle that has particular purchase is that an “opinion of an author is not necessarily identical with that which he expresses in the largest number of passages.” 92 As previously argued that which would cause an individual author to engage in such esotericism is the fact of persecution for the dissemination of heterodox ideas. Persecution, according to Strauss, may take on a variety of forms and levels of severity. Strauss informs his reader that at one extreme end of the scale of persecution are events the likes of the Spanish Inquisition at the more mild end he includes social ostracism. 93 Strauss claims that for the thinkers he has in mind, Hobbes, Machiavelli, and Locke, amongst others, thinkers that make their appearance in this dissertation, the experience of persecution was not as mild as mere social ostracism, it was as he calls it, “more tangible than social ostracism.” 94 The root cause of the persecution felt by certain thinkers, according to Strauss, was typically one of two types, persecution for free inquiry and, or religious persecution. Such were the conditions that produced books that expounded “two teachings: a popular teaching of en edifying character, which is in the foreground; and a philosophic teaching concerning the most important subject, which is indicated only between the lines.”95 To be sure there are glaring problems with the Straussian method. First and foremost it is an inherently anti-democratic and inegalitarian doctrine. The Straussian must be properly trained and indoctrinated into the method of reading. Strauss’s is also a method that can readily be critiqued as misogynist. I do not presume, as Strauss does, that the meaning of a text is only accessible to a few especially intelligent men (men here truly means males as it is clear in Strauss’s discussions that it is males that he has in mind as being capable of mastering his principles of reading). Just as Strauss’s doctrine is inegalitarian so too are the political policies pg. 44 POLITICAL FORGIVENESS and practices that those trained in his teaching pursue. For these reasons I do not imagine myself a Straussian, however, there is a way in which I read the texts of my interlocutors in this dissertation that asserts their anxieties and preoccupations over political forgiveness are not explicitly stated in the open. I will argue that like Strauss’s reading between the lines, the thinkers I engage betray themselves with what they do not explicitly state, or with what they merely intimate. Each thinker I engage in some way or form argues for the need for stable laws to ensure a stable political order, political forgiveness threatens that project. Thus, reading between the lines of my interlocutors brings into relief the different and nuanced anxieties and concerns they wish not to confess. In Subverting the Leviathan, James Martel engages a rhetorical reading of Hobbes’s Leviathan. Martel does so to make the argument that Hobbes invites his reader to, “subvert his own textual authority and, by extension the authority of the national sovereign.” 96 Martel explains that such a radical reading of Hobbes is possible precisely because, “for Hobbes the meaning of a text does not reside in the “bare Words” of the author, that is, in the overt claims that an author makes at any given point in the text.” 97 Instead, Martel finds that Hobbes claims that the “meaning” and “authority” of a text is to be found in a texts overall structure and “our respective interpretations” of a given text, respectively.98 Martel’s overall objective in Subverting the Leviathan is to argue for and offer up a radically democratic reading of Hobbes. Amongst Martel’s commitments to his reading of Leviathan in the service of this argument is his assertion that the text of Leviathan is “self-reflexive.”99 To explain what self-reflexivity means in this context Martel resorts to the example of how one used to be able to “show codes” in word processing software.100 Martel cites how when one used the show codes function it “made visible amid the text that one happened to be working on the various commands (“bold,” pg. 45 POLITICAL FORGIVENESS “indent,” etc.) that occurred around and within the text, structuring and constructing it.” 101 Martel wants us to understand that a consciousness of those codes, an awareness that they are present in the text makes it possible for a reading of, and the reader of a text (in this case a very specific text) to ascertain potential textual conspiracies.102 I do not intend to make the argument that in the texts of the interlocutors I engage in this dissertation something like a textual conspiracy can be found the substance of which is political forgiveness. Yet, a reading attentive to showing the codes of the texts I engage, so to speak, draws out the unwritten, implicit, and subtextual which structures the arguments my interlocutors make regarding political forgiveness. Those un-shown codes are the very real anxieties that each of my interlocutors harbors pertaining to political forgiveness. Martel argues that his rhetorical reading is one among many possible readings of Leviathan, like Martel I confess that my approach to reading is but one amongst many. I do not pretend it is the most superior one, it is simply the method of reading, to borrow from Althusser, of which I am guilty. Louis Althusser would say of course that we are all guilty when we read, in a certain respect, for there are no innocent readings.103 Althusser explains that it is the guilt of a particular reading which gives it purchase. Althusser urges us, the readers of texts, to take “responsibility” for our practice of reading so that we may defend “it by proving its necessity.” 104 And what kind of reading would Althusser argue is necessary and worth defending? One that, like Martel’s method of reading discussed above, is attentive to those things which a text says without saying or being able to say. Althusser, in a fashion not entirely dissimilar to Strauss and Martel, espoused reading theoretical texts symptomatically. Althusser’s discussion of Marx’s reading of Adam Smith is indicative of this. Althusser writes that Marx’s reading of Smith is a “reading through a grid, in which Smith’s text is seen through Marx’s, projected onto it as a measure of it, pg. 46 POLITICAL FORGIVENESS is merely a summary of concordances and discordances, the balance of what Smith discovered and what he missed, of his merits and failings, of his presences and absences.” 105 Althusser argues that such a reading allowed Marx, and can allow us, to pondering what is left unsaid, unseen, and unwritten by an author, in this case, Smith, and their text in doing so elevating those silences or blanks in the text to a position of greater importance. Althusser argues reading this way can, “make us see what the classical text itself says while not saying it, does not say while saying it.”106 It is in this respect that I defend the necessity of such a reading of those texts that I engage. As Althusser explains of Marx, I do not seek to “impose from without on the classical text a discourse which reveals its silence - it is the classical text itself which tells us that it is silent: its silence is its own words.”107 Thus, I do not find that I am reading into a text the anxiety that I claim to be in the mouths of the authors. My position is that these blanks exist but are not intentional but rather betrayals of authorial anxiety. Yet the same cursory survey would also reveal a more complex economy of forgiveness that is betrayed by those interlocutors’ anxieties, preoccupations, and polemics regarding the potentially deleterious effects of political forgiveness. Nor do I pretend that the palliative functions and roles that political forgiveness fulfills are afterthoughts or imputations. The essential commitment is to read political forgiveness “on the terrain of and within the horizon of” the sovereignty problematic, so that its Janus-faced nature comes into full relief, and exposes the ground occupied by the counter-power of destituency.108 The practice of reading adopted in this dissertation was not one I could espouse in the nascent iterations of this dissertation. However, as I read and thought it became clear that my interlocutors were trying not to convey something while conveying the roles appropriate to political forgiveness. I began to become aware that each was attempting to conceal something. pg. 47 POLITICAL FORGIVENESS What I realized and will argue is that what each attempted to conceal were their anxieties about the existence of political forgiveness, their preoccupations with its inherent power, and their polemical relationship to it. For these reasons those I began to try and emphasize a reading of the texts that was between the lines, to discover what a text says without saying it, and to attempt to see the codes in the texts of my interlocutors. What you’ve discussed above is so confusing for your argument. Do we really need Strauss and Althussser on how to read texts? I don’t think so. The chapters ahead: what follows should not be, as it now is, an endless summary of each chapter, but a brief remark about each—if that is even necessary. Over the course of this dissertation, I pursue the role and meaning of forgiveness and mercy in the canonical texts of Western political thought. The intent of what follows is to provide the reader with a roadmap to the dissertation as a whole. Part of my intention in providing an introduction to the larger work that lays ahead is to provide some detail as to how I will argue that while each thinker I engage demonstrates a basic relationship between sovereignty and forgiveness they also demonstrate important differentiation in their thought. Concomitantly, and as part of a close and symptomatic reading of the texts of my interlocutors I also demonstrate that alongside the explicit uses of forgiveness each thinker imagines they all demonstrate acute anxieties over political forgiveness. I catalog these anxieties (sometimes explicitly stated in the text at other times implicitly confessed) for in each case the malady that the anxiety is symptomatic of arrives in the form of disobedience. In what follows I introduce with brevity, but nuance and specificity as well, the interlocutors and the major theoretical interventions I make concerning each of them. These interlocutors include Jean Bodin, Thomas pg. 48 POLITICAL FORGIVENESS Hobbes, John Locke, Cesare Beccaria, and Nicollo Machiavelli. One final brief note on this chapter outline; each chapter includes a wealth of critique and reconstruction of the secondary literature pertaining to each of my interlocutors. I have not included a recapitulation of those engagements here for the sake of brevity. Instead, I focus on the major novel theoretical interventions that are my own. The centrality of the institution of sovereignty dictates that I begin this dissertation’s substantive chapters with a thinker who gave form to our modern understanding of sovereignty. In Chapter 1 I do this through an engagement with the thought of Jean Bodin. Mercy and forgiveness were firmly ingrained in the tradition of political rulership before Jean Bodin penned his Sixbooks of the Commonwealth, but with Bodin important facets of that already established tradition changed. We know that for Bodin sovereign power was and continues to be the highest power of command. Inclusive of the highest power of command, necessarily, is the sovereign’s power over life and death. As Foucault would later formulate it, sovereign power was the power to take life or let live. Throughout Chapter 1 I argue that Bodin understood that this fact ultimately led Bodin to necessarily suture mercy and forgiveness in the form of pardon to sovereignty as one of the constitutive elements of the exercise of the sovereign’s power. He could not but do this, as pardon, as I argue, in Bodin’s thought, was demonstrative of forgiveness in the final instance. I defend the claim in the chapter that it was the begging of forgiveness from the sovereign in the final instance that had the power to demonstrate or recuperate the sovereign’s power. Furthermore, and equally as important, I argue for the importance of the sovereign’s prerogative of pardon as an act that is an element of law with the power to contravene the law. Here we find Bodin both establishing the tradition of mercy and forgiveness as exceptional powers of sovereignty and introducing the catalyst for countless anxieties and pg. 49 POLITICAL FORGIVENESS preoccupations about the possible negative effects of forgiveness’s inclusion in politics and law. In the chapter, I detail how with his inclusion of forgiveness as one of the highest attributes of sovereignty he catalyzed for himself a deep concern over the misappropriation and usurpation of political forgiveness. I demonstrate this through a detailed discussion of Bodin’s engagement with three figures, the king, the tyrant, and the witch. I show how for Bodin the king figure is conformational of the appropriate wielder of forgiveness and the role appropriate to forgiveness. In the figure of the tyrant, we see Bodin demonstrate how the right of forgiveness in the wrong hands is deleterious to sovereignty and invites disorder. I position the witch as a would-be confessor to show how the act of confession, in Bodin’s thought, served a recuperative function for tainted sovereignty. In addition to these figures I also try and show how at the time Bodin was writing, a time of contested authority between religious and secular powers, Bodin expressed an especially polemical concern about the church’s dispensation of forgiveness in a legal and political register. Finally, I argue that the palliative nature of political forgiveness is directed at the institution of sovereignty itself. For Bodin when political forgiveness does not fulfill its role of confirming sovereignty it must be exercised in its recuperative capacity and heal the wounds that sovereignty sustained. In sum, I pursue an argument that Bodin focuses on how the political authority of the sovereign is ensured by political forgiveness but misses how the act of forgiving entails a politics of its own. It is this politics that I attempt to draw out in my critique of Bodin’s discussion of each of the above figures, insisting that what Bodin attempts to achieve in The Sixbooks is a destruction of any economy of forgiveness and its attendant power and the establishment of a monopoly of forgiveness in the sovereign’s hands. Chapter 2 engages the thought of Thomas Hobbes. The claim I pursue in the chapter is that in Hobbes’s corpus, in contrast to Bodin’s thought, the danger of political forgiveness is not pg. 50 POLITICAL FORGIVENESS that it might negatively impact sovereignty directly but that it is through the potential disobedience or destituent politics that it might inspire. To this end, I adopt one of the central thematic tenets of Hobbes’s political theory, fear. I use fear and how Hobbes harnesses fear to make one of my main theoretical interventions. As is well known it is fear of an untimely and brutish death that drives the Hobbesian subject to instantiate political society. My argument is that across the Hobbesian corpus fear and forgiveness are linked to one another through a shared logic. I make this argument through a close engagement with Hobbes’s sixth law of nature across his texts. I find that there is definitively a distinct preservative and palliative logic at play in the manner in which Hobbes discusses both acts of forgiveness and acts taken out of fear. Crucially, these acts are not isolated to either political subjects or sovereign actors. In this way, Hobbes admits to the possibility of sovereign actors engaging in merciful or forgiving acts out of fear. With the shared logic between fear and forgiveness established I move on to a discussion of chapter XXX of Leviathan where Hobbes most explicitly confesses the anxiety he bears over political forgiveness. I show how in this chapter Hobbes discusses the relationship between equity, and political forgiveness, and how sovereigns can affect inequities in the political and juridical sphere through their dispensation of political forgiveness. The resultant political effects, as I argue Hobbes catalogs, are deleterious to the body politic and may ultimately lead to the dissolution of the sovereign power. Hobbes’s express anxiety is that through acts of political forgiveness its recipients will become used to acting with impunity and as a result insolent of authority when it is exercised, thus, political forgiveness breeds disobedience and potentially destituency. Through a close reading, I argue that Hobbes lays this potential not at the feet of the political subject one might assume, the multitude, but rather in the hands of oligarchic elements. Being in conversation with Hobbes fosters the first substantive opportunity to confront a pg. 51 POLITICAL FORGIVENESS question that the conviction I began this project with posed. If the power of forgiveness is unique, how does it find its way into the hands of the sovereign? Rendered another way, when political forgiveness is enacted is it exercised as power or as authority? I begin to interrogate this question in this chapter on Hobbes and follow it through the remaining chapters. I use Hobbes’s theory of authorization and his attendant concept of authorship as an occasion to plumb the possibility of a more radically democratic potential in Hobbes. I argue that the maintenance of the power of forgiveness by the Hobbesian subject is completely consonant with Hobbes’s theory of authorship, however, I conclude that this does not preclude the sovereign from dispensing political forgiveness as a power. I make this claim and defend it citing Hobbes’s propensity for using two terms for power, potential, and potestas. I contend that by the former Hobbes means to indicate an instrumental physical power and the latter is indicative of a superadded legal power. I conclude the chapter by drawing each of these elements together to articulate his thought on equity in acts of political forgiveness and his juridical and anti-juridical understanding of power. It is through this articulation that I argue, paradoxically, Hobbes’s express fear is that the destituent and disobedient potential of political forgiveness is consummated through the power, potestas, of forgiveness, held not by the multitude, or even oligarchic elements but the potestas of forgiveness held by sovereignty. In addition to this, I conclude that the salience of Hobbes’s juridical and anti-juridical conception of power is that it admits political forgiveness is a complicated amalgam that is certainly exercised from above, but Hobbes’s work intimates the capacity for this power to be exercised from below as well. In chapter 3 I investigate political forgiveness in the thought of John Locke. I do so by contextualizing and reading political forgiveness against and within Locke’s thought on punishment, and two themes internal to punishment, remittance and reparation. Like Hobbes pg. 52 POLITICAL FORGIVENESS before him, John Locke provides an opportunity to parse the question of whether when sovereign authority dispenses forgiveness in the form of pardon, or merciful acts, its actors do so via an act of power or authority? Thus determining whether the prerogative of forgiveness was indeed exercised via power or authority becomes crucial as it is indicative of if the sovereign authority in exercising forgiveness does so via right, or, to quote Locke, power beyond right. I turn to the ‘other’ of forgiveness and Locke’s justification for the sole right of punishment being vested in the hands of the sovereign to draw out the query laid out above. I defend my turn to punishment as in Locke’s work one can trace the conceptual metamorphosis that occurs in the transition between pre-political and properly political spheres. I utilize this transition to engage the question of how certain concepts are figured as powers belonging to pre-political subjects and how those powers are alienated to sovereignty, the process of which transmogrifies those powers into rights. My argument is that in Locke what occurs is a kind of theoretical sleight of hand whereby punishment is alienated to the sovereign and along with it goes forgiveness, however, when read carefully it is only punishment that is alienated, no similar transfer occurs pertaining to forgiveness. Before concluding I push the analysis further by interrogating what Locke understands by punishment in a pre-political context. He defines punishment as a composite of the right of restraint and a right to reparations, so, is it fair to levy the claim of theoretical sleight of hand? If reparations are understood to be conceptually adjacent to forgiveness instead of punishment then is it not the case that forgiveness becomes an element of punishment alienated? The themes of remittance and reparation internal to Locke’s understanding of punishment are also interrogated. What did Locke mean when he used the word reparations? For reparations could gesture at a recompense, where such recompense is constitutively financial or material. But reparations might also gesture towards a general making amends for harm done, the latter of pg. 53 POLITICAL FORGIVENESS which is far closer to an affective understanding of forgiveness, political or otherwise. One understanding finds the individual ceding their right to determine a proper distribution of material losses for a wrong committed, while the other finds the individual ceding their moral autonomy. To reach closure on this discussion I follow Locke carefully in his discussion of reparations which appears in Chapter II of the Second Treatise that treats the state of nature. It is here perhaps more than any other area of his Second Treatise we find an important movement that would seem to confirm my argument that while individuals alienate their ability to punish in the course of the contract that establishes political society, the power of forgiveness and its attendant politics, are not similarly alienated. The evidence of this is found in Locke’s argument that reparation, while akin to punishment, is an act that takes place alongside, in addition to, or as we shall see potentially in the absence of punishment. My third chapter on Locke relies no less on a close reading of his text, but in this chapter a certain amount of historical contextualization occurs. I could not but help its inclusion and I flag that historical contextualization there. I do not consider it so much a methodological departure as a methodological addendum that aided my method of close reading. Here it is also worth noting that unlike his predecessors Locke’s account of the prerogative of pardon is purely affirmation. It is a peculiarity of his work that he admits of no anxiety over the sovereign prerogative of pardon. I attempt to show why this was and that it was a specific injunction of Locke’s. Notably, this injunction regards the debate Locke found himself a part of at the time he wrote regarding the true seat of sovereignty. Finally, I argue that with Locke for the first time we find the palliative role of political forgiveness expressly directed outward at political subjects rather than inward at the institution of sovereignty itself. Chapter 4 turns to the thought of Cesare Beccaria. I adopt Beccaria in this chapter because pg. 54 POLITICAL FORGIVENESS his thought represents a break with the tradition that inaugurated a discourse around sovereignty and sovereign power and sought to re-articulate those concepts. In the chapter, I defend his status as an individual who re-articulated the notion of sovereignty and situate his uniquely disciplinary understanding of forgiveness within the penal reforms he championed. Following Foucault I argue that it was discipline above all that Beccaria sought to instantiate in society through a new science of sovereignty if you will, and, that the sovereign dispensation, or lack thereof, forgiveness was inextricably linked to his goals. It was specifically punishment that Beccaria sought to reform to affect the desired discipline, punishment, I attempt to show, had to be certain, it had to be inexorable, but for it to be these things Beccaria insisted it be merciful. Thus, as I argue, there is a strange quotient of mercy at work in Beccaria’s thought, for if his project were to be successful it meant the eradication of political forgiveness. I try and show the reader that Beccaria’s assessment of political forgiveness and his explicit reticence of it cannot be apprehended without reference to his basic understanding of human nature. In short, Beccaria believed that to show that crimes could go unpunished, that the possibility of escaping punishment in the legal arena had even a shadow of a chance, would be to invite and encourage licentious behavior. I argue that for Beccaria humans are desirous and passionate creatures driven by sentiment, in short, Beccaria believed given the chance an individual would rather ask forgiveness than permission. I accomplish this by reading Beccaria’s social contract as a sacrificial contract (Beccaria’s words, not mine) and the political subjects he imagines populating life after the contract to be pre-disposed to a retributive logic of discipline. To demonstrate the concrete link between forgiveness and discipline in Beccaria’s thought I read On Crimes alongside several of Beccaria’s other works. The picture that emerges when this is done, with supporting evidence from Michel Foucault and Bernard Harcourt, is that of a man bent on pg. 55 POLITICAL FORGIVENESS disciplining and cataloging all facets of life. After I establish this linkage I turn to a discussion of how Beccaria, by necessity, repudiates certain forms of political forgiveness and mercy in favor of others. This repudiation, I attempt to show, is a result of his preoccupation and anxiety over the potential temptation that forgiveness presents in the mind of the political subject. What I believe I show through my encounter with Beccaria is unlike my previous interlocutors, each of whose thought can be demonstrated to include a palliative role for forgiveness, there is no such place of palliation through forgiveness for the body politic. Instead, Beccaria imagines that the palliative function needed for a body politic can be carried out through a regime of punishments designed to impart discipline on otherwise licentious individuals and groups. It is as if, I conclude, Beccaria imagines a consciousness of political forgiveness and its implications within a body politic might produce an auto-immune reaction capable of a descent into lawlessness. In the chapter, this becomes the bind that Beccaria finds himself in. The problem of the sovereign prerogative of pardon is a particularly thorny one for Beccaria, as I argue its utilization represents an affront to each of the major injunctions of his project. Not only does political forgiveness represent the uncertainty of punishment, but it also serves as a signifier of the sovereign’s arbitrary ability to decide on the exception, and finally it demonstrates that through its utilization those who exercise sovereign power might do harm to the public well-being. As I draw the chapter to a close I argue that Beccaria acknowledges the status of pardon as a prerogative of sovereignty but fails to come to terms with the consequence of this. My work shows that he attempts to render pardon exemplary rather than exceptional. His desire I conclude is to denude it of its extralegal status and instantiate a legal code that is, according to Beccaria’s standards, by its very nature merciful and compassionate, a legal code whose very foundation is clemency. Beccaria finds that “clemency ought to shine in the legal code and not in particular pg. 56 POLITICAL FORGIVENESS judgments.” Beccaria attempts to evacuate the exception from sovereignty and legal system by inscribing it directly into that very same system. But he doesn’t fully reach closure in this attempt. I began the substantive chapters with Jean Bodin for the reason that he inaugurated the traditional theory of sovereignty. In chapter 5, I begin to bring my dissertation to a close with this penultimate chapter on a different inaugural figure of political thought, Machiavelli. I have chosen to bookend the substantive chapters of this work with Bodin and Machiavelli for the reason that although they wrote some five hundred years ago I find their respective political thought to weigh with great prescience on the conjectural moment I write within and the arguments I will pursue over the course of this dissertation. By ending with Machiavelli I hope to put his thought into conversation with the contemporary political moment as I believe in doing so he invites us to consider political forgiveness in both abundance and abeyance. The primary texts of Machiavelli that I utilize to make my interventions in this chapter are The Prince and The Florentine Histories. Before I turn to these texts I provide a general reconstruction of Machiavelli’s political thought. In the course of this reconstruction I catalog the importance of his break with the past. Most prominently in this reconstruction I situate political conflict and tumult as central to understanding Machiavelli’s political thought and invite the reader to consider how this fact gestures at the role of political forgiveness for Machiavelli. In the course of the chapter, I address the question of Machiavelli’s audience, princes or peoples? In this discussion, I support the thesis that one must approach Machiavelli’s texts with an understanding that he did not write for this audience, or that audience, but rather wrote for, and from multiple viewpoints. Finally, I engage Machiavelli’s discussion of the nature of virtü and fortuna arguing that the latter, under conditions in which political forgiveness is in the offing, represents the pg. 57 POLITICAL FORGIVENESS opening of a political space in which mercy or forgiveness might be exercised by rulers or people to their benefit. After this general reconstruction, I proceed first to elements of The Prince salient to my study and then to The Florentine Histories. There are many places in The Prince where Machiavelli engages the question of mercy and forgiveness none more read and misread than Chapter XVII Of Cruelty and Mercy, and Whether It Is Better to Be Loved Than Feared, or the Contrary. I begin there. In my reading of Chapter XVII I foreground that which Machiavelli argued was central to political life, outcomes. I argue that when one does this Chapter XVII takes on a meaning substantively different than a surface reading provides. In my reading of Chapter XVII, I suggest that the most important discovery to be made is that Machiavelli never councils princes on how to use mercy, but rather warns against the improper uses of mercy. Here I turn to Machiavelli’s discussions of the rule of Cesare Borgia to demonstrate that when Machiavelli discusses mercy and forgiveness he is really discussing two things at once. The appearance of being merciful or forgiving and what political practice ultimately bears out, which could be a merciful outcome achieved through less than savory methods. In the chapter, I attempt to show the reader how Machiavelli is led at times to praise the dispensation of mercy while at other times he is extremely critical of merciful acts. But this does not mean that Machiavelli is ambivalent regarding the practical uses of mercy and forgiveness. In fact, I argue, it is quite the opposite. If one considers the outcome of mercy or forgiveness as the outcome of the outcome of a conflict (crudely worded I admit) what is clear is even after a conflict's cessation there remains a final step in which the prince or the people can gain the upper hand politically. Seen through this lens, the interplay of mercy and forgiveness as the outcome of the outcome of a conflict are actually constitutive elements of the conflict itself. pg. 58 POLITICAL FORGIVENESS The final aspect of my chapter on Machiavelli takes the reader through a deep consideration of the ciompi revolts that make up the body of the third book of The Florentine Histories. I begin by providing the appropriate context to that work. Given the historical idiosyncrasies of the subject matter, I also provide a general sense of the political power dynamics at play between the dominant actors in the section of the book in question. Finally, I offer a reconstruction of the ciompi revolt that highlights the centrality of mercy and forgiveness, conciliation and reconciliation to the endemic cycle of strife that event represented and the continual changing of political fortunes that were its outcomes. Within the pages that describe the revolt what I demonstrate is the circulation of the unique and differential economies of power that political forgiveness possesses. All of the anxieties that my previous interlocutors expressed about the potential of mercy and political forgiveness are put on display by Machiavelli. Forgiveness as the ultimate power of life and death, the insolence of oligarchic elements, the prudential need to engage in pardons and amnesties, the potential autoimmune response inherent in mercy…all engendered by the cycle of conciliatory actions taken in Florence. So here we find disobedience and the ability to affect political change…but is there destituency? In the conclusion of this dissertation I recenter the question I began with, can political forgiveness be harnessed as a counter-power, a form of destituent power? The reader is reminded that the question I put to political forgiveness was, can one disassemble the master’s house with the master’s tools? I argue in the conclusion that the answer to this question is not no but rather a qualified no. I invite the reader to consider Machiavelli’s specific lesson; a consciousness of political forgiveness can indeed lead those unhappy with the status quo politics to rebel and take political power through a cycle of reconciliation and recompense. However, as I attempt to show through my engagement with Machiavelli, each change of power, each cycle of violence, pg. 59 POLITICAL FORGIVENESS recompense, and reconciliation, results in those who were forgiven for their resistance and revolt not suffering their forgivers happily. The claim that I pursue in this regard is that which plagues political forgiveness and those that seek to put it to work for their political ends is its abundant nature. I argue that as an abundance, whether issued by sovereign authority as a prerogative, or inaugurated from below the apparent commonness of acts of political forgiveness stand at odds with the unique potential power that political forgiveness holds in reserve. As a result, I conclude by considering what, against the conviction that I began with, is the peculiar and unique power I imagined to be constitutive of forgiveness. I posit that this power might only be realized when held in potential, in abeyance. These considerations lead me to propose the possibility that while political forgiveness cannot be realized as a destituent power when held in abeyance it could be theorized as destituent potential. I conclude by considering how reparations, a concept akin in some ways to forgiveness, might fulfill the destituent role I desired of political forgiveness. This section has far too much information about each chapter. The chapter discussions need to be drastically cut. The idea of presenting a quick look at each chapter is to tell us what issues and questions they address and raise, not to summarize everything you will say later. Raising the stakes: Even as I have aged I have been continually intrigued by the capacities generated by the denial of forgiveness, capacities that one can witness driving their transgressor nearly to madness, a madness that sets upon them frustrating them with a peculiar evacuative force. At the outset, I situated the essence of this practice in the heterodox reading of Mathew I discovered in my youth. I confess now that the stakes of the social asymmetries of power this practice has the pg. 60 POLITICAL FORGIVENESS capacity to upend are rather low. Political stakes are often much higher, at times they border and transgress the existential. Is there a way to reconcile the approach to political forgiveness that I have begun to defend in the face of a power over life and death? That is the question I interrogate in the next chapter through an engagement with the thought of Jean Bodin. pg. 61 POLITICAL FORGIVENESS Chapter I. Jean Bodin - political forgiveness and the power of life and death In spite of sovereignty: The introduction of Michel Foucault’s Discipline and Punish is as infamous as it is iconic. The imagery is visceral. The depiction is of Damiens the Regicide, his grisly torture, and his gruesome death. The scene is as important for its depiction of the absolute nature of sovereign power, its power over life and death, as it is for Damiens’ lack of submission to that power unto death. The juxtaposition would be poetic were it not for the detailed description of Damiens’ dismemberment. The extreme nature of the historical account shines a light so brightly on the brutality of sovereign power (and heroic resistance?) that the significance of the shadows cast by that light is all too often lost. What we find lurking in those shadows, should we take the time to look, is the explanation and justification for such extreme forms of retribution as those visited upon Damien. That justification is the need for sovereign power to recuperate itself, and part and parcel of that recuperation is the issuing of forgiveness…even to a regicide. In her book Starve and Immolate, Banu Bargu comes the closest of any scholar who makes a study of Foucault and his opening chapter of Discipline and Punish to interrogating the contents of those aforementioned shadows. What Bargu draws our attention to that others do not is the inability of Damiens torturers to extract a confession.1 She notes that Damien calls out to God, Jesus, and his “Lord,” but never begs pardon of his sovereign.2 The import of the confession is, Bargu argues, “a sign of ultimate submission to the sovereign power that has pg. 62 POLITICAL FORGIVENESS judged and decided the fate of the criminal selected for brutal execution.” 3 I would add that it is not the confession in isolation, but with what is attendant to the confession, the request for pardon. That it is the power of forgiveness that the sovereign holds and ultimately confirms the sovereign’s supremacy and is the apotheosis of the drama being played out cannot be overstated. That Damiens is not interested in either confessing, or begging pardon of the sovereign is of crucial importance. This is what Bargu calls, “the great disobedience displayed by Damiens…that he refuses to admit guilt and ask for clemency (emphasis added) from the sovereign despite the torture he is subjected to.” 4 It is as she says that “Damiens asks for mercy from God, but that is another story.”5 His refusal is a final act of spiteful insubordination. It is thus, that the absence of Damiens's request for clemency, pardon, and forgiveness, drives the sovereign to such lengths of brutality. The garish display of brutality is not the point, but paradoxically it is the garish display of brutality that creates the conditions of possibility for being begged for pardon that the sovereign can then forgive and be recuperated, rehabilitated, and made whole once more. It is in light of this strange power of forgiveness that I now turn to Jean Bodin, and return to Damiens later. The significance for Bodin of drawing out the story of Damiens and the importance of pardon within that story is that the function of forgiveness in that story is specifically how Bodin theorizes the role and function appropriate to political forgiveness. But the regicide suggests an altogether different reading of Bodin, one that centers on the politics that precede the act of forgiveness and create the conditions of possibility for its exercise. Disobedience, insubordination, resistance, regicide, Bodin’s foes, the politics of which, when forgiven, become constitutive elements of sovereignty. pg. 63 POLITICAL FORGIVENESS Sovereignty, from limited to absolute: Those that have made a study of Bodin have noted that there is the thought of Bodin before the St. Bartholomew massacre and his subsequent, augmented thought that followed in the aftermath of this event that, as scholars tell it, almost took his life. 6 In point of fact it is the augmented theory of sovereignty that Bodin developed in the aftermath of the St. Bartholomew massacre that he is perhaps most known for. This later augmented theory of sovereignty is that theory of absolute sovereignty that later thinkers, such as Hobbes, would adopt and adapt to an even more radical understanding of what absolute sovereignty means. However, the scholarship on Bodin bears out that before his brush with his own mortality Bodin’s theory of sovereignty appeared in a more limited form. A theory of sovereignty that did not consider the possibility or the import of political resistance to supreme authority. In what follows I set out to make an account of the development of Bodin’s theory of sovereignty from a limited form to the later absolute form it took on by drawing upon the body of work produced by scholars of Bodin. The explicit purpose of doing so is to illustrate that while Bodin’s theory of sovereignty did in fact shift, those elements of it that pertain to political forgiveness remain static across this development. I contend that this was necessarily the case as a result of political forgiveness’s function to signify the sovereign’s ultimate decision on life and death, a decision which is constitutive of sovereignty whether in a limited or absolute form. Therefore, I will discuss what caused the shift in thought, the content of that shift in thought, and a lesser appreciated possibility regarding the development of Bodin’s position, that of the influence of Niccolo Machiavelli. The most notable element of Bodin’s political theory is his development of the concept of pg. 64 POLITICAL FORGIVENESS sovereignty. Bodin marks a pivotal moment in history in which the word sovereignty took on the meaning that we associate with it today, supreme political authority. Bodin defined sovereignty as absolute and perpetual, indivisible and inalienable. But this definition was not always so for Bodin. The definition of sovereignty as absolute and perpetual political power is the definition, we find in Bodin’s The Six Books of the Republic. In his earlier work, The Method for Easy Comprehension of History Bodin defines sovereignty as supreme political power but leaves out the absolutist element. A careful reading of Bodin’s The Methods yields a sovereign that was a limited supreme authority, his sovereign in The Six Books arrives on the scene very early in the text as an absolute supreme authority. How did Bodin describe the seeming contradiction of a limited supreme authority? According to Bodin, the sovereign is supreme in that he can decree and amend the law, this is the substance of his supremacy, but he cannot do so by fiat. It is only when the sovereign has something akin to public consent that changes to the law can be made justly. This formulation changes abruptly in The Six Books where Bodin defines the first mark of sovereignty as the right of giving “law to all in general and each in particular.” But this is not sufficient. We have to add “without the consent of any other whether greater, equal, or below him.” 7 While this marks a shift towards absolutism it was not the final substance of Bodin’s absolutism. As we shall see, Bodin’s shift to absolutism had less to do with a dissatisfaction with his earlier theory of limited supreme authority and more to do with the specter of political resistance that began to emerge between the two books. In this way, we can see that Bodin’s later work was not necessarily an indictment of his earlier work, or a specific referendum of limited sovereignty but a response to an exogenous shock of sorts. The two works also establish what Bodin called the true marks of sovereignty, another pg. 65 POLITICAL FORGIVENESS unique element of his political theory. These marks were attributes of sovereignty that Bodin argued could not be exercised by another political entity for they were proper to the highest power alone. These marks of sovereignty provide another distinction between the two texts, for Bodin changes the order of the most significant marks in a significant way between The Methods and The Six Books. In The Methods Bodin orders the first five marks of sovereignty as follows; the right to appoint magistrates, the ability to make law, the power to make war, receive final appeal from magistrates, and the power of pardon. 8 Later in The Six Books, Bodin changes the order placing the ability to give and annul law first, the power of war-making second, and appointing magistrates third, with the fourth and fifth remaining the same. Taken together with the fact that Bodin drops the requirement of anything that resembles consent in the promulgation of amending of law this re-ordering also points towards a changed perspective on the absolute power of the sovereign. This accounts for the major difference in Bodin’s political theory between the two books but does not account for why the abrupt change. Scholars of Bodin point to the seismic paradigmatic changes that were occurring in his midst to explain the shift in his thought. Most prominent and tangible were the French religious wars that began shortly before the publication of The Methods. After the publication of The Methods, which as we shall see was a constitutionalist tract, the tenuous truce between French Calvinist Huguenots and French Catholics broke. Open conflict was largely inspired by the Huguenot belief in justified resistance to political power, hence Bodin’s strong rebuke of such resistance in The Six Books and his adoption of an absolutist theory of sovereignty. The shift from a constitutionalist perspective to that of an absolutist one carried with it the implied circumstance of a reduction in power for the nobility at the time. And although Bodin certainly had a critique of nobility, for instance, his position that political titles should not be bought and pg. 66 POLITICAL FORGIVENESS sold, his primary enemies were the Huguenots and their doctrine of resistance. As a result, we can say that Bodin’s influence and thought were implicated in a monumental shift in the balance of power between religious and secular institutions in French politics in the mid-fifteen hundreds. The Huguenot revolution in Bodin’s France provided much of the political fodder that would ultimately influence him to shift from a limited theory of sovereignty to an absolute theory of sovereignty. As Quentin Skinner has argued, it was the uprising of the Huguenots that would ultimately lead Bodin to eschew “the constitutionalist position he had adopted in his Method for the Easy Comprehension of History.”9 What concerned Bodin the most about the Huguenot's resistance to the established political ‘authority’ was that it invited anarchy and tyranny, twin threats which Bodin could not abide. 10 As a result of the Huguenot's claim to a ‘right of resistance’, which Bodin viewed as synonymous with anarchy, he turned his attention to refuting any justification of resisting sovereigns, this was the totality of the project of the Six Books of the Commonwealth.11 Skinner argues that Bodin, in responding to the Huguenot ‘threat,’ “insists that no public act of resistance by a subject against a legitimate sovereign can ever be justified.”12 To meet the challenge of his time Bodin shifted his position to that which he is most well-known for, establishing the sovereign as both part of the political order and above it because he is free to abrogate law. When Bodin discusses the relationship of the sovereign to law in The Methods there is a clear indication of a more constitutionalist position. He wrote, “it is a fine sentiment that the man who decrees law ought to be above the laws…but once the measure has been passed and approved by the common consent of everyone, why should not the prince be held by the law which he has made?”13 Shortly after this Bodin asks rhetorically, “[i]f it is just that a man shall be held by what he decrees for another, how much more just is it that the prince pg. 67 POLITICAL FORGIVENESS or the people shall be held by their own laws?”14 If there is doubt regarding Bodin’s position in The Methods that the sovereign should be bound by the same laws as their subjects this doubt is surely absolved by Bodin’s lofty approval of the French coronation oath. The practical effect of the oath is that when the sovereign swears this oath, the prince swears by immortal God that he will give rightful law and justice to all classes and so far as in him lies will judge with integrity and religious scruple. Having sworn, he cannot easily violate his faith; of if he could, yet he would be unwilling to do so, for the same justice exists for him as for any private citizen, and he is held be the same laws (emphasis added).15 Bodin’s position in The Six Books is diametrically opposite. He admits of no practical or normative necessity for the sovereign to be bound by any law save for the law of nature. Note the specific relationship of the sovereign to law, “…persons who are sovereign must not be subject in any way to the commands of someone else and must be able to give the law to subjects, and to suppress or repeal disadvantageous laws and replace them with others – which cannot be done by someone subject to the laws or to persons having the power of command over him.” 16 Further when a sovereign promises to uphold the law, “he is not bound by that law any more than by an oath made to himself.”17 When an individual has sovereignty “he can obligate his subjects {by law} but cannot obligate himself.”18 The switch has been made, Bodin’s sovereign is now above and outside of the legal order. Only such a sovereign, in Bodin’s political imagination, would be able to rule in such a way as to be able to eliminate resistance. That being so (and this becomes crucial for my pg. 68 POLITICAL FORGIVENESS argument below), as Grimm argues, it is certainly true that the sovereign that Bodin theorized was above the law, “but not above justice.” 19 What this meant in theory according to Franklin, was that the sovereign was bound by the laws of nature, so far as their conscience was concerned, as established by God. 20 So, too, does Skinner understand this ‘natural’ limitation on sovereignty. Skinner calls this limitation “crucial,” citing Bodin’s language in which he claims for a sovereign to act against the law of God and nature is to be ‘guilty of high treason to the divine majesty.’21 What this meant in practice was another matter altogether. For if it was the case in Bodin’s theory, that justice would be meted out against sovereign malfeasance by the hand of God either in this mortal world or the supposed next, then in practice justice was an intangible and unfeasible concept for the political subjects of the malfeasant sovereign in question. For his part, Skinner has a different interpretation of this problem which is difficult to accept. He claims that the proper understanding of the issue forces one to admit that, “every subject must have a duty – arising from his prior obligation to obey the laws of God – to disobey any command from his sovereign which is contrary to these laws or the laws of nature based on them.”22 The point being that although one should disobey such a command, one’s action would still be unlawful. What does it mean in practice for Bodin to shift from a position that supported limited sovereignty to one of absolute sovereignty? Skinner’s reading of Bodin is instructive on this point. First, according to Skinner, we must understand that for Bodin the proper end “of government must be to secure ‘order’ rather than ‘liberty.’” 23 The logical conclusion that follows is what Bodin means by absolute; regardless of the content of the laws and edicts the sovereign passes, so long as they aim at securing order there can never be any justification or legal basis for resistance to they who are sovereign. 24 Individual liberty is always subsumed by the necessity of pg. 69 POLITICAL FORGIVENESS political order. The most thorough treatment of the shift in Bodin’s thought is cataloged by Julian Franklin. He argues that the difference we find between the Methods and the Six Books “cannot be attributed to immaturity or inadvertence.” 25 Bodin’s position in the Methods was purposeful and reasoned just as his position in the Six Books. As with others, we find that Franklin attributes this purposeful shift to Bodin’s “alarmed reaction to the revolutionary movement set off by the St. Bartholomew’s Day Massacre.”26 Not only do we witness a change in Bodin’s thought in the aftermath of this event, but we also witness a change in his reception of other thinkers. For as Julian Franklin tells it, Bodin’s early reverence for Machiavelli as evidenced in the Methods makes a significant turn to disgust in the Six Books.27 The newfound distaste for Machiavelli that Bodin expresses in the Six Books can be traced, Franklin argues, to what he calls a “familiar contention” that a certain Machiavellianism was responsible for the St. Bartholomew’s Day massacre.28 The result would be Bodin’s reappraisal of Machiavelli from an individual worthy of being “saluted,” to a “destroyer of commonwealths.” 29 Bodin’s change of heart can be traced to an all too familiar misunderstanding of Machiavelli and Machiavellianism that mistakes his realism and realpolitik for immorality. Thus, in The Six Books Bodin derides Machiavelli for instructing princes and their councilors in the ways of tyranny which would prove to be, according to Bodin, deleterious to the French political scene in the late 1500s. Machiavelli’s teachings would, according to Bodin, corrupt those in power and engender indignation and resistance from below. I would argue that another consequence of the intellectual distance Bodin places between himself and Machiavelli is indicative of a very real distance present in Bodin’s thought and treatise evidenced by a rejection of political realism in place of an idealized political order that can only be described as an abstraction. How else would one describe Bodin’s concept pg. 70 POLITICAL FORGIVENESS of sovereignty as perpetual and indivisible other than as an idealized abstraction? We might then say that it was not only the experience of St. Bartholomew’s that shifted Bodin’s political imagination but his intellectual development as well. Furthermore, Franklin’s account of Bodin’s thought is more substantive than others have approached. Franklin’s account of Bodin’s early theory of sovereignty is composed of sovereign supremacy, but of a limited kind, “subject to law and procedures of consent,” and that this is “not only admitted as a proper form of sovereignty, but is described and recommended as the normal form of monarchy in Europe.”30 Grimm captures the difference best in his description of what truly constitutes absolute power: “At times an absolute power is mentioned in connection with sovereignty, but it meant only sole responsibility and final decision-making power, not the freedom to use such a power at will. Each power, instead, had a legal framework and legal objective. It could only be exercised in conformity with the legal guidelines.” 31 Therefore absolute sovereignty is the use of power without regard for conformity with said guidelines and frameworks coupled with the subject’s inability to resist such actions. As Franklin explains, the shift in Bodin’s theory of sovereignty began with his asking the question; what are the prerogatives of sovereignty that they who are sovereign cannot give away without simultaneously invalidating their claim to sovereignty?32 If we believe Franklin, this was a question that had not been asked before, and more precisely the question of prerogatives was truly a question of supremacy that leads inexorably to the sovereign’s ability to decide on life and death. For if it was the case that the sovereign was to be the supreme political authority then no other political actor should be able to wield the prerogatives of sovereignty above him. That the utilization of these prerogatives of sovereignty appear in the Six Books as an action that no subject can lawfully resist is explained as a “clarification” of his earlier work. 33 To be sure, Franklin seems surprised by the simplicity pg. 71 POLITICAL FORGIVENESS of this explanation, yet, this alteration is not too far afield from Bodin’s position in the Methods. For according to Franklin, in that work it is admitted that “in any legal order there is a range of discretionary powers which are anticipated by the law itself.” 34 The example of such discretionary powers that Franklin cites to make this point is that of pardon and clemency. Admitting to such a wide swath of discretionary power and sovereign prerogatives it is not too far of a jump to the next conclusion that such discretionary actions cannot be lawfully resisted. What is important is regardless of whether one is talking about a limited theory of sovereignty, or an absolute theory of sovereignty, both admit to the necessity of certain prerogatives of the sovereign that no other may exercise for that would call into question the supremacy of the sovereign. The case of pardon is instructive in this instance for it signifies nothing short of the sovereign’s power of life and death. As we have already read in Franklin’s account of Bodin, it is not a logical contradiction to argue that there are limitations even on Bodin’s absolute sovereign, for he has shown that there are in fact two categories of limitation. The first category of these limitations is what Bodin called fundamental laws, of which there were two, the law of succession and the law against alienation of domain. The first prevented a sovereign from selecting an individual for succession who was not eligible by law, the second prevented a sovereign from ceding things such as land and taxes out of royal hands. 35 The second category of limitations acknowledged by Bodin were natural laws, under which, according to Franklin, Bodin identified two obligations of sovereigns. The first, is to honor contracts and to follow through with compensation for property damaged or taken as eminent domain. 36 To which category would we attribute this peculiar limitation of the sovereign’s prerogative of pardon? And how should we understand this limitation? It seems fairly clear that this limitation belongs to the category of limits imposed on absolute sovereigns by the law of nature. This is in fact pg. 72 POLITICAL FORGIVENESS Clark’s argument. He claims that Bodin sought to “qualify absolute power by placing restraints on its use; each of them was derived from the moral imperatives which he believed to be constitutive of sovereignty and its ends.” We know from our encounter with Franklin that the moral imperatives that Clark here references are none but the laws of nature that sovereigns were bound to obey. For if it is the case that Clark is correct and Bodin, “insisted that the prince had no authority to command actions contrary to God’s law,” this calls for an entire range of infractions against the law that sovereigns ought not to pardon. There is only one source that we might call upon at this point to answer this question, the text itself that Bodin wrote. Sovereignty’s specificity: Sovereignty, according to Bodin, is “the highest power of command.” 37 Constitutive of this power of command is the power over life and death. “The highest degree of compulsion is power of life and death, that is on condemning to death, or of pardoning those who have incurred this sentence. This is the highest attribute of sovereignty, proper to the majesty of a prince, and inherent in him to the exclusion of all other public persons.”38 Two things must be extracted from this quote: in the first place, Bodin is explicitly stating that pardon, as a form of political forgiveness, is one of the highest attributes of sovereignty; and second, that this ability to decide in the final instance on life and death belongs to no other. Therefore, by necessity, sovereign power must be the only form of political authority that enjoys this awesome prerogative. There is of course the question of forms of sovereignty in Bodin. In a rejection of political theorists who came before him such as Aristotle, or Polybius, Bodin refutes the possibility of mixed forms of government. For him, there are only three possible forms of government that sovereignty can be pg. 73 POLITICAL FORGIVENESS exercised through Monarchy, Aristocracy, and Democracy. Bodin goes so far as to claim that he “will employ [only] these terms in order to avoid the confusion and obscurity arising from the variety of good or bad rulers which has promoted many to distinguish more than three kinds of state.”39 Bodin’s basis this assertion in his position that sovereignty is indivisible, arguing that, “if sovereignty is indivisible, as we have shown, how could it be shared by a prince, the nobles, and the people at the same time? The first prerogative of sovereignty is to give the law to subjects. But who will be the subjects and who will obey if they also have the power to make laws?”40 If we follow Bodin’s train of thought as to the indivisibility of the sovereign’s prerogative what we find is an interesting hypothetical rejoinder to his would-be critics. A rejoinder that interestingly harnesses both grants of pardon and the sovereign’s final right of decision in the last instance, the ultimate decision of course being that of life and death. I do not hesitate to quote this lengthy block of text in full given its importance for my argument. Someone may object, however, that it might be possible to construct a state wherein the people (emphasis added) create the officers, disposes of expenditures, and grants pardons (emphasis added) – which are three prerogatives of sovereignty; where nobility makes the laws, decides on peace and war, levies duties and taxes – which are also prerogatives of sovereignty; and where there exists in addition a royal magistrate above all others to whom the people as a whole and each person in particular renders fealty and homage, who judges in the last resort without there being any means of appealing from his decision or presenting a civil request. 41 In Bodin’s imaginary this is his way of combining all three forms of sovereignty, monarchical, pg. 74 POLITICAL FORGIVENESS aristocratic, and democratic. What is of great interest to us is his attribution of the prerogative of pardon to ‘the people’ in this particular example. The attribution of pardon to the people in this example surely is not happenstance. A thinker of Bodin’s acumen would never attribute one particular prerogative to a particular state form without purposive intent. We must remember that Bodin desires to establish a state form that possesses sovereignty in such a way as to achieve the objective of maintenance of order. In this way, there is no mistaking that Bodin established the above-imagined division of sovereignty in such a way as to specifically produce conflict, his attribution of pardon to the people and the right to decide in the final instance to the monarch being one such example that has the potential to set up the perfect scenario for a conflict over the distribution of sovereignty. Analytically, in Bodin’s theory of sovereignty, the sovereign must be the final and ultimate receptacle of political forgiveness.42 Bodin is clear on this point, “in a wellordered state, this power [the power to pardon] ought not to be conceded to anyone either by commission or by right of office.”43 It is therefore not only the power of death, but concomitantly the power of forgiveness that constitutes the sovereign’s highest prerogative. So important is this power that Bodin argues that “the right of pardon cannot be given away without giving up the crown itself.”44 Should the monarch decide an appeal in the final instance upholding a particular judicial edict, and the people with their power of pardon superseded this decision, the defining feature of the decision on life and death is obscured, from a Bodin’s perspective. Thus, Bodin ties political forgiveness directly to the sovereign’s power of life and death. But as a result, Bodin’s theorization of this awesome power is clouded, and he can only think of political forgiveness through the lens of the maintenance of sovereignty via increasing the majesty of the sovereign. There are other possibilities that Bodin does not entertain, like the possibility that political forgiveness might be deleterious, rather than generative, of sovereign pg. 75 POLITICAL FORGIVENESS power. He also fails to imagine ways in which political actors other than sovereigns might harness the power of forgiveness that are modally different from pardon. If Bodin were to know how political forgiveness had engendered disobedience and resistance, rather than act solely as a mark of absolutism, in the time that has passed since he wrote The Six Books it would certainly be to his chagrin. Had Bodin been more attentive to his intellectual influence turned enemy Machiavelli perhaps he would not have maintained that in the final instance the highest expression of political forgiveness resides in the seat of sovereign authority. Anything short of this and the unity of Bodin’s theory of sovereignty would crumble at its foundations. Pardon and prerogative: It is, of course, no small consequence that one of the prerogatives of sovereignty that Bodin insists belong to the sovereign alone is the prerogative of pardon. From our examination of the account of Damiens earlier the reason is clear: to hold the prerogative of pardon is to hold the ultimate power of life and death. It is the power that Foucault in the History of Sexuality called the “power to take life, or let live.” 45 However this may be, to assert this fact and leave it at that, is to do a deep disservice to Bodin. His theorization, nuanced and consequential, sheds great light on a perennial problem discussed in the previous section; that it is analytically difficult to deploy political forgiveness in bodies politic where sovereignty is shared. Furthermore, it is a normatively fraught decision portrayed by Bodin in his depiction of bodies politic making ‘bad’ decisions on when to pardon, or a consequence that Bodin does not consider, when such decisions have the potential to tear bodies politic asunder. These reasons, coupled with its power of life in the final instance, lead Bodin to argue that pardon is of such pg. 76 POLITICAL FORGIVENESS political weight that to the sovereign alone it must be entitled, granting it the status as one of the prerogatives that confirm sovereignty. In Book I, Chapter 10 of the Six Books we find Bodin attempting to defend his assertion that the political entity that holds sovereignty does in fact hold supreme authority. He accomplishes this by way of demonstrating that each of the marks, or prerogatives of sovereignty must belong to sovereigns alone. Bodin claims that so long as an individual is “bound to the laws, jurisdiction, and command of someone else, they are not sovereign.” 46 This is true regardless of the individual, position, or power one wields in a body politic. Of these marks I emphasize the first five Bodin enumerates as they are, on my reading, the most consequential marks of sovereignty: the first, the right to promulgate law for each and all without the need for acquiescence; the second, to declare and end wars; the third, appointing magistrates without recourse to consent; the fourth, acting as the arbiter of appeals from magistrates; finally the fifth, to decide the question of life in the final instance, pardon.47 Bodin maintained that these marks of sovereignty cannot be alienated, nor can they be shared in any way whatsoever. For, to share in a prerogative of the sovereign, in Bodin’s thought, would be to share in the supremacy of the position of the sovereign, a fact Bodin could not abide by, as this would mean the sovereign was not the sole highest authority. Being the fifth mark of sovereignty and a sole prerogative of the sovereign, pardon, as with the previous four prerogatives, is subject to the same scrutiny and ‘proofs’ that are meant to demonstrate that the highest political authority has the sole privilege of possessing it. Bodin draws these ‘proofs’ from various histories and political arrangements that admit to different political agents being the receptacle of sovereignty. One way to think about Bodin’s proofs is to consider them as demonstrations of his anxiety that the acts of non-sovereign political entities pg. 77 POLITICAL FORGIVENESS could be mistaken for official sovereign acts. Bodin’s favorite sources of evidence are historical and textual. He points to the Athenian democracy, the history of Florence, Venice, Rome, the Monarchies of Denmark, Poland, and Sweden, among others. He frequently cites Cicero, Polybius, and at times calls upon Lycurgus and Solon. In each instance the fact Bodin draws out is frequently we are confused by the difference between the actions of government entities and those of a sovereign. In his argument, Bodin insists that a sovereign alone has these attributes. For instance, as you will read below, Bodin cites the examples of the Roman dictator as an office of government that, while holding exceptional power, did not have sovereignty as they did not have the right of pardon. Notably, Bodin also includes in his ‘proofs’ counterexamples of political circumstances that appear to be akin to sovereignty but, crucially, are, mere appearances of the possession of sovereign power. Bodin begins his argument with the case of the Roman dictators. The Roman dictatorship was, of course, an office created in the Roman republic to address states of emergency and in the latter days of the republic's internal sedition. The dictator was unbound by the laws for the duration of his possession of the office, which would seem to admit to his possession of sovereign power. However, Bodin refutes this with a ‘proof’ of the real locus of sovereignty by way of drawing the reader’s attention to the true marks of sovereignty, or prerogatives that the dictator did not share. In this instance, it is the prerogative of pardon that interests us and it is this specific prerogative that Bodin marshals to illustrate the lack of sovereignty in the office of the dictator. We find Bodin calling our attention to the specific case of the Roman dictator Papirius Cursor who, “granted a pardon to Fabius Maximus, his master of the infantry, who had given battle against his orders but had killed twenty thousand of the enemy.” 48 Bodin’s utilization of this example owes to the fact that having exercised the power of pardon it would seem to pg. 78 POLITICAL FORGIVENESS confirm that Papirius Cursor possessed the prerogative of pardon and thus a share in sovereignty. However, he claims that Papirius’ act of pardoning Fabius Maximus was mere appearance. For, “in effect it was the people that granted pardon, even though it proceeded by earnestly entreating the dictator to forgive the error. Fabius has appealed to the people from the sentence of the dictator, and he in turn defended his verdict against the appellant, which shows that the power of life and death was in the people.”49 Bodin’s purpose in this instance is to illustrate that wherever the power of life and death is, so to resides the ultimate locus of sovereignty. Thus, when the people hold the prerogative of pardon that is where we find the sovereignty of the state. This is why he cites yet another example from the Roman republic, that of the orator Servius Galba who had been accused of treason.50 His pardon came not from the censor who had accused him but rather, “had recourse to the mercy of the people, who granted him pardon.” 51 With this particular example Bodin has two objectives. The first is to illustrate that whomever possesses the power of forgiveness must also be the locus of sovereignty. The second is to illustrate his assertion that there can be no magistrate in the political order that can exercise this form of power, “for it is not in the power of any magistrate, no matter how great, to do any such thing, or to alter anything in the judgments he has handed down.”52 To further illustrate his claim that it is within the sovereign’s power alone (and not an attribute of government) Bodin cites approvingly the example of Athenian democracy in which “the people, alone to the exclusion of the magistrates, had the power of granting pardons.” 53 For it was the Athenian people that were sovereign and the magistrates mere government functionaries.54 For the same reason Bodin also cites with great specificity the political arrangements in Venice, Milan, and Florence, all to show that wherever the power of pardon is enjoyed so too are the other highest attributes of sovereignty. According to Bodin, in Venice, “it pg. 79 POLITICAL FORGIVENESS is only the Great Council of all the gentlemen of Venice that grants Pardons.”55 In the case of Milan, he explains that, “the emperor Charles the V, in constituting the senate of Milan, granted it all the prerogatives of sovereignty as his vicar and lieutenant, but reserved the right of Pardon for himself.”56 Finally, in the case of Florence, Bodin is careful to explain that when constituted as a democracy it was the people who enjoyed the final right of pardon, even though at one time that power had been usurped from them. This last instance again serves to signal that only the true locus of sovereignty, and not one usurped, bears the mark of pardon. What Bodin seems to be signaling here, albeit obliquely, is that regardless of whether the government is constituted as a democracy, as in Florence, an aristocracy, as in Venice, or a monarchy, as in Milan, it is with the seat of sovereignty that pardon must ultimately remain. After Bodin’s discourse on the right of pardon in other areas of the European continent, he turns his attention to France. Through the examples that he draws upon, he more explicitly insists on the possession of the right of pardon by the sovereign. Bodin recounts a variety of circumstances in which sovereigns attempted to dispossess themselves of the right of pardon. King Frances I, attempted to grant the power of pardon to his mother. 57 In anticipation of his critics Bodin also cites the example of King Charles VI who gave “the chancellor of France, the power of granting pardons and remissions.”58 Finally Bodin uses the example of pardons handed down by provincial governors of France in “olden times,” known as, “the Customs of Hainaut and Customs of Dauphiné.”59 Bodin uses these examples to show that the use of pardon in these instances were “abuses and encroachments,” therefore not examples of the true prerogative of pardon, further claiming that these customs were ultimately “suppressed by an edict of Louis XII in 1499.”60 Presumably Bodin means to indicate that Louis XII, although acting retroactively, was asserting his claim to sovereignty through this action. Hence, he comes to what is the pg. 80 POLITICAL FORGIVENESS purpose of these historical citations, Bodin’s injunction that one cannot give away the right of pardon without simultaneously giving up sovereignty. The examples that Bodin marshals to demonstrate the true locus of sovereignty are indeed curious for the reason that each is characterized not by the ultimate possession of the prerogative but rather by the dispossession or forfeiture of the specific prerogative that Bodin is concerned with. Consider how the Roman Dictator Papirius is prevented from using pardon. Or how we are instructed ‘the people’ either use mercy happily, or are dispossessed of it. I suggested above that it might be useful to think of Bodin’s proofs alternately as expressions of his anxiety. With each proof Bodin is attempting to convince not only his reader but himself that sovereignty is not as vulnerable as it really is. Is it not certain that fragile is the institution that can have its true locus confused by a mere act of forgiveness? Finally, how monarchs have made ‘gifts’ of the pardon power. In this way, whether Bodin meant to or not, the prerogative of pardon is definitively unique in that it is both the object of desire for usurpation and imagined by those who possess it as a generous gift to be bestowed. The power of life and death associated with forgiveness in the final instance has led sovereigns and theorists for centuries to be fooled into thinking of it solely as a magisterial gift, but tyrants and partisans have understood the power of forgiveness is its capacity to engage in disobedience and express indignation. Of kings, tyrants, and confessors: We can glean yet another perspective, and perhaps another expression of Bodin’s preoccupation or anxiety, regarding the prerogative of pardon if we consider his critique of it when its dispensation is mediated through three particularly interesting political actors: the king, pg. 81 POLITICAL FORGIVENESS the tyrant, and the confessor. The king, a unitary monarch, and Bodin’s preferred embodiment of sovereignty. The tyrant, the ‘bad king,’ is a foe of Bodin in many respects, but a complicated foe. Finally, the confessor, represented by the figure of the witch, the enemy of humanity, and a figure that, in a way, limns the contours of sovereignty. Each stands in particular relation to sovereignty; each bears some relation to the notion of exceptionality. The king, as sovereign, is representative of, in Schmittian parlance, he who decides on the exception. The tyrant also has the power to wield the exceptional power of sovereignty, at least in Bodin’s thought, because the tyrant, although representative of ‘the bad king,’ or a ‘usurper’ of sovereignty is sovereign nonetheless. Finally, the witch in Bodin’s thought represents the exception to the exception in that he argues against their being pardoned. In what way do these figures of Bodin’s thought inform our understanding of the place of political forgiveness in the history of political thought? I begin with Bodin’s complicated foe, the tyrant. This foe is complex because there are really two foes under one guise. Rather than a unified concept, what we find is a kind of bifurcation of tyranny between the classic conception of the tyrant which Bodin draws from the ancients, and his contemporary construct of the tyrant drawn from the political imaginary of the time Bodin was writing in. The tyrant of antiquity is odious, yet sovereign. Bodin explains that the tyrant is sovereign even though he usurps power, much the same way that a robber comes into possession of an item even though the act of stealing is against the law, the item is nonetheless the robber’s. Just as there would be a punishment for the robber should he be apprehended so too is there a punishment for the usurper of sovereign power, death. As this tyrant is sovereign, just like the ‘good king’ it is upon their prerogative that the exception can be decided. But, this tyrant, according to Bodin, is sovereign in a truly peculiar fashion. Bodin follows the ancients and defines the tyrant as, “someone who makes himself into a sovereign pg. 82 POLITICAL FORGIVENESS prince by his own authority – without election, or right of succession, or lot, or a just war, or a special calling from God.”61 The peculiarity arises for Bodin when the sovereign tyrant of antiquity attempts to utilize one, or any number, of the prerogatives of sovereignty because the “(unauthorized) use of the prerogatives reserved to sovereignty is punishable by death.”62 Should such a tyrant engage the prerogative of pardon may they be killed justly? Bodin answers in the affirmative. This of course raises several questions, not least of which is: what good is it to hold the title of sovereign if one cannot utilize the prerogatives attendant to that title without incurring a death penalty/ The more interesting, and thorny, question for Bodin is whether the ‘bad king’ who dispenses pardons, or other prerogatives of sovereignty may also be dispatched by their citizens? This is the question of the dominant discursive utilization of tyrant according to Bodin. He asks, “whether a sovereign prince who has come into possession of the state by way of election, lot, or right of succession, or just war, or by a special calling from God, can be killed if he is cruel oppressive, or excessively wicked.”63 This is, again, what Bodin considers to be the “ordinary” meaning of the word tyrant, its everyday utilization in the vernacular of the time. Of cruel and inhumane kings and princes that are in possession of sovereignty Bodin has much to say. For they are sovereign in the true sense of the word, with all of the vestiges and prerogatives that attend sovereignty. In short, it is not within the power of subjects to resist such sovereigns regardless of their cruelty. As Bodin states, to do so one, “would be guilty of treason in the first degree not only for having killed a sovereign prince, but also for attempting it, advising it, wishing it, or even thinking it (emphasis added).”64 Now, we must ask of this crime, is it within the good king’s capacity to forgive such an offense? Even a thought offense? We know that the authentic tyrant who usurps sovereignty may be put to death for his utilization of sovereign pg. 83 POLITICAL FORGIVENESS prerogatives. We also now know that the intolerably cruel king has the right to use prerogative however they may wish, cruelly or not, and that subjects must suffer the consequences. The question is now, how Bodin imagines the tyrant or the good king using the prerogative of pardon. The answer to this question is illuminating. We know that the unauthorized utilization of the prerogative of forgiveness (or any prerogative of sovereignty for that matter) is odious to Bodin, even punishable by death. But we must also now confront the reality that when Bodin discusses the difference between the good king and the tyrant he specifically cites pardon as one among several of the characteristics of a tyrant. At first blush, this is very curious. Why would the usurper engage in an act so thoroughly tied up with the notion of mercy and virtue? Is this not backward logic? Wouldn’t we desire that the tyrant, a seemingly odious character, act in a benevolent way towards his subjects? Would this not in fact be evidence of some kind of redemptive quality of the usurper? Bodin himself argues in Book II chapter V that the “good ordinances and worthy acts of a tyrant…should not be repealed.”65 Is it not conceivable that a tyrant might engage in an act of pardon or forgiveness that is appraised as ‘good’ and ‘worthy?’ For Bodin this is inconceivable. Because it is not in the intent of the act, but rather the act in itself that is odious. For the power that the usurper, the tyrant, marshals to issue pardons is not theirs in the first place. Perhaps it is necessary to consider how Bodin understands the good king compared to the bad tyrant to make sense of this. Logically, it should be the case that a pardon or an act of mercy could be understood as a worthy act. In the first place Bodin argues that the “distinction between the good king and the tyrant is that the king conforms to the laws of nature and the tyrant tramples them underfoot.” 66 The king, according to Bodin, does what is for the good of all, while the tyrant cares only for himself. pg. 84 POLITICAL FORGIVENESS This of course comports with the ancient model of tyranny that Bodin recounts in book II chapter V, but it can also be said to hold for what Bodin considers to be, as discussed above, the ordinary utilization of the word tyranny. As above, we find that Bodin’s ‘good king’ “avenges injuries done to his subjects but pardons those committed against himself.” 67 But we must be mindful here, for it may appear that the ‘good king’ pardons crimes committed against the crown because he is a benevolent ruler and wishes to signal this to his subjects, but we know this not to be the case. Recalling Damiens once again, his experience teaches us that the impetus for the ‘good kings’ pardon is only the recuperation of sovereignty that has been impugned. Realizing this we now understand that the ‘good king’ cannot really ‘lose’ in this situation. When he avenges his subjects by ruling with the sword sovereignty is reinforced. When engaged in pardons for actions against the crown, similarly sovereignty is reinforced. Crucially in this movement, Bodin annihilates anything resembling an economy of forgiveness. No longer is there one party to forgiveness that stands in a different relation to another. There is only one possible outcome, one possible agent, one institution that has dispossessed all others of participating in a circulating economy of affect through any real agency. By arrogating political forgiveness to the institution of sovereignty, Bodin has effectively created a monopoly over the power of forgiveness. Even so, this is not the end of the story, for Bodin has more to say regarding the nature of the tyrant’s pardons. The ‘tyrant’ “takes cruel revenge for injuries done to himself but pardons those done to others.”68 But, what is contextually important is that Bodin qualifies this description of what he appraises as ‘good’ pardons versus ‘bad’ pardons. And he does this by arguing that in “contrasting the king and the tyrant therefore we must take the extreme (emphasis added) case of the good and just king, and the utterly detestable tyrant, to make the distinction between them pg. 85 POLITICAL FORGIVENESS clear.”69 Having now made that distinction clear, Bodin swiftly moves on to argue the abovestated position on what makes a ‘good’ versus a ‘bad’ pardon. What Bodin fails to imagine are the circumstances in which the good king might find it necessary to act like the odious tyrant, pardoning an individual, or individuals, to bring calm to a tumultuous political situation, or peace to a restive populous. What Bodin does is effectively ignore the politics of political forgiveness. He does so because he has to. To acknowledge the possibility of a politics of forgiveness that is partaken in, influenced, or dictated by prudential necessity from below is to dilute this mark of sovereignty and submit to his polemics over pardon. To admit that other actors weigh in on the decision is to intimate that they participate in the decision, and nobody but the sovereign can partake in one of the five true marks of sovereignty without ceding that sovereignty in a way. Finally, it is to acquiesce to the fact that a sovereign might yield to political resistance. Bodin’s argument, in sum, is the good king grants good pardons because their effects bear only on the relationship between the king and his transgressor. The tyrant, as a selfish individual, grants pardons that are bad because their effects bear upon the subjects of a body politic. The ‘bad king,’ not truly a tyrant because they come to sovereignty without usurpation but exercise it in a tyrannical fashion, presumably engages in bad pardons because, like the tyrant that usurps power, the ‘bad king’ uses pardons in a self-regarding fashion. Bodin has constructed his example perfectly to preclude the possibility of his anxiety from materializing, that sovereignty might be mistaken or usurped via pardon. The practical political difference between the varied dispensations of forgiveness is that the tyrant and the ‘bad king’ open a space for political contestation, dissent, and disorder. They do so because the effect of their exceptional use of prerogative power becomes tangible when it appears to political subjects as something usurped. The ‘good king’ on the other hand attenuates this political space through his use of pg. 86 POLITICAL FORGIVENESS forgiveness as the effects of its dispensation are not experienced as a power usurped from his subjects. Apart from the ‘good king’ and the ‘bad tyrant’ there is one other political subject without which the king or the tyrant would be able to make a show of their power, the confessor. Bodin spends little if any time discussing the importance of confession in his earlier work The Methods nor does he take up the subject in The Six Books but in his 1580 treatise On the DemonMania of Witches a large swath of the book is dedicated to the subject. In the Demon-Mania the figure of the witch centers on the role of confession, guilt, and the power of forgiveness as generative of sovereignty in ways not found in Bodin’s previous texts. Bodin’s Demon-Mania appeared four short years after the publication of The Six Books in 1580. Bodin was throughout his life a God-fearing man but this does not explain why he choose to write the Demon-Mania. In the preface to that book, Bodin explains that it was the experience of witnessing the trial of the accused witch Jeanne Harvillier in 1578 that inspired him to take up his pen. More so than the experience of witnessing the trial, it was the astounded reaction of those present to the Harvillier’s testimony that Bodin found so compelling. The express purpose was to warn his fellow countrymen as to the danger of witches, demons, sorcerers, and the devil. The book proceeds logically through four sections arguing that witches are indeed real and dangerous, they consort with men in a variety of ways, that there are lawful and unlawful ways of investigating witchcraft and finally Bodin explains in the last section of the book the proper legal recourse for trying witches to result in a confession. I have chosen to include Bodin’s detailed account of the figure of the witch as I believe Bodin understands the crime of witchcraft to have potential political consequences. The argument can be constructed something like this, the crime of witchcraft is a crime both spiritual pg. 87 POLITICAL FORGIVENESS and secular, like any other law that is abrogated, when left unchecked, witchcraft leads to disorder and chaos in the body politic. Bodin thought disorder and chaos in the body politic to be a primary political evil, therefore witches and witchcraft are political. I also include it as it is a most thorough treatment of the role confession plays in political forgiveness. A witch according to Bodin is one “who knowingly tries to accomplish something by diabolical means.” Bodin 70 attaches to the word diabolical a definite demonic quality. According to Virginia Krause, during the sixteenth century, some believed a witch’s magic was carried out in a dream-like state, the opposing belief was that a witch’s magic originated in a conscious endeavor on the behalf of the witch.71 Jean Bodin, Krause argues, was firmly in the camp of the “realists,” those who believed in the consciousness of the endeavor of the witch drawing attention to the role of the witch's agency in generating their guilt. This crime of witchcraft is the one exception to Bodin’s otherwise unlimited prerogative of forgiveness, one not found in the pages of The Republic, nor in the pages of his previous work The Methods. He claims in the Demon-Mania unlike all other crimes witchcraft should never be pardoned by a sovereign. Stuart Clark makes the argument that Bodin’s Demon-Mania is no less a political work than his Republic. Clark argues that, “the theory and practice of witch prosecutions raised political issues, while certain traditions of statecraft raised demonological ones.”72 The political nature of witchcraft is further borne out by Krause who draws our attention to the belief on Bodin’s part, and the other realists, that witchcraft, although a crime not witnessed by the common lot due to its ‘secrecy,’ was, in fact, no secret to God. 73 Thus, in Bodin’s thought, it was incumbent upon earthly sovereigns to stem the rising tide of witchcraft to quell God’s fury and obey his command. 74 In cases where sovereign princes did not achieve this goal and the social body was plagued by witchcraft and demons it was seen to be evidence of a pg. 88 POLITICAL FORGIVENESS lack of “the essential attribute of sovereignty.” 75 This is attributed to the fact that a social body beleaguered by witches and demons would not be a demonstration of a sovereign’s “successful protection,” an essential function of sovereignty. 76 Sovereignty and witchcraft therefore mutually reinforce the political importance of one another. The sovereign politicizes witchcraft by the fight against it, while witchcraft calls into question the efficacy of sovereign power. So why the prohibition on pardon? One possible explanation is found in how Bodin describes the crime. According to Clark, for Bodin witchcraft was “a crimen exceptum.”77 Virginia Krause also makes explicit reference to the exceptional status of the crime of witchcraft in her work. She writes that at the time of Bodin’s writing, “witchcraft had the legal status of being a crimen exceptum: a crime deemed at once so horrific and so secret that extraordinary measures were required in order to prosecute it.”78 According to Krause, Bodin’s justification for designating the crime of witchcraft a crimen exceptum was rooted in its secrecy, thus causing great difficulty in investigating and proving guilt.79 This does not however explain the prohibition against pardon. The answer, I propose, to the prohibition is found in Bodin’s differentiation of good and bad pardons. The crime of witchcraft is unique in that it victimizes both the political order, sovereignty, and private individuals at the same time. Many of the explicit cases of witchcraft Bodin enumerates in the Demon-Mania include the destruction of crops, the poisoning of people, and instances of murder. In the face of a witch’s confession to any of these crimes, the sovereign is in a bind. To pardon a witch would cause the sovereign to act as the ‘good king’ and the tyrant at the same time. The sovereign would be avenging a crime done to himself and forgiving a crime committed against his subjects. We might also dwell for a moment on how confession renders the confessor guilty, and therefore, places them within the monopoly of forgiveness that pg. 89 POLITICAL FORGIVENESS Bodin has already constituted having destroyed any economy of forgiveness earlier. Of course, if we consider this whole state of affairs through the paradigm of the accused witch we are in uncharted water. The conditions are familiar enough, they are such that we found Damiens the Regicide, who was accused, tortured to extract a confession, and/or to beg forgiveness for the accused crime. That this would befall the accused witch is clear. And we know from Damiens's story that this is precisely the point, to extract a confession and dispense forgiveness to recuperate the sovereign through signaling “ultimate submission,” in Bargu’s words. But unlike Damiens who refuses to beg for pardon (the granting of which would enable the recuperation of sovereignty), the matter is already settled for the witch, for regardless of confession, the accused witch, according to Bodin, should never be pardoned. In the face of a confessed witch, the sovereign must find an alternative exercise of their power. Without recourse to pardon the only option is to make the witch submit via punishment. But this punishment cannot be meted out until the witch confesses. The confession is crucial in the case of the witch because according to Bodin, since their activities were carried out in secret, they needed to be made tangible. In this way the witch holds a peculiar form of power in that submission is not complete in the eyes of the sovereign until their act is tangible and accessible, to punish a witch without the confession would not count as submitting and would not have the recuperative effect needed for sovereignty to be made whole again. The confession emerges as the condition of possibility of utilizing sovereign power. Considered in this light, sovereign power is not sui generis; rather, the power of the sovereign and the possibility of its passage from potential to actual is in the hands of the witch. So as with Damiens, and perhaps more so in this example, what we find is the necessity of the confession in actualizing sovereignty, it is within the power of the subject to enable the actualization of sovereign power through the expression of confession. Considered in pg. 90 POLITICAL FORGIVENESS this light, it is the possibility of being able to exercise forgiveness that also is the condition of possibility of the exercise of sovereign power. An exception and a normative critique: Having considered how the prerogative of pardon confirms the actual locus of sovereignty in Bodin allows us to assess what might best be understood as an exception to this rule. As is now clear, there are several exceptions throughout Bodin’s works, the ‘bad king,’ the authentic tyrant, the appropriation of the power of pardon by ecclesiastical organizations, each enables Bodin to make a theoretical intervention. The exception in question that Bodin undertakes to examine is that of the ecclesiastical powers in the French city of Rouen. This is yet another location in his text where Bodin betrays the fragility of sovereignty with his anxiety in his pivot from an analytical discourse on the right of pardon to his normative injunction against the mis-utilization of one of the highest prerogatives of sovereignt. Bodin claims that in Rouen there existed a tradition of allowing the ecclesiastical authorities to grant pardons to convicted criminals on the eve of the St. Roman holiday in that city. 80 As discussed earlier, Bodin would certainly have had reservations about an ecclesiastical institution appropriating that which rightfully was a power of secular sovereigns, the conflict between the secular and religious spheres of life being the main protagonist in the civil wars Bodin detested. Bodin’s decision to choose this particular exception is made abundantly clear by his critique of the practice. The case of the St. Roman pardons enables him to do this because as he claims, The worst thing about the privilege of St. Roman is that they pardon only the most pg. 91 POLITICAL FORGIVENESS abominable crimes that they can find, crimes that the king customarily did not pardon. [And this leads me to observe that] many sovereign princes abuse their power in this area, believing that a pardon is the more pleasing to God as the trespass is the more detestable. But I maintain – until such a time as I hear better argument – that a sovereign prince cannot remit a penalty established by the law of God any more than he can dispense from the law of God, to which he is subject.81 At this point in the text, there is a discernable pivot that Bodin makes where it is clear that what he has in mind is to discuss the idealized form of the prerogative of pardon that he envisions over and above the actual practice of this prerogative. He asserts that pardons ought to comport with the law of God; therefore, it is improper for a sovereign to pardon a murderer for, as Bodin says “premeditated murder deserves death by the law of God, but oh, how many pardons we see!” 82 By Bodin’s admission, there is some form of fiction occurring here. What could Bodin be alluding to with this injunction? For it is clear that Bodin thinks very explicitly that he bears witness to many pardons that do not comport with the law of God. Giving us reason to believe that the mal-administration of pardon, the kind Bodin ‘sees’ many of, calls to mind the figure of the tyrant. The clearest understanding of the reason for the proliferation of pardons in a body politic is a result of the tyrant pardoning crimes against his constituents. It would seem then that this not only confirms that the prerogative of pardon is not only a prerogative of sovereignty but a temptation. And in as much as it is a temptation, it highlights the unique nature of this particular prerogative in that it holds within it the power to appear merciful, as well as to curry favor with the public. It is a temptation that might lure sovereigns away from acting as the ‘good king’ and toward playing the ‘tyrant.’ This is further supported by the next turn that Bodin makes pg. 92 POLITICAL FORGIVENESS in the text, one in which he discusses how a sovereign prince can best exercise his prerogative of pardon. An interesting turn reminiscent of a ‘mirror for kings’ dialogue. It is of course within the sovereign’s power to grant “pardons to the condemned, ignoring verdicts and going against the rigor of the laws to save them from death, loss of goods, dishonor, or exile.” Here in describing in greater detail the fifth mark of sovereignty, Bodin seems to relax the requirement of pardon being utilized in the final instance and exercise the power of life and death. Loss of goods, dishonor, or exile all fall far short of matters concerning the power over life and death. But Bodin’s thought here, although not necessarily cohesive, is consistent with what he lays out to be the distinguishing and first mark of sovereignty. For the first mark of sovereignty is to “give law to all in general and to each in particular.” Bodin explains that when he uses the phrase “to each in particular” he is referring to “privileges, which are in the jurisdiction of sovereign princes to the exclusion of all others. I call it a privilege when a law is made for one or a few private individuals.” Given the sovereign’s ability to act against the rigor of law, it is perfectly clear that there are instances in which a privilege could be conceived as an exception from law. Furthermore, Bodin argues elsewhere that “persons who are sovereign…must be able to give the law to subjects, and to suppress or repeal disadvantageous laws and replace them with others – which cannot be done by someone who is subject to the laws.” From this it is clear that the sovereign is not subject to the law in any sense and if there was any confusion what directly follows is an affirmation that “the prince is not subject to the law.” Bodin, as a theorist of absolute sovereignty, does not wish to curtail a sovereign’s prerogative in any way. However, this does not mean that Bodin is blind to the possibility the sovereign may not use his prerogative in the wisest of manners. Having presented his reader with this possibility Bodin puts the hypothetical question to pg. 93 POLITICAL FORGIVENESS the test, “how, someone will say, can the prince show his mercy if he cannot remit penalties established by the law of God?”83 For this is the second threat that the prerogative of pardon presents to the sovereign; the temptation to pardon with too much zeal derived from the desire of the sovereign to please God. The logic being that the more merciful they are, the more pleasing their acts are to God.84 Bodin finds his answer to this hypothetical in a litany of examples by which a sovereign prince can stay the hand of execution, confirming his power of life and death. Notably each of the examples Bodin gives derive from civil laws. Civil laws that might be of the sort passed by the odious king/tyrant figure. The specific examples that Bodin cites include, “if the prince has forbidden his subjects to bear arms or to deliver foodstuffs to the enemy on pain of death, he would make good use of his power in pardoning someone who took up arms only in self-defense, or who was driven by poverty and dire need to sell dear to the enemy. Or if the penalty for theft is death according to the civil law, a benevolent prince can reduce it to payment of fourfold restitution.”85 To fully apprehend how Bodin imagines the power of sovereign prerogative as it relates to forgiveness one needs to consider what Bodin appraises as the highest form of pardon, But of all the pardons that a prince can grant, none is more seemly than one given for an injury done to his person, and of all capital punishments there is none more agreeable to God than one established for injury done to His majesty. But what can one hope for from a prince that cruelly avenges his injuries and pardons others, including even those done directly against the honor of God?86 Bodin focuses on how the political authority of the sovereign is ensured by political forgiveness pg. 94 POLITICAL FORGIVENESS but misses how the act of forgiving entails a politics of its own. It is this politics that I attempted to draw out above in insisting that what Bodin achieved in The Sixbooks is a destruction of any economy of forgiveness and its attendant power and the establishment of a monopoly of forgiveness in the sovereign’s hands. This is a particularly salient place to note the break that Franklin identifies in Bodin’s thought in which he abandons his reverence for Machiavelli. Surely the below quote will seem a direct juxtaposition to the learned reader of Machiavelli. The best means of preserving the authority of the monarchy is that the prince should be loved by all, without any allot of contempt, and as far as possible hated by none. To achieve this two things are necessary. First, just punishments must be meted out to malefactors, and rewards to the worthy. But seeing that whereas the latter is a pleasing task, and the former is invidious, the prince who wishes to command the affection of his subjects should reserve to himself the distribution of rewards, whether estates, honors, offices,…grants of immunity, exceptions, restitutions, and all such graces and favors. 87 This passage from the Six Books is almost verbatim a refutation of Machiavelli’s famous chapter from The Prince. In the first quote, we find Bodin looking favorably on the sovereign as the arbiter of justice, even unto the last instance of meting out the ultimate punishment in any judicial setting that of the death penalty. On the opposite end of the judicial spectrum, Bodin asserts that the sovereign should not engage in the pardoning of offenses. In direct contradistinction, Machiavelli argues that as the meting out of punishments is not only unpleasant, but odious to the general body politic, the prince ought not to be the political institution that is the final arbiter of negative justice. While it may be possible to hand down pg. 95 POLITICAL FORGIVENESS judicial decisions without contempt, certainly, the prince cannot inoculate himself against the hatred of ill-administered judicial decisions in perpetuity. To be sure, Machiavelli also warned about being hated, however, he was much less sanguine than Bodin regarding the necessity of being loved. More importantly, Machiavelli asserts that the distribution of pardons and immunities is crucial to obtaining favor with the prince’s subjects. Conclusion: I have argued that the power of forgiveness is a power that undergirds sovereignty and that when the law is broken it is in the request for forgiveness that sovereignty is recuperated and made whole, so to speak, once more. If we consider this in light of both what Bodin’s significance was and the thought of those that would follow him and take their cues from his political thought Bodin as a starting place makes perfect sense. Let us recall that Bodin is attentive to how political forgiveness is utilized both in and through the law. He must be, because it is incumbent upon him to treat the topic in such a way as to always preserve both the sovereign’s final prerogative and the sovereign’s indivisibility. All other acts of political forgiveness short of this attenuated version, rather than confirming sovereign power, acts of political forgiveness undertaken outside the auspices of the sovereign’s highest prerogative, are deleterious to sovereignty. Political forgiveness exercised at the hands of magistrates, tyrants, and others confirms not sovereignty but a deficit thereof. In an odd, perhaps even ironic fashion, political forgiveness serves not only to confirm sovereignty, but illustrates the fragility of sovereign power itself. We know that sovereignty as an idea, conceptually and perhaps politically, predated pg. 96 POLITICAL FORGIVENESS Bodin’s The Sixbooks of the Republic. However, it was not until Bodin that the idea of sovereignty became sedimented. Part of the sedimentation process that Bodin’s book is representative of was to deposit political forgiveness forever amongst the strata that make up the bedrock of what all that followed him understood as sovereign power. That Bodin thought so much of political forgiveness and a constellation of concepts around it, like confession, is somewhat humorous and a little ironic. Recall Hannah Arendt’s quip from the introduction to this dissertation, that it “has been in the nature of our tradition of political thought to be highly selective and to exclude from articulate conceptualization a great variety of authentic political experiences, among which we need not be surprised to find some of an elementary nature.”88 The authentic political experience that Arendt alludes to here is forgiveness. To be sure, perhaps it is absent in contemporary thought, but in the tradition of thought at least since Bodin and following him it is certainly there. At the originary moment of modern sovereignty, forgiveness has always been an elemental feature of political thought. Such is the beginning of the tradition and trajectory of political forgiveness. Forgiveness, in Bodin’s thought, satiates sovereignty, and makes it whole again, this is the content of the palliative power that Bodin assigns to political forgiveness. We also saw the anxiety and fear that Bodin confesses and expresses, the fear that, for instance, forgiveness might be usurped and expose the fragility of sovereignty. As well as the fear that secular authority could be diminished or displaced when religious authorities carried out pardons. Raising the specter of fear in a work of political theory tends to draw one’s thoughts to Thomas Hobbes. In the next chapter, I engage with Hobbes as I follow the trajectory of political forgiveness. Like Bodin, Hobbes’s expresses both a palliative dimension to political forgiveness and a polemical relationship to it. Also, like Bodin, Hobbes puts the palliative and the polemical aspects of political forgiveness in conversation with one another. This intra-textual conversation pg. 97 POLITICAL FORGIVENESS present in Hobbes is tied together by what I consider to be a fraternal conceptualization of fear and forgiveness. Bodin merely expressed anxiety, a fear about certain potentials of forgiveness; in the next chapter maintain that for Hobbes the expression of fear and the expression of forgiveness are twin thematics.. I propose that in grappling with the logic that fear and forgiveness share, Hobbes offers us a way to find novel manifestations of political forgiveness and in doing so opens up new possible meanings for palliation and polemic. I didn’t get much about palliation in this Bodin chapter. It seems to come as an afterthought in this conclusion. What does palliation have to do with witches? With the dangers of religious displacing secular authority? Your sentences are often so convoluted, that I had a hard time extracting your points from them. A chapter needs to have a clear line of argument, leading to a conclusion. I cannot tell you what the line of argument was in this chapter-distinctions between good and bad sovereigns? Witches excluded from pardons? Where is the palliative aspect of all of this that you refer to in the conclusion? I’m sure the reading you give us of Bodin is a good one, but you need to separate the details from the line of your overall argument, subsuming details to the argument, so that we understand how we get to the conclusion you offer. pg. 98 POLITICAL FORGIVENESS Chapter II. Thomas Hobbes - fear and forgiveness Building on Bodin: In the introduction of Leviathan, we find Thomas Hobbes laying the foundation of what would become his most read and discussed work of political theory. In that introduction, Hobbes informs the reader that in the pages ahead they will encounter the nature of man and his flight from the state of nature to the safety of the commonwealth. The mainspring of this movement is that same fear I intimated at the end of the previous chapter. The commonwealth, Hobbes reasons, is co-equal with an artificial man (which we find out later is possible through the institution of representation). “For by art is created the great LEVIATHAN called COMMONWEALTH, or STATE, which is but an artificial man (emphasis added).”1 Hobbes then bequeaths to this artificial man a soul, which is the sovereignty of the state: “…this person is called sovereign, and said to have sovereign power; and everyone besides, his subject.” 2 It is in mankind’s fear of bodily harm and a brutish untimely death, that Hobbes locates the possibility-some might say necessity--for the procreation of the commonwealth and concomitant institution of political society. According to Hobbes, fear, as he defines it in the first section of Leviathan, is “aversion, with the opinion of hurt from the object.” 3 This being the case, it is clear that in a prepolitical state, fear of one another is justified; each member of this pre-political arena possesses the threat of bodily harm or death. Hobbes asserts that in a pre-political society, the inhabitants are in constant danger and constant fear for their boidly well-being due to the lack of authority, pg. 99 POLITICAL FORGIVENESS law, and a system of punishments to curtail the baser elements of human nature. The source in human nature of these conditions is the equality of the faculties of the body,” as well as the mind.4 This equality of bodily strength and intellectual acumen combine to create a condition in which the weakest in bodily strength can take the strongest by surprise, should that be their desire, and kill them. Hobbes argues that this equality is enmity between men, for their equality makes them lustful for the same ends, and therefore intent on preventing one another from obtaining said end, therefore “diffidence of one another.” 5 The problem as Hobbes would have us understand it is that neither party to this burgeoning contest has reason to fear the other, accruing to their purported equality. Furthermore, neither party has a reason to fear reprisal, reprimand, or punishment from a higher authority as there is none. The only “punishment” that can be visited upon anyone is that which is doled out by the individual in direct opposition to him or her. Then the famous adage from Hobbes is introduced: without reason to fear one another, humankind during such a time is in a constant state of war, and until a time at which there be “a power to keep them all in awe,” the war will persist.6 From the context, and the centrality of the driving force of fear, it is clear that Hobbes means to indicate that this power will over-awe humankind by the ability to replace one form of fear with another. For Hobbes, particularly the Hobbes of Leviathan, harnessing fear is the beginning and the end of his project; it is only when individuals harness their fear and covenant to form a body politic that they can eradicate threats from foreign aggressors or instability from internal sedition. Or, viewed another way, provide for “peace and defense.” 7 Towards this end, Hobbes argues for the necessity of a “terror,” the “Mortal God,” to render men fearful and “over awed.”8 Obedience to such a power arises from a “desire of ease,” that “disposeth men to obey a common power…Fear of death, and wounds, disposeth to the same; and for the same reason.” 9 It pg.100 POLITICAL FORGIVENESS is in the institution of sovereignty that the mainspring of fear is located, alongside the right of punishment, forgiveness, and an intricate system of “sovereign behaviors” that excuse or extenuate certain crimes. Voluntary subjection to this awesome power is explained by Hobbes to accrue from a flight from the possibility of oppression: “Fear of oppression, disposeth a man to anticipate, or seek aid by society: for there is no other way by which a man can secure his life and liberty.”10 There is something of a paradox here. If the sovereign is meant to instill fear, and to over-awe, then the subjects of that sovereign must necessarily be averse to it, and thus fearful. The sovereign has the potential to hurt a subject by way of punishment or sanction, a possibility that is always on the horizon. This essentially means that the sovereign’s subjects are averse to it, and therefore averse to the commonwealth, as the sovereign and the commonwealth are the self-same thing. This is a paradox then; individuals prefer neither the state of nature nor society because both involve a measure of fear. Thus, society is sought as a preventative measure to alleviate fear. For to have society, in the thought of the Hobbes of Leviathan, there must first be a sovereign power to over-awe every member of society to keep them in check, in fear. As Hobbes thinks, “men have no pleasure, in keeping company, where there is no power able to over-awe them all.”11 Therefore, the fear that essentially founds society, holds it together, is a fear of lesser evil but a fear, nonetheless. In such an atmosphere driven by fear and existential uncertainty, it is difficult to imagine any meaningful role for a virtue like forgiveness. However, this is only if one conceives of forgiveness as just that, a personal virtue. My argument thus far has been that political forgiveness is markedly different from the personal virtue we are all familiar with. Hobbes’ corpus can provide us with a framework for conceptualizing political forgiveness (as I have imagined it) as an element of sovereignty and at pg.101 POLITICAL FORGIVENESS the same time a power that is subversive of that sovereignty. I will argue that when the Hobbesian corpus is parsed it is fear itself that provides the foundation for the expression of forgiveness, even the possibility of its political utilization. There is of course a hearty debate in the literature on Hobbes as to how central fear is to his political theory. Both Hobbes’s more conservative commentators and his more radical interpretations interrogate the conceptual usage of fear in his texts, but often for very different ends. Before turning to these interpretations of Hobbes I pause to consider what Hobbes himself may have feared and how that might in turn have impacted the way he thought about fear’s potential political import. Hobbes in history: If I were to be overly schematic it could be argued that the life of Thomas Hobbes was divided into two parts, life before the publication of The Elements of Law and life after the publication of that work, for it was with the penning and publishing of The Elements that Hobbes’s life as a political theorist began. To be sure, Hobbes was exposed to political life before he publicized The Elements. He was employed in the service of The Earl of Devonshire, William Cavendish, shortly after 1608 upon his graduation from Magdalen Hall Oxford.12 Over the next twenty years Hobbes worked with the Cavendish family acting variously as a companion to the Cavendish youth, tutor, and secretary.13 Hobbes may not have been born into particularly good fortunes, or an aristocratic family, but he spent the vast majority of his life consorting with aristocrats. The Cavendish family was not only a very important aristocratic family at the time, but a family that was roundly in the royalist camp.14 I bring up his connection to aristocratic families because they are relevant to substantive arguments I levy later in the chapter. pg.102 POLITICAL FORGIVENESS According to Quentin Skinner, towards the end of his tenure with the Cavendish family, Hobbes’s intellectual interests switched rather abruptly from his background in humanism to the natural sciences.15 Indeed, before this time, according to Richard Tuck, there was little in Hobbes’s communications with friends and allies to indicate any interest in politics. 16 Over the course of the 1630’s Hobbes turned his new interest towards the purposes of penning the abovementioned The Elements of Law, which he finished in 1640. According to Tuck, as Hobbes finished The Elements, the political events of the day permeated his thoughts.17 Given the content of The Elementsand its absolutist and royalist bent, the date of publication could not have proved worse for Thomas Hobbes. As Richard Tuck points out, the publication of The Elements happened to coincide with the attempts of Charles I to bolster his navy through ‘ship money.’ 18 The move was an extremely unpopular one and translated into heightened tensions between royalists and parliamentarians. It was at this time, in this crucible if you will, that according to Tuck, Hobbes began to develop his political consciousness.19 The heightening of the conflict coupled with the publication of The Elements caused the prudent Hobbes to flee England for Paris, France in the aftermath of its publication.20 Eleanor Curran cites this approvingly as evidence of Hobbes’s royalist loyalties, but perhaps it was merely evidence of the fact that Thomas Hobbes was a prudent man and understood the danger The Elements represented for him. It was there that Hobbes remained until the conclusion of the English Civil War. Once in France Hobbes set himself to work on another project, and in 1642 he published De Cive (“On the Citizen”). The political elements of the text were largely restatements of those which had preceded them in The Elements and like the aforementioned, De Cive’s political content reflected the political atmosphere of Hobbes’s England. 21 As Hobbes neared the end of his tenure in Paris he would complete the work that he is perhaps most widely known for, pg.103 POLITICAL FORGIVENESS Leviathan. Published in 1651 before his return to England, Leviathan, like De Cive before it, was largely a continuation of the expression of Hobbes’s political philosophy, Skinner goes so far as to say that some even received Leviathan as a vulgarization of De Cive.22 In any event, an interesting thread ties these three works of Hobbes together: fear. Yet it is not fear in the text or rhetoric of the books, but rather the presence of a well-founded fear in Hobbes’s own life. It was fear of the political consequences of his work, the fear of persecution and potential prosecution that had led him to flee to France after the publication of The Elements. That continued fear led Hobbes to remain in France over the course of the civil war in England in which the parliamentarians continued to grow in strength. And finally, fear led Hobbes to ultimately soften his absolutism in Leviathan in such a way that he might be able to return home again. As Curran points out, this absolutism was tempered in Leviathan (unlike in his previous two tracts) by a concession that subjects of the sovereign power did not owe complete and total obedience to it, and that as a result, a subject might resist the sovereign on the grounds of defending one’s existential state. If it is true that Leviathan softens slightly Hobbes’s otherwise absolutism, it is possible that the reason for this was also fear. In point of fact, Skinner claims that it was perhaps the 1649 Oath of Engagement, which required subjects of England to commit their allegiance to the newly anointed Commonwealth (now without King and House of Lords), that caused Hobbes to soften his stance ultimately, arguing “if you are offered peace and protection – even by mere conquerors – you have a sufficient reason for paying allegiance as a true subject.”23 What is more, Skinner claims that Leviathan is not even royalist in the sense that Hobbes’s The Elements or De Cive were. This is because of the extremely mature scheme of authorization that leads to sovereign authority that Hobbes develops in Leviathan which is not present in the other two works. It is also this notion of authorship that enables Hobbes to theorize representation, which pg.104 POLITICAL FORGIVENESS in turn allows for sovereignty to be held by a few or many individuals as in an aristocracy or democracy. To reiterate once more, I am less concerned with the polemics surrounding whether this or that text is royalist or not; I make mention of the political bent of each only to advance my argument that the underlying political landscape perhaps influenced the way that Hobbes acted on the fear that he felt for himself generated by those events. Further, with each subsequent publication, his actions seem to comport with the types of actions one would take if guided by fear. Frankly, Curran’s analysis of Hobbes the person seems to support this thesis. She quips that Hobbes “was a master of survival and more than survival. He somehow continued to thrive no matter how many vested interests he was perceived as attacking.” 24 If Curran is correct in this analysis, it is a crucial bit of information that greatly contextualizes how I claim Hobbes conceived of the shared logic between acting out of well-founded fear and engaging in prudential acts of forgiveness. Fear: How is it, though, that Hobbes arrives at a place where he claims fear of an untimely death is the prime mover of all individuals? If we follow Strauss’s reading of Hobbes it is by way of Machiavelli that we arrive at such a location. Specifically, according to Strauss, it was Hobbes’s adoption of Machiavellian realism that led him to the conclusion that the fear of death, and avoiding an untimely death was each individual’s raison d’etre. To better understand what it was in Machiavelli’s political realism that so influenced Hobbes, we can follow Strauss’s general argument. Hobbes, according to Strauss, basically accepted Machiavelli’s premise that the problem with classical political philosophy is that it develops its political theory based on how pg.105 POLITICAL FORGIVENESS people ought to live rather than how people actually live. 25 Strauss argues that Hobbes accepts this general precept, and acknowledges that how people actually live is by being guided by their passions rather than by reason. 26 It is from this supposition that Strauss argues Hobbes surmised that the “most powerful of all the passions is the fear of death and, more particularly, the fear of violent death at the hands of others.”27 Strauss reiterates that the death that Hobbes has in mind is not natural, but rather, death brought down on someone by the hand of another in malice. This element of Hobbes’s political theory is important, for as Strauss points out, Hobbes was well aware that a miserable life may be a fate worse than death, and therefore Hobbes emphasizes the qualification that the death we fear most is a horrible and violent one. 28 Furthermore, this cannot be any horrible and violent death, for to be sure there are myriad ways that the natural world might rain a horrible and violent death down upon us.29 No, the only horrible and violent death that Hobbes has in mind is the one we suffer at the hands of other people.30 The possibility of such an unpleasant demise is found easily enough, on Strauss’s account, in the nature of man as Hobbes understood it, for it was Hobbes’s understanding that man was by nature “evil.”31 And on this fact it is Strauss’s position that in the absence of this belief Hobbes’s “political philosophy would lose all its character.”32 Strauss puts the preceding into context and conversation with our starting point, our point of departure, the fact that people are guided more by their passions and appetite than by reason alone. And what passion is it that Strauss latches onto? Vanity. According to Strauss it is not he, but rather Hobbes himself that emphasizes vanity is “man’s natural appetite.”33 Strauss’s claim then becomes that, “…if man’s natural appetite is vanity, this means that man by nature strives to surpass all his fellows and to have his superiority recognized by all others, in order that he may take pleasure in himself; that he naturally wishes the whole world to fear and obey him.”34 Thus, it is not passion itself that fuels the war of all pg.106 POLITICAL FORGIVENESS against all that Hobbes posits, but rather it is the passions expressed through vanity that drive each and all, to use Hobbes’s words, to desire conquest over one another, to bask in their own superiority. Strauss’s emphasis on the role that vanity plays in the Hobbesian universe is of no small significance in establishing a fraternal link between fear and forgiveness in that same Hobbesian universe. For if my account is correct and there is a shared logic between fear and forgiveness, it means that Strauss’s account may prove to be correct some of the time in the Hobbesian universe, but not all of the time. Let us look at an important element of Strauss’s argument. He claims that a central flaw of the vain individual is that they might convince themselves of their superiority, but this reality exists only in their mind, and what is needed is a proof of sorts.35 This proof takes the form of the individual staking his claim to his superiority against one or more others, now these others are presented with a choice, to accept the individual's claim to superiority, or reject it.36 In the contest to establish superiority there will always be a party to the contest who believes they have been, in Strauss’s words, “slighted,” and, according to Strauss, the reaction to this slight will be the desire for revenge.37 Like Strauss, Richard Tuck advances an approach to the issue of the human passions in Hobbes. Tuck argues that Hobbes thought the passions were “broadly beneficial: what men feel strongly about or desire strongly is what helps them to survive, and they cannot for long want a state of affairs in which their survival is endangered.”38 The question that Tuck raises is not whether or not it is fear of violent and untimely death that is at the heart of the matter for Hobbes. Rather, Tuck’s question is what it is that conditions, qualifies, gives credence to that fear. Tuck’s reading of Hobbes is more focused on what gives rise to the existential threat, rather than the threat in and of itself. Thus, Tuck asserts, “Men on Hobbes’s account, do not want to pg.107 POLITICAL FORGIVENESS harm other men for the sake of harming them; they wish for power over them, it is true, but power only to secure their own self-preservation.”39 Tuck further argues that rather than presenting the image of men as inherently violent and constantly seeking to dominate, Hobbes’s “natural men were in principle stand offish towards one another rather than inherently belligerent.”40 This leads Tuck to question the basic premise that Hobbes had a generally negative view of human nature. Tuck argues instead that the problem of conflict figuring so centrally in Strauss’s reading remains a problem, but it is a problem of a different magnitude. In this respect, Tuck chooses to plant his flag on unusual ground. He insists that the genesis of the conflict, the source of the desire for power over others for self-preservation is found in an ideological register. This is interesting, because in the pages of Leviathan it does appear that Hobbes’s main preoccupation is with individual’s material desires and wants in the state of nature, and how those desires lead to violent contests. Consider, for instance, the famous Hobbesian allusion to the brigand in the wood who would certainly club you to death for your goods and wares. Or the all too familiar example that Hobbes gives regarding the individual’s perceived need for a locked chest in one’s home to keep their things safe, when there is already a lock on the door. Tuck argues that it is not conflict over material goods but “conflict over what to praise, or morally to approve, which Hobbes thus isolated as the cause of discord, rather than simple conflict over wants.”41 The historical contextual element that Tuck grasps at is what he claims was probably at the front of Hobbes’s mind, the English Civil War and perhaps even his own safety. While that may be true, at least in the justifications Hobbes himself lays out for the political order, violence over the want for material advantage is a more present matter. Nevertheless, whether violence is spawned out of a desire to overpower someone for ideological reasons or material gain, Tuck understands the remedy for the threat of coming under another’s pg.108 POLITICAL FORGIVENESS power in the same way as Strauss, through politics. Here again, concerning the genesis of the political order, Tuck’s reading of Hobbes is interesting. The political order’s primary function manifests itself as being something of an arbiter of what to praise, what to deem ethical, and what to deem inappropriate. He writes, The traditional moralist’s response to ethical disagreement had been to hope that sooner or later everyone would come to see the moral facts clearly and rationally, but Hobbes of course could not resort to pious hopes of this kind. Instead, he proposed that the route to agreement must lay through politics, and this counts as Hobbes’s most distinctive contribution to political theory.42 Here Tuck asserts that on his reading of Hobbes, the goal of politics is to establish what amounts to a moral consensus to maintain peace. Tuck’s argument then comes close to one of the primary concerns I have levied against the appropriation, or dispossession, of the power of forgiveness, a power that most certainly falls within the sphere of concerns that Tuck has regarding human capacities in the absence of a final arbiter. One could certainly imagine situations in which there would be significant disagreement between individuals as to the appropriateness, or ethical merits as to whether to forgive, for instance, the aforementioned brigand in the woods for their crimes. In fact, I do not take Hobbes to be aiming to achieve anything like such a consensus. Both Strauss and Tuck affirm the import of fear for Hobbes’s theory. However, neither theorist's account is particularly satisfying for the construction of a Hobbesian subject with any latitude for agency and self-determination. If Strauss is correct and the fear of violent death at the hands of another is our prime motivation, then to return to his concerns raised of ‘slights,’ it pg.109 POLITICAL FORGIVENESS makes far more sense to forgive the slight to preserve oneself rather than risk violent death by attempting to take revenge. In fact, from Strauss’s account, what seems to be necessary for an escape from the state of nature is that numerous individuals are willing to exercise their power of forgiveness to avoid spirals of revenge, such that they create the commonwealth. For this to be the case, an individual or group of individuals would need to be what Larry May calls a “first performer.” In Strauss’s world such an act, that could open oneself up to physical harm, would only be entertained by the most foolhardy. But it is just this possibility that I argue for, if we attend to May’s argument and push it even further. What appears to be the most unique feature of May’s work, Limiting Leviathan, is his attempt to argue that there is a logic of pacifism at work in the thought of Hobbes. He advances against the “common attempt to portray a Hobbesian position as involving the rationality of having pro-war attitudes.”43 This advance is made by arguing the converse, that Hobbes makes a pro-peace argument, and that there is a variety of pacifism in Hobbes’s work that seeks peace until “the point where one risks serious harm to the self.” 44 May further argues that this propeace, logic is central to Hobbes’s social contract. Now, to be sure, it is a radical claim to make that Hobbes of all people is pro-peace. In the totality of his oeuvre peace is typically conceived of negatively as the absence of war. It is, to use the tired formulation, the exception rather than the rule. May’s argument demonstrates how the power of forgiveness as exercised by Hobbesian subjects has the potential to both enhance one’s ability to provide for their self-defense, and render the lawless violence of the state of nature and the lawful violence of the sovereign inert in their effects. Furthermore, May’s argument is something of a harbinger of the shared logic between fear and forgiveness, which I will argue for later. For it is fear that one might harness as part of acting in a forgiving way to achieve peace. (The opposite is also true, as I will show later. pg.110 POLITICAL FORGIVENESS Hobbes himself makes a logical connection between fear and forgiveness that in essence provides an escape clause of sorts for the Hobbesian subject to engage in disobedient behavior.) May emphasizes that “the chief reason that Hobbes is not recognized as a proponent of pacifism is that he argues against the initiation of peace by a single person.” 45 The reason of course for this is there can be no assurance of reciprocity. The problem with seeking peace as the first actor, as May argues, is that “the first person to display peace-seeking attitudes opens himself or herself up to possible exploitation,” thus the solution is to be pacifistic, or a peace seeker rather than a first performer. 46 But I do not think there is textual evidence for such a pacifist subjectivity in Hobbes, nor is it desirable or necessary. Additionally, it is logically difficult to follow how one neatly differentiates a peace-seeker from a first performer. If we drop the requirement of being pacifistic that May imposes, and substitute for that the simple desire for retained autonomy and agency by the subject, there is a way to ‘save’ the first actor argument that May wants to make without the burden of a pro-peace attitude, or a pacifistic position. In this scenario one would drop the necessity of reciprocity while not being concerned with whether one ‘performs’ first or not, a move Hobbes would surely both agree is likely and approve of. The politics of forgiveness, such as it is, provides the ideal vehicle to solve the problem of acting first while also securing one’s safety, agency, and autonomy, without the need for reciprocity. May appears to be attentive to the crucial passages in De Cive, Leviathan, and The Elements of Law that speak to Hobbes’s attitude toward the pardoning of offenses. However, he does not articulate the significance of the passages, the role of pardoning, or the possibility they offer for his argument. May turns to what he calls the reasonableness of developing a pacifistic attitude. (I suppose we might respond that Hobbes himself was all too aware that individuals both in the pg.111 POLITICAL FORGIVENESS state of nature and in the commonwealth are not reasonable but rather driven by their passions,.) It is in the course of this argument that May draws his reader’s attention to Hobbes’s sixth law of nature to ground his argument that subjects should seek peace. In short, Hobbes’s sixth law of nature could be read as, forgive those who desire forgiveness, but do not forgive those who remain ready to cause you fresh harm. What May argues for, implicitly, is for subjects to be forgiving under the right circumstances to signal their pro-peace attitude. I do not think this goes far enough. I would argue that the power of forgiveness that Hobbes’s sixth law of nature provides for is better understood as a tool of self-determination, which does not carry the baggage of an attitude toward peace or pacifism. The sixth law of nature: In what follows I develop the argument, grounded in Hobbes’s sixth law of nature, that forgiveness shares the same function and logic that fear does in the mind of Hobbes. Depending on the reasons for its deployment, it is possible to understand an act of forgiveness as sharing its function and its logic with fear. Across the Hobbesian corpus forgiveness and fear work in tandem as a fraternal concept; from The Elements of Law, to De Cive, and Leviathan forgiveness and pardon are synonymous with both peace and fear. This of course relies on a continuous reading of the texts,a reading that some eschew for a more periodized approach. This is particularly the case with those who seek to radicalize Hobbes. For instance, Richard Tuck places great emphasis on earlier Hobbesian texts in arguing for a radically democratic reading of Hobbes. Similarly, James Martel focuses solely on Leviathan. Nevertheless, I will argue that fear and forgiveness across the Hobbesian corpus share continuity in their meaning and import, as pg.112 POLITICAL FORGIVENESS well as a continuous development that begins in The Elements of Law. Let us engage a close reading of fear in Hobbes’s theory to better ascertain the manifold sources of fear in the mind of his political subjects. We have established that for some writers, such as Strauss, it is something of an aphorism to claim that the threat of an untimely death, and therefore human existential fear is central to understanding the ultimate goal of Hobbes’s political project. Even May to some extent acknowledges that fear acts as a prime mover, the mainspring of and justification for the necessity of political organization and absolute sovereignty. Before the covenant constant fear of death is present because there is no law but the law of nature; after the covenant the source of fear shifts to the sovereign. This is a figure whose constitutive components include the ability to punish…and by extension forgive or acquit punishable acts endeavored by members of the commonwealth. As Hobbes himself explains in the introduction to Leviathan, “the sovereignty is an artificial soul,” of the commonwealth, but, “reward and punishment are the nerves, that do the same in the body natural.”47 This being the case, in the body natural, as Hobbes would put it, we would seek reward as it naturally leads to pleasure whereas we would be fearful of punishment as it leads to pain (either mental or physical). It is in the second part of Leviathan where political subjects trade one fear for another, fear of death and bodily harm for fear of punishment, where I would like to situate forgiveness in the work of Hobbes. Across the Hobbesian corpus in The Elements of Law, De Cive, and Leviathan, it is in Hobbes’s sixth law of nature that forgiveness is most prominently discussed. There is both consistency and what we might think of as a reactionary evolution of Hobbes’s thought across these texts. It may seem a trifle cute to argue for both an element of consistency and reaction, but the two in this case are not mutually exclusive. The element that remains constant across the pg.113 POLITICAL FORGIVENESS texts is the shared logic between forgiveness and fear. As I will show, Hobbes’s thought matures and he ultimately eliminates a crucial aspect of his sixth law of nature, a prudential element, that is present in The Elements of Law but absent from his later texts; this is what constitutes the reactionary evolution. Forgiveness in the form of pardon arrives in Hobbes’s text before the institution of the commonwealth. As a result, and this is crucial, Hobbes did not mean for pardon, in this specific location in his text, to be understood as a sovereign exceptional act. To be sure, Hobbes has an understanding that within the commonwealth the right of pardon belongs to the sovereign alone, this is made manifestly clear in Chapter XXX. Hobbes's discussion of pardoning includes a detailed account of pardon before the institution of the commonwealth as a power and a faculty of people in general. In addition, Hobbes’s treatment of pardon as a power of the sovereign in Chapter XXX is presented in the context of the production of equitable outcomes of the judicial system. This emphasis on the equitable dispensation of the right of pardon is truly unique. Neither Bodin before him, nor Locke after him, or Beccaria writing at the same time (relatively) discuss these facets of political forgiveness.48 I now turn to an exploration of the emergence of pardon, by which Hobbes meant a general capacity of forgiveness in persons, and I will discuss the peculiar Hobbesian requirement that pardons be dispensed equitably. Hobbes defines a law of nature as a “general rule, found out by reason, by which man is forbidden to do, that, which is destructive to his life, or taketh away the means of preserving the same…”49 In enumerating the laws of nature Hobbes situates forgiveness as the sixth law in each of his three most important political treaties. But, his sixth law resonates in an important way with the first law of nature: The first law of nature according to Hobbes is “to seek peace.”50 The second law of nature following immediately after the first is “by all means we can, to defend pg.114 POLITICAL FORGIVENESS ourselves.”51 Given the textual context it is clear that while the mode of the first and second laws of nature differ, the objective remains the same, to guarantee self-preservation in the face of a precarious existence. Thus, peace is not sought for the sake of peace as an end; rather peace is sought as a pure means to the only ultimate end…self-preservation. Both of these laws of nature turn on a central mainspring: fear. Hostility, understood as the absence of peace, is the ultimate condition to be feared. Similarly, individuals defend themselves out of the same necessity that leads them to seek peace, which is fear of hostility that ends in bodily harm. The argument I will pursue here, and elsewhere in this chapter is that through an interrogation and radicalization of Hobbes’s sixth law of nature we can both increase the concrete amount of power that the Hobbesian political subjects possess, and simultaneously restrict the amount of juridical power (authority) that the sovereign possesses. Beginning with Hobbes’s earliest text, I argue that what we find is a definition of pardon within the sixth law of nature that is more expansive than in his later work. The expansive nature of the sixth law in The Elements of Law is marked by what I call a requirement of prudence, based on Hobbes’s conception of the necessity of self-preservation. In this text, two elements give meaning to the logic and function of forgiveness and elucidate how subjects might apprehend their possession of the power of forgiveness both before and after the covenant, and how sovereign power might wield forgiveness as well. What Hobbes seems most concerned with is not the standard account of forgiveness whereby an actor is wronged, the perpetrator of the wrong repents and the aggrieved forgives. Rather, it is the myriad exceptional cases where there is an absence of repentance that Hobbes spends the most time puzzling over. One can imagine that it is just such cases where there is an absence of repentance that certainly arise before the institution of the commonwealth, but also most certainly in a context charged by political pg.115 POLITICAL FORGIVENESS conflict. So, what does Hobbes have to say about these exceptional cases, where an actor might forgive a wrong committed in the absence of repentance or remorse? Firstly, Hobbes suggests that one might engage in forgiveness, even when the actor in the wrong does not ask for it, out of a sense of “charity.”52 Hobbes then rejects this out of hand. For one who does not repent, it is explained, is to be viewed as an enemy seeking advantage. 53 To engage in a forgiving act towards that individual, or group, would be a tacit acknowledgment of a deficit in one’s power as compared to the unrepentant actor. Is it Hobbes’s position that one ought not to be forgiven in these situations? Not so. Hobbes cannot rule out the fact that although pardoning an unrepentant actor is inadvisable due to the threat that actor poses in the future, this behavior is commonplace; and ever the realist, Hobbes cannot refute what he knows to be true. The explanation that Hobbes offers is in such circumstances “to forgive him,” the unrepentant, “is not commanded in this law of nature, nor is charity, but may sometimes be prudence.” 54 Ultimately, forgiveness and fear operate under the same logic and function here, to provide safety for a future time. Hobbes counsels that while it may not be wise to forgive, nor manifestly charitable, it may be prudent. In fact, the common nature of such a circumstance, in which it is politically prudent to forgive, offers a powerful glance into the function of acts of political forgiveness. What Hobbes establishes in this text is a nuanced approach to forgiveness. It is an approach that can be read, not as an argument for the power of forgiveness in the abstract; but rather as a set of edicts and circumstances that have the effect of inscribing power into forgiveness, or conversely evacuating power from an act of forgiveness. A symptomatic reading of Hobbes’s circumstances charity and fear lend a portrait of differential logics of power. I will elaborate on this argument after a reflection on the trajectory of the sixth law of nature over the course of other Hobbesian texts. As his thought matures, his sixth law of nature becomes less pg.116 POLITICAL FORGIVENESS expansive. The question to answer is this: Despite this maturation in Hobbes’s perspective, can a power of forgiveness be linked to political disobedience? In De Cive Hobbes’s rhetoric becomes even more explicit: “[T]he granting of peace to one who does not repent (i.e. one who persists in a hostile frame of mind), or who does not give a guarantee for the future (i.e. is not looking for peace but a chance to recover), is not peace but fear, and is not therefore prescribed by nature.”55 This second formulation finds Hobbes establishing ever more concretely a fraternal relationship between forgiveness and fear. This equivalence amounts to a statement that in certain circumstances the logic of forgiveness and fear are the same, to protect or inoculate against a threat, which ties back to my argument for the prudential requirement found in The Elements of Law. Hobbes does not explicitly state the source of the hostility that establishes this relational equivalence between fear and forgiveness. However, it can be surmised that there are two moments to consider, the pre-political moment before the covenant and the political moment proper after the establishment of the sovereign. In the beginning, before the covenant, there is, of course, no sovereign power to over-awe each and all, and therefore no specificity to domestic and no foreign entities. The sources of hostility are homogenous. However, after the covenant the sources of hostility become diversified. Now there is the possibility of domestic hostility that the sovereign must defend their citizens against, as well as hostility from foreign powers. Thus, the sovereign becomes the arbiter of what is necessary for domestic peace, and foreign defense.56 Utilizing forgiveness in the pre-political arena does not carry with it a political objective or cost. One may forgive those who repent, as a guarantee of future peace, or out of fear for their existential well being, one may forgive those who do not repent…seeking to quell a hostile power. It is the movement to a properly political sphere where forgiveness can be wielded by a sovereign that imbues this Hobbesian pg.117 POLITICAL FORGIVENESS understanding of forgiveness, one that marries forgiveness to fear, with great power for the sovereign. Now I will consider the final construction of Hobbes’s sixth law of nature in Leviathan to conclude the arc of its evolution, discerning which elements remain consistent and which ones continue to change. In the text of Leviathan the sixth law of nature concerning pardon is found in its most attenuated form bereft of the context and content that Hobbes so carefully included in The Elements of Law, and later De Cive. I quote it now to demonstrate its brevity compared to the previous political tracts. “A sixth law of nature, is this, that upon caution of the future time, a man ought to pardon the offenses past of them that repenting, desire it. For PARDON, is nothing but the granting of peace; which though granted to them that persevere in their hostility, be not peace, but fear; yet not granted to them that give caution of the future time, is a sign of aversion to peace; and therefore contrary to the law of nature.”57 Note the elements missing; the requirement of prudence is all but gone, as well as Hobbes’s earlier reference to repentance which was found in De Cive. I believe the reason for this is that when one surveys the literature on Hobbes, one finds a strand of radical democratic theorists (whom I engage with at length below) that engage Hobbes in an attempt to ground a radical democratic reading of his texts. The specific texts, excepting that of James Martel who studies Leviathan (the third and fourth books of Leviathan), are typically heavily focused on The Elements of Law and De Cive. Leviathan is Hobbes’s most mature tract of political theory. By the time of its publication, perhaps Hobbes himself had realized the potential for disobedience and subversion present in political forgiveness. There is even textual evidence of the possibility of this turn. The textual evidence suggests that Hobbes found it not only plausible but likely that if the wealthy and powerful were treated to pardons and grants of immunity, they would find the potential for subversion and pg.118 POLITICAL FORGIVENESS disobedience enticing, to say the least (I discuss this possibility at length in the next section of this chapter). Furthermore, the impunity of the powerful would spawn neither the desire for peace with them nor fear amongst the masses of the body politic, and the resulting unforgiving public would not only take their ire out on the powerful but the source of their insolence, the sovereign. As a result, Hobbes would explicitly recommend against pardoning offenses committed by the powerful in Leviathan as a kind of corrective to his earlier work. Given the frequent anti-democratic critique of Leviathan, it is interesting that Hobbes would lay at the feet of the well-born, powerful, and wealthy, the allegation of politically subversive behavior capable of destabilizing the commonwealth itself, the seeds of which were planted by the hand of the sovereign. This becomes rather significant for the more common sort, those that would make up the mass of a people. I explicate his concern in what follows. A question of equity: Chapter XXX of Leviathan finds Hobbes considers manners in which the sovereign may utilize its pardon power. He begins by expressly stating that there are crimes against private individuals and then there are crimes against the state, and that it is only the latter that is appropriate for sovereigns to pardon. We can extrapolate this to mean that the sovereign may pardon offenses against himself, that is to say in a monarchy against the crown, or in the case of some other form of government the highest political authority without rendering an iniquitous outcome. At this point, this particular element of Hobbes’s argument is little more than an augmentation of Bodin’s discussion of how the ‘good king’ and the ‘tyrant’ dispatch their pardon power. Like Bodin before him, Hobbes expressly ties the mis-utilization of political forgiveness pg.119 POLITICAL FORGIVENESS to no less than the potential downfall of the political order. Recall that for Bodin it was the ‘good king’ that “avenges injuries done to his subjects but pardons those committed against himself.” 58 Hobbes reasons that in the case of crimes committed against private persons, “an offence against a private man, cannot in equity be pardoned, without the consent of him that is injured; or reasonable satisfaction.”59 Hobbes explains that whatever is done to a private person may be forgiven on that person's discretion alone, that is to say (as I have argued) that it is a power specifically vested in the subject. Hobbes is careful in his words; he does not say that a sovereign cannot or should not pardon offenses against private citizens only that to do so would result in an iniquitous pardon. Only those pardons that are for crimes specifically against the commonwealth, of public nature, and therefore political can be equitable, according to Hobbes. He argues, essentially, that the power of forgiveness as it pertains to the individual remains their own after the covenant, but at the same time, something like a right of forgiveness is alienated up to sovereignty. Hobbes’s discussion of equity as it pertains to the pardon power is not found in De Cive or The Elements of Law; only in Leviathan do we find this somewhat shocking doctrine. It is shocking in that at once he hoists pardon upon the mantle of that which can lead to the downfall of the political order, and shocking for the explanation of how that precipitous downfall occurs. The explanation contains within it a peculiar empathy towards a restive populace of a particular kind dressed in suspicion of oligarchic actors. The textual location of the passage I have been discussing, regarding the equitable dispensation of pardons, is the clue to this empathy. The passage itself occurs between two other passages that discuss the need, “that justice be equally administered to all degrees of people; that is that as well the rich, and mighty, as poor and obscure persons, may be righted of the injuries done to them; so as the great, may have no pg.120 POLITICAL FORGIVENESS greater hope of impunity, when they do violence dishonor, or any injury to the meaner sort, than when one of these, does the like to one of them…” 60 Hobbes expresses here a pointed concern over potential insolent behavior amongst what I will call an oligarchic element of the body politic. What has been established so far, according to Hobbes, is that part and parcel of the equitable dispensation of justice is also the equitable dispensation of pardons. Further, to pardon a wealthy or powerful person for a crime committed against a person of average means would be iniquitous. One mustn't confuse equity with any sense of normativity. Nowhere in this specific passage where Hobbes discusses the equitable dispensation of pardons is there a hint of normative language. However, it is clear that Hobbes appraises a particular danger in the pardoning or granting of impunity to the wealthy and the powerful, as he makes no explicit reference to the danger or harm to the body politic that would result in the pardoning of a person or persons of lesser means for a crime they commit against a private individual. It follows that Hobbes, ever the careful writer, meant to indicate a particular danger associated with allowing the wealthy and powerful to act with impunity. In the Leviathan passage after his discussion of equitable pardons, Hobbes explains why it is that favoring the wealthy and powerful (or what I have called oligarchic elements) with grants of pardon and allowing them to act with impunity might bring about the ruin of the commonwealth. Hobbes claims that the lack of equity that arises between subjects is a direct result of actions taken by the sovereign. The wealthy and powerful, Hobbes explains, should be valued in the commonwealth by that which they do for the lesser, and “violences, oppressions, and injuries they do are not to be extenuated, but aggravated by the greatness of their person.” 61 Here there is an interesting turn of tone. My reception of this discussion is that there is an “ought” implied in this argument, which is to say, a normative inflection. Hobbes seems to think pg.121 POLITICAL FORGIVENESS that the powerful and wealthy ought to be held to a higher standard and should not be allowed to operate with impunity lest they become subversive and seditious. It appears he is arguing that their social worth should be appraised by how they lift up the those of lesser means; and, rather than being forgiven for their misdeeds, they deserve more severe punishment. Finally, the crux of the argument lies within Hobbes’s use of punctuation. The generation of juridical inequity at the hands of sovereign power ultimately leads to a sense of impunity in the rich and powerful. In Hobbes’s words the affective movement is as follows: “[i]mpunity maketh insolence; insolence, hatred; and hatred, an endeavor to pull down all oppressing and contumelious greatness, though with the ruin of the commonwealth.”62 The former requires careful disaggregation, for within that one sentence two actors and the affects of those actors are found, and the deciphering of to which actor each affect belongs makes all the difference. The sentence is oblique. The actors in question are first, the meaner sort, as Hobbes refers to them in the above-quoted passage, which I take to be the mass of subjects, and second, the wealthy and powerful. It is the latter who Hobbes calls insolent, and according to Hobbes, I believe it is clear that their insolence is a result of being granted impunity and their crimes being extenuated. The crucial place to focus on in the quote is the comma between insolence and hatred. It is here where the subject of the sentence ceases to be the wealthy and powerful and Hobbes begins to address those of lesser means who are victimized by the rich and powerful. We cannot, and should not, consider the preceding in isolation or as an abstraction. We must consider it in light of Hobbes’s sixth law of nature. This begs the question; hypothetically, is it peace or fear that is the font of the pardons Hobbes has in mind? I believe the answer is provided for by Hobbes in his description of the oligarchic element’s behavior as both insolent and contumelious. This is to say, they are unrepentant, and therefore according to Hobbes any pg.122 POLITICAL FORGIVENESS accommodating action taken at their behest should be not forgiveness but fear. The inequity between subjects that the sovereign brings on inspires their hatred of the wealthy and powerful, and in turn that leads to, “an endeavor to pull down all oppressing and contumelious greatness…”63 Hobbes does not condemn the mass of subjects for their contempt and hatred of the powerful and wealthy. It is my argument therefore that Hobbes expresses a peculiar empathy towards a restive population, he is, as it were, almost forgiving of the hatred of the general mass of subjects directed towards the insolent. Hobbes, it appears on my reading, understands, even finds it justifiable that the ‘meaner sort’ come to express hatred of the rich and mighty. Pressed to give an express account of how the inequity is felt by the Hobbesian subject, how it is manifest, I would say that it is manifest in an uneven distribution of rights and protections, so that some have the privilege and protection of additional super-added rights while others do not. The oligarchic element is afforded, however unjustly and iniquitously, superadded rights to extenuation and pardon. However, this does not preclude the others from marshaling their powers against the uneven distribution. A return to Hobbes’s sixth law now, in light of this discussion of the need for equity in pardons gives new insight into that shared relationship between forgiveness and fear. Perhaps Hobbes never meant for the general public to grant peace or forgiveness to the wealthy and powerful for crimes committed against their person or the commonwealth. We know that Hobbes says explicitly that the granting of forgiveness to those that do not repent or ask for forgiveness is not peace but fear. Some expression of this formulation is found across the three texts considered here. When we arrive at Leviathan, Hobbes appears to be considering something like a situation whereby a rich or powerful citizen or citizens engage in offenses against persons of the ‘meaner sort’ or the commonwealth and are pardoned or their crimes are extenuated, when he discusses the equitable dispensation of pg.123 POLITICAL FORGIVENESS pardons. The question is: is all of this consonant with and supported by Hobbes’s theory of sovereign power and the liberty of his subjects? Certainly, it is, and I turn to Hobbes’s theorization of these two elements of his thought in the following part of the chapter. The sovereign power of forgiveness: In what follows I am primarily concerned with ascertaining if Hobbes understands the sovereign act of pardoning or granting immunity as a power or a right. As I have argued previously, from a juridical perspective and a semantic one, sovereign pardons are dispensations of right. Does Hobbes concur? I propose that one way to find out is to explore the theory of authorization in Hobbes. Yet, the theory of authorization alone does not answer the question fully as it only appears in Leviathan. Therefore, I also undertake an exploration of how he differentiates between power natural and power instrumental. I will address both of these. The significance of Hobbes’s theory of authorization is the key to understanding how the sovereign is vested with certain rights and power in the first place, and how it may come to pass that the same sovereign doles out preferential rights to some, an example of which we saw in the previous section of this chapter concerning the preferential treatment of oligarchic elements. Understanding how it is that sovereign authority becomes vested with certain rights is at the heart of Hobbes’s juridical theory. When one discusses the concept of authority in Hobbes it is necessary to begin at the font of that authority, which is the express authorial intent of those who make the authorization. As Sreedhar argues, “authorization is one of the main elements of the social contract, the contract that establishes the commonwealth.”64 The question that I think this begs is whether or not those authors are bound to obey that which they authorize, namely, pg.124 POLITICAL FORGIVENESS the sovereign. Sreedhar’s answer is in the negative, “that to authorize the sovereign without limitation is not to undertake an unlimited obligation to obey him.”65 For his part James Martel also draws upon this thematic element in his study Subverting the Leviathan. In that study, Martel problematizes the relationship between authors and their authorization to find spaces in Leviathan where a foothold for resistance against the sovereign might be located. I now turn to Hobbes’s articulation of this concept of authorization. It is within Chapter XVI of Leviathan that we find Hobbes discussing his understanding of authorship as the font of authority. Hobbes tells us in this very important chapter that artificial persons, the same kind of ‘person’ as his very own sovereign, “have their words and actions owned by those whom they represent. And then the person is the actor; and he that owneth his words and actions, is the AUTHOR: in which case the actor acteth by authority.”66 Of course the central question here is the relationship that exists between the author and the actor in terms of super orientation and subordination. Hobbes seems to answer this question when he writes, “when the actor maketh a covenant by authority, he bindeth thereby the author, no less than if he made it himself.”67 At first glance it appears that the author, which is to say, the would-be political subject is strictly subordinated to the authority they erect over themselves. However, I believe this is only the appearance of a zero-sum subordinate relationship. This is a result of how Hobbes’s argument unfolds as well as an artifact of the dominant reception of Hobbes’s social contract as a hermetic contract between authors and actors, to use his terms. Authorization is central to this contract. Two elements deserve our attention here. The first is the progression of Hobbes’s actor/author argument, because I believe if we scrutinize it we see that the originary? moments of the argument call into question the supposed subordinate role of authors in the process. The second element to focus on is related to, but outside the scope of Chapter XVI pg.125 POLITICAL FORGIVENESS itself. This element is the theoretical maneuver that is a stand-in for the act of the author putting pen to paper, the alienation of the authors’ right to all things, or as Hobbes calls it, their right of nature. This is important because a large swath of the literature that focuses on finding space in Hobbes’s thought for disobedience does so by attempting to radicalize and create greater latitude in the bundle of rights that subjects enjoy under sovereign authority. While I have no truck with this argument, my argument, and my project originate from not expanding the rights of subjects, but rather limiting the rights of sovereignty. Hobbes himself provides us with this opportunity to think about limiting the rights we alienate to the sovereign, as we, as authors, hold the key to what we create, what we authorize. The argument I make here is, to be sure, indebted to that which Tuck makes in his Sleeping Sovereign lectures. “The sovereign,” Tuck writes, “represents the citizens, in the sense that his judgment about dangers is (by and large) to count as their judgment.” Tuck’s lectures contained in The Sleeping Sovereign make it clear that his interpretation of how the sovereign ‘represents’ its citizens differs from how Hobbes understood representation. In these lectures, Tuck alludes to the possibility that the true Hobbesian sovereign is not the figure we are all familiar with on the front piece of Leviathan, but rather the individuals that make up the body of the great mortal god. Tuck pursues this interpretation as an effort to democratize Hobbes, to radically democratize Hobbes according to some. The truth is, the radicality of such a claim redounds to an attempt to claim Hobbes as a democrat rather than on the merits of how democratic Tuck’s argument is. However that may be, this would require evidence for the individuals that make up the body of the great mortal god to be a collective of sorts, which in Leviathan they most certainly are not. Without the sovereign, they are a disunited multitude, while with a sovereign they are atomized individuals. pg.126 POLITICAL FORGIVENESS It is no surprise that Tuck believes the essence of sovereignty is found in its function, which (as discussed earlier) he reads as acting as a kind of arbiter or judge. Why is this important, why bring it up at all? Because what is at issue here is related to whether or not individuals authorize the sovereign to dispossess them of their power of forgiveness. The difference of opinion accrues to the distinction which I discuss elsewhere in this chapter, regarding Hobbes’s development of the theory of authorization whereby subjects imbue the sovereign with authority. What Tuck seems to be doing with this reading of Hobbes is attempting to circumscribe the reach of sovereign power and the rights that Hobbes claims it possesses. He is rather explicit about this; he writes: “The only right of ours which the sovereign possesses, or which he exercises on our behalf, are the rights to consider what means are necessary for our survival, and it would therefore not be based on our rights that he would introduce any program which went beyond the considerations of our physical survival.” Might it be possible that those who authorize the power of sovereignty do so only to realize at a later time that they wish to subvert and oppose that which they authored--particularly in cases where the actions of their creation stray from authorial intent? Might it also be a possibility that the evidence for this concerning the Hobbesian sovereign is found in the texts Hobbes penned himself? That is precisely what I argue in what follows. I turn first to the nature of the authorial power Hobbes vests in his pre-political subjects, as I believe this element of the argument is simpler than it has been made out to be, relatively uncontroversial, and finally originary in nature. I propose to use Hobbes himself as well as a small thought experiment to make a larger point regarding the nature of authority conjured by authorship. Consider first, Hobbes, not Hobbes the political theorist but more so Hobbes the author of texts, which Hobbes authorizes to stand as authority over himself.68 Take a well-known pg.127 POLITICAL FORGIVENESS example, one which curiously is also the cornerstone of the authorization of sovereignty, the different authorial intent Hobbes presents in De Cive and Leviathan in the moment of the commonwealth’s inauguration. We know from reading Leviathan that before the commonwealth’s institution the array of individuals is a dis-united multitude with no social cohesion to speak of. This is one of the crucial elements that I believe prevents a democratic reading of Leviathan. We also know that De Cive presents a very different originary moment of the commonwealth’s institution. It is quite the opposite of Leviathan in the sense that there is first a dis-united multitude, but before the covenant, they coalesce into something of a socially coherent group. This of course has provided a great deal of fodder for radical democratic theorists to contemplate. The point is that Hobbes authored De Cive and in doing so that text came to hold authority over him. Yet, Hobbes himself demonstrates the feebleness of the nature of authority conjured by authorship. He does this by the act of writing Leviathan, in which he disavows his earlier thought and undermines the authority of De Cive. Now, with this example established my thought experiment will make all the more sense, as well as have the benefit of added weight. We must first put ourselves in the place of an author, or authorial group to conduct this thought experiment. Put quite simply, whether you authorize something or not does not mean that you are obliged to like it, avow it, or even obey it completely. You might expressly engage in disobedience against that which you participated in creating, or expressly attempt to undermine that which you have created and suffer the consequences. This certainly appears to be the case with Hobbes and his texts as discussed above. But you might also consider this: what if rather than attempting to fight that which you authorized, you could return to the moment of authorization and limit the expanse of the authority created? And, what if you did not even need to engage the counterfactual, what if the pg.128 POLITICAL FORGIVENESS necessary conditions of limiting the authority of the sovereign were already at your fingertips? That is what I propose a politics of forgiveness represents. But first, let us see why it is that expanding the rights of authors is not as relevant as those authors using their power of authorization to limit or oppose that which they pen. What makes a right alienable is directly related to the utility gained from laying that right aside. Rights, according to Hobbes are laid aside or given up “in consideration of some right reciprocally transferred to himself; or for some other good, he hopeth for thereby. For it is a voluntary act: and of voluntary acts of every man, the object is some good to himself. And therefore, there be some rights, which no man can be understood by any words, or other signs to have abandoned, or transferred.”69 As it was argued above, there is no good that an individual can hope to achieve by remitting their right to pardon or forgive offenses. No person could be expected to voluntarily waive such a power. Hobbes himself argues that one can never be expected to engage in any activity that might open the actor up to an untimely demise. As I argued earlier, the grant of a pardon out of fear or prudence of those who do not repent, may be an act of self-preservation. Therefore, it can also be argued that there is a way to conceptualize a forgiveness in Hobbes that cannot be construed as anything that resembles a right that can be remitted or given up in the covenant instituting sovereignty. But let us be careful here, for that does not preclude the alienation of something that looks like and acts like forgiveness. Remember, when Hobbes discussed pardons in the sixth law of nature, I argued that what he meant by pardon was a notion closer to forgiveness or mercy between individuals, not the concept of pardon we associate with sovereignty. The trick is differentiating between forgiveness that resembles something more akin to a power that is constitutively inherent in an individual or group, and pardon or immunities dispensed by sovereignty. I admit that this is a somewhat pg.129 POLITICAL FORGIVENESS unorthodox position to maintain given that the majority of the literature seeking to introduce elements of resistance into Hobbes focuses on a rights discourse as opposed to a power discourse. I turn to this literature now in part to illustrate the merit of finding space in the Hobbesian corpus for resistance. However, in the end, what this literature shows, for my argument, is the insufficiency of saddling one’s hopes of resisting the great Leviathan to a radicalized and expanded notion of the rights or liberties of subjects. To all of this it may be objected that in the end, because the author in question is Hobbes and it is the Hobbesian sovereign that is in question, everything redounds to an existential threat. Even for all of the effort marshaled at circumscribing the Hobbesian sovereign, it is undeniable that those that authorize it do so to guarantee it a right to preserve their bodies and lives, a right with great latitude. However, this supposed iron-clad right of sovereignty may not be as ironclad as one thinks. It is against this backdrop and on this terrain that an attempt has been made by some to subvert the Hobbesian sovereign with its tools, namely rights. This radicalization tends to occur on two fronts at times as separate projects, but at other times as part of a more holistic approach. On the one hand, there is the attempt to read into the Hobbesian corpus a radical democratic project. On the other hand is the attempt to read the Hobbesian texts in such a way that the political subject of the Hobbesian commonwealth emerges from the state of nature with more of their natural rights and powers intact. It is to the latter I now turn my attention. The question is whether this maneuver is sufficient to achieve the intended purpose of subverting sovereignty. I believe the answer to this question is, no. pg.130 POLITICAL FORGIVENESS Radicalization through rights: The dominant strain of literature that seeks to radicalize Hobbes, or, at the very least find space in his literature for disobedience, seeks to do so by finding within the pages of Hobbes’s corpus a greater latitude of rights for the Hobbesian subject. Not necessarily against this strain of literature, but alongside it, or as a complement to it, I will attempt to show why this approach might be insufficient, and that in its place, or alongside it, an additional approach might be fruitful. The approach I will come to suggest is to limit the rights of the Hobbesian sovereign, or to contest those rights. One such attempt is found with Eleanor Curran. As the title of her book suggests, she seeks to reclaim the rights of the Hobbesian subject. Her turn is to the now familiar legal vernacular of rights and liberties. The crux of Curran’s argument is that commentators on Hobbes have to narrowly circumscribe the right to self-preservation. This is important because as I read Hobbes this is the sole element of our natural right that we retain and do not alienate to the sovereign in the transition from the state of nature to the commonwealth. Curran concurs with this, but her move is to enlarge the scope of the right to self-preservation. It is against the reading of Hobbes that the right to self-preservation is “consisting merely in the right to self-defense, the right to physically defend ourselves” that she proceeds.70 She renders this right far larger in scope by re-branding it as, “full preservation.”71 This rendering she argues is textually supported. Curran claims there is justification for this in Leviathan where Hobbes writes that we have the right to “the security of a man’s person, in his life, and in the means of so preserving life, as not to be wary of it.”72 Curran makes the argument that this passage establishes a right “to what is necessary not just to life but to live a good life,” by which she understands a certain quality of pg.131 POLITICAL FORGIVENESS life. This position is also supported by Larry May who argues that the Hobbesian subjects’ obedience to the law is not predicated on securing just any type of peace and security but rather an absence of war coupled with “commodious living involving various liberties.” 73 Like Curran, May’s project seeks to imbue the Hobbesian subject with a greater latitude of action under conditions of sovereign authority. It should be of little surprise that May finds significant room for latitude in the same place that Curran and others do, namely in the right of self-defense, or as he puts it: disobeying the law is permissible when “there is a threat to the livelihood or liberty of a citizen by a law of the sovereign.”74 I am sympathetic to Curran and May’s arguments; the question is whether or not Curran goes too far in the other direction in opposition to those she sets out to refute. I conclude that indeed, Curran does exaggerate the latitude and inclusivity of the right to self-preservation. To be sure the right to self-preservation in Hobbes is more expansive than, as Curran calls it, “bare preservation” but not as extensive as her claim that we have a right to a certain quality of life. 75 I believe that the right to self-preservation is indeed too narrowly defined in the orthodox commentary on Hobbes, specifically, the belief that Hobbes understood this right to be limited to self-defense and physical defense from violent bodily harm. However, it is my argument that orthodox commentary imagines such responses as definitively martial in nature, when in fact there are myriad ways that an individual can provide for their self-defense and physical security without resorting to martial activity. Furthermore, sole reliance on the expansion of the right to self-preservation is limited in and of itself; it is only in Leviathan that we find Hobbes speaking of this the capacity. In Hobbes’s earlier works The Elements and De Cive, both of which were more firmly in the royalist and absolutist camp, no such latitude exists for the subject. The move towards ‘reclaiming the rights of the Hobbesian subject,’ is well-intentioned, pg.132 POLITICAL FORGIVENESS but the intentions are directed towards the wrong end. If one wants to empower the Hobbesian subject then one must focus on power, specifically the concrete powers that the Hobbesian subject retains and can exercise in the commonwealth. In a move that seeks to push Hobbes (particularly his Leviathan) one step further than the mere recovery or discovery of the Hobbesian subject’s rights, Susanne Sreedhar sets out to demonstrate the Hobbesian subject not only has rights, but rights to resistance. The beginning of her inquiry finds her on ground which is familiar, and germane to Curran’s work, that of the right to self-defense. It seems that for Sreedhar the road to a more expansive litany of ‘rights’ for the Hobbesian subject also travels through the question of self-defense. Sreedhar argues, as does Curran, and as do I, that the ability to argue for an enlarged scope of rights that derives from the right of self-defense is that, “Hobbes never gives a precise definition of the right of selfdefense.”76 As a result of this, and her interpretation of the appropriate Hobbesian passages, Sreedhar comes to render the right of self-defense as “the right to save one’s own life.” 77 The effect of this rendering is immediately clear, it transforms that which was for Hobbes an essentially negative right (refraining from action in most circumstances save the exception defined as immediate bodily harm) into a positive one and makes room for imagining a host of scenarios in which one must act decisively on one’s own behalf. Sreedhar argues that the now enlarged right of self-defense is as she puts it a “retained right,” whereas I simply refer to it as a potential that is not alienated in the original contract. My main concern in engaging these authors has not been to refute the enterprise of deriving a right of resistance from a starting place of the right to self-defense or expanding the right of self-defense. Rather it is to illustrate that it is indeed commonplace to acknowledge latitude in Hobbes to locate, as Sreedhar calls it, “retained rights,” or as I prefer to refer to them, pg.133 POLITICAL FORGIVENESS un-alienated potentials. The benefit and my preference for the latter is that by marshaling the category of potentials, it opens the possibility that we might find powers of subjects that traverse the boundary between the state of nature and commonwealth, a boundary that now appears much more porous than before. One final note on Sreedhar and the language that she uses to discuss “retained rights.” She claims that Hobbes himself refers to these rights as “blameless liberties.” 78 She further argues that, “a Hobbesian right gives one freedom from blame; it bestows a kind of moral permission on an action.”79 On Sreedhar’s account it appears that there is an element of forgiveness baked into the Hobbesian notion of rights. It would therefore be permissible for an individual or group to exercise their right to preservation under the sixth law of nature, be it an expression of authentic forgiveness in the presence of a repentant actor or an expression of prudence. An anti-juridical alternative: My claim thus far has been that rather than solely attempting to enlarge the scope of the rights of the Hobbesian subject, an alternative approach that is sympathetic to enlarging the subject’s rights while also unearthing potential powers in their possession is possibly a more fruitful endeavor. It may be difficult to curtail the power that the great Leviathan does have, but this should not preclude political subjects from preventing or attempting to subvert the Leviathan from issuing rights that do not belong to it. When one thinks about the expansion of the rights of the Hobbesian subject, it seems there is a risk of focusing on the rights that they do have and expanding them, at the expense of attending to the rights that they do not have or should not have that the sovereign differentially enables. Essentially, one pitfall of the attempt described above is pg.134 POLITICAL FORGIVENESS that the Hobbesian subject is treated as a homogeneous category. Nothing could be further from the truth. Hobbes’s subjects are a heterogeneous population of individuals, some wealthy, some poor, some powerful, some weak. This was the case that I attempted to draw attention to above; when the sovereign gives super-added rights to the powerful and wealthy in the form of immunity from law, rights over and above those of the average political subject, the result (as Hobbes argued himself) is inequity. The problem in question is not of pardoning the wealthy when they deserve pardon, for this is within the rights of the sovereign, it is a question of pardoning them when the wealthy act with insolence and contempt, when the sovereign begins to pardon or allow for the non-application of law out of fear, this is beyond the scope of the original right. This is why it is necessary to curtail the ability of the sovereign from granting these rights because it cannot be reconciled with the original authorial intent behind the creation of the commonwealth. I conclude here by considering one way we can think about limiting sovereign power’s rights while finding latent potentials for political subjects. To that end, I interrogate how Hobbes deployed the concept of power in his texts. I will show that rights for Hobbes are a species of power, and in turn try to illustrate the insufficiency of attempting to either radicalize Hobbes through rights or situate forgiveness, as Hobbes would put it, as a liberty of a subject. When Hobbes uses the word power he can often mean two different things. Sometimes Hobbes renders power as potentia while at other times he uses potestas. Both mean power, but two different species of power. This fact has led some, like Leo Strauss, to make the claim of ambiguity in Hobbes’s treatment of power and right. Strauss claims that power, “stands for potentia, on the one hand, and potestas (or jus or dominium), on the other. It means both “physical” power and “legal” power.”80 While I submit that Hobbes indeed uses two senses of power, this does not pg.135 POLITICAL FORGIVENESS mean that there is ambiguity about when Hobbes means “physical” power or “legal” power. Furthermore, I think it is far from accurate to render potentia as mere physical power. In the following, I will specify the importance of this differentiation between potentia and potestas and make clear that there is in Hobbes a sense of power that is detached from the juridical. I argue that there is no ambiguity to be found in this case because Hobbes himself makes it clear that the species of power rendered as potestas is used when Hobbes wishes to conjure the notion of authority while the other, potentia, is used when Hobbes means a concrete power. When this difference is articulated with Hobbes’s notion of equity in the practice of pardons, the ground is cleared for political disobedience that Hobbes might not expressly reject. One clue to determining when Hobbes is using which sense of power is the difference between power natural, and power instrumental.81 Powers natural include “the faculties of the body, or mind: as extraordinary strength, form, prudence, arts, eloquence, liberality, nobility.” 82 These seem to refer to the kind of concrete powers representative of potentia. Instrumental powers “are those powers, which acquired by these [here Hobbes refers to natural powers], or by fortune, are means and instruments to acquire more: as riches, reputation, friends…” 83 One can see how this could refer to potestas, given the super-added quality inherent in Hobbes’s description. I have engaged both Hobbes’s theory of authorization and his dualistic understanding of power towards the same end. My aim is to show that power instrumental or power that is authorized is the power of authority, which is to say, as Hobbes does a species of right, potestas. Those faculties which fall into what Hobbes calls power natural are an adjacent un-juridical form of power, potentia. Conceived of in this way, powers instrumental are powers alienated from the multitude authorizing sovereign right. Powers natural are un-alienated faculties, un-juridical, which is to say, not rights at all. That is why in the hands of the pg.136 POLITICAL FORGIVENESS sovereign, this power should be rendered as potestas which is to say juridical. On the surface, it is difficult to determine the category of power that forgiveness would fall into because the act of forgiving fits nicely into both manifestations of power. As I argued earlier, there are two different understandings of forgiveness in Hobbes’s text. The first is the forgiveness encountered in Hobbes’s sixth law of nature and the second is the form of pardon appropriate to sovereign power. On the surface, it would seem simple enough to argue that forgiveness, either personal or political, falls within what Hobbes calls natural power. Surely, forgiveness is a simple expression of a faculty of the mind, but this misses the textual context. One can conceive of forgiveness as a power natural accruing from an individual’s natural faculty to appraise a wrong committed and arrive at a decision about whether or not one would like to forgive a transgressor, the sixth law of nature. But the context in which Hobbes discusses the appropriateness of forgiving or pardoning an offense is qualitatively different from a mere utilization of an individual’s natural power. Once articulated by the related differentiation between potestas and potentia it becomes quite clear that Hobbes offers manifold ways of understanding how forgiveness might be conceived of in the political space. One simply does not need to attribute the power of forgiveness exclusively to one or the other category. What Hobbes shows us that other theorists have not been able to with their attenuated notions of political forgiveness as pardon, is that political forgiveness manifests itself in both sovereign and destituent registers. This can be explained by the fact that potestas does not necessarily envelop within it all legitimate claims to the expression of the subjects' potentia. As I have said, there is firm ground to argue that subjects of sovereign politics need to retain their power of forgiveness as it has the potential to insulate them from harm in the future, the evidence of which is based on Hobbes’s pg.137 POLITICAL FORGIVENESS sixth law of nature. We have seen how Hobbes is concerned with scenarios when forgiveness, granted or withheld, has the power to result in peace or eliminate fear and how refusing to act in conformity with this law of nature is an affirmation of a defiant stance. Furthermore, Hobbes is clear that a grant of forgiveness in such a situation, to achieve peace or fend off fear, does not amount to a charitable act; thus, lending an air of political sophistication to those groups in the commonwealth that might grasp the strategic import of such a maneuver. Further, Hobbes himself did not intend for political subjects to consistently apply the sixth law of nature, implying that between the act of forgiving as the desire for peace or an expression of fear there is a third possibility, the absence of action representing indignation. I propose this third possibility develops in body politics when the masses are reviled by inequitable grants of forgiveness and impunity for the powerful and rich. It may seem tautological, but it is specifically the insolence that is bred by being favored with forgiveness that becomes the genesis of indignation. Let us return once more to those insolent wealthy and powerful recipients of sovereign pardons and selective applications of law with our discussion of authorial intent in mind. In sum, it is Hobbes’s position that when the wealthy and powerful are treated to pardons and favored by the non-application of law the effect is nothing short of authority undermining itself. He says as much by indicating the development of insolence amongst the wealthy and powerful which in and of itself undermines the authorized sovereign, but this is only one of the ways that sovereignty undercuts itself by favoring the wealthy and powerful. For the heterogeneous subject authors now recognize the compromised nature of that which they penned, experiencing the authority over them to be qualitatively different from their original intention. In recognition of this, the authors who are wealthy and powerful seek to exploit what can only be described as the sovereign’s fear of them for more iniquitous pardons and immunity. However, pg.138 POLITICAL FORGIVENESS the wealthy and powerful are not the sole actors to have authorized the mortal god. The remainder of the body politic neither fears the wealthy and powerful, nor wants peace with them; they wish not to reconcile, but there is apparently no hope of legal recourse. The expression of their frustration takes the form of disobedience directed at the source of their discontent, and iniquitously forgiving sovereign. Now the discontented state explicitly “you don’t have the authority to do this, we did not intend for you to do this, this is not what we penned, you wish we would reconcile this difference, we do not have have the forgiveness you desire.” It is the potestas of forgiveness that represents this threat to the commonwealth. It is the potestas that spawns destitution and diffidence and a restive population. For Hobbes, the expression of political forgiveness holds within it the seeds of disobedience, disobedience that I have argued he does not explicitly condemn when directed at insolent oligarchic actors. This means that thinking of forgiveness as an instrumental political power does not limit its utilization to sovereign prerogative power, nor does it preclude its utilization as an extrajudicial tool. So while the sovereign’s use of the power (potestas) of forgiveness is a display of sovereign power, the subject's non-use of the power (potentia) of forgiveness renders more leniency in the face of the law and an important tool of disobedience and dissent against oligarchic actors. Hobbes illustrates how rather than ameliorating political conflict, political forgiveness can exacerbate it. Not all thinkers have the preoccupation with political forgiveness that Hobbes does. Some find in political forgiveness a tool that has palliative capacities without negative side effects. One such thinker is John Locke. It has been argued that Locke is merely a Hobbesian whose political theory is expressed in a more fully embraced liberalism and as a result, there are many continuities between the two thinkers. I engage Locke in the next chapter and find that there are indeed continuities between the two pg.139 POLITICAL FORGIVENESS thinkers on the ground of political forgiveness, but in addition to the continuity, I find important divergences. Locke’s thought provides the opportunity to further press certain questions investigated through Hobbes’s thought, and importantly to follow the trajectory of political forgiveness in novel directions. Specifically, Locke’s thought shifts the site of the palliative effects of political forgiveness in a significant way. The trajectory of political forgiveness in Hobbes remains close to that which I argued it was in Bodin. In Hobbes’s thought, the object of the palliative effect of political forgiveness begins to take on shades of ambiguity. I would like to suggest that the ambiguity that Hobbes expresses is a symptom of his polemical relationship with pardon. We saw how Hobbes began to call into question the effect of the dispensation of political forgiveness on political subjects, particularly its role in propagating resent between political subjects, inviting the kind of restive behavior Hobbes sought to banish to the state of nature. This is why we must remember that Hobbes, like Bodin, is in a sense an absolutist. Hobbes’s discourse on the appropriate use of pardon calls to mind Machiavelli’s council to the would-be prince that they must know how to use and not use mercy well. Essentially, while the effect of political forgiveness might be felt by political subjects, this is ancillary to the intent of its palliative power, which as Bodin wrote, remains its capacity to satiate and make sovereignty whole. Such as it is, even for Hobbes the absolutist, political forgiveness and its role betray the inherent fragility of sovereignty. Locke turns this model on its head. He takes what ambiguity there was in Hobbes and eradicates it. In the chapter that follows, I detail how in Locke’s thought the palliative effect of political forgiveness comes to be figured as directed outward towards the political subject. I accomplish this through a detailed look at how Locke thought about the opposite of forgiveness, punishment, as well as two corollary concepts associated with pg.140 POLITICAL FORGIVENESS forgiveness, reparation and remittance. pg.141 POLITICAL FORGIVENESS Chapter III. Locke – (re)discovering remittance and reparation A change in trajectory: In the late 1600’s in England, a great political struggle played out between two factions. On one side were the Whigs who asserted the supremacy of the legislature over the King. On the other side were the Tories who took the opposite position, that it was in fact the King who held supreme political authority. In essence it was not only a struggle about supreme political authority, but ultimately the reach of the King’s prerogative power. For the moment, we may bracket the context of the crisis, and simply note that in point of fact the orbit of the crisis revolved around prerogative, of which pardon in Locke’s thought holds a place no less than in Hobbes’s. Yet Locke confronts a problem that Hobbes did not have to, which is the fact that between a supreme legislature and a King with prerogative we find a conflict over the true source of sovereign authority. It was this political struggle that Locke was responding to as he was writing the Two Treatises of Government. 1 As such one can assuredly say that the meaning, and perhaps shortcomings, of the Second Treatise can be ascertained in light of Locke’s struggle to circumscribe prerogative power. As I have been arguing, part and parcel of prerogative power and a crucial marker of sovereignty is political forgiveness, most frequently understood in larger circles as the right of pardon. This is how Locke understood political forgiveness as well. But issues such as pardon, amnesty, political forgiveness were not the Whigs’, nor Locke’s primary source of anxiety, or perhaps even a source of anxiety at all, pertaining to prerogative power. The historically accurate explanation for the source of their anxiety was relegated to issues revolving pg.142 POLITICAL FORGIVENESS around taxation, representation, and the calling into session of parliament. I will argue, while the historical political setting certainly shaped Locke’s thought, too contextualized a focus causes one to miss the forest for the trees that can only be apprehended through a close reading of his text. When one engages in a close reading of Locke, what is most striking is his lack of expression of anxiety, or any preoccupation, with assigning to the executive the prerogative of pardon. In this way I ask, is it possible that Locke’s lack of anxiety betrays the true expression of where sovereignty ultimately lay in his thought? Locke’s account of pardon is not entirely unique in the canon of western political thought because he specifically vests the executive power with prerogative, by way of making that power the site of the ultimate form of political forgiveness. What is unique for Locke is that this explicit combination of prerogative and mercy in the figure of the executive intimates the self-same question that Locke is charged with answering: who is sovereign? Is it the executive with the power of prerogative, or a different branch of government all together? That it begs the question in a different vernacular than Locke’s shall not matter. There are of course accounts to be found in the literature of the unitary executive sovereign holding the power of political forgiveness and prerogative; we have already encountered two examples of this in Bodin and Hobbes. Other thinkers, like Beccaria for instance, who is the subject of the next chapter, make specific theoretical and textual injunctions against collapsing the attribute of prerogative and forgiveness or mercy into one individual, or political office. What we find in those thinkers is a move towards attributing mercy, and acts of political forgiveness to an abstract, or mythical “lawgiver” whose place in the administration of political life is both uncertain and ethereal. Yet, Locke does not. This is what makes Locke’s account interesting. He does not, as others do, attempt to pg.143 POLITICAL FORGIVENESS exclude forgiveness from the possibility of being politicized through its utilization in the hands of the executive, and in fact, he is rather sanguine about it. (Again, the reader should be cautioned against appraising Locke’s own sanguine attitude for a broader theoretical complacency.) Of further interest is the fact that in Locke’s thought, if we are to follow the more historically inclined scholars of Locke, it is not the executive but rather the legislature that holds supreme power. I believe that Locke’s political thought might draw our attention to the nascent emergence of the tension inherent in composite forms of sovereignty. Yet Locke’s text betrays this tension. He not only makes the move to collapse prerogative and forgiveness into the same political actor, he in fact champions the utilization of the prerogative of pardon by that figure explicitly as a public good, while worrying, in adjacent text, about other manifestations of prerogative power. In doing so Locke in effect places his thumb on the scale while giving a completely affirmative account of the sovereign utilization of the prerogative right of pardon. Whereas we saw how Bodin and Hobbes both expressed anxiety and fear about pardon, Locke chooses to either leave such a critique unacknowledged or ignore the critique of pardon as a potential social and political ill, and instead to cast pardon in its most aspirational light. However, that is not to say that Locke might not have been aware of the potential for prerogative to be abused in the form of pardon, or in other guises. A question to be answered is whether this is an inconsistency in Locke’s political theory, or a purposeful injunction? To be sure it is a strong claim to argue that Locke ignores, or chooses to leave unacknowledged, a critique or critical appraisal of pardon. However, I find evidence for just such a claim, as at the time Locke wrote the Second Treatise these critiques existed. As I have already argued, there are multiple places within Leviathan where Hobbes critiques the dispensation of political forgiveness. Although the relationship of Locke’s Second Treatise and Leviathan is contested, there is ample pg.144 POLITICAL FORGIVENESS evidence that Locke had at least read Leviathan.2 Still other commentary ties the two closer in orbit to one another and claims that Locke’s work was derivative of Leviathan.3 Perhaps then, Locke would have been aware of such critiques. Yet, he does not take them up. Having established this as the ground which Locke occupies, I propose to interrogate Locke’s own description of the relationship between prerogative power and the spectrum of forgiveness. By spectrum of forgiveness, I mean all of those things that occupy the possible action a sovereign can take in the face of a political wrong; from forgiveness to punishment. I claim that the explicit critique that Locke develops around prerogative power, both in its pre-political personalized executive power and political form of sovereign prerogative, stands in direct contrast to his own aspirational definition of pardon and the exceptional mechanisms enlisted in pardon’s favor. One of the goals of this chapter will be to discern the reason for this strange bifurcated relationship that Locke has to prerogative power. To accomplish this interrogation, I will explore Locke’s explicit linkage of pardon to sovereign prerogative power, simultaneously questioning the inconsistent critique of this relationship. I intend to accomplish this interrogation of the function of political forgiveness in Locke’s political thought in large part by carefully exploring the terrain that pardon and punishment occupy. Doing so will mean drawing in a constellation of other concepts that are coconstitutive of pardon and punishment in Locke’s project. These include how Locke conceives of the difference between authority and power, and the related question of what counts as a right, and what counts as a power when acted out by authority? The explicit question is whether when the action in question is a form of political forgiveness, is political authority acting by right or power? And, as a corollary question, in what way did political authority come by that right, or power? What picture of political forgiveness would emerge, were we to conduct a reading of pg.145 POLITICAL FORGIVENESS pardon and punishment on such a terrain in Locke’s Second Treatise? What kind of “work” do pardon and punishment achieve for the sovereign authority that doles them out? To answer these questions requires carrying out this investigation on the terrain that pardon occupies in Locke’s work, which is also the terrain of sovereignty. To miss the place that pardon occupies in Locke’s work is to simultaneously miss the importance of Locke’s treatment of pardon and punishment. More specifically, I will argue that the mechanics of the alienation of punishment from the social body to the sovereign authority is an important element in understanding not only that function, punishment’s alienation, but also the false impression that Locke presents that the power to forgive is similarly dispossessed from that social body. These two operations, alienation and (false) dispossession, are significant, but special focus should be paid to the latter. For the (false) dispossession signals the desire of sovereign authority, once constituted, to arrogate to itself, over and above what has already been alienated up to it, something that does not belong to it by right…political forgiveness.4 This is important given in Locke’s thought he has expressly condemned the utilization of power beyond right. I propose to briefly defend my inclusion of Locke’s thought on punishment in this chapter in what follows. I claim there is a need to parse both pardon and punishment in Locke’s thought. By opening up the aperture of this investigation and allowing concepts that are related to or are the other of pardon, the intention is to illuminate contradictions in Locke’s own thought regarding how and what pre-political subjects alienate to sovereignty. This is the benefit of what I call opening up the aperture, as opposed to conducting a narrow reading that focuses solely on pardon. With the wider aperture, we can appreciate the gap that exists between political forgiveness and punishment. This gap between the two is the place where the most fruitful discoveries about political forgiveness might be made. The intent of reading Locke’s theory in pg.146 POLITICAL FORGIVENESS such a fashion is to intuit elements of forgiveness where it is not explicitly mentioned, and apprehend the economies of power, and certain alienations of power, that Locke’s theorization assumes a priori.5 In the blanks between punishment and pardon, I hope to find evidence to support my assertion that there is a form of political power, a politics of forgiveness if you will, that is related to forgiveness in politics that escapes or represents a resistance to inclusion in sovereign politics.6 Before turning to my own reconstruction of Locke’s arguments in the Second Treatise that relate to my stated intentions, I turn first to the wider reception and interpretation of Locke’s thought. Specifically, I parse the scholarship on Locke that is germane to the task ahead to situate my own argument amongst those who have preceded me. My own argument is that while Locke’s historical context surely influenced his thought, nonetheless his text regards the perennial political problem that prerogative power presents. I pay particular attention to the way that the scholarship has interpreted what is assumed to be Locke’s intention in writing the Second Treatise. While there are distinct differences in the reception of the constellation of ideas that populate the text, there is considerable agreement in certain circles that Locke’s work was political in nature and intent, and that the intent was specifically to provide a justification for political resistance through a work of political theory. This in turn, it is argued, given the historical context, required Locke to argue that the executive, the holder of prerogative in his thought, was beholden to the legislative apparatus of government. This is significant as for my claim, because if Locke has resistance in mind when writing and thinking about his task then perhaps there are other areas of the text where we might infer the topic of resistance. In addition to this, I pay particular attention to the constellation of concepts that I have set out above as crucial to understanding the function of political forgiveness in Locke and wider political theory. pg.147 POLITICAL FORGIVENESS This means considering ways in which others have understood how Locke deployed power versus right, punishment and pardon, and the alienation of these powers from the social body to political authority. Of late the interpretive tradition has tended toward finding that John Locke’s Second Treatise is far from merely a defense of the rights of property owners, rather, it is a distinct defense of the rights of peoples to resist arbitrary political power. Crucial to my argument is an understanding that in Locke’s work a right of resistance and an executive with prerogative to act outside the law are not mutually exclusive concepts. It is not necessary, although the scholarship presents it this way, to interpret Locke as saying this is an either / or question. Rather, one can interpret Locke as saying there is both a right of resistance and sovereign prerogative at play. The task then would seem to be situating the function of political forgiveness within that purpose, or interpretation. Man, context, text: The scholarship on John Locke would have you believe that to conduct a study of his work requires drawing a line in the sand and taking a firm stance on who John Locke was, in order to discern the meaning of his work. This position is perhaps best captured by John Dunn who, in defending his own historical approach to Locke, bluntly rebutted Marxian, Straussian, or any other interpretation of Locke. Part of the difficulty in approaching Locke is complicated by the reality that as Ashcraft argues, the Two Treatises is a political action, and therefore must at least in part be situated in Locke’s historical context. To be sure it would be a fool’s errand to argue that Locke’s work was not political in nature. This fact did not escape Strauss, who comments that in the Two Treatises, “it is less Locke the philosopher than Locke the Englishman pg.148 POLITICAL FORGIVENESS who addresses not philosophers, but Englishmen.” 7 While Strauss may be correct, situating Locke as an Englishman is no easy task. The political context found Locke amidst a variety of positions, between royalists seeking to maintain the independence of the king from the legislative and Whigs who wished to assert the supremacy of the legislative over the king. It is argued that Locke did not fit neatly into either of these camps., Ashcraft has argued in his study of the Two Treatises that Locke was in fact more radical than the Whigs, so much so that conventional Whigs distanced themselves from his positions.8 Studies of Locke’s life and times bear out this radicality in two distinct but related ways. In the first place, it is argued that the specific intent of the text was to provide the rationale not only for resistance to tyrannical government, but for revolution as well.9 Perhaps the more radical position, and the one that caused conventional Whig politicians to break with Locke, was that the people were given this right of revolution (as Franklin argues forcefully) by their possession of ultimate constituent authority. 10 Franklin argues that locating the ultimate constituent authority with the people was not only radical for Locke, but also represented a radical shift in the accepted theory of sovereignty of the time. Thus, we find that even amongst those who seek to situate Locke in his context, differing interpretations abound. My stance is that the drawing of lines in the sand and the adoption of a particular John Locke, be it the Locke of Strauss, or Ashcraft, of Franklin, would be detrimental to my intent. That being said, the scholarship on Locke that treats him as theorist of his time and place in history does illuminate an important fact, and it is not my intent to completely eschew their positions. My position is that while his historical political setting shaped his thought in crucial areas, specifically the prerogative of the King, his temporal situation also created significant blind spots that were not germane to his preoccupations. So, while my own argument is perhaps more akin to a textually based Straussian interpretation, I do not completely refute pg.149 POLITICAL FORGIVENESS those scholars who have taken a decidedly more historically contextual approach to Locke. And in fact, appropriating elements of Ashcraft and Franklin’s reading of Locke will ultimately support my own argument. Unsurprisingly I will argue that one of these blind spots is the differential potential functions of political forgiveness. Resistance and prerogative: To begin with, it is appropriate to confront the dominant liberal tradition’s presentation of Locke as something of a revolutionary. This tradition understands Locke as a thinker who championed a people’s right of resistance, and in certain circumstances revolution. To be sure, these ideas are present in Locke. However, my reception of Locke’s text leads me to believe these facets of a people’s power were far more limited in his thought than the dominant liberal tradition would have one think. Furthermore, as I will argue below, such an understanding of Locke occludes the fact that Locke himself does not attempt to eliminate what is probably the most fertile source of the desire to resist political authority in the first place, prerogative power. In tackling these questions, it is my intent to illustrate that one might resolve the question of whether a people have a right of resistance and revolution, but this does not resolve the problem of prerogative; nor does it resolve the dynamic, perhaps even dialectic relationship between resistance and prerogative. For ‘the people’ to possess a right of resistance, or a right to revolution, Locke needed to present a justification for the exercise of that right. In short Locke needed to configure ‘the people’ in such a way that they had the authority to resist their government. At the time Locke wrote, constituent authority was understood to be held by the legislative. Franklin argues that pg.150 POLITICAL FORGIVENESS Locke reconfigures this tradition in his work in a variety of places, notably vesting all constituent authority in the peoples’ hands in the absence of government or when the government is dissolved. This latter fact is what makes Locke’s theorization of the state of nature so important. For as Ashcraft has pointed out, the state of nature for Locke was not a mere heuristic device, nor was it meant to be empirical, rather it was a condition that can and has existed in our political past and future.11 Strauss acknowledged this position as well.12 Ashcraft envisions these real political conditions to be situations in which the government is dissolved, situations between different sovereigns, and finally, as Locke himself also thought, the situation in which the American colonists found themselves. These latter sorts of conditions appear to be those that Strauss prefers to emphasize. Strauss emphasizes these conditions, “that men actually lived, and may live without being subject to a common superior on earth,” but that they may provide for a solution to this state of affairs.13 However, Strauss adds an important caveat which he argues Locke was clear about, that in order to find an amenable solution to the travails of the state of nature one would already have to have lived in a state of civil society. Furthermore, according to Strauss, Locke finds the solution to the problems of the state of nature in the institution of a limited government, in contrast to Hobbes’s absolute form of sovereignty. This is no small addendum, as it leads Strauss to argue that, “by teaching that wherever “the people” or “the community,” i.e., the majority, have placed the supreme power, they still retain “a supreme power to remove or alter” the established government, i.e., they still retain a right of revolution.” 14 If we consider this well, it does appear that there is agreement across scholars and methods for something that resembles what Franklin calls true prerogative. This raises a very serious question, for as Strauss acknowledges, Locke believes that “the best institutional safeguards for the rights of individuals pg.151 POLITICAL FORGIVENESS are supplied by a constitution that, in practically all domestic matters, strictly subordinates the executive power (which must be strong) to law, and ultimately to a well-defined legislative assembly.”15 This analysis raises two serious questions; the first of which is whether Strauss is being honest in his analysis as he is surely aware that the executive power is not in fact subordinated to the law. The second question is potentially the more interesting one considering Strauss’ emphasis on the community’s supreme power, which is whether the executive is supreme, or the community? But perhaps we do not need the answer to this question. Perhaps the executive can hold supreme power, and both the executive and community can enjoy the exercise of prerogative. This position would be consonant with Locke’s assertion in the Second Treatise that the executive holds prerogative. For his part, Dunn also tacitly acknowledges the possibility of the real political manifestation of a situation like the state of nature. He does so, importantly, in his discussion of the prerogative power. He agrees that it is conceivable that there are times when a society may find itself in “jural anarchy.”16 This is to say, there may be a condition of lawlessness, otherwise known as a state of nature situation. However, Dunn is quick to point out that jural anarchy is not coterminous with social anarchy. As important and radical as all of this was, Locke’s theorization of the right of revolution, the ultimate location of constituent authority in the hands of the people, admitting to, as Franklin argues, a shift in the traditional understanding of sovereignty, all were heavily indebted to George Lawson.17 Nevertheless, the possibility of adopting Lawson’s model of sovereignty is provided in part by Locke’s “account of the origin and nature of government,” and his “idea of the community as a legal entity with powers of its own,” an idea that is a continual theme throughout the Two Treatises.18 Even a slightly more orthodox account of Locke’s intention in writing the Two Treatises pg.152 POLITICAL FORGIVENESS finds itself considering the extent to which men can rightfully confront power and authority over them. An account of this type like John Dunn’s finds itself in the same orbit of questions as does Ashcraft’s inquiry, or Franklin’s. It is Dunn’s argument that Locke’s project is defined by, “the attempt to construe the question of how far a man can have power over another man in terms of the extent to which he has power over himself.” 19 It is thus a question, ultimately, of the limits of political authority, and one finds at the limit the cessation of the requirement of obedience to that authority, hence resistance. This is of course, as Dunn acknowledges, “one of the two great themes of the Two Treatises.”20 I do not pretend to think that any of the questions raised above rise to the level of being ‘open ended’ questions. On my reading of Locke, he certainly allowed for a right of resistance of the people, and even a right of revolution as Ashcraft presents. However, these ‘rights’ in the hands of ‘the people’ are clearly, if one turns to Locke’s text, extremely attenuated political possibilities. It is of course in the nature of the dominant liberal appropriation of Locke to receive him as a more revolutionary figure than he was. Nevertheless, Locke does admit to such a limited right or resistance, and in certain attenuated circumstances revolution, but this does not in any way remit the power of prerogative in the hands of a sovereign--or perhaps, as I raised the possibility, the exercise of prerogative by the community. What is also clear is that a right of resistance and the prerogative power can coexist in Locke’s theory perfectly well. Singular acts of prerogative discretion, such as pardons or grants of amnesty, in Locke’s thought do not rise to the level of justifications for sedition. What is more interesting is the question of the locus, not of sovereignty, but prerogative. More precisely, I refer to the possibility of multiple sites of prerogative, a possibility that several scholars discussed above read in Locke. An important question raised by these thinkers is Locke’s problem of confronting a composite form of pg.153 POLITICAL FORGIVENESS sovereignty shared between the legislative branch and the executive branch. The issue appears to be one of temporality and agency; when the executive acts as sovereign they have the ability simultaneously to act through prerogative, as the case of political forgiveness also attests. However, not all sovereign acts are acts of prerogative. Nothing about this scenario suggests that the composite form of sovereignty that Locke grapples with is at risk. And, most importantly, nothing about this scenario forecloses the possibility of working with Franklin’s notion that there might be an alternative site of prerogative, even if it is not as he calls it true prerogative. The need of tolerance: I want to suggest that we re-articulate the above interpretations of Locke to differentially consider the question of a people’s right of resistance and power of resistance, with a specific focus on how Locke presents ‘the people’s’ relationship to acts of prerogative power. To do so illuminates one particularly salient facet of Locke’s thought--that of tolerance, specifically, what a people will tolerate. In Locke’s work pardon provides an example of the kind of prerogative actions that are suffered by the people happily. He writes, “the People are very seldom, or never scrupulous, or nice in the point: they are far from examining Prerogative, whilst it is in any tolerable degree imploy’d for the use it was meant; that is, for the good of the People, and not manifestly against it.”21 This is a crucial passage in Chapter Fourteen, for it signals not one, but two imperative facts. First, it continues to demonstrate Locke’s blindness, as I have been arguing because of his historical situation, to the possibility of the potential abuses of political forgiveness. It appears from the context that the above quote is a continuation of his affirmative account of pardon, pg.154 POLITICAL FORGIVENESS casting pardon as an act of prerogative that is an overall public good. But upon further consideration we find that Locke’s own words might begin to betray this position. If it is the case that pardons are not happily suffered but in fact tolerated, as Locke explicitly states in the quote above, this presents a different picture altogether. This is a truly curious state of affairs, for we find Locke presenting the intended use of prerogative as the public good, and suggesting that there still exists a ‘tolerable degree’ of its use. Tolerance denotes engaging a level of patience for an unpleasant experience. I would like to suggest that the notion of tolerance is introduced at this point out of political necessity. This political necessity is given life to by the fact that, in this very specific case, pardon, the power of political forgiveness (as I will argue at length below) is never alienated from the social body to sovereignty. It is thus an experience worthy of grief for a people to bear witness to a political power which they authored, engaging in activities for which they never specifically authorized it. This then turns out not to be such a curious state of affairs since tolerance implies the possibility of resistance.. This argument is not only my own but is suggested, albeit with a slightly different connotation, by Julian Franklin as well. We find Franklin discussing tyranny and resistance in Locke’s work, and here it is important to recall that for Locke abuses of prerogative power are tantamount to tyranny and arbitrary uses of power beyond right. Locke’s point is that in such cases resistance is legitimate, yet Franklin reads him as saying resistance is legitimate but unlikely.22 Franklin’s suggestion here is that Locke “might have done better to have said that isolated acts of tyranny must be tolerated by the public, with only peaceful protest, in consideration of the peace and good order of society.” 23 Here we should recall that Locke does in fact argue that there are things that should necessarily be left to executive discretion, but this requires questioning if these things are in fact actions that need be tolerated by the public for, as Locke would put it, the good of the public. Finally, it is certain that pg.155 POLITICAL FORGIVENESS Locke gives an affirmative account of pardon as an act of prerogative, however, he never states how he imagines that an individual or general (amnesty) pardon would benefit the public. He merely believes that it would. There is another possibility to consider here as well, bearing in mind the critique above and following Locke’s words, concerning what pardon represents. It might be the case that given the people’s apparent toleration of pardon as a prerogative act and tacit acceptance of its utilization, the effect of all of this might be a gradual de-politicization of prerogative acts through a general public disaffection, preventing the general public from taking a more circumspect view of prerogative. Locke himself admits as much, stating that prerogative, “has often occasioned Contest, and sometimes publick Disorders.” 24 This of course, according to Locke owes to prerogative’s mis-utilization.However, is it not plausible, given Locke’s argument that there is a tolerable degree of utilization, even admitting to the political consternation caused by the experience of suffering the effects of that which was never authorized in the first place, and the injunction that toleration is the condition of possibility for resistance, that the People’s tolerance may run out? This resolves the difficult question of why a people would tolerate that which they never forfeited in the first place. The answer is that the experience is tolerable, up to a point, but there is an inherent temporal and contextual limit to any quotient of tolerance. The second point begged by the quote I have been interrogating is that Locke continues his argument that there is only a de jure utilization of prerogative, when there is truly only a de facto use thereof. What Locke appears to be arguing in his analysis of prerogative is that the outcomes of the instrument’s utilization are determinative of the instrument. When the outcome of the dispensation of prerogative is a net benefit to the public, a public good, then that action is an example of genuine prerogative; however, if the executive wields prerogative arbitrarily or for pg.156 POLITICAL FORGIVENESS their own political interest than it is not prerogative. This analysis is absurd on the face of it. The outcome of the use of the instrument cannot be determinative of the instrument in this instance. This certainly represents an element of Locke’s work against which one could levy the charge of theoretical inconsistency bordering on blindness. However, we need to ask whether we can truly charge Locke with this serious lapse of theoretical rigor. For it is the case that this “lapse” is the result of the specificity of his political predilections. Put another way, it is a continuation of his attempt to try and shape, through his treatises, the scope of prerogative and to cast any utilization of prerogative that does not benefit the public good as tyrannical and arbitrary. We can once again turn to the discussion above regarding tolerance to illustrate why. It is the case that just because something is good, or a public good does not mean the experience of it will not be unpleasant. However, Locke could not have taken the position that there is only the de facto use of prerogative because that would have further alienated him from his Whig compatriots. As Franklin has shown in his study, while the Whigs wanted to limit the scope of executive prerogative, at one and the same time they continued to claim the independence of the King. 25 Nevertheless, as I have argued, there is more in the text of Locke’s work than those of the strictly historical and contextual school would let on. On the face of it, a literal and explicit reading of Locke’s text would yield the answer that along with the power of punishment the power of political forgiveness is alienated to civil government. The result of this would be the transformation of the power of punishment into the authority or the right of civil government to punish. This is a power discourse that transforms into a rights- and authority-based discourse by virtue of the instantiation of law. In this scenario we would lose our power of political forgiveness, and in place of this the civil government would gain a right of political forgiveness, a right of pardon if you will. There is very clear evidence pg.157 POLITICAL FORGIVENESS that this is in fact not the case. Thus, the need for tolerance. Locke’s struggle to resolve the tension between law consecrating punishment and law endangering forgiveness, when punishment is alienated to the sovereign creates an aporia. This problem similarly haunted Thomas Hobbes’s approach to political forgiveness. And, oddly enough, Hobbes’s attempt to reach closure on the issue paradoxically creates a clearer vantage point of the existence of an alternative and ideal type of forgiveness in the political realm. Hobbes also gave us the opportunity to interrogate the difference between power and authority in his work. I now turn to explore this important dichotomy between power and authority in Locke’s work that has been brought to the fore by the above discussion. Power versus authority: In what follows I address the scholarship on Locke in an effort to ascertain, according to their views, whether the actor exercising prerogative does so by virtue of an either/or distinction, or a both/and distinction; either prerogative is a right, or it is a power, versus prerogative is both a right and a power. Further, I address what the significance of these words, power and right, are. The importance of ascertaining this lies in the fact that this is both an analytical issue and a normative one. The analytical task is one of discerning the manner in which prerogative is vested in the executive and authorized to deploy it. The assumptions made above rest on this task. The normative question then follows on this foundation, as we then consider if the executive either possesses the authority to dispense with this right or is utilizing power beyond right. Again, the assumptions made above regarding political forgiveness attempt to confirm the latter. How have others understood what Locke meant by ‘rights’? I turn to two influential pg.158 POLITICAL FORGIVENESS writers on the topic to ascertain the answer to this question, Simmons and Strauss. In Simmons’ work, The Lockean Theory of Rights, he makes the claim that there are four distinct types of rights that can be found in the Two Treatises. In Locke, Simmons argues we can find liberty rights, a moral power, optional claim rights, and mandatory claim rights. The question is to which of these categories does prerogative power belong, and furthermore, is it even appropriate to try and locate prerogative within Simmon’s lexicon? Liberty rights include “what it is morally permissible to do,” and, “are not protected by correlative duties on the part of others to respect or allow performance of the right.”26 It seems plausible to reject the possibility that political forgiveness is a liberty right, as in a political context there is a duty, perhaps not to respect, but allow for the performance of this ‘right.’ A moral power, according to Simmons, “is a higher order right – a moral ability to change or impose other people’s (claim) rights or duties.”27 The context of Simmon’s discussion of this particular right is bound up with material claims, and therefore we might see fit to include political forgiveness in the categorization of this type of right. Finally, we arrive at optional and mandatory claim rights. Between the two, it is most plausible that Simmons would situate political forgiveness within the realm of a moral power or an optional claim rights, a “right whose exercise is optional for the right holder.” 28 This appears to be the most plausible answer, for prerogative (political forgiveness) is a ‘right’ whose exercise is optional and enacted at the discretion of the executive in Locke’s Second Treatise. But would Simmons even include political forgiveness in his lexicon of types of rights? My conjecture is he would not. For Simmons makes it explicit that rights do not exist in the absence of the concept of duties.29 The corresponding duty that would belong to a right of political forgiveness would be equivalent to having a moral compass that is guided by the political decisions of an executive authority. Locke would not abide this. Yet, this is complicated by Simmons’ designation of the pg.159 POLITICAL FORGIVENESS right of punishment (the other of forgiveness) as a special right, which is to say a consensual right. His argument is that political rights are always consensual special rights, and this would cast the ‘right of political forgiveness’ as exercised by prerogative as consensual. All of this is to say that if we follow Simmons, then political forgiveness, as it is figured in Locke’s thought, is in fact not a right but rather a power as there is both no attendant duty to adhere to decrees of political forgiveness, nor is there any place in the text where we can find something that resembles consent or authorization. We can see this all the more clearly if we briefly look at the special right of punishment that Simmons addresses in a chapter in his book. Simmons makes it clear that the special right of punishment is a right grounded in authorization. Governments have the right to punish because they have been authorized by their political subjects to do so. The two questions that interest us are first, from whence did this authorization arise, and secondly, whether or not Simmons’ argument extends to prerogative and forgiveness as well? Simmons’ argument mirrors the one I make below, that the right to punish (in a political context) derives from a specific alienation and “forfeiture,” of this right. 30 Thus, a government has been authorized to punish because of an alienation of a right from the social body to the government. This transference is possible because in the state of nature, the law of nature provides everyone with “a moral right to punish (moral) wrongdoers.” 31 Thus we find Simmons arguing that the right to punish, “like all governmental rights, must be composed of the redistributed natural rights of citizens, rights that the citizens must therefore have been capable of possessing in a non-political state of nature.”32 Others have made this very same argument, including Ashcraft and Strauss. Strauss, for instance, compellingly argues that, if there is to be a law of nature, which will become the basis for political law, there must be corresponding sanctions for breaches of that law, sanctions in the form of punishment.33 Ashcraft makes a pg.160 POLITICAL FORGIVENESS similar injunction that it is the need to transfer this special right, as Simmons would put it, and create an impartial arbiter of justice to whom pre-political society alienates their right to punish. It seems important to pause at this point and highlight the fact that each of these thinkers, Ashcraft, Simmons, and Strauss, all interpret the right to punish in a pre-political context as Locke understood it, which is to say that it was an executive right. We are in a position now to claim that regardless of how one receives the Second Treatise, there is agreement on the fact that a government’s right to punish transgressors of the law is derived from authorization. That no such authorization occurs when the prerogative power is exercised is also clear. However, not all are so sure of the absence of the authorization of prerogative. Simmons for his part argues that the prerogative power “is really only a trust from the people, a result of their consenting to what is necessary for effective advancement of the end of government.” 34 This argument shares in what Dunn has discussed at length as a form of “tacit consent” present in Locke. 35 Dunn further argues that apart from being consensual, it is a “limited right, far indeed from a right to interfere paternalistically in all areas of citizens lives.”36 It is unclear where Simmons gets the impression that prerogative is consensual in the same way that individuals consent to and authorize the instantiation of civil government. Furthermore, it is also a misunderstanding of prerogative to claim that it is a limited right; Locke makes it clear that it is in fact unlimited. Finally, by locating prerogative in the realm of consent, Simmons complicates the matter without addressing the nature of consent in Locke’s theory. The function of consent in Locke’s theory, according to John Dunn, is to “denote the occasion of incurring political obligations.” 37 This of course does not mean that prerogative cannot be used poorly, or even to the detriment to the community. Recall, as Ashcraft argued, that there are situations in which the exercise of prerogative is an exercise of power beyond right. I believe these scholars are correct in that they all pin the pg.161 POLITICAL FORGIVENESS importance of the rights versus power dichotomy to the discussion of punishment in Locke’s Second Treatise. However, the significance of the argumentation is not taken to its fruition because these scholars do not appraise the way in which the ‘other’ of punishment augments the dichotomy. I believe the most fruitful way to apprehend the import of the power versus rights dichotomy in Locke is via a reconstruction and interrogation of the ‘other’ of forgiveness, punishment. Doing so provides the clearest understanding of how Locke understood the difference between a right and a power and the manner in which they are alienated…or not. The ‘other’ of forgiveness: It is fair, I suppose, to question: why punishment? What might thinking about punishment yield us, other than the recognition that it is quite simply the ‘other’ of forgiveness? The two are often thought of as a couplet, together, two sides of the same coin if you will. But this misapprehends the crucial difference in the economies of power that each concept carries along with it. In political life these economies of power are very real, institutionally grounded, and not in the least rhetorical. To be sure, economies of power pertaining to forgiveness and punishment do exist in other realms of life.38 Here we are only concerned with political life. We also might pause here and reflect: might there be something like an economy of rights that also pertains to forgiveness and punishment? Such a distribution of rights would suggest the presence of authority. Furthermore, the pre-political status of punishment plays a pivotal role in the justification and genesis of political society in Locke’s thought. Therefore, it is necessary to first grasp the operation of the theoretical self-alienation of an individual’s power to punish in a prepolitical society, and the transference of this power to punish to the sovereign authority. What pg.162 POLITICAL FORGIVENESS also seems important about this act of self-alienation is that in Locke’s thought, it is not only a theoretical act but very much an empirical act that has happened historically and will likely happen in the future. This is because Locke understood the potential for a state of nature situation to be a historical occurrence, especially a situation in which a body politic dispossesses its government of authority.39 Attending to these theoretical and empirical issues is instructive in raising several questions about political forgiveness. For instance, does the process by which the government gains sole authority to punish imply anything about the government’s ability to engage in acts of political forgiveness? What might Locke’s theoretical approach to punishment inform us about the political fate of forgiveness? And finally, what are the infractions that justify punishment, and what is the genesis of punishment? Crucial to reading the gap between punishment and forgiveness is discerning the distinct difference in how punishment is carried out in the two spheres of life that Locke discusses. One is the pre-political sphere (which is also the social realm of possibility, resulting from a historical gap in political authority), and the other is the political sphere proper after the contract. What we find is an encounter between power and authority. This encounter, as I argued above implies the concept of rights. Before the contract there is no political authority, there is only power to speak of, and the only law is the Law of Nature. Before the contract, we may speak of the power to punish, the power to judge, and the power to forgive. But what about after the contract? Is it proper to speak of the power to punish, or the authority to punish? Is it proper to speak of the power to pardon, or the right of pardon? Of course, as the discussion of power and right in the previous chapter demonstrates, the two cannot be so neatly distinguished and separated out from one another. Nor is it appropriate to collapse them into one another as if there was no difference between them. If we consult Locke, he uses the phrase ‘power to punish’ in the context of pre- pg.163 POLITICAL FORGIVENESS political society. But in a political society that power to punish should be re-figured as the right to punish, because it is then wielded by political authority under a system of positive law. The power to forgive is not similarly alienated, and so one would assume the power to forgive remains outside of positive law. Theoretically, it is wielded as if it were a right, but it remains a power. Practically, in Locke’s thought at least, it is a right. What is needed is a close parsing of these concepts in both their pre-political setting and in their political setting proper. If we turn to the text, we must necessarily begin this parsing in Locke’s musings about the state of nature. There we find that as Locke explains it, the state of nature is “a state of liberty, yet it is not a state of license.”40 One of the primary reasons that Locke makes this statement is that in this condition “everyone has a right to punish” violations of the law of nature, the law that predominates in a pre-political sphere. The underlying logic is that the threat of repercussions and sanctions for actions against the Law of Nature will curtail the amount of licentious behavior. Punishment comes in two distinct forms (a fact which is both consequential and seems to have evaded other scholarship), according to Locke. The first is restraint, by which we should understand some form of imprisonment, and the second is reparations for harm done to the injured party.41 The latter of these two distinct forms of punishment available to individuals in the state of nature should give us pause. It might be argued then that indeed, when the individual in the social body self-alienates their right to punish, the rights of restraint and reparation are also ceded. However, I want to argue that the right of reparation might not be ceded. I base this argument on an understanding of reparations as conceptually adjacent to forgiveness rather than as a species of punishment. But to truly answer this, we need to ask what Locke meant when he used the word reparations. Reparations could gesture at a recompense, where such a recompense is constitutively financial pg.164 POLITICAL FORGIVENESS or material. Reparations might also gesture towards a general making of amends for harm done, the latter of which is far closer to an affective understanding of forgiveness, political or otherwise. One understanding finds the individual ceding their right to determine a proper distribution of material losses for a wrong committed, while the other finds the individual ceding their moral autonomy. It seems far more likely that what Locke had in mind was that individuals forfeit their ability to determine a material distribution of losses. This seems all the more certain, given Locke’s theory of property and its centrality in generating the need for political society. This is important because it holds open the possibility that an individual’s political and moral autonomy to forgive are not alienated and therefore do not become part of the authorship and authority of government. To further understand this, it is necessary to consider why the possibility of allowing the social body to maintain its power of punishment is logical but so odious to Locke. It is logical, because in a pre-political state there is no authority to decide whether to forgive or punish offenses against individuals. It is odious because, as Locke explains, this means that each individual in this state possesses in their hands complete and unbridled “executive power.”42 The result of the possession of executive power yields an extremely egocentric dispensation of forgiveness and or punishment. Locke explains: “it is unreasonable for Men to be Judges in their own Cases, that self-love will make men partial to themselves and their friends. And on the other side, that ill-nature, passion, and revenge will carry them too far in punishing others.”43 What Locke finds odious about this state of affairs is the operation of an individual’s prerogative, a prerogative rendered in the form of executive power by virtue of its being carried out under conditions of the Laws of Nature. The solution to such an odious situation, according to Locke, is the institution of civil government’s positive law. But, as we pg.165 POLITICAL FORGIVENESS shall see in due course, the institution of positive law does not do away with the problem of prerogative. It merely displaces it from the social body and is invested firmly in the singular executive power that obtains after the original contract. The question that we must put to Locke is why prerogative, so odious before the contract, becomes a virtue of the executive so important that it possesses the status of a law that in effect contravenes law? I want to turn briefly back to the locus of the problem of individuals being able to utilize their prerogative in matters of forgiveness and punishment. We find in the chapter, Of the Ends of Political Society and Government, that there is no more crucial justification for political society than that of rendering individuals property as safe. This furthers my argument above that by reparations, Locke means something closer to recompense, via the alienation of the power of punishment to the authority of civil government. The inconveniencies, that they are therein exposed to, by the irregular and uncertain exercise of the power every man has of punishing the transgressions of others, make them take sanctuary under the established laws of government, and therein see the preservation of their property. ‘Tis this makes them so willingly give up every one his single power of punishing (my emphasis added) to be exercised by such alone as shall be appointed to it amongst them; and by such rules as the community, or those authorized by them to that purpose, shall agree on. And in this we have the original (my emphasis added) right and rise of both the legislative and executive power, as well as of the governments and societies themselves. 44 The decision on when to punish, and in turn when not to punish, or forgive, and the necessity for pg.166 POLITICAL FORGIVENESS an authority to make such decisions in Locke’s thought is then the genesis of government. And this means there is a displacement of prerogative from individuals in the social body to that government in matters that pertain to positive law. But as of yet, we find no theoretical ground to stand on that explains the vesting of political forgiveness in the hands of the executive. To be sure, Locke is rigorous in his theoretical explanation of the alienation of the power to punish to the government, but no such rigor exists in the case of political forgiveness, it simply appears. I propose turning to the textual adjacent concept of reparations to interrogate this problem. We need to follow Locke carefully in his discussion of reparations which appears in Chapter II of the Second Treatise that treats the state of nature. It is here, perhaps more than any other area of his Second Treatise, that we find an important movement that would seem to confirm my argument that while individuals alienate their ability to punish in the course of the contract that establishes political society, the power of forgiveness and its attendant politics, are not similarly alienated. The evidence of this is found in Locke’s argument that reparation, while akin to punishment, is an act that takes place alongside, in addition to, or as we shall see potentially in the absence of punishment. Locke discusses the rights of punishment and reparations as, “two distinct Rights, the one of Punishing the Crime for restraint, and preventing the like Offence, which right of punishing is in every body; the other of taking reparation, which belongs only to the injured party.” Here is the first clue to the simple fact that Locke imagines reparation as distinct from punishment, and therefore we must be particularly attentive to how Locke understands reparations and how we imagine the political status of reparations. He writes regarding this essential difference between punishment and reparation, with regards to an individual who has been transgressed, that, “he who hath received any damage, has besides the right of punishment common to him with other pg.167 POLITICAL FORGIVENESS Men, a particular Right to seek Reparation from him that has done it.”45 Note, that the right of punishment is shared in common, while at first blush the particular right of reparation appears to belong to a sole individual. But this is not so. Locke’s use of the vernacular ‘particular’ in this context does refer to a particular individual, but no sooner than Locke introduces this into his text he moves to expand the scope of particularity. In the next sentence Locke affirms that in fact, “any other Person who finds it just, may also joyn with him that is injur’d, and assist him in recovering from the Offender, so much as may make satisfaction for the harm he has suffer’d.” 46 Now the scope seems to have been expanded to include a particular group of people that identify with a particular person, in a sense the particular right of reparation now appears to be on par with the ‘common’ right of punishment. 47 Also notice that there does not appear to be an upper limit to the quantity of reparation sought for a wrong done, given the thirst for reparation can only be quenched by the nebulous term ‘satisfaction’. Finally, we are again squarely in what I would argue is the domain of seeking redress for material and financial damages, recompense as I indicated above, rather than amends. This does not mean that the concept of amends is absent from Locke’s consideration. In fact, the concept of amends, or something closer to reconciliation does factor into Locke’s argument as I understand it, but one needs to continue with Locke’s reconstruction to grasp how. How is it that Locke imagines the actual political and judicial conditions, or acts, that would lead to reparations in the case of a transgression? It is through acts of magistracy that Locke envisions such actions. And it is here, when the magistracy in question acts in ways that resemble the pardoning of crimes that a curious movement is introduced. In this discussion, Locke inserts, in an abrupt and somewhat puzzling idea, pg.168 POLITICAL FORGIVENESS that the Magistrate, who by being Magistrate, hath the common right of punishing put into his hands, can often, where the publick good demands not (my emphasis added) the execution of the Law, remit the punishment of Criminal Offences by his own Authority, but yet cannot remit the satisfaction due to any private Man, for the damage he has received. 48 The Magistrate can forgive offenses, or in other words, cancel a punishment by Authority, that is by right with which they have been authorized …but cannot take away what the wronged party is owed. And what is a Magistrate? An individual with political power, by authority, with the right of making laws.49 And why is this according to Locke? It is because only the party that has suffered the hypothetical damage can ‘remit’ as Locke puts it, or cancel, forgive, or pardon, that which they are ‘due.’ In a sense, what this truly represents is a remainder of the executive power that individuals have in the pre-political state of nature held over in the aftermath of the contract. We might even consider that this remainder of the executive power is an individual’s prerogative. This is demonstrable in the fact that an individual or group that identifies with the aggrieved can choose to demand reparation, or to remit such a demand by using their prerogative of forgiveness. Locke moves on to explain in one sentence crucial for my argument that “The damnified Person has this Power (emphasis added) of appropriating to himself, the Goods or Service of the Offender, by Right of Self-preservation…”.50 This being the case, we can argue with force that the person or persons in question have definitively both the power to demand reparation and the power to remit, or forgive, such a claim. Also of immense significance, this reasoning indicates this is a power that is never alienated from the social body, and how could it be? Locke himself states this expressly multiple pg.169 POLITICAL FORGIVENESS times in the above reconstruction of his argument. Locke moves on from here to discuss his famous passage regarding the right each and all have in the state of nature to kill a murderer. What interests us most in this passage is his recitation that “no reparation can compensate” for the taking of life. This is a pivotal move in the text, for it indicates the turning away from an argument that at first seemed to be bound up with the recuperation of material losses (as I have argued) towards an unfolding acceptance of other, more abstract and affective losses that cannot be so materially quantified. Here Locke has pivoted to argue for less tangible losses, his example being that of a life. If there is one class of loss for which “no reparation can compensate,” perhaps there are others. But whereas Locke refers to those losses which reparations cannot ameliorate, he makes no mention of the particular power that is left in the hands of political subjects, individuals, and collectives. This is the power of remittance, or as I have argued it, the power of political forgiveness. This is not to argue that Locke would consider that those losses which reparations cannot compensate should be remitted by those individuals, or groups of individuals who retain the sole ‘right’ of remittance. We cannot make this determination or even conjecture. We can only insist on the analytical weight of the possibility, the door, that Locke has left open. For what this means is that the power of remittance, the power of forgiveness, in the last instance becomes specifically political through its being withheld when reparations are or are not an available possibility. Nothing in Locke’s text suggests that when the possibility of reparations is available the damnified must, necessarily, accept them. In fact, reparations might be on tap, but they might be rejected, specifically to withhold remittance. This is a final sanction in a framework that demonstrates the feeble nature of a compensatory system in the realm of the political, by which we are reminded regularly of the vulnerability of mortality. pg.170 POLITICAL FORGIVENESS Nevertheless, by the fourteenth chapter, On Prerogative, in the Second Treatise Locke’s consideration of reparations has been occludedby Locke’s insistence that the sovereign right of pardon belongs to the sovereign’s prerogative alone. In another sense they have been occluded by a panoply of contemporary theorists who have passed over Locke’s thinking regarding reparations. I argue in what follows that should we want to better understand this fertile concept for intervention, we should focus on the transformation of punishment from a power that everyone holds in common in the state of nature, to a right that is wielded by authority, and on how Locke attempts to ground the dispossession of the transformation. Misunderstood readings: The inclusion of Chapter Fourteen, On Prerogative, of the Second Treatise represents one of two possibilities. The first possibility is that Locke has included the chapter with great acumen as a coup de grace denouncing executive prerogative, countering his political and intellectual enemies, and introducing the possibility of political resistance. If we follow Laslett, then Locke is refuting Filmer and the royalists, and if we follow Strauss he refutes Hobbesian absolutism. Either way, this analysis has Locke attacking absolute authority. On my reading this wouldbe Richard Ashcraft’s and Franklin’s position. The second possibility is that it represents the kind of philosophical logical inconsistency, or esotericism, within his work that has been leveled against him. This is the curious argument that we find in John Dunn’s historical account of Locke’s political thought. For the purpose of my project, Dunn’s interpretation is not valid. Nor does it seem plausible, given that in the text of Chapter Fourteen that there is anything esoteric in nature to be found. If Locke’s discussion of prerogative is merely an incoherence in his theory, or some pg.171 POLITICAL FORGIVENESS kind of aberration, then my argument for its centrality regarding political forgiveness and its function suffers. It is certainly plausible that a given work of political theory may be received by thinkers in a variety of different guises. This is certainly the case for John Locke’s Two Treatises of Government. One particular reception of this text by Richard Ashcraft argues that Locke’s most important preoccupation was to “supply a justification for active resistance to the illegitimate authority of the king.”51 Ashcraft finds Locke’s justification in his firm opposition to tyranny. What makes Ashcraft’s reading and reconstruction of Locke’s opposition to tyranny interesting in our context is the explicitly implicit, sotto voce, manner in which prerogative power appears in his line of argumentation and interpretation. While Ashcraft does not explicitly deploy the verbiage prerogative power, what seems abundantly clear is that tyranny is second hand for the ill utilization of prerogative power. Or thought of a different way, the conditions of possibility for the exercise of tyrannical power are found in prerogative power. There are large sections of text in Ashcraft’s chapter in The Cambridge Companion to Locke where he cites Locke’s chapter On Prerogative. Ashcraft does so with two specific intents; the first is to recapitulate Locke’s belief that all of the members of political society must be subject to the law (the exception being the ruler, who when necessary may contravene the law for the good of the community, hence prerogative). The second intent is to argue, in a veiled fashion, that Locke’s executive does not hold supreme power, even though they do have prerogative (remembering that Ashcraft never uses this phrase specifically). It is neither necessary nor convenient, Locke argues, for the legislature to be always in session, but it is essential that the laws be continuously enforced by the executive. pg.172 POLITICAL FORGIVENESS Between meetings of the legislature, therefore, the executive (king) may appear to hold “supreme power,” but, Locke insists, he is always subordinate to the legislative power, even if, as in the case of England, he retains a share of legislative power through the use of a veto.52 That Ashcraft can ignore the context of the specific chapter where this quote derives from in the Second Treatise is puzzling indeed. His reading makes it seem as if the executive holds prerogative only when the legislature is not in session. But Locke’s description of prerogative appears fo contradict this logic, since Locke’s argument is specifically that there are times when the legislature works too slowly. According to Ashcraft, there are two different manifestations of tyranny in the Two Treatises. The first manifestation of tyranny Locke advances is the situation of the ruler using political power not for the good of the community, but rather for their own personal gain and benefit. Ashcraft calls this the classical position, or a restatement of the classical position. The second manifestation Ashcraft finds in Locke is expressed as governmental action beyond that provided by authority. Leo Strauss’s interpretation of Locke’s intention regarding the limits of executive power is akin to Ashcraft’s. Strauss argues that for Locke, “the best institutional safeguards for the rights of the individuals are supplied by a constitution that, in practically all domestic matters, strictly subordinates the executive power (which must be strong) to law, and ultimately to a well-defined legislature.”53 Yet, we know that this is not the case, and that the executive is not strictly subordinate to the law. Ashcraft asserts that Locke’s argument is based on the assumption that popularly enacted laws establish limits to a ruler’s exercise of power, “the issue is that this ‘limit’ is found exactly pg.173 POLITICAL FORGIVENESS where the laws are silent, or where necessity requires the abrogation of those popularly enacted laws, both of the former being the test cases for the utilization of prerogative power, thus calling the establishment of ‘limits’ into question.” 54 As Ashcraft argues, “when these limits are exceeded, the ruler loses his authority,” by which we are meant to assume the ruler also becomes a tyrant.55 This certainly seems to present us with a problem, for if the limit to a ruler's exercise of power is found in the silence of the law, or in necessity, then I would argue there is more latitude than limit, as is made clear by Locke’s endorsement of pardon. This is certainly one of the situations that have caused some to argue that Locke is an inconsistent thinker. This seems to be what Ashcraft argues against in “Locke’s State of Nature: Historical Fact of Moral Fiction?” That article finds Ashcraft attempting to set the record straight, so to speak, arguing for a fundamental coherence in Locke’s political philosophy against critics who would argue otherwise. But Ashcraft himself argues against this claim by referring to the fact that Locke’s Two Treatises is not only a work of political theory, but also represents a specific political action.56 As such, Ashcraft argues, one needs to be attentive to the myriad intentions that Locke pursues over the course of the text. Returning to Ashcraft’s parsing of Locke’s intent as it pertains to tyranny, this analysis of the Two Treatises provides us with an indication that pardon and other acts of political forgiveness present Ashcraft’s analysis with a challenge. In the first case, regarding the understanding of tyranny that has been given to us by the ancients, political forgiveness might be wielded as a tool by a ruler for their gain over and above the good of the community. Again, we have seen this time and again in the literature when scholars trouble over the potential to instrumentalize political forgiveness for the ruler’s own gain. The challenge for Ashcraft is whether the utilization of political forgiveness represents, as he quotes in the original text of the Two Treatises, “the exercise of Power beyond right.” Thus, the question is whether or pg.174 POLITICAL FORGIVENESS not the exercise of political power represents a political action that has not been bestowed to those who wield prerogative by right, Whereas others have found confusion and incoherence in the inclusion of Chapter Fourteen of the Two Treatises, Ashcraft argues that this particular chapter is integral to, perhaps even the mainspring of his understanding of Locke’s revolutionary politics. To grasp why Ashcraft believes this to be the case, it is necessary to first understand that like his contemporaries and other authors of the secondary literature, Ashcraft understands Locke to be making an explicit argument for the supremacy of the legislative over the executive. This is a supremacy that would once again seem to place a certain amount of incoherence at Locke’s feet. For Ashcraft, the difference arrives in his interpretation of chapter fourteen as opposed to other scholars of Locke’s work. It is an interpretation of Chapter Fourteen that has the potential to shift our understanding of the function of prerogative, and therefore the function of political forgiveness in Locke’s thought. Ashcraft calls our attention to the two powers individuals have in the state of nature, which are the power of doing what is necessary for self-preservation and the power to punish.57 Ashcraft’s claim is that Locke derives the origin of the legislative power and the executive power in political society in these powers.58 This squares with the account that I give below, of the executive power being derived from the alienation of the individuals’ right to punish. Ashcraft’s concern (which is no less mine) is not only from where these governmental powers derive, but which of the two are supreme? One argument is that the function of prerogative, and therefore the function of political forgiveness, is to signal that the executive is indeed the supreme power. This would situate political forgiveness as an act which confirms supremacy. But Ashcraft has a different interpretation. Rather than suggesting incoherence, Ashcraft argues that Locke is well pg.175 POLITICAL FORGIVENESS aware that his political opponents will call attention to the historical and empirical fact that an executive is “entitled to exercise his prerogative as he sees fit, and that none of his subjects has any right to interfere with this inherent power of the monarch.”59 According to Ashcraft, because Locke maintains throughout not only the supremacy of the legislative, but also that body’s ability to refute the executive in matters that overreach their authority, he includes the chapter On Prerogative as a rejoinder to his critics. Ashcraft argues that Locke’s first move is to fervently claim that the executive in their utilization of prerogative must use their power for the good of society, and that as long as this is the case “no one is likely to raise scrupulous questions about his exercise of prerogative.”60 The question of the limit of prerogative arises when there is a question about the public good. Ashcraft’s interpretation and injunction is that Locke never meant for the power of prerogative to belong by right to the executive but rather, “Locke argues, the prerogative always belonged to the people, so to speak, since it could only be defined in terms of their welfare.”61 This is rather reminiscent of Franklin’s understanding of Lockean constituent authority, for if ‘the people’ have constituent authority in Locke’s thought, as Franklin claims they do, then it stands to reason that indeed they too would hold the final prerogative power. Ashcraft finds support for this in his interpretation of Locke’s claim that an executive power cannot have an interest apart from those of the community’s good, something Ashcraft finds no evidence of in Locke’s thought. As a result, his position is that for Locke, prerogative is not something which belongs to the executive by right. 62 This being the case, the question that we must put to Ashcraft is: When do the people have the right to exercise the prerogative that belongs to them? To answer this question, Ashcraft himself turns to both the historical context and textual evidence that Locke provides. The issue, as it seems, is that it is incumbent upon the executive to call the legislative into session for it to exercise its supreme pg.176 POLITICAL FORGIVENESS power, so what should happen if the executive with prerogative does not do so? Ashcraft believes the answer is that “the people have a right to appeal to the Law of Nature…in order to defend themselves against such action.”63 Finally, Ashcraft finds the explicit meaning of Locke’s view of prerogative to be that: the executive’s use of prerogative to prevent the legislature from meeting brings the nation to the brink of revolution, and on natural law grounds may be resisted by ‘any single man’ or ‘body of the people’. Through an examination of the theoretical framework constructed by Locke, we have arrived at the practical objective that supplies the intentional meaning for the writing of the Second Treatise – the effort to persuade his readers ‘that it is lawful for the people, in some cases, to resist their king.64 In the final analysis, where does this leave the claims that I levy regarding Locke and his characterization of political forgiveness? If we follow Ashcraft, then this both conforms with and complicates the claims that I have made. For on reading Ashcraft, it is clear that he envisions an affirmative utilization of prerogative for the public good that would not bring the body politic to the brink of revolution. This comports with Locke’s affirmative account of political forgiveness in Chapter Fourteen On Prerogative. The complexity arises when we consider that for Locke, the specific historical context within which prerogative emerges as the apotheosis of political crises relates to the calling into session of the legislature. However, if one were to entertain a counterfactual historical narrative, the question becomes whether other political crises would bring a country to the brink of revolution as a result of the executive’s prerogative pitted against the supremacy of the legislature. The answer is most certainly yes. pg.177 POLITICAL FORGIVENESS The position that Locke’s inclusion of Chapter Fourteen On Prerogative is logically inconsistent, albeit necessary, is the position argued by John Dunn. Dunn’s project can be summarized as follows, to present an intelligible account of one facet of one man’s intellectual experience,…to elucidate why it was that Locke said what he said, wrote what he wrote, and published what he published in the Two Treatises of Government. It is a matter of resolving an incoherence in biographical explanation, not one of denying the presence of incoherence in Locke’s thought…65 Two elements of Locke’s thought that Dunn claims falls prey to incoherence are his inclusion of prerogative and his discussion of it in the text. On my account, this is how Dunn views Locke’s thought regarding prerogative, as something of a curiosity given Dunn’s understanding of what he thought Locke’s project was. This, for Dunn, requires us to “set it [the text] inside its own history, the specific focus of Locke’s mind at the times of the composition of the work, in so far as we know this, so that it can be seen that in the circumstances that prevailed this was the work that Locke would have written.”66 So we must first understand that Dunn would reject any notion of a textual interpretation that lifts it, as it were, ‘out of time.’ This is especially so given the historical circumstance, and Dunn’s admission that a main the purpose of the Two Treatises was to argue for the superiority of the legislature over the executive. He devotes the content of an entire chapter in his The Political Thought of John Locke to interrogating this difficult to parse subject. Firstly, according to Dunn, it is logically inconsistent, if not politically incoherent that pg.178 POLITICAL FORGIVENESS this chapter appears. Recall that Locke is writing this text, albeit anonymously, in support of the position that the legislative apparatus of England is the supreme political power in the land. This was part and parcel of the Whig political project to limit the powers of the king. So, why make the argument for the necessity of a power in the hands of the executive to supersede the legislative apparatus of England, and even to prevent this body from assembling to exercise its legislative function? Dunn claims that this “reservoir of authority,” exists “because, legislative activity is inherently incapable of providing for the full complexity of actual social circumstances.”67 Here Dunn is merely restating Locke’s basic position. But Dunn is well aware of the aforementioned logical problem of the inclusion of the chapter. He makes note of the fact that it is of “pivotal importance to the political situation to which he [Locke] addresses himself.”68 For his part Dunn teases out the logical inconsistency by making the rather circular argument, “What the law is must always be what the law is, but what the law is does not always bind.”69 Nevertheless, Dunn articulates that controlling the prerogative power of the executive was at the heart of Locke’s project, as has been duly noted on several previous occasions. Furthermore, Dunn refers to the fact that the inclusion of Chapter Fourteen, and Locke’s support for prerogative, betrays his polemic against Sir Robert Filmer whose own argument rested heavily on the assumption of the traditional role of prerogative. 70 Dunn goes on to claim that “the social and legal control of this power is critical to Locke’s enterprise.” 71 Here Dunn seems to imply that which Ashcraft makes more explicit regarding prerogative power and Locke’s theory; namely that Locke the constitutionalist lays claim to a limit on prerogative found in an original constitution. My argument is that Locke the prudentialist knows that no such limit exists in reality. We find Dunn affirming the latter position in his argument that Locke was a man who accepted that the “reality of history is to accept the possibility of real social dilemmas, dilemmas pg.179 POLITICAL FORGIVENESS of which there is no complete resolution.”72 And still, Dunn later states what we already know to be true, that this power cannot be controlled, and taken to its logical telos may manifest itself in tyrannical government. Of affirmations and injunctions: Up to this point I have built my argument on a foundation that assumes that Locke’s executive power is synonymous with sovereign power. One might counter that Locke, in the entirety of On Prerogative, never uses the terminology sovereign power. Locke never expressly states that to the sovereign belongs prerogative, he argues that to the executive belongs prerogative. I argue that such an explicit utterance is not necessary. This is the case because the power of prerogative, a power to act where the law is silent, and to act in violation of the law, is the very definition of the power of sovereignty. Did Locke’s discourse on pardon betray his thought and the political debate of his moment as to where sovereignty truly lay? As I draw this chapter to a close, it is important to bear in mind my argument that Locke the political theorist and Locke the Englishman might have had different desires. The former, as a thinker, found it difficult to part ways with the idea of the sovereign as above the law, while the latter desired a form of sovereignty closer to the people. Locke had to answer whether within the political order, could prerogative belong to anything but sovereign power? Perhaps. To what end is it that forgiveness arrives on the scene adjacent to sovereign power, issued in non-observance of the law? If we follow Locke, and only read Chapter Fourteen of the Second Treatise, the answer is the maintenance of political order established by society through covenant. But if we turn our attention to the occluded concepts of reparation and remittance in Chapter Two of the Second pg.180 POLITICAL FORGIVENESS Treatise, the possibility of actualizing that ‘perhaps’ metastasizes. This possibility perhaps is found in a person’s or people’s actions to silence law where the law ‘remits’ and uphold the law where there is legal anomie. They do so with their instruments of remittance and reparations, political tools left to the people explicitly by Locke himself. It is left to them, with their prerogative, and political agency to choose. In discerning whether Locke’s musings on prerogative are representative of an incoherence or an injunction in his thought, I argue for the latter, that his musings represent an injunction in the form of Chapter Fourteen On Prerogative. Let me briefly recount how the power of prerogative becomes vested in the hands of the executive according to Locke. Man has two powers in the state of nature. The first power is that of doing what is necessary to preserve himself.73 The second power is the power to punish. The power to punish, or not to punish, and therefore implicitly the power to forgive is of such paramount importance that it is included among the two powers of individuals in the state of nature. But, as we already know, individuals cannot keep this power of punishment once civil government has been established for the reasons already detailed above. It is thus that “the power of punishing he wholly gives up,” alienates essentially, to the executive authority of whatever society in question. 74 What we can now say is that the objective of this alienation from the perspective of the sovereign is not only to arrogate punishment to itself, but also to obtain a monopoly on the prerogative of punishment by dispossessing individuals in the social body of their executive power or prerogatives of punishment. Moving on to Locke’s more general discussion of prerogative in Chapter Fourteen, On Prerogative of the Second Treatise, it is made immediately clear by Locke that prerogative power and unbridled executive discretion are consubstantial with one another as they were for pg.181 POLITICAL FORGIVENESS individuals in the state of nature. Of the purpose of such a power Locke writes, Prerogative being nothing, but a Power in the hands of the Prince to provide for publick good, in such Cases, which depending upon unforeseen and uncertain occurrences, certain and unalterable Laws could not safely direct, whatsoever shall be done manifestly for the good of the People, and the establishing Government upon its Foundations, is, and always will be just Prerogative.75 As Locke argues, “the good of Society requires, that several things should be left to the discretion of him, that has the Executive power.” 76 The content of the several things referenced here is at once ambiguous, and explicit. It is ambiguous for it is certain one can imagine a multitude of actions that an executive power could take on behalf of the good of society, yet Locke does not reference such actions or give concrete examples, save for one. It is explicit because Locke does give content to these several things in the form of political forgiveness. The discretion spoken of is simply synonymous with the executive power’s prerogative. In this passage we also see Locke attempting to rein in prerogative power and prevent it from becoming a completely unbridled license, by positing that it is only where the law is silent that executive prerogative may reign. However, as if in a theoretical fight with himself, he quickly gives way, and so too does positive law give way to sovereign prerogative. Locke sacrifices positive law to the Law of Nature and sovereignty, claiming, “tis fit that the laws themselves should in some Cases give way to the executive power, or rather to this foundational Law of Nature and Government, viz. That as much as may be, all the Members of Society are to be preserved.”77 Locke grounds his support of this unbridled power of the executive by referring to the fact that pg.182 POLITICAL FORGIVENESS the legislative powers of a government are not always assembled, that often the legislature is too slow to act, and further that there are a multitude of contingencies that neither the legislators nor executive power can predict in advance. As a result, Locke claims that the executive has the power “to do many things by choice, which the Laws do not prescribe.” 78 It might be considered that Locke’s argument around prerogative is both a construct of political theory and historical in nature; and that in fact to the political theory belongs his appraisal of pardon, and the latter half of the chapter On Prerogative belongs to the historical circumstances Locke necessarily had in mind when writing. This allows us to think about Locke’s theoretical affirmation of certain acts of prerogative, and what I am claiming was his political injunction against abuses of prerogative. At this point, I hope my argument has become clear that Locke’s musing about prerogative power and his entrusting of that power to the executive are representative of a specific injunction rather than an incoherence in his thought. As Strauss would say, if it is the case that Locke’s positive account of the executive dispensation of prerogative could be explained away as little more than an incoherence, this would seem to be the kind of blunder that Strauss quips would embarrass even an intelligent schoolboy. Therefore, the inclusion of Locke’s positive account of executive prerogative must be an intentional action, the kind of which Strauss would say requires taking the meaning of very seriously. Locke chose the concept of pardon, political forgiveness, on which to base his musings on prerogative and his praise of it in the hands of the executive, and I suggest he did this with very specific intention. Locke did so precisely because pardon was not that which his countrymen or political allies wrung their hands over in anxiety. Furthermore, to those that have not considered it well, pardon and other acts of political forgiveness seem innocuous enough. A close reading of the text yields the conclusion that Locke the Englishmen and political actor sided with the Whigs with his pg.183 POLITICAL FORGIVENESS aspirations and desires to locate sovereignty closer to the people. However, Locke the political theorist knew all too well the difficulty in doing this given the wide swath of power that an executive wielding prerogative had at the time (and still has today). As a result, in Locke’s political theory he smuggles in, like a Trojan horse, sovereign prerogative in a guise apart from that which was the concern of the moment. In Locke’s thought, in large part, punishment was the condition of possibility for engaging the topic of political forgiveness and the concepts of reparation and remittance. Punishment, in a sense, bridges this chapter to my next chapter. This ‘other’ of forgiveness looms large in the next chapter, but so too do mercy and forgiveness. This is because these ideas were the complete preoccupation of the thought of Cesare Beccaria, which I will discuss next. When we followed the trajectory of political forgiveness through the thought of Locke, a discernible shift was detectable in its palliative quality and in the anxiety it did (or in this case tellingly did not) produce. As I shift my focus to Beccaria, so too does the trajectory of political forgiveness shift. Up to this point, political forgiveness has been expressed as a law with the power to contravene law, its sites of palliation have differed, the preoccupations of thinkers changed, but the status of political forgiveness as an instrument of law has remained static. With Beccaria, that changes. Beccaria expresses the palliative capacity of forgiveness no less fervently than Locke or others, in fact perhaps more so, and he certainly admits to anxiety about the existence of the practice of political forgiveness, so what exactly changes in this trajectory? In the next chapter, I will argue that Beccaria attempts to hide mercy and forgiveness away in the law as features of law rather than as instruments of law. He does so, I argue, to more thoroughly saturate political subjects with the sense that they should be comfortable with submission to the law. In this way, the next chapter argues that the palliative function of political forgiveness pg.184 POLITICAL FORGIVENESS becomes generalized throughout the body politic. pg.185 POLITICAL FORGIVENESS Chapter IV. Beccaria - retribution, reform, repudiation: Displacing mercy: In 1764 at the age of 25, Cesare Beccaria completed what many consider his masterwork, On Crimes and Punishments. Up until the publication of the text, Beccaria’s legal expertise was limited to a law degree earned from the University of Pavia.1 Although Beccaria was not an experienced jurist or seasoned student of politics, his text would go on to become part of the canon of criminal law, legal reform, and political theory. Beccaria’s aim was not only to put forth a scathing critique of his day’s inhumane penal system, but to simultaneously attack a disparate and manifold exercise of sovereignty that oversaw penal systems without an institutional locus in sovereignty itself. The result was a haphazard and unaccountable system of punishments, dispensed by judges who had the ability to increase or diminish sentences and substitute sentences for one crime for another. 2 At this period in history punishment was highly retributive, and as Foucault teaches us, punishments were directed toward the body of the condemned rather than at their rehabilitation. The logic of this punishment was not to deter crime in the future but rather to make individuals suffer for the wrong they had committed in the past. The use of torture and inhumane punishments ran rampant, and these were commonly employed for even minor infractions of the law. There is a much-cited quote of Beccaria’s in which he asks, “Can the wailings of a wretch, perhaps, undo what has been done and turn back the clock?” Beccaria’s question was rhetorical, for he already had an answer for himself as he was staunchly against the forms of pg.186 POLITICAL FORGIVENESS cruel and inhumane retribution capable of producing from a wretch any amount of wailing. At the time Beccaria penned On Crimes and Punishments, the vast majority of crimes were punished by bodily torment, with the most frequent penalties in Beccaria’s time being death or “mutilations.”3 Those who committed less serious infractions of the law would not be spared the infliction of pain. Common punishments for smaller infractions included flogging, “and such corporeal mutilations as slitting the tongue, and cutting or burning off the hand.” 4 All of this was untenable to Beccaria as he was an individual who, it was said, detested “arbitrary rule” and “cruelty and intolerance,” and firmly believed that no one had the authority to take another’s life, not even representatives of governments. 5 As such, On Crimes argued for a reformation of legal systems, moving them away from a reliance on bodily punishment like torture, and physical retribution, and towards a system of laws that punished not less, but more universally and better. 6 But the impact of On Crimes reached further than the domain of penal reform. Some argue that the text remains an important work of political theory for its championing of the idea of a social contract that founds sovereignty in the rule of law, an argument I will go on to critique later in this chapter. It must also be noted that On Crimes definitely represents an attempted injunction against wanton sovereign exceptionality, but not sovereignty itself Nevertheless, we might even consider that Beccaria begins his political project with mercy on his mind. And while it is true that perhaps Beccaria was more amenable to mercy over acts of sovereign violence, it is important not to misstate the case‘ Beccaria was Hobbesian through and through. To be sure, Beccaria the man found torture and capital punishment abhorrent and thus had a merciful attitude towards those who might run afoul of the law. But Beccaria the thinker had a more instrumental reason for wanting to usher in a more merciful era of punishment. Through a lenient and merciful code of laws, Beccaria believed more obedience to the law would pg.187 POLITICAL FORGIVENESS be inspired. Beccaria’s dream was replacing a violent juridical order with a placid juridical order, an order, crucially, grounded in sovereignty. Yet this was no easy task, as it required a displacement of mercy from its traditional political locus in the seat of sovereignty, where Bodin, Hobbes, and Locke located it, to the legal code where Beccaria preferred it. Thus, we need to understand Beccaria’s argument against cruel and inhumane punishment as simultaneously an argument in favor of mercy. However, we must be careful about understanding Beccaria as simply an advocate for mercy, for while this is true, he was simultaneously a crusader against pardon, and other acts of political forgiveness. His was an un-forgiving mercy, as it were. It was Beccaria’s On Crimes, more so than any other work of his time, that highlights the timeless and tenuous relationship between law and political forgiveness, and it is this relationship that is representative of Beccaria’s deepest anxieties about political forgiveness. Beccaria’s short treatise that bridged penal reform and political theory garnered great support from seventeenth century thinkers and politicians. Blackstone and Thomas Jefferson were heavily influenced by Beccaria’s thought. 7 While championed by some, at the same time Beccaria’s thought became the target of others, the likes of Kant and Hegel. 8 Such was the nature of On Crimes that its reception spanned continental and republican thinkers alike. And yet, while I write this we can still ask, alongside Beccaria biographer Marcello Maestro, why it seems Beccaria has lost the intellectual popularity he gained during his life? 9 Indeed, we even find John Bessler explaining that he chose to title his book The Birth of American Law: an Italian Philosopher and the American Revolution, because he did not believe anyone would read it if Beccaria’s name was in the title. 10 It is said that Beccaria’s influence can be found in the writings of the founding fathers of the American revolution. 11 On the other side of the Atlantic Beccaria found a serious intellectual admirer in Jeremy Bentham. It is noteworthy in the current context to pg.188 POLITICAL FORGIVENESS remark that Bentham, like Beccaria had a distain for the pardon power, even going so far as to refer to it cynically as a “magic wand.”12 However, Beccaria’s other Anglo-American admirers did not share in this critical appraisal of the pardon power, and it is interesting that they would one day be in the position to possess this power for themselves. If there has ever been something of a Beccaria renaissance this can be attributed to Michel Foucault’s work Discipline and Punish, a work that draws upon Beccaria’s thought, advocacy, and writing. What must at once be appreciated is that regardless of whether one lauds On Crimes for its argument for amending the power to punish and its strong condemnation of torture and capital punishment, or for its apparent advocacy for the rule of law, what is inseparable from either of these ends is their direct proximity to sovereign power. However, this proximity is often and uncritically obscured because of interpretations of Beccaria that dress him, and his ideas in humanitarian garb. But this interpretation is only one amongst many. This fact was certainly not lost on Foucault. It is in this context that Beccaria interests us. The plan for this chapter is to parse the paradoxical inclusion of political forgiveness in Beccaria’s legal and political thought. For all of the certainty that Beccaria insists on as being necessary for a good code of laws, he is unable in the end to conclusively eradicate particular acts of pardon and general applications of amnesty from his legal treatise and thought. Furthermore, had Beccaria been the humanitarian he has been purported to be, one would expect pardon to be more forcefully endorsed rather than begrudgingly included. In order to parse this paradox, I will turn to the dominant literature on Beccaria. I do so to argue, in the first place, that a reception of Beccaria by modern thinkers exists that suffers from an analytic blind spot (most likely caused by the momentous nature of Beccaria’s demands for reform). This analytic blind spot results in attributing to Beccaria a de-politicized model of the social contract, an absolutist pg.189 POLITICAL FORGIVENESS view of the rule of law in Beccaria’s treatise, and finally an interpretation of Beccaria that is at best ambiguous as to whether he is a utilitarian or retributive in the end. In each instance, I seek to make my own intervention into the modern thinker’s reception of Beccaria. Then I turn to a more critical reception of Beccaria, spearheaded by Bernard Harcourt and Foucault’s genealogy in Discipline and Punish that relies so heavily on Beccaria’s thought. This second strand of modern Beccaria commentary will draw the totality of Beccaria’s thought and overall political project into relief by virtue of its appreciation of the complete Beccaria. My contention is that the secondary literature exposes Beccaria’s project as well intentioned “unfinished advocacy,” and that while he may have dealt a blow to excesses of the law in the forms of torture and inhumanity, the specters of the return of these forms of extreme degradation will remain as a watermark of sovereignty. In essence, Beccaria did not go far enough in taking a chunk out of sovereignty. And, in fact, his reputation as an enlightenment humanist falsely created the impression that it was his intent to alter the structural integrity of the sovereign / subject relationship. Indeed, as Maestro remarks, “as we approach the end of this century, we know that the reality is different and the civilized and gentle society for which Beccaria worked is not yet here.”13 It should be of little surprise that I believe the presence of political forgiveness in Beccaria’s work functions as an indictment of his thought. Finally, I turn to my own reception of Beccaria’s text to tackle the paradox of his inability to eradicate particular pardons and general amnesties from a legal code that he otherwise argues provides for a certainty of punishment. The Beccaria of On Crimes: In his introduction to the Cambridge edition of On Crimes, Richard Bellamy remarks that pg.190 POLITICAL FORGIVENESS compared with other thinkers of his time, there is relatively little in the way of secondary literature on Beccaria. Consider for instance that at the time Beccaria penned On Crimes, others the likes of Rousseau, Kant, and Voltaire were also writing. It is interesting that the later thinkers have been remembered so well, and so frequently commented on. This failure to remember Beccaria, or perhaps remember all of Beccaria, in the canon is particularly striking given the aforementioned textual evidence of Beccaria’s impact on thinkers and politicians the likes of Jefferson and Catherine the Great. 14 What is also clear from what secondary literature exists is that there is little in the way of interpretive differentiation, or schools of reading that separates these works. Rather, what appears is one body of literature that selectively focuses on the Beccaria of On Crimes, and a small separate but related body of literature that views On Crimes in light of the totality of the individual who was Beccaria, essentially a text that was an element of his overall intellectual thought. The modern, and more limited, reception of the Beccaria of On Crimes focuses on three thematic areas of that work. These areas of focus regard the manner in which Beccaria’s political thought resulted in his arguments for penal reform. In the writing of those that have made a project of thinking through and reconstructing On Crimes, what we find is a focus on the presence of the social contract, the attribution to Beccaria of the founding of rule of law, and finally contestation over whether utilitarian or retributive principles had a more profound impact on him. I will argue that these areas of analysis are insufficient for understanding Beccaria’s political project. As I argued above, these foci in the end all suffer from an analytic blind spot. Hiding within this blind spot we find sovereignty which relates to the inspiration of Beccaria’s entire project, mercy. One cannot begin to appreciate the project of On Crimes unless one attends to the fact that it is built on a foundation of political forgiveness in the form of mercy. But as indicated above, Beccaria’s insertion of mercy into a code of laws is pg.191 POLITICAL FORGIVENESS curious and attenuated. It extends to the most cruel and unusual forms of punishment and torture and to capital punishment as well. However, his was the position that all crimes must be punished in order to maintain the social fabric, and it was the certainty of punishment that would accomplish this. As a result, one can see in Beccaria an apparent lack of mercy as well, for in his thought there would be no quarter of mercy for those who transgress the law. This apparent duality with regards to mercy is made explicit in his final chapter of On Crimes. There Beccaria excoriates the role of forgiveness in politics, indicting pardon as an ultimate political evil. Nevertheless, to the lawgiver he attributes the virtue of forgiveness in the last instance. On the surface one would be tempted to level that Beccaria was inconsistent on this point. However, as I will argue, Beccaria’s problem with mercy is a timeless problem. I will come to call this ‘problem’ the “Beccaria Bind.” It just so happens that his subject matter, that of the reformation of methods of punishment, brought to the fore more abruptly than before the trouble that political forgiveness poses for western political thought. Beccaria’s social contract: There is something of a tradition of parsing different thinkers’ models of the social contract for nuanced differences. The reason for this is to discover how political subjects emerge in different thinkers’ political societies with greater or lesser degrees of political and moral autonomy. Although there is far less secondary literature on Beccaria, the reception of his social contract in On Crimes is no different than the reception of the work of Hobbes, Locke or other preeminent thinkers of the canon. The result is the quest to decipher what kinds of political subjects emerge from Beccaria’s contract, the quality of the sovereign that is conjured, and pg.192 POLITICAL FORGIVENESS finally the kind of legal code that results. On this point, Jay Bernstein has an interesting take. Regarding Beccaria’s contract, he writes, “for Beccaria the social contract refers to neither an empirical nor a hypothetical history; rather, the social contract is to be understood as a reflective mechanism for interpreting the meaning of laws.” 15 This, of course, is important in two different respects. In the first place, the heuristic tool of the social contract is typically deployed to portray a kind of hypothetical pre-political history. In the latter case, if it is a reflective mechanism regarding the meaning of the laws, it is also a mechanism for gauging the sovereignty which the reflectors possess and the sovereignty that is to come. If Bernstein is correct and the reflective mechanism role of Beccaria’s social contract theory is accurate, it means that the contract is retrospective rather than prescriptive; that law and sovereignty have already been instantiated and that it is more accurate to speak of the contract as an agreement to augment or reform the political structures already in place. The question of course is if Bernstein is correct, for when one reads On Crimes the presence of Hobbes in Beccaria’s first chapter is unmistakable, and therefore the idea of a prescriptive contract obtains. Although Beccaria was his own thinker, his debt to Hobbes, at least in the early pages of On Crimes is clear. Nevertheless, some scholars have failed to recognize the implications of this debt, namely, that Beccaria was essentially Hobbesian in a specific sense. I mean that he was a social contractarian, whose contractarian construct resulted in a composite political power, a sovereign. For this reason, it is truly shocking to read in the Beccaria scholarship that he rejected the model of contractarian authorization that Hobbes espoused, as Arthur Shuster attempts to argue.16 Even if we were to entertain the notion for a moment that Shuster is correct, and that Beccaria does depart from Hobbes in his relation to contractarian authorization, this ‘fact’ still would not indict Beccaria as an anti-Hobbesian. For what makes Hobbes Hobbes is the composite political entity that is the sovereign, who rules with pg.193 POLITICAL FORGIVENESS the sword. Even without capital punishment and torture, Beccaria’s sovereign rules with that same sword. And it was Beccaria’s political project throughout his life to ensure social order through the application of sovereign power. This is Bernard Harcourt’s essential argument, that Beccaria, because of the popularity of On Crimes has fallen prey to what he calls, “selective readings,” and “appropriations.”17 To be sure, this is the fate of all figures in the history of political thought, which is why we need to be attentive to the intentions of those who choose to deploy Beccaria. This being the case, Bernstein’s point regarding the reflective status of the contract is called into question, given that Hobbes’s contract can never be mistaken for anything but original and prescriptive. Perhaps this is the reason that although Bernstein argues the point that Beccaria’s contract is different in this respect, other modern thinkers that approach Beccaria’s contract treat it as if it were the original contract and not an ameliorative tool. The consequence of this, Bernstein seems to suggest, is the possibility of altering the quality of sovereignty along with the meaning of the laws. But this alteration appears to come from reform rather than from resistance. However, the possibility of this change is left in question both with respect to the tool of a reflective, retrospective contract, or the work of a reformer like Beccaria. While the above intervention into the interpretation of Beccaria’s contract is certainly interesting and worth the reflection spent on it, nevertheless, it goes without saying that most modern thinkers see Beccaria’s model of the social contract as, at the very least, being somewhat influenced by a Hobbesian model. This means, of course, a model that rests on a contract that is original in nature. Some, however, attribute the influence on Beccaria’s contract to his reading of Rousseau. This is an important distinction, for the reason that the Hobbesian state of nature is qualitatively different than Rousseau’s. While Hobbes’s state of nature is always already a state pg.194 POLITICAL FORGIVENESS of war, Rousseau’s is not. As we know, in Rousseau’s political theory it is the birth of inequality that ushers in the state of war between individuals. As we will see, these facts will definitely impact the ways in which the likes of Bellamy, Harcourt and Bernstein think about Beccaria’s state of nature, and therefore social contract, the quality of sovereignty they derive from that contract and finally, the law created owing to the institution of political society. One could imagine the reaction of a reader of On Crimes when realizing it too harnessed the narrative arc of the flight from the state of nature via a social contract; as with his contemporaries, so too with Beccaria! Yet, as there are gradations and nuances differentiating the social contract theories of the likes of his contemporaries such as Hobbes and Locke, so too does Beccaria’s differ slightly. That these gradations exist is to be expected. What interests us here is how others have interpreted these gradations, and the consequences that are derived by them. For instance, Harcourt attempts to articulate the fact that although Beccaria believed Hobbes to be correct about the basic conditions of individuals in the state of nature, that their lives were precarious, most likely short, and of course brutish, Beccaria nevertheless disagreed about the quantity of liberty relinquished to the sovereign.18 Harcourt’s injunction is that the political subject emerging from the state of nature that Beccaria theorizes does so with more liberty and more freedom.19 This is because, as Harcourt argues, Beccaria’s contractors sacrifice only a part of their freedom in order to obtain the peace and security that they desire. 20 To be fair, a freer political subject with more liberty is preferable to one who is more constrained, and perhaps it is the case that Beccaria’s subjects emerge from the state of nature with more liberty and freedom. The question which Harcourt addresses elsewhere in his work regards what precisely happens to those subjects who are more free and at more liberty in the aftermath of the contract. And--this is precisely the point-- it is Beccaria’s position, as Harcourt understands it, to ensure that those pg.195 POLITICAL FORGIVENESS freedoms and liberties are disciplined and codified in a system of law with clear and distinct punishments. There are times when Harcourt appears to put the horse before the cart as it were, positioning discipline as primary and punishment and penal law as secondary, which has something of an obfuscatory effect. Essentially his attention is drawn away from the institution that the contractors erect over and above them, which is sovereignty. This is why Harcourt makes the argument that the liberty retained by the political subjects in On Crimes is that which “would serve to limit the exercise of sovereign power.”21 To a student of political theory this argument makes very little sense. Modern political history has illustrated well that even in circumstances where political subjects enjoy tremendous liberty and political freedom, these factors do not serve as a brake on, or limit to, sovereign power. One simply does not follow from the other. If we were to grant Harcourt his argument for the moment and entertain that there are some limits on sovereign power, we might then ask, what are these limits, and what forms of breaches to these limits will political subjects withstand? Furthermore, what keeps political subjects from abrogating the initial contract? As to the latter of these questions, Harcourt explains that for Beccaria it is punishment “that keeps individuals from trying to seize back the small part of freedom that they relinquish.”22 So, the mechanism that Beccaria employs to render his subjects more obedient is really no different than that of Hobbes: fear. As to the former question, the limit seems clear enough, as not only Harcourt, but more so Michel Foucault delineates this with great acumen. Not only would there be “limitations on the right to punish – justified only to the extent necessary to produce social security and order,” there are other important considerations including the need to ensure that punishments are proportional to the crime.23 Finally, punishments must not commit outrages upon the body, use torture, or deal in inhuman and degrading actions. pg.196 POLITICAL FORGIVENESS Bernstein follows a similar path when he sets out to interrogate the flight from the state of nature that Beccaria narrates in the pages of On Crimes. Here, though, there is a little more ambiguity, given Bernstein’s reference to Beccaria’s “Rousseau-inspired social contract theory.”24 Later Bernstein attributes to Beccaria a “thin version of Hobbes’s hypothetical state of nature.”25 It is unclear what makes Beccaria’s state of nature thin compared to Hobbes’s, if one considers the evidence above that positions Beccaria as something of a Hobbesian acolyte in this respect. It is also unclear why his argument vacillates between attributing Beccaria’s influence to Hobbes or Rousseau. Both include the element of war and fear that make escape from the state of nature primary. On a closer look, Bernstein’s argument seems to regard not the thinness of Beccaria’s state of nature, but how Beccaria changes the escape from that condition. He wants to argue that Beccaria’s contract “intends to strip from the notion of law everything but its core function: to prohibit certain courses of action.”26 Indeed, that is certainly the intention of Beccaria, the more pressing question is whether or not he achieves that intention! What seems clear is that when Bellamy or Bernstein and others make explicit reference to the construction of Beccaria’s social contract versus the familiar Hobbesian construction, they do so with no small amount of normative injunction. That there is so much hand wringing and intellectual consternation over how indebted Beccaria was to the infamous Hobbes should signal to the attentive reader the primary concern of these scholars. They want to sanctify Beccaria as a humanitarian who opposed capital punishment and torture, and insulate him from the critique of being another Hobbesian whose sovereign would also rule with the sword. The injunction that I understand them to be making is that Beccaria’s social contract theory, although heavily indebted to its Hobbesian counterpart, is explicitly gentler and reserves more liberty for the political subject, and that therefore it is a preferable, even better, construct than its Hobbesian counterpart. pg.197 POLITICAL FORGIVENESS The extension of this logic is that not only would Beccaria’s body politic and penal code be better, but so too would Beccaria’s sovereign be a kinder and gentler sovereign. And in fact, hidden in this logic of punishment and particular reading of Beccaria’s social contract, one finds the shaky ground that the rule of law rests upon and the unflinching nature of sovereignty. Let us return to Foucault and the question of whether or not the social contract in Beccaria’s On Crimes truly represents a limit on sovereign power, and thus more liberty for subjects. I argue alongside Foucault, that the social contract in On Crimes represents less of a limitation on sovereign power’s right to punish and more of an augmentation and institutionalization of that power. In point of fact, as Foucault makes clear, by augmenting, institutionalizing, and regulating the right to punish, the practical result was a consolidation and centralization of power at the heights of sovereignty. This is because as a result of the apparent ‘limiting’ process, the authority to mete out punishment by local magistrates, judges, and other legal functionaries was annulled, with the sole discretion for punishment vested in a penal code regulated by the sovereign. Therefore, as Foucault notes, the idea was “not to punish less, but to punish better.”27 To be sure, to avoid torture and inhumane punishment is a beneficial outcome of this process of ‘limiting.’ However, Foucault’s critical point is that sovereignty remains; it just seeks control via what Foucault would call a new logic of power. Furthermore, and perhaps just as important, Foucault points out that what Beccaria and his ilk were opposed to “was certainly the excessive nature of the punishments; but an excess that was bound up with an irregularity even more than with an abuse of the power to punish.”28 One factor that compounded this irregularity, perhaps what we might call the ultimate irregularity, was (and remains to this day) the possibility of going unpunished…the possibility of pardon. For Foucault’s genealogy of the birth of modern disciplinary regimes to be cogent, for the pg.198 POLITICAL FORGIVENESS new form of penalty that he sees Beccaria and his contemporaries giving birth to, what was required was “a new economy of the power to punish, to assure its better distribution, so that it should be neither too concentrated at certain privileged points, nor too divided between opposing authorities; so that it should be distributed in homogenous circuits capable of operating everywhere, in a continuous way, down to the finest grain of the social body.” 29 This would assure what Foucault called the rule of perfect certainty. But the lie of this rule of perfect certainty becomes evident when we consider the alternate economy of power that still remains in the legal code – the power to forgive. That is why the rule of perfect certainty necessitates the erasure of pardon from the penal code, for where pardons exist, perfect certainty does not. Hence, we find Foucault arguing that “the monarch must renounce his right of pardon so that the force that is present in the idea of punishment is not attenuated by the hope of intervention.” 30 Foucault is of course conducting a genealogy, and this critique of the right of pardon is perfectly in line with what Beccaria counsels in On Crimes. But it is curious that Foucault was writing at a time when he was fully aware that the right of pardon was not then, nor had it ever been, laid aside by the sovereigns that coveted it as their own. To be sure Foucault was correct, a new economy of the power to punish certainly did arrive, but there was also now a new economy of the power to forgive. No longer could the criminal be arbitrarily forgiven for his crimes by this or that judge, no longer could the criminal rely on the non-application of the law, or a particularly merciful magistrate. No, because in the legal reform that Beccaria championed (according to Foucault), the power to pardon, to forgive, became ever more concentrated in the organs of sovereignty. Foucault goes on to further echo Beccaria’s own argument against pardons; “Nothing so weakens the machinery of the law than the hope of going un-punished; how could one establish in the minds of the public a strict link between the offence and the pg.199 POLITICAL FORGIVENESS penality if it were affected by a certain coefficient of improbability?” 31 Foucault could be talking about any improbability here, but he is not, he is talking about the specific improbability of pardon. The crux of this glaring contradiction in the writing of both Beccaria and his interpreters is what I turn to in interrogating the different logics of punishment present in Beccaria’s thought. But first I turn to questioning how, in light of the continued presence of sovereign prerogative in the form of pardon, can those who have written about Beccaria argue for his significance in developing a philosophy of the rule of law? Political sacrifice: To be sure, the above considerations are indispensable to the project of interpreting Beccaria’s thought. However, with such an intense focus on who inspired Beccaria’s thought, there is something lost in the analysis of Beccaria’s social contract. This something lost is what I propose to find by engaging in a more granular approach to a reading of Beccaria’s text. I propose that I have found an understanding of Beccaria that relies not only on his indebtedness to other intellectuals that predated him, but also on his own appraisal of the psychology of the human animal. In sum, all of this led Beccaria to understand the social contract as an essentially sacrificial political act. Beccaria’s legal thought and political project engaged his appraisal of the motives behind the actions of political subjects. Beccaria pondered, if a political subject who had the opportunity to engage in offenses against the law would do so, if they felt their action might be forgiven? Beccaria held firmly that the political subjects that he had in mind would absolutely be predisposed to seize on the opportunity to commit an offense against the law if there was the pg.200 POLITICAL FORGIVENESS potential of either going un-punished or having that crime forgiven. In his inaugural lecture at the Palatine School in Milan, Beccaria informs his audience, we must never lose sight of the universal characteristics of human nature, which is something better regulated by obstacles than by prohibitions. It is characteristic of human beings to throw themselves blindly into their present and immediate concerns, neglecting the future; they love variety and change, albeit only within familiar surroundings, which exercise a stronger influence than any reasoning; they wish to do much, but with the least possible effort; they are stimulated and regulated by certainty, as much of good as of evil, and are disheartened by arbitrariness and uncertainty.32 This quote embodies much of what Beccaria theorizes in On Crimes. His legal and political project are in part a result of this appraisal of human nature, and the seeds of his condemnation of pardon and by extension political forgiveness are also explicitly found here in. In short, humans are desirous, passionate, and driven by sentiment. Special focus should be paid to Beccaria’s insistence in the above quote that law is best maintained via obstacles rather than hard prohibitions. In short, if you prohibit something people will do it anyway and then ask forgiveness for it. This logic can be traced to, in fact is at the heart of, how Beccaria imagines his own version of the social contract. Beccaria believes that nobody “makes a gift of part of their freedom with the common good in mind, that kind of fantasy only exists in novels. If it were possible, each one of us would wish that the contracts which bind others did not bind us. Every man makes himself the center of the world’s affairs.” 33 Prohibition merely exacerbates the individual’s displeasure at having to have sacrificed a part of one’s freedom to enjoy security in pg.201 POLITICAL FORGIVENESS political society. The exacerbation of this displeasure when faced with prohibitions on their agency then ignites in the political subject an air of licentiousness. What Beccaria ultimately fears is in the presence of prohibitions: rather than contest the prohibition, the political subject will transgress the prohibition and break the law. In short, Beccaria believes that prohibition invites anarchy and creates situations in which political subjects might believe it is better to ask for, or hope for, forgiveness than to ask permission. This is a point that we can trace all the way back to Bodin’s thought in the Six Books of the Commonwealth. However, Bodin’s point is slightly different than Beccaria’s. He argues that laws are prohibitions, not permission. This augmentation of the purpose of punishment, from prohibition to obstacle, is a maneuver that we can potentially trace back to the nature of Beccaria’s social contract theory. If it is the case that Beccaria’s contract does not represent some kind of hypothetical pre-history or empirical account, and instead is a rhetorical device as Bernstein suggests, then we might try and understand this evolution as nested inside Beccaria’s own historical context. This historical context is a moment in time when the kind of absolute sovereignty that Bodin developed was under attack by thinkers like Beccaria, who sought to consider whether or not sovereignty might be reinterpreted as an institution to better regulate the social body instead of dominating it. Because of this it is more appropriate to discuss not the origins of political society, but the re-articulation of those origins. Remember, Beccaria is approaching his work from the perspective of an agent of reformation of a set of historical political circumstances which is already in motion. Much of Beccaria’s most consequential theorizing of this re-articulation of political society, and instantiation of a legal code, arrive in the first two short but extremely dense chapters of On Crimes. In these chapters, it can be clearly seen how Beccaria’s thought regarding how political society is generated and how, thereafter, a system of law and punishment pg.202 POLITICAL FORGIVENESS is upheld that is driven by his appraisal of human nature, outlined above. As we have already seen, much of Beccaria’s thought regarding the necessity for political society and his own version of the social contract is heavily influenced by Hobbes. However, I find evidence of multiple other sources of justification for the necessity to coalesce around a system of law and punishment in Beccaria’s thought. Specifically, there is a strand of Beccaria’s thought that is reminiscent of John Locke’s argument for the necessity of political society. Like Locke, Beccaria bases his political project on the necessity of establishing an impartial arbiter of justice, and by extension, an impartial system of punishments freed from arbitrary edicts. There are of course important differences. It might be argued that in Locke a society is found that enters into an associational contract between individuals to establish a political society and a political sovereign. I argue that Beccaria’s contract is less associational, it is in essence a sacrificial contract. Beccaria’s reference to pre-political society, which must be understood in order to grasp his larger project of penal reformation (as well as his critique of pardon), is akin to a Hobbesian state of nature.34 It is a world of complete freedom that is “rendered useless by the uncertainty of retaining it.”35 The reference to the uncertainty of retaining one’s freedom is Beccaria’s thinly veiled nod to the possibility of an untimely death at the hands of another. Beccaria, unlike other political thinkers that preceded him and would follow him, does not give an account of what makes the state of nature a qualitatively warlike one. However, one can plausibly argue that for Beccaria the state of nature is always warlike because of his appraisal of human nature. We can make such a claim, given his assertion that humans are naturally sentiment driven beings and further, that in the pre-political state we are described by Beccaria as monadic individuals. This later fact gives rise to the assumption that humans, in Beccaria’s thought, are not naturally pg.203 POLITICAL FORGIVENESS associational beings. As a result, and in order to better enjoy a modicum of freedom, Beccaria has his pre-political subjects “sacrifice a part of that freedom in order to enjoy what remains in security and calm.”36 Here we should pause and consider the sacrificial nature of the original contract. In the first place the sacrifice is naturally a self-sacrifice, a limitation that one places on the self because of some good they hope to achieve by doing so. Any good that accrues to one’s neighbor would be incidental to the act of sacrifice. This further comports with Beccaria’s assessment of the human condition. That one hopes to achieve some good through sacrifice by no means takes away the fact that if one could refrain from the sacrificial act, one would. By virtue of this sacrificial act a sovereign is established and political society inaugurated. It is also worth noting that as in the Hobbesian variant, Beccaria’s reference to pre-political subjects finds them as monadic and atomized individuals. This is salient for Beccaria and an understanding of his thought, because it means that should political society fail or falter, there is no pre-political society such as we find in Locke’s account. Therefore, it makes sense that we find Beccaria attempting to augment and re-articulate established political structures and relationships rather than start afresh. Beccaria asserts here an important double movement; not only must there be a sovereign but there must also be “tangible motives to prevent the despotic spirit of every man from resubmerging society’s laws into the ancient chaos.”37 In one word, punishment, that is what is meant by Beccaria’s “tangible motives.” The origin of punishment is representative of two facts. The first is that the origin of punishment is sacrificial, the content of which is an element of unconstrained individual freedom. This is a far cry from Locke, who explains that political society is established via an associational recognition that men cannot be fair arbiters of justice in matters that concern themselves, thus necessitating political society. Beccaria’s freedom, in the form of abstract individual freedom, is sacrificed to sovereignty and to pg.204 POLITICAL FORGIVENESS punishment, the highest political power and the legal system attached to it. At least in Locke, law and by extension punishment are derived from a conscious associational maneuver; his prepolitical subjects understand that the contract will result in punishment. Beccaria’s on the other hand understand that they are making a sacrifice that will render their lives more livable, but it is not clear whether they understand what their sacrifice will result in is a penal code complete with punishments for transgressions. Punishments do not factor into the reasoning of Beccaria’s prepolitical subjects’ sacrificial act. Perhaps the most explicit recognition of this differentiation is that Beccaria’s pre-political subjects do not agree to alienate their right to punish and judge as Locke’s do. They merely agree to alienate, sacrifice, a portion of their abstract freedom. Second, the origin of punishment is simultaneously the origin of sovereignty. In the first chapter of On Crimes sovereignty is sutured to punishment. This is of utmost importance, because in the final chapter an additional suture is performed. In the final chapter of On Crimes, sovereignty is sutured to forgiveness. We might question these two sutures, for while it is clear that they are crucial to sovereignty for Beccaria, he also aims to sanction the utilization of both. Rule of law: Nothing of the above automatically eliminates the possibility that the sovereign as established via social contract theorization would be prohibited from abrogating the rule of law. It may well be, as a variety of scholars argue, that Beccaria’s social contract theory and political thought yield a system of law and practices of punishment that hold sovereignty ultimately accountable to the law, however unlikely that is. For it is really the latter, and not the former, that is really the crux of the question of whether something like the rule of law can obtain. Yet, as I pg.205 POLITICAL FORGIVENESS will show, certain interpreters of Beccaria would lead us to believe the opposite, that it is the former, the system of law and practices of punishment that are constitutive of rule of law. So, let us allow the literature to take us where it wants to go, to read in it what our erstwhile interlocutors claim was Beccaria’s argument for a rule of law. Then let us turn to Beccaria (with some assistance from Foucault) and see what he actually said regarding the ‘primacy’ of a rule of law, for what we will find is that in the final instance the rule of law is only honored in the breach. For Beccaria, this breach is the subject of our inquiry into political forgiveness. The scholars of the secondary literature, with no exceptions, base their cases for the primacy of the rule of law in Beccaria’s On Crimes on the effect that the text had in reigning in a new age of punishment freed from the calamity of torture, the impartial application of the law to all segments of society alike, the elimination of the arbitrary nature of the interpretation of law by judges and magistrates, and finally for its advocacy towards abolishing capital punishment. The argument that these scholars cling to is that if capital punishment were curtailed and torture eliminated, then something like a prerequisite for the rule of law had been met. To be fair, many countries in the aftermath of Beccaria’s On Crimes did adopt more lenient and codified systems of law. Hostettler argues in support of this apparent Beccaria effect that, “one of the first reforms of the Constituent Assembly in 1789 was the preparation of a criminal code based upon the work of Beccaria, with more than one hundred offenses ceasing to incur the death penalty.” 38 The Beccaria effect was also felt in other countries including England and post-revolutionary America.39 The question arises: Do Hostettler and other scholars claim that the only measure of adherence to the rule of law, in their political imagination, is the abolition of excesses of punishment? Bernstein goes as far as to argue that the, “substantive rule of law is the determinate negation of the law of sovereign torture (italics in the original).”40 From this assertion Bernstein pg.206 POLITICAL FORGIVENESS goes on to state what he calls his Beccaria thesis, which is: “the very idea that the rule of law is constituted by the absolute incommensurability between the force of law and the kind of force represented by state violence to the human body.”41 According to Bernstein, Beccaria not only emphasized “the need for the rule of law,” but also “invented the modern rule of law.” 42 To be fair, I do not understand Beccaria to have done anything of the sort. There is nary a spot in his treatise that one can find to support Bernstein’s claim. Beccaria’s primary concern was obedience to the law on the part of political subjects. This is the reason, and the only one, that Beccaria held for wanting to abolish torture and capital punishment and institute a code of law where certainty of punishment was absolute. Short of this, there is no evidence in his treatise that reigning in state power and making it submit to law was part of his project. Arguing for reformation of the penal code, and an abandonment of arbitrary laws and arguing that the institutions of sovereignty be held accountable to that same law, are two different projects. For my part I am certain that the latter was not part of Beccaria’s project. His paradoxical inclusion of pardon in the last chapter of On Crimes is evidence of his relative agnosticism to rule of law considerations, if his ultimate desire to expunge torture and capital punishment were met. As we shall see, Beccaria was not happy to include pardon in his consideration, but he does, and does so knowing full well that pardon as a form of political forgiveness is nothing short of a law that contravenes law, a direct affront to the rule of law. Apart from Bernstein’s attempt to read Beccaria as a scholar of the rule of law, he also seeks to attribute to the notion of law in Beccaria a very liberal and de-politicized quality. He does so by arguing that to Beccaria, “laws are not commands of any kind but agreements.” 43 If this is the case then we first need to ask, to whom is the agreement germane? And in what relation to this agreement do those whose responsibility it is for administering the laws stand? pg.207 POLITICAL FORGIVENESS Finally, we should ask whether or not obedience to the law is a question of agreement. As I argued above, the creation of the law is less a result of an agreement than it is a question of sacrifice, once the sacrifice is made obedience to law for Beccaria is a matter of the disciplinary action of the law. This is after all the way that Beccaria describes it. So, while it may be true that for Beccaria laws are not commands, I would argue that they also do not have the kind of liberal mutuality that Bernstein attempts to lend them by describing them as agreements. To be sure Beccaria does claim in his text that pre-political subjects ‘agree’ to sacrifice part of their freedom, but as I will argue below, the context and the sacrificial nature of the alienation of their freedom gives lie to the congenial nature of ‘agreement’ Bernstein portrays. Bernstein goes on to argue that because Beccaria’s system of lenient laws affords his political subjects greater freedom compared with other thinkers of social contract tradition, his laws are received with “trust, confidence, and a sense of security as replacements for the awe and fear inspired by sovereign authority.”44 But once again, Beccaria’s subjects are just as constrained by law as any other heuristic political subject emerging from the state of nature, the only difference being that they are ideally insulated from bodily harm and death as a result of breaches of the law (and here only should Bernstein’s shaky argument regarding the rule of law obtain). Once again, regardless of how laws are received by political subjects, even the gentlest form of sovereign authority is none the less authority that rules with the sword. There is an odd moment of reasoning in which Bernstein appears to confirm exactly this. He argues that Beccaria believed that “no one be outside the law, or above the law,” and that if this were allowed to be the case it would be tantamount to the creation of small sovereign states…precisely. 45 This confirms the position that sovereignty in and of itself is both above and outside the law, for this is exactly the problem that he argues Beccaria is attempting to avoid. Bernstein’s model of the rule of law that he reads in pg.208 POLITICAL FORGIVENESS Beccaria is a legal system that is defined by its “generality, prospecticity, clarity, and neutrality.”46 My argument is that this ignores the sovereign prerogative, a prerogative that remains in Beccaria enabling “state violence as exemplified by arbitrary laws, arbitrarily applied, backed by judicial and penal torture.”47 To those that would argue that prerogative is not part of Beccaria’s project, I point once again to the final chapter of On Crimes wherein prerogative obtains in the form of political forgiveness. In the end, the entirety of the argument rests on the inversion of the Hobbesian state of nature and the desire to make “even the sovereign subject to the rule of law – which, after all, is the driving idea behind the rule of law.” 48 That Beccaria was a great thinker who desired an end to torture and capital punishment does not mean he simultaneously desired inverting the Hobbesian state of nature. The prerogative of the sovereign was not eliminated in theory, nor was it in practice. Ultimately this is a failure that Bernstein is also forced to admit. His claim is that the rule of law that he reads in Beccaria has been today forgotten, that we have forgotten Beccaria and as a result the utilization of torture has once again become a tool of state craft. The fact is, it matters little if we have forgotten Beccaria, the fact is, prerogative was never dispensed with by Beccaria or other reformers. Centuries of pardons and other acts of political forgiveness should have illustrated that even a limited case like a pardon signals the fragility and fantasy of the rule of law. Inconsequential logic: That Beccaria made a study of punishment in On Crimes is certain. But under what logic of punishment did Beccaria labor? This is a question that scholars such as Bellamy and Bernstein argue one needs to apprehend in order to appreciate Beccaria’s project. Did Beccaria labor under pg.209 POLITICAL FORGIVENESS a proto-utilitarian or reformist retributive logic of punishment? What are these logics of punishment? And finally, does it ultimately make a difference? For the utilitarian, “punishment is forward-looking. Its basic purpose is the reduction of crimes, and hence pain, in the future. From this perspective, past wrongs cannot be undone.”49 This logic of punishment suggests that primacy is given to deterrence. Taken to the extreme end of the logic, the utilitarian approach to punishment and crime reduction could mean meting out a punishment to an individual who is not guilty of a given crime, to achieve the deterrent effect. It is not difficult to see why, for the utilitarian, all possibilities of political forgiveness from amnesty to pardon must be excluded from the realm of possibility. It is both a logical and prudential necessity. To ensure the certainty of pain in the future, it is necessary to remove all hope that a crime committed may go unpunished, or that the punishment may be waived. Bellamy and Bernstein therefore argue that Beccaria was in this regard a proto-utilitarian, which is what led him to argue for the certainty of punishment. This perspective also led him to be highly critical of any form of impunity in the law, from average non-application of laws to the chief ill, pardon. On a deeper level, we might further interrogate this exclusion of the possibility of forgiveness that utilitarianism logics of punishment necessitate. The problem, left un-confronted by Bellamy and Bernstein, and least of all Beccaria, is that while this utilitarian logic might effectively restrain criminality amongst the public, it definitely restrains the sovereign prerogative power. To better understand this, we can turn to their own interpretation of Beccaria’s position on retribution and utilitarianism, after which it should become clear that Bellamy and Bernstein’s reliance on unpacking Beccaria’s position with regards to ‘logics of punishment’ is insufficient for understanding his fraught relationship with political forgiveness and sovereign power. Turning once again to Beccaria’s notion of the social contract, we can begin to parse pg.210 POLITICAL FORGIVENESS Beccaria’s relationship to retributive and/or utilitarian logics of punishment. This is where Bellamy begins arguing that if there was a strong interpretive difference, other than the source of influence for Beccaria’s social contract, Bellamy thinks that one area of intervention would be what he proposes to call ‘the Beccaria problem.’ Bellamy explains that ‘the Beccaria problem’ arises from the tension in his work caused by Beccaria’s marriage of a contractarian model of the formation of a body politic and a utilitarian approach to penal reform. In fact, what little secondary literature there is makes note of this tension in each instance. For example, Bernstein addresses it in his work Torture and Dignity. Here we find Bernstein calling this tension between social contract theory and utilitarian philosophy “the most troubling philosophical dualisms of the time.” Bernstein goes on to argue that Beccaria’s “legal theory makes deterrence legislatively primary while making retributive considerations essential to the application of the law.” In other words, the contractarian model necessitates a retributive approach to punishment, without which the contract would fall apart, because without the threat of a punishment attendant to a crime there would be no coercive mechanism assuring adherence to law--no law, no social contract. Much to his argument’s detriment, it remains difficult to pin down whether Bernstein understands Beccaria as more of a utilitarian when it comes to punishment or remains in the retributive camp. Evidence for this is found in his assertion that, “[t]he utilitarianism that Beccaria invents in On Crimes is wholly unlike the utilitarianism that Bentham developed on the basis of Beccaria’s model.”50 This might be a harbinger of the way that utilitarians in the future would approach issues like political forgiveness, but it also might be a clue as to why Beccaria did not fully bar acts of political forgiveness from consideration in his treatise. The tension and undecidability as to which logic Beccaria is more indebted to is abundantly clear by the way in which Bernstein grapples with the issue. Hostettler also makes note of the fact that Beccaria pg.211 POLITICAL FORGIVENESS employs both a contractarian and a utilitarian rationality. However, he does not struggle in the same manner with the undecidability present between the two opposed logics of punishment. For Hostettler, it appears, that Beccaria is through and through a utilitarian. He claims that “it was precisely on the grounds of utility that Beccaria asserted that the prevention of crime was more important than its punishment.” He states further that the “primary purpose” of punishment “was to benefit society, not to torment offenders.” 51 This definitely misses the entire weight of what Beccaria was attempting to accomplish. We find here an argumentative fallacy. Just because a system of justice includes a strong element of retribution does not necessarily mean that wrongdoers would be tormented for their crimes. Ultimately, Hostettler does not treat this issue with the nuance it deserves. The result is a study of Beccaria’s On Crimes that is not as probative as it could be, or should be. Had this inquiry been more probative, then Hostettler would have realized as Bernstein does that, “if deterrence considerations alone governed penal practices, then the state would be entitled to punish not only the wrongdoer but anyone to whatever extent as long as it served the purpose of maximally deterring crime.” 52 Bernstein realizes that this is anathema to Beccaria’s entire project, as well as a betrayal of the freedom promised by Beccaria’s social contract model. Yet he, like others, maintains the defense of Beccaria as a utilitarian, even though his is a proto-utilitarianism. Bernstein finds himself in a difficult position, for his project relies on a humane Beccaria, a reading of Beccaria that saves him from being retributive. For in the hands of sovereignty the retributive method with its logic of punishment rooted in of an eye for an eye strips the humanitarianism away from Bernstein’s Beccaria. In contrast to the base logic of utilitarianism, with which Bernstein continually seeks to vest Beccaria, the retributive method of penal practice reserves punishment only for the guilty. “Retribution, in its backward-looking search for redress, for a balancing of the scales, necessarily pg.212 POLITICAL FORGIVENESS restricts punishment to the individual wrongdoers solely for the crime committed; his guilt is a condition for and licenses his punishment.” 53 The essential risk for Bernstein )which he probably knows but wishes not to admit) is that should the rule of law that he cherishes fail under conditions of a retributive model, nothing can prevent a sovereign from returning to the practice of torture and capital punishment. As a result, he continually leads his reader to believe that Beccaria’s logic of punishment is definitively undecidable when in fact, as I will argue later, there is ample evidence that Beccaria is in fact at base retributive through and through. And once again, all of this is both insufficient and extraneous for grasping why Beccaria argued simultaneously for the abolition of torture, cruel inhumane punishment, capital punishment, and acts of political forgiveness. In other words, it is insufficient for grasping that larger project of Beccaria’s political theory. As we shall see, the forgoing can be apprehended without recourse to debating whether Beccaria was an acolyte of utilitarianism or not. Beyond insufficiency: In contrast to the simplistic reception that Hostettler gives to Beccaria’s utilitarianism and the ‘undecidability’ that Bernstein reads into On Crimes, Bernard Harcourt acknowledges that the presence of both logics in his work “is a source of continuing debate.” 54 Harcourt remarks that Beccaria’s On Crimes had its foundations in social contract theory yet “Beccaria nevertheless embedded a utilitarian core into his analysis.” Although he acknowledges that there is a continuing debate regarding this tension, he moves forward in his own analysis closing the debate claiming that “the two frameworks – social contract and utilitarianism – overlap, pg.213 POLITICAL FORGIVENESS coincide, and there is no theoretical tension or potential conflict between the different principles and rationalities.”55 The arguments found in Bellamy and in Bernstein are a result of what Harcourt calls “selective readings,” and “appropriations” of Beccaria as a result of the popularity of On Crimes.56 One might say that as with the critique leveled against Bernstein, the issue is that one cannot expect that a principle of legislative utilitarianism will remain relegated to that sphere of the political system, and that ultimately utilitarian logics will bleed over into the judicial realm. These logics are not harmonious as Harcourt argues, but in conflict with one another. However, it is not Harcourt’s project to become preoccupied with these pedantic questions. His approach is far more holistic than others and seeks to understand Beccaria’s project as larger than On Crimes. The central failing of the preceding receptions of Beccaria is that they only appraise the Beccaria of On Crimes. What the writers of the more critical reception of Beccaria accomplish is to expand our understanding of who Beccaria was, and in turn, broaden our understanding of what his political project was. For when On Crimes is viewed in light of his other work, and with a special reverence paid to his writing regarding the pardon power within On Crimes, it becomes clear that there was most certainly a political project larger than penal reform in Beccaria’s thought. To be sure, penal reform played an integral role in that project, but was not itself the totality of it. Bernard Harcourt draws our attention to a second work of Beccaria’s written in the same year as On Crimes, a paper on smuggling in which Harcourt claims Beccaria “was essentially trying to figure out, for the sovereign, how to fix that tariff at the most advantageous level to maximize the return to the treasury.” 57 Beccaria’s purpose was to, “help the authorities set tariffs at the optimal level in order to maximize its revenues and balance trade.” 58 I make specific mention of this because it highlights an important fact, one that Harcourt also seems to pg.214 POLITICAL FORGIVENESS acknowledge; that far from a radical thinker bent on abolishing capital punishment, this example of Beccaria’s other work portrays a man compelled towards the idea of extending an administrative model to many different spheres of life. This example also paves the way for appreciating Beccaria as more than a proto-humanitarian and reformer of the punishment field. It allows us to comprehend the individual totality of Beccaria, a person who was not only labelled as and painted a humanitarian by modern thinkers, but also an economist. As Harcourt forcefully argues, it was Beccaria the economist who would have significant influence upon his modern acolytes. Harcourt argues that rather than Beccaria the humanitarian, it was Beccaria the “first economist to have applied rational choice theory to the field of crime,” who was best known.59 This particular understanding of Beccaria, as Harcourt explains, finds individuals in society figured as homo economicus, and as such pursues a course of punishments that assume that individuals’ actions are shaped by their pursuit of rational choices. For Harcourt, both the humanitarian and economist interpretations of Beccaria fall short; his preferred reading of Beccaria is the one adopted by Foucault. Although Beccaria was an economist, it was not the economy of the free market that Harcourt reads in Beccaria, rather it was the economy of the “police,” relying on governmental intervention in the social sphere to discipline its inhabitants. 60 The point is that discipline is primary, punishment secondary. This would have been Beccaria’s dream, a society in which, as he argues explicitly in his closing chapter of On Crimes, punishment and pardon were unnecessary…not because of the angelic nature of society but precisely because of the disciplinary nature of sovereign power. To emphasize this point, Harcourt turns to several modern appropriations of Beccaria apart from Foucault’s (perhaps the most well-known). These other appropriations of Beccaria are found particularly in the Anglophone world that Harcourt focuses on, if only to illustrate their shortcomings and shore up pg.215 POLITICAL FORGIVENESS his own interpretation of Beccaria. Harcourt locates the center of Beccaria’s modern appropriation at the University of Chicago.61 It was there that Gary Becker and Richard Posner would adopt the intellectual work of Beccaria in their own endeavor to make an intervention into penal theory. 62 But, as Harcourt argues, it was not the Beccaria of On Crimes that the two were most interested in; rather it was the Beccaria who taught public economy at the Palatine School in Milan. 63 In fact, it was this Beccaria who caught the imagination of the Anglophone world. It was precisely, as Harcourt argues, because “Beccaria sought to extend the logic of economic rationality to the social sphereto the field of crime,” that he became the darling of thinkers like Posner, Becker, and even Joseph Schumpeter.64 This has led Harcourt to comment that “the economic rationality that Beccaria sought to impose in the punishment field was…an economic regime of minute governmental administration of every aspect of commerce.” 65 As Harcourt closes what I read as the critique of the dominant, perhaps depoliticized, version of Beccaria, he returns once more and finally to the lectures that Beccaria gave over his tenure at the Palatine School. The most crucial of these may have been a lecture in which Harcourt tells us Beccaria discussed the issue of policing, but a lecture of which no record exists.66 It is Harcourt’s opinion that the loss of this lecture has done a great service to the Beccaria that we know today, the consequence of which he claims may have “distorted” our appreciation of him. 67 It is in light of all of this, the wider breadth of Beccaria’s intellectual thought, that one can apprehend the import of Beccaria in Foucault’s genealogy of discipline and securitization. The essential argument is that one should appreciate Beccaria’s criminal and penal thought in light of his economic thought. This has led Harcourt to the forceful analysis of Beccaria’s thought that “criminal sanction operated in the same fashion as economic regulation: just as trade restrictions and the regulation of commerce pg.216 POLITICAL FORGIVENESS influence the price of goods, the penal sanction influences the price of crime.” 68 Harcourt seems to accept the intellectual reconstruction of the arguments in On Crimes with little protest. However, when he turns his attention to Beccaria the economist rather than Beccaria the humanitarian, that is when Harcourt’s otherwise mild reception of Beccaria becomes more critical. And, for that matter, he indicts other modern receptions of Beccaria with a healthy skepticism regarding Beccaria’s reputation as a humanitarian. Ultimately, Harcourt supports the claim that I have put forward that Beccaria was a Hobbesian at his core, and one must never forget that his thought was that of a reformer, not a revolutionary. Harcourt’s argument above is one way, a particularly convincing way, of alleviating the insufficiency of Bellamy and Bernstein’s positions. But it is not the only substantive way to engage with Beccaria’s project to reform punishment practices. The best way forward is to appreciate Beccaria’s project of penal reformation in light of his concomitant project portrayed by Harcourt. Realizing the inherent contradiction here between retribution and utilitarianism, Bernstein questions how it can be that both of these methods exist side by side in On Crimes’ argument for reformation? He points to Beccaria’s bifurcation of both logics in the overall political system, claiming that to the legislative function of the system belonged utilitarianism and to the judicial belonged retributive claims.69 Citing the unrealistic and all too neat and tidy bifurcation that Bernstein finds in Beccaria, I point to an alternative explanation. Because the deterrent function of Beccaria’s legal reformation could not possibly be limited to the legislative arena of a political system, and would almost certainly bleed over into the decisions issued in the judicial system, Beccaria’s hand is forced. He is forced to maintain a retributive system as a corrective to failures of the disciplinary society he simultaneously desired. The corrective ability of a retributive system is found in its backward-looking tendency, as Bernstein puts it himself. pg.217 POLITICAL FORGIVENESS Because it looks both forward and backward, within it we find the potential to expand the scope of disciplinary activity as needed, by way of reflection on the past while also explaining why Beccaria sought to exclude political forgiveness from his project. Not only does forgiveness jeopardize the certainty of punishment that Beccaria desired, it also jeopardizes the efficacy of disciplinary activities. Yet, pardon remains. I will now turn to the opportunity missed by these writers to question what Beccaria’s paradoxical inclusion of forgiveness means, in light of the supposed, or apparent, utilitarian logic of punishment which these modern thinkers have perhaps too generously attributed to him. I hope I have presented ample evidence that the case for Beccaria’s utilitarianism presented in the secondary literature is at best overstated. In fact, while Beccaria was certainly a reformer of retributive methods, he was none the less a retributivist through and through. In sum, perhaps what Bellamy identified was not really the Beccaria problem, but rather the “Beccaria bind.” The bind that Beccaria found himself in was between arguing for a major reformation of retributive punishments undergirded by a proto-utilitarian scheme of legislation. The former requires the elimination of the possibility of pardon to ensure the certainty of law, the latter admits to the ineradicable presence of political forgiveness owing to its inherent logic. Between the two is where Beccaria found himself, and no modern thinker has been able to rescue him from this, his real undecidable predicament. I would like to suggest further that the magnitude of the problem, or rather the bind, is captured by the individual whom Beccaria most influenced, Jeremy Bentham. Bentham’s own solution is to argue that in circumstances “where punishments would do more evil that good, as after seditions, conspiracies, and public disorders, the power of pardoning is not only useful, it is necessary. These cases being foreseen and pointed out in a good legislative system, pardon applied to them is not a violation, it is an execution of the law.” 70 pg.218 POLITICAL FORGIVENESS Bentham’s logic amounts to a tacit legalization of the above referenced crimes. In the end, what modern readings of Beccaria most fruitfully illustrate is an under appreciation of the tension and undecidability in Beccaria’s own thought, a tension caused by the fact that there can be no certainty of punishment inside of a sovereign political system. This is a major question that Beccaria forces us to confront in the history of political thought; it is a timeless political problem in as much as political forgiveness has always ‘threatened’ law and the political order. Having traversed the major strands of Beccaria’s thought that modern thinkers have interrogated, I now turn to my own critique and re-articulation of the import of punishment in On Crimes. I believe there is a need to enlarge the theoretical aperture, to allow more substantive light in, and create a more complete picture of Beccaria’s impact on legal and political thought. We should not hold that a thorough understanding of the meaning of Beccaria’s project exists, until the incredibly elliptical final chapter of On Crimes has been problematized and interrogated. For if we consider the Beccaria bind, it is necessary to question how it is that in the final chapter of On Crimes Beccaria betrays his own project. He does so by impugning one of the most important elements of his project, the certainty of punishment. He does so by acquiescing to the necessity of political forgiveness in the form of pardon. Rather alienation: In contrast to the preoccupation as to which logic of punishment, retributive or utilitarian, Beccaria is married to, if he is at all, I argue the more important, more sufficient, and less extraneous project is to understand how the right of punishment finds itself in the hands of sovereignty. Once punishment is alienated from the social body, from the individual, or pg.219 POLITICAL FORGIVENESS collective pre-political agents and placed in the hands of sovereignty, the insufficiency of this preoccupation is exposed by the fact that it is in the nature of sovereignty to exercise both logics of punishment as it sees fit. Thus the argument over which logic of punishment Beccaria deploys is irrelevant. The origin of punishment is certainly not its alienation from the social body, as it is clear punishment as a concept and action pre-dates the social contract. What we are concerned with is the origin of the sovereign sanctioned right of punishment, and how the right to punish finds itself alienated from political subjects and deposited into the hands of a regulated system of laws, and by extension the right to forgive. Beccaria’s second chapter, The Right to Punish, engages not only the right to punish but a continuum of related concepts; authority, power, and (crucially although implicitly) an argument for a propensity of individuals to be governed more by their sentiments and passions than by reason. In arguing for this propensity, Beccaria also intimates that left unchecked, or allowed to run amok, a collective of individuals given over to their sentiments would be little more than an anarchic rabble. “The foundation of the sovereign’s right to punish crimes” is “the necessity of defending the repository of the public well-being from the usurpations of individuals.”71 Punishment is derived from necessity, the necessity to curtail the excesses of other individuals which run up against the ability to enjoy that freedom that is not sacrificed to the sovereign. Which individuals? Beccaria will answer: all individuals. Because of Beccaria’s belief that individuals are governed by sentiment and passion, his concern is not the several ‘bad actors’ that might require punishment, but rather each and all that make up society. These condition created the necessity that “compelled men to give up a part of their freedom; and it is therefore certain that none wished to surrender to the public repository more than the smallest possible portion consistent with persuading others to defend him.” 72 Beccaria explains in an arithmetic fashion that added together, these portions of freedom sacrificed to the pg.220 POLITICAL FORGIVENESS whole amount to the “right to punish.”73 In sum, all that the inhabitants of a pre-political society are willing to give up, the part of their freedom they are willing to part with, in the end turns out to be their ability to punish. For as argued above, it is unclear whether Beccaria intends for us to understand that these pre-political subjects are aware that the element of their freedom they agree to sacrifice is synonymous with their freedom to punish others as they see fit. Beccaria now gives form to what was in the first chapter an abstract individual freedom sacrificed to the whole. Beccaria chooses to deploy the vernacular right to punish as opposed to power to punish because, as he puts it, “right is not opposed to the word power, but the former is rather a modification of the latter, that is to say, the species which is of the greatest utility to the greatest number.”74 The latter part of this quote is of course what leads most readers of Beccaria to attribute a utilitarian logic to his treatises. However, as many have pointed out, in the original translation of On Crimes into English the latter part of this quote was mis-translated.75 The greatest utility to the greatest number can only be achieved within a political order, and thus under a sovereign who wields the law. Therefore, the right to punish is coterminous with sovereign authority, resulting in the aforementioned irrelevance of the debate over Beccaria’s drive towards or away from either a retributive or utilitarian logic of punishment. This vernacular in the early part of On Crimes becomes consequential later with regard to pardon. According to Beccaria, to speak of a right is to speak to that which is good for the public, so in this sense it is inappropriate to speak of a right of pardon. We can now see why shifting a focus away from a logics argument, and towards an understanding of the alienation and genesis of sovereignsanctioned punishment, enhance an understanding of the specifically political nature of Beccaria’s argument. Beccaria does not believe that pardon as an instrument is beneficial to the public well-being (a specifically political function). In fact, acts of pardon are diametrically pg.221 POLITICAL FORGIVENESS opposed to the public well-being in his own thought. It is curious that Beccaria, unlike his predecessor Bentham, cannot reflect with clarity how grants of pardon or amnesty, though demonstrably contrivances of law, might benefit the public good. Perhaps this is why Beccaria does not choose to refer to a right of pardon or to a power of pardon. In all of his last chapter Beccaria declines to use either phrase, only referring to pardon as such. If there is some ambiguity over the nature of the authority, right, and power discourse in Beccaria’s second chapter, any doubts are eradicated in the third chapter of On Crimes. In the third chapter, Beccaria clarifies his view regarding the true legal and political standing of punishment.. The principles that have come before in the first and second chapter lead Beccaria to assert that “laws alone can decree punishments for crimes, and that this authority resides only with the legislator, who represents the whole of society united by the social contract.”76 There are two important ways of understanding what Beccaria is conveying here. The first utterance, ‘laws alone’ is an attempt by Beccaria to assert that there is no place in a legal code for the arbitrary. And for Beccaria, the arbitrary is introduced into the legal code by human actors, errant judges, and magistrates. It is his project to require each human actor within the legal system to adhere to the laws as handed down by the law giver. It is manifest that in On Crimes, this law giver that Beccaria speaks of is in fact co-equal with sovereignty. It is made clear in his final chapter that treats pardons that the two are one and the same. In that chapter, Beccaria argues: “Clemency is the most beautiful prerogative of the throne, it is the most desirable endowment of sovereignty.”77 Then only several sentences later Beccaria asserts that “clemency is a virtue of the lawgiver, and not the law’s executor.” Therefore 78, authority wields the right to punish, and that authority is in the hands of sovereign power. But this is not to say anything about the nature of punishments. As an individual pg.222 POLITICAL FORGIVENESS spearheading a penal reform movement, Beccaria argues for an intractably consistent legal code that applies law and punishments with unerring consistence. This is why in the same chapter referenced above, dealing with pardon, we find Beccaria arguing that the law should be “inexorable.”79 Recall that the purpose of punishment is to prevent individuals from doing more harm to society, and to prevent others by example from doing so. In order to achieve this goal, Beccaria argues for punishments to be consistent and proportional to the crime. 80 Paramount is that punishments are not overly harsh. However, the punishments handed down by those with the authority to do so cannot be arbitrary. Beccaria is completely transparent about this; arbitrary punishment or overly harsh punishment is nothing short of tyrannical. But it is not the punishment that makes the act tyrannical, it is the arbitrary nature of the punishment. Here we can grasp yet another reason why Beccaria is so fervently opposed to pardons. In particular cases, Beccaria believes that pardons are similarly arbitrary and are demonstrations of tyrannous rule. Beccaria firmly believes that the “most effective brakes on crime is not the harshness of the punishment, but the unerringness of punishment.” 81 It is, according to Beccaria, the certainty of punishment that ensures adherence to law, not the severity of punishment. “The certainty of even a mild punishment will make a bigger impression than the fear of a more awful one which is united to a hope of not being punished at all.”82 Tellingly, what comes next is Beccaria’s warning against the trappings of “impunity accorded by weak and corrupt judges.” 83 Harsh punishments impugn the law but so too does forgiveness of offenses. Harshness and leniency here meet to create bad political subjects. Or thought of another way, harsh punishments or overly lenient punishments both invite an impunity for law, an anarchic spirit, reminiscent of the total freedom of Beccaria’s pre-political subjects. The dual thematic of sacrifice and human nature continues to shape how Beccaria argues pg.223 POLITICAL FORGIVENESS for punishments as a right, a function of authority. “No man has made a gift of part of his freedom with the common good in mind; that kind of fantasy exists only in novels. If it were possible, each one of us would wish that the contracts which bind others did not bind us.”84 By making a sacrifice of freedom the origin of sovereignty and the basis of the right of punishment, Beccaria also creates a situation in which each individual will always view the sovereign as that which has obtained something that does not belong to it. This is certainly not a usurpation, but a sacrifice as indicated above. As I argued, nobody wants to engage in sacrificial behavior, and if one could recoup that which they had sacrificed, they certainly would. The above quote also engages with an argument, perhaps a secret argument, that individuals are naturally antiauthoritarian, anarchic in nature. It is not passion, sentiment, desire, that make us wish that the contracts that bind others do not bind us, it is a desire not to be beholden to an authority above us. This is a remnant of the state of nature that cannot be expunged, even with a sovereign that guarantees a modicum of freedom and a system of punishments for crimes to maintain that modicum of freedom. Forgiveness and repudiation: Beccaria believed that there is no freedom when the laws permit a man in some circumstances to cease to be a person and become a thing. This objectification of the individual is exactly what happens in both extreme cases of capital punishment and pardon. In the case of capital punishment, the objectification of the individual, and their treatment as a thing, serves to signify the sovereign’s vengeance. The individual becomes a spectacle for the public to behold, treated as a tool to convey the message, ”Obey, lest this be your fate!“ In the case of pardon, the pg.224 POLITICAL FORGIVENESS objectified individual becomes a tool, a thing, a signification of the sovereign’s majesty and ultimately their place above the law. Both of these extremes are incommensurable with Beccaria’s project, for at once he wanted to abolish the utilization of capital punishment and torture and ensure the certainty of the law’s application. Pardon clearly betrays the latter of his objectives. Yet he is only able to argue for the complete abolition of one, capital punishment, while the sovereign’s prerogative of pardon remains. Beccaria’s On Crimes and Punishments begins with the establishment of political society, and ends with an excoriation of the right of pardon. Beccaria’s reticence on the right of pardon derives from his greater project. In sum, Beccaria’s project can be stated as the reformation and/or establishment of a legal code that undergirds a political society such that the society’s inhabitants are disciplined and conditioned, their actions constrained in order to live a politically just life. As he sees it, the right of pardon threatens this project. This is to say that the presence of political forgiveness is antithetical to Beccaria’s theorization of legal and judicial reformation. The problem of the sovereign prerogative of pardon is a particularly thorny one for Beccaria, because its utilization represents an affront to each of the major injunctions of his project. Not only does political forgiveness represent the uncertainty of punishment, it serves as a signifier of the sovereign’s arbitrary ability to decide on the exception, and finally it demonstrates that through its utilization those who exercise sovereign power might actually do harm to the public well-being. This last fact accrues to Beccaria’s view that “the true measure of crime[s] is…harm to society.”85 Pardon in and of itself, although a law that contravenes law, is not de facto a crime. However, as Beccaria will explain in due course, the result of the exercise of the right pardon has the same effect as the commission of a crime, namely, harm to society. Exactly how pardon, a sovereign act of forgiveness, harms society is explained in the final chapter of On Crimes. Beccaria’s location of pg.225 POLITICAL FORGIVENESS pardon in this chapter is clearly a crucial textual indicator of how seriously he saw the role of forgiveness in the hands of sovereignty. For the final chapter of a political treatise are not mere after thoughts, but instead crucial conclusions. In the end, pardon remains in Beccaria’s treaty. It sits there, creating tension, undecidability, and ultimately betrays the overall integrity of Beccaria’s argument. Why? In order to apprehend the tension and undecidability of the nature of pardon in On Crimes, it is necessary to first consider and re-construct Beccaria’s reasoning behind the necessity for political society, his appraisal of the base motivations of political subjects, and finally, the proper role of punishment in that society. Even before the crucial final chapter dealing with pardon, there are indications elsewhere in the text of On Crimes as to where Beccaria will come down on pardon, and by extension other forms of political forgiveness. Beccaria specifically references amnesty in On Crimes, but it is fair to imagine that other forms of political contrivance of the law would be sufficiently reprehensible to him. I propose that one of the places the reader of On Crimes might begin foreseeing the difficult relationship Beccaria will have with political forgiveness is in chapter 12 of The Purpose of Punishment. Here Beccaria sets out that the purpose of punishment “is nothing other than to prevent the offender from doing fresh harm to his fellows and to deter others from doing likewise.”86 Pardon violates both of these purposes of punishment. In the first instance, it introduces the possibility that the pardoned will indeed do fresh harm to his fellows, and in the second instance (and this is Beccaria’s primary concern as indicated elsewhere in On Crimes), acts of political forgiveness signal to others that their crime might be forgiven too. We can once again see here the marriage of retributive and utilitarian logics that Beccaria attempts to create. Pardon eliminates the deterrent factor of punishment, and it prevents the fresh harm injunction, violating the retributive argument. But even before one can begin to parse how pg.226 POLITICAL FORGIVENESS political forgiveness impugns these logics, it is necessary to grapple with a more primary assumption. These lines of argumentation rely on a primary assumption by the theory’s author about the nature of political subjects. It assumes that the average political subject would interpret the idea of the sovereign prerogative of pardon as a potential opportunity. The question is, would Beccaria’s abstract political subjects be predisposed to take up this opportunity? We have found the answer to these questions in our interrogation of the alienation of the pre-political subject’s power to punish. In the course of that discussion above, it became demonstrably clear that Beccaria would have answered the question in the affirmative. Finally, we arrive at Beccaria’s explicit repudiation of the sovereign prerogative of pardon, which is not to say sovereign prerogative writ large. To say that his short, pithy, and critical encounter with a sovereign’s right to pardon is complex is to devalue his rigor. Beccaria’s critique of pardon is comprised of two interrelated elements; the first is the de facto utilization of pardon and the second is a normative condemnation of the de facto existence of pardons in the legal system. Beccaria describes pardon simultaneously as a “virtue,” “the most beautiful prerogative of the throne…the most desirable endowment of sovereignty,” and finally that pardon is a “tacit condemnation…of a code of laws.”87 The first two elements attest to the traditional understanding of a sovereign’s prerogative of pardon. The third element, however, is Beccaria’s own. Other thinkers have certainly warned of the possibility of pardons contributing to an atmosphere of impunity, but none have claimed that pardons represent a condemnation of law. This is the most manifest example of the tension and undecidability in his work. But this is not only a tension in Beccaria’s work, as I have been arguing, it is a timeless problem that traverses western political thought. It was Beccaria’s achievement to draw out this relation between political forgiveness and law more acutely than his predecessors. A clearer pg.227 POLITICAL FORGIVENESS demonstration of this tension could not be provided for than the figure of the lawgiver in Beccaria’s thought. According to Beccaria, the lawgiver is at once both the one who establishes law and the one repudiates it. As with all lawgiver figures, Beccaria’s is a truly exceptional individual. He “ought to be gentle, lenient and humane.”88 These personality traits, Beccaria reasons, will enable the lawgiver to establish a code of laws that are just and moderate. Beccaria deploys this mechanism in an effort to complete the inscription of clemency in the legal code, and dispossesses the law’s executor of the ability to deploy political forgiveness. Political forgiveness becomes an asset of the law giver, the sovereign, an exceptional act belonging only to him, and a repudiation of law. This is the normative content of Beccaria’s critique of pardon. But the source of his condemnation is peculiar, and relates not to pardon’s exceptional status as a law that abrogates law as one might think. It is not in pardon’s existence as a prerogative of sovereignty but in its application that Beccaria’s concern lay. The true problem with pardon is not its extralegal nature but that it serves to “show men that crimes can be pardoned, that punishment is not their inevitable consequence, encourages the illusion of impunity and induces the belief that, since there are pardons, those sentences which are not pardoned are violent acts of force rather than the products of justice.” 89 Beccaria’s argument is less concerned with the fact that a pardon represents an abrogation of the rule of law, and more concerned that to include political forgiveness in the legal code is to invite disorder, for the possibility of leniency breeds hope of benevolence. The attempted exclusion of pardon from his project is crucial, but there is ultimately a misplaced justification for this exclusion. Or might I ask rather, is his justification for the exclusion or pardon from his project misplaced? Beccaria argues that “when punishments become milder, clemency and pardons become less necessary.” 90 This accrues to the dual facts of the certainty of punishment and the reformation of a legal code, the result of which is expunging pg.228 POLITICAL FORGIVENESS absurd laws and severe sentences. 91 In such systems where there are absurd laws and severe sentences, Beccaria reasons that pardon and clemency will proliferate as a result. While it is certainly true that this may be the case, Beccaria acknowledges the status of pardon as a prerogative of sovereignty but fails to come to terms with the consequence of this. His answer is to render pardon exemplary rather than exceptional. He aims to strip it of its extralegal status and instantiate a legal code that is, according to Beccaria’s standards, by its very nature merciful, compassionate, a legal code whose very foundation is clemency. Beccaria found that “clemency ought to shine in the legal code and not in particular judgements.” 92 Beccaria attempts to remove the exception from sovereignty and the legal system by inscribing it directly into that very same system. But he doesn’t fully reach closure in this attempt. Conclusion: I have been arguing that the presence of pardon in Beccaria’s thought and in the text of On Crimes is indicative of both a tension and an undecidability. Surely at this stage the polemical place of pardon in Beccaria’s thought has been cemented. Now it is necessary, having traversed the text, to conclude by giving form to this tension and undecidability. The tension, I propose, belongs to the natural enmity between political power and legal order. The undecidability, however, belongs to Beccaria alone. It is his own inability to come to terms with whether he is a thinker of jurisprudence, or a political theorist. This relates to the ultimate role of forgiveness in Beccaria’s project, for it serves, more than in others works, as a signal that there is a timeless tension between law and politics, even though they are inherently related to one another. pg.229 POLITICAL FORGIVENESS I contend that as a thinker of jurisprudence Beccaria would need to completely eschew political forgiveness for the integrity of his proto-utilitarian legal argument to obtain. As a political theorist, Beccaria would need to acknowledge that apart from being the prerogative of sovereigns, pardon and amnesty have at times a beneficial and prudential political utilization. Political forgiveness presents Beccaria with a choice that he ultimately cannot make, and so he repudiates political forgiveness, yet includes it in his text. While the problem for Beccaria the man is interesting in and of itself, the tension to which his own problem of undecidability alludes is the real theoretical wellspring. In order to apprehend the significance of the tension between jurisprudence and politics, it is necessary to return to the fact that Beccaria makes two important connections, or sutures, in the text: one at the beginning, and a second at the finale. His first move is to suture sovereignty to the penal system in the form of a sanction, a sanction against capital punishment and torture. His final move is to suture sovereignty to pardon, which also comes in the form of a sanction. To what might we attribute the significance of these dual sanctions, one against the sovereign’s power over death in the form of capital punishment, and the second of the sovereign’s power of life as manifest in a grant of pardon? I would like to suggest that in Beccaria’s thought we find something akin to the specter of an autoimmune reaction. We see an element of the body politic turning against itself and impugning that which is supposed to regulate the healthy functioning of the system…the legal order. In sum, this is a latent notion, implicit in Beccaria’s thought, that politics and even sovereignty are harmful to the legal order and political society writ large, and further, that it is political forgiveness that shines the brightest light on this contradiction. Perhaps this is why Beccaria’s model of the social contract is marked by its sacrificial nature. The sacrifice is made unwillingly to the power that will ultimately jeopardize the good that comes pg.230 POLITICAL FORGIVENESS from it. A view of the composite construction of sovereignty that Beccaria undertakes early in On Crimes announces the arrival of this tension, but one must be attentive to take note of the foreshadowing. Recall that it is the sacrifice of a small portion of each and everyone’s freedom that creates sovereignty in Beccaria’s contractarian thought, and he describes the sovereign as “the legitimate repository and administrator of these freedoms.” 93 In the beginning it is not desirable to make the sacrifice, but necessary. In the end, sovereignty, that which is the repository of the freedom you sacrifice, has the potential to make a mockery of your sacrifice by gesturing at its ultimate empty content. It is for this reason I propose that Beccaria understood he needed in some way to resuscitate the palliative functions that mercy and forgiveness carry with them. His answer, I believe, was to hide mercy and forgiveness away in the law, such that the political subject would feel a sense of satiation at the requirement of submission to law after their sacrifice. The questions that now arises is if the political subject, aware of this, would still take advantage of the mockery that it represents, and drive a wedge between the legal order and the political, forcing sovereignty to administer the sacrificed freedoms differently? For this is exactly how Beccaria understands freedom under sovereignty, that it is a content to be administered to political subjects. He writes in the first chapter where he performs his first suture that the sovereign is “the repository and administrator of these freedoms.”94 I believe that there is such a possibility, and that Machiavelli provides us with both a theoretical and empirical framework for thinking such a possibility. One might think that in turning to Machiavelli, I am turning away from a thinker who could have a favorable appraisal of mercy and forgiveness. This would be an incomplete assessment of Machiavelli’s thought. In the next chapter I argue that it is true that the idea of political conflict was integral to Machiavelli’s political thought and the practices he counseled, pg.231 POLITICAL FORGIVENESS and as a result of this the concepts of mercy and forgiveness were no less important to him. Although Machiavelli represents a turn towards the past, in an odd way his thoughts on political forgiveness represent an apotheosis of the functions and roles that political forgiveness has the capacity to fulfill, not only for princes but as we shall see for peoples as well. One might even argue that the thought of my interlocutors in previous chapters represents a reaction against the roles and functions, the very practices and potentials that Machiavelli found in political forgiveness. An additional unique element of Machiavelli’s thought on political forgiveness is that unlike other thinkers, he provides a framework for how one might begin to theorize practices of political forgiveness. The practices that I suggest are latent in Machiavelli are ones that transmogrify the anxieties and polemics presented by later thinkers into potential practices of resistance. More than this, in the historical examples that Machiavelli marshals to make his interventions on mercy and forgiveness, he exposes how the palliative effects of mercy and forgiveness are fleeting and hollow. pg.232 POLITICAL FORGIVENESS Chapter V. Machiavelli - recompense, reconciliation, and resistance A different approach: In 1513 Niccolò Machiavelli finished penning The Prince;, it would not be published until 1532, posthumously. Just over forty years later, Jean Bodin’s The Sixbooks of the Commonwealth was published in 1576. I have chosen to bookend the substantive chapters of this work with Bodin and Machiavelli although they wrote some five hundred years ago, I find their respective political thought to weigh with great prescience on the conjunctural moment of my writing. Bodin’s treatise represented the inauguration of the theory of state sovereignty. Although Bodin’s work heralded a novel political theory, it did not represent that which Machiavelli’s text did four decades prior. One might even say that Bodin’s thought was a natural evolution of the consolidation of political power in the state form already underway. By comparison, when Machiavelli penned The Prince, it represented not only something new but a radical break with the past. There was little evolutionary about Machiavelli’s thought, (here, sadly, I must submit to the need to truck in contrivances), his thought was revolutionary. The past Machiavelli sought to distance himself and his proposed political practice was one that dealt with idealizations and abstractions. It was an imaginary past and a world in which political thought and practice addressed how people and rulers should act, rather than addressing how they did act. Oddly, it was this past that Machiavelli had left for dead, a past over-idealized and abstracted from reality, that would come to shape much of Bodin’s political theory, abstracting pg.233 POLITICAL FORGIVENESS from and rebuking the very events he witnessed. His political thought was opposed to the political practice he lived through. While Bodin’s political thought transcended the immediate political practice of his moment in time, Machiavelli inserted himself firmly into the politics of his. As Althusser wrote, Machiavelli did not just think in the conjuncture, he thought with it. Part of his frontal attack mounted in the service of a new science of politics was to think through the real role of mercy and forgiveness in politics, how princes wield them and how people’s experience and react to them, rather than as mere tools of majesty or cudgels in the hands of theoreticians. Today as I write, as I attempt to channel Machiavelli and think and write within my conjuncture, I firmly believe that it is his realist understanding of a practice of political forgiveness, which he wrote about five hundred years ago, that holds within it the promise of an emancipatory politics today. Political forgiveness, as this work has explored, has been understood in the texts of western political thought to be a limit case, an exception to the normal juridical order, a law that contravenes law. Machiavelli’s political thought lays waste to each of these definitional elements, and in doing so marks his thought pertaining to mercy and forgiveness as definitionally exceptional. His realism forces the acknowledgment that far from a limit case, mercy and forgiveness are a commonplace abundance in the practice of politics, that they are exercised just as happily from within the juridical order as they are outside. Further, while the political practice of forgiveness might contravene law, what is ultimately important is not the contrivance of law but the outcomes achieved through such contrivance. His views are in contrast with the writing about political forgiveness that I have read in the texts of western political thought. He rejects the characterization of political forgiveness as institutional in nature and exceptional in quality, features which make forgiveness a constitutive element of sovereignty. We now have a firmer pg.234 POLITICAL FORGIVENESS understanding of the specific merit of political forgiveness as a constitutive aspect of sovereignty, as both generative and recuperative elements of sovereignty. I have argued that Bodin’s thought is evidence of the generative capacity of forgiveness demonstrated by the proximity of pardon to the sovereign’s power of life and death. I also made the case that the foundational element of fear on which Hobbes builds his sovereignty shares the same logic as forgiveness. We also know, having interrogated forgiveness in Locke’s thought, that it is restorative of sovereignty by proving its necessity in exceptional circumstances. Finally, mercy and forgiveness act as an inoculant against malfeasance in the legal code, which Beccaria teaches. The above discoveries made through a critical encounter with Bodin, Hobbes, Locke, and Beccaria provide a crucial, albeit initial, understanding of the different articulations and dispensations of political forgiveness. If we allow ourselves to accept these articulations and dispensation today, they will prevent those in the current political moment from extracting real concessions from sovereign power and state actors. These are the articulations and dispensations of forgiveness that, under an innocuous guise, continually reproduce the cycle of oppression and repression that call for, in the first place, acts of political forgiveness and mercy. For this reason, these thinkers, Bodin, Hobbes, Locke, and Beccaria desired the different relationships between sovereignty and political forgiveness that they conjured up to be relations of mastery, but desiring does not make a thing so. As a result, they also simultaneously fretted over the possible perversion of the political order when mercy and forgiveness are not contained and regulated within the vessel of sovereignty. What they discovered and sought to curtail, by shunning practices of forgiveness and constructing abstracted and idealized roles for mercy, were the potentially deleterious effects of modes of political forgiveness that are operationally (if not pg.235 POLITICAL FORGIVENESS diametrically) opposed to the generative and recuperative potential forgiveness could hold for sovereignty. I propose that it is by thinking with and through Machiavelli’s political thought that such modes can be apprehended, and the real possibility of political concessions realized. That is the objective of what follows, to demonstrate the existence of a modally differential political forgiveness that is present across the works of Machiavelli. I will argue that Machiavelli does not assess these alternative modes of mercy and forgiveness as perversions, but rather realizes that they are alternative expressions of power, often expressions of counter-power, that are operational in the practice of politics. In practice, this conceptually marks the difference between the utilization of political forgiveness as a domineering tool of sovereignty and the harnessing of the politics of forgiveness creating political space for civil disobedience and acts of political resistance. In short, political forgiveness can also represent a counter-power that takes the form of an anticipation of the deployment of political forgiveness as a tactic of sovereignty. In reading sovereignty’s actions before it acts, a political space is opened for a differential mode of forgiveness to be harnessed; Machiavelli teaches us this. His works are uniquely positioned to address a differential mode of forgiveness which is alluded to but not specifically explored by Bodin, Hobbes, Locke, Beccaria, or other thinkers. It is Machiavelli’s unique contribution to teach us the unruly, restive, even unlawful potential paradoxically posed by a politics of forgiveness. Tumultuous forgiveness: I propose that in Machiavelli’s thought political forgiveness is not one act, but a complex array of activities that pervade and evade both political procedure and institutions. Like the pg.236 POLITICAL FORGIVENESS conflict that gives birth to it, forgiveness itself is tumultuous. Practically these politics are inspired by the possibility of forgiveness, but do not require the certainty of forgiveness. These politics exist on a continuum mentioned above, from civil disobedience and acts of non-violent political resistance all the way to sedition, licentious activity, and on occasion violence. They are inspired by the abandonment of all permissive behavior and the rejection of the banal notion that it is better to ask for forgiveness rather than for permission, because those whose politics necessitate disobedience have already been denied permission. These acts are carried out and carried on with the understanding on the part of those who engage them that they do so to remain free from the burden of being forgiven…from admonishment that often comes with political forgiveness…from begging forgiveness where there perhaps was never a wrong to be forgiven. This different articulation of political forgiveness is demonstrable in the works of Machiavelli. To read Machiavelli giving care and attention to his thought as it pertains to mercy is to shift the register of understanding the role of forgiveness in politics, on a fundamental scale. In Machiavelli, we encounter forgiveness on an altogether different terrain. To be sure, forgiveness can be and is at times wielded by those with ‘sovereign power.’ But we also find forgiveness in the hands of the very same subjects that the thinkers of western political thought sought to discipline with it. It is widely accepted that Niccolo Machiavelli’s political thought represented something altogether new. According to Louis Althusser, the novelty of Machiavelli’s thought is that it represented an inauguration, a beginning, as he says.1 More than a beginning, Machiavelli’s thought also signaled an end of sorts, and in this way, we can say, as many others have in the past, that his thought represented a radical break—a radical break with the past, a radical break with past political thought, and a radical break with past political practice. According to pg.237 POLITICAL FORGIVENESS Althusser the substance of this break was to displace a study and practice of politics that was a mere “imaginary representation” with an “objective knowledge” of politics.2 For Gabriele Pedullá this means that Machiavelli championed practice over theory.3 This is what Machiavelli meant when he wrote in The Prince that if one wants to understand something, they should “go directly to the effectual truth of the thing [rather] than to the imagination of it.”4 To John McCormick this meant that the novelty of Machiavelli’s approach to politics supplanted a focus on how the world ought to be with how the world is.5 What is more, McCormick approvingly adopts and simultaneously engages this, now widely accepted, element of Machiavelli’s thought. He does so by describing the nature of Machiavelli’s realism in this way: “his political thought does not merely supplant an idealist ought with a more realistic is; rather it elaborates an entirely new ought for political thinking and practice – an ought in which the vulgar assume an unprecedented role.”6 This meant the emergence of the salience of real political practice within the field of political theory. Althusser writes, “political practice makes its sudden appearance in the theoretical universe where initially the science of politics in general, and then a particular political problem, were at issue.”7 Again, turning to McCormick, he claims that it is not only that Machiavelli supplants an old ought, but instantiates a new should that the shrewd political actor gains access to by virtue of Machiavelli’s teachings regarding how the world is.8 Adding another dimension to the novelty of Machiavelli’s radical break with the past, Gabriele Pedullá suggests that thinking and acting on behalf of how the world is bears with it a singular responsibility, the acknowledgment of the centrality of conflict. According to Pedullá, this is the real substance of Machiavelli’s break. Pedullá explains that what this meant for Machiavelli writing in the 1500s was a rejection of the political thought that originated in the 1300s, which focused on fostering “civic harmony and the common good” and viewed any pg.238 POLITICAL FORGIVENESS conflict or violence as pernicious to political life.9 It was the emergence of a theory of politics that centered political conflictualism. Pedullá locates this break that Machiavelli inaugurates with the publication of the Discourses on Livy, and a study of that text and Machiavelli’s thought within it make up the substance of Pedullá's book, Machiavelli in Tumult. However, I believe a general acceptance of conflict and a rejection of the pursuit of the common good through the expulsion of violence from political life is present across Machiavelli’s texts. This is, of course, my assertion and not Pedullá’s. Taken together, the analysis of Machiavelli that these thinkers provide points to two distinct facts. First, to espouse a Machiavellian political realism is to acknowledge the centrality of conflict in political thought and practice. To admit as much, however, does not mean admitting to despair over the outcome of that conflictual element in politicsRather, it means considering the generative possibilities of that conflict, as well as the constitutive role that mercy and forgiveness have in shaping the outcomes of those conflicts, as Machiavelli did. Second, this analysis forces the shrewd thinker to, at a minimum, engage critically with the tired and false notion that Machiavelli was an immoral counselor to tyrants.10 In fact, the political realism that Machiavelli espoused opens the space to a reading of his work that, as McCormick suggests, centers the role of the people. The lesson of Machiavelli: It is something of an aphorism to claim that Machiavelli’s The Prince is a political text that represents a ‘mirror for kings.’ But just because something becomes an aphorism does not make it sacrosanct. It is said that The Prince is a text written with the express purpose of representing a kind of ‘instruction manual’ for political leaders, a manual that according to some pg.239 POLITICAL FORGIVENESS is designed to assist the new prince in achieving virtū. This prompts two questions; the first is a methodological question regarding how one goes about reading The Prince, or any of Machiavelli’s texts for that matter? And second is a substantive question germane to the task at hand; how does Machiavelli imagine a prince using mercy virtuously? In Machiavelli, there appears to be the usual trappings of political forgiveness issued from the top-down by the prince, but there is something else, a different ideal type of forgiveness, a politics of forgiveness that transpires from the bottom up. The attentive reader of Machiavelli will note that in all instances in which mercy, or forgiveness, are dealt with in his canon, primacy is often given to the people; that is, how the people as political subjects will act and react to an act of mercy, or an act of forgiveness. The question is not whether or not to be merciful, but rather how the prince’s mercy will be received and reacted upon, and therefore this is not a question of application but reaction. I will show that Machiavelli does not counsel mercy or forgiveness, he counsels how to deal with the reality of political forgiveness. As it turns out, the first question is an important one, but it is not the only question that we should be asking regarding the understanding of forgiveness and mercy in political practice. Machiavelli would counsel not only the would-be prince to grasp the importance of this affective dimension of politics; there is ample evidence that he would also want the people ruled by the prince to know what it is to marshal forgiveness and mercy as an end of politics. Therefore, what is necessary is a reading of Machiavelli that is true to his text and thought that centers on the role of the people, and is sensitive to their political agency. Luckily, contra the Straussian reading of Machiavelli, such a reading exists, and on my analysis is more honest to the intent of the author than the former less flattering approach. Althusser’s critical engagement with Machiavelli’s dedicatory note at the beginning of The Prince makes the argument for just such a reading of The Prince. This reading takes seriously the notion that pg.240 POLITICAL FORGIVENESS Machiavelli’s audience was not only the would-be prince, but also the subjects of that ruler, the people. Althusser makes it clear that one (although by far not the only one) of the primary questions of The Prince is the question of perspective, or audience. He asserts in his critique of the dedicatory letter in The Prince that “there can be no knowledge of rulers except from the viewpoint of the people.”11 Here Althusser is not only drawing upon but mirroring Machiavelli’s assertion that “those who sketch landscapes [must] place themselves down in the plain to consider the nature of mountains and high places and to consider the nature of low places place themselves high atop mountains, similarly, to know well the nature of peoples one needs to be prince, and to know well the nature of princes one needs to be of the people.”12 Like Althusser, John McCormick’s analysis of Machiavelli “promotes the people as agents who must be empowered,” in order that they can be the agents who determine “good and evil,” who can “assert their necessary, salutary role as the guardian of liberty against predatory oligarchs and tyrants,” and “should be civically and militarily enabled.”13 The question becomes, from the perspective of the people, how shall a prince dispense forgiveness and mercy? Later we will see how political forgiveness presents an opportunity for the people to assert these facets of Machiavelli’s political thought, as elucidated by McCormick, against their would-be oppressors. Rhetorically, when, why, and for what reasons do we (the people’s ‘we’) want our ruler(s) to be merciful, and might we effect their mercy for our purposes? Pushing Althusser’s engagement with Machiavelli a little further at this point, he argues that “Machiavelli does not say that one needs to be a man of the people to know the nature of the Prince, but the nature of Princes – implying that there are several sorts, and thus that there is a choice to be made between them from the perspective of the people.”14 This choice could be impacted by the perception that a pg.241 POLITICAL FORGIVENESS given Prince is forgiving to his subjects, or odious to them; that he dispenses liberties and rights to them, or oppresses their freedom. What follows is an important double move by Althusser. In the first instance, he notes that The Prince is no simple text but rather it is a kind of manifesto, and as such directed not at any one person, but many people.15 The result of this characterization of The Prince forces Althusser to then question for whom The Prince is actually written?16 We are now in a position to fully question the aphorism that The Prince fulfills only the one role of acting as a mirror for kings. The power of Althusser’s dismantling of a homogenous aphoristic reading of The Prince is best apprehended by the following engagement with the ‘for whom’ question: “The first thought that comes to mind is that this treatise on The Prince serves the Prince, or even any Prince. But if we say that this work serves the Prince, or any prince, we immediately run up against the fact that it is a published writing – hence public – which tells everyone one man’s business; and hence that at the very moment it arms the Prince with its methods, it disarms him by making them public.”17 As it turns out, Machiavelli’s audience is neither one nor the other, the Prince, or the People, but rather, as Althusser says, a “double viewpoint.”18 Machiavelli’s The Prince then needs to be approached as political thought, intended to inform political theory and politics in practice. In this way, Machiavelli moves us from thinking through the theory of political forgiveness to its practices. We can say, harnessing the double viewpoint, a practice, a strategy, of political forgiveness is sensitive to multiple political actors, not only the Prince but the People. This double viewpoint of course opens up the possibility for tension and conflict between these two hegemonic actors in Machiavelli’s political thought. Filippo del Lucchese also asserts that Machiavelli’s political thought championed the people over the nobles, but adds that as a result of this, Machiavelli’s democratic thought was one that necessarily included the element of pg.242 POLITICAL FORGIVENESS conflict.19 In relation to the potential of the people to harness a politics of forgiveness, which Machiavelli could potentially champion, McCormick discusses how (according to Machiavelli) the people, out of necessity, must focus on outcomes over means. It is outcomes that “are the people’s chief concern.”20 This being the case, it is easy to see how the people, armed with the knowledge that the expression of their indignation through violence might very likely be forgiven, are incentivized to obtain their desired outcomes through whatever means. This necessarily entails a specific political context, a moment, a political space if you will. Luckily for the people, there is of course an additional element of Machiavelli’s thought that cannot be disregarded here; the context that gives rise to the possibility of harnessing a politics of forgiveness, the aleatory quality of political life. For virtū and fortuná smile on both Princes and people alike, how they engage the political space opened by fortuná is the subject of what follows. Political opportunity and forgiveness: Perhaps Machiavelli is correct, that one must be a prince to know a people, and must be part of a people to know the nature of princes; but princes and peoples do not arrive in their subject positions by pure chance or happenstance. As he wrote, “Many have held and hold the opinion that worldly things are so governed by fortune and by God, that men cannot correct them with their prudence, indeed that they have no remedy at all; and on account of this they might judge that one need not sweat much over things but let oneself be governed by chance.”21 Were this the case, Machiavelli’s project in The Prince would come to naught. For if it were the case that fortuná held complete sway over human affairs, how would one take the proposition of pg.243 POLITICAL FORGIVENESS counseling a prince seriously? Likewise, were it the case that princes and peoples alike forfeited their agency to chance, or contra Machiavelli’s aphorism did not attempt to “second fate,” forgiveness and mercy as such would be evacuated of any immanent meaning, and therefore the possibility of having a political quality. Or thought of another way, forgiveness would become pure means with no credence for an end. To be sure, people could still engage in forgiving acts, but these acts would be devoid of meaning. For on the one hand, if fortuná is found to be responsible for all outcomes, what need would a prince or a people have for mercy if mercy belonged alone to God or fate? Machiavelli does not allow this stance to abide. Fortune, he believes, does factor into the ends at which princes and peoples arrive. He judges “that it might be true that fortune is the arbiter of half of our actions, but also that she leaves the other half, or close to it, for us to govern.”22 There is an aleatory element to human existence; Machiavelli illustrates this by drawing upon examples of the forces of nature that humans cannot control.23 And yet, although princes and people struggle with the contingent nature of life, they still possess the will to attempt to affect outcomes in their favor. Thus, if princes know the nature of peoples they may better adapt to the chance of fortune, and this is likewise true for the people. According to Machiavelli, it is virtū that the shrewd political actor might harness in our favor, to bend the other half of our actions that fortuná leaves for us to govern. Virtū creates the space needed for the exercise of human agency and free will, to combat the aleatory world that princes and people inhabit. This space is what salvages the possibility of wresting mercy from fate, creating the needed condition to harness mercy and forgiveness as both political virtū and politics given birth to by fortuná. It is the space that makes the possibility of political forgiveness manifest. pg.244 POLITICAL FORGIVENESS Acknowledging that the world that is inhabited by princes and people is a world that is at least half defined by its aleatory nature is to acknowledge constant flux. Fortuná is everchanging; this is manifest according to Machiavelli as “one sees a given prince be happy today and come to ruin tomorrow without having seen him change his nature or quality.”24 Similarly, “things arise and accidents come about that the heavens have not altogether wished to be provided against.”25 Therefore, to adapt to the fluctuations of fortuná the good prince must be willing to adapt as contingencies arise. Machiavelli believes that “he is happy who adapts his proceedings to the quality of the times; and similarly, he is unhappy whose procedure is in disaccord with the times.”26 From this we can come to understand that although it is the case that through virtū princes and people reclaim mercy and forgiveness from fortuná, it is not always wise or advisable to engage in merciful acts. However, it must be remembered that without fortuná the space for that reclamation would not be provided for. If we take seriously what Machiavelli is telling us, and we have no reason not to, it is not enough to harness mercy as virtū, one needs to know when to use it. In the dispensation of this virtū, the possibility exists to be merciful when one should instead be cruel, or cruel when one needs to show mercy. Machiavelli offers a prescient example of this when in The Discourses he discusses one Piero Soderini who “proceeded in all his affairs with humanity and patience. He and his fatherland prospered while the times were comfortable to the mode of his proceeding; but as times came later when he needed to break with patience and humility, he did not know how to do it, so that he together with his fatherland was ruined.”27 Relegating fortuná to a mere half of what governs us, and elevating virtū to the mantle of mediating fortune, has an additional significant effect. To understand this effect, it is necessary to bear this in mind, but also to consider the proceeding; that virtū does not dictate an action one pg.245 POLITICAL FORGIVENESS way or another. Rather, in assuring one’s good fortune through virtū one must mold the “mode of one’s proceeding with the times.”28 Virtū does not dictate that a transgression against the prince, against the law, or even against the conscience, necessitates punishment or forgiveness. What Machiavelli clearly understands is that the decision to act mercifully or to punish in such a time is based on the quality of the political moment. Moreover, this moment properly considered is representative of a temporal opening. What fills this space that is opened in time is a political opportunity, a politics of fortuná. This opportunity is what holds the capacity for political actors to exercise their virtū. Princes and people, Machiavelli discourses, “have been brought to ruin or to greatness through a great advantage that the heavens have provided them, giving or taking away from them an opportunity to be able to work virtuously.”29 The key is to be able to recognize the space that is opened by fortuná. Furthermore, the political act that might fill this space is conditioned by the self-same space. For a prince and a people to have knowledge of this fact creates the conditions of possibility for political forgiveness in the hands of the prince, and a politics of forgiveness at the disposal of the people. In the latter instance, fortuná may create the necessary conditions to change policy according to the contingencies of the times, opening the way for disobedient, seditious, tumultuous, and even rebellious acts to be forgiven. This is not because it is right to forgive these acts, and not because one is especially merciful; one might even be especially cruel and still act in a merciful way towards subjects who are seditious. No, it is simply that the virtuous prince or a people will understand that the quality of the times dictates that the prince must act mercifully and forgiving. This of course does not necessitate the prince actually being merciful, but rather that the prince has the capacity to act as if he were. If we are to say then that there exists a possibility for a successful politics of forgiveness, it would pg.246 POLITICAL FORGIVENESS necessitate a people who understand the quality of the time not only as a moment, but as their conjunctural moment. Machiavellian mercy: Given what has preceded, we can now ask (bearing in mind the ever-present double viewpoint and the dual political subjectivities attached to that viewpoint of the Prince and the People): how does Machiavelli counsel dispensation, or withholding for that matter, of mercy as political virtue in moments of political opportunity? Chapter XVII Of Cruelty and Mercy, and Whether It Is Better to Be Loved Than Feared, or the Contrary is one of the most famous (or infamous!?), and misunderstood, chapters in Machiavelli’s The Prince. It is one of the chapters that most convinces those readers who are not attentive to the complexities of his writing that Machiavelli’s Prince should be a ruthless leader who is feared by his/her subjects. Of course, nothing could be further from the truth. Because of our encounter with the tradition of reading Machiavelli as a thinker sympathetic to the people and an appreciation for the prince’s attentiveness to virtū, we know that reading Chapter XVII requires the nuance of thinking through the selective utilization of mercy by the Prince, as well as how the people receive and perceive these actions. Machiavelli writes, “each prince should desire to be held merciful and not cruel; nonetheless he should take care not to use this mercy badly.”30 To make this point clear Machiavelli draws upon his own political experience as a witness to political unrest in Pistoia, a city ruled by Florence. He juxtaposes Cesare Borgia’s apparent cruelty against the example of the Florentines' apparent lack thereof. Borgia, as Machiavelli tells it, was appraised as cruel pg.247 POLITICAL FORGIVENESS rather than forgiving, yet the result of his apparent cruelty was a placid and peaceful political order in his Romagna. Pistoia on the other hand was racked by violence and torn apart, according to Machiavelli because the Florentines did not have the stomach for cruelty, nor did they understand the quality of the time that they faced. When weighed against one another Machiavelli concludes that although Borgia engaged in cruel tactics at times, in sum total his reign was more merciful. A prince, therefore, so as to keep his subjects united and faithful, should not care about the infamy of cruelty, because with very few examples he will be more merciful than those who for the sake of too much mercy allow disorders to continue, from which come killings or robberies; for these customarily hurt a whole community, but the executions that come from the prince hurt one particular person.31 The objective of the appropriate ratio between the practice of mercy and cruelty in the hands of the prince is clear; either the founding of a body politic that is both united and faithful or the maintenance of an already existing body politic. To achieve this objective Machiavelli presents a range of possible outcomes for a political practice that quite clearly is not merciful in itself, but will be more merciful in its outcome. There is a quotient of mercy that is beneficial, and a quotient beyond which the body politic descends into tumult. Similarly, one may govern with humanity, but too much humanity has the potential to render princes hesitant, which Machiavelli appraises as “intolerable.”32 Machiavelli is very clear that the wisest course of action is for Princes to be held merciful. This does not actually need to entail being merciful, it is the perception of being a forgiving individual that the Prince should desire. The remainder of pg.248 POLITICAL FORGIVENESS Chapter XVII confirms this position, as Machiavelli turns his attention to discussing if it is safer for a prince to be feared or loved. The presupposition is not one between a merciful prince being loved and a cruel prince being feared as is often argued.The question, rather, is: which mode of governing is safer? Machiavelli answers that indeed it is safer for princes to be feared, precisely because mercy is easily misused. And again, when a prince is feared, this does not preclude the intention of a merciful reign. Machiavelli’s answer here also points to the fact that, like his own thought regarding them, he believes that mercy and forgiveness are complex and nuanced. For as Machiavelli is well aware, “fear is held by a dread of punishment that never forsakes you.”33 Where political subjects are held in fear of punishment, a placid political order will be found and the prince's reign will be considered merciful. Realism and reconciliation: The foregoing should not be understood as extinguishing any meaningful role for mercy or political forgiveness. What it does, because of the complexity of the construct, is to significantly raise the import of how Machiavelli understands mercy. The Prince should focus on merciful outcomes of their political practice, a politics with an eye toward mercy rather than a practice of political forgiveness. In the course of The Prince Machiavelli never actually counsels how the Prince should be forgiving, or merciful. His counsel is more specific; it is for the prince to not use mercy badly.34 There are two elements here, an ideological element, and an actual practical element. The question becomes, which has primacy, the ideological element or the practical element? Given what we know of Machiavelli’s thought, it is of little surprise that the practical element is presented as more salient. Turning once again to Machiavelli’s example of pg.249 POLITICAL FORGIVENESS Cesar Borgia furnishes support for this assertion. Machiavelli writes that Borgia was “held to be cruel.”35 Interpreted another way it can be said that Borgia was appraised or perceived to be cruel. However, the reality of Borgia’s rule is in the practice, not in the ideological element. Once the political calculus is taken into consideration, Machiavelli concludes that Borgia was perceived to be cruel, but this perception was ill-founded because his political practice ultimately led to merciful outcomes. In contrast, the Florentines, whom Machiavelli is juxtaposing against Borgia, did not wish to be thought of as cruel and so acted in an overly forgiving and merciful fashion. The context of Machiavelli’s discussion of Borgia’s reputation for cruelty, and the Florentine's desire to be held merciful, represents a crucial intervention , one that is all too frequently misunderstood. A careful appraisal reveals that Machiavelli, ever the realist, is valueneutral regarding mercy and forgiveness. One must nest these concepts within a given political context for any of Machiavelli’s many critiques of them to become intelligible. When this is done it is clear that Machiavelli is skeptical of princes who are merciful with an eye toward their private particular interests rather than the public good. This is why he is so critical of the Florentines in comparison to Borgia. For the Florentines were merciful so that their own reputation would be one of leniency. The result of their actual practice, however, was in fact cruel. At this point, we can now turn back to the question that Machiavelli has created for us, what does it mean to use forgiveness or mercy badly? And in point of fact, what are the consequences of a political practice that uses forgiveness badly? In addition, we need to ask whether or not Machiavelli foresaw a positive utilization of forgiveness in the hands of the Prince. And finally, if we turn again to the double viewpoint thesis, how do the people (as opposed to the Prince) factor into a politics of forgiveness? Mercy and forgiveness are states to pg.250 POLITICAL FORGIVENESS be arrived at when speaking of generalities. The particular cases he is concerned with in Chapter XVII are those in which princes must act decisively, in cases against specific individuals, but it is clear these acts need to benefit the public interest, rather than private ones. Such acts illustrate a demonstrable lack of virtū. These dictates and practices such as those of the Florentines in Machiavelli’s example represent one outcome of political forgiveness. Alternative practices can dictate something altogether different. In contrast to my claim that in Machiavelli we often find the people benefiting by leveraging a combination of fortuná and political forgiveness is another view of mercy. This is the view of mercy and forgiveness that frequently accompanies Machiavelli’s analysis of how it is that rulers and nobles come to ruin through reconciliation. On this topic McCormick cites Machiavelli’s tale of Cesare Borgia’s ‘reconciliation feast’ which he hosted for Paolo Orsini.36 Orsini was a nobleman, a lord, and one of Borgia’s adversaries. After winning over Orsini with lavish gifts Borgia invited him for a reconciliation feast, at which Borgia strangled Orsini to death along with the other nobles and lords in attendance. Orsini and the other nobles, blinded by arrogance and hubris, are taken in by Borgia’s apparent willingness to reconcile to their demise. One can only assume that the tale is meant to serve as Machiavelli’s indictment against the vanity of rulers and nobles. It is telling that no such tales of acts of mercy and forgiveness are offered by Machiavelli as an indictment against the people. McCormick also makes reference to the same excerpt from Machiavelli that I have noted elsewhere, that of Borgia’s apparent cruelty compared to the Florentines' apparent mercy. The excerpt finds Machiavelli approving of Borgia’s apparent cruelty while condemning the Florentines' apparent mercy. It seems Machiavelli has a penchant for strongly rebuking nobles, lords, and leaders for their malpractice when it comes to political forgiveness. But this is not the end of the story for Borgia, or the pg.251 POLITICAL FORGIVENESS thematic of forgiveness in his story as McCormick points out. He recounts that as Borgia’s life drew near the end and he became ill, he was complicit in the ascendancy of a new pope, whom Borgia himself had offended, and who would eventually deprive Borgia of his rule.37 McCormick attributes this to the fact that Borgia broke a “Machiavellian maxim: Great men never forget an old injury.”38 Borgia, once a manipulator of political forgiveness, becomes taken in by forgiveness and a pawn. He is, as McCormick writes, “ruined” by forgiveness and his “mistaken belief in it.” 39 Once again, this kind of rebuke of forgiveness is reserved only for the high, the noble, or those in power. Machiavelli disciplines the noble Orsini and the duke Borgia for their belief in reconciliation. Later when we will see it exercised from below, there is no such condemnation. Dialectics of conflict and forgiveness: As we have already seen, for Machiavelli, acknowledging how the world is and how people act in it requires the honest thinker to acknowledge conflict. The thematics of mercy and forgiveness seem much more at home in the approach to politics that attends to achieving the common good and civic harmony, and banishing conflict from the political sphere, approaches that Machiavelli definitely eschewed. In the quest to attain the common good or civic harmony, one can imagine that the path traveled would be one populated with many instances of political actors engaging in merciful and forgiving acts towards one another in the service of reconciliation. To walk in Machiavelli’s footsteps and acknowledge the centrality of conflict to politics does not mean to sacrifice oneself to despair. Nor does it mean ceding the thematics of mercy and forgiveness to those who wish to approach politics from the perspective of how pg.252 POLITICAL FORGIVENESS people ought to act rather than how they do. Here I consider Machiavelli’s belief that conflict could be just as generative as it could be destructive, to demonstrate the novelty and necessity of his thought pertaining to mercy and forgiveness. The novelty of Machiavelli’s approach is that for him, the act of being merciful or forgiving may be innocuous, but these acts also have the potential to surreptitiously smuggle in power politics under the guise of magnanimity. To admit Machiavelli’s political thought is bound up with political conflictualism is not to ascribe to him a unitary theory of political conflict. In point of fact, theorists and continue to, examine the different ways that conflict was central to Machiavelli’s thought. McCormick has centered how Machiavelli understood conflict, arguing that when it was channeled through proper political institutions conflict could have “salutary effects.”40 In fact, McCormick has penned a book-length argument for the importance of institutions in channeling political conflict titled Machiavellian Democracy. Pedullá writes that as Machiavelli knew, “since conflict is always present one must learn to live with it and, hopefully, discipline it…”41 Lucchese also takes up this theme, augmenting the notion of the ‘common good.’ He writes that prior to Machiavelli’s thought, the “common good is essentially the institutionalization of…concord, its transformation into a constitutional principle.”42 According to Lucchese it is against this idea that Machiavelli’s realist critique progresses. However, Lucchese’s argument differs slightly from the position that political conflictualism comes to displace the common good in Machiavelli’s thought. In fact, Lucchese proposes that Machiavelli takes the notion of the common good and inverts it and uses it “with the clear meaning of faction.”43 Lucchese argues that in Machiavelli’s thought we find a juxtaposition between private good and common good in which he, Machiavelli, understands the former to be to the benefit of a few citizens, and therefore the latter belongs not to everyone but rather to the many.44 Thus the seeds of factionalism are sown in the pg.253 POLITICAL FORGIVENESS discursive enactment of governing for the ‘common good,’ when in fact what is at stake is governing for private interest, depending on who is in power at a given time. Of these analyses, Pedullá’s argument is unique in that he seeks to fuse Lucchese’s thought, which he argues focuses on tumults, and McCormick’s thought, which he charges with focusing on institutions. Pedullá attributes these two thinkers’ intellectual preoccupations to Lucchese’s thought deriving from a school that centers on constituent power, and McCormick’s thought deriving from a school that centers a populist reading of Machiavelli.45 Fused together, they work in tandem in pursuit of Pedullá’s focus on elucidating the modes of tumultuous upheaval at work in Machiavelli’s thought and time. Accordingly, it was not conflict as such that was or is bad, rather, Machiavelli thought that “conflict between fellow citizens should not be seen as a sign of corruption, as it is for the theorists of concord; on the contrary, it is moral degeneration that makes social conflicts dangerous and “good laws” ineffective.”46 McCormick traces the sources of this degeneration to individuals who “intimidated the many with force and who cultivated the few with favors.”47 In Machiavelli’s texts, when institutions failed the people and corruption became rampant, the mode of expressing the peoples’ grievance was to engage in tumults and riots. Pedullá argues that in these modes we find two distinct categories, ordinary and extra-ordinary, the former of which Machiavelli expressly endorsed as possessing generative possibilities.48 The difference between the two modes comes down to the expression of violence, when “there is no bloodshed, the tumult will be considered positive; reversely, when the struggle takes a violent turn, it will be roundly condemned.”49 Pedullá maintains that for this reason, Machiavelli’s preferred modes of tumult took the form of passive resistance notably carried out in the form of secessios and detractio militias.”50 The former in practice meant when the plebs engaged in a peaceful exodus pg.254 POLITICAL FORGIVENESS of the city (a strike if you will), and the latter meant the plebs withholding their support for military endeavors. Both of these had the effect of threatening the safety and security of the patricians in a given political order. Lucchese acknowledges, like Pedullá, that there is such a thing as a good or bad tumult in Machiavelli’s thought. The question that needs to be answered for my inquiry is whether or not those tumults that Machiavelli recounts in The Florentine Histories count as good or bad tumults. On the face of it, if we follow Pedullá, his typologies of tumults in Machiavelli would have us leaning towards describing them as ‘bad.’ But because Machiavelli is a realist, and because as we already noted, he believes that the people have as their chief concern outcomes, the question, I believe, is not a settled one. If the Ciompi Revolt is assessed with outcomes in mind, as Lucchese does, for instance, it seems one would need to place this occurrence in the column of good tumults. As Lucchese points out, the plebs fought for concessions, political representation, and better conditions for their laboring, and they won.51 This does not excuse the violent nature of their riots, but, Lucchese seems happy to admit that given the outcome was a net gain for the plebs, and they won more rights, the riots and tumult can be chalked up as a success. Pedullá insists that just because Machiavelli was supportive of the positive effects of civil conflict, this does not mean that he was in favor of a complete institutionalization of that conflict. In fact, we even see McCormick’s penchant for institutions partially in support of this perspective. The aspirations of the nobles, writes McCormick, “are more damaging to a republic than that of the plebs, and the latter need more than one means, such as the tribunate, to hold back the insolence of the great.” It should not escape our notice that the explicit context of McCormick’s first mention of Machiavelli’s views on conflict comes in reference to the ciompi pg.255 POLITICAL FORGIVENESS revolts that occupy the majority of book III of The Florentine Histories. This occurrence also happens to be the source of my firmest argument for Machiavelli’s understanding of the power of political forgiveness harnessed by the people. To the layperson, it might seem strange to think that forgiveness and mercy find a prominent place in the work of a thinker like Machiavelli, whose theory of politics relies so much on political conflict. It is not strange; in fact, it is precisely the acknowledgment, centering, and purposive cultivation of the thematic of political conflict that enabled Machiavelli to think so carefully and with great calculation on the subjects of mercy and forgiveness. Machiavelli’s realism forced him to consider the outcomes of conflict, outcomes in which a prince or a people demonstrate mercy or cruelty to their defeated enemies, and/or the potential to marshal political forgiveness to advantage, and effect outcomes in the favor of a prince or people. Machiavelli is led at times to praise the dispensation of mercy while at other times he is extremely critical of merciful acts. But this does not mean that Machiavelli is ambivalent regarding the practical uses of mercy and forgiveness. In fact, it is quite the opposite. If one considers the outcome of mercy or forgiveness as the outcome of the outcome of a conflict, it is clear that even after a conflict's cessation there remains a final step in which the prince or the people can gain the upper hand politically. Seen through this lens, the interplay of mercy and forgiveness as the “outcome of the outcome” of a conflict are actually constitutive elements of the conflict itself. In short, to win the political or military contest over the initial stage of a given conflict matters little, if you cannot win the final stage of that conflict, the contours of which are defined by forgiveness. Machiavelli’s approach to mercy and forgiveness, far from ambivalence, is extremely deliberate. This is demonstrable in his ability to think not only about outcomes that could be merciful, but also outcomes as they are effected by merciful or forgiving political actors. Now we can see that pg.256 POLITICAL FORGIVENESS mercy and forgiveness have a presence across the conflictual landscape in Machiavelli’s thought, not only as the secondary outcome of conflict but also as a specific tactic, the knowledge of which can impact the initial outcome. Forgiveness in The Florentine Histories: The Florentine Histories represents a brilliant companion to The Prince for the purpose of establishing the complexity of political forgiveness in Machiavelli’s work. Returning to the dedicatory note at the beginning of The Prince and Machiavelli’s would-be landscape, we note once again that the geographic touchstones Machiavelli calls upon are the plains and high places representing the heights of political power in the latter case, and the position of the people of a body politic in the former. To be sure, The Florentine Histories is a substantially different text than The Prince, however, in its pages we still find two foundational political actors that occupy Machiavelli’s two geographic touchstones; political subjects and those who occupy the heights of political power. Furthermore, reading these texts together has the added benefit of bringing greater analytical rigor to the present analysis. This of course relies on a reading of Machiavelli’s oeuvre that is contiguous in nature, meaning each text can be read in light of the other texts. As Gramsci points out, this is specifically Machiavelli’s intent. In The Prison Notebooks Gramsci remarks that “the History of Florence must be related to The Prince; this was precisely intended to serve as an analysis of the real conditions in Italy and in Europe from which the immediate demands contained in The Prince spring.”(Unattached Footnote) 52 In contrast to The Prince’s preoccupation with the twin themes of founding and maintaining a great city, The Florentine History’s animating principle is the tendency of the power of bodies politic to rise and decline. pg.257 POLITICAL FORGIVENESS One might consider these principles as related, though related in a way that an image is perceived through a camera obscura. This vacillation in status owes greatly to the reality that Florence was a city, as Machiavelli tells it, that was ravaged by the twin political problems of corruption and license. As a result, Machiavelli asserts at the opening of Book III that Florence’s domestic politics were perfectly reflective of “the natural enmities that exist between the men of the people and the nobles, caused by the wish of the latter to command and the former not to obey…”53 Crucial for Machiavelli is that these enmities are a constant in politics and not necessarily to be abhorred; the result of the different passions that exist within a body politics do not necessarily lead inexorably to corruption and license and fractious violence. Book III of The Florentine Histories opens with Machiavelli offering ample evidence for this, citing the presence of various passions and political rivalries in Rome. This is because the result of the enmities that plagued Rome would, on the whole, tend toward that city’s virtuousness and liberty. In contrast is Florence, where as Machiavelli described, the sum total of Florence’s internal strife would lead it to become “humble and abject.” 54 The issue that Machiavelli seeks to impress upon his reader is that as stated, there will always be natural enmities in bodies politic, but it is when these enmities devolve into factions that problems arise, as they did in Florence. What we find ultimately is that in the case of Florence, plagued by factions, Machiavelli’s geographic metaphors from the dedicatory note of The Prince are never held or possessed by one political entity for very long. In the pages of The Florentine Histories, the capture of political power in Florence and then its capitulation moves dialectically between the common people and the nobles, cycling between rise and decline, corruption and tyranny, never settling on a state of liberty. We see one side of the factions never wanting to be dominated, and the other hoping to command with ever greater security and acumen, secreting away the liberties and rights of the pg.258 POLITICAL FORGIVENESS people. All of this is to say, Florence’s internal politics with its continuous ferment and tumult presents something of a proving ground for a politics of forgiveness. For if it is the case that often princes use political forgiveness to their own detriment, is it not possible that a people might mobilize a politics of forgiveness to their benefit? The Florentine Histories appears to be a different kind of text than The Prince, this owing to its empirical nature and historical content. However, both texts are shaped by Machiavelli’s realism and his belief in the primacy of the political. There is a kind of thematic consistency between the two texts’ accounts of histories and politics shaped by merciful acts and barbarous villainy. But there is an important shift in perspective between the two. The Florentine Histories offers a kind of camera obscura to Machiavelli’s The Prince. Rather than counsel to a prince, what the histories represent is a depiction of the politics carried on in the wake of imperfect governance. As Quentin Skinner points out, rather than counseling or recounting the virtū of The Prince, in The Florentine Histories we find Machiavelli warning against the ravages of corruption and license that fortuná might wage. Thought of another way, perhaps The Histories is an account of all the ways that fortuná plays towards the common people, the low, the plebeian. There is a constant vacillation between the common people and plebeian desires pushing Florence into a state of pure license, and the backlash from the nobles to these endeavors. What we ultimately find in this vacillation is representative of the pendulum swing from a politics of tyranny to a politics of license. In point of fact, the politics of forgiveness that Machiavelli often recounts in the pages of the histories takes the form of empirical accounts of all those practical misuses of mercy discoursed upon in The Prince. Nowhere in The Histories is this more apparent than in Book III. Machiavelli’s narrative arc over the course of Book III follows the class struggle in Florence for political power in the city: from the rise of the common pg.259 POLITICAL FORGIVENESS people to the conquest of the plebs and lower classes, their ascendency to political control, and finally their fall and the re-ascendance of the nobles. Underlying these shifts are a politics of forgiveness that haunts the corrupt of the city and empowers the disenfranchised, the admonished. In what follows I will reconstruct Machiavelli’s telling of Book III of The History of Florence in light of how it is specifically animated by political forgiveness. The ability of the plebs to obtain political power in the city of Florence was a direct result of three factors: first, their awareness of the nature of those in political power, namely their lack of virtū; second, their openness to engage in tumults as a result of the corruption of those in power; and finally, a commitment to carry on their licentious behavior because they were open to pursuing a political forgiveness. In this context, it was specifically the continued conciliation to plebeian demands and forgiveness of plebeian political violence that enabled their rise and their capture of political power. This conflict represents the entirety of the context of Book III; it is about “the enmities between the people and the plebs, and the various accidents they produced.” 55 This is a history that is representative of the opening of a political space. The specific space opened that enabled the disobedience of the plebeians in this context was a gift of fortune to those open to a politics of forgiveness. The tumultuous and violent history of Florence that Machiavelli traces in Book III of The Florentine Histories, between the years 1378 and 1381, is a history deeply influenced by these politics. Yet their origination finds itself situated even further back in the history of Florence in the mid to late 1200’s, when the power of two factions, the Guelfs and the Ghibellines, sedimented forming the bedrock of the fractious tumults that would plague Florence in the coming century. The Guelf party, historically, was associated with support for the papacy while the Ghibellines, by and large, were associated with support for the Holy Roman Empire. This is a pg.260 POLITICAL FORGIVENESS common place understanding of the division, for as Machiavelli illustrates throughout The Florentine Histories, the monikers of Guelf and Ghibelline truly served as a mark of distinction between different factions in the life and politics of the city. Machiavelli relates early in book II of The Florentine Histories that, owing to peace outside the city and peace within it, the factionalism that drove disputes between Guelfs and Ghibellines subsided. Humors remained in the city, but Machiavelli is happy to attribute the divisions present in Florence at that time to the natural humors that exist in any body politic rather than the feud between the Guelfs and Ghibellines. Almost one hundred years later in history, at the beginning of Book III in The Florentine Histories the factional feud between the Guelfs and Ghibellines reemerged. Machiavelli writes that at this time the Ghibellines, as a result of the aleatory nature of the passage of time, ascended to power in the city of Florence. 56 And, with their ascendance, the factional violence associated with their allegiance and that of the Guelfs reemerged as salient in the life and politics of the city. This happened as the direct result of the resurrection of a law promulgated much earlier in Florence, that deprived the Ghibellines of the ability to hold magistracies. 57 In sum, this deprived them of political representation and the ability to utilize the political institutions of Florence in their favor. Machiavelli is at pains to point out that this reemergence of the rift between Guelfs and Ghibellines was, on his account, a very unfortunate happening in Florence. For as he comments, any law made that regards long forgotten history is extremely damaging to the life of a republic. 58 From the context of Machiavelli’s discourse on this topic it is very clear that the division in the city between Guelf and Ghibelline mapped onto pre-existing political rivalries between powerful families. The result of the resumption of these rivalries was of great significance, for with them arose a practice new in the city of Florence, that of admonishing. Admonishing, originally practiced by the Guelf party, was meant to sap the pg.261 POLITICAL FORGIVENESS political power of rival factions by preventing their attainment of political office and magistracies. Forgiveness as a restive power: Over the span of the years referenced above that coincided with the rise and fall of the plebs, what Machiavelli describes is a series of events manifestly determined by numerous acts: beginning with corrupt admonishments followed by rebellions, of disobedience continually followed by conciliation, and demands made by the nobles of the city for repentance (a demand manifestly meant to bring the plebs to heel), met with indignation and resistance and constantly acquiesced to by political powers. The historical context that undergirds the enmity in Florence is defined by two opposing factions, comprised of “ancient nobles…and powerful men of the people” and “popular men of the lesser sort” coupled with the multitude. 59 The latter of these two groups was unique in that amongst its numbers were “the admonished.” 60 To be admonished in Florence was to be prevented from attaining the position of any magistracy in the city. That is to say, not only had the admonished been officially rebuked by those in political power, but they had also been prevented from attaining official political power. The practical result of this was to ensure that one of these two Florentine factions had little to no political representation. In any body politic there are those citizens who, perhaps, have been rightfully admonished. However, as Machiavelli recounts it, the leaders of the faction of ancient nobles, “their boldness increasing with time, admonished without any respect not only those who merited it but anyone they pleased, moved by whatever avaricious or ambitious cause.” 61 Therefore, the power of the faction of the already powerful nobles grew greater, and as Machiavelli explains, citizens grew pg.262 POLITICAL FORGIVENESS more fearful of the potential of being admonished. Rightfully so, as it is a particularly enraging human experience to be reprimanded or rebuked when you have done nothing wrong! How might the common people who had been admonished be forgiven if they had truly done nothing wrong? This actually led the powerful nobles to fear those who had been admonished for they perceived that as the numbers of the admonished grew, so too did their disdain for their lot in the life of the city. Truly these citizens had but only one outlet to voice their distain, that of tumults, for having been admonished, recourse to institutional avenues was shut to them. Thus, having already robbed the common people of their magistracies and effectively disenfranchised them, the men of the ancient nobles would not be placated and came to decide out of fear that their adversaries, the admonished would be completely removed from the city by force of arms.62 Ever the historian, Machiavelli does not conjecture whether or not this plot would have succeeded. He only informs us that the selection of Salvestro de’ Medici, who could not “bear that the people should be oppressed by a few powerful men” was selected as Gonfalonier.63 His intention was to marshal a kind of political forgiveness on the behalf of those who had been admonished. In effect he intended to forgive those who did not need to be forgiven, an act that would have the effect of exposing the corruption of those on the side of the ancient men of the nobles, and simultaneously diminish their ability to dominate the common people. However, Salvestro de’ Medici was unable to succeed in his efforts. Stymied by the intensity of the political factions present in Florence, he abdicated his position, after recognizing he would not be able “to correct the insolence of the powerful and to temper those laws by the use of which one would see the republic ruined.”64 The context would indicate that the laws that Machiavelli references through the voice of Salvestro are those laws by which the Guelfs were able to admonish citizens indiscriminately, exacerbating the intensity of the factions of Florence. It was this event, the pg.263 POLITICAL FORGIVENESS threat that political forgiveness presented in its ability to bring some power back to the admonished, that was the precipitating event of the tumults that would bring the common people to the heights of political power in Florence in 1378. The genesis and severity of the tumults that followed the abdication of Salvestro de’ Medici can be traced to twin facts, both which I argue can be attributed to fortuná. One of these facts was the creation of a balìa, a form of authority granted to those with political power in the city (in fact an exceptional form of political power), in order to put down the tumult. The second fact was the actions taken by some of the common people and plebs to burn the houses of their enemies.65 There is a crucial footnote in the text regarding the form of power that the balìa had. The text makes note that the balìa had potestas, this indicates a power that is super-added, not inherent in the normal political functions of those who occupied a role in the balìa. These two facts of fortune worked in tandem with one another, in a mutually now-antagonistic/nowopportunistic duality undergirded by a politics of forgiveness. The creation of the balìa would, paradoxically, enable the tumult to continue, grow in severity and eventually give the common people the opportunity to achieve victory and rule of the city. For the rebellious acts grew in severity with the common people burning more homes in a cascade of political revenge for admonishment and disenfranchisement, for “evils begin with difficulty and grow with ease.”66 The cruel twist of fortuná was that with the balìa in place, a ready-made solution to the tumult presented itself to those with the authority of the balìa in Florence, for with that authority “grace [was offered] to the admonished with the proviso that for three years they could not hold any magistracy.”67 Note how even in receiving grace the status quo power structure of the city remains intact. The plebs, although forgiven, do not obtain the political representation desired in the immediate aftermath of the grant of grace. As a result of the continued denial of political pg.264 POLITICAL FORGIVENESS representation, a cycle of rebellion and conciliation began anew. Now, having acted with great license, the common people were met with not reprimand, nor punishment, rather they were greeted with conciliation. And when one witnesses that rebellion, resistance, and sedition are met with conciliation rather than punishment, the terrain has been laid to continue to marshal these politics. The common people’s sacking of the city was met not only with an offer for forgiving their status as admonished, but “laws prejudicial to the citizens made by the Guelfs” were also abandoned.68 These things having been won through rebellion and forgiveness, the textual context of what follows indicates perfectly clearly an awareness on the part of the common people that a space had been opened by fortuná to win political power through a strategy of leveraging ever more forgiveness from those with power in Florence. This is emblematic of the Hobbesian model of political forgiveness that we have already explored. Those in power were not appeasing the common people of Florence out of a desire to bring peace to the situation and end the tumults, no, rather, their appeasement was motivated by fear. This was the kind of fear that Hobbes had in mind in his model of political forgiveness, fear for the stability of those who possess power. But the consequence of this forgiveness motivated by fear is manifest in the current example, for having already won a partial forgiveness, perhaps they could achieve other things knowing the possibility of forgiveness existed. And the citizens took to this at once, as evidenced by the response to the offer of partial forgiveness for the admonished. As Machiavelli comments with regards to this incident; “it is not enough for men to get back their own but they also want to seize what belongs to others and get revenge, [as a result] those who put their hopes in disorders pointed out…that they would never be safe if their many enemies were not driven out and destroyed.”69 The great irony was that revenge was enabled precisely through forgiveness on the part of those exercising authority under the balìa. Partial forgiveness to the pg.265 POLITICAL FORGIVENESS admonished was not enough; as what was done was done; and what came next illustrated to the common people a lack of virtū on the part of the nobles. It is this apparent lack of virtū that would enable “fortune’s wheel” to continue to turn in the direction of the common people and their continued revolt. What happened next in the history of this conflict is of great importance, for addressing the assembled common people Luigi Guicciardini, minister of justice in the city, attempted to foment feelings of guilt and remorse amongst those responsible for the trouble.70 Having just won conciliation against their former status of “admonished” they were once again admonished. Guicciardini pleads with the assembled multitude thusly: Tell us by your faith, what more can you decently desire from us? You wanted to take authority away from the captains of the Party: it was taken from them. You wanted that their bags be burned and that new reforms be made: we consented to it. You wanted the admonished restored to their honors: this was permitted. By your urgings, we have pardoned those who burned houses and despoiled churches…What end will these demands of yours have, or how long will you abuse our liberality? Do you not see that we tolerate being conquered with more patience than you tolerate victory?71 Guicciardini, in the above quote, offers us a list of concessions granted to the common people won by rebellion and met with continued conciliation and forgiveness. By what measure can one expect that a successful political practice, one that continually amasses power, could be reasonably abandoned? One can rightfully argue that in these pleas to the common people of Florence, a concrete example of Machiavelli’s critique of liberality can be found. For as pg.266 POLITICAL FORGIVENESS Machiavelli counsels in The Prince, “liberality, when used so that you may be held liberal, hurts you.”72 The facts being what they are, as handed down to us by Machiavelli, Guicciardini’s pleas attempt to paint those in power as liberal; motivated both by a desire to be held as liberal and a well-founded fear of a loss of power. The tumultuous common people of Florence were successfully quelled by these reprimands only after having won their political concessions. All of this was because they were able to intuit and had the virtū to note that their insubordination would be met at each step with forgiveness and mercy, rather than vengeance and punishment. However, not all in Florence had been conciliated and resigned to quiet. These tumults in the beginning were stoked by anguish over issues that were essentially political in nature and carried on by the common people of Florence with the aid of the plebs of the city. Unlike the common people’s participation in the struggles, the plebs’ continuation of the tumults were not carried out in the name of political grievances but rather economic ones. For the plebs saw too that the common people were able to win conciliation by virtue of their marshaling a politics of forgiveness, and fearing retribution and scapegoating for the arsons they participated in sought to carry on their misdeeds.73 Being plebs, the nature of their economic fortune was precarious, and further compounded as a result of not having guilds of their own.74 The guild system was an important institutional facet of economic life in Florence. Having a worker’s guild of one’s own meant being able to make claims of redress with the backing and power of an official political institutional structure. Instead of their own guild, the plebs were incorporated into other guilds by virtue of the nature of their work, thus creating a structural deficit.75 Manifestly the plebs had no representation and no recourse for grievances. And grievances there were, including not being fairly compensated for their labor and being “oppressed by their masters.”76 In response to these material conditions, the cycle of violence pg.267 POLITICAL FORGIVENESS and appeasement, rebellion and forgiveness was carried on in Florence by the plebs even after the common people had achieved their demands. What had become apparent in the aftermath of the ensuing cycle of violence were the strategic benefits of not being willing to lobby for change and reformation (especially given the structural deficit in the economic system present in Florence), but rather the benefit that action would bring, namely forgiveness coupled with greater liberties and rights in the life of the city. After all, there is very little hope in redress when redress has continually and historically been denied prima fascia. It is commonplace that acts of resistance, rebellion, and sedition take place in a political register in order to obtain rights, freedom, liberty, recognition, and political power. However, lost in the common place understanding is the concomitant import of forgiveness. There is a dialectic in these actions, consisting of on one hand requesting concession and on the other forging ahead, acting, and hoping for conciliation in the aftermath of action. The plebs in Florence approaching the revolution of 1378 were well aware of the notion that one possible guarantee of political freedom is a politics of forgiveness. It is our advantage, therefore, as it appears to me, if we with that our old errors be forgiven us, to make new ones, redoubling the evils, multiplying the arson and robbery – and to contrive to have many companions in this, because when many err, no one is punished, and though small faults are punished, great and grave ones are rewarded…Thus in multiplying evils, we will gain pardon more easily and will open the way for us to have the things we desire to have our freedom.77 pg.268 POLITICAL FORGIVENESS This quote encompasses an alternate articulation of political forgiveness. It is demonstrable proof of the plebs’ twin goals, the first to avoid being punished, and the second to obtain greater freedom in the life of the city.78 These politics are representative of a delicate interplay in which forgiveness is the condition of freedom, in which freedom and forgiveness are mutually constitutive in this specific manifestation of politics. However, what is also clear is that there is a delicate balance to strike. For also clear in this case is that the endless pursuit of political forgiveness holds with in it the possibility of the conditions of the highest form of political unfreedom: tyranny. A tyrannical form of politics is both where Machiavelli begins Book III and where the reign of the plebs ends. As we shall see, this is the precise end of the rule of the plebs in 1381, a true manifestation of a tyranny of the majority. This is Machiavelli’s assertion, that politics in Florence swing from one extreme to another, from corruption to tyranny. That is precisely why he begins Book III with the juxtaposition between Rome and Florence. Rome was a city made great because of the enmities between citizens, and Florence was a city brought to ruin too frequently by enmities between citizens. This is not the end of the juxtaposition though, for Machiavelli wishes to draw out a higher critique than simply pointing towards the ruin or greatness of a city brought on by enmities between citizens. It has already been shown that enmities can lead to faction, which can lead to tyranny, but there is an alternative; enmities between citizens have the potential to be generative. This point is brought out by Sheldon Wolin, that divisions are a cause and creator of liberties. Wolin comments that Machiavelli believed that factions could not be eliminated and as a result they should be “regulated,” and in doing so we might recognize the “vitality” of a body politic.79 This is why, as Wolin points out, in Rome, “the contests between the patricians and the plebs…resulted in better laws and greater liberties.”80 This analysis provided by Wolin comports completely with Machiavelli’s juxtaposition of Rome pg.269 POLITICAL FORGIVENESS and Florence at the outset of Book III. Perhaps if Florence had been able to realize greater public liberties as a result of the factions existing within that city in the times Machiavelli describes, it would have been saved from the travails it experienced. But this was not to be. As we know from The Histories, the opposite was true, and Florence vacillated between the tyranny of different factions. It should come as little surprise that prior to writing The Histories, Machiavelli already had a sense that mercy could be pursued not only to a fault, but to a tyrannical politics. Machiavelli warns against this expressly in The Discourses’ Chapter 28, Book III. In these pages is a warning, a harbinger of the possibility of mercy and acts of forgiveness leading to tyranny. He writes, “it is to be noted that many times acts that appear merciful, which cannot be reasonably condemned, become cruel and very dangerous for a republic if they are not corrected in good time.”81 Once again notice, as in the pages of The Prince that are primarily concerned with merciful acts, Machiavelli is again in the terrain of the appearance of mercy, and so we are led to believe he is not in this instance dealing with something he considers to be actual mercy. This is because the merciful acts that Machiavelli is referring to in this chapter from The Discourses are precisely the kind of merciful acts found perennially in Book III of The Florentine Histories, merciful acts for private gain rather than for public greatness. Time and again in Book III, the pardons, conciliations, and capitulations made first to the common people and then to the plebs were acts undertaken for the private benefit of those in power, for the maintenance of their rule. This state of politics is of course untenable to Machiavelli, as he finds tyranny and tyrannical politics to be completely odious.82 Note the specific reference to not only tyranny but also tyrannical politics. This is a purposeful intervention, as The Histories makes perfectly clear (as I will return to at greater length below) that the conditions of tyranny can be plausibly experienced in the presence of one tyrant, or a factional power exercising power pg.270 POLITICAL FORGIVENESS tyrannically. Essentially, the rule of the plebs that Machiavelli recounts in Book III is representative of a form of tyrannical politics. However, it is crucial to recall that this form of tyranny arises only because the plebs begin to act like patricians in that they seek to oppress their rivals rather than being happy to simply not be oppressed themselves. So much is made clear by the text itself. This owes to the fact that tyranny and tyrannical politics represent the ultimate in un-freedom for the citizens of a city, but also because tyrannical politics foments hatred between citizens leading ultimately to “internecine factions.”83 Furthermore, as the internal politics of a city or body politic is weakened and destabilized by the internal turmoil, threats from external forces are exacerbated.84 Therefore, the threat tyrannical politics represents to the internal politics of a body politic does not exist in isolation. Rather it presents a twin threat, from internal destabilization and from external threat. This form of politics is not the underlying form of politics representative of the typical mode of carrying on in Florence according to Machiavelli. Instead, these are the episodic form of politics that result from an endless pursuit of a politics of forgiveness. This is demonstrably the case as made clear by the historical account of the revolutions of 1378 in Florence. And yet while these are the resultant conditions of a tyrannical form of politics, the specific genesis is not found in the simple existence of factional enmities; no, instead what is necessary is a catalyst. The question presented is: what role does mercy, or a politics of forgiveness play in the onset of tyrannical politics? Machiavelli more than alludes to the potential relationship between mercy and tyranny in The Discourses. In short, mercy can be a catalyst of tyranny and tyrannical politics. pg.271 POLITICAL FORGIVENESS The nameless ciompi: There is one more crucial bit of business to attend to before concluding my own engagement with the The Florentine Histories, and that is what McCormick calls the myth of a conservative turn in that work. I have established that I am more than slightly sympathetic to a democratic reading of Machiavelli. Necessarily so, as it allows me to center the import of political conflict and tumult in his work, the ground of which I believe is centered on a firm grasp of political forgiveness. But does this democratic reading of Machiavelli that elevates the people above the Grandi survive into The Florentine Histories? McCormick believe that it does, as do I. McCormick’s argument against those who believe Machiavelli to take a more aristocratic bent in The Histories is that they “consistently ignore the blatant discontinuity between Machiavelli’s demonstration of how peoples and nobles behave throughout the book and what he says about the behavior of these groups.”85 I believe one of the most salient examples of this is how Machiavelli discusses the ciompi revolt over the course of Book III of The Histories. This example is one of several when, as McCormick claims, “Machiavelli explicitly criticizes the people in the book, he places material within the details of the events and actions he describes that seriously mitigate those criticisms, especially when judged by the standards set by our author in The Prince and The Discourse.”86 Those standards indicated Machiavelli’s preference for the people over the nobles. Now, I am aware as any studious reader of Machiavelli, that the specificity and attention to detail that he brings to the historical record in The Histories is unmatched. For that reason, it is especially peculiar that the orator of the most infamous speech, discussed at length above, and recounted in Book III of The Histories, is anonymous. This peculiarity has led some to suggest that the anonymous ciompi is actually a pg.272 POLITICAL FORGIVENESS stand in for Machiavelli’s voice. McCormick criticizes this position, on the grounds that to support it is to support the view that in The Histories Machiavelli abandons his earlier favorable view of the common people. This position accrues from the fact that the anonymous ciompi urges his fellow guildsmen to engage in tumultuous behavior, specifically, he exhorts them to commit further arson and robberies. But this position assumes that Machiavelli would have found the anonymous ciompi’s position reprehensible…I do not believe that to be the case. From what is written in The Histories, I find it completely consistent with Machiavelli’s politics and political thought that despite the ciompi’s call to arms his anonymous voice can still be Machiavelli’s. For his part, McCormick argues that this position is not plausible, because the other plebs do not follow suit and “use violence to completely overturn the sociopolitical order of the city, even though they secure the opportunity and power to do so.”87 There are two important things to note here, the first is that there is nothing in the ciompi’s speech to indicate any desire to overthrow the sociopolitical order. The demands made are of a nature to secure greater economic freedom and political representation, not the complete overturning of the order. In fact, McCormick softens his position somewhat and acknowledges that “the plebs could rule the city alone - fully in keeping with the anonymous ciompi’s recommendations - should they wish to do so. However, their institutionalization demands reveal what they really want: inclusion in, not “usurpation” of, the guild republic that previously had excluded and oppressed them.”88 He continues later to defend Machiavelli against the accusations that the unnamed “ciompi serves…as an amoral, political realist stand-in for Machiavelli himself…a figure…that supposedly confirms Machiavelli’s mature belief in the common people’s inclination toward political evil.”89 pg.273 POLITICAL FORGIVENESS The tumults that led to the woolworkers’ and other plebs’ institutional gains taken together represent the blending of McCormick’s thought and Lucchese’s thought. That Machiavelli supported the use of tumults by the plebs, that he also understood the import of political institutions to empower the plebs, and finally that the plebs did not (in this instance) initially overturn the social order, but rather they just did not want to be oppressed, make it completely consonant that the voice of the anonymous ciompi is indeed Machiavelli’s. This is further proof that Machiavelli understood full and well the potent admixture of mercy and forgiveness. Machiavelli knew when writing The Histories the pattern of rebellion and reconciliation, admonishment and atonement, that the nobles engaged in with the plebs. Machiavelli put the words into the anonymous ciompi’s mouth with great care and purpose. That these words marshaled a strategy of political forgiveness should not escape note. Further, such a strategy did not yield the destruction of the city, but rather through it the plebs were able to extract the concessions that they desired from those who oppressed them. It was only in the aftermath of winning these concessions that the rule of the plebs began to become onerous to the common people and the nobles of the city. McCormick is rather explicit about this as well; he writes that in the aftermath of the tumults and rioting, the plebs leave the major and middling guilds their established seats in the Signoria; they restore the seats of the minor guilds from two to three; they do not call for the abolition of the Guelf Party, hence keeping intact the source of ancient nobility’s dignity and authority; and they call for an end to admonishments, thus attempting to do right by the dubiously identified “Ghibelline” citizens who had been persecuted by the party.90 pg.274 POLITICAL FORGIVENESS McCormick adds that of course the plebs asked for amnesty as well for their tumults and riots. I have written little biographically regarding Machiavelli, if anything at all. Like other scholars who engage Machiavelli, it is taken for granted that much of who he was is defined by what he did, which is to say what he wrote. One piece of biographical information does seem important to include given the context and substance of my argument. Machiavelli, unlike any of the other interlocutors I have engaged with, was himself the subject of a pardon. I have long been aware of the pardon that Machiavelli received. So too have others; McCormick draws attention to this facet of Machiavelli’s life but does not suspect as I do that it would have subsequent impact on his political thought. This pardon, it would seem, had more than a subtle influence on how he thought about mercy and forgiveness, and the potential agents that might stand to benefit from marshaling the subversive power of forgiveness. Machiavelli, more than a theorist of politics, also was employed in the services of Florence. During his tenure as an employee of the republic, he acted as a diplomat and advised on military affairs as well as various administrative duties. As McCormick recounts, Machiavelli was also a “staunch defender of the city’s popular assembly, the Great Council, and an outspoken advocate of a citizen militia.”91 For his support of the people Machiavelli earned himself an unfavorable reputation with the nobility. When the Florentine Republic was overthrown, Machiavelli urged the support of the Florentine people over that of the newly installed Medicis, a move that would find him put in prison, tortured, and finally exiled. In considering this episode in Machiavelli’s life, what is the one fact that McCormick leaves out? It is that Machiavelli was pardoned for his crimes. This illustrated to him that one can engage in political dissent, even to the point of torture and exile, and remain an efficacious political actor, and even have your offense reconciled. It should not escape note that Machiavelli was imprisoned for his ‘crimes’ in 1512, and it was only pg.275 POLITICAL FORGIVENESS after his release and pardon that he finished The Prince and copies of it began to become public. True, his major works were not published until after his death, but it is notable that his texts did in fact circulate and were known. Machiavelli, we might surmise, had little to fear from even the most scandalous elements of his work, for surely as an educator of princes and peoples he would want his audience to know what we now know. What is left is to demonstrate the manner in which political forgiveness, a political strategy that was at first promising, that won political and economic concessions for the common people and then the plebs, ultimately led to the same tyrannical conditions by which they were inspired. Further it should be considered whether or not political forgiveness issued in the form of this disobedient practice can be engaged in without ultimately ending in a form of tyrannical politics. This is the cruelty of the arc of Book III, that tyrannical politics gave rise to the politics of forgiveness and the liberties won from it, but the ferment of the plebs could not be quelled, and their reign became as odious to the common people and the nobles as that of the reign they replaced. For the plebs in the aftermath of the settlement between the common people and the nobles began a new cycle of violence that, as they had expected, was met with conciliation by the political power structure of Florence. It was this cycle of violence and conciliation that would bring the party of the plebs to power over the popular party, and inaugurate the beginning of their own tyrannical rule.92 It was a reign of power that was reciprocally unbalanced both in their meting out of political liberties and their oppression of those individuals who were part of or supported the popular party. Machiavelli recounts this by telling of the governing party’s (the plebs’) suspicions of losing power, and the political practices that resulted from this state of affairs. The plebs adopted the practices of their now conquered foes, admonishing and condemning those they feared and exiling others.93 These actions were motivated by fear and pg.276 POLITICAL FORGIVENESS suspicion, the implication being that many innocent individuals were admonished or condemned, as was the practice in the past when the popular party reigned. And just as in the past, those who were admonished grew increasingly insolent; because, to recapitulate, few things instigate the ire of an individual more than being placed in a position to beg forgiveness when in fact they have done nothing requiring such a request. The result of this was that “not only to good men but even (emphasis added) to the seditious the government appeared tyrannical and violent.”94 Clearly the reign of the plebs that lasted for three years was not maintained because of any particular virtū on the part of the plebs, but rather because of the sheer “arrogant” nature of their rule and their willingness to keep many Florentines in “subjection.”95 The result of the violence of their rule and the lack of virtū they exhibited would be their downfall, for when fortuná presented the political space for their ouster, the other factions of Florence would depose them. Just as before, the fate of those who ruled Florence would be determined by the seizure of a moment in political space opened up by fortuná. The particular incident in question that provided for this opportunity revolved around the actions of one Florentine citizen, Messer Giorgio Scali, a powerful leader associated with the plebs. An associate of Scali’s had made false accusations against another man, with the result that the justice system found the accused innocent, and wanted to apply the punishment the accused would have suffered to Scali’s associate. To save his associate, Scali confronted the Captain of Justice with a rabble of men. This action filled the city with indignation at him, a man who was already viewed with great contempt. This is the moment of Book III when the popular party is able to topple the reign of the plebs and regain political control of Florence. This was possible on two accounts. The first was that in this moment, the odiousness and abject quality of the tyranny of the plebs was such that the popular party recognized the moment for what it was. And second, it was because those opposed to the reign of pg.277 POLITICAL FORGIVENESS plebs had the political acumen, perhaps even virtū, to act before the majority of the population’s “indignant spirits were reconciled.”96 Thus, the popular party acted swiftly and were able to retake political power. But just as before, the result of this transition would not be greater liberty for Florence, but rather once again a transition from one party’s oppression to the next. Machiavelli’s historical observation is that this new state of affairs “was neither less injurious toward citizens nor less oppressive in its beginnings than that of the plebs...”97 The question remains, can political forgiveness be prevented from attenuating itself in tyranny? What does all of this ultimately mean? What has Machiavelli taught us that is novel about political forgiveness? I think there are two conclusions to be drawn from the preceding. The first is that there are counter-practices of political forgiveness available to political subjects that can be leveraged against ‘sovereignty’ in order to extract political and economic concessions. But does this satisfy the question I have put to political forgiveness, of whether it might be understood as a form of destituent power? I think that in the practices of political forgiveness that Machiavelli offers, practices that are no doubt defined by their restive and resistant quality, the answer is found in the negative. In fact, Machiavelli suggests something all the more troubling, that there is something like an eschatology that constrains political forgiveness when it is released in its abundance. As I draw this inquiry to a close in what follows, I consider further the pitfalls of an abundant political forgiveness. Political forgiveness demonstrates similar elements of inevitability and expectation, regardless of whether it is exercised in the hands of a sovereign, or as Machiavelli teaches us, as a subversive practice. Is there a way out of this eschatological structuring that seems to always bring about an inevitable resubmission to sovereign power? Perhaps what is necessary is a return to the logics that undergirded the heterodox reading of pg.278 POLITICAL FORGIVENESS Mathew with which I began this project, for the practices that I understood Mathew to be counseling were based on forgiveness withheld, on abeyance rather than abundance. pg.279 POLITICAL FORGIVENESS Chapter VI. Towards a reparative politics Reflections: I began with a question, can political forgiveness be harnessed as a counter-power, a form of destituent power? In a sense the question I put to forgiveness was, can one disassemble the master’s house with the master’s tools? After all, political forgiveness is, as I hope to have shown, one of the master’s mightiest tools. As one of the master’s tools the interlocutors I have engaged confirmed one of my assertions; that political forgiveness is a power held and exercised as an abundance. The evidence of which is attested to in the following ways by those I have engaged: Bodin, positions political forgiveness as a co-constitutive aspect of sovereignty’s highest power of command; Hobbes, demonstrates political forgiveness is a power with manifestations both juridical (as in the hands of authority) and anti-juridical (as in the hands of subjects); Locke, unequivocally defines its existence as a prerogative of the sovereign; Beccaria, illustrates its capacity as a disciplinary tool, and finally; Machiavelli, shows us the potential to harness it as a power of resistance to take political power. Machiavelli’s specific lesson is that a consciousness of political forgiveness can indeed lead those unhappy with the status quo politics to rebel and take political power through a cycle of reconciliation and recompense. Alas, this is not the only lesson to be taken away from a close study of Machiavelli’s thought on mercy and the history of rebellion he catalogued in Florence. Machiavelli shows us that one can as it were, seriously damage the master’s house by turning his tools against it through a pg.280 POLITICAL FORGIVENESS consciousness of the possibility of forgiveness, but in the end, even when the tool in your hand is political forgiveness you are nevertheless wielding one of the master’s tools. This is what I alluded to as the eschatological structuring of this particular practice of political forgiveness, the inevitability that haunts it. The ground occupied by and methods of the master persist, only in different hands. This is after all Machiavelli’s lesson that is to be learned from the ciompi revolt. In each change of power, in each cycle of violence, recompense, and reconciliation, those who were forgiven for their resistance and revolt did not suffer their forgivers happily. To be sure the palliative effects of political forgiveness were demonstrable in Machiavelli’s lessons, but they were ultimately exposed as fleeting and hollow, much like the comfort that palliative medicines offer the terminal patient. It seems that which plagues political forgiveness, and those that seek to put it to work for their political ends, is its abundant nature. What Arendt saw in political forgiveness as an always already possible response to wrongdoing is also that which Machiavelli demonstrated tarnishes it. As an abundance, whether issued by sovereign authority as prerogative, or inaugurated from below the apparent commonness stands at odds with the unique potential power that I hoped to discover in political forgiveness. Yes, there is disobedience and resistance here, and sometimes that is a prudential necessity, but not the evacuative power that I believe was discernible and latent in my heterodox appropriation of Mathew. And what of the question of the potential of effects of withholding political forgiveness? I argued in the introduction that we might understand the protests for racial justice that spanned 2020 as a manifestation of the potential power of the withholding of forgiveness. I argued that we should understand the power of that lack as the power to hold the future hostage in order to be the agents who shape that future rather than allowing sovereign power to dictate the conditions of novelty and future politics. As I draw this dissertation to a close I contemplate in what follows pg.281 POLITICAL FORGIVENESS the peculiar absence in the thought of my interlocutors of anything that approaches the frustration of the denial of forgiveness, the potential of defiance I found in the Gospel of Mathew in my youth. Forgiveness withheld: Although I feel as though I have exposed the limits of the practices of political forgiveness as a counter-power, in its expression as an abundance, I can say this fact is not all that I discovered. The interlocutors that I have engaged can only partially capture the unique nature of political forgiveness. What they could not capture is the psychic dimension of political forgiveness. In part it is that dimension of political forgiveness, its reified nature, the feeling that individuals have that it is something that belongs intimately to them that floods it with the capacity to be wielded defiantly. In reifying forgiveness it becomes tangible, transformed from an affective state to something like a material possession. When this transformation takes place rather than an abstract affect or act engaged in so commonly that it can be described as abundant, forgiveness becomes something we feel belongs to us. Forgiveness becomes a unique personal power that in contrast to the frequency and ease with which Arendt depicts we part with it, instead we guard it fiercely. I engaged at some length in a critique of the contemporary theorists of political forgiveness in this work and what I appraised as their short comings. While I have serious reservations about their works as theory the studies they engage in unearth that which the canon could never, personal accounts of what it has meant for victims of atrocity and political violence to relinquish their ‘forgiveness.’ To better understand this psychic dimension of political forgiveness I propose to pivot pg.282 POLITICAL FORGIVENESS briefly to the thought of another German Jewish intellectual, Jean Amery. Writing as a Jew who survived the holocaust Amery’s personal task, as he puts it, is to “justify a psychic condition that has been condemned by moralists and psychologists a like.” 1 The condition that Amery is referring to is resentment, a general resentment of the German people for what he calls their collective guilt.2 The moralists that Amery references here are not unlike those contemporary scholars of political forgiveness I engaged in the introduction of this study. The position that Amery’s moralists stake out, like those of contemporary scholars, is that it would be good to forgive and move on, and that one should forgive and move on. That in withholding forgiveness one not only hurts the prospect of a renewed future, but one also hurts themselves. Those Jewish Germans and otherwise that, unlike Amery, were ready to forgive the German’s finds Amery holding them in a rather low opinion. A fact which the moralists that he parries against would also certainly deplore. But is this stance really that deplorable? Recall from the introduction Jeffrie Murphy’s critique of forgiveness, perhaps it is simply that Amery, as Murphy would say, has too much self-respect and self-worth to forgive. Amery’s general position comports with that which I have just described, the reification of forgiveness to the point at which it is treated as a possession. Amery is very clear that he is not ready to, nor does he want to forgive the German people, he says as much about his resentments, “I neither can nor want to get rid of them.” 3 Although this is the case for Amery it does not escape him that by holding on to his resentments he is in a way trapping himself in the past and foreclosing4 himself of an unknown future. “Whoever submerges his individuality in society and is able to comprehend himself only as a function of the social, that is, the insensitive and indifferent person, really does forgive. He calmly allows what happened to remain what it was. As the popular saying goes, he lets time heal his wounds.”5 And so we see that Amery has a unique view of forgiveness and the nature of pg.283 POLITICAL FORGIVENESS healing. It is not that the individual that he so disdainfully describes in this passage has let time heal their wounds. No, it is that through the act of forgiving those that trespassed him have found absolution. Amery’s claim is that through his contemplation of his resentment he has decided that forgiveness is equal to forgetting when derived from social pressure, and this type of forgiveness is immoral. “Whoever lazily and cheaply forgives, subjugates himself to the social and biological time-sense, which is also called the natural one.” 6 A stronger critique of political forgiveness as abundance could not be made. What Amery captures is the palpable sense that in instances of sovereign pardons and grants of amnesties members of bodies politic feel as though something is being taken from them. Apart from general outrage, the feeling is that something has been given away by the government that was not there’s to deal, in a sense it is as if one’s cheek has been turned for them against their will. Like the missed opportunity at understanding political forgiveness I expressed at the outset I believe the feeling that I am describing is that of a missed opportunity. The opportunity missed in these instances was the chance to harness the potential of a specific form of political power under the rubric of mercy and forgiveness. Other modern expressions of mercy and forgiveness under the guise of truth and reconciliation commissions suffer from a phenomenon similar to that which Amery describes. In her recent work Joan Scott recounts how South African participants in that country’s Truth and Reconciliation commission offered up their mercy and forgiveness to their oppressors, tormentors, torturers and killers and received little in return in terms of political power or material gain.7 Here one could say that this was a consummation of the orthodox reading of Mathew. Victims turned their cheek and parted with their forgiveness. The question that keeps arising is what would happen if one honestly pursued a practice (perhaps anti-practice) of defiantly and disdainfully turning the cheek and holding one’s forgiveness in abeyance? pg.284 POLITICAL FORGIVENESS Would such a practice still occupy the ground that I have been arguing on? The ground of sovereign politics? A reparative possibility: In her recent work, On the Judgement of History, Joan Scott discusses the dynamics of political forgiveness as a process whereby the victims of past wrongs are redeemed by a benevolent actor or actors, frequently a nation-state.8 Scott’s claim is that the victims of past wrongs are not the only object of redemption. In the process of expressing benevolence and mercy the nation-state itself is redeemed. Thus, in the promise of a new and benevolent future and in receipt of forgiveness from those that suffered past wrongs the sovereign nation-state recuperates itself. If this sounds familiar it is because the same logic is at play here that I argued was a definitional element of Bodin’s construction of political forgiveness. Scott’s analysis is instructive. She highlights, through a critical history of South Africa’s Truth and Reconciliation Commission (TRC), how contemporary manifestations of political forgiveness are often focused on individualized accounts of wrongdoing with accompanying individualized acts of forgiveness and reconciliation. The result of pursuing reconciliation and forgiveness in this way is that “the need to forgive the sinner refuses any structural account of how evil’s potential is elicited, and it equates perpetrators and victims as equally vulnerable-differentials of actual power are beside the point.”9 Here again the eschatological structuring of political forgiveness presents itself once again. The condition of possibility of a sovereign politics is left unchanged. Scott assesses that the problem with contemporary acts of political forgiveness, like the TRC, is that they rely on “the need for individual victims to forgive their oppressors and for individual perpetrators to pg.285 POLITICAL FORGIVENESS avow their crimes.”10 But, writes Scott, in the case of the TRC, “[f]ew perpetrators came forward…This left it to the victims to forgive.”11 Across her account of the TRC Scott recounts several first-hand accounts of individuals who felt as though their forgiveness had been extorted from them, as I intimated, as if their cheek had been turned for them. Scott’s account should give pause to anyone who holds out the hope of finding emancipatory potential in a politics of forgiveness that offers redemption to victims while simultaneously redeeming the perpetrators of their historical wrongs. This is a profound insight, and one that might offer suggestive augmentations to current praxis that seeks justice for, for instance, police violence, white supremacist terrorism, or settler colonialism. Where does this leave the potential of political forgiveness? As I have been arguing for in this conclusion, I think very much intact. By focusing on the abundance of individual acts of political forgiveness we have lost sight of the potential power of the communal withholding of political forgiveness. What is required is a break in the eschatological structuring of political forgiveness as a whole. What I mean by this is upending the inevitability that has been inscribed into political forgiveness since its inception. In part this was Machiavelli’s lesson in The Florentine Histories. The anonymous ciompi discussed in the previous chapter gives life to the inevitability of the chain of events attendant to political forgiveness when it has been sedimented as a practice. In a contemporary register this would mean that, for instance, when official state acts are promulgated the likes of a truth and reconciliation commission the script is not prewritten and forgiveness is not assumed, the official script must be defied. In thinking about this I think there is a politics appropriate to the role of upending the eschatological structuring of political forgiveness, one that falls within the constellation that contains mercy and forgiveness. In fact, such a potential is one that Scott gestures at. Scott discusses an alternative to the TRC pg.286 POLITICAL FORGIVENESS model that was proposed but not adopted. This model would not have focused on victims and oppressors but instead building collective political agency and solidarity. The individualized model of political forgiveness that the TRC deployed won the day but against this model another was posited by Kadar Asmal, according to Scott. The alternative road not taken would have marshaled Gramscian Catharsis as a mode of creating collective agents of the future as opposed to individual victims of the past. A model that marshaled collective catharsis could demonstrate the potential of political forgiveness as a power, held in reserve, holding the future hostage, to be shaped by a newly awoken political agency. This is one possible way of thinking the potential of political forgiveness as lack, but Scott gestures at yet another. Reparations, according to Joan Scott, do not rely on a benevolent state taking up the cause of victims of past evil doesn’t operate in these movements’ demands. For one thing, the evil is not past; for another, closure for a minority population within the nation cannot easily take the form of a new sovereign state…In addition the enslaved and their dependents are represented as agents (however exploited or oppressed) demanding their due in the form not of state benevolence, but of national accountability for a persisting evil that it is their job to describe. 12 What is precisely absent is a requirement of forgiveness or mercy. The victims of the persistent evil are not required to nor expected to forgive their former or ongoing oppressors. Unique to the reparations model is that the evil in question is acknowledged as an element of the ever-arriving present as opposed to an act or actions relegated to the past. This element of reparations can even be observed on display in efforts to investigate reparations in the United States. House pg.287 POLITICAL FORGIVENESS Resolution 40 (H.R. 40), a bill in the United States House of Representatives, if passed would form a committee to study the possibility of reparations. Consistently throughout the text of the bill the historical injustice of slavery is treated not as a past evil but as an ongoing scourge. The bill references the “lingering effects” of slavery, the “historic and continued discrimination” of African Americans, the way that “textual and digital resources…are…used to deny the inhumanity of slavery,” and the ongoing nature of the beneficiaries of slavery. 13 And while H.R. 40 does reference the possibility of a national apology for slavery in reading it there is no sense that an expectation of redemption is an expected outcome, nor that forgiveness is an inevitable outcome. The reparations model also does not require former or ongoing oppressors to show remorse or mercy, they may continue into the future unredeemed. On the face of it this may seem odd, but is this not an analogous practice to that which I discovered in Mathew as a youth? Crucially, reparations are not about healing or palliation. What is required explicitly is accountability and recompense. Reparations are about naming an oppressor and extracting from that agent recompense without a corresponding requirement. Reparations in this way eradicate the requirement of conditionality that taints political forgiveness and sovereign mercy. And while Scott points to one kind of conditionality associated with political forgiveness, that of an apology or remorse offered in exchange for forgiveness, there is yet another form of conditionality that need be addressed. Today it is all to clear that the conditionality of forgiveness is itself conditional on the race, identity, sexual orientation, ethnicity, and class of the offenders. As a result of this conditionality political forgiveness is a strategy but a limited one (one of the great limitations of which is the dissonant activity to be forgiven or pardoned may very well be/is likely to be in pg.288 POLITICAL FORGIVENESS league with the ideological penitent of the sovereignty that grants pardon). And yet, at the same time I am also aware of an alternate conditional and present feature of political forgiveness that is realized when individuals make political claims and withhold their forgiveness or demand forgiveness. This is the potential that there will be no peace until certain conditions are met, but once these conditions have been met, if they are met, the basic structure of the relationship remains unchanged. Like the act of pardon itself, when political actors withhold or demand forgiveness as a method of extracting sovereign concessions they do so at their own peril, for they reproduce the structures and relationships they find themselves so opposed to. This calls on the need for a practice of political forgiveness that does not allow political forgiveness to be realized in practice. Reparations appear at this point to be the only practice associated with forgiveness that are unconditional and do not rely on those receiving reparation or benefiting from abolition to abdicate their power of forgiveness or issue forgiveness in order to receive the benefit. These strategies engage the power of political forgiveness as a latent potential. “The point” of reparations writes Scott, “is to draw attention (and sometimes funding) to an ongoing problem, but also to hold the nation to account in the form of a rewritten history - not a linear story of gradual progress, but a record of an ongoing, unfulfilled struggle to achieve justice.”14 Scott continues in describing what is unique and appealing about reparations, “unlike the imposition of retribution or the call for a redeeming forgiveness, [reparations do] not assume the past is past.”15 This leads Scott to the concept of debt, but “not a monetized obligation (though it is, of course, that) but something in excess, something closer to the biblical sense of the word: a type of offense requiring expiation (emphasis added) - a sin.”16 Scott’s invocation of expiation cannot but raise the specter of Walter Benjamin’s Critique of Violence; a text that grapples with forgiveness, justice, and redemption. Benjamin is also a thinker who invites his pg.289 POLITICAL FORGIVENESS readers to consider what kinds of political practices are available to us that we might confront law with and denude sovereignty of, what James Martel calls, the phantasm that holds its subjects in awe of. 17 Benjamin pushes us to think about how the objective of decentering and or countering sovereignty might be accomplished in acts of or practices of forgiveness and mercy. I questioned at the outset of this project whether certain practices of forgiveness could be understood as a paradigm of destituent power. In positing that question I discussed the work of Agamben, one of the theorists who has investigated the notion of destituent power, and notably has done so, in part, through a reading of Benjamin’s Critique of Violence. I turn back to Agamben’s notion of destituent power as I conclude because it offers a framework for thinking the practice of withholding forgiveness. Why is forgiveness necessarily a part of reparations? Maybe reparations are another kind of palliative gesture by those in power (sovereigns) to silence dissent—a concession to accountability that still signifies the power of those granting it. Destituent potential: I catalogued in the introduction Agamben’s approach to destituent power. I argued that for Agamben destituent power is understood through the paradigm of “inopperativity.” 18 To be sure, this category is nebulous at best. Even in Agamben’s own work he struggles to give his reader a concrete idea of what exactly a ‘practice’ of inopperativity would entail. Frankly at times it seems as though Agamben struggles himself to give a definitive form to the idea of destituency in his work. Nevertheless, Agamben does offer his reader at times glimpses of what the expression of destituent power as consummated in inopperativity would look like. He does so in pg.290 POLITICAL FORGIVENESS Homo Sacer through an examination of Herman Melville’s short story Bartleby the Scrivener.19 It is one of Agamben’s most practical and accessible discourses of destituency. Those familiar with Melville’s story will recognize Bartleby as the obstinate law clerk who would simply “prefer not to” do the things his employer, the man of law, requests of him. In expressing his preference not to comply with his employer’s requests Bartleby exacts an excruciating mental toll on him. The man of law is driven to near insanity by Bartleby’s continued practice of inopperativity. Both in Bartleby and in the results of his preference not to comply Agamben recognizes a lack, a latent potential as an expression of destituent power. What is curious about this power, that which drives Agamben to polemics over it, is that Bartleby’s power is one that is expressed through not expressing itself. It is held in potential as a lack of action. Applied to political life Agamben’s paradigm of destituent power seeks to render the “machine of sovereignty” deactivated and thus sovereign violence, sovereign exceptionality, and the production of bare life will also cease. 20 The problem with this paradigm is that it insinuates a form of politics as of yet unknown. A post-sovereign politics? Or is Agamben’s destituent power an essentially anti-political power that seeks a flight from political life writ large? Agamben’s paradigm of destituent power is one that I find polemical to a fault, however, I also find that it most closely resembles the practice I envision as the potential of political forgiveness withheld. The fundamental element, that which prevents political forgiveness from being realized as a destituent power is its forfeiture. It seems to me that the capacity of forgiveness to act as an evacuative power, emptying those that assail its possessors of power over them, is its dispensation. Jean Amery seems to have known this. I have attempted to present a way, a praxis of sorts to engage of withholding forgiveness in order to argue that forgiveness, in its absence, as a void, could be realized as a destituent potential. Political forgiveness would then be a power pg.291 POLITICAL FORGIVENESS that needs to be prevented from being consummated, it would be, and can be, destituent only so long as it does not pass into action. What is more, it is within the capacity of those that hold the power of forgiveness in their possession from preventing it from passing from potential to act. Concluding thoughts: At the outset of this project I cited the missed opportunities of the summer of 2020. The opportunity to interrogate political forgiveness occasioned by Donald Trump’s pardons. The opportunity missed to interrogate political forgiveness on the grounds of the protests for racial justice. A project that has made a study of political forgiveness would be remiss if it did not hold out hope for the chance to redeem missed opportunities. A missed opportunity should not, can not, be treated as a lost opportunity. I draw this dissertation to a close by gesturing at signs that indicate a growing political consciousness, a becoming aware of the potential power of forgiveness withheld. Across the United States monuments to the confederacy are coming down. According to the Southern Poverty Law Center nearly one hundred confederate monuments were removed over 2020.21 In total that is fifty more monuments removed in one year then over the previous five years combined.22 In light of what I have argued in this dissertation there is good reason to understand these removals as a result of the withholding of forgiveness . Those individuals and groups that support the removal of confederate monuments do not need to forgive nor do they need to forget the atrocity of history that those monuments represent. Monuments are being taken down not because the removal represents a symbolic apology or remorse. The removal of monuments has not been occasioned by the condition that once they have been removed anything pg.292 POLITICAL FORGIVENESS like forgiveness is in the offing. When monuments are removed it is not a palliative act, it is not expected that anyone will ‘feel’ better about what happened or continues to happen. I suggest the removal of confederate monuments be understood as a reparative effort, however small. Like Joan Scott described, these actions are not about national benevolence, they do not require a forfeiture of forgiveness, far from it, they are better understood as a gesture at national accountability. And perhaps a rendering destitute of sovereign power of that which it needs to enact one of its many possible forms of oppression. pg.293 POLITICAL FORGIVENESS Introduction 1. Daniel Loick, A Critique of Sovereignty trans. Amanda DeMarco (London: Rowman & Littlefield International, 2019), 3. 2. Ibid. 3. Jean Bodin, On Sovereignty (New York: Cambridge University Press, 1992), 1. 4. Ibid., 11. 5. Thomas Hobbes, Leviathan (New York: Oxford University Press, 1996), 176. 6. Ibid., 374-380. 7. See chapters seven and eight in Martha Nussbaum, Anger and Forgiveness (New York: Oxford University Press, 2016) 8. Ibid., 3. 9. Ibid. 10. Ibid. 11. Ibid., 176. 12. Ibid., 212. 13. Nicole Loraux, The Divided City: On Memory and Forgetting in Ancient Athens trans. Corinne Pache with Jeff Fort (New York: Zone Books, 2006), 15. 14. Ibid. 15. Ibid. 16. Ibid., 22. 17. Ibid., 29. 18. Ibid., 30. 19. Ibid., 145. 20. Ibid., 181. 21. Ibid., 240. 22. Ibid., 241. 23. Arendt, The Human Condition, (Chicago: Chicago University Press, 1998), 241. 24. Arendt, The Promise of Politics, (New York: Schocken Books, 2005), 59. 25. Ibid., 57-58. 26. Ibid. 27. Arendt, The Human Condition, 238. 28. Ibid., 241. 29. Mark R. Amstutz, The Healing of Nations (Lanham: Rowman & Littlefield Publishers, Inc., 2005), 45. 30. Amstutz, The Healing of Nations, 74-77. 31. Ibid., 75. 32. Ibid., 77. 33. Donald Shriver, An Ethic for Enemies: Forgiveness in Politics (New York: Oxford University Press), 6. 34. Ibid., 9. 35. P.E. Digeser, Political Forgiveness, (Ithaca: Cornell University Press, 2001), 2. 36. Ibid. 37. Ibid., 3. pg.294 POLITICAL FORGIVENESS 38. Ibid. 39. Ibid. 40. Ibid., 19. 41. Ibid., 4. 42. Charles Griswold, Forgiveness; A Philosophical Exploration (Cambridge: Cambridge University Press, 2007). 43. Ibid., 134. 44. Ibid., 136. 45. Ibid., 136. 46. Ibid., 138. 47. Ibid. 48. Ibid., 141. 49. Jean Hampton and Jeffrie G. Murphy, Forgiveness and Mercy (Cambridge: Cambridge University Press, 1988), 16. 50. Ibid. 51. Ibid., 17. 52. Ibid. 53. Ibid. 54. Ibid., 19. 55. Ibid., 21. 56. Ibid., 33. 57. Robert Meister, After Evil (New York: Columbia University Press, 2011), 10. 58. Ibid., 9. 59. Ibid. 60. Martha Minnow, Between Vengeance and Forgiveness (Boston: Beacon Press, 1998), 15. 61. Ibid. 62. Arendt, The Promise of Politics, 58. 63. Ibid., 59. 64. Arendt, The Human Condition, 238. 65. Ibid., 238-239. 66. Ibid., 236. 67. Ibid. 68. Ibid., 237. 69. Loraux, The Divided City, 29. 70. In his study of bio power Michel Foucault encountered the lacuna, as he calls it, of biopower’s exercise. Foucault formulated bio power as the power to make live and let die. The issue is that although letting die might not require affirmative action such ends can be pursued through disallowing life to the point of death, such that inaction becomes agentic action. See: Michel Foucault, Society Must be Defended (New York: Picador, 1997), 241. 71. To be fair, power can also be utilized grammatically as a verb. However, from the way that destituent power is deployed it is clear that the authors do not, nor have ever meant to use power as a verb. 72. Raffaele Laudani Disobedience in Western Political Thought: A Genealogy trans Jason Francis McGimsey (Cambridge: Cambridge University Press, 2013), 3. 73. Ibid., 4. 74. Ibid. pg.295 POLITICAL FORGIVENESS 75. Ibid. 76. Ibid. 77. Ibid., 5. 78. Giorgio Agamben, The Use of Bodies (Stanford: Stanford University Press, 2015), 266. 79. Ibid. 80. Ibid. 81. Ibid. 82. This image of destituent power as that which requires post-sovereign politics is most closely associated with the political theory of Giorgio Agamben, see for instance: Giorgio Agamben, The Use of Bodies (Stanford: Stanford University Press, 2015), 263-279. 83. This is the position of Raffaele Laudani. See: Laudani, Disobedience in Western Political Thought, 2011. 84. Bernard Harcourt, Critique and Praxis (New York: Columbia University Press, 2020), 14. 85. Niccoló Machiavelli, The Prince trans. Harvey C. Mansfield (Chicago: University of Chicago Press, 1985), 65. 86. John Locke, Two Treatises of Government ed. Peter Laslett (Cambridge: Cambridge University Press, 1960), 373. 87. Leo Strauss, Persecution and the Art of Writing (Chicago: University of Chicago Press, 1952), 24. 88. Ibid. 89. Ibid., 25. 90. Ibid., 30. 91. Ibid. 92. Ibid. 93. Ibid., 32. 94. Ibid. 95. Ibid., 36. 96. James Martel, Subverting the Leviathan (New York: Columbia University Press, 2007), 2. 97. Ibid. 98. Ibid. 99. Ibid., 13. 100. Ibid. 101. Ibid. 102. Ibid. 103. Althusser, Reading Capital, 14. 104. Ibid., 15. 105. Ibid., 19. 106. Ibid., 23. 107. Ibid. 108. Ibid., 26. Chapter I. 1. Banu Bargu, Starve and Immolate: The Politics of Human Weapons (New York: Colombia University Press, 2014), 56. 2. Ibid., 57. 3. Ibid. pg.296 POLITICAL FORGIVENESS 4. Ibid. 5. Ibid. 6. This common telling of this biographical element of Bodin’s life can be found retold in the following: Julian H. Franklin, Jean Bodin and the Rise of Absolutist Theory (Cambridge: Cambridge University Press, 1973); Quentin Skinner, The Foundations of Modern Political Thought, Vol. 2 (Cambridge: Cambridge University Press, 1978); Dieter Grimm Sovereignty: The Origin and Future of a Political and Legal Concept (New York: Columbia University Press, 2015). 7. Bodin ed. Franklin, The Six Books, 56. 8. Bodin, The Methods, 173. 9. Quentin Skinner, The Foundations of Modern Political Thought, 284. 10. Ibid., 285. 11. Grimm, Sovereignty, 19. 12. Skinner, The Foundations of Modern Political Thought, 285. 13. Bodin, The Methods, 203. 14. Ibid. 15. Ibid., 204. 16. Bodin ed. Franklin, The Six Books, 11. 17. Ibid., 13. 18. Ibid., 15. 19. Grimm, Sovereignty, 22. 20. Franklin, Jean Bodin, 79. 21. Skinner, The Foundations of Modern Political Thought, 294. 22. Ibid., 295. 23. Ibid., 287. 24. Ibid. 25. Franklin, Jean Bodin, 23. 26. Ibid., 41. 27. Ibid., 49. 28. Ibid. 29. Ibid. 30. Ibid. 31. Grimm, Sovereignty, 16. 32. Franklin, Jean Bodin, 25. 33. Ibid., 50. 34. Ibid., 38. 35. Ibid., 73. 36. Ibid., 79. 37. Bodin ed. Franklin , On Sovereignty, 1. 38. Jean Bodin, On Sovereignty: Six Books of the Commonwealth trans. M. J. Tooley (Oxford: Seven Treasures Publications, 1995), 130. 39. Bodin, On Sovereignty, 89. 40. Ibid., 92. 41. Ibid., 104. 42. This point is crucial, because as the western tradition of political thought develops theorists slowly come to argue that such an awesome power in the hands of sovereign authority serves to pg.297 POLITICAL FORGIVENESS undermine and subvert the rule of law. In time thinkers like Hobbes, and Beccaria, amongst others will argue that political forgiveness in and of itself should be a limit case if sovereigns want their subjects to comply with the law. 43. Bodin ed. Franklin, On Sovereignty, 75. 44. Ibid. 45. Michelle Foucault, The History of Sexuality vol. 1 (New York: Vintage Books, 1978), 241. 46. Bodin, On Sovereignty ed. Franklin, 49. 47. Notably the ordering of this list shifts between Bodin’s Methods and his Six books. In the Methods the first prerogative of sovereignty is listed as appointing magistrates followed by making law. However, in both books pardon finds itself as the fifth and final true mark of sovereignty. 48. Jean Bodin, On Sovereignty ed. Franklin, 73. 49. Ibid. 50. Ibid. 51. Ibid. 52. Ibid. 53. Ibid. 54. I acknowledge that utilizing the term sovereign in respect to the Athenian democracy is problematic. However, I include the example here and use the term sovereign only to be faithful to Bodin’s discourse. 55. Bodin, On Sovereignty, 73. 56. Ibid. 57. Ibid., 74. 58. Ibid. 59. Ibid. 60. Ibid. 61. Ibid., 110 62. Ibid. 63. Ibid., 112. 64. Ibid., 115. 65. Ibid., 124. 66. Bodin, On Sovereignty ed. M.J. Tooley, 101. 67. Ibid., 102. 68. Ibid. 69. Ibid., 101. 70. Jean Bodin, On the Demon Mania of Witches, trans. Randy A. Scott (Toronto: Renaissance and Reformation text in translation, 1995), 45. 71. Virgina Krause, “Listening to Witches: Bodin’s use of confession in De La Démonomanie Des Sorciers,” in Brill’s Studies in Intellectual History, The Reception of Jean Bodin ed. Howell A. Lloyd (Leiden, BRILL, 2013), .97. 72. Stuart Clark, Thinking with Demons: The Idea of Witchcraft in Early Modern Europe (Oxford: Clarendon Press, 1997), 670. 73. Krause, “Listening to Witches,” 98. 74. Ibid. 75. Clark., 670. 76. Ibid. pg.298 POLITICAL FORGIVENESS 77. Ibid. 78. Krause, “Listening to Witches,” 100. 79. Ibid. 80. Bodin, On Sovereignty ed. Franklin, 75. 81. Ibid., 76. 82. Ibid. 83. Ibid. 84. Ibid. 85. Ibid. 86. Ibid., 77. 87. Nicolo Machiavelli, The Prince trans. Harvey C. Mansfield (Chicago: The University of Chicago Press, 1998), 174. 88. Arendt, The Human Condition, 238-239. Chapter II. 1. Hobbes, Leviathan, 7. 2. Ibid.,114 3. Ibid., 36 4. Hobbes, Leviathan, 82. 5. Ibid., 83. 6. Ibid., 84. 7. Ibid., 114. 8. Ibid., 82. 9. Ibid., 66. 10. Ibid. 11. Ibid., 83. 12. Quentin Skinner, Visions of Politics Volume 3: Hobbes and Civil Science (Cambridge, Cambridge University Press, 2001), 3. 13. Ibid. 14. Eleanor Curran, Reclaiming the Rights of the Hobbesian Subject (New York: Palgrave Macmillan, 2007), 14. 15. Skinner, Visions of Politics Volume 3, 5. 16. Richard Tuck, Hobbes (Oxford: Oxford University Press, 1989), 20. 17. Ibid., 19. 18. Ibid., 23. 19. Ibid. 20. Curran, Reclaiming the Rights of the Hobbesian Subject, 17. 21. Tuck, Hobbes, 25. 22. Skinner, Visions of Politics Volume 3, 12. 23. Ibid., 20. 24. Tuck, Hobbes, 23. 25. Leo Strauss, Natural Right and History (Chicago: University of Chicago Press, 1965), 178. 26. Ibid., 180. 27. Ibid. 28. Leo Strauss, The Political Philosophy of Hobbes (Chicago: University of Chicago Press, 1952), 16-17. pg.299 POLITICAL FORGIVENESS 29. Ibid. 30. Ibid. 31. Ibid., 3. 32. Ibid. 33. Ibid., 18. 34. Ibid. 35. Ibid., 20. 36. Ibid. 37. Ibid. 38. Tuck, Hobbes, 55. 39. Ibid. 40. Ibid. 41. Ibid., 56. 42. Ibid., 57. 43. Larry May, Limiting Leviathan: Hobbes on Law and International Affairs (Oxford: Oxford University Press, 2013), 224. 44. Ibid., 225. 45. Ibid., 227. 46. Ibid., 235-236. 47. Hobbes, Leviathan, 7 48. In fact, for Beccaria it would be laughable to even think that there is something approaching the equitable use of pardon given his insistence on the equal application of the law to one and all. 49. Hobbes, Leviathan, 86. 50. Ibid., 87. 51. Ibid. 52. Hobbes, Human Nature, 91. 53. Ibid. 54. Ibid. 55. Thomas Hobbes, On the Citizen ed. Richard Tuck and Michael Silverthorne (Cambridge: Cambridge University Press, 1998), 48. 56. Hobbes, Leviathan, 118. 57. Ibid., 101. 58. Bodin, On Sovereignty, 102. 59. Hobbes, Leviathan, 228. 60. Ibid. 61. Ibid. 62. Ibid. 63. Ibid. 64. Susanne Sreedhar, Hobbes on Resistance: Defying the Leviathan (Cambridge: Cambridge University Press, 2010, 75. 65. Ibid. 66. Hobbes, Leviathan, 107. 67. Ibid. 68 James Martel, Subverting the Leviathan (New York: Columbia University Press, 2007), 2. 69. Hobbes, Human Nature, 88. 70. Eleanor Curran, Reclaiming the Rights of the Hobbesian Subject (New York: Palgrave pg.300 POLITICAL FORGIVENESS Macmillan, 2007), 104. 71. Ibid., 105. 72. Thomas Hobbes, quoted in Curran, Reclaiming the Rights of the Hobbesian Subject, 108. 73. May, Limiting Leviathan: Hobbes on Law and International Affairs, 126. 74. Ibid., 136. 75. Curran, Reclaiming the Rights of the Hobbesian Subject, 109. 76. Sreedhar, Hobbes on Resistance: Defying the Leviathan, 7. 77. Ibid., 8. 78. Ibid., 13. 79. Ibid. 80. Strauss, Natural Right and History, 194. 81. Hobbes, Leviathan, 58. 82. Ibid. 83. Ibid. Chapter III. 1. In this chapter I focus on Locke’s Second Treatise and as such hereafter I simply refer to that tract. 2. See Laslett’s introduction to the Cambridge edition of Locke’s Two Treatises on Government for an argument that Hobbes was of little consequence to Locke, and that the document was and can only be understood as a continuation of the attack Locke levied against Sir Robert Filmer in the first treatises. Alternatively, John Dunn argues that this argument is at best exaggerated, and that one need to consider the entirety of Hobbes’ corpus in order to grasp the relationship that Locke bears to it. 3. Leo Strauss makes the point that Locke surely was well acquainted with Hobbes, however he chooses to refrain from referencing him out of prudence. See; Leo Strauss, Natural Right and History (Chicago: Chicago University Press, 1965), 166. 4. From the perspective of the scholarship on Locke this point bears particular significance, for it puts the lie to the apparent ultimate concern regarding the locus of sovereignty in the 1680’s in England. It matters not where sovereignty resides, only that wherever it resides one finds prerogative, and following my argument, the attempt to dispossess political subjects of rights and powers not specifically authorized to sovereignty. 5. I use the term “alienation of power” here to denote the process whereby individuals in a prepolitical society alienate certain aspects of their powers to the compact or to the sovereign authority in the process of foundation. In a sense, there is a homology here between Rousseau’s alienation of the will of one to the general will. For more on this process of alienation, see for instance: Jean-Jacques Rousseau, The Social Contract and The Discourses trans. G.D.H. Cole (New York: Everyman’s Library, 1993) 6. This is not to say that my method of interpreting Locke is completely Straussian. The blanks that I reference here are not of the esoteric kind germane to Straussians. They are available to anyone who reads Locke attentively. Yet, my argument is that Locke’s text contains an interpretive truth that transcends the political crises of the 1680’s in England, transhistorical political concepts, if you will. 7. Leo Strauss, “On Locke’s Doctrine of Natural Right,” The Philosophical Review 61, no. 4 (Oct., 1952): 477. 8. Richard Ashcraft, Locke’s Two Treatises of Government (London: Routledge Library pg.301 POLITICAL FORGIVENESS Editions: Political Science, 2012), 1. 9. This characterization of the text is held by Richard Ashcraft and John Dunn, as well as Julian Franklin. 10. Julian Franklin, John Locke and the Theory of Sovereignty: Mixed Monarchy & The Right of Resistance in the Political Thought of the English Revolution (Cambridge: Cambridge University Press, 1981). 11. Richard Ashcraft, Locke’s Two Treatises of Government, 12. Leo Strauss, Natural Right and History, 230. 13. Ibid. 14. Ibid., 232. 15. Ibid., 233. 16. John Dunn, The Political Thought of John Locke: An Historical Account of the Argument of the ‘Two Treatises of Government’ (Cambridge: Cambridge University Press, 1995), 154. 17. Franklin, John Locke and the Theory of Sovereignty, 69-73. 18. Ibid., 93. 19. Dunn, The Political Thought of John Locke, 88. 20. Ibid., 100. 21 Locke, Two Treatises of Government, 375. 22. Franklin, John Locke and the Theory of Sovereignty, 96. 23. Ibid. 24. Locke, Two Treatises, 379. 25. Franklin, John Locke and the Theory of Sovereignty, 113-117. 26. John A. Simmons, The Lockean Theory of Rights (Princeton: Princeton University Press, 1992), 71. 27. Ibid., 72. 28. Ibid., 74. 29. It should be duly noted that this is in extreme contrast to Strauss’ position, in which he explicitly rejects that there are something like duties that are attendant to Locke’s grasp of what constitutes rights. 30. Ibid., 122. 31. Ibid., 123. 32. Ibid., 124. 33. Leo Strauss, “On Locke’s Doctrine,” 479. 34. Simmons, The Lockean Theory of Rights, 18. 35. John Dunn, “Consent in the Political Theory of John Locke,” The Historical Journal 10, no. 2 (1967): 153-182. 36. Ibid. 37. Ibid., 156. 38. For a complete discussion of how forgiveness can be differentially conceptualized in different realm of life see: Martha Nussbaum, Anger and Forgiveness, 2016. 39. Because Locke understands the state of nature as both a historical possibility and a theoretical tools from this point on in the text, I abandon the term pre-political. 40. Locke, Two Treatises of Government, 270. 41. Ibid., 273. 42. Ibid., 271. 43. Ibid. 44. Ibid., 352. pg.302 POLITICAL FORGIVENESS 45. Ibid. 273. 46. Ibid. 47. This is an especially interesting point as Locke makes no mention or suggestion regarding the possibility that a particular group of individuals, bent on extracting a political victory over an adversary, might influence a particular damnified individual to seek reparations when they might not, so that the larger group can achieve their political objective. 48. Ibid., 274. 49. Ibid., 268. 50. Ibid. 51. Ashcraft, Locke’s Two Treatises of Government, 227. 52 Richard Ashcraft, Locke’s Political Philosophy in The Cambridge Companion to Locke ed. Vere Chappell (Cambridge: Cambridge University Press, 1994), 233. 53. Leo Strauss, “On Locke’s Doctrine,” 488. 54. Ashcraft, Locke’s Two Treatises of Government, 230. 55. Ibid. 56. Ibid., 226. 57. Ibid., 182. 58. Ibid. 59. Ibid., 190. 60. Ibid. 61. Ibid. 62. Ibid., 191. 63. Ibid. 64. Ibid. 65. Dunn, The Political Thought of John Locke, 6. 66. Ibid., 9. 67. Ibid., 149 68. Ibid. 69. Ibid. 70. Ibid., 150. 71. Ibid. 72. Ibid., 154. 73. Locke, Two Treatises of Government, 353. 74. Ibid. 75. Ibid., 373. 76. Ibid., 374. 77. Ibid., 375. 78. Ibid. Chapter IV. 1. Marcello Maestro, Cesare Beccaria and the Origins of Penal Reform (Philadelphia: Temple University Press, 1973), 6. 2. Ibid., 12. 3. Ibid., 13. 4. Ibid. 5. Ibid., 4. pg.303 POLITICAL FORGIVENESS 6. Michel Foucault, Discipline & Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage Books, 1995), 82. 7. Bernard Harcourt, “Beccaria’s On Crime and Punishments: A Mirror on the History of the Foundations of Modern Criminal Law,” in Foundational Texts in Modern Criminal Law, ed. Markus D Dobber (Oxford: Oxford University Press, 2014), 39. 8. Ibid. 9. Maestro, Cesare Beccaria, 4. 10. John D. Bessler, “The Economist and the Enlightenment: how Beccaria changed Western civilization,” European Journal of Law and Economics 46 no. 3 (December 2018): 275 -302. 11. Hostettler dedicates entire sections of his book on Beccaria to how he influenced these individuals in: John Hostettler, Cesare Beccaria: The Genius of “On Crimes and Punishments” (Winchester: Waterside Press, 2011). 12. Jeremy Bentham, Theory of Legislation (London: Kegan Paul, Trench, Trubner & Co., 1911). 13. Ibid. 14. Maestro, Cesare Beccaria, 3. 15. J. M. Bernstein, Abolishing Torture and the Uprising of Rule of Law (Chicago: University of Chicago Press, 2015), 41. 16. Arthur Shuster, Punishment and the History of Political Philosophy (Toronto: University of Toronto Press, 2016), 92. 17. Bernard E. Harcourt, The Illusion of Free Markets: Punishment and the Myth of Natural Order (Cambridge: Harvard University Press, 2011), 53. 18. Ibid. 19. Harcourt, “Beccaria’s On Crime and Punishments,” 44. 20. Ibid. 21. Ibid. 22. Ibid. 23. Ibid., 45. 24. Bernstein, Abolishing Torture and the Uprising of Rule of Law, 35. 25. Ibid., 40. 26. Ibid. 27. Foucault, Discipline & Punish, 81. 28. Ibid., 78. 29. Ibid., 80. 30. Ibid. 31. Ibid. 32 Beccaria, On Crimes, 131. 33. Beccaria On Crimes and Punishments and Other Writings ed. Richard Bellamy (Cambridge: Cambridge University Press, 2003), 10. 34. I have intentionally utilized the phrasing, “reference to pre-political society,” because I believe that is exactly what Beccaria is doing, referencing. 35. Ibid., 9. 36. Ibid. 37. Ibid. 38. Hostettler, Cesare Beccaria, 131. 39. Ibid. pg.304 POLITICAL FORGIVENESS 40. Bernstein, Abolishing Torture and the Uprising of Rule of Law, 36. 41. Ibid. 42. Ibid. 43. Ibid., 39. 44. Ibid., 43. 45. Ibid., 44. 46. Ibid., 45. 47. Ibid. 48. Ibid., 66. 49. Richard Bellamy in: Beccaria On Crimes and Punishments and Other Writings ed. Richard Bellamy (Cambridge: Cambridge University Press, 2003), xxi. 50. Bernstein, Abolishing Torture and the Uprising of Rule of Law, 38. 51. Hostettler, Cesare Beccaria, 18. 52. Ibid., 51. 53. Bernstein, Abolishing Torture and the Uprising of Rule of Law, 51. 54. Harcourt “Beccaria’s On Crime and Punishments,” 46. 55. Ibid. 56. Harcourt, The Illusion of Free Markers, 53. 57. Ibid., 51. 58. Ibid. 59. Ibid., 56. 60. Ibid., 59. 61. Ibid., 52. 62. Ibid. 63. Ibid. 64. Ibid., 53. 65. Ibid., 53. 66. Ibid., 54. 67. Ibid. 68. Ibid., 74. 69. Ibid. 70. Bentham, Theory of Legislation, 356. 71. Beccaria, On Crimes, 10. 72. Ibid., 11. 73. Ibid. 74. Ibid. 75. Richard Bellamy in: Beccaria On Crimes and Punishments and Other Writings ed. Richard Bellamy (Cambridge: Cambridge University Press, 2003). 76. Beccaria, On Crimes, 12. 77. Ibid., 111. 78. Ibid. 79. Ibid., 112. 80. Ibid., 31. 81. Ibid., 63. 82. Ibid. 83. Ibid. pg.305 POLITICAL FORGIVENESS 84. Ibid. 85. Beccaria On Crimes, 24. 86. Ibid., 31. 87. Ibid., 111. 88. Ibid., 112. 89. Ibid. 90. Ibid. 91. Ibid. 92. Ibid. 93. Ibid., 9. 94. Ibid. Chapter V. 1. Louis Althusser, Machiavelli and Us (London, Verso Books; 1999), p. 6. 2. Ibid., p. 7. 3. Gabriele Pedullá, Machiavelli in Tumult: The Discourses on Livy and the Origins of Political Conflictualism (Cambridge, Cambridge University Press; 2018), p. 29. 4. Nicollo Machiavelli, The Prince trans. Harvey C. Mansfield (Chicago, University of Chicago Press; 1998), p. 61. 5. John P. McCormcik, Reading Machiavelli: Scandalous Books, Suspect Engagements & the Virtue of Populist Politics (Princeton, Princeton University Press; 2018), p. 3. 6. Ibid. 7. Althusser, Machiavelli, 17. 8. McCormick, Reading, 3. 9. Pedullá, Tumults, 15. 10. This position is most often associated with Straussian readings of Machiavelli. See: Leo Strauss, Thoughts on Machiavelli (Chicago, University of Chicago Press; 1995). 11. Althusser, Machiavelli, 24. 12. Machiavelli, The Prince, 4. 13. Ibid. 14. Althusser, Machiavelli, 25. 15. Ibid. 16. Ibid., 29. 17. Ibid. 18. Ibid., 32. 19. Filippo del Luchesse, Conflict, Power, and Multitude in Machiavelli and Spinoza (London, Continuum International Publishing Group; 2009), p. 68. 20. Ibid., 24. 21. Machiavelli, The Prince, 98. 22. Ibid. 23. Ibid. 24. Ibid., 99. 25. Niccolò Machiavelli, Discourses on Livy trans. Harvey C. Mansfield & Nathan Tarcov (Chicago: University of Chicago Press, 1998), 197. 26. Machiavelli, The Prince, 99. 27. Machiavelli, Discourse on Livy, 240. pg.306 POLITICAL FORGIVENESS 28. Ibid., 239. 29. Ibid., 198. 30. Machiavelli, The Prince, 65. 31. Ibid., 66. 32. Ibid. 33. Ibid., 67. 34. Ibid. 35. Ibid., 65. 36. Ibid., 26. 37. Ibid., 37. 38. Ibid. 39. Ibid. 40. McCormick, Reading Machiavelli, 14. 41. Pedullá, Tumult, 2. 42. Luchesse, Conflict, Power, and Mulitutde, 24. 43. Ibid., 28. 44. Ibid., 30. 45. Pedulla, Tumult, 4. 46. Ibid., 54. 47. McCormick, Reading Machiavelli, 62. 48. Pedula, Tumult, 54. 49. Ibid. 50. Ibid., 57. 51. Luchesse, Conflict, Power, and Multitude, 92. Error! Hyperlink reference not valid.Error! Hyperlink reference not valid.Error! Hyperlink reference not valid.Error! Hyperlink reference not valid. 53. Niccolò Machiavelli, Florentine Histories trans. Laura F. Banfield and Harvey C. Mansfield (Princeton: Princeton University Press, 1988), 105. 54. Ibid., 106. 55. Ibid. 56. Ibid., 107. 57. Ibid. 58. Ibid. 59. Ibid., 114. 60. Ibid., 108. 61. Ibid. 62. Ibid., 115. 63. Ibid., 116. 64. Ibid. 65. Ibid., 118. 66. Ibid. 67. Ibid. 68. Ibid. 69. Ibid., 119. 70. Ibid., 120. 71 Ibid. pg.307 POLITICAL FORGIVENESS 72. Machiavelli, The Prince, 63 73. Machiavelli, Florentine Histories, 120. 74. Ibid., 120. 75. Ibid., 121. 76. Ibid. 77. Ibid., 122. 78. Ibid. 79. Sheldon Wolin, Visions of Politics (Princeton: Princeton University Press, 2004), 208. 80. Ibid. 81. Machiavelli Discourses on Livy, 276. 82. In discussing Machiavelli’s position on tyranny Althusser calls his appraisal of it “excrable” synonymous with odious and, or reprehensible see: Althusser, Machiavelli,120. 83. Ibid. 84. Ibid. 85. McCormick, Reading Machiavelli, p. 70. 86. Ibid., 72. 87. Ibid., 82. 88. Ibid., 83. 89. Ibid., 87. 90. Ibid., 92. 91. Ibid., 11. 92. At this point in the text Machiavelli, perhaps for reasons of simplicity, begins to reference the two opposing sides in the ongoing conflict as the plebian and popular party. Where in the plebian party contained both the lesser and greater plebs and the popular party contained the common people and popular nobles. 93. Machiavelli, Florentine Histories, 132. 94. Ibid., 133. 95. Ibid. 96. Ibid. 97. Ibid., 135. Conclusion 1. Jean Amery, At the Minds Limit: Contemplations by a Survivor on Auschwitz and its Realities (Bloomington: Indiana University Press, 1980), 64. 2. Ibid., 65 3. Ibid., 67. 4. Ibid., 68. 5. Ibid., 69. 6. Ibid., 72. 7. Joan Scott, On the Judgement of History (New York: Columbia University Press, 2020). 8. Scott, On the Judgement of History, 23. 9. Ibid., 31. 10. Ibid., 33. 11. Ibid. 12. Scott, On the Judgement of History, 53. 13. U.S. Congress, House, To address the fundamental injustice, cruelty, brutality, and pg.308 POLITICAL FORGIVENESS inhumanity of slavery in the United States and the 13 American colonies between 1619 and 1865 and to establish a commission to study and consider a national apology and proposal for reparations for the institution of slavery, its subsequent de jure and de facto racial and economic discrimination against African-Americans, and the impact of these forces on living AfricanAmericans, to make recommendations to the Congress on appropriate remedies, and for other purposes Act of 2019, HR 40, 116 Cong., 1st sess., Introduced in House January, 1st 2019. https://www.congress.gov/bill/116th-congress/house-bill/40/text 14. Scott, On the Judgement of History, 54. 15. 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