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II. STATE 13. Definitions of the state. The following definitions of the state, given by leading modern authorities, show essential identity :
Holland: A " State" is a numerous assemblage of human beings, generally occupying a certain territory, amongst whom the will of the majority, or of an ascertainable class of persons, is by the strength of such a majority, or class, made to prevail against any of their number who oppose it.
Bluntschli : The State is a combination or association of men, in the form of government and governed, on a definite territory, united together into a moral organized masculine personality; or, more shortly — the State is the politically organized national person of a definite country.
Burgess : Our definition must, therefore, be that the state is a particular portion of mankind viewed as an organized unit.
Willoughby: As a preliminary definition of the State, we may therefore say that wherever there can be discovered in any community of men a supreme authority exercising a control over the social actions of individuals and groups of individuals, and itself subject to no such regulation, there we have a State.
Woolsey: The body or community which thus by permanent law, through its organs administers justice within certain limits of territory is called a State.
United States Supreme Court : A State is a body of free persons, united together for the common benefit, to enjoy peaceably what is their own, and to do justice to others. .
14. The nature of the state. Sidgwick analyzes the concept of the state and indicates some of its essential attributes as follows : 1
I have spoken in the summary survey above given, sometimes of le political society" or "state," and sometimes of " nation." Before we proceed further, it will be well to examine more carefully the meaning and relations of these terms. As I have already explained, I generally use "state" and " political society" as convertible terms, except that I confine the term "state" to societies that have made a certain advance in political civilization. But we should observe that the word "state" is sometimes used in a narrower sense, to denote a political society considered as being what jurists call an "artificial person," and as such, having rights and duties distinct from the rights and duties of the individuals comprising it. I shall allow myself, where there is no danger of
1 By permission of The Macmillan Company.
ambiguity, to use the word in this narrower sense without further explanation : and I think we may define the degree of civilization which a political society must have reached in order to be properly called a le state," partly by this characteristic:— that it must have arrived at a clear consciousness of this fundamental distinction between the rights and obligations of the community in its corporate capacity, and those of the individuals comprising it. In the primitive " tribal” condition of our Germanic ancestors and other uncivilized and semicivilized peoples, this distinction is still obscure.
Further, it belongs to our ordinary conception of a State that the political society so-called should be attached to a particular part of the earth's surface: and should have a generally admitted claim to determine the legal rights and obligations of the persons inhabiting this portion, whether they are members of the society or not. This is so much the case that we sometimes use the word "state" to designate the portion of the earth's surface thus claimed.
I have so far treated the "unity” of a state as depending solely on the fact that its members obey a common government. And I do not think that any other bond is essentially implied in the conception of a state. Still, it should be recognized that a political society, whose members have no consciousness of any ties uniting them independently of their obedience to government, can hardly have the cohesive force necessary to resist the disorganizing shocks and jars which external wars and internal discontents are likely to cause from time to time. If a political society is to be in a stable and satisfactory condition, its members must have — what members of the same state sometimes lack — a consciousness of belonging to one another, of being members of one body, over and above what they derive from the mere fact of being under one government; and it is only when I conceive them as having this consciousness that I regard the state as being also a "nation.” According to the generally accepted ideal of modern political thought a state ought certainly to be also a nation ; still we cannot say that the characteristic of being a nation is commonly implied in the current use of the term "state" or " political society.” What is commonly implied is merely (1) that the aggregate of human beings thus denoted is united — if in no other way — by the fact of acknowledging permanent obedience to a common government, and having, through the permanence of the relations between government and governed, a corporate life distinguishable from the lives of its members; (2) that the government exercises control over a certain portion of the earth's surface; and (3) that the society has a not inconsiderable number of members, though the number cannot be definitely stated.
15. Essentials of the state. The essential elements of the state are given briefly by Willoughby in the following paragraph : 1
Without, however, further multiplying these definitions, or more particularly explaining them, we may, at this preliminary stage, declare the essential elements of a State to be three in number. They are :
(1) A community of people socially united.
(2) A political machinery, termed a government, and administered by a corps of officials termed a magistracy.
(3) A body of rules or maxims, written or unwritten, determining the scope of this public authority and the manner of its exercise.
16. Characteristics of the state. In addition to the essential elements, — population, territory, organization, and sovereignty,
– states possess certain distinguishing attributes. Burgess gives "the peculiar characteristics of the organization which we term the state” as :
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.
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.
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. 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.
1 Copyright, 1896, by The Macmillan Company.
17. The idea and the concept of the state. A distinction is sometimes drawn between the abstract idea and the concrete concept of the state. 1
Finally, as recognized by most modern publicists, and as already indicated, a distinction is to be made between the abstract idea of the State and its empiric conception. The one is the result of abstract speculation, the other of concrete thinking. The first is what the Germans designate "Staatsidee," being the idea of the State in its most general form. It is that idea which embraces all that is essential to, and which is possessed by all types of State life. It is the State reduced to its lowest terms. The empiric conception, on the other hand, is particular, and has reference to special civic types as historically manifested.
The State is an almost universal phenomenon. Everywhere, and in all times, we find men, as soon as their social life begins, submitting to the control of a public authority exercising its powers through an organization termed Government. In no two instances do we find the character or scope of this public authority identical or exercising its functions through precisely similar governmental organizations. We recognize, however, that no matter how organized, or in what manner their powers be exercised, there is in all States a substantial identity of purpose ; and that underneath all these concrete appearances there is to be found a substantial likeness in nature. If now we disregard all nonessential elements, and overlook inconsequential modifications, we shall be able to obtain those elements that appear in all types of State life, whether organized in the monarchical or republican, the despotic or limited, the federal or unitary form. We shall thus discover those characteristics that are of the very essence of the State's life, and which unfailingly distinguish it from other public bodies.
All concrete instances of State that are historically afforded us are to be considered as embodying the Staatsidee as their principal essence. Variations in governmental organizations and administration are to be considered as merely differences in form that have arisen in response to demands of time, place, and peculiarities of political temperament of the people, but without disturbing the State's fundamental nature.
With this abstract, general conception of the State in our minds, we will be furnished with the criterion for distinguishing between mere variations and anomalous formations of civic life, and those public bodies that resemble, but do not possess this essential element, and are therefore not to be dignified with the title State.
1 Copyright, 1896, by The Macmillan Company.
III. SOVEREIGNTY 18. Definition of sovereignty. Sovereignty, the essence of the state, is thus defined by Burgess :
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 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. 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.
19. The nature of sovereignty. Holland distinguishes the internal and external aspects of sovereignty as follows:
Every state is divisible into two parts, one of which is sovereign, the other subject. ... The sovereignty of the ruling part has two aspects. It is "external,” as independent of all control from without; "internal,” as paramount over all action within. Austin expresses this its double character by saying that a sovereign power is not in a habit of obedience to any determinate human superior, while it is itself the determinate and common superior to which the bulk of a subject society is in the habit of obedience.
IV. GOVERNMENT 20. Distinction between state and government. This distinction, of fundamental importance to political science, is nevertheless of recent origin. Several American writers have done good service in insisting upon clear thinking on this point.1
The first fundamental distinction that must be made is that between " State" and "Government.” By the term "Government” is designated the organization of the State, — the machinery through which its purposes are formulated and executed. Thus, as we shall see, while the
1 Copyright, 1896, by The Macmillan Company.