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BOOK II.

THE STATE.

CHAPTER I.

THE IDEA AND THE CONCEPTION OF THE STATE.

DEFINITIONS of so comprehensive a term as the state are generally one-sided and always unsatisfactory. Nevertheless they are useful and helpful. This is primarily a question of political science. Not until the state has given itself a definite and regular form of organization, i.e. not until it has formed for itself a constitution, does it become a subject of public law. It may be said that a state cannot exist without a constitution. This is true in fact; but the state can be separated in idea from any particular form of organization, and the essential elements of its definition can be found in the principle or principles common to all forms. There are two ways of reaching the definition. The one is the process of pure philosophy, the other that of inductive logic. The one gives us an idea of the reason, the other a concept of the understanding. The two ought to coincide, but they more frequently differ. The sources of the difference are manifold. Either the speculation is colored by fancy, or the induction is not exhaustive. Either the idea is too abstract, or the concept too concrete. There is something deeper, too, than the intellectual character of the particular political scientist, which creates this disharmony between the idea and the con. cept of the state. The idea of the state is the state perfect and complete. The concept of the state is the state developing and approaching perfection. There is one thing, however, which modifies this divergence between the idea and the concept of the state, and that is the dependence, after all, of the speculative philosopher upon objective realities to awaken his consciousness of the idea. This brings the two nearer together. It makes the idea the pioneer of the concept, and the concept the stages in the realization of the idea. If we keep in mind the two processes followed in the formation of the definition, we shall be better able to reconcile the views of the different authors upon this subject. There is nothing more disheartening for the reader than to be dragged through a list of conflicting definitions at the beginning of a treatise, and to be required to select the principle before he knows the facts and details of the subject; still something of the sort must be done, briefly and tentatively at least, in order to give logical consistence to the work. The reader may take the preliminary definition upon trial at least, and accept it with a temporary faith.

From the standpoint of the idea the state is mankind viewed as an organized unit. From the standpoint of the concept it is a particular portion of mankind viewed as an organized unit. From the standpoint of the idea the territorial basis of the state is the world, and the principle of unity is humanity. From the standpoint of the concept, again, the territorial basis of the state is a particular portion of the earth's surface, and the principle of unity is that particular phase of human nature, and of human need, which, at any particular stage in the development of that nature, is predominant and commanding. The former is the real state of the perfect future. The latter is the real state of the past, the present, and the imperfect future. In a treatise, therefore, upon public law, and upon political science only as connected with public law, we have to deal only with the latter. Our definition must, therefore, be that the state is a particular portion of mankind viewed as an organized unit. This definition requires a great deal of analysis and explanation.

1 Bluntschli, Lehre vom modernen Stat, Bd. I, S. 34. “ Der Stat ist die organizirte Menschheit. Der Stat ist der Mann."

“Der Stat ist die politisch organisirte Volksperson eines bestimmten Landes."

2 Ibid. S. 24.

I. What is the principle according to which the portions of mankind forming states are to be determined? No answer can be given to this question that will be valid for all times and conditions. In the ancient civilization the principle of common blood or a common faith, in the mediæval that of personal allegiance, and in the modern that of territorial citizenship, have chiefly determined the political divisions of the world. We must be careful, however, not to separate these principles, as to the time of their application, too exactly from each other. Each of them reaches out beyond its proper period and, so to speak, overlaps the next; creating that confusion in regard to citizenship and alienage which every public lawyer meets and dreads. But these answers are not wholly satisfactory. They resolve the problem in part, but they raise other and more difficult questions. How far will a bond of blood, or of faith, preserve sufficient strength to serve as the principle of political organization? What are the circumstances which direct personal allegiance towards this point or that? What are the conditions which make a particular territory the home of a state? With these questions, we have again entered the domains of geography, ethnology and the history of civilization. In so far as the modern state is concerned --- i.e. in so far as the question is practical — I have attempted to show, in the previous book, what answer these sciences afford. As to the ancient and mediæval states, we can only say that their principles of organization left their political limits and boundaries uncertain and inexact, producing continual unrest and conflict.

II. What are the peculiar characteristics of the organization which we term the state ?

First, I would say that the state is all-comprehensive. Its organization embraces all persons, natural or legal, and all associations of persons. Political science and public law do not recognize in principle the existence of any stateless persons within the territory of the state.1

Second, the state is exclusive. Political science and public law do not recognize the existence of an imperium in imperio. The state may constitute two or more governments;

it

may assign to each a distinct sphere of action; it may then require of its citizens or subjects obedience to each government thus constituted; but there cannot be two organizations of the state for the same population and within the same territory.2

Third, the state is permanent. It does not lie within the power of men to create it to-day and destroy it to-morrow, as caprice may move them. Human nature has 'two sides to it, — the one universal, the other particular; the one the state, the other the individual. Men can no more divest themselves of the one side than of the other; i.e. they cannot divest themselves of either. No great publicist since the days of Aristotle has dissented from this principle.3 Anarchy is a permanent impossibility.

Fourth and last, the state is sovereign. This is its most essential principle. An organization may be conceived which would include every member of a given population, or every inhabitant of a given territory, and which might continue with great permanence, and yet it might not be the state. If, however, it possesses the sovereignty over the population, then it is the state. What now do we mean by this all-important term and principle, the sovereignty? I understand by it original, absolute, unlimited, universal power over the individual subject and over all associations of subjects. This is a proposition from which most of the publicists, down to the

1 Bluntschli, Das moderne Völkerrecht, S. 216. 2 Von Mohl, Encyklopädie der Staatswissenschaften, S. 72. 8 Ibid. S. 71; Bluntschli, Lehre vom modernen Stat, Bd. I, S. 26.

most modern period, have labored hard to escape. It has appeared to them to contain the destruction of individual liberty and individual rights. The principle cannot, however, be logically or practically avoided, and it is not only not inimical to individual liberty and individual rights, but it is their only solid foundation and guaranty. A little earnest reflection will manifest the truth of this double statement.

First, power cannot be sovereign if it be limited; that which imposes the limitation is sovereign; and not until we reach the power which is unlimited, or only self-limited, have we attained the sovereignty. Those who hold to the idea of a limited sovereignty (which, I contend, is a contradictio in adjecto) do not, indeed, assert a real legal limitation, but a limitation by the laws of God, the laws of nature, the laws of reason, the laws between nations. But who is to interpret, in last instance, these principles, which are termed laws of God, laws of nature, laws of reason, and laws between nations, when they are invoked by anybody in justification of disobedience to a command of the state, or of the powers which the state authorizes? Is it not evident that this must be the state itself? It is conceivable, no doubt, that an individual may, upon some point or other, or at some time or other, interpret these principles more truly than does the state, but it is not at all probable, and not at all admissible in principle. It is conceivable, also, that a state may outgrow its form of organization, so that the old organization no longer contains the real sovereignty; and that an individual, or a number of individuals, may rouse the real sovereign to resist triumphantly the commands of the apparent sovereign as misinterpretations of the truths of God, nature, and rea

That would only prove that we had mistaken the point of sovereignty, and would teach the lesson that the state must always hold its form to accord with its substance. When the French National Assembly of 1789 disputed the commands of the King, it could find no ground to rest upon,

son.

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