Hobbesian Diffidence, Second-Order Discrimination, and Racial Profiling

In: Hobbes Studies
Yolonda Y. Wilson Health Care Ethics, Saint Louis University, St. Louis, MO, USA

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Taking Hobbesian logic as my starting point, I argue that Hobbesian diffidence, one of the causes of quarrel in the state of nature, does not disappear once the citizens enter civil society. Rather, diffidence is merely contained by the sovereign. Following Alice Ristroph, I argue that diffidence comes to shape what citizens demand of the state/sovereign in the criminal law. However, I show that Ristroph does not fully appreciate that the concept of diffidence is a racialized one, and as such, race underlies how the citizens understand their own diffidence, what citizens demand of the sovereign, and how they demand it. Further, because diffidence itself is racialized, criminal law need not make explicit appeals to race. Once racialized diffidence becomes embedded in the criminal law, it remains there regardless of any conscious racial animus. I show that racial profiling is a prime example of how this racialized diffidence manifests. Thus, I present Hobbesian diffidence as a framework from which to understand racial oppression. This paper is primarily an application of Hobbes to contemporary issues rather than an exegesis and analysis of Hobbes’s views.


Taking Hobbesian logic as my starting point, I argue that Hobbesian diffidence, one of the causes of quarrel in the state of nature, does not disappear once the citizens enter civil society. Rather, diffidence is merely contained by the sovereign. Following Alice Ristroph, I argue that diffidence comes to shape what citizens demand of the state/sovereign in the criminal law. However, I show that Ristroph does not fully appreciate that the concept of diffidence is a racialized one, and as such, race underlies how the citizens understand their own diffidence, what citizens demand of the sovereign, and how they demand it. Further, because diffidence itself is racialized, criminal law need not make explicit appeals to race. Once racialized diffidence becomes embedded in the criminal law, it remains there regardless of any conscious racial animus. I show that racial profiling is a prime example of how this racialized diffidence manifests. Thus, I present Hobbesian diffidence as a framework from which to understand racial oppression. This paper is primarily an application of Hobbes to contemporary issues rather than an exegesis and analysis of Hobbes’s views.

While feminist interpretations of Hobbes occupy a small but significant space in feminist philosophy and Hobbes studies, what Hobbes can tell us about race and racial oppression is undertheorized.1 This is perhaps due, in part, to the fact that Hobbes had more to say about the role of women both in the state of nature and in civil society than he had to say about races of people in the way that we have come to understand race today. Hobbes made passing anthropological claims about “the savage people in many places of America” and their relationship to the state of nature (he believed that they were actually living in a state of nature relative to one another). However, the sophisticated racial taxonomy that emerged during the modern period and morphed into the concept(s) of race that would be familiar to us today was at best in its nascent stages.2 Therefore, it makes sense that Hobbes would have had little to say about race as we have come to understand race. Finally, some argue that Hobbesian political theory has been less influential in how we theorize about the development and authority of the state and the citizenry.3 If this is actually the case, then it is not surprising that those who theorize about race within the contract tradition would not turn to Hobbes for guidance. Yet, I will show that Hobbesian political theory can be instructive in developing an account of how race and racial hierarchy enter civil society and what follows once they become part of the fabric of the state.

Although the Hobbesian account of the transition from the state of nature into civil society is an idealized one, I think that Hobbes’s account can offer insights into contemporary features of actual, nonideal political life, like racial oppression. I stress that I am not attributing a view about racial profiling to Hobbes. Instead, I am extending the Hobbesian concept of diffidence to think about racial oppression. Taking Hobbesian logic as my starting point, I will argue that Hobbesian diffidence, one of the causes of quarrel in the state of nature, does not disappear once the citizens enter civil society. Rather, the sovereign uses its authority to keep the citizens’ diffidence at bay. Following Alice Ristroph, I argue that diffidence comes to shape what citizens demand of the state/sovereign in the criminal law. However, I show that Ristroph does not fully appreciate that the concept of diffidence is a racialized one, and as such, race underlies how the citizens understand their own diffidence, what citizens demand of the sovereign, and how they demand it.4 Further, because diffidence itself is racialized, criminal law need not make explicit appeals to race. Once racialized diffidence becomes embedded in the criminal law, it remains there regardless of any conscious racial animus. Racial profiling is a prime example of how this racialized diffidence manifests. Thus, I present Hobbesian diffidence as a framework from which to understand racial oppression, highlighting the specific example of racial profiling.

1 The Hobbesian Framework

The familiar Hobbesian state of nature is a violent, brutal place where safety is continually under threat. People have insatiable appetites and inflated sensibilities regarding their own relative importance, thereby leading them to be offensive to one another.5 People become enemies who battle for resources and “endeavor to destroy or subdue one another.”6 However, the right of nature allows each person to use any means necessary, according to his or her own judgment, for self-preservation.7 The contests of strength that are pervasive in the state of nature do not affect only those who willingly participate in these skirmishes – even if that turns out to be a significant percentage of the population. Indeed, the entire state of nature is destabilized and, as a result, even those who might be otherwise content to live relatively peaceably are incited into a state of war, or a state of constant readiness to fight.8 While competition and glory-seeking are causes of quarrel in the state of nature, Hobbes also considers diffidence, the continual state of fear, anxiety, and mistrust that draws people into a state of war with one another. Diffidence makes inhabitants preoccupied with self-preservation because they cannot trust one another to maintain safety. Diffidence drives the inhabitants into a perpetual state of self-defense. In fact, the conditions of the state of nature cause some inhabitants to engage in anticipatory violence as a protective measure.9 This anticipatory violence is motivated by fear.

Yet, this grim Hobbesian picture finds hope in Hobbes’s view of human psychology. Hobbes claims that humans’ capacity for reason and fear of death motivate humans to overcome this dangerous state of nature.10 Aware that the state of nature creates an untenable situation, and driven by the need for mutual defense, the people come together and agree to subordinate their individual wills to the judgment of a sovereign who has absolute authority.11 The need for safety is what ultimately forces the people out of the state of nature and into civil society, but it is important to remember that the causes of quarrel do not disappear upon entry into civil society. Rather, civil society provides the appropriate boundaries within which the citizens are to behave knowing that the sovereign has the power to enforce those boundaries.12 While the state cannot remove humans’ insatiable appetites or thirst for glory, the state may inhibit some of the dangerous behaviors that come with attempting to achieve those ends.13 It is important to note that even the most autocratic Hobbesian sovereign cannot fundamentally alter humans’ natural inclinations toward competition or glory-seeking. However, the Hobbesian sovereign promises greater security than any security available in the state of nature.

Security, then, is the primary motivation for humans to leave the state of nature and the preoccupation for the Hobbesian sovereign. To that end, the raison d’être for Hobbesian civil society is to increase security, thereby alleviating diffidence. Without the assurance of security “both against one another, and against common enemies,” Hobbes acknowledges, “[T]here is no reason for a man to deprive himself of his own advantages, and make himself a prey to others.”14 The subjects’ obligations to the sovereign last, “as long, and no longer, than the power lasteth by which he is able to protect them.”15 The dilemma for the people is how to create and enter a civil society that will create a condition of safety beyond anything the people could create for themselves in the state of nature. The dilemma for the sovereign is how to maintain the appropriate measure of power in order to provide the security that will continue to oblige the people to be obedient subjects. The primacy of the need for protection over any other need for government is a reflection of human diffidence.16

2 Diffidence

Given the importance of diffidence in causing people to leave the state of nature and in extracting continued obligations to the state, one must understand how diffidence manifests within civil society. Recall that diffidence drives even those who might otherwise be law-abiding to fear and possible violence. The sovereign’s task is not only to keep subjects safe, but also to alleviate the subjects’ fears about safety. Alice Ristroph extends the Hobbesian picture of diffidence by offering a cogent account of the role that diffidence plays in the development of the criminal law. Ristroph notes,

Criminal prohibitions and threats of punishment might be seen as manifestations of diffidence: anticipations of harmful behavior and warnings not to engage in it… But the criminal law is not only an expression of diffidence; it is also an attempt to reduce it. We pass criminal laws and impose punishments not only because threats exist, but because a system of criminal law and punishment makes us feel more secure whether or not it actually deters violence.17

Thus, if Ristroph is correct, there are several entry points for diffidence within the criminal law. It is probably intuitive to see the criminal law, especially through the practice of punishment, as an expression of diffidence. However, Ristroph understands an additional justification for the criminal law. That is, the criminal law plays a role in reducing diffidence, or fear and anxiety. Having a system of criminal law and punishment makes subjects feel better and less afraid, regardless of whether subjects are actually any safer.

Ristroph takes her account a step further: on the Hobbesian account of the criminal law, it is not the “failings of the lawbreaker” that are most important to address. Rather, the criminal law is an attempt to reassure diffident subjects of their safety and security within the state. Passing laws and imposing punishments supposedly demonstrates the potency of the sovereign. Yet, ironically for Ristroph, the cycle of “prohibition, condemnation, and punishment – tends to reinforce mistrust rather than reduce it.”18 The criminal law responds to diffidence by expanding what constitutes crime and imposing stronger penalties for violations. People become more anxious rather than less because the ever-expanding category of criminal behavior leads people to perceive an increase in crime. The criminal law ratchets up penalties in response to the increased anxiety. People feel less safe because the continued interventions of criminal law do not work as promised. Meanwhile, the criminal law must consistently draw attention to crime in order to maintain the support of the people.19 Thus, the criminal law becomes self-justifying as it becomes increasingly expansive. As subjects become more fearful, the criminal law responds to their “psychological needs.”20

3 Ideal vs. Nonideal Theory

I find Ristroph’s account of how diffidence manifests in civil society quite compelling. However, I am struck by to whom the Hobbesian account, and Ristroph’s interpretation of it, addresses itself. Although Ristroph uses nonideal world examples, such as overpopulation in prison due to mandatory minimum policies, in order to make her case for understanding of the role of diffidence in the criminal law, she understands the Hobbesian framework as capturing an abstract, ideal polity – including an abstract sovereign and subjects. Ristroph’s conception of the ideal polity is consistent with standard interpretations within the contract tradition. However, the notion of an ideal polity, particularly a sexless, raceless one, has come under fire, most prominently exemplified by Carol Pateman’s The Sexual Contract and Charles Mills’ The Racial Contract.21 Whereas ideal theory relies on abstract conceptions of “humans” who agree to leave the state of nature, establish civil society, and live peaceably in the state according to agreed-upon terms, nonideal theory begins with an understanding of the background conditions in the formation of the state as fundamentally unequal.22 This understanding calls into question many of the central assumptions of ideal theory, including the very notion of what it is to be “human.”23 This is significant because nonideal theory captures the actual social relations between humans that shape the polity.

Mills notes that, “[C]ontractarianism’s putatively holistic picture of sociopolitical reality is flawed because of its occlusion of social domination.”24 In other words, the abstraction that is the hallmark of ideal theoretic accounts of the creation of the state, the abstraction that (especially for later contractarians like Rawls) ensures fair guiding principles within the state, is the precise element that, for nonideal theorists, guarantees the failure of the contractarian project. For the nonideal theorist, the very nature of social domination shapes the key assumptions that ground ideal theory and render it ill-equipped to address the realities of social domination as anything more than a departure from the ideal. Rather than a mere departure from the ideal, the nonideal theorist understands social domination as an inherent feature of the ideal contractarian state. For Pateman, the society created from the original contract is “a patriarchical social order.”25 For Mills, the “abstract social contract” is, in fact, a “nonideal, racial contract.”26 However, neither account merely adds sex or race to the contract discussion. Rather, for Pateman and Mills having a true understanding of the reality of how race and sex have shaped the actual polity necessarily undermines traditional contract theoretical accounts and transforms the reading of social contract theory itself.27 Far from examples of falling short of an ideal that is still fundamentally and reasonably just, racial and sexual oppression become fundamental components of the contract itself. While Pateman and Mills have made important contributions in reshaping the underlying assumptions of social contract theory, Kathryn Sophia Belle critiques their initial analyses for treating race and gender as though they are mutually exclusive and for ignoring the unique considerations that arise at the intersection of race and gender. For Belle,

The issue is not only being complicit with the role of white racism in oppressing non-white women, it is also the aforementioned issue of patriarchal relations between non-white men and women. This speaks to the limits of white feminism and male antiracism.28

Pateman, Mills, and Belle have made important contributions to reorienting our thinking away from the traditional interpretations of social contract theory. Pateman rests her analysis on sex, Mills on race, and Belle highlights the failure of both Pateman and Mills to provide an adequate account of how the racial and sexual contracts intersect and how race and gender taken together shape, reinforce and upend both social contract theory generally and Pateman and Mills’ corrective interventions. To that end, nonideal theory provides the appropriate intervention with which to re-conceptualize Hobbes.

Neither Pateman, Mills, nor Belle view Hobbes as their specific target in their respective critiques of social contract theory.29 Yet, understanding morality as convention as Hobbes does removes the mental gymnastics required to explain how racial oppression would enter the picture in an account like the one Locke offers in The Second Treatise, for example.30 In this regard, Hobbes is instructive.

4 “Classical” Diffidence vs. “Racialized” Diffidence

Recall that diffidence is one of the main causes of quarrel in the Hobbesian state of nature. People create civil society, in part, as an attempt to ameliorate the mistrust and anxiety arising under diffident conditions.31 Ristroph extends Hobbes’s idea to explain the workings of criminal law and punishment, which, on her account, become the primary mechanism through which civil society attempts to combat diffidence.32 Ristroph notes that,

Criminal law responds to diffidence, but it does not eliminate it. Indeed, diffidence proliferates as society gets larger and more heterogeneous, and as criminal law grows in scope and severity. We grow more anxious, and we seek an ever more aggressive criminal law, and yet we find that aggressive and punitive policies do little to alleviate our anxiety and may even aggravate it.33

There are a few important observations to make about this passage. First is the important admission that criminal law does not eliminate diffidence. Instead, the diffidence carried over from the state of nature increases as different kinds of people enter society, regardless of the capacity in which they enter: immigrants, refugees, slaves, etc. If Ristroph is correct, then diffidence tracks difference – a fact that I draw out explicitly as I argue that diffidence itself is racialized, an aspect of diffidence that Ristroph does not fully acknowledge.

I cannot overstate the important connection between heterogeneity in civil society, increased diffidence, and appeal to the criminal law as a mechanism to address the increased diffidence. That a society is heterogeneous does not mean its different members have similar access to the mechanisms of power and influence. Some will influence the criminal law while others will be its target. In a racialized state where whiteness equals power, white people will have the power to exempt themselves from (most) suspicion while nonwhite people will bear the suspicion, anxiety, and fear of whites. Meanwhile, white people will have the criminal law at their disposal to respond to their diffidence. As entire populations of nonwhite people become targets of white diffidence, the criminal law expands to accommodate white worries by further criminalizing nonwhite people.

Furthermore, because whites are aware that the criminal law bends to alleviate their worries, they can manipulate the criminal law to their comfort by feigning fear. In these kinds of instances, it is not diffidence but, rather, the specter of diffidence that whites are able to wield against nonwhites in order to assert and enforce racial hierarchy. Whereas diffidence is the actual psychological state of fear and anxiety, the “specter” of diffidence arises when, knowing that the law will bend to white fear, the perpetrator feigns fear as a means of control. In other words, whites know that they can claim to be afraid for their safety or property and the criminal law will respond to these fears regardless of whether those fears are real. For example, in the summer of 2021 a trend emerged on the social media site TikTok, of white women pretending to cry (sometimes hysterically) and then suddenly smiling or smirking on cue when the background music changed. At least one writer attributed this trend to (re)enacting fan fiction of the television show, The Vampire Diaries.34 However, watching scores of white women pretend to cry for social media “likes” sparked important discussions about the history of white women using their tears as weapons against black people.35 Writer Imani Barbarin recorded her own TikTok in response to one of these videos and tweeted, “This ‘trend’ is chilling. It’s more of a threat.”36

Although the white women in question were using their tears to entertain social media followers, rather than to summon the power of law, the ease with which these woman mustered up tears brought to mind, for black observers in particular, a history of appealing to a specter of diffidence in order to harm black people. Because white and nonwhite people know that the criminal law is primed to respond to white diffidence and its specter, whites can and do use the criminal law as a threat against nonwhites. Amy Cooper, a white woman who, in May 2020, threatened to call the police on black bird-watcher, Christian Cooper (no relation) in Central Park’s The Rumble, understood this as did Christian Cooper. After Christian Cooper approached Amy Cooper about her unleashed dog in the park, Amy Cooper said, “I’m going to [falsely] tell [the police] there’s an African American man threatening my life.” She can be seen crying hysterically on video (as Christian Cooper, who was standing at a distance, had begun to record with his phone) and telling the 911 operator, “I’m being threatened by a man in The Ramble! Please send the cops immediately!”37 In a racialized state, difference becomes grounds for diffidence, and diffidence (and its specter) become grounds for specific enforcement of the criminal law against nonwhites.

Moreover, while nonwhite people may have anxieties about safety and security within civil society, the criminal law is not equally responsive to those worries. Nor is the criminal law available for nonwhite people to bend for their comfort. Nonwhite people, regardless of their collective diffidence, do not get to seek an “ever more aggressive criminal law.”38 Instead, they are the scapegoats, the ones to be protected from, rather than fellow members of civil society who may themselves need protection. As nonwhite people generally and black people, in particular, come to be viewed as a suspect class, white attitudes about black criminality also become entrenched. Whites begin to see black criminality as a matter of disposition.39 In other words, racialized diffidence moves white people to believe that black people are inherently dangerous, thereby triggering the desire for further expansion of the criminal law. The criminal law, rather than responding to actual needs, is a response to the psychological needs of those Ristroph describes as “law-abiding subjects” in the classical conception of diffidence.40 However, I submit that since diffidence itself is racialized, “law-abiding subjects” becomes coextensive with “white subjects” (despite the fact that white people are not any more “law-abiding” than anyone else.)

Second, and subtly connected to my first observation, is Ristroph’s liberal use of “we.” We grow more anxious. We seek an ever more aggressive criminal law. If heterogeneity, the growing influx of different kinds of people, increases the amount of diffidence in a society, then it is not obvious exactly who Ristroph’s “we” captures. Maybe it is the case that everyone experiences an increase in diffidence in the same way. Maybe everyone who experiences increased diffidence responds by demanding a more aggressive criminal law with corresponding punitive sanctions. However, Ristroph herself acknowledges that the public and political elite tend to prefer more severe punishment options.41 If this is the case, then the “we” Ristroph has in mind cannot be coextensive with “everyone in society.” Rather, Ristroph’s “we” must refer to the public and political elite and those who see themselves as having common cause with the public and political elite.

It is this subtle language, this “we” that suggests inclusivity, but that actually refers to a specific subset of people, that highlights the important contribution of nonideal theory. Ristroph’s “we” becomes an example of what Mills describes as “a contractarian liberalism that is racially structured in its apparatus and assumptions.”42 Ristroph’s “we” encompasses a whiteness that goes unremarked. Even as Ristroph herself concedes that persistent worry about crime contributes to practices like racial profiling and the disproportionate number of black people in the prison population, like many liberal theorists, Ristroph sees these practices as abuses or anomalies departing from the ideals of the social contract, rather than as part and parcel of the social contract framework.43 Ideally, the social contract should decrease, not increase, diffidence. That the social contract does not do this is, again, thought to be a resolvable problem within the account instead of a fundamental feature of the social contract framework. Ristroph does not question who, exactly, beyond a vague “public and political elite,” advocates practices such as racial profiling and the mass incarceration of black people. Yet, to see racial abuse as part and parcel of the social contract framework is to understand how diffidence is itself racialized. Racialized diffidence channels white worries, fears, and anxieties about safety and security onto nonwhite, particularly black, persons. Ristroph’s “we” excludes the people who disproportionately and unjustly suffer from increased white anxiety and the corresponding demands for punitive measures that purport to alleviate this anxiety.

5 How Racialized Diffidence Manifests

Because punishment occupies such an important place in civil society, it is important to understand how racialized diffidence manifests itself. While racial prejudice makes whites more broadly punitive toward blacks and more likely to endorse police brutality against black people, racialized diffidence need not be motivated by overt racial animus.44 Hobbes held that the purpose of punishment is not retribution or revenge; rather, punishment “must dispose men’s wills to obedience.”45 Punishment should serve the dual purpose of reassuring the “law-abiding” that they are safe and frightening criminals into compliance with the law. However, under conditions of racial hierarchy, institutions, along with the right to determine their meaning, are white-controlled.46 The coercive power of the criminal law is one such example.

The Department of Justice indicated in their 2015 report released after their investigation of the Ferguson, Missouri police department that,

fpd appears to bring certain offenses almost exclusively against African Americans. For example, from 2011 to 2013, African Americans accounted for 95% of Manner of Walking in Roadway charges, and 94% of all Failure to Comply charges.47

The report continues,

That fpd officers believe criticism and insolence are grounds for arrest, and that supervisors have condoned such unconstitutional policing, reflects intolerance for even lawful opposition to the exercise of police authority.48

In these instances, the criminal law almost exclusively targets black people with relatively minor offenses. Additionally, black people in Ferguson risk arrest for exercising lawful opposition to police authority.

This latter kind of case, where police arrest black people for engaging in what should be lawfully protected behavior, is what Adrian Piper refers to as second-order discrimination. Whereas first-order discrimination is what people commonly mean by “discrimination,” in the case of second-order discrimination,” attributes that are in themselves salutary, or at least neutral, are castigated by the second-order discriminatory by reason of the disvalue conferred on them by the primary disvalued attribute.”49 Instances of second-order discrimination entail assigning negative judgment and/or consequences to positive or neutral attributes because the second-order discriminator regards another, primary attribute, negatively. In the Ferguson example, the Ferguson police arrest black people for lawfully exercising their right to question police authority, not because the police generally object to the lawful exercise of one’s rights, but because they disvalue the attribute of racial blackness.

For the second-order discriminator, lawful exercise of one’s rights while black is “bad” because blackness itself is a disvalued attribute. An act that should be neutral on its face, the act of exercising one’s rights, takes on the primary disvalued attribute of blackness when a black person engages in it. A virtue of Piper’s account is that the second-order discriminator need not harbor any explicit animus toward the target of second-order discrimination. It is sufficient that the primary disvalued trait is generally disvalued. In the Ferguson police case, an officer who is a second-order discriminator may protest that she is responding to a black person’s insolence or disrespect, and that her response has nothing to do with race. Yet, the mere fact that a black person’s lawful exercise of their rights is interpreted negatively due to negative background beliefs about blackness is the crux of second-order discrimination. The second-order discriminator sees “something” in black people that evokes “danger” when similar behavioral practice and presentation by whites does not evoke similar danger.

Like second-order discrimination, racialized diffidence does not require explicit racial animus. Racialized diffidence may make use of other racial or nonracial justifications – deficient culture, crime statistics, etc. that are not necessarily driven by racial animus. Even against a general societal backdrop of diffidence that the sovereign and the sovereign’s agents keep in check, racialized diffidence has a particular target that is subject to harsher penalties. In the Ferguson case, the Department of Justice reported that:

Officers expect and demand compliance even when they lack legal authority. They are inclined to interpret the exercise of free-speech rights as unlawful disobedience, innocent movements as physical threats, and indications of mental or physical illness as belligerence.50

Second-order discrimination can apply to a variety of social and political contexts. Racialized diffidence carries with it the force of the criminal law and other coercive powers of the state. It is true that police have discretion in deciding whether and how much force to use in their interactions with others.51 It is also true that the racialized diffidence of white citizens can exert pressure on police officers (regardless of the officer’s race) to behave punitively toward black people. The extent that the Ferguson officers see physical threat from black people where there is none and operate with the state’s authority reflects racialized diffidence at work.

6 Racial Profiling

Racial profiling is a specific manifestation of racialized diffidence. According to Risse and Zeckhauser, racial profiling is “any police-initiated action that relies on race, ethnicity, or national origin and not merely on the behavior of an individual.”52 Similarly, Jack Glaser understands racial profiling to be “the use of race or ethnicity, or proxies thereof by law enforcement officials as a basis for judgment of criminal suspicion.”53 Beyond the use of race and/or ethnicity, racial profiling relies on an underlying assumption of fear and insecurity. In other words, racial profiling is a response to diffidence. Specifically, it is a response to racialized diffidence. The idea that insecurity is part of the natural condition and that the state must take preventive measures in order to overcome this insecurity is fundamentally Hobbesian.54 The idea that nonwhite people are inherently more dangerous than white people and that the state must preemptively “handle” nonwhite people in order to secure white people’s safety and comfort is the raison d’être of the racial polity – a raison d’être that is only revealed once one confronts nonideal theory.

The Hobbesian justification for the state is to provide protection for its citizens. It is a response to diffidence. In a racial polity, racial profiling becomes one way for the state to respond to the diffidence of its white citizens. Although race and/or ethnicity may be one factor of many used in deciding whether to stop or search someone, in a racial polity, race and/or ethnicity often become the “determinative” reason.55 Just as with other manifestations of racialized diffidence, one can provide plausible nonracial reasons for racial profiling, e.g., “statistical probability.” In fact, the underlying assumptions justifying racial profiling rely on a statistical justification. That is, proponents of racial profiling point to a statistical correlation between certain racial groups, like black people, and tendency to commit certain crimes, like armed robbery. Furthermore, proponents claim, the state can prevent crime if given the leeway to engage in practices like stops and searches of members of the racial group in question.56 In short, racial profiling is an efficient use of the state’s resources.57 Importantly for the Hobbesian framework, racial profiling provides white people with the psychological comfort of knowing that the state takes their diffidence seriously.

Much discussion of racial profiling centers on one or more of the following ideas: (1) whether, what, and/or how racial profiling harms the racially profiled, (2) whether the potential cost (harm) to the racially profiled is “worth it” to ensure the safety of “everyone,” and (3) whether racial profiling meets its stated aim of reducing crime and increasing safety.58 To understand racial profiling as a manifestation of racialized diffidence is to understand that, in an important sense, none these questions nor their answers matter.59 From this standpoint, the important question is whether white people feel safer under conditions of racial profiling of nonwhites. Whether the racially profiled are endangered, insulted, or otherwise harmed by the practice is not the state’s primary preoccupation. One might recall that Hobbes gives the example of the Beggars’ Revolt to warn against unfair treatment of the citizenry. Those “citizens of modest means” revolted because the sovereign did not intervene when they were continually being insulted by the elite.60 However, racialized diffidence places nonwhites in a different position relative to both white citizens and the sovereign. That is, because nonwhites stand in a different relation to whites and both white and nonwhite people know that the task of the criminal law is to be responsive to the racialized diffidence of whites, nonwhites likely do not have the same expectation that the sovereign would be responsive to harm committed against nonwhites. This is not to suggest that the sovereign couldn’t care about whether practices like racial profiling insults nonwhites, only that it need not. Likewise, the sovereign need not worry about whether racial profiling actually makes people safer.61

Here one might object that if the primary aim in a Hobbesian state is safety, then the state has to make people safe. Recall that Hobbes says explicitly that if the state fails to provide security for its people, then the state has failed, and the people are no longer bound to it. However, given the law of large numbers, racial profiling will yield some results that the state will be able to rightfully tout as success. These successes will then serve as “proof” that racial profiling works and as a justification for continued or even increased action by the state against the racially profiled. The upshot is that racialized diffidence justifies state interventions like racial profiling in the service of white comfort. Racialized diffidence has explanatory power for continued state intervention in the lives of black people even in the face of information regarding actual crime rates that is inconsistent with the main stated justification for racial profiling – increased safety.62

7 Objection that Black People Remain in the State of Nature Relative to Other Members of Society

Raff Donelson raises what could be an interesting objection to my argument that racialized diffidence explains the use of coercive state power against black people, particularly police interventions such as racial profiling. Donelson argues that rather than being subject to racial, sexual, and/or intersecting contracts, black people actually remain in a Hobbesian state of nature relative to other members of society, particularly relative to the police.63 Recall that in a Hobbesian state of nature, there is no overarching power to “awe” the people into submission. According to Donelson,

Just as Hobbes saw that a state of nature could exist in some facets of life while civilization and modernity reign in other facets of life, we should see that, though we have civilization, there is nonetheless a state of nature between police and Black people in the United States, at least, of late. Three facts bear this out: rampant violence between police officers and black people, high levels of mistrust between police officers and Black people, and that the interactions between police officers and Black people are lawless.64

While I do not dispute the three facts Donelson highlights, they do not make a convincing case for black people and the police being in a state of nature relative to one another. Donelson thinks that if the government of the United States were truly the overarching power that could “awe” its subjects into submission, then police who engage in misconduct would be punished.65

Donelson thinks that, at best, the police and the state operate in the kind of confederacy that Hobbes argues exists in the state of nature when parties align themselves for a specific end.66 This explains why very few officers are punished for their misconduct. But, not only are officers rarely punished, they also openly thwart criticism from the state. For example, Donelson describes the police response to criticism from New York Mayor Bill de Blasio on the 2014 police killing of Eric Garner by use of an illegal chokehold. Police responded to the mayor’s criticism of the chokehold and Garner’s subsequent death with a work slowdown – refusing to issue tickets or respond to nonviolent crimes. Police officers later turned their backs on Mayor de Blasio as he delivered the eulogies for two police officers killed in 2015. For Donelson, these behaviors show that the government cannot control the police (as a Hobbesian sovereign would be fully capable of doing) and “gets embarrassed when it tries.”67 The police only appear to be unreasonable if one fails to understand that the police are operating in a Hobbesian state of nature.68 If one understands that the police and black people are in a perpetual state of war with one another, then police actions seem reasonable.

Donelson sees the view that Michelle Alexander articulates in The New Jim Crow as his target. Alexander’s view is that the police are, in fact, acting as an apparatus of the state. Any perceived lawlessness by the police toward black people is a misunderstanding of the state’s interest in racial oppression. Donelson dismisses Alexander’s view as “conspiratorial” and claims that Alexander “fails to account for the structural relations between police and the rest of the state.”69 While Alexander focuses on the structure and re-structuring of Jim Crow forms of racial oppression as they relate to mass incarceration, and my own view focuses on addressing the problem of Hobbesian diffidence in a racial polity, our views are compatible insofar as Alexander and I agree that the police act on behalf of the state, not in opposition to it. To that end, I offer a response to Donelson’s view that black people and the police are in a Hobbesian state of nature relative to one another.

One way to think about the police as acting as an apparatus of the state is to think about the actor/author distinction that Hobbes raises in Chapter xvi of Leviathan, “Of Persons, Authors, and Things Personated.” In Chapter xvi, Hobbes offers the following distinctions:

A person is he whose words or actions are considered either as his own, or as representing the words or actions of another man, or of any other thing to whom they are attributed, whether truly or by fiction.

When they are considered as his own, then is he called a natural person; and when they are considered as representing the words and actions of another, then he is a feigned or artificial person.70

Artificial persons represent the words and actions of another. In the case of racial profiling under conditions of racialized diffidence, the police represent the words and actions of the state, or sovereign. However, Donelson’s issue does not seem to be that one person could not represent another. His issue is that in the case of police interactions with black people, they do not represent the sovereign.

Yet, Hobbes continues,

Of persons artificial, some 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. For that which in speaking of goods and possessions is called an owner…, speaking of actions is called author. And as the right of possession is called dominion, so the right of doing any action is called authority. So that by authority is always understood a right of doing any act; and done by authority, done by commission or license from him whose right it is.

From hence it followeth that when the actor maketh a covenant by authority, he bindeth thereby the author, no less than if he had made it himself, and no less subjecteth him to all the consequences of the same.71

For Hobbes, when one acts on authority, those actions are the same as if the author performed them. In this case, the sovereign authorizes the police. For Donelson, if the police are acting on behalf of the sovereign, representing the sovereign’s actions, then the sovereign ought to be able to control or withdraw the actions of the police. Donelson’s point is that this does not happen. Therefore, contra Alexander and myself, the actions of the police must not represent the actions of the sovereign.

Nonetheless, the sovereign (by Hobbesian definition) can limit what those who are authorized do, and the sovereign can, in fact, control or withdraw this authorization at any time. Apparent acts of “defiance” that Donelson highlights notwithstanding, the sovereign in these instances may simply chose not to intervene. Given the sovereign’s duty to secure peace within the society, and particularly given Hobbes’s dire warning in his discussion of the Beggars’ Revolt, it may seem antithetical to the sovereign’s interest to not intervene in order to check the actions of the police. However, this reading only works from a standpoint of ideal theory.

If one takes nonideal theory seriously, then one can see that black people are not in Hobbesian state of nature relative to the police, the sovereign, or anyone else, but black people are instead subject to racial/sexual/intersecting contracts. That police are rarely punished for their misdeeds is not evidence that there is no sovereign to awe them, but rather that, just as with everything else under the domain of the sovereign, punishment occurs when it is in the sovereign’s interest. Two instances of it being in the sovereign’s interest to punish a police officer are the 2016 conviction of serial rapist Daniel Holtzclaw, who used his role as a police officer in Oklahoma City, Oklahoma, to target and sexually assault black girls and women (ranging from their late teens to their late 50s); and the four officers who were convicted in the 2020 killing of George Floyd. It would be in the sovereign’s interest to act even in the face of violence against black women and girls (subjects of racial/sexual/intersecting contracts) because the sheer egregiousness of Holtzclaw’s crimes could cause those who are not subject to intersecting contracts to worry that the sovereign could one day turn on them.72 Likewise, the months-long global outcry following the murder of George Floyd by police officers in Minneapolis, Minnesota could prime the sovereign’s interest in prosecuting the officers due to the sheer number of people across the social and political spectrum demanding redress.73 In other words, the sovereign may sacrifice some of its agents, even when those agents are imbued with the sovereign’s authority, when it is prudent.

The sovereign in civil society makes use of agents (like the police) and authorizes them to act according to the sovereign’s will. The example Hobbes offers in Elements of Law is the case of magistrates and ministers of public affairs who are, according to Hobbes, to “be understood as an inseparable part of the same sovereignty, to which the sum of all judicature and execution hath already been annexed.” Among the state’s powers (and those who the state authorizes) are use of the sword in peace and war and making and abrogating of laws.74 The sovereign’s interest will shift because the social contract is really racial/sexual/intersecting contracts. So, the police are agents of the sovereign, but because the state cares primarily about addressing white diffidence, then the need for white safety is the sovereign’s priority, not the treatment of, danger, or injury to black people.

Hobbesian diffidence provides us with an interesting framework within which to consider the contemporary problem of racial profiling and its often-accompanying violence. However, far from being mere abstractions, social contract theory and its accompanying concepts are themselves raced and gendered. So, the diffidence that motivates the citizenry to leave the state of nature and enter civil society is itself racialized and does not disappear upon entry into civil society. Rather, it motivates the citizen’s understanding of what is required to attain “safety” and justifies practices like racial profiling. Meanwhile, black concerns about racial profiling are outweighed by the needs of those who matter more. Understanding this phenomenon explains why racial profiling is persistent even in the face of protest.

8 Upshot?

I have argued that a Hobbesian framework provides an important lens through which to understand the contemporary issue of racial profiling. Hobbes’s insights on the motivations for leaving the state of nature and the role of the sovereign within civil society hold an explanatory power for racial oppression that other classical social contract theoretical accounts do not. While remaining true to the Hobbesian framework, I used nonideal theory, particularly the intervention of racial/sexual/intersecting contracts, to show that far from a theoretical inconsistency within the social contract tradition, racial injustice is part and parcel of the social contract. By extending the Hobbesian conception of diffidence, I showed how racial injustice enters civil society. Moreover, a racialized diffidence is continually reinforced by white demands for ever expansive use of the criminal law that targets black people under the guise of ensuring safety. Thus, racial subordination remains even in the absence of racial animus.

Racial profiling, often accompanied by police violence, is a paradigmatic case of a Hobbesian justification for the sovereign’s duty to ensure the safety of the [white] citizenry under nonideal conditions. That racial profiling can be justified on nonracial grounds does not make it any less pernicious. Indeed, a closer look at the underpinnings of racial profiling reveal disfavor toward black people such that even avowed nonracial justifications for the practice show a second order disvaluing of any attributes associated as “black.” That more often than not, instances of racial profiling go unpunished suggests that those who engage in the practice are acting on authority of the sovereign. Yet, even Hobbes, for whom the sovereign has near absolute authority, warns on prudential grounds against continual insult and attack on the citizenry. This means that, even under conditions of racialized diffidence, it occasionally may be in the sovereign’s interest to punish perpetrators of racial injustice. Racialized diffidence is both a response to white fear and a means of reinforcing racial hierarchy.


See generally Feminist Interpretations of Thomas Hobbes, ed. Nancy J. Hirschmann and Joanne H. Wright (Pennsylvania: Penn State Press, 2012).


Bernasconi and Lott attribute the first use of “race” in “something like its contemporary meaning of a major division of humanity displaying a distinctive combination of physical traits transmitted through a line of descent” to French physician François Bernier in 1684. Robert Bernasconi and Tommy Lott, “Introduction,” in The Idea of Race, ed. Robert Bernasconi and Tommy Lott (Indianapolis, IN: Hackett Publishing Company, 2000), viii.


See: Susanne Sreedhar, Hobbes on Resistance: Defying the Leviathan (New York: Cambridge, 2010), 1; and Alice Ristroph, “Hobbes on ‘Diffidence’ and the Criminal Law,” in Foundational Texts in Modern Criminal Law, ed. Markus D. Dubber (Oxford: Oxford, 2014), 25.


It is important to note that not everyone in civil society will be a citizen. Hobbes would claim that noncitizens are in a state of nature relative to others. In De Cive, Hobbes further distinguishes the free subject, who “serves his City onely” from the servant, who “also serves his fellow subject.” A servant is one who has forfeited their freedom through “warre, or misfortune, or through his own idleness.” See Thomas Hobbes, De Cive (The English Version): Philosophical Rudiments Concerning Government and Society, ed. Howard Warrender (Oxford: Oxford, 1983), 139, 159. Also, at this stage it may seem that I am assuming the implicit whiteness of the citizenry. Certainly, in the ideal social contract tradition, the citizen is implicitly assumed to be white and male. This is a fundamental critique within the nonideal contract tradition. I will address both the ideal and nonideal social contract traditions later in the paper.


David Johnston, The Rhetoric of Leviathan: Thomas Hobbes and the Politics of Cultural Transformation (Princeton: Princeton University Press, 1986), 32.


Thomas Hobbes, Leviathan, ed. and introduction by Edwin Curley (Indianapolis/Cambridge: Hackett, 1994), p. 75.


Hobbes, Leviathan, p. 79; Thomas Hobbes, The Elements of Law Natural and Politic, ed. and with preface and critical notes by Ferdinand Tönnies (Cambridge: Cambridge, 1928), p. 55.


Hobbes, Elements of Law, p. 54; Hobbes, Leviathan, p. 76.


Tommy Lott, “Hobbes’s Right of Nature,” History of Philosophy Quarterly 9 (1992): 167; and Tommy Lott, “The Psychology of Self-Preservation in Hobbes,” Revue Européene des Sciences Sociales 20 (1982): 49.


Johnston, Rhetoric of Leviathan, 30–1.


Hobbes, Elements of Law, p. 79; Hobbes, Leviathan, pp. 109, 135.


Although the picture is certainly a grim one – and the grimness ultimately drives the move into civil society, the picture is not solely grim. Humans are also motivated by both a desire for commodious (harmonious) living and the hope that achieving this is possible. Those desires also remain in the state of nature. (Thanks to the anonymous reviewer for drawing out this point.) These two additional passions can be thought to be good-making features of civil society – certainly under an ideal framework. However, as this is a work of nonideal theory exploring racial oppression, one might also consider the possibility that a desire for “commodious living” may not include everyone. For example, the existence of “sundown towns” and the practice of opportunity hoarding are nonideal examples of privileged white citizens living in harmony with one another while actively harming those who live in proximity and are not white. While I distinguish ideal versus nonideal theory later in the text, a more thoroughgoing discussion of nonideal theory as it relates to commodious living is beyond the scope of this paper. For a general explanation of how sundown towns operate(d), see Heather A. O’Connell, “Historical Shadows: The Links Between Sundown Towns and Contemporary Black-White Inequality,” Sociology of Race and Ethnicity 5 (2018). For an overview of the concept of opportunity hoarding, see Sheryll Cashin, White Space, Black Hood: Opportunity Hoarding and Segregation in the Age of Inequality (Boston, MA: Beacon Press, 2021).


Tom Sorell, Hobbes: The Argument of the Philosophers (London: Routledge, 1986), 125.


Hobbes, Elements of Law, pp. 84–85.


Hobbes, Leviathan, p. 144.


Ristroph, “Hobbes on Diffidence,” 36.


Ristroph, “Hobbes on Diffidence,” 30.


Ristroph, “Hobbes on Diffidence,” 23.


Ristroph, “Hobbes on Diffidence,” 35.


Ristroph, “Hobbes on Diffidence,” 30.


See generally Carole Pateman and Charles Mills, Contract and Domination (Cambridge, UK: Polity, 2012).


Rawls distinguishes between ideal and nonideal theory in A Theory of Justice. He understands ideal theory to be the domain of perfectly just circumstances in which there will be “strict compliance” with “the principles that characterize a well-ordered society under favorable circumstances” and nonideal theory as needing to be “worked out after an ideal conception of justice has been chosen; only then do the parties ask which principle to adopt under less happy conditions” (John Rawls, A Theory of Justice [original version] [Cambridge: Belknap Press, 1971], 245–6). Rawls lists “the theory of punishment and compensatory justice, just war and conscientious objection, civil disobedience and militant resistance” as matters that are captured within the domain of nonideal theory (351).


Iris Marion Young, “Impartiality and the Civic Public: Some Implications of Feminist Critiques of Moral and Political Theory,” in Feminism as Critique, ed. Seyla Benhabib and Drucilla Cornell (Minneapolis: University of Minnesota Press, 1987), 58.


Charles Mills, “The Racial Contract Revisited: Still Unbroken After All These Years,” Politics, Groups, and Identities 3 (2015): 545.


Carole Pateman, The Sexual Contract (Stanford: Stanford, 1988), 1.


Charles Mills, “Racial Liberalism,” pmla 123 (2008): 1382.


See Pateman, The Sexual Contract, 222, 233, and Mills, “The Racial Contract Revisited,” 543.


Kathryn Gines (now Kathryn Sophia Belle), “Black Feminist Reflections on Charles Mills’ ‘Intersecting Contracts,’” Critical Philosophy of Race 5 (2017): 26.


Jorge Garcia, in his critique of what he refers to as Charles Mills’ Racial Contract Hypothesis (rch) invokes Hobbes as a better target for the rch: “Of course Mills could limit his claim for the superiority of the rch to a comparison only with Hobbesian contract theory. However, since it is the Lockean and Kantian varieties that are most influential today, that restriction would significantly weaken his case for the rch” (Jorge L. A. Garcia, “The Racial Contract Hypothesis,” Philosophia Africana 4 [2001]: 35). I am puzzled by Garcia’s claim in this specific instance, as this passage is in response to Mills’s claim about the (specifically Lockean) justification (in the state of nature) for taking land from nonwhite people on the grounds that the nonwhite occupants failed to improve it. Hobbes would not have anything to say on those grounds because, for Hobbes, there is no “property,” in the Lockean sense, in the state of nature.


Additionally, Hobbes does offer an account of and justification for colonization, and some have argued that Hobbes’s accounts of the continuing state of nature among “savages” laid the foundation for later [racialized] international relations. See David Neil James, “Hobbes’s Argument for the ‘Naturalness’ and ‘Necessity’ of Colonization,” History of Political Thought 38 (2017): 439–61, or Pat Moloney, “Hobbes, Savagery, and International Anarchy,” The American Political Science Review 105 (2011): 189–204.


Ristroph, “Hobbes on Diffidence,” 35.


Ristroph, “Hobbes on Diffidence,” 35.


Ristroph, “Hobbes on Diffidence,” 24.


Gita Jackson, “Why are White Women Fake Crying on TikTok?,” Vice, June 22, 2021; (accessed February 16, 2023).


Sandra Song, “White Women Are Now Fake Crying for This New TikTok ‘Trend,’” Paper Magazine, June 17, 2021; (accessed February 16, 2023).


Benjamin VanHoose, “N.Y.C. White Woman Apologizes After Calling Cops on Black Man Who Asked Her to Leash Her Dog,” People, May 26, 2020; (accessed February 16, 2020). Later the same day as the encounter between Amy Cooper and Christian Cooper, George Floyd was murdered by police officers in Minneapolis, mn, who knelt on his neck as he lay defenseless on the sidewalk, a killing that sparked global protests for racial justice.


To be clear, I do not think that anyone should seek out an ever more aggressive criminal law. My own aspirations for racial justice do not (and will not) include a world where nonwhite people can and do behave with impunity in the same ways that white people can and do. I highlight the fact that nonwhite people cannot bend the law for their comfort, not because I think they should, but to highlight the difference in status in a racially diffident state.


Mark Peffley and Jon Hurwitz, “Persuasion and Resistance: Race and the Death Penalty in America,” American Journal of Political Science 51 (2007).


Ristroph, “Hobbes on Diffidence,” 30.


Ristroph, “Hobbes on Diffidence,” 34.


Mills, “Racial Liberalism,” 1385.


Ristroph, “Hobbes on Diffidence,” 24.


Peffley and Hurwitz, “Persuasion and Resistance,” 999, and Adam Waytz, Kelly Marie Hoffman, and Sophie Trawalter, “A Superhuman Bias in Whites’ Perceptions of Blacks,” Social Psychological and Personality Science 6 (2014).


Ristroph, “Hobbes on Diffidence,” 31.


Cheryl I. Harris, “Whiteness as Property,” Harvard Law Review 106 (1993): 1762.


US Department of Justice Civil Rights Division, “Investigation of the Ferguson Police Department,” March 4, 2015; (accessed August 31, 2016), 4.


US doj, Ferguson, 26.


Adrian Piper, “Higher-Order Discrimination,” in Identity, Character, and Morality: Essays in Moral Psychology, ed. Owen Flanagan and Amélie Rorty (Revised Edition) (mit Press, 1993), 289–90.


US doj, Ferguson, 2.


Naomi Zack, White Privilege and Black Rights: The Injustice of U.S. Police Racial Profiling and Homicide (Lanham: Rowman and Littlefield, 2015), 38.


Mathias Risse and Richard Zeckhauser, “Racial Profiling,” Philosophy and Public Affairs 32 (2004): 136.


Jack Glaser, Suspect Race: Causes and Consequences of Racial Profiling (New York: Oxford, 2015), 3.


Henrique Carvlaho, “Liberty and Insecurity in the Criminal Law: Lessons from Thomas Hobbes,” Criminal Law and Philosophy 11 (2017): 269.


Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (Revised Edition) (New York: The New Press, 2012), 131.


Risse and Zeckhauser, “Racial Profiling,” 131–2.


Glaser, Suspect Race, 96.


For examples, see generally, Risse and Zeckhauser, “Racial Profiling,” 131–170; Glaser, Suspect Race; Naomi Zack, White Privilege and Black Rights; Annabelle Lever, “Why Racial Profiling is Hard to Justify: A Response to Risse and Zeckhauser,” Philosophy and Public Affairs 33 (2005): 94–110.


I do not claim that these are not important questions in their own right, and there are good reasons to consider their answers. However, the answers to these particular questions do not bear on my argument about racialized diffidence and racial profiling.


Sreedhar, Hobbes on Resistance, 165–6.


I am not suggesting that Hobbes would endorse a practice like racial profiling. However, I am merely acknowledging that given the picture Hobbes paints of the sovereign’s authority, the sovereign is not required to rule out the possibility. Even according to the nonideal account that I offer (in which nonwhites and whites do not stand in equal relation to one another), the sovereign might have reason(s) to care about the possibility of insult. In the next section, I return to Hobbes’s Beggars’ Revolt example to show why it may be prudential for the sovereign (even the sovereign operating under the nonideal condition of racialized diffidence) to care about practices like racial profiling and its often-accompanying police violence.


Peffley and Hurwitz note that whites become more supportive of the death penalty when told that the death penalty is discriminatory against black people. See Peffley and Hurwitz, “Persuasion and Resistance,” 1001.


Raff Donelson, “Blacks, Cops, and the State of Nature,” Ohio State Journal of Criminal Law 15 (2017): 183.


Donelson, “State of Nature,” 184.


Donelson, “State of Nature,” 187–8.


Donelson, “State of Nature,” 189–90.


Donelson, “State of Nature,” 190.


Donelson, “State of Nature,” 187.


Donelson, “State of Nature,” 188.


Hobbes, Leviathan, p. 101.


Hobbes, Leviathan, pp. 101–2.


Sean Murphy, “Ex-Oklahoma Officer Gets 263 Years for Rapes, Sex Assaults,” The Associated Press, January 21, 2016; (accessed February 16, 2023).


Dana R. Fisher, “Lessons Learned From the Post-George Floyd Protests,” The Brookings Institution, July 22, 2022; (accessed February 16, 2023).


Hobbes, Elements of Law, p. 87.

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