J.K. Bluntschli “The Theory of the State”
The Conception and Idea of the State
General
characteristics of the State
Πολιτική Σκακιέρα
ΚΟΙΝΩΝΙΚΗ ΣΚΕΨΗ
BOOK I.
THE CONCEPTION OF THE STATE.
CHAPTER I.
The Conception and Idea of the State.
The general Conception of the State
The Conception of the State arrived at by history: the
idea by philosophy.
—
Characteristics of all States :
(1) a number of men ;
(2) a fixed territory ;
(3) unity ;
(4) distinction between rulers and subjects ;
(5) an organic nature.
— In what sense the State is an organism :
(a) It has spirit and body.
(b) It has members with various special functions.
(c) It develops and grows: yet is no mere natural
growth.
(6) The State is a moral and spiritual organism: it
has a personality.
(7) It is masculine,
— Note on the different names for State.
THE
conception (Begriff) of the State has
to do with the nature and essential characteristics of actual States. The idea
or ideal (Idee) of the State presents
a picture, in the splendour of imaginary perfection, of the State as not yet
realised, but to be striven for.
The
conception of the State can only be discovered by history; the idea of the
State is called up by philosophical speculation. The universal conception of
the State is recognised when the many actual States which have appeared in the
world's history have been surveyed, and their common characteristics
discovered. The highest idea of the State is beheld when the tendency of human
nature to political society is considered, and the highest conceivable and
possible development of this tendency is regarded as the political end of
mankind.
characteristics
of all States
If we
consider the great number of States which history presents to us, we become
aware at once of certain common characteristics of all states; others are only
seen on closer examination.
/
- 1. a number of men
First, it is
clear that in every State a number of men are combined. In particular States
the number may be very different, some embracing only a few thousands, others
many millions; but, nevertheless, we cannot talk of a State until we get beyond
the circle of a single family, and until a multitude of men (i.e. families,
men, women, and children) are united together. A family, a clan, can become the
nucleus round which, in time, a greater number gathers, but a real State cannot
be formed until that has happened, until the single family has broken up into a
series of families, and kindred has become extended to the race. The horde is
not yet a tribe (Volkerschaff).
Without a tribe, or, at a higher stage of civilisation, without a nation (Volk) there is no State.
There is no
normal number for the size of the population of a State; [[For Aristotle's
views on this subject, cp. Pol. vii. 4: in Eth. Nic. ix. 10. § 3, he says there
cannot be a State (πόλις)
of ten men nor of 100,000. Cp. also Pol. iii. 3. § 5] Rousseau's number of 10,000 men would
certainly not be sufficient. In the middle ages such small States could exist
with security and dignity; modern times lead to the formation of much greater
States, partly because the political duties of the modern State need a greater
national force, partly because the increased power of the great States readily
becomes a danger and a menace to the independence of the small.
/
- 2. a fixed territory
Secondly, a
permanent relation of the people to the soil is necessary for the continuance
of the State. The State requires its territory: nation and country go together.
Nomadic
peoples, although they have chiefs to command them and law to govern them, have
not yet reached the full condition of States until they have a fixed abode. The
Hebrew people received a political training from Moses, but were not a State
until Joshua settled them in Palestine. In the great migrations at the fall of
the Roman empire, when peoples left their old habitations and undertook to
conquer new ones, they were in an uncertain state of transition. The earlier
States which they had formed no longer existed: the new did not yet exist. The
personal bond continued for a while — the territorial connection was broken.
Only if they
succeeded in regaining a sure footing were they enabled to establish a new
State. The peoples who failed perished. The Athenians under Themistocles saved
the State of Athens on their ships, because after the victory they again took
possession of their city; but the Cimbri and Teutones perished, because they
left their old home and failed to conquer a new one. Even the Roman State would
have perished, if the Romans, after the burning of their city, had migrated to
Veii.
/
- 3. unity.
Another
characteristic of the State is the unity of the whole, the cohesion of the
nation. Internally there may indeed be different divisions with considerable
independence of their own. Thus in Rome there was the patrician populus, and alongside of it the plebs. In the older Teutonic states of
the middle ages there was the constitution of the people alongside of the
feudal constitution. The State may also be composed of several parts which in
their turn constitute States: thus from the old German Empire several territorial
States have gradually grown up: in the modern federations of North America and
Switzerland, and in the new German Empire, a common collective State (Gesammtstat) and a number of
confederated local States exist together. But unless the community forms a
coherent whole in its internal organisation, or can appear and act as a unit in
external relations, there is no State.
/
- 4. Disctinction between rulers and subjects
In all States
we find the distinction (Gcgensatz)
between governors and governed, or — to adopt an old expression rulers and
which has been sometimes misunderstood, sometimes misused, but which in itself
is neither hateful nor slavish — between sovereign and subjects. This
distinction appears in the most manifold forms, but is always necessary. Even
in the most extreme democracy in which it may seem to vanish, it is
nevertheless present. The assembly of the Athenian citizens was the sovereign,
the individual Athenians were its subjects.
Where there is no longer any sovereign
possessing authority, where the governed have renounced political obedience,
and every one does that which is right in his own eyes, this is anarchy and the
State is at an end. Anarchy, like all negations, cannot last, so that out of it
there at once arises, perhaps in a rude and often cruel form of despotism, some
sort of new sovereignty which compels obedience, and thus reproduces that
indispensable distinction.
[ Communists deny this in
theory, but in doing so, they deny the State itself. Even they have nowhere
been able by annihilating the State to introduce a merely social union, and, if
they ever succeed in temporarily winning over the masses to their projects, we
may be certain, from the example of the religious communists of the sixteenth
century, the Anabaptists, and from the natural consequences of events, that
they too would again set up a domination, and that the harshest that has ever
been. ]
Among the Slavonic peoples we find the old
idea that only the unanimity of all the members of a community represents the
common will, and that neither the majority nor any higher authority can decide.
This principle however can at the most only serve as a principle of local
communities, and that only among a people where all easily and quickly agree;
it can never be a political principle, for the State must override the
unavoidable opposition of individuals.
/ - 5. an organic nature.
The State is in no way a lifeless instrument,
a dead machine: it is a living and therefore organised being. This organic
nature of the State has not always been understood. Political peoples had indeed
an image (Vorstellung) of it, and
recognized it consciously in language, but the insight into the political
organism remained long concealed from political science, and even at the
present day many publicists (Statsgelehrte)
fail to understand it. It is the especial merit of the German school of
historical jurists to have recognized the organic nature of the Nation and the
State. This conception refutes both the mathematical and mechanical view of the
State, and the atomistic way of treating it, which forgets the whole in the
individuals. An oil-painting is something other than a mere aggregation of
drops of oil and colour, a statue is something other than a combination of
marble particles, a man is not a mere quantity of cells and blood corpuscles; and
so too the nation is not a mere sum of citizens, and the State is not a mere
collection of external regulations.
The State
indeed is not a product of nature, and therefore it is not a natural organism;
it is indirectly the work of man. The tendency to political life is to be found
in human nature, and so far the State has a natural basis; but the realisation
of this political tendency has been left to human labour [[Cp. Arist. Pol. i.
2. § 15, 12533. a. 30: “ φύσει μὲν οὖν ἡ ὁρμὴ ἐν πᾶσιν ἐπὶ τὴν τοιαύτην κοινωνίαν· ὁ δὲ πρῶτος συστήσας μεγίστων ἀγαθῶν αἴτιος.”],
and human arrangement, and so far the State is a product of human activity, and
its organism is a copy of a natural organism.
In what sense a State is an organism
In calling
the State an organism we are not thinking of in what the activities by which
plants and animals seek, consume state is an and assimilate nourishment, and
reproduce their species. We are thinking rather of the following
characteristics of natural organisms : —
(a) Every organism is a union of soul and body, i. e.
of material elements and vital forces.
(b) Although an organism is and remains a whole, yet
in its parts it has members, which are animated by special motives and
capacities, in order to satisfy in various ways the varying needs of the whole
itself.
(c) The organism develops itself from within outwards,
and has an external growth.
In all three
respects the organic nature of the State is evident.
- (a). The State
has spirit and body.
In the State spirit and body, will and
active organs are necessarily bound together in one life. The one national
spirit and spirit, which is something different from the average sum of the
contemporary spirit of all citizens, is the spirit of the State; the one
national will, which is different from the average will of the multitude, is
the will of the State.
The
constitution, with its organs for representing the whole and expressing the
will of the State in laws, with a head who governs, with all sorts of offices
and magistracies for administration, with courts to exercise public justice,
with institutions of all kinds to provide for the intellectual and material
interests of the community, with an army to express the public force — this
constitution is the body of the State, it is the form in which the nation
manifests its common life. Individual States differ like individual men in
spirit, character, and form. The progress of mankind depends essentially on the
emulation of its component peoples and states.
- (b). The
State has members with various special functions.
The
constitution is likewise the articulation of the body politic. Every office and
every political assembly is a particular member with its own proper functions.
An office is not like part of a machine, it has not to exert merely mechanical
activities which always remain the same, like the wheels and spindles in a
factory, which always do the same thing in the same way. Its functions have a
spiritual character, and vary on particular occasions according to the needs of
public life, which they have to satisfy: they serve life, and are themselves
living. Where an office becomes lifeless, sinks into unthinking formalism, and
becomes like a machine, there the office itself is ruined, and the State, by
becoming a machine, inevitably falls.
(The spirit
of office)
Not only the
official, but the office itself has a psychical significance, it is animated by
a soul. An office has a character and a spirit which in its turn influences the
person who acts in it. Even a very ordinary man when elected to the Roman
consulship had his character elevated and his natural vigour increased by the
dignity, majesty, and power of his office. The office of judge is so sacred, so
consecrated to justice, that even a weakling when appointed to it has his mind
ennobled and his determination aroused to maintain the right. The spirit of the
office cannot indeed alter the nature of the official, it is not powerful
enough so to permeate the character that the individual always fully represents
the significance of his office; yet every official experiences some psychical
influence on his spirit and disposition, and if he has an impressionable mind
it cannot escape him that his office itself has a soul which, for the present,
is in a close and immediate connection with his own individuality, but which is
different from him, and more enduring.
- (c.) The
State develops and grows.
Nations and
States have a development and a growth of their own. The periods of national
and political history are to be measured by great eras which far surpass the
age of individual men; the latter may be measured by years and tens of years,
the former extend beyond centuries. Every period again has its special
character, and the collective history of a nation and state is a coherent
whole. The childhood of nations has a different character from their maturity,
and every statesman is compelled to consider the time of life in which his
State happens to be. 'There is a time for everything.'
(Yet is no
mere natural growth)
Along with
this affinity to the development of natural organism there is an important
difference. The life of plants, animals, and men grows and decays in regular
periods and stages, but the development of States and political institutions is
not always as regular. The influence of human free will or of external fate
frequently produces considerable deviations, checking, hastening, sometimes
reversing the normal movement, according as it is broken in upon by great and
strong individuals, or by the wild passions of the nation itself. These
deviations are indeed neither so numerous, nor are they commonly so important
as to invalidate the general rule. On the contrary, they are much rarer and
generally much slighter than is fancied by those whose opinions are determined
by the immediate impressions of contemporary events. Yet they are weighty
enough to show that the idea of a mere natural growth of the State is one-sided
and unsatisfactory, and that we must allow full play even here to the free
action of individuals.
/
- 6. The State is a moral and spiritual organism
Whilst
history explains the organic nature of the State, we learn from it at the same
time that the State does not stand on the same grade with the lower organisms
of plants and animals, but is of a higher kind; we learn that it is a moral and
spiritual organism, a great body which is capable of taking up into itself the
feelings and thoughts of the nation, of uttering them in laws, and realising
them in acts; we are informed of moral qualities and of the character of each
State. History ascribes to the State a personality which, having spirit and
body, possesses and manifests a will of its own.
The glory and
honour of the State have always elevated the heart of its sons, and animated
them to sacrifices. For freedom and independence, for the rights of the State,
the noblest and best have in all times and in all nations expended their goods
and their lives. To extend the reputation and the power of the State, to
further its welfare and its happiness, has universally been regarded as one of
the most honourable duties of gifted men. The joys and sorrows of the State
have always been shared by all its citizens. The whole great idea of Fatherland
and love of country would be inconceivable if the State did not possess this
high moral and personal character.
(The State
has a personality)
The
recognition of the personality of the State is thus not less indispensable for
Public Law (Statsrecht) than for
International Law (Volkerrechf).
A person in
the juridical sense is a being to whom we can ascribe a legal will (Rechtswille) who can acquire, create and
possess rights. In the realm of public law this conception is as significant as
in the realm of private law. The State is par excellence a person in the sense
of public law (offentlich-rechtliche
Person). The purpose of the whole constitution is to enable the person of
the State to express and realise its will (Statswille)
which is different from the individual wills of all individuals, and different
from the sum of them.
The
personality of the State is, however, only recognized by free people, and only
in the civilised nation-state has it attained to full efficacy. In the earlier
stages of politics only the prince is prominent; he alone is a person, and the
State is merely the realm of his personal rule.
/ - 7. The State is masculine.
The same is
true with regard to the masculine character of the modern State. This becomes
first apparent in contrast with the feminine character of the Church. A
religious community may have all the other characteristics of a political
community, yet she does not wish to be a State, and is not a State, just
because she does not consciously rule herself like a man, and act freely in her
external life, but wishes only to serve God and perform her religious duties.
To put together
the result of this historical consideration, the general conception of the
State may be determined as follows: — the State is a combination or association
(Gesammtheit) of men, in the form of
government and governed, on a definite territory, united together into a moral
organised masculine personality; or, more shortly — the State is the
politically organised national person of a definite country.
Note:
In my “Pyschological
Studies on State and Church” (Zurich, 1845) the masculine character of the
State has been more exactly worked out. The French expression, L’etat c’est l’homme, does not merely
signify 'the State is Man in general' (der Mensch im Groszen), but 'the State
is the man, the husband (der Mann) in general,' as the Church represents the
womanly nature in general, the wife (die Frau).
[It may be as well to note that in German the word Stat is masculine and the word Kirche feminine !]
Different
names of the State
Notes. —1.
It is not
without interest to observe how different peoples have named the State.
The Greeks
still signified city and state by the same word, πόλις
— a sign that their conception of the State was based on the city, and was
limited by the city point of view.
The Roman
expression, civitas, refers likewise
to the citizenship of a city as the nucleus of the State, but has more of a
personal character than the Greek word, and is better adapted to take up into
itself greater masses of people. It speaks too for the high significance of the
State, that the expression 'civilisation' is derived from the name of the
State, and practically coincides with the extension and realisation of the
State.
In a certain
way the other Roman name, res fublica,
stands still higher, in so far as it contains not merely a reference to the
citizenship of a city, but to a people (res
populi), and a regard to the people's welfare. In the sense of the ancients
the expression Republic does not exclude Monarchy but does not apply to
despotic governments. [Cp. Engl. 'Commonwealth.']
In modern
languages the expression 'State' is the prevailing one, not only in the Romance
but in the Teutonic languages (stato,
etat, Stat). In itself completely indifferent (it signifies originally any
condition, and at first the fuller expression status reipublicae was required in order to bring out a more exact
reference to the State), this term in course of time has become the most
universal denomination of the State, unambiguous and needing no qualification.
Although 'the established,' 'what stands,' is brought into prominence, this connexion
is put aside, and the word signifies not the existing arrangement and at first
the fuller expression status reipublicae was required in order to bring out a
more exact reference to the State), this term in course of time has become the
most universal denomination of the State, unambiguous and needing no
qualification. Although 'the established,' 'what stands,' is brought into
prominence, this connexion is put aside, and the word signifies not the
existing arrangement and constitution of the State (Πολιτεία),
but the State which can outlive even a complete transformation of the form of
government.
All other
modern expressions have only limited validity; e.g. the proud word Reich only applies to great states under
a monarchical organisation, and suggests likewise a combination of several
relatively independent countries, like the Latin word imperium (Fr. and Engl. empire), in which at the same time there is
an allusion to the imperial (kaiserlich)
rule.
More narrow
is the sense of the word 'country'
(Land), which primarily signifies the external territory of the State — (and of
a state that is not broken up into separate parts), but secondarily is applied
to the State itself which has this territory. This expression forms the natural
counterpart to the Greek πόλις,
since it bases the State primarily on the country (Landschaft), while the other bases it on the city.
The fine word
'Fatherland' is still narrower, by virtue of its relation to the individual;
but at the same time it is elevated and spiritualised by the reference to the
personal connexion and transmission of blood relationships in the country: in
this word is expressed with clearness and with feeling the whole love and
devotion of the individual citizen to the great and living whole to which he
belongs with his body, with whose existence his own is bound up, and for which
to sacrifice himself is the highest glory of man.
(βλ. Ευριπίδη Φοίνισσαι, στ. 369-371
« Αλλ’ αναγκαίως έχει
Πατρίδος εράν άπαντας. ός
δ’ άλλως λέγει
Λόγοισι χαίρει, τόν δέ νουν
εκείσ’ έχει. »
βλ. Schiller’s William Tell
'Cleave to thy fatherland, thy country dear,
And with thy
whole heart cling thou closely to it.
For rooted in
thy country is thy strength;
Away in yon
strange world thou stand'st alone.'
pp. 15-24.
J.K. Bluntschli
“The
Theory of the State”
The Conception and Idea of the State
General characteristics of the State
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ΚΟΙΝΩΝΙΚΗ
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