Otto Gierke-Natural Law 1500-1800

NATURAL LAW AND THE THEORY OF SOCIETY
VOLUME I
LONDON Cambnd~e t rl1Ivel'SJ ty Press

Fl.TTFll. LA'>L
l\."CW YORK TORONTO
1l0MDA\"" c:.:ALCt'T1A MADRAS
MaLnllllan
10KYO
Maruu'l1 Company Ltd

1500 TO 1800
BY
OTTO GIERKE
Wzth a Lecture on The Ideas of Natural Law and Humanity

by ERNST TROELTSCH
-===
TRANSLATED WITH AN INTRODUCTION
BY
ERNEST BARKER
Proftssur of Polllua/ Selena In the Unlvem!y of Cambndge
VOLUME I
CAMBRIDGE
AT THE UNIVERSITY PRESS
PRINTED IN GUAT BRITAIN
CONTENTS
VOLUME I
TRANSLATOR'S INTRODUCTION
I.
2.
The Texts translated Law and political theory
page ix
XVlll
3. The Law of Nature 4. The School of HistorIcal Law 5. The Personality of Groups 6. The Translation
XXXlV
lvii lxxxviii
II
ANALYTICAL SUMMARY
page
I
III
GIERKE'S TEXT
C HAP T E R I. The Period down to the Middle of the Seventeenth Century SECTION V. The Influence of the Natural-Law Theory of Society 33 33 35 35 35 40 44-
14. The Natural-Law Conception of the State

I.
II.
Ill.
IV.
General mew of Natural Law General mew of Soveretgnty in natural-law theory People and Ruler as separate personaltties Attempts to eliminate the dualism of People and Ruler. Tile idea of a single State-personaliry
50
VI
Contents 15 The Natural-Law Theory of Associations (Die engeren Verhande)

I
62
62 621
GROUPS WITHIN THE ST.4TE
(1) The umtary or centralzst interpretation (2) The fideraltst interpretation, especwlly in AlthuslUs and Grotius
(3) The interpretatron if Hobbes
II. GROUP;" ABOVE THE STATE
70 79
85 87 87
III. GR01:PS PARALLEL WITH THE STATE
The Church
CHAPTER II. The Penod flom the MIddle of the Seventeenth to the Beginning of the 1'\ineteenth Century SECTION I. The Natural-Law Theory of Society during the Period of its Ascendancy
93
93
16. The General TheorY of the Group (Verbandstheorie) in Natural Law

I.
95
95 96
IO 5
The vogue basis
of .Natural Law and its zndzviduo.listr.c
II.
The prioTl/y of the individual to the communi!;', and the consequent views of law and property
The natural-law view of the source of group-
III.
authority
IV.
Natural Law and the idea the origzn of Groups
of cont;act as explaming
I P 7
v. The natural-law mew oj the purposes and its various Groups
if Society
I I I
Contents vI. The natural-law view of the Being of Groups The views ofPtifendorf: the persona moralisThe atomtJtic conceptton of the nature of Assoczations tn etghteenth-century Germany- Englzsh and French theory in the eighteenth century: Locke and Rousseau-Fzchte and Kant General Retrospect
Vll
114
135 137 137 14 1

149
17. The Natural-Law Theory of the State

I.
General view The theory of the Sovereignty of the Ruler Tlu theory of Popular Soverezgnty The theory of the Mzxed COTlStztutzon
II.
III.
IV.
154
159
v. The eontrzbutzoTlS made by the natural-law theory of the State to the development of publu law
18. The Natural-Law Theory of Corporations

I.
AS~OCIATIO;'IJS
CO;'IJTAI;'IJED IN THE
STATE
(I) Dwergerue of emtrall-st and federahst VzeWf

(2) The relation of tilt CorporatLOn to the State (a) Vzews mzmual to Corporatzons(b) Vzews javourable to Corporations: efpeczalfy that of NetlelMadt
(3) The natural-laul cOTlception of the tntcroal nature of CorporattOns, aJ affected by the fact of thm mclunon tn the State (a) The Corporation as an Institutzon (Anstalt)-(b) The Corporatton as a Fellowshzp (Genossenschaft), especially In the theory of Nettelbladt
II. GROUPS ABOVE THE III.
GROUP~
~TATE
180
WITHIN THE STATE
The Church
195 198 198
Vlll
Contents
IV APPENDICES
I. Ernst Troeltsch. The Ideas of Natural Law and Humanity in World Politics II. Gierke's Conception of Law
VOLUME II
201, 223
GIERKE'S NOTES
14. The Natural-Law Conception of the State 15. The Natural-Law Theory of Associations 16. The General Theory of the Group 10 Natural Law 17. The Natural-Law Theory of the State 18. The Natural-Law Theory of Corporations
229 269
288
333
367
VI LISTS OF AUTHORITIES
A. 1500-1650 B. 16 50-1800
VII
INDEX
401 409
INTRODUCTION
THE TEXTS TRANSLATED
In 1900 Professor Maitland published, under the title of Political Theones of the Middle Age, a translation of one of the sections in the third volume of Dr Gierke's work on 'The German Law of Associations' (Das deutsche Genossenschaftsrecht), which had appeared, nearly twenty years before, in 188 I. The present work, which deals with the political theories of the modern age, from 1500 to 1800, is a translation of five subsections in Gierke's fourth volume, which was published just twenty years ago, in 1913. In a chronological sense, it is a complement to Professor Maitland's work. In all other respects, it is a separate and independent book. It must be judged on Its own account; and it cannot claim, in any way, to inherit the prestige or carry the authority which the weight of Professor Maitland's learning, and the arresting power of his style, have justly won for the Political Theones of the Mzddle Age, and especially for its IntroductIOn. Th(" theme of the present volume i~ the natural-law theory of Society and the State. In other words, it deals with the views of the State, and of other groups (whether contained in the State, or parallel to it, or transcending it), which were professed in the School of Natural Law, or influeQced by the ideas of that school, during the three centuries which lie between the Reformation and the French Revolution But to elUCIdate fully the nature of the volume, some words must be said about its place in the history of Gierke's publications. In 1880 he pubhshed a work entitled Johannes AlthuslUs and the Development of Natural-Law Theories of the State. Thi~ was, in a sense, a 'chip from hIS workshop' and a by- ' product of his prolIfic pen; but it was also a harbinger of the third and fourth volumes of his GenossensclUlflsraht. * Primarily intended \ to resuscitate a forgotten German thinker, it also made him a peg on which were hung both a history of the medieval theories which preceded his system of thought, and a survey of the modem theories whi,ch followed upon it.t In the next year, 1881, Gierke published
, t
In 1873. Gierke himself, ill the preface to the second edItion of hIS Althuslus in 1902 (p. 323), spcaks ofha\iing 'appcHded a lllstory of the cvolUtion ofnaturaI-law theonea of the Statc to an account of the life and t('achmg of Althusiw.
,:1$ The first volume had appeared in 1868, and the second
Translator's Introduction
the third volume of the Gmossenschaftsrecht, which dealt generally with' the theory of State and Corporation in classical and medieval tImes', and in which a special section (the section translated by Maitland) was devoted to a more systematic account of medieval political theory than that already given in the book on Althusius. Fmally, in 1913, he published the fourth and last volume of hi" great \\-ork, dealing generally with' the theory of State and CorporatIOn in modern urnes', and largcly devoted (the part here translated is nearly one halfof the whole) to a revised and comprehensive exposition of the modern natural-law theories of Society and the State which he had dh eadv sketched in his work of 1880. * Though it was only published in 1913, the last yolume of the Genossenschaftsrecht had been written some twenty years before. The ace asion of its publication wa" a reprint of the first three volumes, whICh decided GIerke to give to the world the manuscript of his fourth as it stood, in spIte of the year" which had accumulated upon It and the gaps whIch it contained. 'I do not believe', he pleaded, 'that any other writer WIll soon tread again the path" I have taken. They lead, in part at any rate, through utterly de~ert regIOns' As it finally appeared, the new volume fell 111 to two parts. The first described the history of modern social and politIcal theory down to 1650: the second carried it forward from 16 10 to 1800. What i~ here tramlated is the two conduding <;uhsections of the first part, and the first three of the second. The concluding ~ub sectlons of the first part treat of the mfluence of the ~rowing natural-law theory of human S~CidY, as it deVeloped dur1l1g the century and a half of the period of the ReformatIon, from the Diet ofWorm~ in I52I to the Treaty of"Westphalia in r648. The first three subsections of the second part deal with the de\ elopment of natural-law theory during the period of its astendancy, from the acce~sion of LoUIS XIV to the French Revolution, or (in other' words) from Hobbes and Pufendorfto Kant and Fichte. The five subsections taken together, a1> Gierke says in hi!> preface, 'form a whole'; and it is that whole which is presented here. There is one ga}-l, for which Gierke expressed his SOITOW, and for which the tran_~latqr would venture to express his own regret. The natu!"!A law tbeory of the relatIOn of Church and State, which had been treated briefly but suggestively in it" pi ',:hhase, during the pelif?d of the Reformation, is not treated {'<.I ~t~Jitl its later phase, durin!';
An Enghsh translation of Gierke's book on Allhusius is bemg undertaken by an Amencan scholar, Dr Bernard Freyd. '
Translator's Introdw:tion
Xl
and 1800. The niche is there, as the ( reader will notice if he surveys the plan of the work; but it remains tan empty niche. Otherwise the whole of which Gierke speaks is a " rounded and finished whole, with a central theme developed in ~ various ramifications. I t is the value of this whole that it gives a connected and critical account of the general theory of human society-the theory of pohtics, of constItutional law, and of the law of associationswhich was developed by the great school of Natural Law. That theory was a theory of the ideal or natural Law of human society, and of the ideal or natural Rights of man. It was a theory which culmmatcd m the American Declaratlon of Independence in 1776 and the French RevolutIOn of 1789. It was a theory adorned by many illustriou~ names-- Hooker and Suarez; Althusius, GrotlUs and Pufendorf; MIlton and SIdney, Hobbes, Locke and Romseau; Spmoza and Leibmt;; ThomaslUs and Wolff (les'> known in England, but nunc the less name'> of fame and power m the eighteenth c.entury); Vieo and Beu.ana; FlChte and Kant. ThIS is the theory I whIlh Gieike expounds, and these are the names with which he' conjures. There are omI~SlUm m hi~ \\-ork. The name of Hooker (though it recurs In the pa~c" of Locke) IS never mentioned by GIcrkc. He never refers to the name of Vattcl, though his Drott des Gens, ou PrwClpes de la Loz naturelle, of the year 1758, is stIll a textbook recommended for study in English Universities. He never touches on the effiorescenc..2LEatural-law Ideas (partly promoted by the study ofVattel'~ book among- the lawyers of Boston), whIch i~ so marked a feature of the Amencan Revolution. Paine's RIghts of Man 1~ absent from Ius pagc:>; and he never refers to the thcory of Burke, or the critIcism of Natural Law in the early wntin~s of Bentham. As there are omissions, so there are also slips. The .account which GIerke gives of the views ofsome of the many writers WIth whom hc deals-Suarcz, for example, or Spinoza, or even (on 50me poin~) Locke-occasionally stands m need of supplement or correctlon. On a journey of exploratIOn so prolonged and so extensive It could hardly be otherwise. But there are two things to be saId on the other side, which make any slips or omIssions fly up m the balance until they disappear frcui vicw. In the first . "c, GIerke has studIed the origin.l.l texts of a multitudinous litcl. -Catholic and Protestant, legal and polItical, German, French, En~hsh, Italian and Spanish; and the rich appar<ftus of his notes, WIth their abundant quotations of crucial
the period between 1650
xii
passages from his authorities, enables the reader to follow his sourCes and test his conclusions. In the second place, he has not sought simply to analyse and describe his material. Always concerned with< the conception ofthe Group, and especially with that form of Group which he calls the Fellowship (Genossenschaft), and always anxioutto discover the essence of group-life, the source and nature of group-authority, and the significance of group-personality, he has brought his own categories and problems to the study ofhis material; he has attempted to elicit its meaning in terms of these categories and in answer to these problems; and he has thus imprinted the form of his own scheme and system of thought upon the matter of his study. The danger of such a method is that it tends to make the theories of the past square with the demands of a particular system of the present. The criticism in which it issues is external rather than immanent; and every writer, placed in a Procrustean frame, is adjusted to its plan and sized by its dimensions. But every age is apt to measure previous ages by its own ideas. Few of us apply 'the leaden standard of Lesbian architecture', which bends to its ' material, And alters when' it alteration finds. We generally use fixed canons of judgment-be they those of Hegelianism, or Darwinism, or Marxism -according to our particular philosophy and our own partz pns. Gierke was in the tradition of Romanticism; of the Hegelian movement which fed on Romanticism; of the Histori;al School of Law (and particularly of the Germanist variety of that school) which drew upon both. He had also the foot-rules and set-squares of the German lawyer; he brought to his work conceptions of 'State-personality', of its , Trager or bearer, of its 'organs', and of its (and their) capacity for being a Subject' or owner of rights. We have to remember, as we read his pages, the tradition he follows and the tools he uses. But. the very fact that his tradition and his tools are different from our o",n adds a stimulus and a zest to the study of his writings. To see the development of western Europe during three ccntunes as Gierke saw it is to gain new angles of vision and new hooks of apprehenslOn. Many of the writers cited in these pages have long been buried in obhvlOn, at any rate for English readers. The dust is heavy on . their forgotten tomes; and why (it may be asked) should it be disturbed? What are Bortius and Busius to us, or even Hertius an~
..
Translatar's Introduction
Xlll
...
Heineccihs; and what are we to them? Perhaps we may answer the question, as John Morley once answered a similar question, by ~eading that it is not only the great writers who have fertilised human thought; the multitudinous little leaves, which have seemed to flutter unregarded to the ground, have also played their part. But there is also a further answer. These writers were the exponents, in their day, of the great idea of Natural Law; and it was their exposition which, directly or indirectly, fed the thought of Locke and Rousseau, and again of Fichte and Kant. We can hardly even understand Rousseau, the great populariser (as we may call him without offence) of natural-law speculation, until we get back to his sources. He was not the inventor of the personne morale, or its volante generale. They were as old as Pufendorf, and even older. 'Style is the man', and style is fame; but the scholar must go behind the stylist to those who dug the quarry, and hewed the stone, upon which the stylist drew. Even Kant and Fichte, who were thinkers rather than stylists, drew generously upon the great quarry of Natural Law for their ideas. Many of these forgotten thinkers we:re in their day professors of law. Some of them professed la\\- in the Dutch Universities of Franeker, Leiden and Utrecht; but most of them taught in the Universities of Germany. AlthuslUs lectured at Herborn: Pufendorf at Heidelberg; and lawyers less famous lectured at Gottingen, lena, Marburg and Tubingen. But conspicuous among all other Universities, In the study of law and politics, was the University of Halle, in Prussi1t, near the borde~ of Saxony. Founded in 1694, and rapidly becoming a centre of legal studIes, it Included among Its teachers Thomasius and Heineccius, and (later in the eighteenth century) Wolff and Nettelbladt. The German writers whom Gierke cites are mostly professors of law, and many of them professors of law at Halle. They are worth remembering, if only bec~use we may learn from them the contribution of German thought to political speculation in the seventeenth and eighteenth centuries -a contribution whIch was mainly made by the professors of the German Universities. But the matter goes deeper than that. These German professors not only contributed to the general development of European polItical thought: they also played a great and active part in the development of law, and we may almost say of the State, in Germany itself. T!lere were no Inns of Court in . Germany to control the teaching of law and the development of the leg<&! system. The Universities had a free course. In England
BTSI
XlV
the teaching of law, in the Universities of Oxford and Cambridge (the only Universities down to 1832), was mainly confined to the lectures of the Rcgius Professors of Civil Law, who had been instituted by Henry VIII; and the Roman Law which they taught, however valuable it might be in itself, had lIttle bearing on English lIfe. It was far otherwise 111 Germany. Here there were chairs of every sort of law-Roman Law In Its usus modernul, as it had developed since the 'ReceptiOn' at the beginning of the sIxteenth century; Natural Law; International Law; Public Law. The professors covered a wide field, which ranged from the meetles of t private law to the mysteries of public law and practIcal polItics. ,They \\ ere sprIngs of water in a thirsty land. On the one hand, they could help to buIld a practical ~lhcme of law. There wa~ no common law m Germany, or many of its States, analogous to the Common Law of England; and not untl! 1791 did e\'en PruSSia acquire its Allgememes PreusslSches Landrceht. On the other hand they could furnIsh from their own ranks, or tram among the ranks of their pupils, the judges, the statesmen, the officials and the- ambassadors \~ho were urgently needed by the German Stoltes. The legal faculties of the Universities were the reservoirs of the German Beam/en/urn (one of the greatest creatiom of the German gemus), in its highest and its widest seme. We shall not do justIce to some of the names which are mentioned in thiS volume unles~ we remember that they had thi~ backglOund. Unknown to m m England, and perhaps lolpe;mg into obliViOn even In their own country, they yet laboured In the pracucailile of their day, and helped to determine ItS structure. * But, being professors, and therefore (accordIng to the nature of that tnbe) 'naturally ~peculatlvc ammolls " they also laboured in the more austere fields of the pure theory of law and politICs; and the) have left abldmg If musty monuments of theIr labours m those fielde;. They did the spade-work for the pohtical theon~t, and by thclr work on the theory of Natural Law, in particular, they released ideas which were to have a far greater practical effect, over a far greater area, than all theIr practical labour!> in their own immediate surroundings. For those ideas wcre
* Even to-day, 1I1 the conditiOns of contemporary life, the profcs~or of law plays a far greater part 1I1 the general life of contmental countries thap. he IS ever expected to do m England. We need only reflect on thl" labour~ of German professors in connectIOn with the CIVIl Code or the Constltut!on of WC:-Imar on the work of French professors m eluddatmg the Code of Napoleon I or OJ) the po51tlon of the Italian professor of law m Itahan jUflsprudcnce and Qohtlcs.
xv
to prove a dynamite which helped to explode the connection between Great Britain and her American colonies, and to shatter the ancient monarchy of France. Of the connection oflaw with political theory, and of the special ~onnection of Natural Law both with political theory and political practice, more must be saId, in a more appropriate place, in a later section of this introduction. For the present it remains to explain the inclusion in thIS volume, by way of an appendix, of the translation of a lecture by Professor Troeltsch, delivered before the Hochschule fur Politik in Berlin, in 1922, on 'The Ideas of Natural Law and Humanity'. Like GIerke, but from the angle of the theologian and 111 term,> of ChristIan thought, Troeltsch had worked his way through the centurIes, explol ing the historic systems of group-hfe, and the controlling idea'> by which they were permeated, from the days of the early Church to the days of medieval CatholIcism, and thence to the days ofPrutestantism and the various Protestant' sects'. The result onus explorations appeared m a great work on DIe Sozwllehren der chrt.stlzchen KIrchen, which was published in 1912, the year before the publication of the last volume of Gierke's Genossenschajtsrecht. The phIlosophies of human hIStory and of human society which we find in GIerke and Trocltsch are in some respects parallel, and in some way,> even complementary, to one another. But TIOeltsch was a younger man than Gierke (who was nearly 80 at the end of the War), and hIS thought was less fixed in worn and habitual channels. In 1922, at the age of 57, he .'.et hlnlSelf to reflect, under the Impulse of German defeat, on the lines of German thought which had been current since the days of the RomantIC Movement; to set them over agamst the natural-Jaw lines of thought current in the more western countries of Europe; and to appreCIate both hnes of thought in ternlS of a general and t-atholIc European outlook, mspired and deepened by a Wide view of the history of European thought. The lecture in whIch he recorded his reflections is valuable in itself, and well worthy of translation for its own intrin~ic content~. But that would not explain, or excuse, the inclusion of a translation of the lecture in tlus volume. It IS included here because it contains a fundamental appreciation oftRe conception of Natural Law, with which Gierke was dealing: it IS included because it contains a similar appreciation of the Romantic and 'Germamst' conceptions, in terms of which Gierke was th,i.nking. It will help the reader in understanding both the
b-2
XVI
subject which Gierke approached, and the lines of his approach; and perhaps, if the reader will pardon a word of adVIce, the appendix may be worthy of his consultatlOn before he turns to a study of the main contents of this volume. The contrast drawn by Troeltsch between German thought and the thought of western Europe is a contrast which, as he himself remarks, can only be accepted with modIfications and qualifications. Perhaps it needs stIll further qualIficatIons than those which he has himself~uggested. On the one hand the theory of Natural Law, dunng the pennd of Its elaboratIon in the seventeenth and eighteenth centune~, was far from being confined to the countries of western Europe, or even from being partIcularly cultIvated there: It was peculIarly developed, and peculiarly taught, in the UnIversitIes of Germany. On the other hand the deification of ~uper personal Group~, and particularly of the State, which has been current in Germany since the RomantIC Movement, IS far from being confined to Germany' It h~ its analogIe<;, If not its affilIations, in the doctnnes of a school of French natlonalism (the acfwn Franfal.se), and in the philosophy of FaSCISt Italy, with it'> cult of the natIOn as 'an organism superior to the individuals, separate or grouped, of whom It IS composed'. * But there is none the les<; a distmctIOn between the thought of we~lern Europe (and particularly of France) and the thought of Germany. Many ofm have long been fascinated, and are fas( mated still, by the profundity of German thought. But Its solemn and high-pIled doud~, great and gigantic, are not our natural sky. (Even the language in whIch it speaks IS a language essentIally dIfferent from ours. The \iocabulary of the German thinker has a great and distant sononty. it speaks, as it were, WIth a sound of thunder; but what does the thunder actually say? .. It is a question which a translator mu~t often ask himself in perturbatlon of mind.) When we turn to the thought of France-formal a~ it may sometlmes be, or even supelficial-we turn to a clearer air; we converse with simple and classical ideas; we move among limpidity. German thought-like
Carta di Lavoro of 1927, &I. The French tradItIonalIsts and natlonallbts hav(" equally repudlatffi the old French RepulJh(an creed of Natural Law and the nghts of Humamty 'LaISSez ces grands mot.. de touJours et d'umvcrsel, et pwsque vous etes fran;ais preoccupez-vous d'agir selon l'mteret fran,.ais ;) ectte date' (Banes). 'Lc pouvOIr pohtIque en France est contramt, sous les plus effroyables penalites, de temr pour etranger a l'humarute tout interet etranger a sa nahon propre' (Maurras). Cited in R Soltau, French Political TlwughJ In the NmeteerUh Century, c. Xll.
XVll
..
the Ger"man nation itself, in the long travail of its developmentis a heaving and tumultuous thing. When it becomes a thought eabout Groups and 'super-personal realities', it becomes (at any rate to the realist) a matter of billowy cloud and rolling nebulosities. We begin to see Groups as great Brocken-spectres, confronting us as we walk. Now we may admire the nation moving and heaving: we may admire the surge of its thought: we may admire the philosophy of super-personal Group-persons-the Folk: the Fellowship: the Verband in all its forms. It is, indeed, a philosophy" which can ennoble the individual, and hft him above self-centred! concern in his own immediate hfe. But it may also be a philosophy which engulfs hIS hfe, and absorbs his individuality; and it may end, In practice, in little more than the brute and instinctive automatism of the hive. We have to admit, after all, the justice of Troeltsch's saying, that the end of the idealisation of Groups may be 'to brutalise romance, and to romanticise cynicism'. We have to confess that the cult of super-personal BeIngs ha~ had some tragic results. It began WIth Herder's Folk-poetry and Folk-music; it grew into Hegel's Folk-mmd and Savlgny's Folk-nght (the right or law which IS just a partIcular people's sense ofjustice in its own partIcular phase of development) it culminated m Scharnhorst's Folk-larmy. While it has grandeur and flame, it has also a cloud of s~ke. Individualism is often used as a word of reproach; but it IS good to see simple shapes of' men as trees, walking', and to think in simple terms of human persons. Persons-indiVIdual personshave a finitude or limit which can satisfy our intelligence, and an infinity or extension which can satIsfy our f~ They have finitude or limIt in the sense that, m any and every scheme of social order, each of them occupies a definite position, with its definite sphere of rights and duties, under the system of law which necessarily regulates their external relations with one .mother They have infmity or extensIOn in the sense that, sub specle aetermtatts, each of them is 'a living soul' (as nothing but the individual person is or can be), with an mner spring of spiritual life which rises beyond our knowledge and ends beyond our ken. If we look at Groups from this angle, we shall not call them persons. We shall call them organisations of persons, or schemes of personal relations, in all theit successive phases, from the village or club to the State or the League of Nations. And because they are organisations or schemes, made by the mInd of map, we shall regard them as constructed by the. thought of persons, consisting in the thought of persons,
XVlll
sustained by the thought of persons, and revised (or even destroyed) by the thought of persons-but never as persons themselves, in the sense in which individuals are persons.
LAW AND POLITICAL THEORY
We have already spoken, incidentally, of the connection between the study of law and the study of SOCIal and politIcal theory. The method, and the substance, of Gierke's writing~ must naturally impel us to some further conSIderatIOn of the nature of that connection. He was hImself a lawyer, and a lawyer in a double sense. Not only was he a lawyer of the chaIr, immersed in the study and exposition of legal hI~tory and legal pnnciple~; he was also a lawyer of the battle-field, who plunged mto the bmy war of Idea, which attended the constructlOn of the German CIVIl Code m the latter years of the nmeteenth (entury. The two ~Ide~ ofhi~ a( tlvity were closely connected. He explaim himself, m the preface to the last volume of his Genossenschajtsrecht, that if he had turned a~ide from history into contemporary struggles, It was m the same faith, and with the same object, that he had WrItten hlstory-' to penetrate the new code with a Germanistlc ~plrit; to develop Its Germanic content upon an hIstoncal ba~l~; to foster the growth of its Germanism in the future'. We must remember, as we read his writmgs, that he i~ bringing a view of the German State and of German SOCIety, denved from his long &tudl(~", not only to mterpret their development in the pa~t, but abo to 5hape theIr development in the present, dunng the great year, of pohhcal and legal construction that lie between the new constItution of 1871 and the new CIVIl Code of 18g8. It is in thIs spirit that he approaches the theory of State and ~ociety in the period from 1500 to 1800, when the idea ofa universal Natural Law was in the aIr. What was there of truth in those three centunes, whIch accorded with the long historic trend of German life and thought and could be mcorporated into the German present? What was there of error, which must be bamshed? Some truth there was; and the passage from Gierke's work on Althmius, translated in Appendix II, will "how how strongly he felt the value of the fundamental idea of Natural Law-the Idea that there is a natural justIce, based on the reason , ofman, which lies behind all positive law. But there was also some-
XIX
thing of~rror; and the reader of this volume will see, from Gierke's criticism of the individualistic basis of Natural Law, how strongly ae felt that error, and how deeply concerned he was to urge his own philosophy, that the world is a world of 'real Group-beings' a., well as of individuals. The connection between law and political science is far closer on the Continent than it is in England. With us, the subjects have generally tended towards a divorce; and there has been little study of political SCIence in terms of law. Hobbes was not ignorant of English law; but he used the language of physics and behaviouristic psychology r.lther than the language oflaw. Locke employed the conception of 'trust'; but he was a phY~Ician, a philosopher and a politician rather than a lawyer. Few of our lawyers have turned their attention to the fundamental questions of politics. We may count the namel:> of Blackstone and Bentham, Austm and Mame, Dicey and MaItland; but they are scattered lights rather than a comtellatlOn, and the light of Blackstone is somewhat dim. On the whole our law h.ls been a close and empIrical preserve of the legal profession; and our political s( ience has proceeded not from lawyers or professors of law, but from politiciam \-\'1th a pllliosophic gift or phIlo~ophers with a pracncal mtere~t. We have gained something from our defect-if indeed it is a defect. The politician with a phIlosophic gIft-be it Sidney or Burke, Morley or Bryce-can bnng a bracing ~eme of realIty to his speculations. The philosopher wIth a pracncal interest-Adam Smith and Paley in the eighteenth century; SldgWICk, T. H. Green and Bosanquet in the nineteenth-ean carry practical questions mto the high and ultimate regions of ethical pnnciple. The English system of polincal , science, so far as we can speak of such a thing, has combined an : instinct for actual fact with some sense of the moral foundations on ; which the action of States, like all human actIOn, must necessarily : 1)e based. The traditIOn of humanism in our UniverSIties-the tradition which carried back teacher and taught to the writings of Plato and Aristotle, and imbued not only the master, but also the pupil del:>tmed for polItical affairs, with the ethico-political ideas of the Republzc and the Polztzcs-eorroborated a native sense of the moral foundations of politics. Our political science acquired what a Gttman scholar might call a 'normative' character. A study of politics which is pnmarily legal may become a desiccated study of Staatsrecht, and revolve abol't questions of legal metaphysics such as the .nature of 'State-personality' or the essence of 'State-
xx
sovereignty'. Our English political philosophy has been sporadic; it has hardly developed any' school', unless we can call Benthamism a school; but it has generally been occupied in discussing the mora! norms or standards by which the State and its activities should be controlled. Perhaps we shall not be over-kind to it If we see it in our mind's eye, as Aristotle saw Socrates, 1TEp\ TO: ij61KCx 1TpayIlCXTEVOIlEVOS.
On the Continent-if we may draw a rough and crude contrast, which needs many qualificatIOns-political education and political speculation have generally gone along the lines of law. Law has been the preparation for the sen'lce of the State, in its administrative as well as its judiClal acti.vlties; and law has been the ba~is of the theory of the State On the one hand, it has provided the traimng of the Staatsbeamtentum: on the other hand it has prOVIded the concepts and the line of approach for StaatswlSsensehaft. 'Summa legallias', we may almost say; 'the lawyer i~ ubiquitom', Certainly, the political theory of France and Germany bears hIS mark. To study modern French polItical theory is to Hudy the lawyersEsmein, Hauriou, BartheIem), Duguit. it is to study worh which generally go by the ~tyle of TWite du Droit ronstltutlOnnel. To ~tudy modern German political theory IS equdlIy to study the lawyersJellinek, Kelsen and Schmitt; and if treatises are written on the theory of the State (allgemezne Staatslehre), as well as on StaatsTeeht proper, we find they are written by profe"~or~ uflaw Vve arc face to face with a great and general trend; and we are bound to examme its significance, and to ~ee whether it may not have lessons to teach U'l. Our English political "cicnce has hitherto had no great method; and we may, at the very lea~t, learn <;ome lessons in that respect. Now it may be true that the legal approach to polItical ~cience tends to lead us into apparently arid regiom. oflegal metaphysics. It may aho be true that wch an approach tends to convert the , State into a legal institution, rather than' a fellow"hip in the good Me'. But there are other things which are also true. In the first plac.e the State is so much identified with law, in all its daily operations (wlnch are operations of dedaring and sanctionmg law, and thereby declaring and sanctionmg the nghts of all its members), that we are bound to study law if we wish to study the State. In the second place, the study of the State in terms of law makes pohtical science a genuine discipline, and demands from the student a genuine grasp of legal conceptions and the gener..allegal
XXI
point ~f view. Political science which is not rooted and grounded in some such discipline becomes a loose congeries of facile apeTfus. In the third place, the whole vocabulary of political science is steeped in terms of law; and this etymological fact is the reflection ,and the expression of a long historical process. Throughout the centuries political science has been borrowing the conceptions of law; and it is in the language of law that it has learned to speak and to utter articulate worde;. It has been said that 'the world which derivee; its civilisation from western Europe may be dIvIded into the lands of the Englie;h law, and lands where in outward form at least the law is Roman' .... PolItical science, for reasons to which we have already referred, is no great debtor to the vocabulary of English law. But it stands deeply mdebted to the law of Rome. When men tried to interpret the State as a 'society', they were borrowing the term soctetas from Roman private law. When they tried to interpret government as the exercise of an authority which had been delegated by the , society', they were borrowing the conception of mandatum from the same source. These were matter., of the borrowing of private-law term~ and conceptlOns and their apphcation to the sphere of public law In other words, what was involved was the usc of the rules of law relating to private groupe; and private actIvitiee; in the State to explain the character and the activity of the State itself. Difficultiee; naturally arose, as Gierke sufficiently indicates, from this transference of the ideas of one sphere to explain the life of another. But Roman law could supply the politIcal theorist with something more than private-law notions It had conceptions of the nature of jus and lex, and of the part played by the People in the making of leges: it had conceptions of impmum and majestas: It had the conceptIOn of the Ln Tegw, by v.hich the People transferred tmpenum and potestas to the Prince. All these conceptions became the stuff 'of pohtlcal theory; and they were developed in the steady and continuous work of the commentators on Roman law during the Middle Ages. We study the Ideae; of Dante and Marsiho of Padua; but we have to remember that by their SIde stood theIr contemporary, the great legIst Bartolus of Sassoferrato, and that the ideas of Bartolus, themselves derived from the old Roman heritage, became in turn the heritage of the sixteenth century, and are quoted and used by most of its wnters on politics.
'" Professor Geldart, Marvm" p 133.
10
The Jmty of Western CWlltsatlQn (edited by F. S.
XXII
..
There were other heritages besides the legal heritage of Rome which lay at the disposal of the political theorist. There was the heritage of Aristotle, received In the thIrteenth century; there was the heritage of the Christian Fathers, and not least ofSt Augustine, which had been contInuously cherished by the Church. But Roman law had a special volume and importance. It was more than a hentage; it was a living body of actual law, practi<;ed in courts and developed by Jurists. It wa<; a consistent body of vital ideas, which could not only be used by the theorist, but was also affecting political life and development Its history during the Middle Ages, as VinoRTadoff write-; at the end of his Roman Law tn lJedzeval Europe, 'testifie<; to the latent VIgour and organising power of ideas, in the midst of <;hlfting <;urroundmgs'. It IS httle wonder that the pohtical theory of modern Europe, when it emerge" in the sIxteenth century, IS largely expounded by lawyer~, and expounded in terms of Roman law. Bodin, AlthU'lius, Grotms, Pufendorf are the typical figures: and they arc all lawyers True, there arc the clergy, concerned to find a theory of the Church and its relation'> to the State; but eH'n the clergy largely follow the fa~hlOn of l<1w (have they not their own Canon Law?), and the greJ.t work of Suarez is entitled Tractatu\ de lel!,lbus af Deo lrgulatore. Trur', there are the philosopher~, concerned to find the eternal pnnClples of politics; but they too generally betake themselves to law Fit hte writes a Grundlagt' dt's Naturrech/s and a Syrtnn drr Rech!Jldllt', Hegel himself writes a work entitled Phzlosophy of Law and Outlwcs of the State. Political science has thus for many centuries largely spoken the language oflaw, and mamly of Roman law. (Natural Law, as we shall presently see, is the term which theorists often used to grace their measure; but Natural Law, as we shall abo !lee, is itself a conception of the Roman lawyer~.) But what, we may a"k, is the conceptIOn which we may properly form to-day, in our present state of experience and opInion, about the relation between political science and law? We may begin our enquiry by drawing a distinction between Society and the State. Society, or community, which in our modem life takes the form of national society or community, is a naturally given fact of histoncal experience. EJ.ch national society is a unity; and each expresses its unity in a common way of looking at life in the light of a common tradition, and in the development of a common culture, or way of life,
XXlll
in all its various forms. But each society is also a plurality. It is a rich web of contained groups-religious and educational; protfessional and occupational; some for pleasure and some for profit; some based on neighbourhood and some on some other affinity; ill dyed by the national colour, and yt't all (or most of them) with the capacity, and the instinct, for associating themselves With similar groups in other national societies, and thus entering into some form of international connection. Such is society, at once one and many, but always, in itself, the play of a voluntary life and the operation of the voluntary activity of man. This is the material on which there IS stamped the form of the State. The State, we may say, is a national society whIch ha~ turned itselfmto a legal association, or a jundical organisatIOn, by virtue of a legal act and deed called a constitutlon, which is henceforth the norm and standard (and therefore the' Sovereign ') of such association or organisation. Thl'" constitution need not be a ",inglc document: it may be a set of historical documents; and over and above that it may al<,o be a set of unwritten constItutional conventwns, backing and reinforcmg whatever documents there be. Comtituted by and under this constitutIOn, and thus created by a legal act (or series of acts), the State exi~ts to perform the legal or jundical purpose for which it was constItuted. It declares and enforces, <,ubject to the primary rule of the constitution, a body of secondary rules, or system of ordinary law, whIch regulates the relations of its member~ as 'legal persons' (a term to whIch we must recur in a later sectwn), and assigns these 'persons' the rights and duties which form their 'legal personalIty'. It creates a scheme of working relations, in such areas of life a~ are susceptible of unifonn and compulsory regulation, and It calls this scheme by the name of law: it creates a position for each member under the scheme, and it calls that pOSItion by the name of rights and duties. Law is the method of its operation: the nghts and dutIes of 'persons' (which, as we shall see later, may be indlviduals or groups) are the objects of its operation. But though the State, and with it law, and with law the compulsory regulatlOn of human relations m certain areas, ha<, supervened, as it were, upon Society, ~ociety still remains. If Society has turned itself into a legal association, it has not turned the whole! ofit~lf into that fann; nor has it perished in producing the State.: It still remains, with its common way oflooking at life, engaged in the development ofits commnn culture: it stIll includes its rich web of groups,which may still pursue their voluntary activities in the social
XXIV
area not regulated by law. Behind the organised legal State there runs the life of national society; and there is thus a rich country stretching outside the four walls of State-regulated life. Before we seek to study the relation between law and political theory on the basis of these ideas, we may pause to enquire, for a moment, into Gierke's own conception of the relation between Society and the State. Gmllsclzajt, in his vocabulary, is the sum total of human groupings, and the general and comprehensive expression of human associations. It ranges from the umversal society of all humanity down to the village and the family in the village. From thil> pomt of view the State is one of the forms of Gesellschajt; and you may thus have a general theory of Gesellschaft which colours and determines your view of the State. So far as this goes, the State is just a circle in a series of concentric circles. But Gierke seems also to have another point of view; and this point of view appears to be dominant. From this point of view, the State shifts into the centre. All other groups are arranged according to the relation m which they stand to It There are ~ome groups which are tTl the State; there are ()ther~ which are SIde by sid/' with it (the Church being the only example)' there are otht'n (such al> federations and the general international society of States) which are aboue it-though it is not made very clear whether this means simply that they arc larger, or whether it meam that they are supenor. So far as thi~ goes, the State seems to hold the mterior lines. But there is still another point of view which also has to be taken into account We have to remember Gierkc\ fundamental belief in the reality of the Group-person. * On thi" bal>is the State becomes a real person; but so also do those groups m the State which are more than mere partnerships or "impk collections of individual persons; and so, again, does the Church, as a group which stands side by side with the State. One real Group-person may somehow be greater and more authoritative than another; but so far as they are all 'real', they all seem to be on a level. It is hardly clear how Gierke really conceives the relation of State and Society. But on the whole he seems to regard the State as a force controlling and regulating society and its various groups; and he IS anxious that it should do its shaping liberally, recognising, in its regulation of groups, that it i5 regulating' real persoll'>'. Returning from this digression, and adopting, for the purposes of our argument, the dIstinction between State and Society which
III
Der Zmtralgetianh der realm Gesammtpersonlichkett, preface to vol.
IV,
p. xi.
xxv
was suggested before we digressed, we may now examine the proper scope of political theory, and the nature of its relation to law. Political theory, we may begin by observing, is not concerned with the State alone It i~ also concerned with Society, because it IS impossible to understand the State unless we see It in connection wIth the Society from whIch It proceeds, upon which it reacts, and which reacts upon it. The word 'political', if by it we only mean the adjectIve of the noun 'State'. IS not broad enough for our purposes; and from this point of view we might more properly, if also more cumbromly, prefer to speak of 'social and polItical theory'. But we need not quarrel about adjectives; and we may content ourselves with the traditional term 'political theory' (or , political science', though the word' science' seems to make a large claim for any study of things human), proVIded it be understood that we are not oblIged to study the State alone, or to study it in Isolation. So conceived, polItICal theory will deal with three mam matters It will deal with the nature of Society and the process of its actiVIty It WIll deal with the nature of the State, as a legal as~ociatIOn, and WIth the whole process and intention of its legal, activity. It WIll deal with the relation of Society to the State, and: of the State to ~oClety. In dealing with the second of these matters, politIcal theory will largely be usmg legal material, and It WIll make itself largely the debtor of law. It WIll ~tudy public or constItutional law, seeking to understand and to mterpret the 'frame of government' which the constitution prescribes, and also (if there be any' declaration of rights') the general system of rights, and the general sy~tem of dutIes, wluch it declares It will also study what may be called social law, or the law of associations, seeking to understand and to mterpret the pnnciples on which the State deals '''''Ith groups. It wIll even study the private law which deals with indivIduals; for the action of the legal aSSOCIatIOn will not be clear unless we know 5.omething of the concrete rights and duties which express and fix the position of its members and d,Stermiru;,. the nature of theIr relations with one another. But in dealmg with this legal material, the politIcal theorist will often be fmced to transcend its purely legal aspect. In dealing WIth the public institutions of the State, for C"'ample, he has not only to see them a~ they legally are: he has also to see them as they actually work. A scheme of representative institutIOns prescribed in a constitution is one thing: the actual workin.g of such a system, under the influence of party organisa-
XXVI
tions and other factors, may be quite another. Society and social forces are always making their impact on the legal State and its legal factors and instruments. The influence of party organisatiom (which strictly speaking are social formatiom in the area of Society, rather than legal institutions in the area of the State) is an example of such impact. Political theory, even in the act of studying the State, is bound to turn its attention outside the State to the Society which lies behind it and is always actmg upon it. It cannot long study the second of the three main matter" mentioned above before it finds It"clf driven back to the first, and forward mto the third. Here, in wme mea'iure, thl"' politIcal theori"t finds himself compelled to go beyond the lawyer-though the lawyer who seeks to expound a 'phIlosophy of law' (Profes"or Pound, for example) * will not readdy be outdistanced, and will march by hi" SIde with equal .,teps. (After all, there IS lIttle difference between a 'philosophy oflaw' and a . philosophical theory of the State') But there is also another way in which the politIcal theon~t ba" to go beyond the lay"yer- unless, agam, the lawyer be aha a legal philo~opher. I t is not enough for him to comider the actual form and operation of State and Society. He ha!> to comider the ends or purposes by \\ hich they should Ideally ue controlled. He I" not only concerned with what legally is and what actually works: he IS a1,>0 concerned WIth what should ldf'ally be. Here he ha~ to move into the kingdom of ultimate ends. If, like Ari~totle, we believe that ethlc~ is the ~tudy par excellence of the purpo"ive activitie~ of man and the ends by whIch they are guided, and if we accordmgly hold that ethic,> has an 'architectonic' quality, we ..hall '>ay that the polItical theori"t must betake him,>elf ultimately to the moralIst. He must find the t()uch~tone of sociallik and political actIvity in some ultimate ethical prinCIple. To many that ultimate pnncIple has always seemed to be the intnmic value of the human per~onahty, and men have been fain to believe that the State and Its law were inst! ument~ for ~erving the condItions of the free emergence and flee development of that ultImate and intrimic value. Autres temps, Qutres mrxurs. Ethics seems to be dethroned; and the emergence of the free human per~onality, descnbed as being JUerely 'the maximum offree individual self-assertIOn " ha<; been rejected as an Idea appropriate to 'the age of exparu.lOn' from the sIxteenth ttl the nineteenth century, but inappropriate to our own. EconomICS reigm, having driven out ethics; and notions of 'solidarity' or Inlroouelulf/ kJ tIu! Pluiosophy of Law.
XXVll
'social' utility' have expelled, or are seeking to expel, the old notion of the intrinsic value of the human personality. To Duguit, , the ultimate source of ia regie du drOlt is the economic fact of solidarity, which is so ultimate, and so overwhelming, that the standard of social and political life may be cxpressed in the one principle, 'Do nothing contrary to social solidarity, and co-operate, as far as possible, in Its realIsation'. To Professor Pound, the ultlmate ' end oflaw (and therefore of the State, as a legal association) is to be found in social utility. Law exhts to provide' a maximum satisfaction of want~'-the!>e wants being understood in the sense of 'l>oClal want!>' whIch are felt by dIfferent social sections and interests. It seeks to strike !>ome sort of balance between theIr conflicting claims and demands; it servel> a!> a sort ofsocial engineenng, . givmg effect to as much as we may WIth the least sacrifice', so far a!> wch effect can be gI\'en 'by an ordering of human conduct through politIcally orgam!>ed socicty'. * It i!> not nece!>sary for us to ~eek to appreciate, or to criticise, these different conccptIOns of the ultimate end of social life and polItical orgam!>atlOn. Gicrke hIm,elf, In the general remarks on law which are translated In AppendIX II, has saId !>ome words on the matter whIch are well worthy of comideratlOn. It i!> suffiCIent for our purposes If we recogmse that polItical theory mmt necessarily culminate In a study of ultImate ends, In whatever way It may seek to conceIve the nature of those ends. We may now resume, in two propmltIOns, the conclusIOns to wmch we have been led by our argument lU ..-egaI'd to the relations between law and political theory. In the first place polItical theory, while It is concerned WIth Society as well as the State, and whde it has to study the mteractIOn between the two, IS speClfically concerned with the State; and here-Just because the State, as !>uch, IS a legal associatlOnIt must borrow Its matclial largely from law (public, SOCIal and private), though it i~ bound to study the actual worklOg a!> well as the legal forms of such matenal. (Pohtical theory wluch is concentrated exclusively un legal form becomes merely a mattcr of droll COTlstttutwnnel: pohtlcal theory which is concentrated entIrely on the actual working of Institutions bccomes merely descriptive politICS, and the dc:,cnption gIVen, if It lose!> hold of the firm ground of legal rule, may al!>o bccome tendencious and partisan.) In the second place, political theory must ultimately rise into a philo>I<
op ('1t c
2, 011 'The El::l of Law', e.peClally the conclUSIOn of the
chapter.
XXVUI
sophy of political values and a doctrine of the ultimate ends of organised society. It must, in a word, assume a normative character, whether It find~ its norms in pure ethics, or in some more or less economic theory of SOCial solidarity or social utility. Here the philosophy of law may join hands with political philosophy; and though the legal philosopher will talk of the ends of law, and the political philosopher will speak of the ends of the State, there will be little difference between them. For the State is essentially law, and law is the e~sence of the State. The State is essentIally law in the s~nse that it exists in order to secure a right order of relations between its members, expressed in the form of declared and enforced rules. Law, a~ a system of declared and enforced rules, is the es~ence of the State in the same <;ort of &cnsc a<; his words and acts are the essence of a man. \Vhen we come to consider Natural Law, we shall ~ec how much a philosophy of law (for Natural Law, in a seme, i" SImply a philosophy of law) can contribute to polItlcal theory-how much, indeed, it lS a polItical theory. :FOl the present it only remaInS, m conclmlOn of the present argument, to comider bnefly some other ways of approach to political theory, besides the way orlaw. There are two such ways to which Gierke alludf''' in the course of hIS writings. One we may call the bi?logical, and the other the psychological. It IS the biological way of approach which seems particularly to have attracted Gierke, as It ha~ also attracted many other writers smce the middle of the nmeteenth century. We may conSIder the biological approach to social and politIcal theory from two different pOlnts of view. From one point of view we may say that Society and the State, whatever they are in themselves, have a biological basis. Thi!> is obvlOmly true. Every national Society, and every State, has the biological baSIS both of the physical breed or stock of its members, and aho of the physical charactenstics and influence-. of its territory. This bdsis will n('ces~ sarity react upon that whkh is built upon it; and to understand fully any particular State or Society we must therefore study this basis. But there is alw another point of VlCW, which is very dIfferent. From this point of VIew it may be contended, and it has often been contended, that Society and the State are themselves 0: the nature of biological structures, or organisms, in the sense that they arc so analogous to such structures that they must be interpreted m the &ame term~ and by the same language. Tills is a point ofv:iew
XXIX
which is not so obviously true. But it recurs in the writings of Gierke, and it is particularly developed and pressed in a rectorial -address which he delivered in 1902 on 'The Nature of Human Groups' (Das Wmn der menschltchen VerbiJ.nde). It is a point of view which would make both law and political science indebted to biology for the conceptions which they use to interpret their material, and the language which they employ to express their conceptions. How far can we accept such a point ofview? We may admit that the analogy between the phySIcal body and the body politic is one which has long been employed. We may also admit that it was natural, and indeed inevitable, that the new growth of biological science in the runeteenth century, which threw a flood of light on the development and the nature of the physical organism, should have resulted in a vastly extended use of the old analogy. Finally, we may admit that Gierkt" was under a particular temptation to press the analogy. He was arguing that groups were real personsreal' unitary' persons, existing over and above the multiple individual persons of which they were composed. It seemed a corroboration of the argument to add that they were also real bodies or orgamsms-or rather, that they were so analogous to real bodies or orgarusms that they must necessarily be described in terms drawn from such bodies. But what seems to be a corroboration may really be a confusion; and Gierke, like other thinkers who have prt"&5ed the organic analogy, has not entirely escaped this rIsk. It is one thmg to predIcate of a group that it possesses personality. This IS to say ttat it is a spiritual existence, and possesses a spiritual attribute. It 15 another thmg to predicate of a group that it is an organism, and possesses an organic character. This is to say that it is a physical existencc, and possesses physical attributes. Gierke is really aware of the dIfference between these two things. He is convinccd that the group really and truly is a person. He is not convinced that it is an organism, but only that it is like an organism--like, and yet (he confesses) unhke. * But while he can make
'Properly understood, the analogy only sUKgests that we find in the social body a urutv of life, bclongmg to a whole composed of different parts, such as otherwise we- ran only perceive in natural orgamsIllS. We do not forget that the mner structure of a Whole whose parts are men must be of a character for WhICh' the natural Whole affords no analogy, that here there is a spiritual connection, which IS created and developed, actuated and dissolved, by action that proceeds from psychological motives: that here the realm of natural science ends, and the realm of the BClt" let" of mlDd begIns' Das Wesen tier mensdUuNn Verbande " pp. 15, 16.
BTSI
xxx
this distinction, he can also let it disappear; and sometimes he lets it disappear altogether. When he writes that there is a 'scientific justification for the assumption of a real corporeal and spirituaf unity in human groups','" he has let the group-personality take 'to itself the flesh of a group-organism; and he has forgotten hE own warning. An analogy which is consistent with differences has dropped the differences; and ceasmg to be an analogy, it has become an identlty It lS well to lllsist that biology only furnishes law and polItical science with an analogy. So doe~ engineering; so does chemIstry; and so may any ~cieI1( c. The bwloglcal analogy may be the best of the "anous analogies; and indeed we may frankly confess that it is. But we may also confess that 'organism' IS itself an analogy drawn from mecham::.m; for 'organ' means a tool or imtrument, and when we ~peak of 'organs' of the body we are using an engineering analogy. The' social organism' is an analogy which is ba~ed upon an analogy; and if bIOlogy can supply political science with a goQSUnetaphor tllI the understanding of the nature of Society and tIiC State, it has itself been ::.upphed already with a good metaphor in advance The p.,ychologlCal approach to polItical theory i::. more direct, and Issues m a clo"er l antal t, than the blOlogteal. Psychology is a ~;cienc(" of the mind; and It ha.., a natural relation to studlc'i such a~ political theory which deal with the sOCldl product::. and creations of the mmd. The psydlOlogist who seeks to elucidate' human nature in politic::.' (or, more exactly, to explam the proct"~.,e<; and operatIon of the human mmd in It~ politICal aCtlVltIC::') can bnng a point of view which supplements, aoci may (orrect, the fmdmgc; of the older stvle of pohtical theory. Such theory ha.<. tended to speak, m mtellectual tel ms, of the r atlOnal apprehension and conscioUCi volition of purposes. Psychology can take us into the dim country whIch lIes behind the comclOU::' mtcllect-the country of emotIOns and Imtinctiil m which there nse so many of the springs that run throu~h social lIfe. Thi::. is a contribution of clear and definite value. But there is also another contnbution which psychology has sought to make to polItical theory. Not only has it emphasised the subcomcious factors of the individual mind which play their part in politics: it has also sought to discover the ~xist ence, and to explain the nature, of a supposed group-mind, with group-emotions, group-instincts. and even a group-intellect. We
Ibid. p. 23.
XXXI
might have expected that this form of psychological theory would have attracted Gierke. His own language is language of the groupPerson and the group-will; and this, at first sight, seems cognate to the psychological theory of the group-mind. Why should he not hftve used that theory, and used it in preference to the biological analogy of the organism on which he lays so much empha'Sis? In one or two passages of his lecture on 'The Nature of Human Groups', GIerke refers to psychological theory. He speaks of a Volksseele: he mentiom, as parallel to his own 'organic' theory of the group, the speculation<; of Wundt and the development of Volkerprychologu. But on the whole he makes little use of the material or the theones of the psychologist. Two reasons may be suggested. In the first place, the group which he has in mind, with its group-personality and its group-WIll, i., not a psychological tissue, connectmg the threads of individual minds: it I!> a sort of higher reality, of a transcendental order, whIch stands out as wmething distmct Irom, and somethmg superior to, the separate reality of the individual. Gierke borrows from Hegehan philosophy rather than from group-psychology, and when he writes that' human group-life I~ a hfe of a higher order, in which the mdividuallife is incorporated', * he is in a different world of ideas from the p<;ychologlst-a Hcgcli.lll world of srraded manifestatIOns of the eternal mmd: a world of values, higher and lower, whilh doe'S not lome WIthin the ken of the p~ychologlst, who simply deals With the actuality (or the !>upposed actuality) of mental units and processes. In the sc(Ond place, the p~ydlOlogical theory of the group-mind wa~ l.irgely elaborated after Gierke had formed his theory, and it is mamly a French theory. It i., the theory of M. Durkhelm and M I.e Bon, but especially of the former, With his VIew of the sonal mind as the one real mind, which thinks in and through the physical brain<, of mdividuals, but only uses them as its tools. Tlus later theory, cultIvated m France and exported to England and America m the beginning of the twentieth century, lay outside Gierke's range of interest and knowledge. But even if it had come witlun his range, it could hardly have affected his thought. The 'group-beings' among whlch he moves are very differcrnt from the 'minds of groups' (or crowds, or even herds) which appear in some of the later forms of psychological theory.
DQJ Wesen dcr menschluhcn Verbaruie, p.
10.
xxxii
We may now summarise, in the light of the general considerations which we have assembled, the nature of the contribution which Gierke makes to political theory. He is a lawyer, and he examines as a lawyer the legal nature of groups which have a legal character-the State, with its legal character defined in public law: the associations contained in the State, with their legal character defined in a 'social' law or law of associations. So far, he provides a body of legal material which political science is bound to accept and use. But Gierke is more than a lawyer; he goes beyond lawand that In two ways. In the first place, he is a philosopher, or rather he makes certain philosophical assumptions. He assumes that groups in general-both those which have a legal character, as belonging to the area of the State, and those which have not, since they simply belong to the area of Society-have the capacity of being real persons. Not all groups are actually such persons: a mere partnership between individual partners simply remains a sum of individual persons, and never becomes a real person itself. But groups which are more than partnerships-which are not mere combinations of indIviduals for greater ea5e in securing their own private benefits, but have a genuine unity of purpose uniting their members, as members of one body, in the pursuit of a common good-are always real persons; and so far as law IS connected with such groups, it must recognise the fact of their real personality, and give that fact true legal expresSIOn In the second place, we may say that Gierke is a sociologist as well as a lawyer, If by 'sociologist' we mean that he is a student of Society a~ well as of the State. He does not entirely confine his expOSItion of groups to group~ which ha\e a legal character. He deah, incidentally, in the chapters translated in this volume, with the group which he calls internatIOnal society, which for him stands outside and above the State, and again with the group which we call religious society, or the Church, which in his VIew stands outside and beside the State. He admits, and indeed he insists, that law, a~ law, is concerned only with groups' whose umty is expressed in a legal organisation'-groups 'which act in the area oflaw',* But the groups which lie beyond the immediate scope of law are not entirely excluded from the lawyer's ken. The folk, or national society, is a powerful factor affecting law, and it has to be considered in the study oflaw: international community issues in law, if it is not in itself a legal entity; and religious society has a similar
Ibid. pp. 23, 30.
quality. * Law proper-law in its strict and limited sense-is necessarily one-sided. In a passage of his lecture on 'The Nature 'of Human Groups', Gierke seeks to delimit the exact nature of its sphere, and to explain how the lawyer must recognise both the limits to which he is confined and the factors which lie beyond them. 'The life of law is only one side, and by no means the most important side, of community life. The science of law must never forget this one-sidedness. It must always bear in mind that the living forces of the various social organisms express themselves outside the area of law (Recht), in all the movements of might (Macht) and of culture in the general community life, and achieve their greatest triumphs independently of law-and even in opposition to law. Legal science must leave it to other sciences to discover the cohesions that exist, and to trace the unities that act, in all this extra-legal sphere. But while the science oflaw must thus receive from other branches of science the confirmatory evidence wluch they can give of the reality of community, it can also make a claim upon them. It can ask that its own account of the legal expression of this reality should be duly considered in any thorough and genuine investigation of social data other than legal. 't Such is Gierke's own view of the relation of legal science to social and political theory. Legal science primarily studies legally organised groups as such-the State, as legally organised under public law; the legally organised groups inSIde the State, as organised under the law of associations. It may also study, secondarily, such groups as are not legally organised, but none the less affect lawgroups such as national society, international community, and religious bodies. On the whole, however, It leaves to other sciences (the social and political sciences) the general study of these social groups, and it accepts from those sciences the evidence which they provide. Per contra, it may fairly claim that they shall accept tts evidence, and shall take into account its theory oflegally organised groups. In its general features, and in its broad lines, this view must command our allegiance. On the other hand it does not follow that Gierke's particular theory of the real personality of groups must necessarily be accepted. It is flomething more than a legal
XXXlll
...
Ibid. p. 24. In reading what Gierke says of mtemational community we must remember that he was wntmg before the days of a legally organised League of Natiom. t Ibui. p. 31.
XXXIV
theory. It is a legal theory which starts from philosophical assump tions which we may question, and presses a biological analogy to a length which may raise our doubts. Nor is it easy to accept an ethkal corollary which Gierke seeks to draw from his legal theory. Ethical theories may lead to legal corollaries; but it is dIfficult ~ see why a legal theory should issue in a moral rule. Yet at the end of his address on 'The Nature of Human Groups', Gierke seems to take this line. 'One thing', he say:., 'may be permitted to a jurist: he may suggest the moral significance which belongs to the idea of the real unity of the community.' He proceeds to argue that it is only tlllS idea of a 'real unity' which can produce the , belief that a group is of value m itself; and only the belief that a Whole ha~ a higher valuc, as compared with its parts, can JustIfy, in turn, the mordl duty of man to hvc and dIe for the Whole.'" We , may fairly rejom, to such an argument, that a theory IS not proved to be true by temg proved to be ncceS'iary to the ethical rule of 'livmg and dying for the Whole' unles'> that rule i~ true in Itself. We may also rCJoin that the rule of liVIng and dying for the Whole, even if it be accepted as true, docs not nece~sanly reqUIre a<; Its baSIS any idea that the Whole is 'real' in the sense of being an entity or a person. Even if a group IS only' ideal', in the '>CllSe of i beIng a common Idea or set of ideas entertained by Its member", we ha\e to recognIse that thomands of our kInd have dIed for the sake of an idea. Even if a group IS only indivldual~, one man may dIe for the sake of others, if he believes that he best serve'> theIr happiness thereby and that he ought to serve their happiness.
I HE LAW OF NATl RE
The conception of a Law of Nature goc'> back, lIke so many of our conceptions, to the Greeks. Anstotle, in the Rhetoric, distinguishes between law which is 'particular', or positive, and ldw whIch is , common', or 'according to nature' t This implies the Idea of a common law which is natural to all humanity. Similarly, in the EthICS, m speaking of' civic Justice', which regulates the relations between citizen and citizen, he distinguishes between the' natural'
IbId p. 31. Thr-te seems to he a leap from the idea that a R:roup has value in itself to the Idea that It has a hIgher value. t RhetorIC, 1373 b4
xxxv
element, which has the same validity everywhere and does not depend on enactment, and the < conventional' element which .is purely positive. * In Aristotle's general terminology the word < natural', as applied to man and human things, has three senses. It is something which is immanent in the primordial constitution of man, as a potentiality of development. Again it is something which has developed with his development-something which is a growth of his potentiality, but a growth in which his 'art', or creative mind (which is part of his constitution), has co-operated with the promptings of what we may roughly call hIS instinct, or Immanent Impulse Finally, it ill something which is inherent in the final development of man, and part of his final cause or purpose. All three senses are interconnected, and interconnected in virtue of the idea of development. If we take them all into consideration, we shall sec that a 'natural law' wIll not merely medn a law which is co-extensIVe with man. or universal: it will also mean a law which has grown concurrently with man, and is, In a sense, cvolutionary--yct not so evolutionary but that man's 'art' has co-operated In its growth The antithesis between natural and conventIOnal, which 1<; only a prIma Jane antithesi'l, will disappear, and we shall have a vision of an histOrIcally developed law whIch ha~ both a posltlve quality and a root in the nature of man. If Athens had possessed a more highly developed body of law, and If Aristotle had applied his general conception of' nature' to it, legal speCUlation might have run a different course, and the world mIght have escaped a long conflict between the natural and the positive schools oflaw. As it was, the little that he said on this topic of natural and pOSItive law bore little fruit; and it was another school of philosophy-the Stoic-which was destined to influence the history of jurisprudence. To the Stoics Nature was synonymom with Reason, and Reabon was synonymous with God. They believed that the true city or polity of mankind was a single 'city of God', or cosmopolis (transcending the old historical and pOSItive cities), and that all men were united, as reasonable creatures, in this city of God, which was also a city of Reason and of Nature. They believed that true law was the law of this city-the law bf Reason; the Law of Nature. According to the teaching of Zeno, the founder of Stoicism, men should not live in different cities, divided by separate rules of justice: they should consider
EthiCS, 1134 b18-21.
xxxvi
all men fellow-citizens, and there should be one life and order, as of a flock on a common pasture feeding together under a common law.'" This common law (l<01VOS v6\JoS), which is the law universal and natural, may remind us of the KOlvi] or lingua franca of the Hellenistic period. It is the legal corollary to the linguistic fact ofa universally diffused speech, which in turn was the corollary to Alexander's world-State. But the K01Vi] was actual fact: the K01VOs v6IJos remained an aspiration. It was an ideal law which could only become actual if men were purely rational. Its principles were ideal principles. Among these ideal principles was that of equality. By nature, and as reasonable creatures, all human beings \\-ere equal. By nature the woman was equal to the man, and the slave to the master. This was the teaching of Zeno; and it was a teaching which had its effects, in later days, in Rome. In Rome we find a highly developed body of law such as Athens never attained. Indeed we find, by the time of Cicero, three different bodies or conceptions of law. The first is the JUS civile, which is the law applicable only to Roman citizens. The second is the jus gentwm. From a practical point of view we may regard JUS gentIum as a body of commercial law, enforced by the Roman courts in all commercial cases, whether the parties to such cases were <:,itizens or foreigners. From this point of view its essential content is the law of contract, including the contract of soczetas and that of mandatum. From a theoretical point of view JUs gentIum was defined by the Roman jurists as 'the universal element, in antithesis to the national peculiarities (jus cwtle), to be found in the po!>itive law of every State'. t Here we recur to something very like the 'common law' or 'naturaljustice' of which Aristotle speak" Hence, too, it is easy to move forward to the third conception oflaw which we find in the Roman lawyers-that of jus naturale. We may define JUS naturale as 'the law imposed on mankind by common human nature, that is, by reason in response to human needs and instincts' . t It is difficult to distinguish betweenjus gentlum, as defined from the theoretical point of view, and jus naturale; and indeed the Roman jurists were never agreed that there was any distinction between the two. But we may at any rate say that while jus gentIum can be regarded from a practical point of view, and when so regarded is
Plutarch, de Alex. Fort, 1, 6. The Greek word for law IS the sam~ as that for pasture, except for a dIfference of accent (\l6~os and \loj.l6~). t Professor de Zulueta, in the Legacy of Rome, p. 20 I.
"'" T'l I
xxxvii
mainly a body icommereial law concerned with contracts, jus naturale is always general legal ideal: It is, ~n it~ essence, the Stoic ideal of a commo law of all humamty, which IS a law of Reason and Nature. It permeated by the Stoic principle of equality: ormes homznes natura aequales sunt-they are equal persons in the great court of Nature. It is not a body of actual law, which can be enforced in actual courts. It is a way oflooking at things-a spirit of 'humane interpretation' in the mind of the judge and the juristwhich may, and does, affect the law which is actually enforced, but does so without being actual law itself. No Roman jurist ever asserted that Natural Law overrode concrete and positive law, as was asserted in the Middle Ages and afterwards; all that they did was to allow their idea of Natural Law to affect the actual law when it came to be applied in the courts. Nor did any Roman jurist ever associate Natural Law with a particular date or epoch, or assign it to the days of a state of nature, 'when man came from the hand of his Maker'. Natural Law was timeless; but if there was any time at WhICh it attained its zenith, that time was in the fullness of the days, and not in their beginning.
is
Stoicism had passed into theJus naturale of Rome. Thejus naturale of Rome passed in turn into the tradition of the Christian Church. But the early Christian Fathers, holdmg that man's pure nature had been vitiated by the Fall, drew a distmction between what we may call (following the interpretation of Troeltsch) the' absolute' Law of Nature, and 'relative' Natural Law. The absolute Law of Nature, in man's uncorrupted state of primitive grace, is a law which knows no domtmum. There IS no domtntum of government over subjects, or of owners over property, 0;" of masters over slaves: 'by nature' men are free from the State, they own all things in common, and they are equal to one another. But there is also a relative Natural Law, adjusted to the change of man's nature after the Fall, and relative to that change. The State, and property, and even slavery, can all find their place in the scheme of this law; but they must all have something of an ideal character, and rise above sin to the dignity of remedies for sin, if they are to be really entitled to that place. The relative Law of Nature is a sort of half-way house between an absolute ideal, vanished beyond recall, and the mere actuality of positive law. It was not easy to occupy a half-way house without being exposNl to attacks from either side. Sometimes tht: absolute ideal might rise in insurrection against property and political authority and human inequality; more often the
xxxviii
Translator's Introdw;tion
I
positive fact asserted its absolute right. But the tradition of a Law of Nature, which generally took the form of relative Natural Law, continued to survive in the Catholic Church, not only during the Middle Ages, but also in modern history. St Thomas Aquinas found room in his philosophy for four species of law, all hUI?-g by golden chains to God. There was the positive law enacted for mankind by God Himself, in His r~velation of His will through the Scriptures (lex dwma); there was the positive law enacted for its members by a human community, through a representative prince, in virtue of an authority of which the prtnclptum came from God (lex humana). Behind the positive law enacted by God-and indeed, we may add, behind all other law whatsoever-there was the law of all creation resident in the supreme and unchanging purpose of God for all His creatures (lex aderna); and behmd the positive law enacted by a human community there was the Natural Law dIScovered by man\ divine faculty of reason, as it sought to apprehend the purpose of God's Vll11 clnd the rule of HIS Reason (lex llaturahs).* This was the scheme on 'Nhich the thought of the Churc.h ("ontinued to move; and 10 that ~chel11e the Idea of Natur,tl Law continued to playa conspicuom part, e\ en after the end of the Middle Ages. The great mural theologIam of the ~ixtecnth century (or, as Gierke calls them, 'the ecclesiastical wnters on Natural Law'), who were occupied with the study of moral and polItical phIlosophy in its relations to theology, discussed political philosophy in terms of Natural Law. COnsPiCUOUS among them i~ the great Spanish Jesuit, Suarez. who regarded the Sovereign a~ 'the disciple of the law natural'; but there were many others of hl~ Order (among them Lessius, Lugo and Molina) ""ho wrote works de Justitia etJuri expounding a natural-law philosophy ofbociety and the State; and members of other Orders (such as the Dominican Soto) followed the same example But to understand the full bearing ofthetradiuon of Natural Law even during the Middle Ages themselves, we must return from the Church to the Roman lawyers; for without the substance and content of Roman law-not merely Its conception of jus naturale, but its whole general body and sum of conceptions-Natural Law
,
It became a question among ecclCSlaStlcal thmkers whether Natural Law was a command of DIvme WIll or a rule of DivIn(' Reason see below, p. g8. On St Thomas's general view of law, see G. de Lagarde', Esprit pollttque de fa RJforme, Introduction.
Translator's Introducton
XXXIX
would always have been a tenuous and shadowy thing. * Here we must go back to the great Renaissance of the study of Roman law which began with the Bolognese jurists at the end of the eleventh century. The Corpus JUTtS of Justinian-the Code, or body of statute-law, and the Digest, or body of case-law-now became a subject of study (primarily in Italy and southern France, but eventually in all the UniveNities of Europe) on which legal and political thought was nourished. Nor was it only a subject ofstudy. A caput mortuum might have been that. But Roman law was a lex ammata, which moved and inspired the livmg world. On the ecc ksiastic all>ide it passed into the active body of Canon Law, which was not only taught by the canonists, but also practised in the ecclesiastical courts. On the temporal side it began to be adapted to the needs of secular life and the requirements of secular courts. If the early commentators of the twelfth and thirteenth centuries (the Glmsators) had confined thcmselve<; to the study of Roman law as it stood in the actual text of J u.'>tinian, the commentators of the fourteenth and subsequent centuries (the post-Glossators or BartolIst.' sought to bring their studies to a practical point, and attempted to adapt Roman-law prinCiples to the needs of actual life Their labours produced two different and contradictory result.'>. Immediately, by adjusting Roman law to the need., of general contemporary hfe, they helped to secure its general diffusion as a European body of practical law which could claim, as a whole, to be universal and' natural'. Ultimately, by giving it a practical and positive character as a body of practical and positive rules, they helped to prodme a reaction (though this reaction does not become evident till the sixteenth and seventeenth centunes), which ran in favour of a new view of Natural Law a., something distinct from Roman law-a 'pure' law which transcended the merely 'applied' law of the ciVilians. t
In other words, the Natural Law winch was a part of Roman Law, and one of Its conceptIOns, IS a conccptlOn ",h1ch was adopted and developed by the Church. But when the qucstlOn came to be asked, 'What does thIS con('ep~lOn of Natural Law actually contam or mc1ude?', t~e answer tends to be, dUrIng the Middle Ages generally and down to the n~e of a new School of Natural Law after 1500, 'It conlams or mcJudes the wlwle of Roman Law, which IS, as a whole, both supremely reasonable and universally dIffused, and IS th("l~fore natural' t Roman law In general came In the Middle Ages to be called by the name of Jus clmle, WhICh is thus used m a far Wider sense than the JUS cwlle of the Roman lawyers themselves The teacher -nd student of 'CIVil Law' is the cwursta, or CIvilian. ;rhe teacher and student of Canon Law IS the ctulOntsta or decrehsta
xl
The immediate result is that which meets us in the later Middle Ages, and IS still to be found in the sixteenth century. During this period, there are still bodies of old customary law in the various countries of Europe; in England, indeed, there is a consolidated body of common law which will resist any Romanist trend. But on the Continent, at any rate, Roman legists are busy in most States; and even in England, Roman law is entering into branches oflaw other than the common law proper. In all the Universities, the English included, it is a great subject of general and international study. Practised in some degree almost everywhere, and taught everywhere, 'it was the law of an international civihsation, and relatively universal'. Because it was thus universal, it could already be called natural; and for this reason alone we may say that 'its veneration in the Middle Ages as Natural Law was not entirely unjustified'. * But it could be regarded as natural not only because it was universal, but also because it seemed to be supremely reasonable. It was the expression of human reason in a great body ofscnpture (ratio scripta), whIch might seem to be parallel, m things earthly, to the heavenly Scripture committed to the Church. And indeed 'the artificial perfection of reason', which the classical Roman jurisprudents had 'gotten by long study', and which the ciVIlians had sought to assimilate by their conning and adaptation of the Corpus JUTtS, was a very high reach of reason. But the very triumph of Roman law was, in one sense, its undoing. Just because it tended so much to become an actual lawjust because it was not a 'good old bed-ridden law', but a very lively law which walked the streets and entered the courts-it left room for a new Idea of Natural Law, as something distmct from actual Roman Law, which might be professed and studied in Universities as a separate branch of enquiry. When the reception of Roman law began to be achieved in Germany about 1500, and the civil law of Rome became a current law in the Empire and its principalities, the German interest in the Corpus Juris became very largely practical. The old Bartolist tradition of adapting Roman law to the needs of actual contemporary life (which had been contradicted but not checked by the humanists of the sixteenth century, such as Cujas, who wished to understand Roman law as an historical fact of the past in terms of historical scholarship) assumed a new and vigorous life; and a usus modernus-a modernisation of the Digest or Pandects of Justinian, which its votaries called PandektenProfessor de Zulueta, op.
CIt
p.
181.
xli
recht, but which a modern scholar has called 'Wardour Street

Roman Law'-occupied the attention of scholars. But free speculative thought still survived, triumphant over particular and immediate exigencies; and the great general problems of the sixteenth and seventeenth centuries afforded a large matenal for general speculation. There was the problem of the new system of national States; of the principles on which their relations should be based; of the source and the nature of the body of law by which their relatIOns should be adjusted There was the problem of the new system of national Churches; of their relation to the State; of the nature of both Church and State, and the character of the common framework into which they could both be fitted. Problems such as these demanded a new wealth of conceptions. A new School of Natural Law arose and attempted to open a new mine of thought which should provide that new wealth. The great age of thIS School of Natural Law is the seventeenth and eighteenth centunes. It runs from Grotim and Pufendorf to Fichte and Kant But It<; work was already begun in the sixteenth century; and indeed the great problems WIth which it sought to deal were problems which had been posed by the development of the sixteenth century. In the sections whIch are translated in this volume, GIerke accordmgly seeks to study the 'natural-law' speculation of the three centuries from 1500 to 1800. We may observe two general features in such speculation. In the first place, the Natural Law which is in question is a secular Natural Law. True the Catholic writers on Natural Law, in the later sixteenth century, continue to speak in terms whIch go back to St Thomas, and indeed beyond 8t Thomas-terms of divme dispens..ltion: terms which make Natural Law appear as an objective scheme of divinely constItuted realities and rules (the realIty of the family, for example, and the rules of marriage and the general family system), to which man has to adjust his life if he IS to be true to his own divine essence.... But the general view of the thinkers of the School of Natural Law refers that law, and all that depends upon it, to the play of the natural light of human reason. The School is thus a rationalistic school, emancipated from the Church; its tendency, we may say, is to subject the Church to Natural Law rather than Natural Law to the Church; and its thmkers seek to determine the nature of the Church, and tne proper scheme of its relations to the
. . cr. mfra, In the translator's notes to 14> note 60 and note 62.
xlii
Translator's Inlroduction
State, by principles which are themselves independent of the Church. In the second place, the school of Natural Law is not only emancipated from the Scriptures of the Church: it is also emancipated from the ratio scnpta ofRoman law. Its Natural Law is based on pure rattO) without any adjective or qualification: it is the preduct of the free lucubration of the legal philosopher, researching m scrinio pectoris sui. But the accumulations of the past cannot be easily shed; and researches 'in the desk of one's breast' may only result in the discovery of an absence of material. In actual fact, the School of Natural Law continued to be in the debt of the Corpus JurtS. When it sought to elaborate the natural rules ofinternational law, it used materials which were mamly drawn from Roman law. When it sought to construct a natural system of constitutional law for the State, and natural rules of' socIal' law for groups and asSOCIatIOns, it equally used the tooh provided by Roman law. It started from Roman-law conceptions of contract and 'partnership' and 'mandate'; it adopted and adapted Roman-law idea:of the umvenltas or corporati.on. We have spoken of the School of Natural Law a~ working a new mine of thought. More justly and accurately we might say that it took the minted coin of the Roman lawyers, m the form which it had attained after centunc~ of circulatIOn and revaluatIon among the canoDlsts and civlhans, and sought to melt the metal down and ~tamp it WIth a new dIe. This proce% of rationahsing and (if we may me that word) 'naturali:-ing' old legal conceptlOm is a proce~~ parallel to a phase which we have already had reason to notice m the development of classical Roman law. The theorists and teacher'> of the new Natural Law (which became a subject of profes~orial cham m many UniversitIes), were once more attemptmg to brIng a spirit of 'humane interpretation' into the exegesis of law, as the old Roman jurists who thought in terms ofJUS naturale had attempted to do long before But if we note an analogy, we mmt also note a great difference. The Roman jUrlSConsultl who applied the conception of jus naturale were closely connected with the actual profession and admmistration of law. They belonged to the aristocratic title of Rome, and occupied a high position m the hIerarchy of the Roman State. The theorists of the new Natural Law might often pass into the service of the State, and hold judicial or admInistrative or diplomatic post:-; but in itself Natural Law was a speculation of theorists and professors. It had (in no derogatory sense of the word) an academic quality. Its immediate life was tht:. life of
xliii
lectures and text-books; and it moved more in the world of thought than in the world of action. But the world of thought is an important world, and the School of Natural Law was deeply entrenched in its recesses. Its very academic quality brought it into close contact with the philosophies and the philosophers of the seventeenth and eighteenth centuries. Grotius and Pufendorf must count among the great thinkers of their day Burlamaqui brought the principles of Cartesianism to the elucidation of Natural Law in his Pnnczpes du droit naturel, published at Geneva in 1747. * Wolff put the philosophy of Leibniz to a similar use in his Jus naturae, published at Frankfort from 1740 to 1748; and Vattel, another follower of Leibniz, followed much the same line in hIS Drozts des Gens, au Prznczpes de la loz naturelle (1758), whIch is largely based on the work of Wolff. Just as the wnter~ on Natural Law go to the philosophers for theIr principles, so the phIlosophers have recourse to Natural Law for their polItical terminology and many of theIr polItlcalideas. Hobbes and Spmoza write in these terms-though the jus naturae of Spinoza, coloured by Ins pantheIsm, IS rather a universal force, flowing E:~!!Uhc .QQ.wer of God, than the dictate of man's natural reason and the human sense of right. Locke and Rousseau (If we may count Rousseau among the philosophers) have frequented the WrIters of the School of Natural Law; and we might even be tempted to say that Rousseau SImply stylised their materIal, were it not that such a saying would be unjust to the intuitIOns of gemus, and the msight of imaginatIOn, whit h Rousseau was able to add to the charm of his style and the clarity of hIS expositIOn Kant and Fichte have an even larger background of natural-law theory and matenal; and we can hardly ~tudy theIr legal and polItlcal plulo<;ophy WIth a just appreCiatIOn, unl~<; we remember the preparatory foundatIOns laId by the great Gcrman writers on Natural Law dUrIng the eighteenth century-Hemet cius, Thomasius, Wolffand Net telbladt. From one point of VIew, the School of Natural Law was engaged in the general study of all forms and phases of human society which were capable of developing a law or of bcmg regulated by law. It
'" It wa~ from thIS work, translated mto EnglIsh m 1748, that Blackstone drew the obs;rvatJons on Natural Law which cUflou;ly diversify the mtroductlOn to Ins Commentaries, and which stirred Bentham to mdlgnahon and the pubhcahon of hiS Fragment on Government Bentham did not reahse that m attackmg Blackstone (who had never acknowlc-dged hiS sourcc-) he was really attackmg BurlamaqUl. Cf the artIcle on Blackstone m the Du:tlOnary of NatIOnal BIOgraphy.
xliv
dealt with the State: it dealt with the relations of State to State, in peace and in war; it dealt with groups other than the State, from churches to commercial companies, and it dealt with the relations of the State to such groups. From this point of view we may say that the study of Natural Law issues in some four different branches of theory-a theory of Society at large: a theory of the State; a theory of the relations of States-or, in other words, of international law; and a theory of associations and their relation to the State. From another point of view, however, the Law of Nature might seem to find its specific and particular application in the one subject of international law. The relation of States, it might be argued, stood in special need of the illuminatlOn of Natural Law, because there was so little law of any other sort by which they could be explained or regulated. From this point of view a treatISe on the Law of Nations (droit des gens) might bear the title, or at any rate the alternative title, of a treatise on the Law of Nature (droll naturel). In the general conception, however, the study of the Law of Nature continued to be a general study of the State, in the whole of its range and extent, not only on it~ external side and in regard to the proper rules of its mternatIOnal relations, but also on its internal side and in regard to the proper system of its constitutiOnal and civil law. Vattel, if he devoted three of the four books of hi<; treatIse to 'the nation considered in Its relations to others', assigned the whole of the first to 'the nation c.onsidered in itself'. Rousseau, if he dealt with the State only on its internal side in his Contrat Socwl, and if he thus limited his interpretation of Natural Law to the scope of Vattel's first book, intended to pursue his mterpretation further, into the field of the State's external relations. 'Apres aVOlr pose les vralS principes du droit politique', he writes in hIS final chapter, 'et tache de fonder l' Etat sur sa base, il resterait a l'appuyer par ses relations externes, ce qui comprendrait Ie droit des gens.' His publisher pressed him to complete his design, and he seems actually to have begun work; but the Contrat Soctal remained the only completed half of the intended whole. * Rousseau is a Janus-like figure in the history of the School of Natural Law. He turns to it, and belongs to it: he turns away from it, and belongs elsewhere. He is not, by profession, a master of Natural Law; he is a man ofletters who makes a brilliant incursion
Professor A. de LapradeIle, preface to the edItion of Vattel in Classics of International Law, vol. I, p. XJDci.
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into its field, and returns in triumph with optma spolia. * But there is a deeper and a more philosophic sense in which he may be said both to belong and not to belong to the School of Natural Law. On the one hand he has the individualism of that school; and he has also its universalism. He believes m the free individual, who is everywher~ born free: he belteves in a universal system of drott pollttque, which rests on a ublquitom basis of mdividual lIberty. If he had followed this line of belief to its ultimate conclusion, he would have been a votary of the natural rights of man, and an apostle of undiluted liberalism. But there is another side to his teaching-a side whIch is at once very dIfferent, and, in Its ultimate influence, far more important. The final sovereign of Rousseau is not an mdlvldual or a body of indlvldudls. The final norm of social lIfe is not a body of Natural Law, issumg in a system of natural rights, which proceeds from the reason of the individual, and is everywhere the same because that reason i~ everywhere IdentIcal. The soverclgn of which he speaks is a 'moral pcrson'; and the final norm is the 'general wIll' of that person. Now it is true that penona moraIts WdS a term of art in the St hool of Natural Law, by whIch It was med to ~IgDlfy the nature of a corporate group, a~ a 'person' whIch wa~ something other than a physical person; and It IS also true that the idea of the will of omnes ut unzverst, as dIstinct from the will of omnes ut smgulz, was an idea also current in that ~chool. But it IS equally true that the 'moral person' and 'general will' of Rous~eau are ideas which transcend the limits of natural-law thought Romseau was a romantic before Romantlu~m; and hc preparcd the way for the new style of German thought which was to dIvlDlse the Folk-person, and to hIstorIcise law a~ the expreSSIOn in tIme of the general will or con, SclOUsn('~~ of nght whIch proceeds from that person HegelIanism and the Histoncal School of Law can find their nutriment 1n him, ifhe him~elffoundhis nutriment In the School of Natural Law; and whIle the springs of the past flow into his teaching, the springs of the future also issue from it. It IS In this ~ense above all that he is a Janus-hke figure It 1S from this point of view that we may also say that he is a bndge J.cross the gulf which, in the theory of Troeltsch, divides the Naturrecht und Humanitat of western Europe from the HIstoncal Law and the Folk-cult of Germany. Rousseau touches at one end the internatIOnalism, and the sense of an all. '" On the rf'latlOns of Rousseau to the School of Natural Law, and his use of Its conceptions and terms, see the translator's remark 1fi note 197 to 16.
BTSI
xlvi
pervading impersonal Right, which were among the merits of the old School of Natural Law; but he also touches at the other the nationalism, and what we may call the personalism, which were to be the marh of a new dispensation of thought. But this is to anticipate; and we must return from Rousseau (who is both the consummation and the end of Naturrecht) to the School of Natural Law as it stood in itself, apart from the new mgredients which he introduced. There was dynamite in Rousseau; but there was also dynamite in the pure School of Natural Law. To begm w1th, there was the current conception that Natural Law somehow overbore law positive, so that enactment~ and acts of State which ran contrary to its prescnptions were strictly null and void, even 1f in actual practice, owing to the absence of any machinery for their disallowance, these acts and enactments retained their validity. Such a conception-applied in various forms, sometimes with a greater and sometimes with a less degree of reverence for actual law-was a ready solvent of polItical obligation. The rebel against constituted authonty could easily plead obedience to the hIgher law, and could readily allege that he was only exerting, or defendmg, the natural rights which he enjoyed under that law The idea of a natural system of publIc, or COIlstitutional, law was particularly explOSive. Accordmg to that idea there was a natural 'law of the constitution' common to every State. Historic constitutions were threatened m any case by such an idea; but 1f the idea were made to issue m a natural 'frame of government' based upon general popular assent, and a 'declaration of natural rights' proceedmg from the general popular VOlce, the threat became obvious and definite. The American Revolution, a~ 1t ran its course from 1764 to 1776 -from the first begmnings of resistance down to the DeclaratlOn of Independence and the creation of new colomal constltutlOnswas inspired by the doctrines of Natural Law. An English judge had uttered the obtter dlctum, m 1614, that 'even an Act of Parliament made against natural equity .. is void in itself; for Jura naturae sunt immutabllza, and they are leges legum'. In England the dictum had carried no weight;* but it lived and grew to a great
Blackstone, In the introductIOn to his Commentaries, ~ II, where he IS borrowing from BurlamaqUl, remarks, 'ThIS law of nature ... IS of cour~e supt"Tlor In obbgatlOn to any other.. no human laws are of any vahdlty If contrary to tlus, aDd such of them as are valid denve all their force ... from this oTlg'lnal'. But later m the same introduction, when he IS wntmg mdependently, at the end of
xlvii
power in the North American colonies. James Otis, one of the Boston lawyers, is already declaring, in 1764, 'should an Act of Parliament be against any of His natural laws ... the declaration would be contrary to eternal truth, equity and justIce, and consequently void'.* The very phrase of 1614, 'the immutable laws of nature', becomes a battle-cry: It is often used by the great Boston agitator, Samuel Adams; and perhaps at hi~ instigation It IS inserted m the Declaration of the first Contmental Congress, in 1774, when the de-puties declare that the colonies, by the immutable laws of nature, have certain rights, and that certain Acts of Parliament are violatIOns and infrmgements of these rights."t In the Puritan atmosphere of North Amenca the secular Law of Nature recovers its theologIcal basIs; Samuel Adams claIms for his countrymen the indefeasible nghts with which' God and Nature have invested' them;~ and the DeclaratIOn of Independence claims for the people of America the ~tation to whIch they are entItled by 'the Laws of Nature and of Nature's God'. It was the Law of Nature which, more than any other force, exploded the authonty of the British Parhament and the BntIsh connection; and it is curious to reflect that Vatte!'s work on the principles of Natural Law was currently used m the sodalztas of the Boston lawyers (a sort of politIcal science club) during the crucial years of the Revolution.11 Nor was it only m the work of destruction that the theory I of Natural Law was employed. It abo served the cause of con-/ structlOn. The VIrginian 'Declaration of Rights' and the VIrginian 'ConstItution or Form of Government' of r 776, and the Pennsylvama ConstItution of the same year, which contains both a declar.ltlOn of rights and' a plan or frame of government', are both founded on the theory of Natural Law. If we seek to find the general Ideas by which these documents were mspired, we shall find them in the first book of Vattel's treatIse, and parncularly in its second and thIrd chapten. Whether or no the framers of the documents had Vattd actually before them, they were using the common stock of ideas on which he had drawn, and whIch he had presented in lucid French.(]
m, he observes, 'If the parlIament wIll pmltlvelyenact a thmg to be done which IS unreasonable, I know of no power that can control It'. ... S E. Monson, Sources and documents allustratlng the AmerICan Revolution, p. 7. t Ibid. pp 119, 121. ::: Ibid p. 94 Ibid. p 157. II Van Tyne, Causes of the War of Amerzean Independence, vol I. flI cr. A. de Lapradelle, op cat. p. xxx (and espeCIally note I), where an account IS given oflhe vogue ofVattel III No th America, espeCially after 1775.
d-2
xlviii
Nothing need here be said about the effects of the theory of Natural Law on the course of the French Revolution. It is a theme on which Gierke himself dwells. '* Nor need any words be said about the elements of natural-law theory which appear m Kant and Fichte. Of that also Gierke himself has spoken. But there are two things which ought to be mentioned before we leave the School of Natural Law. One is that its views were not always explosive and anarclllcal, or even liberal and democratic. If there were some writers who made positive law a mere earthen vessel as compared with the solid iron of the law natural, there were others who gave the victory to positIve law, and others again who, in a spirit of happy optImism, beheved that the framers of positive law would be sure to follow the dictate~ of Nature and to avoid the pos~ibility of quarrel. Nor was it always the case that, in treatmg of the pnnciples of natural public law (or, as Rousseau calls them, ies prinClpes du droIt pohttque) , the natural-law thinkers committed themselves to the proposition that the people should properly frame its own constitutIOn, or elect its own govcrnor~, or bind them in the iron fetters of its own declaratIOn of rights. On the contrary, as GIerke shows, there were always two lines of opimon on these matten. in the School of Natural Law, and while in the eighteenth century, from L()(kc to Vattel and Rousseau, and from Vattel and Rousseau to Fiehte hImself (in the earher stage of hiS thought), 'opinion inclined to what we may call 'popularism', the thmkers of the seventeenth century mainly inclined to the absolutist cause. Grotius and Pufendorf were too near to the problems of the nascent modern State to desert the came of authonty; and Nature could be used to cons("crate the monarch as well as the people. All through the hi~tory of the School of Natural Law we can find advocates of the Sovereignty of the Ruler as well a<; at the Sovc'" As we have already mentlOn{"d, In an carhu pas,agc of this mtroductwn, Gierke dId not extend IllS researches mto tht" AmerIcan Rcvolutlon. He IS sIlent about Vattel, and he has not comprl"hended m hIS scope Pame's 'RIght, of Man', a naturrechtluh pamphlet based on American experience. He also omIts some other Enghsh wntcrs of the later eIghteenth century who were mfluene-ed by the Amencan and Frcn(,h R('volutlons, and whme thought had natural-law elements, such as Dr Price, Dr Priestley and WIlham GodWin In a word, he has dealt generally with the great European thinkers, and he ha~ devoted partlcular attentIon to the thought of Germany, but he has not been able to find tIlDe or space for lesser lights In other countnes (He deals, for example, with Boom In the sIXteenth century, but not WIth Loyseau m the seventeenth; he con~lders the Huguenot wnters of 1570 and afterwards, but not the Huguenot wrIters (such as Jurieu) of 1680 and afterwards)
xlix
reignty of the People-not to mention the champions of the' double sovereignty' of both, or the exponents of the' mixed constitution', who sought to achieve an eirenicon between the two causes. In the second place, we must not too readIly dismiss the School of Natural Law as unhistorical, or as crudely individualistic, or as vitiated by a fundamental error of rationalism. There would, of cour~e, be a measure of truth in all these accmations. Natural-law thmkcrs were apt to talk of an unhi~torical 'state of nature', and of an unhistorical act of contract by which men issued from it. They played with individuals as counters, and they often forgot the deeper umties of social life They thought of men as acting by rational calculation: they neglected the areas that he below reason, or by the side of reason; and they did not sufficiently recogmse that reason itself is a 'bank and capital of the ages' which grows by a gradual process of ~oC1al accumulation and transffilsSlOn. On the other hand, historical critiCIsm of the School of Natural Law which make~ merry WIth Its state of nature and its contract may very well mISS the mark The natur aI-law thmker::. were not really dealmg WIth the histoflcal antecedent5 of the State' they were concerned WIth its logical pre~uppositiom; and there i::. still a case to be made fiJr the view that the State, as dlstmct from Society, i~ a legal associatwn whICh fundamentally rests on the presupposition of contract. In the ~ame way, the mdlvldualism of natural-law thought may be readIly exaggerated; and in any case, If we hold that mdividual personality IS the one mtrinsic value of human life, we ~hd.ll have no very great reason to fhng 5tone5 at a theory whIch re5ted on a :>Imilar baSIS It IS what we may call the short-time ratIOnalIsm of the natural-law school wluch is open to a Juster cntiCIsm. It IS not the VOT]CYIS IlOVOXpovos of the plulosophlc Jurist wluch can dI~cover the deep foundations of social hfe. There IS a long-time process of "ocial thought, revolving and ruminatmg the problem of a nght order of human relations (or, m other words, the problem of justice), which lays the foundations on which the State IS bUIlt, and on which it budd... SOCIal thought <tbou t justice, issuing in the comtitutlOn of a State, and then translated by the government of that State into a declared and enforced law-thl~ is the baSIS on which we must build our phIlosophy oflaw and the State. Here the historical argument enters again, in a deeper sense than when it I~ used to refute the histoncal existence of states of nature and social contracts. The long-time process of social thought is a great historic fact; and we must reckon with that fact. ThIS is the
fundamental justification of the School of Historical Law which arose in Germany at the end of the eighteenth and in the beginning of the nineteenth century. And yet it is not enough to hold that law is simply an historical product, evolved in this or that direction, under this or that set of contingencies, by this or that peculiar people. To hold such a view is to be content with a law which is merely an empirical fact, and has no anchor in the flux of history. Social thought, as it operate~ In time, is indeed a basis of justice; but the mind of man will always demand that the core of justice shall be beyond time and space-quod semper, quod ubzque. The School of Natural Law had some sense of that timeless and spaceless core. That is why, as Gierke write~ in a noble passage of his work on Althusius, the undying spirit of Natural Law can never be extinguished. That i5 why we must somehow incorporate that undying spint in our modern conception of Historical Law. For then 'the sovereign independence of the idea of JustIce, secured before by the old conceptIOn of Natural Law, will still continue to be firmly secured by our new conception of Law as something thoroughly positive--no matter whether the idea which opposes that conceptIOn be the idea of SOCIal utility, or the idea of collective power'. *
THE SCHOOL OF HISTORICAL LAW
The beginnings of the School of Historical Law in Germany are rooted, in their immediate origins, in a reactIOn against Natural Law-a reaction against its rationalism, against Its universalism, and against its individualism. Instead of pure rallO, covering the world and time with its system of rational rules, and proceeding from and returning upon the individual, there was to be ~ubstltutcd the Volksgexsl, immersed in the historical flood of its own partIcular development, and immersing the individual in the movement of its own collective life. Law, on this view, is essentially Volksrechl: it is the product, in each nation, of the national genius. A new movement of thought thus recurred to the idea of national law, which Rome had slowly transcended in the millennium of legal development which lay between the Twelve Tables of 450 B.C. and the issue of the Digest in A.D. 533. It rejected, as an incubus
'" See AppendIX
II,
p.
224.
Ii
upon the growing life of nations, the conception of a supernational rule of right, whether that conception took the form of adhesion to Roman law as a ratto scripta for all humanity, or issued in the proclamation of a new Natural Law based on pure ratio naturalts. The Nation revolted against Natura. This was the essence of the revolution in German thought which began a century and a half ago. It was a revolution which was contemporary with, and largely influenced by, the French Revolution. The French Revolution, it is true, was in some respects fundamentally different. It was a revolution not against 'Nature', but in the name of 'Nature'; it proclaimed the natural and imprescriptible rights of men and citizens, as recIted m the DeclaratIOn of 1789, against an outmoded absolutism and an outworn SOCIal system. But the Revolution aho proclaimed the rights of the NatIon and the principle of souveraznete natzonale; and its future course-whether, by edicts of fraternity, it sought to elicit national movements in its own support, or whether, by the oppression of its tutelage and its exactions, it Involuntarily produced national movements directed against itself -was destined to encourage the philosophy of the Volk. It was anud the storm and thunder of the Revolution and the Empire, and, in partIcular, amid the passionate fervours of the movement of LiberatIOn which followed on the battle ofJena, that the theory of the Volksgelst and of Volksrecht attained its strength and its splendour. But the Romantic movement, from which the revolution in German thought take,> its beginnings, is even earlier than the French Revolution It is a movement which we may trace as early as 1770 It is a movement back to the MIddle Ages; back agam, behmd them, to the primaeval sources of Teutonic antiquity; back, in a word, to the homely and indigenous core of the life of the German people. It IS a lIterary movement; but it is a literary movement with an immanent philosophy of its own. That phIlosophy is a phllol>ophy of the Folk, as a Being which creates language for its utterance; which utters itself through its language in folk-songs and folk-tales; and which sets the folk-songs it has written to the folk-tunes it has composed. Herder first expressed thIS general philosophy, from 1784 onwards, in his Ideen ~UT Geschzchte der Phzlosophze der Menschheit-a work which Gierke repeatedly cites in his footnotes, and to which, in a lecture delivered before the University of Berlin m 1903, he ascribes a large creative
Iii
influence in producing the School of Historical Law. * Whether it was the creator, or whether it was only the harbinger, Herder's work was certainly followed by a rich Romantic harvest. The general nature of that harvest is set out in the lecture by Professor Troe1tsch which is translated as an appendIx to this volume. All that need here be said is some few words about three particular fields -the field of language and lIterature; the field of Hegelian phIlosophy; and the field of law. In all of them we shall find the idea of the folk-soul winning its conquests, and vmdicating its magic as a universal key of mterpretation. To understand the folk-soul it was necessary, first of all, to collect and apprecIate the monuments of Its ~peech, it~ songs, its tales. Between 1806 and 1808 Amim and Brentano publIshed Des h.naben ~'Vunderlwrn-a golden treasury of VolksltedfT which inspired, and has contmued to inspIre, German poet,> clnd mUSICIans. In 1812 the brothers Jacob and Wilham Grimm published the first volume of theIr Marrhcn-fairy-tales, a.<; we now say, but the word 'folk-tale' would be nearer to the purpose of the compilers. Jacob Grimm, whose long hfe only ("nded 1Il 1863, wa" to carry his researches mto folk-lIterature and language through many realms of study. He studIed language in the four volumes of hIS German Grammar, seelung to relate its growth to the development of the people's voice and the evolution of the people's thought He traced folk-poetry m law; and he sought to recover the legal antIqUItIeS and to collect the anCIent' dooms' of pnmitive Germany. In his German Mythology he recreated the ancient god", and revealed the old figures of Folk-rehgion and popular ~uper~titlOn In his hands the Folk became no longer an abstractIOn, or a postulate of theory, but a storied and documented bcmg, expressed in language and ballad and saga, m lcgal Welstumer and rehgioU'> myths. The conception of the folk-soul not only inspired the philologist and student of literature. It also inspired the historian, and we may trace its efforts in Niebuhr's Roman Hlstory and hIS method of using conjectured ballads of the Roman People to dl~covcr the early history of Rome. Above all, it also inspired the philosopher. We may say of Hegel and the Hegelians that they took the Folk and lifted It into the heavens of metaphysics. In their phIlosophy the Folk becomes a Mind-and not only a Mmd, but also an inc,arnation of the Eternal Mind. In its eternal process, the Eternal Mind
See the address on 'The Hlstoncal School of Law and the Germarusts', p. 5 and note 7.
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incorporates itself in folk-minds, which are the incarnatio~ .of God in time and space, and indeed are God, as He operates Wlthin the limits of Here and Now. They are therefore divine; and because they are divine they cover every range of life, and they are also final and nght, withm theIr space and time, for all that they cover Organised in the State, which IS the highest power of its hfe, the Folk attains the highest synthesis of all its faculties. The State reconciles the pnvate 'Morality' of its individual members with the formal system of' Law' whIch has been developed on the plane, and to meet the needs, of a common 'economic society' (dze burgerlzche Gesellschaft) ; and it reconciles them both in the higher unity of a system of sooal ethICS, or Szttlzchkf'lt, which is the final reach of the mind of the Folk, strung tense by the power of the State -a reach that carnes it back 'into the hfe of the universal substance' The gre.it tIcle of RomantIC thought (which has flowed in Germany ever smce, now deep and now dIminished, and has rIsen to a flUdus decurnanw in tIm, year of grace 1933) flowed also over the field of law. Indeed It appeared m law even earher than In philosophy Hegel\ Plillowphy of Law and OutlznfS of the State wa~ published in 182 I , but the foundatIOm of the School of Historical Law, whICh legardr-rl law as the hIstone product of the folk-mind (with the JUrIst 10 ~omr- W.ly collaborat1Og- in the process of productIOn) go back to the eighteenth century MentIOn has already been made of the mfluence of Herder's Idem of the years 1784-5; and Justus Moser, lawyer and statesman ll1 the IHshopnc of Osnabruck, who publi~hed hIS Pafrzotlc PhantasU's between 1774 and 1776, may also be countco among the forerunners Hugo, Professor of Law at GoUll1gen, wa~ already tcach1l1g, about 1789, that' the law of a people could only be understood through the natIonal life itself, smce Jt wa~ Itself a part and expresslOn of that hfe' * But the dcfinite .lppearancc of the School of I-hstoncal Law may be dated from the foundation of the UruversItyofHerl1O in r80g. The foundation of the Uruversity was ibelf the expres~ion of a national movement. It had bcen precedcd by Flchte's Reden an die deutsche Nahan: it counted among its earhest profe~sors Fichte hImself, the histonan NIebuhr, and two grcat juri~ts-EIchhorn the Germanist, and SavIgfly the Romamst. It was these two (both young men, of about the age of thIrty, when they began to lecture in Berlin) who wedded law to hi~tory, under the common auspIces of the Folk which lives
... G. P. Gooch, HIStory and Hzsturzans m tlu Nmeteenth Century, pp. 4 2 -3.
liv
in time and speaks in law. They founded in collaboration a journal of historical jurisprudence; and they devoted long and laborious lives (both lived on into the latter half of the nineteenth century) to the historical study of law. Savigny was the greater of the two; and it was Savigny's genius which impressed its influence on the new School of Historical Law. The programme of the school was enunciated in his work of 1814, 'On the Vocation of our Time for Legislation and Jurisprudence' . Its motto may be expressed in Savigny's dictum, Das Gesetz lst das Organ des Volksrfchts. 'For law, as for language', Savigny argued, 'there is no movement of cessation. It is subject to the same movement and development as every other expression of the life of the people.... All law was originally formed by custom and popular feeling, next by jurisprudence-that is by silently operating forces. '* In the strength of this VIew he protested against codification, which would imprison the development of law in an iron cage; he protested against Naturrecht and all its works; he sought to secure free course for the flood of a people'~ thought, flowing' with pomp of waters unwithstood'. It is in this succe~sion that GIerke, though he does far more justice than Savigny to the idea of Natural Law, essentially and fundamentally stands Has he not said, ex cathedra, that' in any scheme of thought which proceeds on the premiss that the social hfe of man is the hfe of super-individual entities, the introduction of the Volksgeut into the theory of law will always continue to be regarded as the starting-point of a deeper and profounder theory of society'? t But we shall not fully understand Gierke's own position until we have considered a further development in the School of Historical Law. At first the Germanists and the Romanists-those who delved in the history of German law proper, like Eichhorn in his Hzstory of German Law and Instttutwns, and those who researched into the hIstOry of Roman law, like Savigny in hI~ H15tory of Roman Law zn the Middle Ages-worked amicably together. Mter all, the law of Germany, at any rate since the Reception, contained both elements; and why should not the history of both elements be studied in scholarly amity? But there was an inherent dIfficulty in this position; and it was not long m manifesting itself. wIf law was the expression of a Volksgeist, German law mmt be the ex Quoted from Savlgny's Vom Berlif unserer Zet/ in Gooch, op. t Lecture on 'The HlStollcal School of Law', p. 8.
Cl/.
p. 49.
lv
pression of a German Volksgei$l; and in that cast what was to be said of Roman law in Germany? Was it not a foreign body? And should it not be purged away in favour of native ,md national law, until the German people had recovered its inheritance? When su.ch questions were asked, a rift began to emerge between Germanist and Romanist views. The Romanists, in adopting a national~ hIstorical view oflaw, had put themselves into a position which was logically somewhat untenable; and the more they clung to pure Roman law, uncontaminated by the accretions of the medieval post-glossators and the more recent additions of the German usus modernus, the more untenable they made theIr po!>itlon. Pure Roman law might be the expression of the ~oul of the dead and gone people of Rome: it could hardly be the expression of the soul of the German people. Savigny might plead that the German people wa~ destined by its nature to assimilate and appropriate Roman law: his followers might contend that the law of Rome, at any rate in the sphere of Przvatrecht, was meant for mankind and transcended national limits , but the plea of Savigny was perilously like special pleadmg, and the contention of hIS followers contradicted the basic prinCiple of the Hi!>toncal School to which they professed to belong. Still, Roman law--deeply entrenched both in actual law and in the teaching of the Univer!>ities-held its ground; and an opinionated battle mevitably came to be joined between Romarusts and Germanists Twice the Germanist lawyers rallied to the attack In the troubled times about 1848, backed by philologists hke Grimm and historians like Ranke, the Germanist I lawyer~ demanded a body of German law based on German, history and the German nation. The demand died down in the' reaction after 18.18' it was renewed, with less ardour but In a more practical form, when a definite scheme for a new civil code for the German Empire wa", publhhed m. 1888. The scheme, in its first draft, contained (or was held to contain) too. large an element of Roman law. The effort of the Germanists, whIch lasted from 1888 until the enactment of the new civil code in 1896, was directed to redressing the balance in favour of Germanism. Gierke, trained by the Germanist Beseler, and himself a foremost figure among the Germanists, threw himself vigorously into the effort. He had recently been appointed Professor at Berlin, in 1887: he had publIshed three great volumes on German Genossenschaftsrecht; in the strength of his chair and his publications he contended for a Germanist treatment of associa-
Ivi
tions in the new code. Something was won by Gierke and the Germanists, ifnot all that they could have desired; and the struggle ended with both parties resting honourably on their weapons. German law was embedded in the new code-but Roman law had not disappeared. German law was taught in the Umversitles-but so also, pan jJassu, was Roman. Germany retained the double past of her legal development, and the two contending parties in the School of HIstorical Law remained true to their contentIOns. Both were necessary, Gierke confessed in a lecture of 1903, and both would continue to be necessary, If the hIstOrical roots of the double past were to be properly traced and interpreted. 'The Romam~ts WIll still continue to apply to current law, wherever they can, the great model which is to be found in Roman jurisprudence. The Germanists will never be weary of seeking to champlOn the independent character of theIr own country's legal idea~, and to develop further the genuinely German content of our law l along lines of expansion which will bring it into clo~er accordance with the national gemus:* There is a calm ofreconcihation about the~e word&. But we have to remember, a~ we read all GIerke's wntmgs, that he was from first to last a soldIer in the Germarust ~ectlOn of the School of Hi~toncal Law He was arming it by hIS histuncal re~earches before 1888, he wa~ fighting m its ranks between 1888 and 1896; and even after the new CIvil code came finally 111to force (as It did at the begmning of 1900), he was ~tlll deeply concerned to ~ecurc, d~ \H' lla\,e <dready had rea~lJll to note, that' the new law ~hould be penetrated by a Germani&t ~pint and that the growth of its Germamsm in the future should be fostered and encouraged'. t He had, as we have already ~('en, ajust view of the mner core of truth in the School of Natural Law. He could abo, as we have Jmt notlced, make a due acknowledgment of the part whIch Roman law must still continue to play in German legal thought But he IS a Germanist of the Germanists, nurtured in the tradItion of the Folk, and instinct with the philo~ophy of Volksgezst and VOlk.\Tfcht. Born in 1841, he was carried along on the wave of the general movement of Romantic thought. HIS theory of the Group and of Group personality, to which it IS now time to turn, is a part of that general movement.
Lec.ture on 'The HistOrical School of Law,' p. 33. t Preface to vol. IV of the Genossenschafisrecht, p. xu, cf supra, Imtium
2,
ad
lvii
s
THE PERSONALITY OF GROUPS
GIerke, as we have seen, speaks of all Ins researches, In all the four volumes of hIs Genossenschaftsrecht, as illuminated by . the central Idea of real group-personality'. We must seek to understand the ouahty, or rather the mIXture, of elements in the legal past of Germany, If we are to gra~p the inspIration and the significance of this Idea. We may begm by a contrast between the fortunes of England and those of Germany m the two spheres of law and language. In England law ha~ developed, HI the limits of an Island State, a:. a smglc and natIve :.ystem-a 'common law' cast in one mould :llld [(,tmg on one general baSIS of legal Ideas. In Germany, on the other hand, subject by virtue of Its central po<,ltion to the infiltratIon and' receptIOn' of Roman Influences, law has developed on a double basI,; It has been cast in two dIfferent moulds; it has re,ted on two dlffert'nt foundatiom of Latin and Teutonic legal Ideas Curiomly enough, in the sphere of language, the opposIte h,ls bt'en the case. In England our language, at any rate In its vocabuldry, if not in its gr drnmar, is dual: it IS a mixture of Latin and TeutOnIC words, and the mixture has enriched our vocabulary and enlarged the t'xprc~~lOn of our thought. In Germany, on the other hand, language IS pure and unmixed. the Latin words are few, and the old 'f()lk-~peech' is almost undIluted. So far as there 1\ any analogy in the~e rnattels between England and Germany, It 1\ a SOIt of Clo~S analogy. German law IS dIfferent from EnglIsh la w, and the Gnman language from the Engli~h, bu t there is some ,art of analogy between German law and the English language. Evt'n here, however, there is a dIfference. The Latin and the Teutomc words in the Enghsh vocabulary have settled down easily together, and except for some few 'Saxon' purists we all accept contentf"dly the happy amalgam with which we have been pre\ented by history. The Latin and the TeutOnIC elements In German law dId not fuse so happily; and a struggle for the recovery of a natlV<! Volksrecht, in harmony with the native Volkssprache, was the result of their imperfect fusion. In the nutter of groups or a~sociations, the tradition and teaching of Roman law presented Germany with the conception of the
lviii
Unwersitas and the Societas-the strict legal corporation and the strict business partnership of business partners. But were there not also Teutonic conceptions still surviving, relics of a richer past, which might be rediscovered by study, and even recreated by an act of will and a policy of restoration? There was the Gemeind~, or local community, with a hIstOry running back to Teutonic antiquity, and with survivals of co-ownership, or something even higher than co-ownership, in its possession of forest and waste. There was the GenossenschaJt-the company of brothers, linked by the right hand of fellowshIp, and knit together by a "pirit of fraternity, who pursued the common interest of their group (whether based on profe~sion, or occupation, or the simple foundation of voluntary association), and vindicated its common honour WIth a common ardour. The further you went back, the deeper seemed the idea and the closer the coheSIOn of this Genossemchqft, or (as we may call it, in a word which carrie~ the same medieval flavour) this system of Fellowship. It runs back to early tribalism; it has the very savour and warm intimacy of the tribe. 'GUilds, fraternities, comminalitIes, companies or brotherheads '*-such things are mdigenous in the Hercynian forest. There IS the comztatus described by T ..lcitus, whose members were so linked to their chief, and to one another, that they WIll die round him as one body in the stern hour of defeat. There is the trustzs domznzca of the Frankish kings, which is the comItatus in a courtly guise-the group of scholares and convzvae regzs, who have sworn common trmt and fealty to their sovereIgn. But the Lommon folk too have theIr fellowshIps; and' brotherheads' run through all grades of society. There is the kin-group or maegth of common blood; there is the religIOUS guild of common faith and charity; there is the workaday guild or 'craft' of co-workers. A brotherly clannishness breathes in the early German air, and still survives in the atmosphere of the German Middle Ages; and may not we Engli5h also say, remembering our own medieval guilds and communities, that there was a time when we too breathed a similar inspiration? Certainly It is an EnglIsh writer who loved to go bdck to the Middle Ages, William Morris, who has celebrated 'fellowship' most highly, in words that have often been quoted. 'Fellowship is heaven, and the lack of fellowship is hell; fellowship is life, and the lack of fellow~hip is death; and the deeds that ye do upon the earth, it is for fellow Words from a statute of Henry VIll, quoted by Maltland m the mtroduction to Polltual Theones qfthe MIddle Ages, p. XXIX.
lix
ship's sake that ye do them, and the life that is in it shall live on for ever, and each one of you part of it.' It is tempting to contrast this Teutonic passion for fellowship with the unassociative habit of the Latm. Maitland, paraphrasing GIerke, has spoken of Roman law as 'the law of an unassociative people'-absolutistic in Its conception of the State; mdividualistic 10 its treatment of the members of the State. Yet there if:> nothing which is more closely knit than the Latin family group: few peoples have shown a tougher cohesive fibre (especially in moments of crlSls) than the Romans of the Republic, or have exhibited a definite natIOnal genius more clearly and consciomly, and If guilds or colleges of merchants and drtisans were regulated, and transformed into admimstrative agencies, by the Roman Emperors, they had flourished before WIth tQlerable freedom under the Roman Republic. It was the genius of Latm imperialIsm, rather than the Latin gemus per se, which was hostIle to the free fellowship. But we have to admIt that the gemm of Latm imperialIsm had coloured and controlled the content of the Corpus ]urzs; and we mmt al~o confess that survIvals of old Teutonic comradeship, 10 the Gcmeznde or the Genossenschaft, could never move easily under the scheme of Roman law which Germany had so largely receIved about 1500 A.D., when, by an apparent paradox, the German pnnces were sImultaneously ejecting the Roman papacy by a movement of ReformatIOn, and mtroducing Roman law by a movement of ReceptIOn. (Princely self-interest, which profited by both movements, is a suffiCIent expldnation of the seeming paradox) Already, in the popular revolts which simmered in Germany after 1520, we find protests agamst the courts where Romanist lawyers adjudICated (the rotwelschen Gmchte), and demands for the abolItlOn of theIr 'ImpIOUS law', wluch bore hardly on townsman and peasant. * Then, for nearly three centunes, there was a long ,leep. The sleep was ended, and fellowship awoke again, m town and country, when the Romantic revolutIOn began. The Romantlc phl!o~ophy of the VolksgezJt could be extended by analogy to cover the local commumty and the fellowshIp of good comrades. If the Folk had a being and a realIty, why should not the local commUUlty, which was a microcosm of the Folk, have also being and reality! The fellowship too--was it not also a microcosm and a member of the people, and did it not deserve a legal recognition of Its true nature, which might be found by a return to the past and
Lagarde, L'Esprttpollttque de La Riforme, p.
103
Ix
a study of old Teutonic law? To lift the disguising veil of imperial Rome, and to find, in an inner shrine, the figures of truth-old German truth, and comradeship, and attendant honour-this became a sacred duty of the new philosophy. In the cause of liberty of assoCiation, there must be a return to the past, ancient realities must again be revl."aled. the being, thl:' mind, the person of the group-the local community, the fellow~hip-must be awakl."ned from their long slumber. Here we must pause to draw a distinction. It is one thmg to plead the cause of liberty of assoclatiom: it is another thing-or at any rate it is a further thing, and an added consideration-to plead that J.ssociations are bemg~ 01 minds or real persons. If we confine ourselves to the simple ground ofhberty of associatiOn, there is much that we shall admit, or rather claIm, even on that sImple ground. We can argue thdt liberty of ,1%OClation Wd~ impeded in Germany by the law ofImperiali:o-t Rome, especially in the expanded (or should we say tightened?) [arm m whIch it had coml:' to be interpreted by the Romanist lawyers, who tumetl the scattered dicta to be found ill Roman law into a body of doctnne that might sometime:o- have amazed Justmlan'~ advi'iers. We C,ll1 argue that the modern State should lay a cool and ea"y hand on the formation and action of a:o-soClations-not hmItmg theIr formation by mdking a specific concession necessary ill each case, and not tymg their action down within the bmlts of such conreSSlOn. We Cdn admit that our English State, 111 a casual and haphazard way, and largely owing to the growth of our 'equitable' law of trmts, which has enabled aSSOCiations to form thcm~elve~ and to act bchmd the screen of trustees, ha~ been generally easy-hdnded, though It has sometimes taken away wIth the right hand of the common law much of what It had conceded wIth the left hand of eqUlty. * We can equally admIt that the vanous States of Germany .lfIorded no such shelter; that a~~oClatlOm here had to face the inqulSltlve eye of government unsheltered by any screen, and that a general theorywluch ",auld protect liberty of assouation was a more urgent necessity 111 Germany than it has ever been in England. What was that general theory to be? Was it possible to find a theoretical basis for liberty of assoClatlOn, without recour~e to a
* The common law of conbplracy has long restram('d 'combmations' of workers, whlle at equity they might be holdmg funds, through their trustees, for the free promotion of their purposes.
lxi
doctrine of the real personality of groups? In imagination we may frame for ourselves an answer to the first of these questions, which will enable us also to answer the second, and to answer it in the affirmative. We may say that the modern State, which is based on the consent of the governed and respect.<; the liberty of individuals, IS bound by its very nature to acknowledge the liberty of individuals to associate with one another, provided that the purpose of such association is compatible with its own purpose and well-being as the general and comprehensive association of all individuals. We may go further, and we may say that the acknowledgment of liberty of association should be expressed in a general law of assoClations, which tramlates the prinClple into detail and formulates its consequences The historical State, as it has grown In tIme, has scattered Its rules about associations under different head<;, accordmg to the accidents of its growth: it may even have deposited dIscrepant rules in different branches of its lawGermanist rules which conflict with Romamst; rules of equity which diverge from the rules of common law. The modern State, a, it ~tands to-day, may well umfy these rules, and unify them in VIe\\ of its own developed character a<; a free association of free indIviduals * Such an answer to the problem of associatIOns may be accused of doctrmaire and individualIstIc liberabsm. Associations, it may be ~aid, are !>omething more than a liberty of individuals to as<;onate they are entitles m themselves, or at any rate they become .,uch entIties in the course of their development. To explain theIr freedom by the freedom ofindividuals to a!>sociate with one another i., to leave them without eIther body or ammatmg soul. it is to (h~.,olve their life into a lifeless nexus of contractual relations betwcrn the associated members, and to forget the pulsation of a common purpose which surges, as it were from above, into the BlInd and behaviour of the members of any true group. Whether or no we pin our own faith to such a VIew, we may recognise that it was natural to a German thmker m the latter half of the nineteenth century. 'You who bve to the west of the Rhine', he mIght say, 'with your democratic States whIch themselves seem to rest
'" 'Call we continue to leave our law of assonahons (to use a neutral word) dISJOinted and scattered as It now IS, so that for parts of It we must look under the law of agency, for parts under the law of trusts, for part under contract, for part under corporatIOns?' Professor Geldart, Inaugural Lecture on Legal Personalzty,
P7
DTSI
lxii
on a basis ofcontract, may talk ofgroups in general-not only your State, but also your churches and colleges and all sorts of unions-as the products of freedom of contract. We live to the east of the Rhine, and we live in our own German world. Our State is interpreted to us as a mind and a personality; and if we do not ascribe to our groups some mind and personality, where will they be, in the face of this great spiritual Leviathan? We have no protecting screen of trustees to shelter our groups; and the heat of the State is a fiery heat. Unless we make them real in the same sort of way as our State is interpreted as being real, they will hardly survive at all. Our German form of liberalism must be the vindication of the reality of the group: that is our one way of saving some sort of hberty, other than the liberty of the State to be what it likes and to do what it Will. For this reason we can claim the sympathy, and expect the support, of you who are western Liberals. Surely you will recognise that our groups must have real personalIty if they are to have any real liberty-any power of owning funds and pursuing policies and moving at large as free agents in the general world of action? ' The problem of liberty of association thus carries us forward, after all, mto the problem of the real personality of associations. Is an association, then, a 'reality', an 'organism', a 'personahty'? Reahty, we may reply, is a term of high metaphysics; and it lies beyond our scope. Organism is a term ofblO!ogy, or, at the most, of biological metaphor; but our business is with human society, and before we seek to walk by the uncertain and lunar light of biological metaphor, we must study the essential language which is proper to such society. Personahty is a term which belongs to that essential language It is a term of..EYchology, of ethics, and of law; and smce pohtical SCience is Vitally connected With those studIes, It is also a term of pohtical science. We may therefore address oun,elves to that term: we may st"ek to define its exact connotation; and m the hght of such defimtion we may then be able to suggest in what sense a Group--a State, a Church, a Trade Union, a college, a club--may properly be described as a person. There are three main senses in which we use the term 'personality'; and they correspond to the three studies of psychology, ethics and law. In the first place, there is psychological personality. By this we mean, primarily, the power or capacity of selfconsciousness which belongs to a sentient being aware of its own
lxiii
sensations. We also mean, secondarily, a power or capacity of selfdetermination, by considerations of pleasure and pain, which arises from such self-consciousness, and turns it into a higher activity than its primary activity of awareness. Psychological personality, by its nature, is resIdent in an individual being who is a focus and centre of sentiency. In the second place, there is moral personality. Here we come upon a term which has had two historic usages, and by whIch we are therefore apt to be perplexed. In its first and intrinsic usage, it signifies the power or capacity of a self-conscIOus and rational being to determine himself, not by temporary and particular considerations of pleasure and pain, but by permanent and universal considerations of a right way of conducting hfe which is common to all such beings. Moral personality, In tll1S sense, is built upon psychological personality; but it transcends that upon which it is built. Like psychological personality, It I~ resident in the individual bemg; but It is only reSIdent in him m so far as he recognises that he is not unique, but shares with his fellows a common life and common rules of lIfe. But besides this first and intrinsic usage, there has been another usage of the term , moral personality'. It has been used, by many legal writers, as a term oflaw. It has been used, without any ethicallmphcation, to ~H~m{y the legal power or capaCIty of a group, which, without bemg a 'natural' or 'physical' person, acts in the same 50rt of way ,g &llch a person in the sphere oflegal action Here the word moral I, med in much the same sense a, when we speak of a moral certamty or a moral vIctory. Wc need not quarrel WILh the usage, proVIded that we are clear that It IS peculIar, * and that it belongs exchmvely to the sphere of law, but in our own argument the term moral personality WIll be confined to what we have called its fip,t ,tnll mtnnsic usage. It WIll be a term of ethics, and of ethICS only 1t will denote the power or capaCIty of moral action 1'h('re 1& a third use of the term personality, which belongs to the &pherf" of law. Legal personahty, as dIstll1ct from psychological and ethICal personahty, is a power or capacity for legal action-a capality recognised by law (and only existmg when recognised by law) for onginatmg such action as belongs to the scheme of law. From thIS point of view the existence of legal personality not only presuptloses, as that of moral personalIty does, the presence of human society: it also presupposes the presence of an organised
>to Moral personalIty, in the intrinsic ethical sense, is essentially mdividual. Moral personality, m this legal sense, is essentially nOD-mdlVldual.
t-ll
lxiv
legal association. It is a thing bound up with rights; in fact it is a capacity for rights; and rights, in the full sense ofthe word, are only possible in such an association. Now rights may belong, and obviously do belong, to groups as well as to individuals. In the field of the organised legal association we must therefore assign legal personality to groups as well as to individuals, and here we have to admit that there are Group-persons as well as individual persons. Legal personahty differs from psychological and moral personality: it is not only resident in individual beings. it is also resident in any group of such beIngs winch serves, in the legal sphere, as a single entity. To discover the exact nature, or being, or essence, of this entity may be dIfficult; but the fact of its existence is obvious. The organised legal association itself-in other words, the State--is an entity which possesses and exercises rights, and to which we must therefore ascribe a legal personality. In brief, the State is a legal person, or, as the Germans say, a 'Subject'. Similarly many of the groups contained in the State are legal persons. They have a capacity for rights; and a capacity for rights means a legal personality. In the area of the organised legal association, and under the category of legal personahty which belongs to that area, we have thus to reckon WIth the fact that there are Group-persons as well as indIvidual persons. The association itself, as the great and inclusive group, i~ a Group-person: contained groups, in so far as they own and exercise nght'l, are group-persons; and both these 'dusters' or umstellatlOllS uf per~onalIty, the one great and the many lesser, exist by the side of the innumerable 'points' of individual personalIty. How are we to conceive the bemg and the essence of these Group-persons? The individual hIm<;elf, a~ a ' pomt ' of personalIty, IS simple. He is essentially one--a single psychological and moral person who also acts as a single legal person. But the 'cluster' or group is complex, or at any rate twofold. It is both 'its::lf' (whatever that may be) and all the individuals of which it is composed. How can it be both, at one and the same time? How does its unity stand related to its multiphcity? We may note some three different answers to this question which recur, like different and dissonant notes, in the pages of Gierke's argument. The first answer takes the form of the Fiction theory. According to this theory, the real fact behind the existence of a legal group is the fact of the many individuals of which it is com-
lxv
posed, and the unity of such a group is only a pretence or fiction. When the group acts as one, and enjoys rights as a single person, that person is only a persona ficta; and if it be asked who it is that pretends or feigns this person into its fictitious existence, the answer will be that the State, or, more exactly, the sovereign of the State, is the great and magnificent maker of fictions. The FictIOn theory may also be termed the Concession theory; or at any rate we may say that it leads, by a natural descent, to the idea that the unity of a legal group is due to an act of concession by the authority of the State. We may also note a further variant of the FIctIon theory. This is the theory of the' Moral' person, which has already been mentioned incIdentally. According to this theory a group which acts as one, and enjoys rights as a single person, should properly be described as a persona moratzs. But it is far from clear that the change of adjective, fromfirta to morahs, imports any change of seme, or gIves us any new light. The adjective' moral' is only used in a negative sense, as the antithesis of' natural' or 'physical'. It only wggests that a legal group is something which is somehow different from the natural and phySIcal fact of a corporeal human being. And the danger of the adjective is twofold. On the one hand It blurs the old (though pOSSIbly erroneous) distinction bctween real ,md fil tltiom pCI ';ons by the suggestion of a dIm mterlunar person which is neither. On the other hand It encourages a confusion of thought which turns the' moral person' mto somethmg ethical and good; and Rousseau, lU rus theory of the personne morale who~e general WIll is always right, see~ to fall lUtO this confusion. A second answer to our problem IS provided by the Collective theory According to tlus theory we need not concern ourselves to dIscover the unity of a Group-per~on, whether m the pretence of a pmona ficia or in the semi-pretence of a persona moralts. Such a thmg as a ~ingle Group-person does not exist at all, even in a fictItIOUS or semi-fictItious form. The one fact is a number of persom; and tlus number of persons (let us say, exempttgratla, 100) are not united in any genuine umty when they act as a group-they are ~imply collected in an aggregate, as when we collect arIthmetIcal figures in a sum, or algebraical symbols m a bracket. A group of 100 is I + I + I, until we reach the sum 100. The legal instrument of manipulatIon, for the purpose of collecting a number of mdividuals in a single aggregate, is contract. It is contract which unites the first indIvidual to the second, the second to the third, and so on to the hundredth indIVIdual. We may therefore
1xvi
call this theory a theory of the Collective contract, or again we may call it, as Maitland has done, in the language of mathematical metaphor, the Bracket theory. There is a variant of this theory which at first sight seems not merely a variant, but something totally different, and yet, in realIty, rests on the same fundamental basis. This is what Gierke calls the Representative theory. According to this theory a group of 100 persons is something more than 100 persons collected together by contract. I t is really 99 represented persons plus a hundredth person who is their reprellentathe, and who has been appointed to his position by the act and deed of each of the 99. This representative person carries in himself the persons of the 99. in his person they become one person; and unity thus supervenes, or seems to supervene, on multiplicity. In realIty, however, the Representative theory is simply the Collective theory taken at two bites. Contract, and addition of units achieved by process of contract, is still its bd.si.,. The 99 first contract, by one sort of contract, with one another; and they then contract, by another sort, with a hundredth person. The whole group of 100 persons remains a contractual group; and although Hobbes, the great apostle of this Representative theory, may argue that his Leviathan is a creative essence of umty, transcending the sphere of contract, Leviathan is himself, after all, included in a contractual bracket, and it is this including bracket of contract which really creates such unity as Leviathan himself appears, but only app('ars, to provide. We come to the thIrd of the theories which seek to explain the inner core of legal Group-persons. This is Gierke's own theorythe theory of the reality of the Group-person. When we seek to discover what lies behind the legal Group-person, and constitutes its inner core, we must not talk of' fictions' which hover in a shadowy and unreal existence above a number of real indiVIduals; we must not talk of 'collections' or 'brackets' or contractual nets, flung over so many individuals to bind them one to another in the bonds of an impersonal nexus. We must purge our eyes to see something which is real and not fictitious--something which has living personality, and is not an impersonal nexus. We must believe that there really exists, in the nature of things itself, such a thing as a real Group-person, with a real being or essence which is the same in kind as that of the individuals who are its members. 'Itself can will, itself can act', in the same way that they will and act. When 100 persons unite to form a group which wills and acts as one, we
lxvii
must say that there is a real new person present-the hundred and first person, the super-person-in which these 100 individuals live and have their being, at the same time that they also continue to live and have their being as so many separate persons. Behind the legal Group-person there is therefore a real Group-being, just as there is a real individual human being behind the individual legal person. Legal group-personality is the shadow cast by real group-personality: it is the reflection of reality in the mirror of law The law does not write fiction, and it does not do sums in addition, when it introduces its legal Group-persons; it simply pamts, to the best of its power, a legal portrait ofa real being. This was tht' view which Gierke sought to express in his rectorial address of 1902 on the 'Nature of Human Groups'. It is best expressed in hi~ own words; and we may therefore quote some essential paragraphs from that address. * 'Do social life-unities actually exist? No direct proof of their eXI~tence can be given; but it is equally impossible to prove directly the eXIstence of any individual lIfe-unity. We can furnish, however, an indirect argument for the eXIstence of such unities by pOlllting- to their effect" The cogency of such a method of argument Will not be the same for all. Its weight will depend in part on our general attitude to life. But even the foundations of scientific invc~tIgatlOn which seem to be fixed most firmly are only, in the last resort, well-grounded hypotheses. 'Primarily, it is our external experience which impels us to assume the eXl~tcnce of active and effective group-unitIes. We find from our observation of the ~ocial processes among which our life I~ spent-and, above all, from any profound study of the history of humamty-that nations and other communities determme by their J.ctiVltIe" the balance of forces in our world, and produce our matenal and spIritual civilisation. Now just because commumtIes are composed of indIviduals, we must admit that it is in individuals, and through indiVIduals, that these results are produced. But since the contributions of individuals are mvolved in the social nexus in which they live and ffiOYe-, we must equally acknowledge that individuals are affected by bodily and mental influences which arise from the fact of their connection. We 01>serve, -It is true, that certain outstanding individuals intervene creatively, and modify society by something unique which is derived from them and them only. But an achievement of this
op. at. pp.
19-22.
Lxviii
nature is only possible when the community, at the very least, co-operates receptively, by appropriating as its own the individual element which has been imported into it. I t is possible to hold very different opmlOns about the extent to which the active force, which has been operative in great transformatiom of the common life, proceeds from groups or from individuals. But whether we prostrate ourselve!o in a one-sided worship of" Heroes", or abandon ourselves to an equally one-sIded "collective" view of hi~tory, we can never be blinu to the fact that there is a constant interaction between the two factors. In any case, therefore, the conununity is something active and effective. Now the effects which we are obliged to ascribe to the community are so constituted, that they cannot be explamed as the result of a mere aggregation of individual elements. They cannot be produced separately by separate human beings, m such a way that the total contnbution can be regarded as a sum which is silmlar in kmd to the partial contributions, and only greater in degree. they are sui genens. We have only to consider phenomena such as the organisation of power, or law, or the SOCIal code (Szlte) , or national economy (Volkswzrthschajt), or language, III order to realIse thIS fact at once. If this is true of the effects, then it follows that the community which produces them must also be something different from the sum of the individuals who constItute it. It must be a Whole, with a lIfe-unity which IS itself super-individual We do not, therefore, transcend in any way the limits of our external experience, if we argue from the facts of the history of civilisation to the existence of real group-unities. The abstract conceptIOn of real group-unity, which we attain by emphasising the efficient cause we have thus discovered, is a conception wInch we are justified in applying, as an axiomatic SCientific conception, in the whole range of the social sciences. , Our internal experience corroborates the truth which we learn from external expenence. We discover the reahty of the community in our own inner consciousness, as well as in the world of external fact. The incorporation of our Ego in a l>oCIal Being of a higher order is a matter of our own inner life. We are conscious of our self as a being enclosed in itself; but we are also conscious of our self as a part of a living whole which is operative in us. If we abstract our membership of our particular nation and State, our rehgious community and Church, our family and a variety of other groups and associations, we cannot recognise ourselves in the
1xix
pitiable residue. But if we reflect on all these factors, we see that there is here no question of merely external bonds and fetters by which we are chained. It is a matter of psychical connections which extend down into our inmost being, and constitute integral parts of our spiritual eXistence. We feel that a part of the impulses whIch determine our activity proceed~ from the communitIe~ by which we are permeated. We are conscious that we share in a life of community. If we denve from our mternal expenence a certamty of the reality of our Ego, thiS certainty is not limited to the fM t of our being an individuallife-umty . it also extends to the fact of our being a part-unity withm the higher life-unities. It is true that we cannot discover these higher life-unitIes themselves within our consciousness. The Whole cannot be within us, because we are only parts of the Whole We can only learn directly from our internal experience the simple fact that group-unities exist: we Ulnnot learn from it directly anything about theIr character. IndIrectly, however, we can deduce, from the effects of communities upon us, the conclusion that ~oClal Wholes are of a corporealspmtual nature. We can do so became these effects consist of ~plfltual processes which are corporeally mediated. This is the rea,on why we speak, not only of social" bodIes" and their" member, ", but also of the folk-wul, folk-feeling, folk-opinion and folky.lll--of class-spirit (Standesgmt), I'spnt de corps, famlly-feelmg and the lIkc. We use these tcrms to denote psychical forces with an active lIfe and a reality which are not least present to our conSClOusne~s in the very moment when, callmg our individualIty into play, we rise m revolt against them. In our ordinary daily life any dfort of attentive introspectIOn will suffice to convince us of tlw eXistence of these spIntual forces. But there are times when' the ~pint of the community reveals it~elf to us with an elemental puwer, in an almost vlSlble shape, filling and mastering our inward bemg to such an extent that we are hardly any longer conscious of our mdivIdual existence, as such. Here, in BerlIn, in the Unter den Linden, I lived through such an hour of consecration on the 15th ofJuly, in the year 1870.'*
'" On July 13th, WIlham I of Prussia had mtervlewed the French envoy, Benedetti, at Ems. He sent a telegram descnbmg the events of the 13th to BIsma.ck BIsmarck publIshed the telegram, In a condensed form which he had prepared for the press. The effect of the publIcation on German opInion was In~tantaneous, and produced a profound emotiOn It I~ thIS emotion whlch GlCrke desCribes. It IS also thIS emotion wInch serves for hIm as eVidence of the e"\lstence of a spmtual realIty, or personalIty, which transcends the indlvidual.
lxx
We have now traversed three territories in our study ofthe different theories of the Group-person-the territory of the Fiction; the territory ofthe contractual Collection; the territory of Real Grouppersonality. Shall we setde down in any of the three, or may we explore still further? Gierke has spoken, in a passage of some irony, of 'the eye resolved upon "reality" which refuses to recognise, in the living and permanent unity of the existence of a People, anything more than an unsubstantial shadow'.'" But perhaps the eye whidl is resolved upon reality-which seeks, in other words, to face tht" really perceived facts of actual life, and to square its theories with these facts-may discover something which \ is more than an unsubstantial shadow, and yet less than real Group'i personality; something above a fiction or a collection, and yet less , than a super-person. If we seek to explore new territory in this spirit, we may begin our argument from a distmction which has already been assumed in a prl"VIOW' pa%age--the distinction between SOCIety and the State. A Society is a commumry of human beings who seek to fulfil the gent>ral purposes of human life in all its aspects. A State IS an aSSOCIatIOn of the same beings, in legal form, for the specific purpose of regulating human life, in the sphere of external actIOn, by rules designed to secure the minimum of friction between its members and the maximum of their development. The State is a sphere of legal action: we may even call it the scene of a legal drama (a BpO:lJcr, mvolving a common and concerted performance of parts). It IS a place of legal actors, all of whom playa role, and each of whom may be called a dramatzs persona. There is a sense in which we may say that all the State is a stage, and all the agents within it are actors In this sense it may be called artificial, m.e the stage Itself (and yet, hke the stage, it holds a mirror up to nature); and in the same sense those who walk across its boards may be called artIficial persons. In order to understand this sense, we must examine the term persona. In its original meaning, the word was a term of the theatre. It signified a mask, appropriate to the part performed by him, which was worn by an actor in a play. The usage of the theatre was carried into the law. The agents who played an active part under its scheme, or possessed a capaCIty for playing such a part, were regarded as having personae, and came, by a natural ..ransference, to be called personae themselves. Now just as the parts in a play are created and assigned by the dramatist and the pro- Cf. Infra, p. 47.
!xxi
ducer, so we may hold that personae in law are created and assigned by similar agencies-let us say, for the moment, by the legislator and the judge. And just as there is an element of feigning, or even of artificiality, about the parts of a play, so there is also an element of feigning, or even of artificiality, about personae in law. They are, in a sense, juridical creations, or artifices, or fictions. The term pmona ficta is not altogether wrong (though, as we shall see, it is far from being the whole of the truth), if we apply it to all forms of legal personality-not only to the legal person ofthe group, but also to the legal person of the individual. Pufendorfheld this doctrine, as we may see from the account which Gierke gives of his views. * One of his disciples, Titius, puts the matter simply, when he says that jurisprudence deals almost exclusively with 'moral persons' (that is to say, artificial persons), whether they are singular or compound-in other words, whether they are individuals or groups. It is not the natural Ego which enters a court onaw. It is a nght-and-duty-beanng person, created by the law, which appear~ before the law. Legal personality, therefore, is a mask, or as Pufendorf says a modus, which is created by an agency, and attached by that agency to an object Two questions thus arise. What is the creatmg and attaching agency, and by what processes does it act? What are the objects to which the mask is attached? In general terms, the creating agency which attaches personae to ( objects (or, as a German writer would say, to 'Subjects ') IS the) whole legal associatlOn. Every person who is a person in the eye of thclaw is made such, in the last resort, by that general body. In actual detaIl, the process of recogmtlOn will proceed along various channels. Normally, the regular process will be that oflegislation, accompanied and applied by judicial interpretation. But the Judge will not necessarily stop at an exact interpretatIOn of the mere letter of existing law. He may recognise legal personality (at ,my rate when he is dealing with the matter of group-personalIty) on the ground of analogy, aSSIgning pmonae to bodIes whIch are in an analogous pOSItIOn to those already recognised under existing law. He may give recogmtion, again, on the ground of custom and usage, arguing, like Julianus m the Dzgest, that invetera1a consuetudo pro lege non !mmerzto custodtlur, and acting on the pnnciple that where a group has been allowed by custom to act as a legal person, it may properly be treated as such by law. One
['!/ra,
pp.
118- 11 9.
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State will differ from another in the degree of liberality with which the gift oflegal personality is made. States will also differ (when the question IS one of Group~personality)in the number ofmasks or personae which they keep, as it were, in stock. One State may only be able to provide the mask oHull corporate personality. It may only keep in stock the persona of the universztas; and since that mask is hard to fit, and not suited for all, such a State may be chary in giving it. Another State may be in the position of a Clarkson's shop: it may be a general repertory of masks; and here Grouppersons may abound because there are different forms which they are able to assume The English State, we may say, has been a State of thIs latter ,haracter. It has not only supplied the mask of the Corporatlon: it has also furnished the mask (we may even call it, wIth Maitland, the 'screen', because it conceals a group so thoroughly) of the Trust and it!> body of trustees. In Germany, when Gierke began to write, the State was less richly equipped: it was thus more chary in giving; and it was also more rigorous in superintendmg what it had given. We have dealt with the giving of masks: we have now to deal with the objects to which they are given. So far, we may seem to have simply adopted the Conce'ision theory, whiLh explains Group personahty as the grant of the State, and to have made it even worse by making it cover mdividual persons as well as the persons of groups. But just as we have argued that there is some truth, though by no means all, in the FIctIon theory, so we may aho argue that there IS some truth (though again It 15 not the whole of the truth) in the cognate theory of Concession. There is a !>ense in which all legal personalIty is a concession made by the State. But having said this we mu!>t instantly ask ourselves whether the State is free to choose, at its own discretion, the objects to which it concedes that personality; or whether it is not rather bound, by its own very nature, to concede such personality to certain objects, in virtue of their nature. Mter all, If masks are to fit and be worn and used, there must be appropriate objects behind them. What is the nature of these objects? And which of them are entitled, in virtue of their proper nature, to claim the award of legal personality? Historically the State, in dealing with this problem, would seem to have acted with no little arbitrariness. It has been chary of giving legal personality to individuals, as well as to groups. For many centuries slaves had no legal personality. For many centuries
lxxiii
women had an inferior grade of personality. Even to-day the State seems to pick and choose, within certain limits, the persons whom it consents to vest with full legal personality. In France the penalty of' civil death' may deprive an offender of civil rights, and prevent him from being a person at all in the eye of the law. In other countries the members of a racial minority may be visited with partial deprivation of rights and the partial loss of legal personality. Ifindividuals have thus been treated with some latitude ofdIscretion, we can hardly be astonished if the State has claimed an even greater latitude in the award of legal personality to groups. Far from granting such personality to all groups, it has often been tempted to limit It to a few. It has judged the issue of giving or withholdmg the grant not by the inherent nature or the just claims of the group, but by the prospect of advantage or menace to itself which would follow on the giving or the withholdmg. But if history seems to show that the State has exercised a power of selection in the award of legal per~onahty, we need not conclude that the power of selection has been guided by mere discretion, or by mere calculations of self-interest. There has been a principle of selectIOn, determmed by the very nature of the State; and this principle ha<; been progressively clanfled and extended. The State, we have said, is by lts nature an a<'sociation designed to secure the mimmum of friction, and the maXimum of development, among all the moral personalitIes which are members of that association. From thh point ofvlew, It wIll necessanly be guided by a definite pnnCIple in seleL ring the recipIents of the guaranteed capacity of action withm the scheme of its life which constitutes legal per~onahty. Primarily, it will award legal personahty to every indiVIdual who Po<,5csses moral personality, in the primary and mtnnsic sense of that word. Secondly, it will award legal personahty to every organismg idea, every common purpose, WIDch per~ manently unites a number of mdividuals as the common content of theIr minds and the common intentIOn of their wills, provided that such idea and purpose are compatible, or to the extent that they are compatible, wIth the free action and development of all members of the State. In the first case, the recipient of legal personality is the individual moral person. In the second, it is not a moral person who is vested with a guaranteed capacity of legal action. Neither is it, strictly speaking, a number of such persons. It is a common and continuing purpose, continuously entertained by a continuing body of persons, which owns the capacity and
lxxiv
constitutes the legal person. The' person' which owns the property of an Oxford or Cambridge college is neither the founder, now gone, nor the body of his living successors. It is the purpose which animated the founder and which continues (it may be, as we shall see, in a new and modified form) to animate his successors. In order to develop and explain this view, it will be well to go back to what has already been said about the different kinds of personality (psychological, moral and legal), and to show the bearing of that distinction upon our present argument. Psychological personality, we have said, is a spring of self-consciousness and a fountain of self-determinatIon by immediate consIderations of sense. In the words of Leibniz, which really apply to this species of personality, 'Persona est cujus abqua voluntas est, seu CUJUS datur cogltatzo, affectus, voluptas, dolor'. * Such personality is reSident only in an individual. He alone is a spring of self-consciousness and a fountain of self-determination. No group has personality in this sense; and if it is this personality which is 'real' personality, no group is a 'real' person. But there is also moral personality. This is the personahty of a moral agent, who acts under a self-Imposed moral rule, and who is morally responSIble for any offenGe against that rule. This personality, again, IS resident only in an mdividual. '1\ group is not a moral being m the moral sphere. It is a number of mdividual moral beings, all acting together for a purpm.e. That purposc may well be a factor, and a factor of profound influence, m the moral sphere; but the group itself IS not a moral person, actmg as such in the moral sphere. From the moral point of view we may again say what we said from the psychological-' no group has personality in thu sense, and if it be thIS personality which IS "real ,personality, no group is a "real" person'. This may seem a hard saying, and a saying whIch contradicts the life and speech of mankind. We speak of the mumficence of groups: we find one group recording its gratitude {or the munificence of another; and are not munificence, and its sister gratitude, moral attributes, which presuppose the presence of a moral personality?t Again, as we award praise, so we also award blame: we award it, as Maitland has said, 'to group-units of all sotLS and
'" Quoted in W. Wallace, Lectures and Ess'!Ys, p. 273. t W. M. Geldart, Legal PersoruJig, p. 8.
!xxv
kinds'; we may even speak of' national sin'. * Do not our awards of praise and blame imply that we attach moral responsibility to groups, and that we treat them as responsible persons in the usual sense of the word? It is difficult to give any brief answer to such searching questions; but this may be said. Responsibility is a word which is used both in a legal and a moral sense. We have to distinguish carefully between the two senses. Legal responsibility may be fully and absolutely incurred by all groups which act as legal persons-as fully and as absolutely as it is incurred by an mdividuallegal person. It is true that it is not always fully incurred by all such groups under our English system of law. The State itself, when it act'l as a legal person, Incurs only a modified responsibilIty if it breaks its contracts, and httle if any responsibility If It inflIcts a tort or injury. But apart from such exceptions, which it is difficult to defend, we may lay it down that all groups, when actmg as legal persons, incur fuillegal responsibility. It is a very dIfl'erent matter to say that a group incurs, or ever can incur, a moral responsibility. There is no moral being of the group wInch can be visited with our prai~e or blame. There is no moral personality of the group which does good, or is responsible for evil. But tIllS IS not to say that there is no moral responsibIlity anywhere. On the contrary, when the actIOn of a group runs contrary to a re(o~m')ed moral rule, there will be a large area of such responsiblhty. Those who adVIsed and promoted the actiOn will be morally responsIble. Those who supported the action will be morally rc'ponslblc. Even tho'lc who accepted the actIOn, as consenting IMI tic" will also be morally responsible. t Moral responsibility b.lls only on the individual moral agent. But it falls on hIm ill full med~ure, alIke when he IS acting with others and when he 15 acting alone. It IS a dangerous doctnne which would avert It from him, and make it fall on any transcendcnt being. From the personality whIch is psychologIcal, and the personality whi( h is moral, we now turn to that which is legal. This is a personalIty of a different order. Psychological personalIty IS a datum of immedIate perception. Moral personalIty is a datum of moral conSCIOusness. Legal personality IS ~omething which is not a datum. It i5 a mental construction, or junstic creatJ.on. It has, as we have seen,a certain character of artificialIty; and it has this character both when it is ascribed, as it is in the vast majority of cases, to an
t cr.
Introduction to Poldfcal TheOTleS of the .~Lddle Ages, pp. xl-xli. Bosanquet, PhtlosophKal ThRJry of the State, pp. 332 ff.
lxxvi
individual, and when it is ascribed, as it is in other cases l to the purpose in pursuing which a number of individuals are joined. We cannot say that legal personality in the one sort of case is an artifice, and in the other not. There is no difference oflcind between themthough there may be a difference of degree, and one sort of case may present more of artifice than the other. But we must not unduly labour the notion of artifice. Legal personality is a mental construction; but it is not therefore a fiction. It is a juristic creation - a legally created capacity of sustaining rights and duties, which are also legal creations themselves; but it does not follow that it is not something real. In one sense it is artificial, as all things thought into bemg by us are artIficial. In another and deeper sense it is real, as all things thought into permanent being by m are real. If we ascribe reality to the general body of law, which itself has been thought and willed into permanent bemg by the mind of man, we must equally ascribe it to the essential elements of law, which have been similarly thought and willed mto permanent being by the same agency. Legal personality is thus a mental constructIon-but a mental construction which is a fact in our human world, and a real part of our human experience. Being a mental construction, and not an Immediate datum of perceptIOn or conSCiousness, it can be imputed by the mind not only to the visible being of an individual, but also to the invi~ible being of a purpose in the pursuit of which a body of indIviduals arc permanently united. Such a purpose may have property attached to it, and own that property. It may have duties attached to It, and owe those dutie~; it may be a party to legal action in order to vindicate its property or to suffer vindication of Its dutie~. In all these ways it acts as a persona JUriS, and for all these reasons we may call it a persona JUTts. The essence of the unity of a group is it~ expres~ed purpose; and legal personality belongs to that essence. With the individual it is different. The essence of hIS life-umty is a continuing spring or power of purpose; and that is the essence to which his legal personality belongs. It may be objected that paradox is running to an extreme when an impersonal purpose IS vested with personality. But the purpose is not impersonal. When we say that a purpose may be a legal person, a 'Subject' or owner of rights, we are not saying that the impersonal may put on personality. We are only saying that a purpose which is continuously entertained by many individual persons may enter the legal sphere as a bearer of legal rights and
lxxvii
duties in the same way, and on the same sort of ground, as individuals do. But the purpose must always be entertained by living minds. Otherwise it will be a dead purpose; and a dead purpose is incapable of bearing anything, or of doing anything whatsoever. The Fellows of a College must always continue to entertain the purpose of a college if that purpose is to be a bearer of rights and duties according to the intention of the founder Of course it is tempting to say that the Fellows themselves, as a body, are the real bearer. But not to speak of the ambiguity of the word' body' (does It mean a collection of indIviduals, or something which is somehow more than a collection of indlViduals?) , we should have to qualify thIS saying at once by addmg that the Fellows only constitute a ~l1lglc person, and act as a single bearer of rights and duties, with ,1 part of themselves-that is to say, with the part which entertains and serves the purpose of the College. A person so constituted "'mId be a somewhat abstract person, for It would have to be (onstituted by abstracting part of the- personality of each Fellow and then adding the parts together in some way which was more than f>imple addItion or mere collecllon. It is rcally SImpler, and It expresses the truth more exactly, to say that the essence of the l :ollege consists, and the legal personality of the College resides, in Its purpose. The purpose is something total, and something permanent; the Fellows who entertain the purpose only entertain it partially, as one among other guests which are present in their IDmds, and they only entertam it temporanly, during the days of theIr fellowship. Upon this view the life-umty of a group, which may continue from century to century, will involve no idea of an unaging real per~on which lives that continuous life: it will simply mvolve the Idea of a real purpose, or rather a common purpose, which continuously moves and ammates the members of a group, because It is continuously entertained by their minds. Upon such a view, again, we shall not speak of orgamsms; we shall speak of organisatIOns of men, created and sustained by organismg ideas, and contmuing to survive so long as these ideas survive. * But ideas, if they are to live, must also change, since change is part of life. Here we encounter a new difficulty, and enter upon a new stage of our
GIerke often confronts the reader WIth the dilemma, 'Organism or mechanIsm-whIch will you take?' But is there not a tertium q/lld-the organisatIon of men created and sustained by a common human purpose?
BTSI
lxxviii
. argument. Not only must the organising idea, or common purpose, which constitutes the unity of a group, be entertained by living minds 111 order that it may live at all: it must also be capable of being modified and developed by those minds, in order that it may live and grow. The purpose, in the process of time, WIll necessarily enter into new conjunctures of circumstance; and unless there is room and space for Its bCl11g varied to meet such conjunctures, it may he lIke a heavy encumbrance un the general life of the present, and it may even strain to breaking-point the allegiance of many of its own parucular votaries. The Scottish Church case, finally decided by the House of Lords in 1904, has often been cited in illustratlOn of thIS danger. Here a purpose of the Free Church of Scotland, formulated some sixty years before, was decided to be fundamental and unalterable under the constitution of that Church, and this decision, so long as it stood, not only encumbered the general movement of the time towards the union of the Free Church with another of the churche<> of Scotland on the basis of a developmg purpose, but it also splIt the members of thc Free Church into opposmg camps-the camp of the few who clung to the original purpose formulated in 1843, and the camp of the many who were anxIOUS to see a development of that purpose. Much was saId, in this connectIOn, against 'impersonal Immutable purpose'; much was said m favour of the' personal h\'mg group', competent by Its nature, as a real personalIty WIth a real power of purpose4- to develop freely accordmg to the needs ofIt<; lIfe. But there IS another and sImpler moral whIch we may draw from the ca<;e Thc real danger is not the conceptIOn of purpmc. It IS the conception of origmal purpose as fundamental and mvariable. The danger partly proceeds from courts oflaw, wluch are naturally prone, and indeed are bound, to attach great wCIght to any ongmal formulatIOn of purpose; but it proceeds far more from the original founders and formulators, who WIsh to make the purpose, as they see lt, permanently valId. There IS a passion of men, m makmg wills, to tie up the future. There is a similar passion of founders, in formulating purposes, to do the like. * Wise founders, desiring that thc purpose
II< 'A voluntary society may so fIx its articles of faith and conditIons of government as to depnve itself of any power of development or change. ThiS has been done by the Free Church of Scotland.... It has also been done more preCIsely by the Prirmtlve Wesleyan MethodIst SOCiety of Ireland, which has put itS doctnne, dlSClpline and rules mto an Act of Parllament, WIth a provlSl0n that the dlSclplme and rules may be altered m a manner prescribed by the Act, but that the doctnne is not to be altered' (Anson, Law and Custom of the ComtJtutlon,
lXXlX
they formulate shall live, and recognising that change is part of life, will leave latitude of variation to their successors, who continue to entertain and serve the purpose. Similarly the Courts, in interpreting purpose, may well allow some latitude of development, even If it be not expressly warranted in the original deed. We can hardly expect the State to prohibIt the rigid definition of purpose ab imtlO. But the State always stands in reserve to provIde a remedy for rigidity, after the event, by its power of legislation. This was the way in which Parliament acted, in its final solution of the Scottish Church case, by the Churches (Scotland) Act of 195 We are thus brought to consider, once morc, the general relation of the State to the purposes whIch constitute the being and the unity of groups, and serve as legal persons ownmg rights and owing dutIes. We have argued that purposes must necessarily be entertained by individual minds which accept and serve them. We have .lr~ued that they must necessarIly be "anable, In order to suit new conJunctures of C1rcum~tance, by the minds which are pledged to their support and think they can support them best by adapting them to new needs We have now to add that the mmds of all the members of the general community, represented In and by the operative critiCIsm of the State, are always playing upon the purpo~es of groups and the working of thee,e purposes. No common purpose is accepted, and awarded a legal positlOn and a legal personality, sHorly because it IS a common purpme A common purpose must be weIghed and measured, and found to possess some degree of qU<lhty. There are some common purpmc'>, such as that of the M.lfia, whH'h no State Wlll tolerate Each common purpose must be (ompared with other common purposc", and all must be capable of adJuslment to one another and of hving amicably side by side. All partIal common purpmes must b~ set alongside the general common purpose of the State, ;lnd mmt be compatible with the attainment of that sovcreign common purpose. ThIS is not to say that the State should, or can, exercise a ubiquitous supervision of groups. It is only to say that it can never abrogate a duty of constructive criticism and sympathetic adjustment. We may well pray
Vol II, ~ II, v). On thIS baSIS we may say that the SCOU1l>h Churcll case does not demonstrate the need for a conception of the real personahty of the group. It rather demonstrates th{" weakness of a group which tnes to prevent the purpose by which It is constituted from being capable of growth with the growth of the mmds of Its members.
(-2
Ixxx
that groups should abound, each dedicated to its own specific common purpose. The life of man is manifold; and the specific group, dedicated to specific purpose, is an essential element in the development of man's variety. The one State which is also one race, one Church, one party, one economic organisation, is a lonely wilderness. But a State which was a home of real Group-persons, if such a State could be, would also have its defects. It would be far from being a wilderness; but it might well be a chaos. If we desire to e.cape both wilderness and chaos, we must leave room both for the free clustering of groups round freely formed purposes, and for the critiCl~m and adjustment of such purposes by the State. The vie\'\' which has thus been suggested in regard to the inner core of the legal personality of group~ is based neither on the ideas of FIction and Concession, nor on the idea of a CollectIOn or Bracket of indIviduals, nor on the idea of the Real Personality of the Group. On the other hand It contains elements of all these ideas, and It may help to explain how all these ideas have come to be held. We have allowed some element of fiction, and some element of concession by the State, 10 the legal personality ascribed to the purpose of a group; but we have also allowed the same elements in the legal personality ascribed to the mdividual. We have admitted that a sum or collectIOn of individuals must entertain the common purpose, and must also have the power of developing that purpose; but we have also admitted that the common purpose is a permanent unity which transcends the collection ofindlViduals who are united in Its service. We have denied that there is a real Group-person, in any way parallel to a real indiVIdual person, behind the legal personality of a group; but WI" have argued that a real purpose, analogous to the individual's real power of purpose, must underlie such personality-and in that sense we too may claim to be ' Realists'. At the end of our argument we are left with a legal world m which there move two sorts of legal persons-the individual legal person, with a legal personality based on the power of purpose which constitutes the essence of an individual; and the group legal person, with a legal personality based on the permanent purpose which constitutes the essence of a group. The two sorts of person differ, in as far as the basis of the one is a power of indeterminate purpose, and the basis of the other is a declared and determinate purpose. But it is not an absolute difference, and both sorts of persons can move easily in the same world. The power of
lxxxi
indeterminate purpose in the individual is limited by his previous declarations of purpose; and the determinate purpose of the group must always, as we have seen, be compatible with its further growth and development. All this might seem mere l~omachy, a contention about words and a tilting at windmills, if it were not the case that the theory of the real personality of groups ran outside the domam of doctrine, and spilled into the general life and thought of the world outside. So far as Gierke's own theory stands, considered III itself, it is as If he had said to the world of scholars, 'Eureka: I have found the hIdden reality which lIes behind this puzzling Group-person of the law; and the reality is that of a real pe-rson, who is real in the same sort of way as you and I are real'. That saying, in itself, is a matter of hIgh doctrine: It IS a philO'>ophical explanation of a legal fact, mtended for those who study the philosophy oflaw. But the world outsIde, hearing the reverberatiom of legal philosophy, adopts the term 'real Group-personahty' into its own language; It give~ it a new and posItive sense; and it proceeds to draw practIcal conclu'IOns from the positIve sense which it gives to the term. Adapting to our purposes a ~aying of Luther, we may say that' the doctrIne' (omes to the ordmary man gho~tly' (and we may also add, for rea~om which we shall presently sec, that It come~ to him qualifJed), 'and he makes It fleshly' In other words, men apply the umception of real G-roup-personahty to their own particular group -thclr Church, theIr profession, Trade U man, whatever the society be that engages theIr ImmedIate ardour; and then, feeling that real persons mu~t enjoy rights, but forgettmg (or tending to forget) that they mmt also owe obhgations, they become the prophets of the nght" and not only of the rIghts, but also of the autonomy, and C'v('n, in the last resort, of the sovereIgnty, of their own partIcular group. ThIS is the way of syndicalism; and GIerke's doctrine-at any rate In our own country, and since MaItland first ga\'e It vogue m Igoo--has been drawn into that way. We must not be pragmatlcal, nor judge the truth of a doctrine by the uses to whIch it is 5ub~equently put. But at any rate we may examine the company which it keeps, and if we are already inclmed to questIon Its truth on fundamental and essential grounds, we may perhaps find that the re!iults of such exammatron serve to corroborate our doubts. SyndIcalIsm is a theory of French parentage. In its more extreme form, it is a theory which would eliminate the State in favour of groups--economic groups--on the ground that economic
lxxxii
groups are anterior, and should be superior, to political organisation, and that droit Iconomzque is similarly anterior, and should be similarly superior, to drozt pohttque. In its more moderate form, it IS a theory of condomznzum between the State and groups, on the basis of some system of ' plural' sovereignty which will divide its attributes between both Neither in its more extreme norin its more moderate form has it found acceptance in England. But there has been some approximation to it; and we find such an approximation in the writings of Dr Figgis, and particularly perhaps in his Churches in the Modern State, published in 1913. Here the authorIty of Gierke is invoked to support a line of theory which runs counter to the idea of the unitary State and the unity of its sovereIgnty. Starting from a deep convi( tion of the spiritual independence of the Church, Dr Figgis proceeds to a gcnCTal doctrine of the 'inherent, self-developing hfe' of all sOCIeties He regards the general community as 'a vast luerarchy of interrelated societIes, each alive, each personal'; and he seeks to vindIcate for each of these societies 'the necessary independence of a self-developing pcrsonahty'. 'The Church is foremost in hIs thought; but he seeks to lInk the causc of the Church wIth the caU1>C of groups in general-groups cconomIC and national as well as ecclesiastIcal. He rejects what he calls' the old conception of the positIon of corporate groups in the State', because in his view It IS false to the general facts of the world. 'It makes the world consist of a mass of self-existmg individuals on the one hand and an absolute State on the other; whereas It IS perfectly plam to anybody who truly sees the world that the real world is composed of several communities, large and small, and that a community is something more than the sum of persons composing it-in other words, it has a real personality, not a fictitiou& one. This is the essence of what is true III modern nationahsm, and in the claims for the nghts of Churches and of Trade Unions.'* Now it i~ only just to Gierke to begin by admittmg that such an interpretation of hIs views (which, by the way, IS by no means peculiar to Dr Figgis) is really alien to the logic of hi& general theory. He was a good German and a thorough Germanist, whose thought had already been fixed in all its main lines by 1880. Syndicalism in any form, whether moderate or extreme, was a thing beyond his ken. He accepted the German system of territorial churches, as it stood in his day; he accepted the economic organisation of contemporary German society. He was anxious,
* Op
CIt
p. 250,
In
an essay containing a study of Maitland
lxxxiii
as a lawyer, that corporate bodies in Germany should be based on the Germanist tradition of law, and not on the Rornanist; but the bodies of which he thought belonged to a traditional past, and not to a revolutionary future. They were Gemeinde and Genossenschaften, steeped in the national history of the German people, and therefore belonging by right of descent to the national law of the German State. The affinities of Gierke are not with Duguit, the legal philosopher of French syndicalism: they are with Herder, the harbinger of Gennan Romanticism. The figure oftlle Volk remains In the background of his thought; and the majority of the Volk is incarnate in a State which remains sovereign, even If it recognises that there are other group-realities besides ItSelf. Are not these other beings parts of the Folk-whole; and must they not find their hfe in the hIgher life in which they are necessarily included? The State, to Gierke, is 'elevated above all groups by Its sovereign plenitude of power' (seme souverane l.Jachtvollkomrnenhett). * The authority of the State is 'the highest nght upon earth' t The law of the State exerts a far greater control over the legal group than over the mdividual. 'The legal scheme, in dealing with groups, does not ~top, as It d.oes in dealmg with indiVIduals, at rules of external conduct I t also controls and penetrates their inner life.... The group, m contrast to the indIvidual, must necessarily be a form of Ide m wInch the relation of the umty of the whole to the multiphuty of the pdrts IS amenable to regulation by external norms for human wills.' t It IS easy to realise, from pas~ages such as these, that Gierke's doctrine of the real personality of groups is, as we have already ob~ef\ed, ,1 rarified and. a qualIfied doctrIne. But it is also easy to ,ee how the rarity and the qualIficatIOns may be forgotten. Men sometime1> think and write to other consequences than those which they have themselves intended A fate of thIS order seems to have befallen the theory and writings of Gierke. He hlJJ1!>elfinsi~ted on the need for the articulatIOn of contamed groups in the containing State) he regarded the lIfe of the lower groups a~ necessarily integrated in that of the higher. Yet if he thus belIeved in the I necessity of a higher Whole, which included all lesser wholes as its parts and members, he taught after all a doctrine of the real and I mhereht personality of groups in general. Now if we concentrate
... Dos Wesen der mmsChllChen Verbande, p. 29. Ibld. P 28. : IbId. pp. 5. 12 j also p. 25
cr.
lxxxiv
our attention on that doctrine in itself, and if, in addition, we proceed to confine its benefits to groups other than the State, we can easily..glide- .into a form of syndicalism. It will not be true to the mind of the master; but it will have a sort of rough verisimilitude. We can then say that we have quitted an abstract and unreal world of self-existing indIviduals and the absolute State; we can then proclaim our entI)' into a concrete and real world of real groups, with a real State condItioned by their inherent rights; and we can then plead that Giel ke's writings provide an historico-philosophical justification of thIS new world. But dm. IS not the whole of the matter. The theory of the real personalIty of groups may not only trend towards syndicalism. It may also keep other company; and it may trend towards that very doctrine of the absolute State from whIch it is supposed to be our rescue. We can only make the theory a defence and buttress against the State if we suppose that it does not apply to the State, and if we say that there is no real person standing behmd the State, as there is behind other groups. But are \l.C justIfied in making that supposition? We can hardly say that we are On the contrary, if we once accept the theory of the real personalIty of groups, we are bound to see behInd the State the fi~ure of the greatest and the most real of all groups-the figure of the natIOn and Folk itself. The theory presents US, after all, with two sorts of real Grouppersons. One of these is the real person of the Volk, with its own Volksseele and its own l'olksleben. The other is the real person of the contamed group. * GIerke hImself may seek to comprehend hoth sorts of real persons in a synthesi~ wluch does justIce to both. But the two sorts will always tend to break apart, and cach of them will then seek to claim a ~eparate and sovereign CXl~tence. If the claim of groups other than the State is heard and accepted, the result will be some form of syndicalist philosophy. If the claim of the great national group, incarnate m the nauonal State, calls aloud with a greater and more resonant VOIce, the result will be some form of absolutist or dictatorial poliucs. And of the two results it is the latter which is the more to be apprehended It often seems as if the theory of the real personality of groups
It Will be noticed that Dr Figgis, in the pa&iage quoted above, spea.kl of the theory of real Group-personahty as 'the essence of what IS true in modern oatlOnalIsm, and m the claims for the nghts of Churches and of Trade Umons'. Perhaps he was thmkmg of the clalfilS of national mmontIes when he used the phrase 'modern natIonahsm'. But the phrase may f'qually apply to the claims of a national majonty to control the whole of lIfe.
Lxxxv
were advocated with a sort of tacit exception-as though it did not apply to the State; as though it were something external to it, which served to limit and ~~J!l..e it. But if the theory be true at all, I must it not be true of the State-and true of the State above all? Is it not the peculiar danger of the theory that it may tend, in the last resort, to attach itself to the figure of the State with a particular fascination? The Nation, at any rate when it is organised and expressed in a national State) is a great and obvious group. If we make groups real persons) we shall make the national State a real person. If we make the State a real person, with a real will, we make it indeed a Leviathan-a Leviathan which is not an automaton) like the Leviathan of Hobbes, but a living reality. When its wIll collides with other wIlls) it may claim that, being the greatest, It must and shall carry the day; and its supreme will may thus become a supreme force. If and when that happens, not only may the State become the one real person and the one true group, whIch eliminates or assimilates others: It may also become a mere pt'r'lonal power which eliminates its own true nature as a specific purpose directed to Law or Right. If personal power should thus ~hed purpose, an old saying of Luther may be repeated, with a new applIcation, 'Dze Person wzrd euck nzchts helfen, wenn euch das Recht l'CI dampt' . * The experience of our own day goes to corroborate such hypothetlcal fears. I taiy ha'l embraced the theory of real Grouppt'rsonality, 'the organism superior to the individuals of whom it b composed'. The Corporative State h a structure of many elements It is not always clear wluch of them are intended to act, <lnd which are intended to be the simulacrum of action. But there ~eems to be little perllonality, and no autonomy, m the corpurate groups contained in the Italian State; and if we read La DOffrtna del Fasnsmo we can hardly doubt that the one Groupperson which is really intended to act is the Italian nation a" 'integrally realised' in the Fascist State of Italy. 'The higher personalIty (personalzta Juperzore) is that of the Nation. The Fascist State, synthesis and um ty of all values, interprets, develops and actuates the whole of the life of the People .. For Fascism the State is an absolute) in whose presence individuals and groups are the relative.:'.. It is anzma dell' anzma ... realta etzea ... volunta etica unzversale.'t
>I'
Quoted
in
W. Wallace, Lectures and Essays, p. 269.
t Bemto MussollJU, La DottnTUl del FasClSTllO, 1932 (reprmted from the article
m the Enclclopedla Itallana). The quotations are mainly taken from the more
phdosophlC Part
I.
lxxxvi
Of the new Germany which came into existence in 1933 it is perhaps premature to write. Incedimus per ignes. But this may be said. The home of groups and Genossenschaften is going through a great process of Gletchschaltung-a process by which they are all being' assimilated' to the new character now assumed by the person of the Volk, as organised and incarnate to-day in the National Socialist State. The assimilation of groups to this person has touched and transformed churches and trade unions: it has swept like a deluge over the old territorial communities and the political parties of Germany; it has modified, where it has not abolished, the whole of what Gierke would call the corporate articulation of the State. It would be wrong to draw permanent conclusions from what may be only a temporary phase of revolutionary ardour. But so far as the evidence goes, it suggests a simple reflection. When the idea ofthe real person of the NatIon, orgal1lsed in a national State, obtains the victory, in an hour of revolution, the groups in the State are abolished or altered with the alteration of the times. The ideas on which they rest, and the purposes which are their essence, are swept away or refashioned. We may deprecate the victorious idea of the State: we may say that it means a sacnfice of Recht on the altar of Volkstum and the personal Volk. we may urge that it means a surrender of fixed purpose to oscillating personahty; but we have to admIt, in one- respect, the vigour and sweep of it'> action. Germany herself, the ancient mother of groups, has demonstrated to the world-at any rate for the time being-that the groups conta1l1ed in the State are simply purposes, and not real persons, and that these purpo~es can be re-fashioned, or even abrogated, when the hour of revolution strike'l, by the State in which they are contained. All revolutions have something of a SImilar character. They shake and test men's common purposes. Some, like leaves, come fluttering to the ground; some remain, but change theIr colour and their nature. It is not that real Group-persons have died, or changed the nature of their personality. It is simply that common purposes have been shaken in the minds of those who held them; and some have changed, and some--because they have ceased to be held with the tenacity which alone will suffice to preserve their existence--have disappeared. But do we then leave the State surviving as the one omnipotent real person, which shakes all the trees but stands itself unmoved? The whole of our argument forbids. The State, on our general theory of purpose, is not an ultimate or absolute person, which can
lxxxvii
do or omit to do what it chooses at its will. It is a grOl!P or association; and it stands on the same footing as other groups or associations. Its essence or being consists in its purpose, just as the essence or being of all other groups consists in their purpose. Not only is purpose the essence of the groups contained in the State: it is also the essence of the State itself. When we are speaking of the relation of the State to groups, we are speaking of the relation of one common purpose to a number of other such purposes. The characteristic of the purpose of the State is that it is a specific purpose of Law Other purposes, so far as they concern or affect this purpose, must necessarily be squared with it. This IS the same as to say that other groups, so far as they hold or aSl>ume a legal position, must necessarily be adjusted to the legal group which we call the State. They are not thereby adjusted to its will' they are adjusted to Its purpose, which is Law. The State would be failing to attain Its purpose, and thereby to discharge its duty, if it failed to secure such adjmtment. ~he adjmtment is not a matter of di~cretion, and It IS not absolute: it is controlled by the purpose of the State, and it is relative to that purpose. To reject the theory of the real) personality of group!> is not to fall into any WOThhip of the omnicompetent or absolute State. It i!> to find the es!>ence of the State in Ib purpose of Law, and to subject it to Its purpose,just as we find the essence of other groups also in their particular purpose, and just a~ we make them too tp.e servants and ministers of their purpos.e. Only If we make the State, like every other group, a common pUlpo!>e, and not a real Group-person, shall we escape the tyranny of mere will. Purpose IS something specific; and If we are face to face with a State which is specIfic purpose, \"e are face to face with the fimte. In a word, we see and accept the sovereignty of Lawboth the law of the Constitution, which expresses the fundamental purpose on which the State is based, and the ordinary law of the (Ollrts, duly made in accordance with the Constitution, which exprc!>bes that purpose in detail, through the various ranges ofhuman lIfe, in all the area of external conduct amenable to its control.
Ixxxviii
Translator's Introduttio1l
6
THE TRANSLATION
It remains in conclusion to say some technical words (which must also be, in large measure, words of apology) in regard to the nature of the translation which is offered to the reader. It has proved difficult, and indeed impossible, to put Gierke's thought into an English style which would seem natural and easy to English readers I have taken the liberty of breaking up many of the long paragraphs of the original; but I have been careful, in doing so, only to make a break where some transition of thought, or some new phase m the development of the argument, permitted it to be made. I have also added headings and sub-headings, both in the text and the analytlcal f,ummary, in order to make reference easier; and I have appended, by the side of the more important notes, a brief marginal indication of their contents. Occasionally, where a technical point seemed to need elucidation, or '>ome comment or paraphrase seem("d lIkely to be of servIce, a footnote has been added, or some few words, enclosed in square brackets, have been included in the actual text. In some few ca<;es, too, I have added some remarks, similarly enclosed in square brackets, to Gierke's footnotes, partly in order to give references to new works whIch have appeared since he wrote, and partly with the object of suggesting some different \ iew of the evidence which he quotes, or some different interpretation of a theory which he describes. If such additions seem to the reader, or to the student of Gierke's original German, more numerous than they need have been, the translator would apologise for his excess of zeal. Two main additions have been made which it is hoped may prove of service. One is an index of some of the main subjects, and some of the main writers, treated in the volume. It might well have been fuller than it is; but whIle an author may index his own volume on his own scheme, a translator is bound to walk warily. The other addition IS that of a new bibliography. Gierke had prepared and printed a list of the main writers whose works he had used in writing the sections which deal with the penod from 1650 to 1800. There was no similar list of the main writers whose works he had
!xxxix
used in writing the sections which deal with the period from 1500 to 1650. I have therefore selected what seemed to me the main writers of this period (sometimes including, for some particular reason, a less considerable writer); and I have thus added a second bibliography, on the same lines as that which is given by Gierke himself: In addition, as many of the names to which Gierke refers in his own bibliography are little known, if known at all, to most English students, I have occasionally added to his text some brief account, in two or three lines, of the curriculum vztae of an author. I have marked by square brackets the passages of this nature which have been added. * I may end by making two confessions. I am the more bold to make them, because they have already been made by Maitland, at the end of his Introduction. In the first place, I have not attempted to check or verify Gierke's quotations. As Maitland wrote, 'I have thought It best to repeat Dr Gierke's references as I found them and not to attempt the penlous task of substituting others' . I confess that I began to make the attempt. I checked Gierke's references to the Vmdtcwe contra Tyrannos by my own copy, whIch IS the original editIOn of 1579. But I found that he had used another edition (that of 1631): I soon realised that, though some of his references seemed to me dubIOUS, I could not readily set them righ t; I said to myself, PeTlculosae plenum opus aleae; and I desisted from a work whIch I saw stretching out indefinitely before me, with little or nothing gained at the end, SInce the very few changes that I might have been able to make would hardly have made an iota of dIfference. In the second place I would confess once more at the end of this introduction, as I have already done at the beginning, that I cannot be sure that I have rendered faithfully the exact sense of many of the German terms. Here, once more, I may quote some words of Maitland: 'The task of translating into English the work of a German lawyer can never be perfectly straightforward. To take the most obvious instance, his Recht is never quite our Rzght or quite our Law'. I confess that I found Recht even more difficult
The translator is also bound to mention that he has changed the order
10
~luch.the wnters appear in Gierke's own blblIography. There they are printed m ~hronological order. The translator, findmg from hIS own expenence the
dlfficulty of referring to a lISt of names so prmted, has substituted an alphabetical order for the convenience of the reader.
xC
Translator~ s
Introduction
than Maitland suggests. Not only does it mean something which is neither exactly our Right nor exactly our Law: it also means something which is like our rights ' ~ and yet not exactly the same. Recht, to the German writer ~ is not only something objective' ~ in the sense of a body of rules (either natural or positive) which is in one way or another obligatory: it is also something' subjective ~ ~ in the sense of a body of rights belonging to a person or 'Subject' as his share in (or perhaps we should rather say his position under) the system of 'objectIve' Right. If Recht was thus troublesome, Naturrecht~ and its adjective naturrechtlich~ were even more so. Maitland was so much troubled by the adjective that he invented the English term nature-nghtly. I found myself shy of that term, and I have translated Gierke's du naturrechtltche Gesellschaftslehre as 'the natural-law theory of Society'. But I know that I have not exactly hit the mark. As Maitland says, 'a doctrine may be naturrechtlich though it is not a doctrine of Natural Law nor even a doctrine about Natural Law'. To meet such difficulties, I have put the German equivalent in the text, by the side of the English word, wherever I thought that the reader would like to know what It was, and I have added an explanatory footnote wherever I thought that it was nece~sary. But that is far from solving all difficulties. A word in one language has a variety of connotations~ which it may not have m another. Gesellscluift, for instance, means both Society at large, and the sort of particular society which IS a partnership or company or Joczetas. Our English 'society' will not do the ~ame work; and I have had to translate Gesellschaft differently in dIfferent places. Verem is more like our English 'society', and I have translated It accordingly. Verband I have generally translated by the term 'group'; but for dze engeren Verbande I have used the term 'associatwns', which seems to correspond best to Gierke's meaning. But there is a plethora of 'group' terms in Gierke's vocabulary, as we should naturally expect in the writer of a Genossenschaftsrecht; and to distinguish their shades of meaning~ and to find their English equivaJents~ is as delicate a matter as the matching of fine colours. I have left Genossenschaft as 'fellowship' ~ following good authority. Anstaft and Stiftung, Maitland has sald~ find their best correspondent in the English term' charity'; but I have been driven to trap'.slate the one as 'institution' ~ and the other as 'foundation'. Let me conclude by begging the reader to remember that in Gierke's sense
xci
'collective' and 'individual' are the same thing, or rather, two different aspects of the same thing. For 'collective' is not connected for him with the notion of Collectivism, but with that of a mere collection of individuals; and any 'collective' view is thus an individualistic view, which stands in dIametrical opposition to hIS own central principle of real Group-personality.
E B.
September 1933
THE THEORY OF STATE & CORPORATION IN MODERN TIMES DOWN TO 1650 IN GENERAL AND DOWN TO 1800 IN REGARD TO NATURAL LAW
AN ALYTICAL SUMMARY
ANALYTICAL SUMMARY
CHAPTER I THE PERIOD DOWN TO THE MIDDLE OF THE SEVENTEENTH CENTURY [The first four sectIons of thIS chapter, with theIr subsections, have dealt with (1) the later history of the medIeval theory of the Corporation, (II) the theory of the CorporatIOn III legal practIce, (III) the influence of 'elegant' jurisprudence, and (IV) the mfluence of the study of German publIc law. Then follows the final sectIon (V) of the chapter, wIth Its two subsections, 14 and IS.] SECTION
V
THE INFLUENCE OF THE NATURAL-LAW THEORY OF SOCIETY 14 and 15 CHAPTER I' SECTION V, I4 THE NATURAL-LAW CONCEPTION OF THE STATE [The dIVIsions of thIS subsectIOn are not GIerke's own: they are due to the tlanslator.] I. General vzew of Natural Law I. Natural Law as an independent system, dIStinct from the civihan and canomst body of doctnne, 35. The profound Importance of the natural-law theory of the State, 35. Its connection WIth historical events,35 Its radIcal tendency, 35; and ItS practIcal objects, 35. 2 The mfluence of the connectIon between legal phIlosophy and polItIcal theory In deternumng the external form of the natural-law theory of the State, 36 The system of polItical theory based on the law of Reason in the ecclesiastIcal wnters on Natural Law, 36. The culmInatIOn of that system In Suarez, 36. The constructIOn by Grotius of a general secular phIlosophy of law covenng the whole area of polItical hfe, 36. The' politIcal' lIterature proper, 36. The connectIOn between political theory and general publIc law (Staatsrecht) , 36. Pohtlcal treatises Independent of Natural Law, 36. The VIctOry of the naturallaw thc;ory of the State In Bodm's theory of sovereignty, 37. The controversy between the WrIters who advocate popular sovereIgnty and those who advocate the sovereIgnty of the Ruler on the basis of Natural Law, 37. The Polztlca of AlthuSIUS, 37. HIS successors, 37. Besold's peculiar combmatIOn of a natural-law VIew of the State with an hlstonco-legal VIew, 37. The cruCIal importance of Hobbes, 37.
1-2
AnalYtical Summary
3. The reasons for the increasing influence of Natural Law on public law, 37. The development of a clearer conception of the relatlon between natural and positive law in the jurisprudence of the civilians, 38. The division of law in general in to JUS 1UlturalC,)US gentlUTn and jus CIvile, and the subdivision of these, in connection with prevIous medieval theories, 38. The relation of jus publuum to these diVisions, 38. The severance ofJus gentzum from JUS publICum, and the dichotomy of law into natural and pOSitive, 38. The development of a pure theory of Natural Law, 38. New conception of JUS gentium as mternational law, 39. Natural Law as the pre-pohtical source and indestructible basis of CIVIl society and pohtical authonty, 39. The supenonty of Natural Law to positlve law which IS entailed thereby, 39. The extent and the bearing of such superionty in the field of pubhc law, 39. The irrefragable rule of Reason as the canon of all existing mstitutlons, 39. The findmg of a rational ideal for the efforts of all reformers, 39. 4. The theones of the nature of the State developed upon this baSIS, If opposed to one another, have one thing m common-they all depart from the medieval theocratic conceptIOn of the State, 40. The exploratIOn of the State m the hght of Its own nature, 40.
II. General mew of Soverezgnty
In
natural-law theory
I. The resultant characteristics of the prevalent conception of the State-(I) human commumty and (2) sovereIgn authonty,40. After Bodin the charactenstic of sovereignty IS primanly emphasised, 40. The conception of sovereignty m natural-law theory, 40. The transformation of an ongmally negative to a pOSitIve conceptIOn, 41. DIfferences of opimon in regard to the extent and the content of sovereignty, 41. They are the re:.ult of different conceptIOns of the end of the State, more especially a~ between eccleSIastical and secular theorIes,41. Different Ideas m regard to the [legal] lImIts of sovereIgnty, 41; and in regard to Its divlSlon, Its multIplicatIOn and Its ImutatlOns, 41. General agreement, notwlthstandmg, that sovereIgnty IS an mherent and mdestructIble onginal nght of the State, which mcludes all nghts of authority whatsoever, 41. 2. The controversy about the 'SubJect' or owner of sovereignty under Natural Law, 42. The problem separated from the question of the different forms of the State, 42. The questIOn of the pOSItion of the People and the Ruler, 43. The transference to the RepublIc of ideas originally developed in reference to Monarchy, both among the advocates and among the opponents of monarchIcal absolutism, 43. The diVIsion of the natural-law theory of the State mto theories (a) of Popular Sovereignty and (b) of the SovereIgnty of the Ruler, 43. Intermediate theory (c) of 'double majesty', 43. In addition, variOUS refinements of these main theones, as determined by the attitude adopted towards the problem of the hmIts of sovereignty, 43. Only m the thIrd place [I.e. after the questions have been treated (I) whether the 'SubJect' of sovereIgnty is People or Ruler or both, and (2) whether refine-
Analytical Summary
men~ of these noti~ns of the 'Subject' are necessitated by a theory of
the limits of sovereIgnty] do the further questions arise (a) of the relation of positive law to the more exact detennination of the Subject' of Ruling authority, and (b) of the divlSlbdity of ruling authority either In its substance or (short of that) in its exercise, 43.
III. People and Ruler as separate personalities

I. General recognition of the People as a personalIty until the time of Hobbes, 44. A basis found for such recognitIon in the theory of Contract, 44. The People as a merely 'collective' personality [I.e. a 'bracket' mcludmg a sumofindlViduals, but not an 'orgamc' unity], 45. ThIS [collectIve conceptIon] also appears m the systems of thought whIch seek to apply the Ideas and rules of the [Roman-law] theory of CorporatIons to the question, 45. The People regarded as a socutas cmlzs, 45. The attempts made-particularly by the ecclesiastical exponents of the phIlosophy of law, Molina and Suarez-to attain the conceptIOn of a self-subSIstent popular commumty, notwIthstanding this mdlvIduahst point ofv1ew, 46. The conclUSIons drawn from the 'social' [1 e. partnershIp) nature of the State, 46 The combmation [of the idea of the State as a 'socIety' or partnershIp of indIvIduals] with a corpOl<1te POlOt of view, in AlthuslUs and GrotlUs, 46. None the less, the 'collectIve' POInt of V1ew tnumphs, 46. The relatIOn of the Ruler to the ruled conSIdered as a result of the anti thesis of omnes ut unzversz and omnes ut szngulz, 47. The common wdl and the agreed WIll of all mdivlduals, 47. ReqUIrement m prmc1ple ofunanim1ty [1 e. the agreed wIll of all lOdIVlduals], 47. IdentIfication of majonty-wIlI WIth the group-wIll by means of a fictIOn, 47. The possibIlity of Representation of the group hased upon SImIlar foundatIOns [1 e. upon an agreement of all, fict1tIolIsly assumed to be present], 47. ReservatIOn of the nghts of the popular community Itself as agamst Its representat1ves, 48 2. A ~eparate personalIty IS generally recognised as also belonging to the Ruler, 48. It is recogmsed even by the theory of popular soveicIgnty, 48. The dIfferent nature of the personalIty of the Ruler under dIfferent const1tutlOns, 48 (a) When a number of persons are ve~ted WIth the nght of RulIng by a gIven constItutiOn, the conceptIOn of 'collectIve' personalIty IS agam applIcd [I.c. thc People qua Ruler, jU~t as much as the People qua People, is regarded as a collection of IndivIduals], 49 The umty of tht' penonahty of the Ruler even when there is such a system of the Rule of Many, 49 The relation of the ruled to the Ruling body In anstocracy and III democracy, 49. The identificatIon ot:the majonty WIth the whole body, 49. (b) A smgle person as the 'Suhject' or owner of Ruling authority, 49. InterpretatIOn of the rIght of the Ruler as bemg of the nature of an independent right of the monarch, regarded as a natural person, 49. The nght of the Ruler only dlstmgUlshed from the sphere of hIS pnvate rights' objectively' [I.e. by the d1fference of the 'objects' to whIch it relates], 49. Occasional apph-
Anagtical Summary
cation of the idea of a double personality of the monarch, 50. The point of view of the private law of inheritance applied to the succession to the throne, 50. Grotius, 50.
IV. Attempts to elzminate the dualism of People and Ruler The zdea of a szngle State-personalzty
r. The tendency of the theory of Natural Law to work out the idea of a single State-personality in place of the dualism of the two personalities of People and Ruler, 50. As a result of its mdlvidualistic point of view, however, all that it achieves is an exaggeration of one or other side of the dualism-I.e an exaggeration either of the personality of the People, or of that of the Ruler, 50. The rehcs of the organic conceptIOn of the State [surviving from classical and medieval times] still to be found in Natural Law, 50. The comparIson With the human body, 51. The juristIC result of thIS comparIson, 5 I. The Idea of the SOCial orgamsm, even among the advocates of the theory of Contract, 51. ThiS idea particularly present in Mohna and Suarez, 5 I Thl' corpus symbiotlcum of Althusius, 5 I. The orgamc unity of the State in Grotms, 5 I. None of these systems of thought achlevl's recogmtIOn of a rulmg Statepersonality as the true' Subject' or owner of political rIghts, 52. The supposed orgamsm prove., In the last resort to be only a me-chamsm, 52. The conscious development of a mechanical conceptlOn m Hobbes, 52. The conception of the umty of the State-personalIty could thus be only at tamed by an l"xclusive attributIOn of It to one or the other element of the body politIC [Ruler or People], 52. 2 The theory of popular sovereIgnty IS marked by an attempt to elevate the personalIty of the People to the pO~ltIOn of theone and only 'SubJect' of polItical rIghts, 53 IdentIficatIOn of People and State In the writmgs of the AJonarclwmachz, 53. To mamtain the complete IdentIty of the personalIty of the People and that of the State proves, however, impossible, in vIew of the fact that the Ruler IS simultane-ously acknowledged to be an independent bearer of authorIty, 53. The dualIsm of 'persons' cannot be transcended so long as the theory of a contract of government is the baSIS of argument, 53 It IS only when this theory has been entIrely ehmInated that (I) the Idea of the Ruler's personality can be dropped, and (2) the personality of the State can be confined altogether within the IIrmts of the community of indIviduals, 53. No thinker previous to Rousseau goes to this extreme of RadicalIsm, 54. 3. The advocates of a 'double sovereignty' also really IdentIfy the State and the People, 54. Their dIstInctIon between majestas reabs and majestas personalzs equally fails, therefore, to produce any recogmtion of a single State-personalIty, 54 The relation of these two sovereIgnties to one another, on the basIS of the theory of Contract, 54. Superiority accorded to the majestas realls of the People, 54. The results of according that superiOrIty, 54. At the same tIme the Ruler IS regarded as having an independent rIght to the exercise of majestas Personalzs, 55. Different views in regard to the delImitatIOn of the fights of the Ruler, 55.
Anabtical Summary
4. Grotius' theory of the double 'Subject' of sovereignty, 55. The Stat~ regarded as the subjectum commuTU!, and the Ruler as the subjectum proprium, 55. None the less, in spite of this apparently unambiguous formulation of the sovereignty of the State, Grotius also fails, as the result of his individualistic point of view, to attam any recognition of a single State-personality, 55. His 'collective' view of populus and unilJersttas [as mere aggregates ofmdlVldualsJ, 56. The consequent defects of his interpretatIon of State-sovereIgnty, 56 At bottom, Grotius only regards the sovereignty of the State as a sort of continuation, and that merely in idea, of the [ongmal] ~overeignty of the People, 56. The conclmlOns which follow, as regards the continuity of the State when the form ofits constItutIon chang-es, 56. The dIstmction between the polItical and the JUrl,>tic vIew of the State [notc I 24J. The subJecta propna, 56. In a gIven State, the People may be, at one and the same time, both commune and propnum subJectum, 57 Conversely, the Ruler may have acquired full and complete sovereIgnty, and possess such sovereIgnty as Ins palnmontum, 57 As a rule, however, there contmue to eXIst re'lerved rIghts of the popular community to partIcIpate m the control of the State, 57. The Ruler regarded as the usufructuary, and the People a<; the owner, of polItIcal authonty and the terntory and property of the State, 57 Further lImItatIOns upon the Ruler, In virtue of particular rulf''l of the cons tttutlOn, 57. The pOSMbIlIty of a forma mzxta, WIth complete dIViSIOn ofsovereIgnty as between the Ruler and the People, 58. The faIlure of GrotlUs' theory ofsovereIgn ty to achie-ve a permanent hold, 58. 5 The theory of the advocate,> of the Sovereignty of the Ruler, v.lllch makes hIS personalIty the one and only active 'Subject' in pohtlcal lIfe, 58. But so long as they acknowledge the eXIstence of a personalIty of the People, the upholders of thIS view also fail to attain the Idea of a smgle State-personalIty, 58 All modIficatIOns of the Ruler's sovereignty simply Issue 111 the doctrme that the People as a personalIty has a share 111 the actiVIty of the State, 58. (1) When the doctrIne is held-a~ It IS, more espeCIally, by the eccleSIastical wnters on Natural Law-that there are inalIenable popular nghts denved from the very essence' of the State, the body of the ruled assumes to a larger extent the character of a defimte State-personalIty, 59. (2) The theory of a condItional contract of government [i.e. a contract In which there IS not an absolute surrender to the Ruler] produces SImilar results, 59. (3) Among the advocates of a mIxed constItutIOn the personality of the Ruler It'lelf IS bIfurcated [I.e. not merely IS there a dualism between It and the personalIty of the People olltsIde it, but there IS also a dualIsm inside it], and polItical authonty IS actually dIVIded, or at any rate shared in common, 59. In opposItion to such tendencies, the stnctl~ absolunst systems of political thought are wrected to a concentration of State-personahty In a SIngle person, either indIVIdual or collective, 59. The views of BoWn, 59. Even in Bodin, however, and also m other absolutist thinkers, there is a recognitIOn of the personality of the People as existing SIde by SIde WIth that of the Ruler, 59. The terms respublzca and cwztas in the WrItings of Armsaeus, 60.
Ana!Jtical Summary
6. Hobbes is the first thinker to transcend this dualism comp~etely, 60. His view of the one original contract, 60. He acknowledges no rights of the People, 60; and no contract between the Ruler and the People, 60. His belief in the total sovereignty of the Ruler in all forms of State, 60. His rejectIon of a mixed form of State, 60. The visible manifestation of the Ruler's personality, in a single man or in an assembly, 60. The concentration of the personality of the State in this personality of the Ruler, as based on a political contract according to Natural Law, 60. The People without a Ruler is m no way a umversitas, but only a 'multItude', 61. The Ruler as the only mind of the State, 61. The personality of the State (persona cwitatlS) is thus made the core of public law, 6 r. Theones which are similar, if not so logically developed to their conclusions, in Graszwinkel and Salmasius [note 159]. The relation of the theory of Hobbes to natural-law individualism, 61. The importance of his theory of the unitary personalIty of the State in the further development of the natural-law theory of the State, 61.
CHAPTER I: SECTION V, 15 THE NATURAL-LAW THEORY OF ASSOCIATIONS
(DIE ENGEREN VERBANDE)

The influence of the natural-law conceptIOn of the State on the theory of other groups (I) through its theory of Sovereignty, and (2) through its theory of Contract, 62.
I. GROUPS WITHIN THE STATE
The umta~y or centralISt znterprctatzon The local communitIes and corporate bodies contained In the State differ generally from it in not possessing any sovereignty, 62. But the development of the theory of sovereignty none the less deterrnmed the extent to which a community-life of theIr own could be preserved for these bodies, 62. In general [a centralist view prevails. that is] we find a refusal to allow that local communities and corporate bodies have a social existence of their own, 62. Reluctance to admit the natural-law origm of these groups, 63. Thus, the theory of the organic [or natural] ongin of the State recognises an ascending senes of groups [culminating in the State], but regards the Family as the only one of these groups whIch is a naturally given unit, 63. The dIVIsion of the FamIly Into the three domestIc societies-husband and wIfe; parents and children; master and servants, 63. The Famrly as the immedIate basis of the State, 63. Communities and corporate bodies, on the other hand, are regarded as formations within the State which are not a necessity of nature, but a creatIon of positive law, 63. The theory of a Social Contract IS even more definitely adverse [than the theory of the natural origm of the
(r)
Ana!Jtical Summary
StateJ to any recognition of the State as a Whole which is organised in corporate bodies on the basis of Natural Law, 64. The result is that groups have no clearly defined sphere of rights as against either the State or the Individual, 64. [a) As concerns the relation of groups to the State, the absolutist theory ofsovereignty refused to admit the existence of any independent social authority other than that of the State in the domam of public law, 64. Bodin on the corporate structure of the State, 64. His dIStinction between corpus, collegium and umvemtas, 64. He assigns the ongin of these forms of assOCIatIon to a period prior to the foundatIOn of the State, 65. TheIr significance for the State, 65. The advantage of corporate Estates and their meetIngs, 65. None the less, lImitatIOns [of theIr powers] are necessary 10 certam CIrcumstances, 66. Moreover, all corporate instItutIOns are always unconditIOnally dependent on the SovereIgn, 66. Their existence, theIr right of meetwg and their corporate authority are based on the State's conceSSlOn, 66. The dIfferent degrees of powers aSSIgned [by Bodm] to different forms of corporate authonty, as a result of hiS VIew of all corporatIOns as State-mstltutions, 66 HIS classificatIOn of collegta, 66. The capaCIty for owmng property not an essential attnbute of corporations, 67 Dehcts of corporatIOns, and theu pumshment, 67 A SImIlar view is to be found 1Jl other absolutist writers on politics, 67. Gregonus Tholosanus, BormtlUs, Arnisaeus, 67. Even the more moderate absolutists adopt the vIew that corporations arc StatemstltutlOm, 67. Besold, 67. The demal of any lllherent corporate authonty by the wnters on Natural Law proper, 67 Particularly by the ecclesla~tIcal writers, 68. The rejection of any Idea of the autonomy of corporatIOns by Suarez, 68 The applicatIOn of these Idea~ to the IDterpretatlOn of customary law, 68 The State's exclUSIve nght of taxatIOn, 68 The transference of thIS centralIst pomt of VIew to the wveleign Church, 68. [b] As concerns the relatIOn of groups to the IndiVIdual, there i~ smlliarly no recognitIOn of an independent eXIstence of aSSOCiatIOns [apart from the mdlviduais of whom they are composed], 68 The cla~sificatlon of the Corporanon and the FamIly as forms of pnvate '~oclety' [I e as 'partnl"rshlps' of mdlvlduals], 68. The old [Romanlaw] theory of the Corporation only applied formally and externally, III connectIOn with deviations from the usual form of the contract of 'society' or partnership, 68. The question ""hether a corporate body ha~ a personality of Its own, 68. In general, a merely 'collective' VIew of that personality [as an aggregate or sum of mdlviduals} holds the field, 69. This VIew is apparent m the explanations gIven of the majorny-pnnciple, and in the theones about the delicts of corporations, 69. The apphcatlOn of the Idea of soczetas, by the ecclesiastIcal wnters on Natural Law, for the purpose of preServlll15 the 'Fellowship' prlIlClplemregard tocommons,6g. Thenghtsofthe [mere] commumty and those of the corporation in the theoT) of Suarez, 69. Commumtates peifectae and imperftctae, and further subdivisions of commumtas [note 30].
10
AnalYtical Summary
(2) The federalISt mterpretatlOn, especially in Althusius and GrotzuJ
On the other hand, a federalist trend of thought is also to be found in the theory of Natural Law, which applies the general idea ora 'socIal contract' to associations also, as well as to the State, and thus preserves for them a common sphere of their own [as defined and secured by the terms of their parucular contract of associauon], 70. The way for this federalist theory is prepared by doctrines about a right of resistancl" as belonging to the different parts of a country when the authorIty of the State is tyranmcally employed, 70. The doctrme of Languet [1 e. of the author of the Vmdlcla& contra Tyrannos of 1579] about the rIght of provinces and towns to secede when the Ruler breaks tlle contract, 70. The support given to thiS doctnne by histOrical eve-nts, 70 ThC:" relatIons of this federalIst theory (I) to the constitutIon of the Protestant churches, and (2) to the polItical instItutIOns of Holland, Switzerland and Germany, 70 The systematisation of federal Ideas by Althusius, 70. Although he holds to the idea that sovereignty III the CSSl"ntlcll attnbute of the State, he recognIses aSSOCIatIOns as possessmg a sphere of nghts of their own, 7 I. The difference between his theory and the theory of medIeval federahsm, 71. He regards the ~onal contract all tht" baSIS of the whole system of public law, 71. FIve stages of groups (the Farmly, the Fellowship, the local community, the Province and the State), each with its own mdependent authOrIty, 71. The hIgher groups composed of the lower, 71. The inherC:"n t and mVlOlable sphere of power belongmg to each of the constituent bodIes, 72 The fights of re~Istance and seceSSIOn, 72. In accordance "Irlth hIS general theory, AlthuslUs constructs hIS system of politics' from below upwards', 72. (I) ThC:" Faml1y (the Household and the Km-group), 72 (2) The' Fellowship' in Its various forms, 72 The hIgher groups [I.e. the three whIch follow], as 'mixed pohtH'al association!>', brought under the general conceptIon of unwersztas, 73. (3) The local community m ItS varIOUS form~, 73. (4) The unwerSltas provznaae, 73. (5) The State, 73. Majestas as the one essential distinctIOn bet.... een the State and other aSSOCIatIons, 73. The creative force of the SOCIal contract, in regard to all the five stages of groups, 74 All through the senes, the group has authonty over its constItuent members, though WIth dIfferent hmits in each case, 74. Rule and obedIence, 74. The general body of the ruled regarded as the true 'Subject' or owner of the community-authority, 74 The assembly representmg the group IS therefore treated as supenor to its executive, 75. The applIcatIOn of the tradItIOnal [Roman-law] theory of corporations, withm th~ framework of this theory, 75. The agreement between Althusius' system of polItics and hIS jUflstic theory of groups, 75 The result~ of hIS doctrIne, as regards the rIghts of corporatIOns, 76. The influence of the theory of a social contract upon other writers on Natural Law, 76. TheIr recognition of associations as possessing an mdependent common hfe of theIr own, 76. Their use of the federal scheme of Althusius, 76.
Anarytical Summary
I I
The federalist theory [of groups] in the wrItings of Grotius, 77. His syste:n, 77. The contract of association and the contract of government, and the other raisons d'ctre of ruling authority, 77. Grotius attains on this basis a general natural.law theory of Society at large, 77. The relation of associations to the State, 77. The basmg of all groups on the idea that they are systems of relations between rights of indIVIduals, 78. Accordingly, GrotlUs draws no clear line of distmction between partnership (Sozzetat) and corporatIOn, 78. The maJority-prmCiple regarded as the result of an agreement, 78. The rIghts of the members of a group ut unzversi and ut szngulz, 78. The relation of szngulz to the debts and dellcts of the general body, 79.
(3) The tnterpretatwn if Hobbes The theory of aSSOCIatIOns in Hobbes, 79. The contractual basis of all social formatIOns, 79. The generIc Idt'a of the S.ystfma, 79 A Systemata regulana. These arc divided lOto (a) absoluta, i e State'l, and (b) subordmata, which are subject to the authOrity of the State, 79 The latter are- dIVIded m turn mto (I) corpora pohtlca and (2) corpora privata, 80 Another diVISIon based on the obJe-ct or purpose of the' System', 80. B S)stemata zrregularza. LiCIt and illicit unions and assemhlIes, 80 In any case, however, It IS only the mt're eXlstencf of a'isociatlOns whIch can be based upon the prInCIple of lIberty of associatIOn, 80 No groupautfwnty, of any kmd whatsoever, can be made to Is&ue from that pnn('Ipk, 81. All corporate authonty IS delcg-ated State-authOrity, 81. The IdentlficatlOn of the group and Its members m relatlOn to the State, 81 The applIcauon of these Ideas to ParlIaments, 81. This pomt of vIew makes It po&slble for Hobbes to erect a general theory of SOCiety, which embraces both the State and a&souations, without mcurring- any rIsk to hIS absolutIst tendenCIes, 81. HIS conceptIOn of the umtary per~onality of the i!;roup, 81. HIS general theory of 'p('rson~', 82 Representative and represented 'person'i', 82. Reprc<;entation of a multItude of men by a 'person', mdlvldual or collectIVe, authOrised thereto, 82. The subordmate group-personalIties regarded, lIke the State, as personae repraeltntatzvae, 82 The contrast between the monarchIcal and the republIcan comtltutlOn, as It appears In aSSOCiatIOns [as well as In the State], 83 The different effects of the unauthOrIsed actIOns of a persona repraesentatzva, accordmg as that persona 1<; U7lUS homo or unus coe/w, 83. The correspondmg dlstmction between the dehct of a single representatIVe officer and that of a repre<;entatlve a~sembly, 83. The applIcatIOn of thIS dl<;tlIlchon to questIOns of debt, 84 The historical Importance of thIS mdlvIdualistic system of thought, in Its be~rmg on the development of a natural-law conceptIOn of the Group-person, 84.
II. GROUPS ABOVE THE STATE RejectIon of the Idea of a world-monarchy, 8S Its place is taken by the idea of a community based on international law, 85. The con-
12
Anarytical Summary
troversy about the societas gentium, 85. International law as binding in the form of Natural Law, 85-86. . Particular unions of States [i.e. federations], 86. The incompatibility of a federal State With the natural-law doctrine of sovereignty, 86. None the less, corporate elements are imported lOto the idea of the foedus, 86. GrotlUs' distinction between contracts of confederation and orgarused unions, and agam between unions which are 'personal' and those which have a 'real' character, 86.
III. GROUPS PARALLEL WITH THE STATE
The Church The Idea of such groups is incompatible 10 prlOciple with the naturallaw theory of sovereignty, 87. The Church, 87. The doctrine of the independent sovereign authority of the Church, as expounded by Catholic writers on Natural Law who apply the theory of the Two Swords, 87. Other Views With regard to the relatIOns of Church and State,88. The Protestant doctrine. (a) According to the Lutheran view, State and Church are separate sovereign groups, of unlike origm, but under a common head, 88. The episcopal system and the theory of the three Estates, 88. (b) The commumty-princlple 10 the 'Reformed Church' [I.e. the Calvinist], 8g. The people as both secular and eccleSiastical sovereign, 89 With the development of Natural Law, it became nece~sary for It~ exponents to bnng the Church lOto the scheme of their theory of the State, 8g. [Hence we find] (c) the purely 'territorial' doctrine, 89 The Church, in its external legal mamfestation, is regarded as a StateinstItutIOn, 90. The dIfferent attempts to delirmt the power of the State over religIOUS hfe III the 'terntorial' system of thought, go. (d) Contrasted WIth the' tern tonal ' is the 'collegial' system, 90. According to this, the Church is regarded as an aSSOCIatIOn wlthm the State, based on an eccleSiastical social contract, 90 The relatIOn of this theory to the 'terntonal' system, go. At first there IS hardly an antlthe~ls, go. Grotius' theory of Church government, 91. HI~ view of ecclesiastical group-authority as a regzmen constztutzvum ex consensu, dIStinct from the regzmen zmperatwum which belongs to the State, 9 I The sovereignty of the State m the eccleSIastical sphere, 91. Other representatives of the 'collegial' system, 9 I. Conring, 92. The flse of an antithesIS between thiS system and the 'territorial' system, when it comes to be held [by the advocates of the former] that assoCIatIOns have a group-authonty of theIr own, 92 The theory of VoetlUs, 92. His view that each congregatIOn IS based on a contract between the professing members, and the larger Church-group on a limon of congregatIOns, 92. The idea of a natural group-authonty developed on this basis, in regard to doctrine, ntual and dlSClplll1e, 92. PreservatIOn of eccleSiastical independence as against the State, 92. The attacks on Voetius by the advocates of the' tern tonal ' system, g2.
Ana?Jtical Summary
CHAPTER II THE PERIOD FROM THE MIDDLE OF THE SEVENTEENTH TO THE BEGINNING OF THE NINETEENTH CENTURY
SECTION I
THE NATURAL-LAW THEORY OF SOCIETY DURING THE PERIOD OF ITS ASCENDANCY
16 to 18
CHAPTER II: SECTION I, I6 THE GENERAL THEORY OF THE GROUP (VERBANDSTHEORIE) IN NATURAL LAW
1. The vogue
of Natural Law and zts
mdzVldualzstzc baszs
Supremacy of Natural Law in thl!' penod, 95 Development of a general natural-law theory of associations, 95. Individualism its gUIdmg star, 96.
II. The przorzty
of the
mdzvzdual to the communzty, and the consequent VIews of law and property
The pnonty of thr md1Vldual to the group, 96. The problem of discovenng a system of legal rddtlOns among ~overeign mdlvlduals in the &tate of nature, 96. The importance of the solutIOn of thiS problem in Its bearing on internatIOnal law and [mternalJ public law, 97A& agam~t the pure conceptlOn of Power U1 Hobbes and Spinoza, the dominant theory holds fast to the conceptlOn that Natural Law has the character of RIght, 97. ThomaslU<;' view of the merely 'mternal' obhgatlOn of Natural Law, 98. But there IS a prl"valent recogmtion of ItS being externally obhgatory, g8. The compatlbJllty of such obhgatlOn With natural bberty, 98. DenvatlOn of Natural Law from the Dl'dne Will, or the nature of the Dlvme Bemg, 98. The sanctlon of Natural Law by the threat of Dlvme pUIllshment, 99. Such theones, however, have- no practIcal importance, 99. The basmg of the obligation of Natural Law on the mutual claim ofmdlvlduals to Its observance, 99 The nght of self-help, 99. AppbcatlOn of these ideas to international law and [mternal] public law, 99 The contradiction between recogmtlOn of a natural legal obhgatlon and demal of the existence of any commumty anterior to law, 100. Grotius' principle of 'sociabilIty' IS an attempt to reconcile this contradiction, 100. Civil society as the development of a SOCiable state of nature, 100. The consequent theory of the natural-law content of
Analytical Summary
positive law, 100. The attempts to construct a later system of 'social natural law', over and above the original system of 'pure natural1aw',
100.
In opposition to this line of thought there is the view, developed under the influence of Hobbes, whIch regards the state of nature as altogether unsocial, 101. Locke, 101. Rousseau's doctrme of the perfect liberty of the state of nature, 101. Similar doctrines in Germany, 101. The zenith attained in Fichte's earber system of thought, 101. His derivation of Law (or RIght) from the voluntary lImitation of the sovereign Ego, 102. Right, it is true, can be realised only by the State, 102. But the Right which IS enacted by the State is based on Reason, 102. Kant, 102. He bases Right on the categorical imperative, 102. The priority of the indIVidual to the community, 102. The State obliged by the law of Reason as an apnon princIple, 103. Theories of the origm of property, 103. The assumptIOn of an ongmal community in all thmgs, but only In the form ofa communio negatwa, 103. The importance of thIs VIew in Its bearing on private property, 103. Locke bases property In the state of nature on labour or occupation, 103. DIffUSIOn of the doctrme of the pre-social ongm of property, 103. Rousseau, 104. Justus Moser, 104. Kant, 104. SIde by SIde with thIS doctnne, however, there continued to exist a theory whIch based property on the authOrIty of the State, partly as a survival of older theories, and partly by deve10pmg the new Idea of a contract of property, 104 Fichte's theory almost SOCIalistIc, 104. These theones of the priority of the indIVIdual were confronted by a theory whIch as~umed the existence of prumtlve society, 104 The theologIcal basis of dus theory, 104. It never attained a proper logIcal development, 104. Lelbmz, 104. The beginmngs of an hIstorical VIew of social evolutIOn, 104. MontesqUleu, 104. Moser's attack on the law of Reason, 104 Other representatives of this trend of thought, 105. Herder, 105. The Importance of the survIval of these theories SIde by side ".;Ith IndIVIdualIsm, 15
III. The natural-law mew of the source of Group-authonty Derivation of the commumty [and of community-authorIty] from the Indxvldual in the prevalent form of natural-law doctrme, 105 There are, it is true, some views which dIverge from thIS prevalent form, 105. For example, among the advocates of an unSOCIal state of nature, we find one dxvergent view which IS based on the assumption of the divme origm ofsocial authOrIty, 105. Horn, 105. Agam, among dxe advocates of the Idea of original community, we find anodxer dIvergent view which is based on the assumptiOn of a naturally gIven social authority, 106. But apart from dxese dIvergent VIews, the original sovereignty cof dxe individual was universally held to be the only source of group-authonty, 106. In tIus matter, the absolutist doctrIne, the doctnne of popular sovereignty, and the Intermediate doctrine [ofa 'double majesty'], were all agreed, 106. Rousseau in particular adopts this VIew, 106. It IS used by Beccana m order to attack dxe practice of capital pUnIshment, 106.
Anarytical Summary
By the end of the eighteenth century, it is almost an unchallenged axiont that all social authority is derived from the devolution of individual rights, 107. The comparison in Moser and Sieyes between the original formation of Society and the foundation of a company, 107. Flchte) 107. Kant, 107. IV. Natural Law and tlu zdea
of contract as explazmng the orzgzn of Groups
The free act of the individual wIll as the only legal mode of forming a community) 107. The original social contract as a natural-law dogma, 107. DIfferent views with regard to the transitIOn to the soczal state, 107. Accordmg to the prevalent form of doctrme, both a contract of society and a contract of government served to produce that transitIOn, 107. ModlficatlOos, 108. The theorIes of a smgle onginal contract [either a contract of government, or a contract of society]) 108. The importance of the act of the indiVidual will as regard!> the smgle contract of government, 108; and as regards the sIngle contract of SocIety, 108. DIscrepant Views, among those who agreed III holdmg a theory of contract, wIth regard to the motlve~ for concludmg the SOCial contract, ro8. SOCial instlllct, or external needs, 108. But all thmkers ahke attempt to find the legal basiS of sOCIety m the wIll of mdIvlduals, J 08. ThIS l~ true even of Kant, 108. The umversal tendency to emphaSise the free act of Will as the basis of the SOCial condition, 109 Dlffelent views with regard to the actual eXistence of the original contracb, 109. The ongInal contracts as hlstoncal facts) log. VarIOUS modifications of thiS View, 109. In opp05itlOn [to thiS historical view] we hnd Kant working out a purely IdealIstic interpretatIOn of the polrtIcal contract [i.e. he holds that It IS an a prlOTl assumptIOn, rather than an lllstorical fact], 109 The IndIVlduahstic pomt of VIew With regard to the contmuing force of the ongInal contracts, 110. Doubts concerning the bindmgness of maJorIty-decisIOIlS, 110 The fictlUn of new contracts to explam the obligatIOn of later generatIOns, I 10 Entry Into the State and eXIt from It, and the formatIon of separate autonomous bodlc5, 110. The extrcme~t development of thcse Idea5 In Flchte [note 88] The theory of a social con tract, developed first III connectIOn With the State, IS applIed to all human groups, 110 The dIfficulty of applymg the theory to the FamIly, 1 I I. MarIlage as a contract of partneIslup (Suzzetat), 111. Revolts against the theory of contr.lct 11l thl~ perIod, 1 I I Ineffectual attacks against it, based on theocratic Idras, I I I In partIcular, Horn's attack, I I I. The survIval of the old view of the natural ongIn of the State, I I I. The precursors of the hl~torIcal and orgalllc cOllceptlOn of the State, I I (. Revolts based on a more realIstIc tIeatment of the State, 1 11. Hume) 1 I 1.
16
Anarytical Summary
V. The natural-law view of the purposes of Society and its various GrQups
The purposes of a common life based upon such foundations could only be individual purposes, I I I. The purpose of the State, m particular, 112. General agreement that the sphere of power of any community IS limited by its purpose, and therefore that the sphere of the authority of the State is limIted by its purpose, 112. None the less, there were fundamental differences of VIew in regard to the way in whIch the relation between socIety and the indIvidual ought to be defined, I 12. Theones whIch make the attainment of the communJty-purpose depend on the complete self-surrender of the mdlvidual, 112. Their extreme development in Hobbes, 112. Spinoza's prOVISO in favour of intellectual and moral lIberty, I 12. The apparent secunty provIded by Rousseau for the mVIOlable nghts of man, 112. The prevalent form of theory, which makes the indIvidual pool only a part of his original nghts, I 13. Protection against the abuse ofsocial authOrIty, 113. RecognitIon of only lzmltedsocral purposes, 113. LImitatIon of the State's object to the provIsion of external and mternal secunty and the realisatIOn of a system of legal relatIOns, 113. Particularly in Locke, W. von Humboldt and Kant [note 110]. The growth of the theory of the Rights of Man, I 13. Innate and acqUIreii nghts, 1 13. The theory used to defend freedom of conscience, especially by ThomaslUs, I 13. It IS also used, at the same time, m the cause of economic liberty, especially by Locke, I 13. Doctrmaire elaboration of the theory m Wolff, I 13 It develops mto a fixed system, and takes the shape of constItutIOnal 'declarations', T 14 But 0ppo~lte consequences could also be drawn from the baSIC tenet of indIVIdualism, I 14. Such OppOSIte consequences especially drawn m the wntings of Flchte, I 14. SOCIalIstic and commUImhc movements based on the mdIvldualIstIc pomt of VIew, I 14. Occasional and sporadIC efforts to recognise that Society, like the indIvidual, has Its own lIfe-purpose, I 14 VI. The natural-law VIew
r.if the
Bezng of Groups
The natural-law conception of the Bemg or essentIal nature of groups [as dIstinct from theIr orzgm and purpose, whIch have been treated m IV and V], 114. The conclUSIOns drawn from mdIvidualIsm, 114. All groups regarded as mere systems of legal relations between mdlviduab, on the analogy of the partnershIp whIch IS based on indIvidual nghts, 115. None the less, there IS a clmging to the conceptIOn of grouppersonaIrty, 115. General adheSIon to the VIews of Hobbes, 115. Horn alone rejects zn toto the conceptIOn of Group-personalIty, 115 His VIews in detaIl, more partIcularly as regards the' SubJect' of Stateauthority, I 15. The dIfference between hIS theory of monarchies and his theory of republIcs, I 16. In opposition to thIS theory of Horn, thmkers in general recogmse the community as a Subject' of rights, 116. They only dIffer in theIr mterpretatIOns [some regarding the community
Anab'tical Summary
17
as only being a 'Subject' when it has a Representative, and others regardillg it as being itself 'collectively' a' Subject'], 116. The principle of Representation in the absolutist systems, 116. The principle of Collectivity used to supplement this principle, 116. Particularly in non-monarchIcal corporate bodIes, the idea of a collective unity of persons is made the basis of the position of groups as 'Subjects' of rights, 117 The majority of the writers on Natural Law, however, start from the 'Fellowship' Idea of a collective unity of persons, 117. But they use the principle of RepresentatIon to supplement this idea (just as, conversely, the absolutIst writers use the prInciple of CollectIvity to supplement their prmciple of RepresentatIOn], r 17.
The views
if Puftndorf
the persona moralis
Pufendorf combines 'collective' and 'representative' unity in his conception of the persona moralzs composlta, 118. The effect of the contract of association m constituting l>uch a persona, but the 11eed of ItS bemg supplemented by a further contract of government, ,18. Pufendorf's phIlosophIcal explanation of the general Idea of persona moralis, as embracmg both group-persons and mdlvldual persons, 118. Entza moralia as the units in a system of law, 118. Personae morales regarded as entza moralza ad analogzam substantzarum concepta, I I g. The persona moralzs szmplex, 119. The persona moralzs composzta, 119. ThiS formal UI1lty [of the composlte moral person] has no real SOCial Whole correspondmg to it, 120. Pufendorf thus reverts [m spite of Ius attempt to combine them] to a separate treatment of 'representatIve' and 'collectIVe' umty, 120. How Pufendorf's new Idea IS treated in the wntlllgs of hiS successors, 12 J. The conception ofpersona moralzs IS narrowed down, J 2 I. It becomes merely a technIcal term III Natural Law to deSignate a Group-person, I '.ll The conception of persona compostta dIsappears, 121 The relation between 'collectIve' and 'reprcsen tatlve' unity among Pufendorf's dl~ciples, 121. The theory of Hert, 122 Generally, he ascribes any hvmg Group-personality to the presence of a representative authority denved from the State, 122. For the rest, [he holds that] there is a vanety of case~ In which the conceptIOn of' person' and that of' man' arc not co-extenSIVe, 122 Here he Introduces the Ideas (1) de uno hOrTlme plures su.rtmente personas, and (2) de plurzbus homznzbus personam unam sUJtmentzbus, 122. He also dlstmgwshes cases of a umty of many men In one person accordmg as they are based (1) on legal nctlOn, or (2) on contract, 123. But he hal> no effective conception of a corporate body, 123 In Gundling and other wnters, we find the personality of the State Identified With the representative personalIty of the Ruler; but otherwise they interpret the universztas m strict terms of 'collective' uni ty [Without reference to any 'representation'], 123. ThiS contrast [between the State, which becomes a single' person' through its 'representative' Ruler, and the ordinary unzverszlas, which remainS merely a 'collective' person] IS accentuated by being interpreted as an example of the general contrast between 'unequal' and
BTU 2
18
A1Ul~tical
Summary
'equal'societates, H13. 'Collective' unity in the societas aequalu, and 're" presentative' unity in the societas inaequalis, as expounded, more par" ticularly, m the writings of]. H. Boehmer, 123. The more perfect unity of the 'unequal Society', 123. The exaltation of the State, and the idea of a fundamental distinctiOn between It and the corporate body, based on this contrast [of the 'unequal' and the 'equal' SOCIety], 124.
The atomzstzc conceptIOn of the nature of associatwns m eighteenth-century Germa'!)! DIsintegration of the natural-law conception of Group-personality, 124. The conceptIOn of the 'moral person' ceases to be used, except in interpreting 'Fellowship' sy'stems of conneCtIOn, 124. Even in this limited sphere, the conception 11> only used in regard to the external relations of a socIety, while ItS internal nghts and duties are dIssolved into mere relations of indIvIduals to one another, 124. Thus even the State itself IS treated as bemg a persona morallS only at international law [I.e. in regard to Its external relations], 125. Disappearance of any dIStinctIon between the corporate body [Korperschaft] and the mere society (GeseJIschaftJ, 125. Isolated tendenCIes In an opposite dIrection, 125. On the whole, however, the thought of the eIghteenth century strictly adheres to an 'atomistic' VIew, 125. 'Volff, 125. Daries, 125. Nette1bladt and his detaIled theory of Joczetas, 126. Achenwall and hl~ essentially SImIlar VIew, 126 Scheidemantel's approach to the idea of the 'compOSIte person', 126. Controversy 1Tl regard to the maJontyprmclple, 127. The gradual victory of the vIew that unammlty is essentially necessary, 127. ThiS means the final dISsolution of any idea of group-umty [because It lays the real emphasis on each umtofthe group], 127. A. L. von Schlozer flatly reduces 'collectIVe' umty to a mere sum of indIviduals, 127. His theory of sovereIgnty [note 186J. The common will as the sum of indiVIdual \\-Ilh, 127. C. von Schiozel takes the same view of the common WIll and the majonty-prIllClple, 127. Hoffbauer, 127. W. von Humboldt even demands legal recogmtIOn and enforcement oftlus [atOIniStlc] point ofvIcw, 127 English and French theory zn the eIghteenth century: Locke and Rousseau The conception of the collective person as it appears in tlle English and French theory of popular sovereignty, 128 Here there IS no distinction between 'equal' and 'unequal society', 128. The search for a 'Subject' of group-rIghts [not in a 'Represen tatlve person', but] in the asSOCiated community Itself, 128. The system of Locke, 128. HIS derivation of the maJonty-prmclple from Natural Law, though he also maintaUlS that the prmclplc has a foundatIon III contract, 128. The theory of Rousseau, 128. He elevates the collective umt into a hving Group-person, 128. ThIS real Group-being, regarded as a personne morale, is placed by Rousseau on the same footmg as an IIldlvidual externally, and given the pOSItIOn of' SubJect' of State-authority internally, I :lg. But Rousseau remaIns in the trammels of an mdlvidualIstic conceptIOn
Analytical Summary
12 9.
19
of the Group-person, While he distinguishes volonte gin/rale from volont~ de tous, he does not recognise any real common WIll, 129. He bases the majority-prmciple on a previous unanimous agreement, 129. The double role of the individual, as both partner in SovereIgnty and subject to it, 129. The sovereign moral person co-extensive with the assembly of all, 13 0 . Rousseau excludes representation altogether, 130. Re has no conception of an 'organ' [through which the people acts), 130. His artificial interpretation of the governing body as a secondary 'person' created by the primary sovereIgn 'person', 130. But the governmg body [though thus regarded by hIm as a 'person'] is also [like the People Itself] merely a collective unit, 130. The mfiuence of Rousseau's view on the natural-law theory of Grouppersonality, 130. It'! transformation mto a popular form m France, more espeCially by Sieyes, 131 Re-introductlOn of the idea of RepresentatlOn, 13 1.
Ftchte and Kant The receptIOn of Rousseau's theory lI1 Germany, 131 The advocates of the sovereIgnty of the Ruler adopt only 'lome of Its elements, r 3 I Flch te, on the other hand, accep t'! 1 t as a Whole, 131 But he shows a still sterner mdlvldualIsm, 131 He regards nlen as beIng partners In sovereignty and free mdivlduals, 131. The State as a smgle body, 13 1. The assumption of a real \Vhole, a~ a contract1Og party already present at the tlme of the contract of assoClation, 132 JustificatIon of thi~ assumption, 132. The comparison of the State to a tree, 132 The lIfe of the \'\'hole as the aggregate of the hves of the parts, 132. Flchte's Jundlcal person IS thus no real personalIty, 133 He does not apply the conceptIOn of person to the State at all, 133. He base'! mternatlOnal law on the relatIOns between indiVIdual cltlzens lof different States, and not on the relatIOns between States themselves], I 33 Flchte'~ attempt to dl~cover a common Will operatIve In the lIlternal lIfe of the State, 133 Hl~ H.Jectlon of the maJority-principle, 133 He regards the common WIll as realised by the assembly of all, but he gives some lImited recogl1ltlon to the pnnclple of representatlOn, 133 He does not attam the conception of a corporate 'organ', 133. In hi'! later wntmgs, he approaches an orgamc view of society, 133. Kant, 134. Fundamentally, he lunIts the conceptIOn of personalIty to the mdlvldual, 134 At the same time, he uses the expression' moral person', 134. He applIes it, for example, to States, 10 the sphere of 1OternatlOnallaw. 134. And also to the vanous holders of authonty, in the sphere of mternal publIc law, 134 HIS conception of the three powers [legislative, executive and JudiCial] as moral persons, 134; and of the State and the People as Similar persons, 134. His view of the common wIll as the sum of indiVidual Wills, 134 He bases the majonty-pnnciple, and the theory of representation, on contract, 134. But his mdlvlduahsm is modified by hiS Introduction of the conceptlOn of the homo noumenon, as contrasted with the homo phaenomenon, 134-135.
2-2
20
Analytical Summary
GENERAL RETROSPECT
General view, in retrospect, of the disintegration of the civilian and canonical doctrine of corporations by the theory of Natural Law, 135. The introduction of the 'moral' person in lIeu of the 'fictitious' person, 135. But, in spite of this advance, individualism prevents any recognition of groups as possessing a living unity of their own, 135. In spite of the use of orgamc analOgies, there IS a purely mechamcal conception of society, 136. The analogy of the machme gains ground, 136. The opponents of the individualIstIC interpretatlOn of society start from the conception of a social Whole, but they faIl to attain the conception ofa personality immanent in that Whole, 136. Justi [note 251]. Mevius and S. de CocceJi [note 252] Lelbniz [note 253]. Frederick the Great [note 254]. Herder [note 254]. CHAPTER II: SECTION I, I7 THE NATURAL-LAW THEORY OF THE STATE
I. General mew The natural-law theory of the State which IS based on the general natural-law theory of Society at large can be divided into (a) the theory of natural publIc law (jus publzcum unzversale), and (b) polItIcal theory (Polztzk), 137. It include!> (I) the applIcation to the State of the general idea of somtas, as already described m the previous subsectIOn, and (2) the vanous problems arismg from the attempt to combme that Idea WIth the Idea ofsovereign ty, 137. The fundamental antmomy between the traditIOnal theory of sovereIgnty and the conceptIOn of the Law-State which is immanent m the theory of Natural Law, 138. To solve the antmomy, thinkers (I) assume a reserved sovereignty of the individual, 138; (2) recognIse that groups have their own systems of group-rIghts, 138; and (3) dIvide the personality of the State into a number of 'persons', 138. The natural-law conception of the personality of the State is prevented by Its indiVidualistic basis from contnbutmg to the solutIOn of the antmomy, 139. The result is a continuance of the controversy about the 'Subject' of sovereignty, 139. The value and defects of the formal natural-law conception of State-sovereignty, 140. RejectJOn of the theory of' double majesty', 140. TransformatIOn of [GrotlUs'] theory of the subJecturn commune of 'majesty', 140. The controversy thus confined to a dispute between the two extremes of the pure sovereignty of the Ruler and the pure sovereignty of the People, 140.
II. The theory of the Sovereignty of the Ruler Immediately, the victory lies WIth the theory of the sovereignty of the Ruler, 141.
Ana[ytical Summary
2I
The State, as .th~ 'Subject: of supreme authority, is identified with the 'fepresen~tIve personalIty of the Ruler, 141. The application of this idea to dlfferent forms of State, 141, The interpretation of 'the Ruler' In a democracy, 14I. The possibilIty of a collective personality of the People, as distmct from the Ruler, 141, The rejection of this pOSSIbilIty by the absolutist writers on Natural Law, 141. The stricter school of thought regards It as inconceivable that there can be any system of pubhe or constitutional law whichjundically obhges the sovereign, 14 I. The adherents of thiS school of thought, 142. In Germany a more moderate school holds the field, 142. Horn recogmses certain lImitations on absolute monarchy, 142. So, e~peclally, does Pufendorf, 142. True, he attacks the Idea that the commumty of the ruled can have nghts as a~ainst the Ruler, 142. But hiS theory allows hmltatlOns on the Ruler arl~mg from differences in the modus habendl of maJesty: thus he draws a dlstmctlOn between the patrImomal State and the normal monarchy In which the Ruler for the tIme bemg only enjoys the usufruct of authOrIty, 143 The compatIblhty of an lmpenum lzmltatum WIth the full Sovereignty of the Ruler, 143. The nature of the assent of the People, or the Estates, which i~ mvolved III such a case, 143. That assent I~ only a condltlO sme qua non of the vohtion of the monarch, whIch I~ the real expreSSIOn of the wIll of the State, 143. The actual object of such vohtlOn can never be nnposed on the Ruler by a will alIen to his own, 144 The great succe~s of thiS theory of Pufendorf, 144. The followers of his theory, 144 The extremcr form whIch it assumes in Boehmer, 144. I ts modIficatIOn by other wnters, in the directIOn of an extensIOn of constItutIOnal hmlts, 144 The recogmtlOn, in the wnters on Natural Law who mcline to constitutIOnalIst view~, of a collective per~onahty of the People as contmumg to eXIst over agamst the Sovereign, 144. They base thIS vIew on the theory of Contract, 145. They measure the nghts of this collective' per~onalIty of the People (I) by the standard of the ongmal contracts, and (2) by that of express com,tltutLOnal provisos, 145 Huber on the constItutIOnal State, 145 He belIeves 111 the umty of majesty, In spIte of any lImitation by the rIghts of the People, under all forms of constltutIOIl, 145. The IcgesJundamentales regarded as contract~, 146 The People rl'gardcd as a unwersltas, y"hIch confronts the personality of the State embodIed III the Ruler, 146. Huber's use of thIS system of Ideas to combat popular as well as monarchIcal absolutIsm, 146 HIS selfcontradictory applIcation of the system to democracy, 146 . A SImIlar theory used by other writers to JustIfy the nghts of the terrItonal Estates In Germany, 146. Leibniz introduces the Idea of soverelgnty as bemg only 'I.datIve', 146 The idea of a collectIve personalIty of the People m the followers of Pufendorf, 147 The gradual recogl11tIOn of popular rights even among the advocates of the sovereignty of the Ruler, 147 The approach to a theory of popular sovereignty 111 Wolff, 147 And similarly m Nettelbladt, 148. The Idea of a reparate 'moral personalIty' as belongmg to the People, and also to the assembly which represents
22
Ana!Ytical Summary
the People, 148. The personality of People and Estates as conceived by Hoffbauer, 148. Even among those thinkers who lay a greatef emphasis on the sovereignty of the Ruler we find the view propounded of a constitutional Stat(", in which Ruler and People are related to One another as contracting parties, 148. Daries, Achenwall, Scheidemantd Schlozer, 148. The Ievolutionary results which follow in the event of ~ breach of contract, 148. The controversy about the relation between People and Ruler is COnnected wllh the controversy about the various possible forms which the ruling 'Subject' may assume, 148 The problem arises of the POSSIbility and value ofa mIxed form of State, 148.
III The tluory of Popular SovereIgnty The theory of popular sovereIgnty, 149. It continues to mrvive m England, and the theory of a contract of government continues to be held In connCi:tion WIth It, 149. Th(" supfTlOr positIOn of the People Il1 thIS contractual relatIOnship [between People and Governmentl, qCJ Sidney, 149. Locke. 149. Rousseau breaks a.... .ly from the idea of a contractual relatIOnship between Peoplt' and Ruler, 149. He bases an unhmited and Illimitable popular sovereignty on the one fiJundatlon of a contract of aSSOCIatIOn, 149. He regards the appomtment of a ~o\'('rnin~ authonty as nothing more than a commiSSIOn v.hich IS always revocable at Will, 150. He bamshes entirely the Idea of a State h.lsed 011 lelW and a conStItutlOIl, 150. None the less, he fads to escape from dualIsm in hi~ conception of the . Subject' ofpolttlcal nghts, ISO. HIS attitude to eXIstmg law, 150 The development of the revolutionary theory of the &tate In the framework of Rousseau's system of Ideas, 150. The doctrIne of populelr sovereignty modIfied as a result of greater attentIOn to actual facLS, 15U. Approach to the idea of the constItutIOnal State, through acceptmg a system of popular representatIOn or the fact of an mdependent governmg authonty, IS0. Thus Flchte hmns tht" '!overelgnty of the People by all oblIgatory system of constltutlOnallaw, 15 I. He belIeve'! in the necessity of transferring' absolute po~ltlve right' to a magistrate, 15 I. He regards the People as bound to reconstitute Itselfmto a 'commumty' Ifit seeks to exercise Its re'!erved rights of sovereignty. 15 I. The fixmg of periodical ~embhes for thIS purpose, In smaller States, 151. In larger State~, the election of 'Ephors', with 'absolute negauve power', who can brmg the whole sy~tem of a government to a standstIll, and then summon the people to meet as a 'commumty' for the purposes of sovereign decision, 151. The right of resistance In certain cases, 152 The UnIty of the 'Subject' ofpolitlcaI rights on dus theory, 152. The reasons for the disappearance of hiS earlier idea of the personahty of th~ State in Fichte's later theory, 152. Popular sovereignty 111 the theory of constitutionalism, IyZ. MontesqUI('u's adhesion to English theory, 152. Popular sovereignty, however, recedes Into the background, 152 In fact, the whole conception .of sovereignty (lIke the conception of the personalIty of the State) dis-
Analytical Summary
appears altogether in the course of Montesquieu's development of the Idea ~f the constitutional State, 153 Frederick the Great's attitude to popular sovereignty [note 94]. Justi's attempt to unite the theory ofconstltutlOnalism with the idea (which is reqUIred by the conception of the 'body pohtic ') of a unity of power and will, 153. Popular sovereignty m Kant, as an 'idea of Reason', 153 His recognition of a sovereignty of the Ruler based on historical grounds, 153. His ideal sketch of a constl tutional State, 153 The approximation [of constitutIOnal theories which start from the Idea of the sovereignty of the People] to the theory of the constitutional Sk'ltc which proceeds on the assumptIOn of the sovereignty of the Ruler, 153 Here, agam, the questIOn is raised of the poSSIbilIty of a IIllXed form of ~tate, '53
IV. The theory of the ,Wlxed Constltutzan The que~tion mhented from the J..flddle Ages, '54. Thmkers who adopted the theory of the sovereignty of the Ruler rejected the mIxed form of State, as a result of theIr stnct insistence on the conceptIOn of 1>overelgnty, 154. ThIS ne~atlve attitude, however, caused dJfticultle1> when the'it" \-\riter'i had to deal With actual constltuhom based on hl,>toncdl development, 154. Attempts to find a solution, 154 The tnumph of Pufendorf's doctnne of the irregularity of all mixed form'i, 154. HIS successors, I 5'). ~IodificatlOns of the conception of Irregulanty, 155. Otto, 15'). TltlUS, 1:)5 The Idea of an undIvIded co-partnt>rshlp among a number of 'SubJect&' of majesty, '55. The way for thiS Idea prepared by Besold, 155. It" apphcauon to the German COI15t1tution, 155. Huber's serious attempt to mterpret the con5>tltutJOnal State along the~e hnes without abandonII1R the Idea of the umty of State-authonty, 155. HIS theory of the po"eS,lOn (If majesty on a &ystem of Jomt ownersillp [zu gesamter Harul], 156 The different forms assumed by such Joint ownershIp of governing authonty, 156. Similar" lews propounded by other wnters, J 56 The defect, of theIr theones, 156. The recurrent tendency to slip back mto the Idea of a divI~ion of fights of ma..lesty, 156. Achenwall. 157. The surVIval of the theory of diVided sovereignty, 157 This theory doe" not permIt any frUitful recogl1ltion of that ul1ltary sovereignty of the State whIch lies behind all dIviSIOn, 157 Lelbniz's dlstmCtlOn between the 'suh'itance' and the 'e.xerclse' of sovereignty, 157. The combmatIOn of the theory of the mixed form of State with the demand for a qualltatwe diVIsion of powers m the doctrine of constitutlOnahsm, 157. The importance of dl\,iSlOn of powers in Judgmg the form ofa State, 157. Locke, 157, Montcsqweu, 158. The m.lXed form of St~te a5> a constItutional Ideal, 158. The Idea of diVIsion of powers as applied in the theory of popular &OVerelgn.ty, 158. The contradiction hetween popular sovereignty and th.e constitutionalist system, '58. Rousseau accordmglyattacks division of powers,. 158. His theory, however. by '.:paratmg the legislative and the executIve powers, still preserves the principle ora division of powers.
24
Anaryh~lSwnmary
158. But a closer approach to the idea of separation of powers may be found among the later radical advocates of the doctrine of popular sovereignty, 159. As the theory of constitutionalism wins ground, the doctrine of Montesquieu triumphs, with its combination of the conception of the mixed constitution and the principle of division of powers, 159. After the middle of the eighteenth century, we find thinkers recognising the mixed form of State, with a diVIsion ofsovereignty, even when they still adhere to the idea of the sovereignty of the Ruler, 159. The diffusion of this theory in Germany, 159. Kant's explanatIOn of the prinCiple of diVIsion of powers as a rule of logic, 159.
V. The contnbutwns made by the natural-law theory

to the development of publtc law
of the State
The dissolution of the conception of sovereignty, and the disintegration of the personality of the State, as the ultimate results of the naturallaw theory of public law, 159. But thIS theory, thanks to its formal conceptIOn of personality, also leads to progress, 160. (a) The idea of the continuity of political nghts and duties, in spite of changes in personnel and territory, and even of alterations m the form of the State, 160. Continwty in spite of the dIvision of a State, or of a union of States, 160. (b) The represen tatlve pOSItion of the Ruler as a 'Subject' of rights distinguished from hIS private pmution, 160. The applicatIOJl of the principles of the law of corporatIOns to the volItion and actIOn of a representative collective-person [i.e. a representatIve assembly], and thus to the volItion and actIon of the State, 160. The two 'persons' of the one Ruler, 16r. SeparatIOn of hIS public-law from IllS private-law sphere, 16 I. HIS' government' acts and his 'pnva te' acts, 161. The treatment of the official acts of public offiCIals as State-acts, 16 r. The successor m title obliged by the acts of hIS predecessor, 161. TIllS Idea, however, IS often combmed WIth ideas whIch are simply drawn from the law of pnvate mheritance, r61. RepresentatIOn of tht' personality of the State by the 'illegitunate' ruler durin~ an interregnum, 161. (c) A clear hne of diviSIOn i~ drawn between Stateproperty and the private property of the Ruler, 161 The ownership [of the formerl vested m the State, 161. The Ruler lImIted in Its use, 161. Controversies in regard to the dIStinction of the dIfferent speCIes of State-property, 161. The position of the demesne [Kammergut] in territOrial prinCipalities, 161 DIfferentIation between the pnvate property of the State and its pubhc-Iaw authonty over the State's tern tory, 162. The intermediate idea of the State's dommzum emmens, 162.
AnalYtical Summary
CHAPTER II:
SECTION
25
I, 18
THE THEORY OF CORPORATIONS IN NATURAL LAW

I. ASSOCIATIONS CONTAINED IN THE STATE
The general basis of the natural-law theory of associatIOns, a~ contrasted with the traditional theory of corporations [in the civIlians and canonists], 16.2. The different conclusIOns attained [in natural-law theory], according as unitary or federal tendencie~ predommate, 162.
(1) Dwergence of centralist and ftderalzst mews

The natural-law wading of as~ociatIOns, 163. The Inclusion of all groups under the rubriC of soczetas, 163 The questIOn whether mtermedIate groups have a natural existence or depend on artIfiCIal creatIOn,
163 (a) Predommance of the centralIst tendency, 163 The FamIly and the State as the only groups eXlstmg by Natural Law, 163 The local commumty regarded as a stage prehmmary to the State, but as becoming merely a part of it when once the State IS constituted, 163. The 'Fellowship' as a socIetas arbztrana, 163 The rights and duties ofcorporatlOns treated In connectIOn With the theory of the pOSItIOn of subjects (subdttl), 164. AccentuatLOn of the centralist tendency In theones based on the teadung of Hobbes, 164. (b) On the other hand, we find a federah~t VIew in Germany, 164. The natural-law character of associatiOns, 164 The theory of a natural artIculatiOn of human society mto groups, e~pecIally ill Lelbmz, 164. RecogmtIOn of the CorporatIOn and the State as co-equal, 164 The fulle5t development of thl5 theory to be found 1fl Nettelbladt, 16 4. Systems smular to hiS, 165.
(2) The relatzan of the Corpotatwn to the State
(a) Vzews zmmzcal to Corporatwns. Refusal to recognise assoclatlons a~ having a basl~ in Natural Law re5ults In their not bemg allowed any sanctIOn in Natulal Law, 165. The rcsult of that, in turn, I~ that they are not allowed any sphere of nghts exempt from the State, 165 In connectIOn wah the unhistoncal outlook of the perIod of EnlIghtenment, we find the very eXistence of the CorporatlOn called In questIOn, 165. TIm negatl'vc VIC\\ IS used by
... ThIS subsectIOn is closely analogous to 15 above That subsectIOn dealt WIth the nat~ral-Iaw theory of AssoeiatlOos from 1500 to 1650' this subsectlon deals \Hth the natural-law theory of CorporatIOns from 1650 to 1800 Like IS, ~he pre~ent subsectIOn IS arranged on a ~cheme by \\<luch separate consIderatIon IS gIVen (I) to groups wltlun the Stale, (2) grollp~ above the State, (3) groups parallel to the State.
Analytical Summary
the State to attack the existing social system of Corporations and Estates, r65. At first, the absolutists only demand a limitation of corporations, 166. The exaltation of the State's suzerainty over corporations, 166. The demand that the formatIOn and meeting of groups should receive the assent of government, 166. The right of the State to supervise groups and to co-operate in thrlr actIOn, 166. The right of the State to abolish or transform groups, on grounds of public well-being, 166. Schemes for ideal States, wIth a mechanical and rationalistIC articulation of the body politic [Spll1oza and Hume], 166 and n. 14. The strugglr to anmhIlate corporations, after the middle of the eIghteenth century, espeCially in France, 166. Turgot's extreme theory, 166 Rousseau's refusal to admIt any Idea of the corporative organisatIOn of SOCIety, 166. The abolItion of all particular societies regarded as the aim to be attained, 166 The mfluence of thIS theory on the RevolutIOn, i66. Its apphcatIOn in the confiscation of ecclesiastical property, 167. The development of new self-contradIctions In revolutIonary theory, as the result of its recogmsing the necessity of 10terven10g groups, 167. Along v.ith this recogmtlOn, however, there IS stIll a steady rejection of the old conception of the corporation, 167 Sleycs, 167 Rousseau's idea!> in Germany, 167. Modified applIcatIOn, 167. The Church regarded byJUStI as the only corporate element [n 26]. Schelde~ mantel's conceptIOn of publIc and private SOCIetIes as State-InstItutions, 168 Fichte substitutes the conceptIOn of the State-1OstltutlOn altogethrr for that of the Corporation, 168. The factor ofthe State-mstltutlon In the theory of Kant, 168. His confUSIOn of' corporatIOn' and' foundation', 168. His theory of the unhmited powrr of the State 10 regard to corporations, 168. The dlssolutlOn of 'moral bodIes' regarded by hun as a postulate of the law of Reason, 169
(b) VleWS favourable to CorporatIOns: espeCIally zn the theory of Nettelbladt. But ideas still continue to survIve in the natural-law theory of SocIety, whIch prepare a renascence of the lIberty of corporatlOns III a reJuvenated form, 169. The natural right of associations to eXIst, regarded as a consequence of the theory of the Social Contract, I69. A natural hberty of assoclatlOn IS recogOlbed In prinCIple even by the opponents of the independence of corporations, followlllg the hIles already suggested by Hobbeb, 169. Pufendorf's doctrIne of associations, 169. All groups other than the Family are postenor to the State, 170. Corpora prIVata and publIca, 170. The latter only become corpora legltlma by permiSSIOn of the State, 170. The group-authonty whIch they exercise denved from the State, 170. The results of thI'> dependence, 170. The State a body composed of other bodIes wiuch are its 'members', 170. The use of the conceptIons of soczetas aequalls and znaequalts to attain similar results, 170. Hert explains the relatiOn of the corporate body to the State by basing it on the distinction between the socIetas aequatorla and the soczetas rectoria, 170. J. H. Boehmer's formulatIOn of this new theory of corporations, 17L He limits the natural prmciple of
Analytical Summary
27
liberty of ass~ciation (~) by holding that ass~ia~ions have no separate groul'-authonty of theIr own, and (2) by subjecting them [in a special degree] to the authority of the State, 171. Boehmer's theory of the State's suzerainty over corporatIOns, and of the vanous rights to control their liberty which it involves, 171. The State's nght to prohibit assocIations, and to reqmre them to apply for Its consent, 171. ErectIOn of eollegta publtea by the State, J 71. Its superVISIOn of collegza prIVata, 17 2 No corporate right of self-legislatIOn, self-.JunsdlCtlOn, or self-admmistratIOn, 17 2 Customary righ ts, mUnicipal autonomy, hy-Iaws [note 47]. Rights of taxation [note 49J. Boehmer rejects the conceptIOn ofcorporate office, 172. He leaves corporate pnvileges m a defenceless condition, 172. He delivers corporate property into the hands of the State, 172. The nghts of corporatIOns aSSigned to the sphere of pnvate law, on the- ground of the dIstmctIOn between socIetas aequalts and znaf'qual1s, 172. Boehmer's elaboratIon of thIS pomt of View, 173 Its adoptIOn by TltIUs, 173. The natural-law theory of the contract of socIety IS brought mto line With the ciVIlian theory of corporatIOns, 17). The antltheMs of soczetas aequalls and znaequalls thus comes to be connected WIth the antitheSIS of SOClftas and unwersltas, 173 Hubel's theorv of unwersltates, 173. Certum regImen conSidered all the attnhute of the Unl1'ersltas m contradistinctIOn to the soczetas, 173. ThIS lead, to the- vIew that confirmatIOn by the State IS the logical dIfferentIa of the unu'ersztas, 174 Huber's vIew of organised group-authonty as exerCIsed III the name of the SovereIgn, 174. SImIlar theones in other wnters, 174. On the whole, however, the natural-law doctnlle seeks to attalll a homogeneous theory of all 'SOCIetIes', by elImmating the dlstmctIOn betv.een soczetas and umversltas, '74. The result of thiS attempt IS often to producc a favourable attitude to the mdependence of COl porate bodIes, '7'). Lelbmz a~,umes the eXIstence of an inh('rent SOCJal authonty 111 such bodies, '75 Wolff takes a SimIlar viev., 175 Autonomy and JunsdlCtIOn regarded as the es,enual rights of a society, 175 The State's suzeramtv over corporatIons held to be merely a part orlts general so\erelb'Tl suzerainty, 175 Other exponents of this pam t of Vlev., 175. The freedom of the corporate body m Nettelbladt's system of junsprudence, 175 HIS recogmtIon of the mherent natural nghts OfSoclctIes, 175 HIS view of the ongm of SOCIeties, 175 He allows acqUIred as well as mherent nghts, 176. Potestas and reglmCTl socutatls, 176 The different 'SubJects' of group-authority, accordmg a~ ..,oCletlcs dIffer, 176 The transference of group-authonty to othels, '76 Imperzum as a part of all group-authonty, 176. The content of group-authonty, 176. Nettelbladt explams the dlstmctlOn between SOCIetas aequalts and maequalzs by dIffer~nces in the 'Subject' of group-authonty [and not by the presence or absence of group-authonty, whIch he regards as always present], 17? The mternal rights of corporatIOns, conSIdered as Jura soc/aha SOCIetatIS, In. Nettelbladt's applIcatIOn of these pnnCJplell to the problem of the relation of corporate bodies to the State, J 77. Vanous modes and forms of thIS relation, 177. The five mam speCIes of 'soCIeties', 177 Particu-
28
Analytical Summary
lady the fifth and last species-that of societates privatae in republica, 177. Their creation, 178. Their social authority, J 78. The rights d'f the sovereign in respect of them, 178. The possibility of their being exempt, or privileged, J 78. But it is also possible, conversely, for the political sovereign to possess not only political, but also social authority over such societies, 178. In such a case, there is need for a clear distinction between his political and hIS socIal authority, 178. Achenwall has fundamentally similar VIews, though he does not attain the same logical development of the theory of SOCietas, 178. Hoffbauer, 178. HIS views on the right of citizens to form unions, 179. We also find lIberty of assoclatlOn vindIcated against the State as a fundamental right even by the sternest of mdlVlduahsts, 179. A. L. von Schlozer, 179. W. von Humboldt, 179. Simultaneously, there is also a reaction, based on histOrical grounds, against State-absolutism and Its enmity to corporations, 179. The recogmtion of the necessity of independent aSSOCiatIOns In the State, 179. Mevius [note 90]. MontesqUleu's doctrIne ofthe Importance ofprivileged corporatIons as a defence agamst despotIsm, 179. Justus Moser's fight on behalf of the liberty of corporatlOns, 179. His historical disquisitIOns on towns, gUIlds and leagues (the Hansa), on fraternities and crafts; on the territorial constitution [m the German prIncipalities] and the growth of territorial Estates note 92]. The polItIcal lessons which he draws from these data, 180. HIS defence ofautonomy, 180. HIS proposals for new SOCIal formatIOns on the 'Fellowship' model, 180.
(3) The natural-law conceptwn of the mternal nature of Corporatwns, as affected by the fact of thm mcluszon zn the State
Tqe natural-law conception of the Internal nature of the corporation is a theme which can only be treated hel e from one particular angle: we shall only enqUIre how far the general conception of the nature of groups was affected or modIfIed when the fact of their inclUSIOn In the State came to be taken into account, 180. Two opposing tendenCies, 180.
The Corporatwn as an lnstztutzon (Anstalt) The 'insutution' View, whIch is connected WIth the basing of a society's corporate fights on the eXistence of a Ruling authonty imposed upon it ab extra and de supra, 180. The view prepared by a hne of theory developed in connectIOn WIth Hobbes' doctrine, 181. The importance of the' InstItution' element as the determming factor in the theory of Pufendorf, 181. But a 'Fellowship' view stIll remainS concurrently active in hIS theory, 181. The clearer emergence ofa 'partnershIp' [or socze/as] point of view in PufendOM's successors-Thomasius, Treuer and TalUS, 181 and note 99-. And, partIcularly, the obliteratlOn of any dIstInctIon between partnership and corporation In CundlIng and Hert, 182. Huber's clear-cut conception of the corporatiOn, following the lines of the tradItIOnal [Roman-law] theory of corporations, 182. His differentiation of the corporation from the State and the Family; from the
ea)
Ana?Ytical Summary
ordinary society or community; from 'institutions' without a constitution C)f their own, and from collegiate magistracies with no specific purpose, 182. His combinatIOn of the principle of a collective Grouppersonahty with that of the State-'mstitution' to produce the conception of the univer,ntas, 182. His distinctiOn of soaetas and collegium, particularly with reference to the majority-princIple [note 108]. Similar views in Schmier and In other writers, 183 and note 110. The upshot of such views is that the corporation is treated as being a 'Fellowship' from the point of view of prIvate law, and a State-'mstItution' from the point of view of public law, 183 A similar result is attained, on an exclusively natural-law baSIS Land without any reference to the tradItIOnal civIlJan and canomst law of corporations] by J. H. Boehmer and hIS successors, 183 Development of the nghts of corporations from the conception of the soaetas aequalu, regarded as a society without any social authOrIty, 183. ThIS IS supplemented by the Idea of the State-'instltutIon', 183. The' FellowshIp' prInCIple could be applIed when It was assumed that an 'equal society' mIght possess social authOrIty, or, again. when It was admitted that an 'unequal SOCIety' could be created by contract alone [without State-mterventlon], 183. But even on thIS baSIS we find publ~c bodies, e.g. local commumtIes, treated as merely State-' InstItutIOns', 18 3. The State-' instItution' point of VIew pressed to Its conclUSiOn in the theOrIes Immical to corporatIOns whIch origmate 1I1 France, 183. Here there IS no distinction between corporatIOns and SImple 'foundations' [StiftungenJ, 184 Turgot rnote Il6]. Scheidemantel [note 116]. Kant, 184-. W. von Humboldt, 184- and note 118.
(b) The Corporation as a

theory of Nettelbladt.
Fellowsh~p
(Genossenschaft), especwlly
tn
the
The' FellowshIp' point of VIeW, as it appears in the form of naturallaw theory which explains the legal pOSItIOn of corporatIOns as ansmg from a voluntary contract of socIety, 184-. To some extent, thIS is the mevItable result of the general natural-law theory ofSOCIety, 184 The recognitIOn of the' FellowshIp' group as being a 'SubJect' ofnghts whIch, though It may be imperfect, IS none the less, so far as it goes, independent [I.e. is inherently a 'SubJect', and does not owe that position to the State], 184. The soczetas as a moral person m the theory of Huber, 184. In Pufendorf's type of theory, purely 'collectIve' persons are also recogmsed, 184. The soaetas aequalzs as a moral person m the theories of Hert and Boehmer, 185. The imperfection of the 'collective' person constItuted on thIS sort of basis, 185. It IS, at bottom, only a case of the 'jomt hand', 185. Th~ 'Fellowship' as possessmg the full rights of a corporate body on the basis ofa contract ofsociety, 185. It is presupposed, on such a view, that the contract can produce a social authOrIty, 185. The attempts to JustifY this view in Germany, and especially that of Wolff, 185. The development of this doctrine by Nettelbladt, and his application of it to
Analytcal Summary
positive law, 185. He bases the internal rights of corporations upon a foundatIon of contract, 186. He explains social authority as a SlAm of rights of individuals, 186. The exercise of this authority by all the individual members, except in so far as it has been transferred by contract into other hands, 186. Majority-decisions and the acts of representatives, 186. Alterations in personnel through the receptIon of new members by mt'.ans of a new contract, 186. The exclusion of members by the same means, 186. The appomtment of officers ofa society, 186. The persona moralzs thus constituted, 187. The elaboration of these ideas in connection with both natural and positive law in Nettelbladt's scheme of ]unsprudentza soaahs, 187. The matters dealt with m this scheme, 187. (I) The theory of corporate acts or deCIsions, 187. The majority-prmciple and Jura smgulorum mother wnters on Natural Law (Wolff, Daries, Achenwall, Hoffbauer, C. von Schlozer) [note 139]. (2) Nette1bladt's account of the things which may be the objects of corporate ownershIp, 188. The domlmum solltarlum of the SOCietas, 188. Res societatum patrzmonzales and rer sonetatum In rpecle SIC dictae, 188. The applicatJOn of these categones 10 the field of positIve law, 188. (3) Leges SOCltatum, eIther as leges conventtonales, or as leges propne SIC dlctat, 189. Statuta umversztatls and 'observance~' in the field of pOSItive law, 18g. (4) The legal proceedIng'S of corporate bodIes, conSidered as negotla publIca, or as prwata, 18g. (5) Obllgatzones soczetatum oblrgatlones smgulorum and obllgatzones SOCIetatiS, 18g. ObhgatIOns ex delzcto on the part of a universitas exiSt, according to Nettelbladt, only at posItIve law, smce a corporate body IS naturally and mherently lIlcapable of a dehct, 18g. But a capacity for dehct IS recogmsed by most of the wnters on Natural Law, 190. (6) Nettelbladt's theoryoftheJurG srngulorum, Igo. The clasSIficatIon of these Jura, Igo. ApplIcation of the theory of such Jura In the field of pOSItive law, 191. (7) Pos~esslOn and quasI-posseSSIOn by societIes, 191. The acqU1l>ltIon and loss of posseSSIOn as agamst a UnlVersltas, 191. (8) Remedza JUriS In appllcatlOne ad socretales, 19 I. ThIs natural-law theory [of Nettelbladt] may be conSidered as a reaction of the German conception of' FellowshIp' agamst the foreIgn conceptIon of the corporatIon, 191. But he has no conception of the existence of a substantIve Group-bemg, 192 The res toratlon of the German conceptIon of the 'jomt hand' by the school of Natural Law, 192. The fUSion ofmdivldual spheres 1Il a corn man sphere, 192. The applIcatIOn of the conception of the persona moralts even to mere cases of the 'joint hand " 192. Its use in reference to the posItIon of the famIly-communIty, 192. Its extenSIOn by Nettelbladt to broader famI1y-groups-the anstocratic 'House' and the House-property belonging to 'the hne', 193. The organs and parts of a group regarded as dlstmct moral persons, 193 The union of different' Subjects' in a [supposed] mOlal person m the cases of partnershIp for 'profit, co-ownership and other legal relatIons involving common rights and duties, 193. When, however, the gap between what IS 'Jomt' and what is 'common' IS thus closed, the conception of a real Group-personality is lost, 193. The dropping of the idea of a Group-person which is distinct
Anarytical Summary
3I
from all individual persons, 194. The attenuation of corporate unity, 194. The introduction .of a persona repraesentativa in order to produce an independent group-umty, 194. The dissolutIon of all group-existence IS the ultImate result of these theories, 194. The conceptIOn of the moral person reduced to a technical figure of spee~h, 194. The extremest formulatIOn of the final results of this tendency IS that ofW. von Humboldt, 194-1~5. II. GROUPS ABOVE THE STATE
Internatwnal sonery and fideratwns

Conflicting views in the natural-law theory of corporatlOns reflected in the treatment of super-State groups, 19:>. InternatIonal SOcIety, '95 The absolute rejection of the idea of such a society, on the assumptIOn that a non-socIal state of nature sull continues to eXIst In thC relatIOn of States, 195. Pufendorf, 195. Jusu [note 17 2 ] In OpposItIon to tius view, there IS the assumptlOn of a natural SOCIety of States, 196. The recogmtion ofpOSItIve international law, Ig6. MevlUs, 196. LeIbmz, 196 ThomaslUs, 19b. Wolff and his successors, 196. The nature of the SOCIety of States, as a socutas aequalzs, 196. SIde by sIde WIth this VIew, we also find the Idea of a clVllas maXIma, 196. Kant's world-State [note I77J FJchte [note 177]. RecogmtlOn of partIcular SOCIetIes of States [I.e federations], Ig0. RCJcctIOn of thc Idea of the 'compo~Ite' State, under the influence of Pufendorf, 196 Federal relatIOns, 196. The pecuhar theory of ThomaslUs [notc 179]. Foedera slmplzCla and systemata clVztatum, 196. The classIficatIOn of 'Systems of States', 197. Real Unrons, 197. Corpora confoederalorum not real States, 197. In contradIstmCtlOn to Pufendorf, we find some writers makmg an approach to the Idea of a truly federal fOlm of State, by assummg the possIbIlIty of a federal authorIty, 197. RecogmtlOn of mtervening forms, WIth reference to the German constItution, 197. The re-mtroductIon of the conceptlOn of the federal State mto Natural Law, 197. LeIbniz, 197. Montesqweu, 197. Nettelbladt, 197. HIS respubhca composiia, 198. Its harmony WIth the positive law of the German constituuon, 198. III GROUPS WITHIN THE STATE: THE CHURCH
The Church and ItS relation to the State, as mterpreted under the mftuence of the natural-law theory of socIety, 198.
CHAPTER I
THE PERIOD DOWN TO THE MIDDLE OF THE SEVENTEENTH CENTVR Y

SECTION V
THE INFLUENGE OF THE NATURAL-LAW THEORY OF SOCIETY
14- and 15
CHAPTER I: SECTION V, I4 THE NATURAL-LAW CONCEPTION OF THE STATE

I. General mew of Natural Law
I. The intellectual force which finally dissolved the medieval view of the nature of human Groups was the Law of Nature. Quickening, during thi~ epoch, * the germ~ of thought which had already developed In the cour~e of the Middle Ages, and (ambining them, in a growing indt'pendence of theIr own, into an orgamc unity, the theory of Natural Law now confronted the doctrmal edifice of the civilists and the canomsts as a definite system, which not only claimed universal theoretlcal validity, but also demanded practical applicatlOn The Law of Nature issued in a natural-law theory of the State; and It was by developing such a theory that it affected the movement of history most powerfully (I). The natural-law theory of the State was a guide to all the political efforts and struggles from whleh the modern State proceeds It i~ true that speculation was also affected by action, and that every development of the world of thought in this period was an echo and reverberatlOn of historical events But the relation of the natural-law theory of the State to the actual process of history wa~ never purely passive. On the contrary, it served as a pioneer in preparing the transformatiOn of human hfe; it forged the intellectual arms for the struggle of new social forces; it dls~eminatcd ideas which, long before they even approached realisation, found admittance i11to the thought of influentIal cilcles, and became, m that way, the objects of practical effort. In opposition to pOSItIve jurisprudence, which stIll continued to show a Conservative trend, the natural-law theory of the State was Radical to the very core oflts being. Unhistorical in the foundations on which it was built, it was also directed, in its efforts and its result:'" not to the purpose of scientific explanation of the
The theones dIScussed, and the wOlks Clted,

sectloll ( 15) belong to the period 1500-165.
1ll tillS
and the followmg sub-
(All notes marked thus t t are by the translator. Notes marked by a number are by GIerke lumself, and are prlll'ed separately In the latter part of the VOlume.)
36
Gierke's Text: the Period down to 1650
past, but to that of the exposition and justification of a new futur~ which was to be called into existence. 2. The form of expression which the natural-law theory of the State assumed, and which was destined to control the course of future thought, was due to the intimate connection established, from 1570 onwards, between legal philosophy and political theory. It is true that, at first, the State was only incidentally mentioned in the works which dealt with the Law of Nature(2). But the ecclesiastical writers on Natural Law, who generally belong to the Jesuit or the Dominican Order, are already [in the sixteenth century] constructing a system of political theory which is based entirely on the law of Rea<;on (3). Such a system may be found, in its most developed form, in the writings of Suarez(4). It was a definite epoch in the history of thought when Grotius proceeded to elaborate a purdy secular philosophy of law which embraced the whole of the life of the State, external as well as mternal(s). Long before his time, however, the theory of the State had been placed upon a basis of Natural Law by the writers who dealt with politics proper. It is true that there always continued to exist a polItical literature which sought exclusively, or at any rate mainly, to handle practical questions of pure utility, and only referred incidentally, at the most, to the legal bases ofpubhc life (6). We may even say that the treatises which dealt with TalSOn d'etat were ex~ pressly directed against any exaggeration of the value of juristic interpretation (7). But it was generally regarded as the duty of political theory to include the legal nature of the State in the sphere of Its investigations, and to propound accordingly a theory of 'general public law' (allgememes Staatsrecht) i* and thIS method of procedure increasingly strengthened the tendency to think 10 terms of Natural Law We must admit, indeed, that the thinkers who still persisted in making the Polttzcs of Aristotle their basis, or followed other claSSIcal models, were far from adopting all the elements of the new mode of speculation. The De Republzca of Gregorius Tholosanus, for example (8), the wntings of Arnisaeus(g), the numerous political disquiSItions of Conring(lo), and many other works on political theory, both of an earlier and a later date(ll), can none of them be ascribed to the authentic current of natural-law speculation. But, on the whole, the natural-law theory
PublIc Law (Staat.rrecht or offentllches Recht) 18 what we should call ConstitutIOnal Law-the law concerned With the nghts and duties of the State. It 18 contrasted With private law, which deals With the nghts and duties of subjects anter St.
14 The natural-law conception
of the State
37
of the State finally won the day when Bodin, in his De Republica, emancipated the theory of public law from the classical tradition, and made the modern conception of sovereignty the pivot of his argument(I2). In particular, the literary controversies on the political and religious issues of the day increasingly tended, after his time, to broaden out into fundamental differences about the nature of sovereignty; and throughout the course of these controversies the champions of popular sovereignty(I3), like the defenders of the sovereignty of the Ruler(I4), availed themselves of the weapons of Natural Law. Espousing the cause of popular sovereignty, Althusius then proceeded, early in the seventeenth century, to erect the first complete system of political theory whkh was wholly based on Natural Law(Is). Mter his time we find numerous textbooks of politIcal theory which, however widely they may diverge in their fundamental tendencies, are nearly always agreed in attempting to find thejustificatlOn ofthclr contentions in a naturallaw theory of the State(Io). Bcsold stood alone in combimng an interpretation of the State in terms of Natural Law (an interpretation which, as we have already had reason to notice, * now begins to pervade the scientific treatment even of posltzve public law) WIth an historico-Iegal j ustification of the status quo ( 17). Fmally, at the end of this period [i e. about 1650], the political theory based upon Natural Law received from the RadIcal audacity of Hobbes a form which wa, at once the culminatIOn of its past and the foundation of its future development(I8). Overreachmg itself in the very ngour of its logic, hi~ theory threatened the utter extinction of any genuine publIc law. 3. The natural-law point of view affected public law at an earlier date, and with greater force, than it affected private law; and this m spite of the fact (or perhaps because of the fact) that opinions about the relation betwecn natural and positive law (,ontinued to be more fluid, and more uncertain, in the sphere of public than they were in that of private law. The rcason was that public law lacked the solid basis which the jurisprudence of the civilians, t
... The reference is to an earher subsectlOn ( 2) ""hIch is not here translated. t T,lie clvlhans are the lawyers of Roman law, whIch had been studied and developed durmg the whole of the MIddle Ages, ill western Europe at large, and contmued to be studIed and developed ill Gennany, as a usus modernus, during the penod from 1 ')00 to 1800, of which GIerke treats On the whole, as GIerke implies, the CIVIlIans were mamly concerned WIth questions of private law.
38
Gierke's Text: the Period down
to
1650
interminably though it was occupied in spinning a web of controversies about the nature and the extent of Natural Law: was always able to find in its reliance upon texts of Roman law. The jurists generally started from a division (at bottom only appropriate to the sphere of private law), according to which law fell into the three branches of jus naturale, jus genttum, andjus cwzle. They often proceeded, following the lines of the theories of the Middle Ages, to distinguish between the 'primary' and the 'secondary' rules of Jus naturale and JUS gentzum (19), or, confining themselves to the latter, they sought to draw a contrast between jus gentium primaevum and jus gentzum secundaTlUm(2o); but the tendency grew in favour of a doctrine of simplification, which ignored such subdivisions as foreign to the original texts(21). As this tendency spread, the common foundation of both jus naturale and jus gentzum in the dictates of the natural reason of man also came to be emphasised more strongly (22). But what was primanly intended to be conveyed by such emphasis was only the simple fact of a line of division between those parts of the system of prwate law which were uniform and immutable, and those which were subject to change. We accordingly find a number of jurists going to the length of maintaining that the whole distmction [between uniform or natural and variable or positive elements] had no application to public law, and that pubhc law, on the contrary, was entirely and totally positive (23). The majority, however, took a different line. They ascribed to JUS publzcum [equally w1th private law] a mixed content drawn from all the three sources of Jus naturale,jus gentzum, and Jus positzvum(24). But as soon as a separation of these various elements was attempted, the category of JUS genttum inevitably proved itself to be inapplicable to public law(2S). The result was -in the sphere of the philosophy of law and of political theory as well as in the legal treatises of jurists who included public law in their scope-that the tripartite division of law yielded more and more to a simple division between the categories of natural and positive law (26). Even when the Roman conception of JUs gentium was actually retained, it usually lost any separate and independent significance; and it receded altogether into the background as an effective element in the constitution of the State(27). Thusthere was gradually developed a theory of pure Natural Law, * in which
I e m the sphere of public law, the element ofJUS 1Iilturale was left alone,
or 'pure' (the element of Jus gentIUm haVing almost entirely disappeared), to confront the element ofJus posltJvum.
14 The natural-law conception of the State
39
the conception ofjus gentium only appeared, in the entirely changed sens~ of international law, as the particular form of Natural Law which was valid among sovereign States(28). It is astonishing to find this theory of pure Natural Law made to cover all the fundamental relations involved, and to decide all the fundamental questions raised, in the whole of the life of the State. Yet its adherents were unanimous that the transition from a state of nature, exclusively controlled by Natural Law, to the conditions of political bfe, had always been made in obedience to immutable natural rules, and that the union of men in a political society, and the erection of a political authority, had always taken place in virtue of the same eternal prinCiples. The first product of pOSItive law, and the first occasion for the play of human will, which they consented to admit, was merely the choice of a partIcular form of State (2g) POSItive law being denied any capacity to affect or disturb the foundations of Natural Law, the solution of every fundamental prouIem in regard to the relation of the community to the individual, or that of the Ruler to the People, was accordingly left to the "cope of a Law of Nature which sat high enthroned above the whole of lustorically established law. Now the primary practical object pursued by the theorists of Natural Law was the delimitation of an area withm which objective Right* should be withdrawn from the caprice of the legislator, and subjective Right ~hould escape the ati,acks of the State's authority (30); and the investigation of the limits of thIS area immediately entailed a far greater latItude of discus"ion on questions of public law than had ever previously been possible in the sphere of civilian theorY(3I). It was thus With a new and unprecedented force that the theory of Natural Law was able to enter the domain of public law, and to impose its claim to measure existing institutions by the lfrefragable rule of Reason(32). And It was preeminently in that domain that the exponents of this theory came more and more to regard their ultimate task as consisting in the discovery of a rational ideal, which) If it could never be fully
The same word Recht means (a) a system of law eXIsting objectIvely as an external norm for persons, and (b) a system of rIghts enjoyed by those persons, as 'S~bjects' or owners of nghts, under and by virtue of that norm. The same thing is both a system of la\l- outsIde me, when I look at It objectively, as obligatory upon me, and a system ofnghts inSIde me, when I look at It subJectively, as belongmg to me and as givmg me a legal poSitIOn. Objective RIght is what we call Law; subjectIve Right IS what we cal. nghts But the two are different SIdes of the same thing, like the obverse and the reverse of a coin.
40
Gierke's Text: the Period down to z650
realised in actual life, was none the less to be made the object of a constant effort at approximation(33).'" 4. In the theories about the nature ofthe State, which developed under the influence of this intellectual movement, there were contradictory elements, which conflicted seriously with one another; but the natural-law theorists were all agreed in making a definite break with the political ideas which had originated in the Middle Ages. The theocratic idea waned (34). The State was no longer derived from the divinely ordained harmony of the universal whole; it was no longer explained as a partial whole which was derived from, and preserved by, the existence of the greater: it was simply explained by itself. The starting-point of speculation ceased to be general humanity: it became the individual and self-sufficing sovereign State; and this individual State was regarded as based on a union of individuals, in obedience to the dictates of Natural Law, to form a society armed with supreme power.
II. General view of Soverezgnty m natural-law theory

I. Two necessary attributes are thus presented [in this naturallaw system of political theory] as determining the conception of the State. One is the existence of a society (societas cwzlzs) , directed to the objects which compel men to live together: the other is the existence of a sovereign power (majestas, summa poteltas, summum impenum, supremltas, etc.), which secures the attainment of the common end. Both of these attributes recur in every definition of the State(3S). But it was the <;econd which, as soon as Bodin had taken his decisive step, came into prominence; for while the State shares the character of a purposive society with other forms of association, the attribute of sovereignty is its peculiar and specific criterion. The philosophical theory of the State thus becomes increasingly, and essentially, a theory of soverelgnty(36). Sovereignty ('majesty', 'supremacy', etc.),t in the theory of Natural Law, not only means a particular form or quality of political authority; it also means political authority itself, in its
I.e. the theonsts of Natural Law concentrated on the constitunonal side oflaw (= public law), and attempted to lay down the' natural' or proper form of constItutional law for all States, or rather to enunciate an ldeal fonn ~lueh all States should seek to attaUl We may say that thIS tendenc..y IS parhcularly illwtrated In Vattel's Drotl des Gens, ou pnnapes de la lOt naturelle, especially in Book I. t Majestas is the wual LatUl word for sovereIgnty, and 'majesty' is often used by Gierke as synonymous With sovereignty.
14. The natural-law conception of the State
4I
own essential substance (37). The word' sovereignty' becomes something in the nature of a magic wand, which can conjure up the whole seJlse and content of the State's general power. The original negative conception-the conception of a power which is not externally subject to any Superior-is made to assume a positive form by being as it were turned 'outside in', and used to denote the relation of the State to everything which is within itself. From the quality of being the 'supreme' earthly authority [i.e. the quality of being simply the hzghest authority], there is deduced the whole of that absolute omnipotence [i e. the quality of being the onlY authonty, and therefore unlimited and all-powerful] which the modern State demands for Itself. rNor is this creed the monopoly of one side] The champions of popular sovereignty vie with the defenders of monarchism in exaltmg its claims.'" It is true that all sorts of dIfferences arose about the extent and ('ontent of thIS exclusive power. Different conceptions of the end of the State necessarily entailed dIfferent conclusions about the extent of the rights of 'majesty' which served as the means of its reahsation; more especially, the ecclesiastical limitation of the end of the State to the secular sphere involved a large reservation in favour of ecclesiastical authority. Different views about the efficacy, and the extent, of the legal limits whIch were regarded as bindmg even on the supreme power also produced a variety of different interpretations of the maxim that sovereIgnty was a potestas legzbus soluta, an 'absolute' plemtude of power. With these, in turn, were connected the controversies which turned on the possibIlity of a division, or multiplicatIOn, or limitatIOn of 'maJcsty'-controversies which raised the question whether the legal ideas which any such possibility involved were really consistent WIth the logical presupposition of the unity, indivisibility, and inalienability of the supreme power. On one point, however, there was general agreement. Whatever the form it took, this right of sovereignty was a right which was given and inherent in the very conception of the State. On thi~ it followed that the origin of 'majesty' (though there might be a number of explanations of its precise mode) was always ascribed to one single general cause-the original act of State-creation, in obedilfnce to Natural Law, which was anterior and superior to the process of historical legal development. When sovereignty was
II< E.g. Rousseau may be satd to vie with Hobbes in exaltmg sovereignty, though his sovereign 15 the General Will, and not a single LeViathan.
42
Gitrke's Text: the Period down to r6so
regarded as an inherent and original right of the State, there could be no need to explain it by any particular title of acquisition. When it was regarded as an mdestructzble right, it was secure against the assault of any legal title of more recent origin by which it might be confronted. And it was the whole of the substance of sovereignty which was thus secured and protected. Being a right which was both all-inclusive and sui generzs, sovereignty must necessarily embrace each and every particular right of control which belonged to the nature of the State. In terms of adulation, it was compared to the inexhaustible ocean, which receives again into itself all its own effluences' it was celebrated as a sun, the source of universal light and heat, whose radiation never diminishes the eternal central fires (38). 2. But the more sovereignty was exalted, the hotter raged the dispute about its 'Subject' or owner(39).* Here again the ultimate decision was sought on the basis of Natural Law. Though there was a general agreement that a variety of constitutional forms had been produced by positive law, the fundamental issue of the ownership of sovereignty was none the less regarded as prior to the historical differentiation of constltutlOns. In all forms of State indifferently, a distinction was drawn between the Ruler and the body of the Ruled: the legal baSIS of the Ruler's authority was regularly ascribed to a previous devolution of its own authority by the body of the Ruled; and in this way it was easy to produce a single formula, equally applicable to monarchIes and to anstocratic or democratic republics, which expressed, in terms universally valid, the relations always existing between Ruler and People under the system of Natural Law. From this point of view it was regarded as a secondary question-a question of mere historical title, irrelevant to the deeper question of principle--whether It was a single person, or a privileged assembly, or an assembly of all deciding by majority-vote, that held the position of Ruler in any actual State (40). Even the controversy about the possibility of a mixed constitution (though falling within the scope of Natural Law, in
As we saw above, Recht In generallS both Object , and 'Subject'. Something simllar IS true of my own particular element of Recht. My nght of property m land has an 'ObJect'-the piece of land lawn, which lS the objective expression of that particular nght It has also a 'Subject'-myself as owner. which is the subjective expression. Wherever' Subject' IS used in the fonowmg pages (generally, for the sake of clanty. With the additIOn of the words 'or owner'), thIS 18 its sense. From this POInt of view 'subject' in our EnglIsh sense ('the King's subject') is the 'Object' of sovereignty. When the word 'subject' is used with a small's'. the reader is asked to take It in this latter sense.
43
virtue of its bearing on the nature of the State's authority) was treated as posterior and secondary to the settlement of the fundamental issue of the 'Subject' of sovereignty-on the ground that it only related, after all, to the internal structure and composition of the Ruling authority (41). The primary question on which debate always turned was purely that of the positiuns to be accorded to People and Ruler on the basis of Natural Law. On this question, as we can readily understand, it was the figure of the Monarch which presented itself fil st to the minds of most thinkers. But we have to remember that, just as the champions of monarchical claims exprcssly allowed that the' Lollective' Ruler in a Republic posscssed the same plenItude of power which they ascribed to the Monarch (42), so the opponents of princely absolutism equally attempted to limit both monarchy and democracy. Havmg ascribed certain overriding powers to the body of the People under a monarchical system, they proceeded, logically enough, to argue that even in a purely democratIc State such overriding powers, belonging as they dId to the whole body of the People, were dIstinct from the ordinary right,> belonging to the majority of the aS5embly which was vested WIth Ruling authority(43) We can thus understand how the natural-law theory of the State came to be radically divided into the two sharply contrasted schools of 'Popular Sovereignty' and 'the Sovereignty of the Ruler'-with the middle view ofa 'double majesty' intercalated (in a variety of forms) bctween the tWO(44). But there is also a further cleavage to be noted in the natural-law theory of the State. Among the adherent,> of simple sovereignty [whether of Ruler or People-as distinct from the advocates of 'double majesty'], a number of dIfferent shades of opinion may be distinguished, determined by the extent to which thinkers assumed the existence of some fundamental limitation--either of Popular Sovereignty, by an independent right belonging to the Ruler; or, conversely, of the Sovereignty of the Ruler, by some mdependent right belonging to the body of the people (45). Over and above this, we have still to note a third and final cleavage. The question arose of the extent to which the' Subject' of Ruling authority (whether such authority was conceived as sovereignty pure and simple, or as 'secondary' soverc!ignty, or even as not being sovereignty at all)t could be
* The theory of duplex majestas, as we shall see later, means the theory of the cOllJOlnt sovereignty of both Ruler and People t Rulmg authonty may be ~overelgnty pure and simple, as in a pure monarchyor republic: It may only be secondary sovereignty, e.g when a monarch
44
qualified and controlled by positive law (46) ; and, more particularly, how far, in such a case, a division of this authority afnong several I Subjects', or a participation of several I Subjects' in its exercise, could be regarded as possible(47).
III. People and Ruler as separate personabties

I. In the conflict of political theories People and Ruler thus came to be opposed as 1"lval powers; and each of these powers, when once it had vindicated for itself any political right whatever, was bound to be regarded as a separate personality. * Vve have now to enquire what conceptions were held of the personality of the People on the one side, and of that of the Ruler on the other; and then we shall have to conslder whether, and if so how, it was found possible to transcend the- dualism of the two by a conception of the one personality of the State. It was universally held, until Hobbes dealt a death-blow to the idea, that the People possessed a separate personality. Thinkers were agreed that the People had originally owned political power, whole and undivided, and had subsequently, by a contract, subjected itself to a Ruler(48) But to possess the capaCity for such an act, the People mmt already have been-before the erection of such an authonty, and Independently of its exi!ltence-a definite 'Subject' or owner of rights (49). In the VIew of all the upholders of the theory of contract In this period [i.e. before Hobbes], the institution of a government did not imply that the People thereby surrendered every politkal right, but only that it renounced its sole possession of nghts. To the belIevers In Popular Sovereignty, the People stilI remained, as much as befi)re, the 'Subject' or owner of 'majesty'; to the exponents of the theory of 'double sovereignty', it was still the 'Subject' of the greater of the two 'maJesties' ; to the advocates of the theory of a limited sovereignty of the Ruler, it continued to be the 'Subject' of the rights which limited 'majesty'; and even the champions of the absolu te power of the Ruler reserved for the People at any rate two things-a claim to the due fulfilment of the contract of government, and the
owes ius rulmg authority to the primary sovereignty of the people, or exercISes it subject Lhereto. It may not bf' sovereignty at all, if the Ruler IS a mere delegate or commissary. A right involve~ a' Subje<:t', a 'SubJect' ofa nght is a person; and a person has personality. If there are State-rights, there must be some person, with a personality, as their' SubJect'. Is that person the People, or the Ruler, or can it be something above both?
45
right of resuming possession of I majesty' in the event of its alienationCio). It followed, that, even after the State had already been formed, the People still preserved, to some degree or other, a personality of its own, which must of course be the same as its original personality (5 I) . But if it thus existed before any political authority, and independently of such authority, the personality of the People was inevitably bound to be conceived as being of the nature of a purely collective personality. It is true that it was the universal habit of thinkers-using terms such as unwersitas, communztas, or corpus, and callmg in aid the [Roman-law] theory of the Corporation-to explam the personality of the People as a corporate [and not a collective] unity This was the case with the Monarchomachi, among whom we find Junius Brutus [the author of the Vzndzczae contra Tyrannos*], like Althusius afterwards, making an extensive use of the theory of the Corporation (52). The idea of the People as a corporate unity also appears in the theories of double sovereigntY(53), and in the cognate theory of Grotius (54); it IS used in the worh whICh advocate the doctrine of the limited sovereignty of the Ruler, and especially in the ecclesia5tical theory of politics developed by Soto, MolIna and Suarez (55); and it may even be traced in the wntmgs of the absolutists, so far as they deal with the rights of the People(56). But though the writers of our period [1500-1650] thm brought the popular commumty under the head of the conception of Corporation, they steadily followed a line of thought whIch tcnded to the dissolution of corporate existence, in all its forms, into partnership connections with a merely collective unity; and while they borrowed from the theory of the Corporation, they borrowed only those prinCIples which fitted mto this tendency. This explains why thcy had no objecuon to describing the popular community as a soneta.<., and believing that it actually was a soczetas, at the san~e time that they also applied the theory of the Corporation (57). t If, on the other hand, the conception of 'partnership' was taken seriously, and if it was genuinely applied to the community of the People, the internal substance of this community was bound to dissolve itself into a mere sy5tem of reciprocal rights and dunes of indIviduals. Even the thinkers who
... <'1n the authorshIp of thIS work see E Barker (essay in Church, State and Study on the' Huguenot theory of polltIcs', and CambTldge HIS/oTlcal Journal, J 930). t We have here to dIStInguISh the unIVerSitas, or corporate umty, from the SOCietas, or partnership, In whIch the members remaIn dIStinct, In spite of their connection, and the unity is thus 'collectn.:' rather than corporate.
46
Gurke's Text: the Period down to 1650
clung to the doctrine of Aristotle, and sought to lay particular emphasis on the natural growth of civil society, could opp06e no permanent barrier to this process ofdissolution (S8). When the theory of the social contract triumphed, and the unity of the People was referred to a contractual act, it became entirely impossible to escape from the circle of individualistic ideas (59). There were, indeed, some of the natural-law theorists who attempted, in ."pitc of their individualhti{: premise.", to attain the idea of a Universal which existed in its own nght, and to believe in a Whole which depended only upon itself. The ecclesiastical writers on the philosophy of law, in particular, sought to prove that the commumty of the People, though it was freely created by individuals, dId not derive It" rights from them (Go) ; but in defending such a paradox eyen the ability of a Suarez could only produce an ingenious Jeu d'esprzt(61) * In the philosophy of thes{" writers, equally with the rest, a sovereIgn Umvcrsal whIch proceeded from the contractual act of autonomom individuab was bound to remain at the level of an aggregate of indIVldual~(62). If the conception of a social contract was pushed to ib logical conclusion, any rIght belonging to a commuruty was necessarily reduced to the collective rights of a number ofindinduab (63) ; and thc internal nexus of the popular community became nothing more than a network of contractual relationshIps between its various members(64). In the writings of AlthmlUs we already find the idea of mere 'soCIal' connccuon [or, in other \\ ords, the Idea of simple 'partnership '] extended to the whole of the State, and this in spite of the fact that he lays more cmphasl~ than any other writer upon its corporate character (65). Grotim, too, may be saId to fill the formal mould of CorporatIOn with the actual ore of soczetas(66). Yet it is ObVIOUS that, if you limit the mtcrnal nexus ofa commurnty to a mere matter of reciprocal nghts and dutiee; among all its individual units, you can only gi\c the People the unity which it needs, in order to be a 'Subject' of rights, by assummg a merely external form of as~ociation between its members. t It is thus a purely' collective' interpretatIOn of thc personality of the People which really predommates in the natural-law theory of the State. The People IS made co-extensive WIth the sum of its constituent units; and yet simultaneously, when the need;"" felt
GIerke seems unjust to Suarez In this remark. See the translator's note~ appended to notes 60 and U2. t And therefore you cannot really speak at all of a Corporation, which IS 50metlung transcendlllg any mere external form of assOCiatIOn.
47
for a single bearer (Trager) of the rights of the People, it is treated as eS!JIentially a unit in itself(67). The whole distinction between the unity and the multiplicity of the community is reduced to a mere difference of point of view, according as omnes is interpreted as omnes ut universi or as omnes ut szngulz(68). The eye resolved upon 'reality' refuses to recognise, in the living and permanent unity of the existence of a People, anything more than an unsubstantial shadow; and it dismisses as a 'jUristIC fictlon' the elevation of this living unity to the rank ofa Person(69).* On the basis of this logic the common will was dissolved into a mere agreement of individual wills (7o) ; and thus the co-operation of every individual came to be regarded as inhercntly nece~~ary, if the popular community was to act directly and immedIately as such (7 1). t Somewhat inconsequentlally, this demand for unanimity was only sustained in regard to two points-the original constItution of civil society, and the subsequent alteratIOn of certam of the original articles on which its existence depended (72); and on other points majonty-decision wac; regarded as adequate'(73). But thIS required a further fictIOn [in addition to the anginal 'fictIOn' that the People was a Person], in order to justIfy the identIfication of majority-wIll with the common will of all (74). A similar difficulty arose in regard to the representation of the People. Any capacity for acting in lieu of the People could only be ascribed, from the general point of view with which we are deahng, to a procuratorial power conferred collectively by all individuals. Once more, therefore, recourse was had to a fictionthe fiction of the bestowal of such procuratorial powers in and by the act of electiont-in order to Justify the assumption (which actual facts made inevitable) that it was possible for th,e popular
* The reader may pOSSIbly sympatluse WIth 'the eye resolved upon realIty'; and he may thus be led to doubt whether what GIerke calls the Daseznseznhezt des Volkes I~ really a substance, m the sense of a bcm~ or person The unity of eXIstence present m a People may be argued to be the Ulllty of a common content of many mmds, or m other words of a common pUlpOSC, bUI nol the umly of a Group-Bemg or a Group-Person. t In other words all the member~ must pass a unammous declSlon, If the commumty was to act otherwIse than through mme 'organ' or agency. t It may be doubted whether the be~towal of procuratonal powers m and by the act of election should be regarded a~ a fiction In England, Edward I actual1'y and expressly reqUIred that representatIves should be gIven plena et sujJiclens potestas pro se et commumtate . Ita quod pro difectu hu}usmodl j!otestatlS negotlumJ!raedlctum Infectum non remaneat (Stubbs, Select Charters, 9th ed., PP 48[-2). The English clergy were usmg lzterae procuratorzae early in the thIrteenth century , E Barker, The DomInican Order and COT/VOcatIOn, pp. 48-50.
cr.
48
Gierke's Text: the Pen'od down to 1650
community to be 'represented' in the exercise of its political rights by an assembly of Estates (75). The thinkers who strictly adhe:red to the logic of their premises proceeded to contend that the People itself still enjoyed, as against its own representatives, the position ofthe head ofa business (Geschaftsherr) (76). Althusius in particular, although he applied the idea of the representative constitution at every point, * attempted none the less to protect the sovereignty of the community from the danger of being absorbed by its own representatives (77). But even when, in actual fact, nothing at all survived in the way of direct and immediate rights of the People, the view continued to be maintained, as a matter of theory, that the collective unity of the whole People still continued to be the true 'Subject' or owner of popular rights, over and above any assembly of Estates which was actually entitled to exercise such rights (78). 2. A separate personality of the Ruler, distinct from that of the People, was generally recognised as the' Subject' of the rights of government. Such a view was obviously entailed both by the theory of the Sovereignty of the Ruler and by that of a double sovereignty; but even the pure theory of Popular Sovereignty, as long as it continued to include the Idea of a contract of government, t which was first overthrown by Rousseau, was necessarily committed to the admission of an independent personality belonging to the Ruler(79). Without such a personality, it is obvious, a permanent relation of contract between Ruler and People was inconceivable But this personality of the Ruler necessarily vaned in character, accordmg as the right to rule was assigned to a single person, or vested in a body of persons (80). Moreover, if the possibility of a mixed constItution were admitted, the personalIty of the Ruler might be divided into a number of personalities; or short of this, if a single comtitutionally limited Ruling authority were allowed to be possible, that Ruling authonty might find at its side another 'Subject' [in the shape of the authOrIty enforcing the constitutional limits] which had a conjoint right to the exercise of
... I e. holdmg a federal idea of the State, AlthuslU8 applIed the Idea of representatIon both to the federal State as a whole and to the umts of whIch It was composed. t GIerke dlStmgUlshes between Gesellschafuvertrag (pcute d'assoCUltlon):or the contract of each WIth all, whIch creates a State lD the sense of a polItIcal SOCIety, and Herrschaftsvertrag (pcute de gouvernement), or the contract of such a socIety with a person or body of persons, which creates a State m the sense of a government.
14. The natural-law conceptz"on of the State
49
Ruling power(81). If, in any of these ways, a body of men were vested. with the right, or with a conjoint right, to the exercise of Ruling authority, the conception of a collective personality [already applied to the People as distinct from the Ruler] was applied once more to meet the case of such a body. Thinkers accordingly spoke of the right of government as belonging to 'several' or 'many'; and they described a republic, for example, as 'the government of many' (82). But they insisted at the same time that the right of government belonged to these 'several' or 'many' only when acting in conjunction (83); and they argued accordingly that al. though an aruficial urnty here took the place of the natural unity inherent in the nature of monarchy, it was still a case of a szngle Ruling personality (84). The distinction between omnes ut universi and omnes ut smgulz, whIch had been applIed to the People, was also generally applied to this case of a body of Rulers; and the indIvidual Optimates of an anstocracy, or the individual citizens who possessed the suffrage In a democracy, were declared to be subject to the commumty whIch they collectively constituted(85). This community, we may note in passing, was always identified with the majority of its members; m a word, the majority was the community (86) When thinkers thus insIsted on connecting the 'Subject' or owner of the legal exercise of Ruling power with the viSIble fact of an assembly ofmdI\iduals, they could not escape a merely collective conception of such a 'Subject' of power (87). When, on the other hand, a smgle person was vested with Ruling power, the conception of his natural personality was accepted a:. adequate (88). The monarch for the time being was thus regarded as owning, by way of pnvate proprietary right, * the whole of the powers which constituted the nght of the Ruler, d~ distinct from the right of the People It i~ true that a dlsunction was drawn, In regard to the 'Objects' covered by the Ruler's rights, between (I) the area of ~uch rights and duties as were derIved from the tItle of being the Ruling authority and (2) the sphere of the private rights of the Monarch [as a natural person], but, in dealing with the problem of the' SubJect' or owner of rights, theorists <;topped at the simple fact of the physical unity of the one indIvidual. The natural-law theorY"'pfthe State made very lIttle use of the idea that the Monarch
.. The authOrity of Loyseau, Tralte des Offias, may be claimed for tlus view. Monarchs, he writt"S, ant presC7lt La proprletl de La pUIS lance souveralne, et l'ont JOlnJe d L'exerClce d'lcelle (n, ch. II, 25-6)
lITS I
50
played the part of two persons; and even the question of the tinuity of the Ruler's personality in the event of a change pf the occupant of the throne (a question which might seem to involve the use of that idea) was constantly befogged by the introduction ofthe notion ofsimple hereditary succession to the whole aggregate of rights (8g). ... Grotius, indeed, made an effort to draw a distinction in principle between the acts of a king as king and his acts as a private individual (go); but on the whole we may say that it was only found possible to distinguish the public sphere of the Monarch from his private sphere when they were both made to take their place by the side of a concurrent nght of the general community of the People(gl).t
con-
IV. Attempts to eliminate the dualrsm of People and Ruler

The zdea of a smgle State-personalzty
I. The dualism of the two personalities-that of the Ruler and that of the People-was an obvious survival from the medieval State, with its system of Estates confronting the King; but it was in marked contradiction to the unitary tendency of the modern State. A movement was thus bound to make itself felt among the theorists of Natural Law in favour of obliterating the old antithesis by the development of a conception of the single personalzty oJthe State. In a variety of ways some approach was actually made to such a conception. Unable, however, to transcend the limit~ of an indiVIdualistic system of thought, the thinkers of the school of Natural Law never really succeeded in attaimng a true idea of the personality of the State. They could only achieve, at the most, a one-sided exaggeration, either of the personality of the People, or of that of the Ruler. The idea of the State as an organzc whole, which had been bequeathed by classical and medieval thought, was never entirely extinguished. But the natural-law tendency of thought was hardly qualified to achieve the construction of an organic theory, or to crown it by the discovery of an immanent group-personalIty. The comparison of the State to an animate body regularly continued
'" The allUSion is to the regular succeMion of a private heir, under Roman private law, to the whole estate--per umversltatem SUCCe!SlO. t If you bamsh the community, and leave the kmg Isolated, you then confuse the two personahties' of the kmg-the public and the prlvate-m the blaze of hlS sohtary glory. If you admit the commurnty by the Side of the mg, you can say that he stands U1 two relations to It-the pubbc and the pnvate.
14. The natural-law coru:eption of the State
5I
to be drawn; and in this period too [as had been done before in the ~iddle Ages] it was drawn out in detail, with a greater or less degree of good taste, by a number of writers. A distinction was made between the head and the members of the 'body politic': descriptions were given of the structure and functions of its internal organs: the differentiation and the harmonious connection of the several parts were shown to issue in a living unity of the Whole(g2). The rule of the soul over the body was also adduced to illustrate the living unity of society; and the idea of a spiritual force thus mforming the social body was then brought into connection with the notion ofa single and indivi~ible sovereigntY(93). Various and contradictory as such pictures were, there could yet be extracted from them an idea which was capable of juristic formulation-the idea of a group-being, distinct from the sum of its members, which was ve~ted as a whole with legal authority over its parts. So interpreted, the conception of the social organism was not only used by wnters, such as GregorlU~ Tholosanus(94), who continued to maintain the natural origin of the political community' it was also dovetaIled into the theory of a social contract, as an element which served to counteract, in some degree, the individualistic premises of that theory. It is In the ecclesiastical system~ of Natural Law, which culminated in the theories of Molina and Suarez, that we find the most vigorous attempts to use the Idea of the orgamc nature of the State in order to vindicate for the '>ocial Whole, when once it ha~ been called into existence, a power of control over its parts which, notwithstanding its contractual origin, i<; none the les'> independent of the \\TIlls of indIviduals (95). [Such ideas were not confined to these Catholic writer.,] We also find Althusius turning hIS anginal COTlSocwtlO, which he has constructed purely on the ba~ls of partnership, into a corpus symbzotlCflm, and holding that the orgamc unity of this body explains the authority of the community over its members (g6). GrotlUs, too, emphasises strongly the character of the State as a composite body, with its own independent system of life (97); in particular, he gives an admirably exact expression to the idea of the corporate' organ', in the action of which the whole body itself is simultaneously active (g8). t In fact, there was hardly a single
T'fie penod from 1500 to 1650' For the use of thiS analogy 10 mecheval thought, see PolItIcal TheOries of the Middle Age, pp. 24 seq. t Grotius argues that Just as the body IS the general .and the eye the specific 'SubJect' of VISIon, at one and the same time, so, at one and the same tune, the 4-- lZ
52
Gierke's Text: the Period down to r650
system of political theory which entirely escaped this 'organic' tendency ofthought; and even the cause ofmonarchical absolutism was made to profit from the arguments which it supplied. But the thinkers of our period, like those of the Middle Ages, never took the really decisive step. While they recognised an invisible unity as the internal principle oflife in the body politic, they never conceived it as being the true Ruling personality. The organic theory was never applied to the problem of the 'Subject' of sovereign power The organic being of the State stopped short, as it were, at the neuter gender; and an organic interpretation was only used to explain the objective connection of the parts of a Whole and the system of control involved in that connection. * As soon as the issue became that of finding personal 'Subjects' for this system of control [there was never any admission that an organic Group-person was such a 'Subject', but] the stage was at once again occupied merely by individuals, or by assemblies of individuals. An organism of this nature, destitute of any Ego, was after all only a simulacrum of a living being. In spite of all assertions to the contrary, it was no more than a work of art, counterfeited to look lIke a natural body; a machine, invented and controlled by individuals. Here again Hobbes-anticipated, it is true, by similar suggestions in previous writers(99)--only pushed the premises of the natural-law school to then ultimate logical conclusions. He began by comparing the State, that great Leviathan, to a giant's body; he proceeded to expound, in the minutest of detail, its analogies WIth a living bemg(lOo); but he ended by transfonning his supposed organism into a mechanism, moved by a number of wheels and springs, and hIS man-devouring monster turned into an artfully devised and cunningly constructed automaton(IOI). In this position of affairs, it became impossible to vindicate unity for the personality of the State except by vesting it exclusively in one or other of the constztuent parts of the body polInc [the People, or the Ruler]. 2. The advocates of popular sovereignty attempted to represent
body pohuc IS the general and the Ruler the speCific Subject' of pohtlcal authonty. '" I.e. the organK analogy was apphed (I) to the Impersonal fact of the connection of parts (as In an orgamsm), and (2) to the equally Impersonal fact of a system of common control for maIn tamIng that connectiOn (agaIn as In an organISm); but It was not applied (3) to the personal factor of a controlling group-personahty (such as also appears, on Gierke's View, in an organism).
53
the personality of the People as the one and only bearer (Trager) of all political rights. Among the Monarchomachi the express identification of People' and State' is frequent. They ascribe supreme authority to the respublIca, or the regnum, in just the same sense in which they speak of the majesty' of the populus, or of the umversltas populi, or of the umverSltas cimum et subdztorum (102). In the same way, and without any idea of suggesting a difference between the two terms, they sometimes describe particular rights of government as rights of the People, and sometimes as rights of the State(Io3); they speak of public property as the property of the People, or the State (104) ; they treat decisions of the sovereign community as expressions of the Will of the People, or the State(Ios). In Althusius, the respublzca is consistently identified with the untversltas populz(106). Salamonius, if he actually speaks of a persona cIVztatzs as superior to the pe1sana prznczpls, ascribes this persona to the sovereign People (107). Such interchange of terms was not, however, enough to make a per<;oniiied popular commumty into a real State-personality which ,;erved, by Its own inherent nature, as the active and effective 'bearer' ufthe will ofthL commonwealth. The community of the People, a~ it wa<; understood in natural-law theory, was never anything more than the sum of Its individual members rcgarded as a smgle umt; and on thiS It followed that a Ruler vested with the exercise of State-authority was related to that community, not as a constItuent element included in it, but as the bearer of a power confronting it from without (108). So long as the principle v~as mamtamed that the State owed its origin, not to the orIf,rinal foundation of C1\ il society, but to the conclusion of a subsequent contract betwecn that society and the bearer of Ruling power, the 'Subject' of political rights was necessarily doomed to be a divided and dual' Subject'. Thinkers might hmlt the rights of the Ruler ever so rigoromly; they might even degrade him to the po,;ition of servant of the People, and threaten him WIth punishment and depositIOn if he went beyond his appointed sphere; they could nut escape the logic of their principles The contractual relation must always involve a duality of persons; a personality of the Ruler must always emerge by the side of the personalIty of the People, equally essentIal to the existence "'of the State(log). It was only with the elimination of the last traces of a contract of government that it became possible to banish entirely the idea of the personality of the Ruler, and to confine the personality of the SLate, without qualification or
54
reserve~
Gierke's Text: tM Period down to 1650
to the sovereign community of individuals. But this ,was a height of radicalism which was never attained before the appearance of Rousseau~s Contrat Social(lIo). 3. The many adherents of the theory of a double sovereignty, like the advocates of popular sovereignty, assumed an essential identity of' State ~ and 'People~; but they were even less able~ on the basis which they had adopted, to attain the idea of a real unity of the personality of the State. It is true that they always described the State (Respublica, Imperium, Regnum) as the 'Subject~ of majestas realis, and that they never ascribed to the Ruler anything but a maJfstas personalzs(1 II). These phrases may lead us to think, at the first glance~ that they really proclaimed the idea of the sovereignty of the State; and there ",as, indeed, some dim inkling of that idea in their philosophY(112). But when they come to expand their doctrines in detail, any vestige of such an idea at once disappears. The terms they use may make it seem possible for them to interpret the two' majesties' as only two different forms of the exercise of a single right; but they never attempted such an interpretation. They treated the two' maJesties' as separate spheres of authority, and they made them unequal in scope and range. Their origin was assigned to an act by which the People disengaged majestas personalzs from its own originally complete and exclusive 'majesty'~ and conferred it upon a Ruler, whIle reserving majestas realzs for itself; and the relation between the two was conceived as determined by the contract which was then made between the two separate possessors. The theory of double 'majesty~ thus involved a double 'Subject' of rights; and it was therefore impossible for it,> advocates to find any way of treating the State as the one and only 'Subject' of State-authority, or of interpreting the Ruler as the constitutionally appointed chief' organ' of that' Subject'. They used the word 'State' [just like the advocates of the theory of popular sovereignty] simply to denote the personified People, which confronts the Ruler as a multitude of individuals connected together in a collective unity. To this collective body, which is indifferently described as respublica and populus~ the higher of the two sovereignties is ascribed (II 3); to it are assigned the various Rowers comprised in that sovereignty (I 14); the possessions of the State are treated as its property (I 15); it is conceived as entitled to exercise~ either in a primary or a representative assembly, a supreme authority to which the right of the Ruler is subject (116). At the
14- The natural-law conception
of the State
55
same time, however, the Ruler is made to enjoy, in the shape of maJeslas personalis, a State-authority which is independent when acting in its own sphere; and this authority, with all the powers of government and the lucrative rights which it comprises, is treated as his by right-a right derived, it is true, from contractual acquisition, but yet, in virtue of that very title, a personal and private right (I 17). Different limits were often ascribed to the authority of the Ruler (II B); but these differences do not affect the tru th of two propositions. In the first place, no limitation of majestas personalis could ever deprive its 'Subject' of the position ofa separate Rulerperson. In the second place, no extension of his derivative sovereignty could ever elevate the position of the Ruler-person into that of a true State-personality, so long as there still loomed in the background, even in the most shadowy of outlines, the form of a more onginal and a higher sovereignty belonging to the collective body of the People. This self-contradictory theory accordingly perpetuated the old duahsm in regard to the nature of the Subject' of pu bhc authority; it failed to lDcorporate the Ruler in the People, and yet it was forced to regard State-personality as resident in the People(llg), The opponents of the theory objected to it, with justice, that in spite of Its logical tours de force it never succeeded m rismg above the 5implc Idea of popular sovereignty (120). 4. The theory propounded by Grotms, of a double 'Subject' of sovereignty [as di<;tinct from a double sovereignty], approached much closer to the conception of the sovereignty of the State. Leaving supreme power single and undivided, Grotius assumes two , bearers' of tha t power: recognising only a single' majesty', which permeates the whole body pohtIc as the soul permeates the body, he maintains that, just as the whole body and the eye are simultaneously 'Subjects' of the power of vision, so, in the State, there are two simultaneous' Subjects' of supreme authority. The whole State (cwztas, 1,(', coetus perfectus) is itself the subJectum commune of authority: the Ruler (persona una pluresvf pro cuzusque gentzs legzbus et morzbus) is the subJectum proprzum (I, c. 3, 7) . But even Grotius, though he formulates the sovereignty of the State in terms which appear to be free from ambiguity, fails none the less to attain a true conception of the single personalIty of the State. While he ten~d towards an organic conception of the State, he was also deeply immersed In the indIvidualism of the School of Natural Law; and his individualism prevented him from mterpreting the immanent unity of a commonwealth composed both of head and
56
Gierke's Text: the Period down to z6so
of members in terms ofa single living personality. A 'person' was always for him either a natural individual, or a sum of indivi'duals who were only held together in the way of a partnership, and could only be regarded as a unity in virtue of a fiction; it was nothing more. His subjectum commune turns out, in the end, to be simply the aggregate of the People. Whenever the rights of the State have to be distinguished from those of the Ruler, he can only think in terms of the body of the Ruled confronting the Ruler as the other party to the contract of government; and he accordingly employs the terms umversitas or populus as synonymous with the terms cwztas or regnum, in the purely collective sense to which we have already referred (121). This explains why the sovereignty of the State of which Grotius writes never becomes anything more than a bloodless category. Refusing to recognise a real sovereignty of the People as always and everywhere present, and only consenting to admit the eXistence of popular sovereignty where the People it')elfwas constituted Ruler by positive law(122), he was condemned to see his doctrine of the sovereignty of the State-proclaimed as universally and eternally valid, but in reahty only allowed to exist in the one form of popular sovereignty-inevitably dwindling into an empty shadow. It only amounted, in the last analYSIS, to the notion that the original sovereignty ofthe community, which had once actually existed under the inchoate conditions of primitive civil society, continued still to enjoy a sort of conceptual existence even after it had disappeared de facto with the erectIOn of a State-authority. Grotim uses this notion to prove that an alteratlOn of the form of the State does not extinguish it') previous rights and duties, and, more particularly, that a change from popular to monarchical rule, or mee versa, does not interrupt the continuity of the' Subject' of public right(123). But as soon as he goes into any detail, even on this simple issue, we begin to see clearly how far he IS from any approach to the conception of a single State-personalitY(124). Nor does he, in the rest of his argument, even when he is dealing with questions in which we should definitely expect some use to be made of the idea, ever recur at all to his subJectum commune(I2S). It disappears entirely in favour of the subJecta propria which are depicted as possessing domzmum, or as sharing in condomznium, aCLording to the particular constitution which he has in view at the moment. We are always confronted, throughout his work, by the figures of individuals, or of collective bodies of individuals, acting
57
externally as the 'Subjects' of international rights(126), and internAlly as the' Subjects' of State-authority (127). He allows, indeed, that an active personality of the People may still continue to exist by the side of the sovereign personality of the Ruler; he even allows that the personality of the Ruler may be merged, in the whole of its range, or in part of its range, into the personality of the People; but whether any of these possibilities is actually realised is made to depend entirely on the way in which the fortunes of the original sovereignty of the People have been affected by the accident of a particular method of acquiring Ruling power. On the one hand, the People may have retained, or recovered, the supreme power; and in that event, the People will be both the subjectum commune and the subjectum propnum ofmajesty C 128). On the other hand, the Ruler, by an act of conquest, or through a contract of submission, may have acquired State-authority to as full an extent as it ever belonged to the People itself ('tmpenum ut zn populo est'); and in that case such authority will be his personal and inalIenable right, which he possesses Jure plenae proprzetatls, and of WhICh. he can freely dispose, as his own patrzmonzum, both inter VlVOS and at deathCI29). In a patrimonial State of this kind the personality ofthe People may still appear m the gUIse ofa subJectum commune; but It has obviously lost any footing ln the world of real life. The generdl view of Grotius, however, IS based on the assumption that, in spite of the transference of supreme power to the Ruler, the body of the People still continues to enjoy extensive rights in the State. Even a conqueror, he argues, may content himself WIth the appropriation of wmething less than absolute right, and he may thus only acquire zmperzum ut est zn rege Vf!l1l allis zmperantzbus(130). When a Ruler has been installed m "utue of a contract, there IS a defimte presumption m favour of a reservation of popular rights(131) In any case of doubt, it is not the full right of property, but only a right of mufl uct, \\-hich properly belongs to the Ruler; and in such a case the People has a right of property in the authority(132), the territory(133), and the possesslOns(134) of the State. Special constitutional provi~lOns may limit the authority of the Ruler even further: for instance, its exercise may require the co-operation of the People, or of some smaller assembly; or ag'din, it may be imtially assigned for a limited period, or it may be suhject to a 'resolutive conditIon' C 135). * But none of these
'A conditlOn on the happemng of which a contract or obligation is termmated " N.E.D.
58
Gierke's Text: tlu Period down
to
1650
possibilities really affects the existence of the sovereignty of the Ruler; and therefore none of these possible rights of the P~ople really secures any effective sovereignty, either in whole or in part, for the subjectum commune of sovereignty (136)-though there is always the possibility that, as a result of the institution ofa genuine forma mixta, the supreme power may itself be actually divided among a number of' Subjects', and, more particularly, between king and People(137).* It follows that, even in the theory of Grotius, if we leave aside pure democracy and the pure patrimonial State, a dualism between two personalities is constantly reappearing; and indeed we may even say that it is defimtely accentuated, by the wider application which he gives to the idea that the right to State-authority may be of the nature of a right of private property. t His doctrine of the SUbJfctum commune et propnum majestatls thu<; remamed essentially barren. It found a few adherents (I 38) ; but on the whole we may say that it was regarded as a variety of the theory of popular sovereignty, which was not without its own risks, and which was accordingly attacked and rejected along with that theory (139). 5. We may now turn to the advocates of the theory of the Sovereignty of the Ruler. We should expect them, a prlOTl, if they attempted to attain the Idea of a smgle State-personalIty, to identify it entIrely with the personality of the Ruler; and we actually find them agreed in regarding the Ruler as the one and only 'bearer' of the active life of the State-the force which united, animated, and organised the whole body politic-the visible representative of the State itself. Yet as long as they recogmsed a personality of the People as existing at all by the side of that of the Ruler, they could not possibly deny that this had also Its share in the representation of the State. The result was twofold Not only did they tend, in treating of popular rights, to set the People over against the Ruler as a separate' Subject' of these rights. In the very act of making this antithesis, they often went further still, and they even described the People as being the 'State' itself
* In other words, the People, as a subJectum commune, remams WIthout any effectIve sovereIgnty, but as a subJectum prO/JrlUm It may enJoy, under a mIXed constItUtIOn, a share In effective sovereignty We may add that In a pure democracy It may also enjoy, in the same capaCIty, the whole of such sovereignty. t The reference is to GrotlUS' conceptIon of the Ruler as able to acqUIre, by conquest or contract, a personal and alienable rlght,jure plenru propnetattS ThIS opposes the Ruler even more definitely, as a still more independent authOrity, to the People ID Its capacity of the' ('ommon SubJect' of sovereignty.
14 The natural-law conception of the State
59
TlVs being the case, it was inevitable that every attempt to quah"ry the Sovereignty of the Ruler should prove an insuperable obstacle to the attainment of any conception of a single Statepersonality. (1) If, in accordance with a theory which had been inherited from the Middle Ages (a theory still held by many writers down to the days of Bodin, and defended even later, in spite of their acceptance of the strict conception of sovereignty, by the ecclesiastical theorists on Natural Law who were inspIred by Molina and Suarez), the very nature of the State was held to involve a ltmitatwn, by the reserved and inalienable natural rights of the originally sovereign ?eople, upon such sovereignty as had been alienated to the Ruler, it followed ex hypotheH that the collective body of the Ruled confronted the Ruler, at a number of points, as the true and proper State-personalitY(I40) (2) The same result [of a dualism between Ruler and Ruled] was also possible, to say the least, if the idea was accepted of a contract of government made upon mutual terms, and if aLCordingly another form of hmztatwll of the Ruler's sovereignty-i e. a limitation by the constitutionally determined rights of the People-wa~ recognised as binding upon him(141). (3) Finally, turmng to the theories which rejected any idea of a ltmzted sovereignty, but admItted, 10 lieu thereof, the possibility of a mixed constitutIOn, with a dwzswn of sovereignty between several' Subjects' and, more especially, between king and People, we ob~erve a still deeper contradictIOn. Such theories extended the dualism of the State-personahty, whIch It was their fundamental object to avoid, until it affected and divided the personality of the Ruler itself( 142). In opposition to all these tendencies, the systems of thought inspired by the logic of ~trict absolutIsm attempted to concentrate State-personalIty in a single person, either indi-vidual or collectIve. The primary aim of Bodin was to attain, by the unqualified rejection both oflimited and of divided majest), a Ruler-personality which included and absorbed the whole conception ofthe State (143). But even Bodin himself failed to take the last and decisive step. Clinging to the original SOvel eignty of the People, he vindIcated for it, even after it had ahenated State-authority, the ownership at any rate of State-property; and on this point he opposed the respu'blua, as the properly qualified 'Subject' or owner of such property, to the zmperans(I44). In the same way, but, in some respects, to an even greater degree, there appears in the theory of Gregorius Tholosanus, and in the theories of other advocates
60
Gierke's Text: the Period down to r6jo
of the unlimited authority of the Ruler, a personality of the People, which takes its place, under the name of respubbca, by the stde of the personality of the Ruler(I4S). Arnisaeus was the only writer who assumed the total absorption of the respublzca in the Ruler; but in spite of that assumption he treated the .mcze/as of the Ruled as a separate 'Subject', for which he reserved the name of civitas ( 146) 6. Thus the old dualism was not entirely vanquished, even by those who sought to exalt the Sovereignty of the Ruler; and it was therefore an event of the first importance 'When Hobbes, boldly demolishing what had hitherto been the foundation of all naturallaw political systems, went at last to the root of the matter. He substituted for the two original contracts a single contract by which each pledge'i himself to each to submit to a common Ruler, who, on his side, takes no part in the making of the contract (147). This assumption de'itroyed, in th(" v("ry germ, any personality of the People. According to Hobbes, there has never existed, at any time, a soczetas CWdlJ based simply upon it<;elf. The personality of the People died at its birth (148). Butjust a'i there ha~ never existed an original right of the People, ~o, when the State has been formed, it is equally impossiblp to think of an~ nght of tIlt" People, even of the mo!>t modest dcscnption, a<; either surnving by reservation [since there was nothing to re~erve], or as introduced de novo by contract, since a relatIOn of contract bet\\ ccn Ruler and People is inconceivable {(49). With a logical ineVitability all publIc TIght is absorbed, in every possible form of State, by a Sovereignty of the Ruler which is absolutely unlImited and illImitable, irresponsible and omnipotent, free from all obligation of law and duty, the engulfing reservoir of all ngh t'i both of individual mbjects and of the aggregate body they form(lso). Intolerant of any din'iion, and thus excluding any mned form of government, thl<; authority is necessarily concentrated, in all its plemtude, at a single centre (151). Its 'Subject' can only be either a smgle and self-!>ubsisting individual, or a sum of mdividuals united in a visible assembly and armed with the power which a majority has to control a minonty(Js2). There is thus, in Hobbes' view, a physically perceptible Rulerpersonality, whIch is to be found everywhere. In it, and in it alone, he next proceeds to argue, the whole State also attains personaIity(I53). For the umty of this artificial body wholly depends upon an agreement-an agreement attained, under the inevitable
The contract of society and the contract of government.

creat~d the
6I
<!ompulsion of the command of Natural Law, in the contract which State--that the authority, the will and the action ofthe unus homo vel unus coetus shall count as the authority, the will, and the action of each and every subject (r 54). The Ruler thus appears as persona representatwa: it is he who personam omnzum gerit; whose persona cunctarum cwzum persona est; in whom tota cwztas contmetur(r5S). No personality of the community can stand by hIS side: apart from him, the community is a loose heap of individuals, a disunited multitude, and therefore in no sense a unwersitas(IS6). The personality of the State, like that of any other body, cannot be any other than single; its Ruler is more than the head, he is the very soul, of the body of thIS Leviathan; and as such he represents its personal identity, which only exists in him(rs7). In this way there arises, out of the artifiCIal hfe (vIta artifzcwlts) of the great automaton (homo artifzcwlzs), an artificial person (pmona artificial1s) \""hlch, under the technical designation of persona cwztatzs, becomes the centre of public law(r5B). ThIS was the solution prO\ ided by Hobbes for the riddle which so many thinkers had so long attempted to solve(r59). Basing himself upon arbItranly assumed premIses, but wielding a remorseless logic, he wrested a !lingle State-personahty from the individualistic phIlosophy of Natural Law. He had extended the idea of Natural Right until it meant the right of all to everything, and he had done so in order that it might pensh, as a right of all, from the very abundance of its own ~trcngth, and then, surVIVing only in the form of aJuf ad omnw left in the hands of a single man, or a single body of men, might proceed to convert itself into mere naked power He had made thc mdivldual omnipotent, with the object of forcing him to destroy himself imtantl~ in virtue of his own omnipotence, and thus enthromng the 'bearer' of the State-authority as a mortal god (Deus mortabs) In this materiahstic and mechanical consummation the natural-law theory of the State seemed to have reached the end of its development But imtead of falling into the stenlity of premature death, It drew a new and unexpected vitalrty from the vcry crisis which threatened its hfe. In the march of its onward movement in the future, it might sometimes be constructive, and sometimes critical; but it was always to remain depend,nt on the system of thought constructed by Hobbes. And the element which was to prove Itself most fertIle in Its future progress was to be the idea of a single State-personality which he had managed to attain--even though that idea, as it stood in his presentation, was purely external and formal.
Gurlee's Text: the Period down to 1650

CHAPTER I:
SECTION
V, 15
THE NATURAL-LAW THEORY OF ASSOCIATIONS (DIE ENGEREN VERBA.'NDE) There were two ways in which the conception of the State expounded by natural-law thinkers was bound to exercise a determining influence on the theory of other associations. On the one hand, their theory of Sovereignty drew an insuperable line of division between the State and all other groups. On the other hand, their theory of Contract tended towards the inclusion of the theory of the State in a general theory of Society, which permitted associations other than the State to appeal to a SImilar ongin and to claim a similar justification. According as one or the other of these two directions was predominantly followed, there arose divergent tendencies which led to opposite results
I. GROUPS WITHIN THE
~TATE
(I) The umtary or centrabst znterpretatzoll
If we turn our attention first to the local communities and corporate groups contained in the State, we find the exponents of the theory of Natural Law agreed that the fact of their subjection to State-sovereignty distingmshed them from the State by a genuine logical criterion. The question stiU remained-How far, in spIte of this subJ("ction, could they be regarded as retaining a common life of their own? The answer to that quc!>tion depended on the view which thinkers held of the nature of !>overeignty and of its relation to the processes of group-de\ elopmcnt. 1. On the whole, the theorists of Natural Law \\-ere driven by the tendency of their time to deny that local communities and corporate bodies had a social existence of their own. So far as it moved in this direction, the natural-law theory of associations was far less favourable to such bodies, on the fundamental issue at stake, than was the positIve-law theory of Corporations [which had been expounded by the civilians] It must be admitted, how Social exIStence = existence m the area of voluntary SOCiety, as distmct from pohtlcal eXIStence, which = existence m the area of a State, as I institutlOns' chartered by It
15 The natural-law theory of Associations
63
~ver, that the exponents of natural-law theory, when they came to suggest a practical policy, adopted this positive-law theory; and some of them even advocated a favourable treatment of corporate institutions. It was a factor of decisive importance, to begin with, that the smaller communities contained in the State were never allowed to appear as having a birthright in Natural Law. It is true that those who maintained the theory of the organic origin of the State did not suppose the societas cimlzs perfecta [i.e. the State] to have issued immediately from an act of union between individuals. They believed that it had developed gradually, through an ascending series of other associations. But there was a general agreement that, after the State had once been formed, the Family alone continued to enjoy a right of existence derived from this original process of free social development. So far as other associations were concerned, thinkeri'> were ready to allow that there had been a progressive widenin~ of the original family-community, first into the local community, then into the city, and finally into the greater kingdom; but they stIll remained tied to an abstract scheme of thought, deduced from the conditions of the ancient City-State, which made the local community merely a preliminary stage of the civic commumty, and treated the CIvic community as the perfect realisation of the idea of State. The FamIly and the State were therefore regarded as the only societies whIch possessed a basis in Natural Law. So far as writers on politIcs dealt at all WIth the Family in connectIOn WIth theIr theory of the State, they treated it as one of the natural bases of the State, describmg it as a soczetas prwata or domfstlca, and dIviding It into the three societies of husband and wife, parents and chIldren, and master and slaves(l); but they hai'>tened to set over against it at once, a<; the soczetas poll/lea or czvzlzs, a commUnIty armed with 50vereign power (2). Local communitie'i and corporate bodIes, as dIstInct from the FamIly, were regarded as only arismg after the constitution of a system ofpohtical order, and WIthin the hmit~ of that system. They were useful, but not indispensable, divisions of the body politic; they had no place in the general natural-law scheme of civil society; they were only the particular mstitutions of a particular State, based on It<; positive law(3) This was the general tendency of all natural-law theory; but v. hen the idea of a SOCIal Contract was emphasised, and the 50vereign State was directly based on the conclusion of a contract between individuals, the tendency became
64
even more marked to relegate any corporate articulation of th~ State to the sphere of mere positive law (4).'" , Deprived in this way of the sanction of Natural Law, associations were unable to vindicate an inviolable right of existence against either the State or the Individual. With the sacred and indestructible rights of the sovereign community confronting them on the one side, and the no less sacred and indestructible rights of the individual personality confronting them on the other, it became a question of mere utility what measure of rights they ought to be granted. The way was clear for attempts to demohsh the traditional historic rights of intervening groups, in order to realise the ideal law of Reason and its rational system of rights. [a] So far as their relation to the State was concerned, associations automatically lost any claim to possess an inherent social authority of their own the moment that the absolutIst conception of sovereignty began to be seriously pressed. If the whole range of power required for the guidance of civil society was to be found in a single and indiviSIble 'majesty', the authority of the State must necessarily be exalted into being the one and only manifestation of that power of the Whole to control its members which belonged to the nature of human society; and on that In turn it followed that any as!>ociation contained in the State could never be allowed to enJoy an inherent and mdependent existence in the sphere of public law, but could only do so, at most, in the sphere of pnvate law. t Even Bodm himself, in spite of his preference for a vigorous activity of corporate life, was unable to escape this logical consequence of his own conception of sovereignty His full and searching enquiry into the corporate articulation of the State, with its advantages and disadvantages (III, c. 7), bcgms with a distinction and definition of the collegzum, the corpus, and the universitas, which became a model for many subsequent writers. A collegzum is the legal union of two or more persons of lIke status: a corpus is the union of several colleges: a umversitas is a local com 'Corporate articulatIOn' of the State means a system (such as AlthuslUS depiCts) In whIch the State IS a commumtas communztatum-a body of which the parts are not indiVidual atoms, but corporate lunbs and members all fitly jOined and kmt together The FasCist Idea of the 'corporative state' IS an attempt to translate thiS Idea mto practice. t I.e. an assoCIatIOn could not enjoy Inherent rights as against the State, and as a matter of Staatsrecht; It could only enjoy such nghts (If at all) as against indiViduals, and as a matter of PnvatTecht.
65
rllunity (omnium Jamiliarum, collegiorum et corporum ejusdem oppidi juris commrJllione sociata multitudo); while in the respublica there is added, to the attributes of a unwersitas, the further and higher attribute that it embraces and protects with its sovereignty (impem majestate) all individuals and associations (no. 327).* The three species of the' more imperfect' associations arose, in Bodin's view, at a time long before the foundation of the State, and as the result of an imitation (which was itself due to man's social instinct) of the original and natural society of the Family: they continued to exist in the State as elements in its life which, without being, like the Family, necessary or inde<;tructible, were none the less exceedingly useful; and the earliest founders of States accordingly regarded them as the strongest supports of their newly created system of order (nos. 328-9)' Any thinker who considers the historical sequence of development which runs through Jamilza, collegzum, corpus, universztas, cwitas and zmperzum, and who refuses to believe that a commonwealth can permanently exist sme cantate et amzcztw, will never approve the views of those who treat all corporate articulation of the State as something that may be dispensed with (no. 342). It is true that corporatIOns involve a risk of disorder; but to advocate the elimination of all corporations on that account is to overlook the fact that it i., only collegta perperam znstztuta that ever threaten any danger. In view of that possible danger, it is good to be cautIOUS in sanctiomng the existence of all societies. Morc especially, the practice of religious confessions which are of foreIgn origm should only be allowed in exceptional cases. But the suppression of all collegza is a symptom of tyranny (nos. 342-4). The best constructed kingdoms find their firmest support in collegza et corpora; such bodies produce most readily the contributions which are needed for the general well being (nos 3.l5-6). Holding such VIews, Bodin is even willIng to argue in favour ofa system of Estates with regular meetmgs, in order that a king may learn the wishes and grievances of each of these bodIes and increase his prestige by the advice and the grants which he receives from their general assemblie~. In particular, he recommends a system of provincial diets, and advocates its general introduction into France, adducing in its favour not only the example of Switzerland, but also (and especially) that of Germany, with its free towns
The numerus IS the number glVen at the .flde of the page of the De Republica.
BTl]
In
the later edItions

5
66
Gierke's Text: the Period down 'to 1650
and its ten circles. He holds, however, that due proportion shOlrld be observed in regard to the number of groups and asseIJlblies. Indiscriminate permission of all can only lead to anarchy; and a limitation of guilds, for example, has been everywhere found necessary (nos. 346-7). In spite of his enthusiasm for decentralisation and self-government, Bodin still regards all corporate institutions as nothing more than voluntary creations of the sovereign, which he can modify at will. In his view, the very nature of sovereignty necessarily involves the corollaries that the sovereign can no more be bound by law in dealing with univerSItates collegw et corpora than he is in dealing with individuals; that he can abrogate ex aequitate any law he has passed in regard to them, and withdraw any pnvilege he has granted; and that he never legally needs the co-operation of the assemblies whose advice he consents to receive (1, c. 8, nos. 85-99)' It follows that the existence of all collegra and corpora, like that of all untversltates, depends on a concession made by the State; they are coetus In Republrca Jure roclatl, i.e. summi Pnncipis beneficlO et concessu, .line qUlbus corporum et collegwrum JUs ac nomen amlttunt (Ill, c. 7, no. 33 I). Only such authorisation by the sovereign power can produce the legltlma COTlJoczatw [or lawful right of assembly] which is involved in the idea of an association, and which not only mcludes the right of meeting, but also the right of determinmg the time, place, character, and agt'nda of such meeting (lbld.). Indeed, the authorisation of the sovereign is the source of all corporate authority whatsoever (no. 332). It is usually granted ad hoc in each particular case; and the amount of rights conveyed in the grant is variously adjusted, according as religiom or secular associations are in question, and, in the latter case, according as official or unofficial 'colleges' are concerned (nos. 330-2). In any and every case, the exerCIse of any governing authority by a 'college' is only possible in virtue of its being directly conferred by the State; and it must always be subject to supervision by the higher authorities of the State. Bodin's conception of all corporations as State-institutions becomes most clearly apparent, when he proceeds to treat of the collegiate magi~tracies (collegra magzstraiuum et Judzcum) as the most distinguished corporations in the State, and to ascnbe to them, and to them alone, a Junsdtctw et lmpmum of their own(s), while other corporations are only allowed a power of decision in mternal affairs and a modest power of disciplIne over their members(6).*
In the France of Bodm's time, the collegiate magistrates were partly (I) financial boards, e g. the tresoners de France, who formed a college in each
15. The natural-law theory of Associations
67
tendency of Bodin to lump together collegiate magistracies and general associations will also serve to explain why he refuses to regard an independent capacity for owning property as an essential attribute of a corporation. He admits that 'aliquid commune' belongs to every consoClatio; but it is enough for him if a law, or a particular disposition of the sovereign, assigns regular revenues to meet the cost of managing such common affair!> as each may happen to have(7). We begin to dIScover that the possession ofa personality ofits own has ceased to be, in any sense, a necessary part of the idea of a corporation. It l~ only a possible accretion. It is a further illustration of Bodm's general attitude that, when he comes to deal with the offences of corporations and the punishment of such offences, he never pays any regard to the Idea that associations may have an inherent right of existencd8). We may trace a similar view of the relations of the corporation to the State in other pohtlcal writers who adopted the strict absolutist conception of wvereignty. Gregonus Tholosanus, on the whole, follows Bodin's line; but we may already detect, in his various pohtical writings, a bias which is even more inimical to the hberty of corporatlODS(g). BornitlUs elaborates, with even greater logic than Bodin, a theory of collegza, c01pora, and unWfrSltatfJ whIch makes them mere State-institutlOm (10). Armsaeus regards associatIOns as mere diVIsions (classeJ) created by the State among its ~ubject~ for the easier exerCise obts governing power (II). Even the theorists who sought to modIfy the absolutI~t conceptIon of sovereIgnty were apt to regard local commUnItles and corporate bodies as no more than admimstratlve mstitutions-useful in certam circumstances, but dangcrom unless they were rigorously limited-which the sovereign could create, transform or abolish in the light of his own free Judgment of theIr utihty (12) Besold took more of a ffilddle line, attemptmg to reconcile the new political doctrine [of sovereignty] with the old Roman-law theory of corporatiom(l3). The regular teachers of Natura] Law were less friendly to aSSOCIatIOns, and if they thought it wurth whIle to mentIOn them at all, they always refused to allow that they pos~essed any inherent group-authonty(14). The ecclesiastIcal writers on Natural Law were especially mflucnced by the current
finanCial dlStnct or gtfnerailti, and partly (2) Judicial bodies, such as the Parlemmt of Pans and the provmclal parlemcnt. Wlthm thcse JudiCial bodlC"S there were sub-colleges, e.g. the maitres tks requiter fonned a college, .... lth a corporate orgamsation and a corporate character, InSide the Parlemmt of Pans.
5- 2
fhis
68
Gierke's Text: the Perod down to 1650

~
tendency in favour of centralisation (J 5); and Suarez is conspicuous among them for his emphatic insistence that any power of dction which goes beyond the limits of pure private law is reserved entirely for the State(16). He is thus led to reject entirely the conception that associations have a genuine power of self-government, and he seeks to refer any power of making decisions which they may enjoy either to an act of authorisation by the sovereign, or to a private contract made between the individual members(I7). He applies the same fundamental principle to his interpretation of customary law, which he regards, with the aid of a series of forced assumptions, as a lex tacita(18). Similarly, in treating of the right of taxation, he refuses to admit the validity of any tradition or privilege which can have the effect of calling in question the unique authority over taxation which belongs exclusively to the State (19). He applies the same system of strict centralisation to the Church [e.g. in regard to its relations to religious orders and other religious associations], when he elevates it to the dignity of a sovereign spiritual State(2o). [b] If associations were thus denied any public authority, and all such authority was vindicated exclusively for the State, it became impossible to hold that they had any inherent existence of their own as against the Indwldual In effect, the absolutIst theory of the State tended towards a view which reduced all rights of corporatIOns, so far as they were not derived or reflected from the sovereignty of the State, to the level of a system of partnership based upon individual rights. From this point of view corporations, like families, were often brought under the rubric of private 'SOCIeties' or companies(2I); and Busius openly holds that the rights of collegta et corpora are only a matter of JUS socutatts with certain modificauons(22).* There was indeed some tendency to recur to the traditional [Roman-law] theory of corporations when it came to a closer examination of deviations from the normal contract of partnership, such a... hospitals or sanctuaries (2S) ; but the peculiarities to be found in such cases were treated as being of the nature of mere external accretions. Even when thinkers really attempted to face the fundamental question, 'What personality of its own does the corporate Whole possess?' they generally gave the most superficial of answers, sometime.. contenting themselves with a distinction between the' collective' and the' distributive'
SOCIety (SOCIetas, SOZlI!l4t, Gesellschaft) m this context means the sunplc busmess partnersrnp of indlVidual!. united by a pnvate contract.
15. The natural-law theory oj Assocations
6g
e'njoyment ofrights by a body of persons (24), and sometimes taking refuge in a conception of the corporate Whole as a 'feigned' individual (25). On the whole the tendency ran in favour of a merely collective conception of associations. Attempts were made, for example, to explain the validity of the majority-principle by supposing that, for certain purposes and in certain cases, it was possible to identify plures with omnes(26). Those who took this view were enabled by it to interpret the regularly made decisions of corporations as ,contractual agreements [made by all the members](27), and even to base their theory ofthe delicts ofcorporations on a similar vie-w (28). '" [We may cite an even more striking Instance of such ingenuity of interpretation.] By applying the idea of partnership to the village community some of the ecclesiastical writers on Natural Law even found themselves able to make a VIgOroUS defence of the Fellowship principle in regard to the legal position of village commons(2g) t Suarez [did not apply the idea ofpartnership so indiscriminately. He1drew a clearer dl~tmctlOn between the rights of a mere community and those of a corporation. He dIstinguished the commumtas tmperfecta, which was not organised as an independent unit, from the commumtas perfecta, which was competent to develop and exercise a community-control of its members; and on the basi~ of this distinction he included local communities and corporate bodies, 'Imperfect' though they might be when regarded as parts of the political whole, among the commumtateJ which, regarded in themselves, were 'perfect' (30) But Suarez himself, when ht' comes to investlgate the real essence of corporate groups, remains in a state of vaclllation. He hovers uncertainly between the Idea of a multiphcity of persons, reduced by contract into a unity, and the fiction of a separate personality('3')'
* If plurer = omnes, then (I) a maJonty-dnlslon = a contractual agreement of all, and (2) a maJonty-deCislOn to pur~ul" a cour~e of conduct which results m a delIct = a contractual agreement ofal! to commit that dehct. t If you apply tht:" Idea of partnership to a villagt:", you can Insist that all the Villagers, as partners, are somt:"thmg of a Fellowslup, With common nghts '. (On the other hand, It Will also be pOSSible for a Fellowslup wrnch regards Itself only as a partnership to wmd up the business, and to distribute the common property among the eXlStmg partners )
70
Gierke's Text: the Period down to r6so

(2) The federalist interpretation, especially in Althusius and Grotius
In opposition to this trend towards centralisation and the absolute State there arose, among some of the adherents of the School of Natural Law, a federal theory. Developing the idea of the Social Contract to its logical conclusion, they sought to place associations generally on the same natural-law basis as the State itself; and they attempted accordingly to vindicate for them, even when they were included in the State, an independent sphere of action which belonged to them in themselves. The way was prepared for this view, in the course of the sixteenth century, by the claim (which had been advanced in practice in the Wars of Religion, and was defended in theory by the Calvinistic advocates of popular sovereignty) of a right of resistance of particular provinces against a tyrannical poliucal authOrity. In this connection the theory propounded by Hubert Languet exercised a deep and particular influence. Provinces and cities, he held, were appointed to ~uperintend [along with, and even in lieu of, the national Estates and magistrate::.] both the pact between the nation and God and that between Ruler and People * They were therefore entitled, and even obliged, to offer armed resistance to the Ruler who broke his contract; and in the last resource they could even renounce their allegiance (32). The success of the Revolt of the Netherlands gave the seal of hIstorical approval to these views. Two things combmed to make It easy for a general federal theory to develop from this beginning. The genius of the constitution of the Calvinistic churches was favourable to it; and the political institutions of the Netherlands, as well as of Switzerland and Germany, supplied no inconsiderable ground of positIve law in its support. It was the work of Johannes Althusius to give logical unity to the federal ideas that simmered in the ecclesiastical and political circles in which he lived, and to construct an audacious system of thought in whIch they all found their place(33). Althusius has a firm grip of the idea that the differentia of wvereignty provides a clear line of division between the idea of the State and that of all
More exactly, the Ruler is included in both of these pacts-( I) that in which, as co-prormssor, he is bound, along With the natIOn, to God, and (2) that in whtch, as a single prIYfTUSSOT, he IS bound to the People. The first pact, therefore, is not so much between the nation and God', as between the nation, plus the Ruler, and God.
71
~ther associations. Just as he insists that only a federation can stanG above States, so he denies that any part of a political whole, when once that whole has become a State, can ever possess the attribute of political authority. But while he regards majestas as the highest power on earth, he none the less brings it under legal limits; and while he recognises it as a unity which is absolutely indivisible and inalienable, he refuses to make it the one and only manifestation of that power of a community to control its members which is always involved in the very eXIstence of human society. On this basis, he vindicates for associations a sphere of right which belongs to themselves, and an organic place in the structure of civil society. So far, we may say that he is in agreement with the original core of medieval thought (34) But while medieval federalism started from the unity of the Whole, Althmius takes his stand entirely on the basis of natural-law IndIvidualism. He derives all SOCIal unity from a process of association which proceeds, as it were, from the bottom upwards. He regards the contract of society [i.e. the principle of partnership] as the creator of the whole system of pubhc law and order [both in the parts, or earlier stages, of the State, and in its total and final structure]. In the very beginning of hIS Polltlea he sketches a general theory of association (COnsOCzatlO), which he then proceeds to apply to all forms of society, mcludmg the State He regards the juridical basis of social hfe as consisting, in every case, in an expressed or tacit compact By that compact a common life is brought into existence; the means and the powers required for that common life are pooled; and a ruling power IS instituted, (apable of administering all the affair& whIch have been made, in this way, a common concern. Within this general framework, he distinguishes five species of aSSOCIation (species consoclallOnlSI, each with its speCIal functions, and each, therefor(", "..ith a special area of action and an independent authority of its own. They are the Family, the FeIlowship (Genossenschaft), the local community (GemezndR), the Province and the State. In this ascendmg series of groups, each higher stage always proceeds from the one below; and thus it is associations, and not mdividuals, which are the contracting parties in the formation of the higher and larger groups. More especially, it is the provinces or local communities which conclude the contract of society that founds the State; and they surrender to the State in that act (just as the groups on which they are based have similarly surrendered to them) 0.11y such part of their rights as is
72
Gierke's Text: the Period down to z650

F
definitely required for the purposes of the higher community. The existence of the State is thus compatible with the survival of a series of concentrically arranged groups, intervening between the individual and the general community, each of them a unit sanctioned by Natural Law, and all of them supporting and sustaining the greater whole. The social life which these groups enjoy is not bestowed on them by the State: it is a life which proceeds from themselves. In fact, they give rather than receive: they are the source of the broader forms of social life; and while they are capable of living apart from the State, the State cannot live apart from them. They have therefore rights of their own which belong inviolably to them in their own particular area, even if their inclusion in a greater whole involves a number of limitations upon their freedom. They can themselves resist tyrannical attacks upon those rights by force of arms, even though this may involve a conflict with the authority of the State; and their officers are not only entitled, but also obliged, to protect them in their rights, and to offer active resistance to any encroachment upon them by the supreme Ruler In case of need, particular territOrIes may even secede, and either submit to another Ruler or declare themselves independent; for since regna umversalta have been founded by the joint action ofJamllzae, collegIa, pagl, opptda, civzlales el provlncwe, each of these constituent units recovers its origmal liberty in the event of a breach of their contract of union. In conformity with these ideas, Althusius holds that it is necessary to follow a method of expounding political theory which corresponds to its ~ubject-mdtter, and proceeds from the lower to the higher. He therefore gives a detailed account of the rights of [lesser] associations before he treats of the State. He begins with the simple and private associatIon (consoctallO SImplex et prwala) which unites men in pursuit of some particular common interest This private association is depicted as having two phases or stages. The first is the natural and necessary union of the Family, including both the narrower circle of the household and the wider circle of the kin-group. The second is the Fellowship (consoczallO collegaTum). Althusius describes the Fellowship as a civil and voluntary union, constituting a social body: he traces it through its various manifestations, from ecclesiastical and secular collegza specialia to the collegtum genera Ie composed of a whole Estate; and he vests it with corporate autonomy and self-government (3S). Having established this basis, he now proceeds to the composite
15 The natural-law theory
of Associations
73
public association (consociatio mixta et publica), which unites the simpler groups in a general or universal scheme of life (or, as he terms it, politeuma), and which is therefore also called by the name of universitas. In this category-which may also be called by the name of consociatto polztlca or political association--Althusius is able, with the aid ora distinction which he draws between its 'particular' and its' universal' form, to include both the local community and the State(36}. In dealing with 'particular political associations', he begins with a fuIl account of the local community-the universitas in the narrower sense of the word, in which it refers to rural and municipal bodies. Here he first gives a sketch of the general institutions common to both of these bodie~; and he then proceeds to treat of the peculiar features of rural and urban communities-first of all treating the development of the unwersztas rustzca in its three phases of the vzeus, the pagus, and the oppldum, * and then dividmg umversItaies urbanae from one point of view into 'free', 'provincial' and 'mixed' ciues, t and from another into 'mother-cities' and 'coloDles' The general pnnClple which he asserts is that aU these microcosms of the political community, rural and urban alike, should be regarded as possec;sing a large area of authonty in their own right, though he admits that the co-operation of the higher authorities IS required for the acts of small and dependent commumties. Leaving these lower stages of consoczatzo polztzca partIculans, Althusius now turn> to the higher c;tage of the unwersItas prolIInClae HIe; picture of the Province, which professes to be based on the pnnciples of Natural Law, i~ actually ba<;ed on the model of the German territorial principalIty; and thIS will explain why he can both allow It a very large measure of independence, and yet, at the same time, make Its governor the holder of an office conferreu by the summus tmperans of the whole realm. Upon thIS basis Althusius begim his account of the State. It is a uTLwersalts publua consoczatlO produced by a contract of union between 'particular' communities; and it displays its essential principle m the form of a 'majesty' whIch embraces all these communities. We have already noticed the importance which he
We may translate the tl"nns into the English eqUlvalents of 'Village', 'hundred', and country-town' t The free city IS a direct member of a fedpratlon, on the same footing as a province. the provmcial City IS mcludffi 1D a proVInce' the mixed CIty will somehow combine both characteristics.
74-
attaches to this essential attribute of the State(37). But in every other respect he is inevitably impelled, by the very genius Qf the federal system which he has developed with so rigorous a logic, to advocate and to apply the principle that associations are in their essence on a level of full equality with the State. In fact, his general theory of corporate bodies already contains in the germ the whole of his theory of the State. At each of his various stages of association, the contract of society [by which each stage is produced] already displays its power of developing a common life, in virtue of which the participants in that life constitute a single body, and count as a single person. In every stage this development results in a power of the whole over its members; and although at the stage of the Fellowship, as well as at the prior stage of the Family, this power is still only a potestas pnvata, it nses to the dignity of a pates/as publtca when we come to territOrial associations-'h'ith the one qualification that it is kept within definite bounds in local communities and provinces, as a potestas publzca lzmztata, by the authority of the higher potertas publzca unwersalzs. In every stage, again, the authority of the whole over its members has to be regulated by leges dzrectzo7lls fl gubernatzonls (over and above the leges commumcatw1lls);* and this involves, from the first, a distinction between Rulers and Ruled. In every stage, however, authority is only a mode of service and a form of care for the welfare of the community; and obedience is simply a return for the provision of defence and protection At every stage, therefore, it is the community of the Ruled which is the true 'Subject' or owner of the common authority, in virtue of that divine order of the world which is ex hypotheslrevealing itsdfnaturally in the whole ofthis natural-law system; and as the true' SubJect' ofthe common authority the community is superior to the officer entrusted WIth its actual exercise. Just as, in the State, 'majesty' IS inalIenably and inviolably the property of the People, so, in the Fellowship, the elected committee of management is necessarily major szngults, mznor universzs coliegu. In the same way, the ~overnment of a local community, whether such government be an individual or a college, possesses aJus In smgulos, non m unwersos cives; and the chief officer of a rural community is therefore subordinate to the com The leges communuallonu deal With the poohng of means and forces reqUIred for the cornman hfe, the leges dtrecttonrs et guhematumu deal with the rulmg power necessanly instituted for the admmistratton of all the affarn which, 10 consequence of such poolmg, have become the cornmon concern.
IS. The natural-law theory of Associations
75
rounal assembly, as the urban magistrate is subordinate to the civic repre5entatives, and these are in turn subordinate to the whole civic body. Similarly, again, when we come to the Province, the deputies of the various corporate Estates (which should properly include, in every case, a fourth' Estate of husbandmen or peasants' as well as the clergy, nobility and towns) form an assembly of provincial Estates: the assent of this assembly is necessary before the territorial prince, or head of the province, can declare any war, impose any tax, proclaim any law, or undertake any other measure of importance; and the assembly has also a right of resistance and revolt against any governor who fails to discharge his duty. So perfect a parallelism between all assoClations and all sta ges of development reduces the theory of the Corporanon and the theory of the State to the position of mere aspects of a single and uniform theory of all Society. It is true that Althusius, following the jurisprudence of the civilIans closely, allows a number of propositions drawn from the traditional Roman-law theory of corporations to find a place in hIS theory of politics. But these propositions acquire a fundamentally new significance by being incorporated into a system based on the principles of Natural Law. They are all made to fit into the general idea of a contract of society, proceeding steadily upwards from the individual to the State through an uninterrupted series of progressively hIgher and progressively broader social formations. There is thus no contradiction--on the contrary, there IS full and absolute agreementbetween Althusius' system of political ideas, as it has just been described, and his junstic theory of associations, as it has been explained in a previous section (38). t Whether we look at hIS views in terms of political theory, or m terms ofjurisprudence, the result is the same. Any difference in kind between public and private law, between the commonwealth and a company, between the general will and an agreement of dIfferent WIlls, disappears The one conception of the 'society' or partnership, founded on individual rights, is made to cover the whole of Group-lIfe. Dividing itself first into the two varIeties of the soczetas bonorum and the socutas uztae, and then proceeding to lump together, as all belonging to the latter of these varieties, the Family, the Fellowship, the
In Sweden there were four Estates-clergy, nobIlity, burghers and peasants. t Gierke here refers to vol. IV, pp. I 78 seqq of lus Genossenschaftsrecht, which is not included in this translation.
76
Gierke's Text: the Period down to z6jo
local community and the State, this partnership conception is stretched so far that it has to include simultaneously both the simple business company and the genuine corporate group. In each and every case, the union ofmen for the purposes ofa common life is regarded as producing a living Group-person; and yet in the issue none of these Group-persons proves itself to be anything more than a collective sum of associated individuals. The Teutonic idea of the freedom of corporate bodies is mtroduced into the sphere of the Law of Nature; an inherent cxistt'nce is vindicated for associations over against the State; and yet, in spite of every effort to attain the idea of a true and organic Group-being by the use of the Teutonic conception of' Fellowship', there is a final failure to make either the State or the corporation a whole which is really one, and can assert itself against the individual in the strength of its own inherent existence In the exposiuon of a general theory of c;ociety based on the principles of Natural Law, Althusius had shown himself far in advance of his age; but some degree of approximatlOn to his system of thought was really mevitable for every thinker who scriously believed that the State wa!> derived from a contract of society. If a contractual agreement bctween individual., had power enough to produce a sovereign commonwealth, it must also possess the power of producing Fellowships and local communities. The State, by its positive law, might make the formation of corporate bodies subject to its previous consent' it might, by the same means, limit the right of such bodIes after they had been actually formed; but the essential source of the existence of associations and their particular form of common life remained an act of voluntary agreement among the members themselvc!>. As:.ociations too had a basis in Natural Law. thcy were coeval with and akm to the State; and like individuals they ffilght be regarded, not as the creatures, but rather as the living limb", of the ultimate social Whole There were some political theorists who, following this line of thought, described any State which transcended the hounds of a simple CityState as a respublrca composlta ('39) There were others who, adhering either wholly or in part to the federal scheme of Althusius, interposed a gradually ascending series of associations between the individual and the State (40). A similar point of view was occasionally adopted even by writers whose general political tendency showed a definite hostIlity to corporations(41). But whatever the particular point of view, individualism was the general basis; and whenever the question arises, in any of these connections, 'What
15 The natural-law theory ofAssociations
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the inward essence of a community?' the individualistic premises of the argument always lead inevitably to the obvious answer, 'It has the character of a partnership' (42). It was a factor of primary importance that Grotius gave his adhesion, on some essential points, to the federal theory. Like the followers of that theory, he held that the various elements in the structure of civil society were based on the same natural-law foundation of contract as the State itself. In the second book of his De Jure Bellz et PaCts, where he deals with the different titles to the acquisition of property (domimum) and authority (imperzum), he makes a division, in the course of the fifth chapter, between three primary methods of acquirmg a right over another person. The first is procreatIon, which is the basis of parental right: the second is contract, or consensus' the thIrd is delict, which explains the impositlOn of slavery on pcrsom or peoples by way of pUnIshment. The second (or contractual) basis of the acqUIsition of JUS m personas is further diVided into consoclatzo and sub;ectzo. From the contract of consoctatw GrotlUs derives first marriage (8-I6), and then all the other forms of consoClatlO, both publzca and prwata. Under the head of' publIc associations' he includes both the consociatio zn populum and the consOCzatlO e:t popults [I.e the federation] ; but while giving the State [whether federal or unitary] a special positIon under thIS head as socletas perfecttsstma, he also includes under it the soctetas mfer populos [i e. international organisation] ( 17-25) (43) The contract of sub;ectzo he makes the baSIS both of the rights of the master under the system of private law (in the matter of slavery and adrogation) and of the rights of the Ruler under the system of pubhc law. This scheme is in some respects opposed to that of Althusius. Grocius recognises that there are other method~ besides consensus by which power can be initIally acquired Again [even in the sphere of consensus] he holds that subJectto, as well as consoczatzo, has the effect of imposing an anginal oblIgation; and he proceeds, upon this basis, to make a general division of all forms of social grouping into soctetates smc maequalttate and soaetates maequales (44) But while, in both of these ways, he lays a broader foundation than his predecessor, the theory whIch he builds upon it IS still a general naturallaw theory of society at large, in just the same way as that of Althusius. It embraces the whole area of legal connections between persons, whether under private or under public
... Adrogation is the adoption of an independent person, reducing him to a dependent status (filaus-farrulws) '.
is
78
law: it includes the theory of the State as simply a part (if the final and culminating part) of its general range. It is a th()ry of society which permits associations to enjoy an inherent and independent common life as against the State: indeed it may even be said to make the body politic itself nothing more than a societas immortabs et perpetua composed of parts which are commonwealths themselves. None of these parts can be separated from the Whole against its will: any of them may leave it, in case of need, by its own unilateral act. This involves a jus partls ad se tuendam which is prior to the Jus carports in partem; and Grotius justifies such priority by the significant argument' qUIa pars utitur jure quod ante sonetatem tmtam habutt, corpus non ttem' (45). But every society, including the State, is regarded as deriving its existence, in the last resort, from the Individual; and none of them rises above the level of a system of relations established by agreement between the owners of individual rights. Grotius is no more able than other thinkers to establish a firm and logIcal line of division between partnership and corporation. Every local community or FellowshIp, like the State itself, IS simply a species of socIetas (46). If, notwithstanding, there appears on the scene a Whole, whIch is comparable to a natural body, with a unity that continues through all the change of its members(47), the appearance of such a Whole is attributed solely and simply to the eflect of those provisions in the contract of society which were designed to secure this object. We have already noticed a primary pnnciple which Grotius enunciates in thIS connection. He ascribes the validity of the majonty-prmciple to an agreement (which, he holds, is to be assumed in every case) that the majority is to count as equal to the Whole in dealing with the affairs of any aSSOClation(48). For the rest, we can only say that he makes all the rights and dutie~ of corporate bodIes depend upon a mere dIfference between the 'collective' and the 'distributive' aspect of a group of individuals. * This is made to explain why the same associated
Summarumg the argument of Gierke at thlS pOint, we may say (I) that a whole only emerges for GrotlUl> when, and 111 so far as, then' IS a speCific agreement that the whole shall act, (2) that he beheve~ man ongmal specific agreement, In all group~, empowermg the maJonty to act for the whole 10 dealing With group-affairs, (3) that If It be asked what group-affairs are, the only answer he gIVes IS that they are all those affairs whIch can be brought under a collective pomt of view, as contrasted With a dlStnbutlve-l.e. they are affairs that belong to all ut Un/verSI, as contrasted With affairs that belong to all ut smgull.
79
ihdividuals who possess rights ut universi have no lot or share in those.nghts ut singuli: it is made to explain why the debts of the universitas, on the principles of Natural Law, cannot be a ground for the liability of smguli(49): it is made to explain why, in the matter of delicts, the guilt of the community cannot be presumed of the individual members when regarded as individuals (so). But while the universztas thus receives some measure of recognition as a separate person, it really remains throughout an aggregate of individuals, which is only integrated into a unity in certain definite legal connections (5 I). As soon as we reach the point at which this artificial and juristic mode of thought ceases to be applied, we find at once that it is only individuals who really and truly exist(S2).
(3) The interpretatzon of Hobbes We have seen from the preceding argument, first that there was a current, arising from the natural-law theory of Sovereignty, which made strongly towards the absolutIsm of the State, and secondly that there was also a strong counter-current, proceeding from the natural-law theory of Contract, which made in the opposIte dIrectIOn We have now to notice how Hobbes, once more, * defeated this opposing tendency by using agamst it its own argument of Contract (53). Hobbes applies hIS own theory of contract not only to the State, but also to all other groups. His general view of associations is that they are partnership bodIes, analogous to the State, which owe their eXIstence to contract. Startmg from the category of' System', in the sense of a union of a number of persons for an object common to them all, he draws a distmctIOn between sy~tems whIch are regularza and thme which arc zrregulana, USIng as hIS criterion the fact of the presence or absence of a . representative person'. The regular systems are then subdivided into s.ystemata absoluta swe zndependentza, which are subject to no authority but their own 'representative person', and Systemata subordmata, which are subject-not only as regards their member~, but also as regards their 'representative person '-to the authorIty of the State. The
'Once more'-bccausc, as we have already seen at the end of 14, Hobbes used the do{'trme of Contract agamst the cause of popular ~overelgnty which it had hItherto been used to ~upport, just as here he I~ ~hown to have used the same doctnne of Contract agamst the c:.ause of Group-nghts which Ithad hitherto served to vindicate.
80
first of these two subdivisions includes only States. The seconti subdivision may again be subdivided into corpora jublica which 'ab auctontate summae potestatls cwitatis constitutae sunt', and corpora pnvata, which 'ab ipsis civibus vel auctoritate aliqua extranea constztuuntur'. All corpora privata are llelta, provided that a cwztate probantur: otherwise they are illiczta. Systemata subordinata may also be subdivided, from another point of view, and according to the nature of the objeet pursued, into provznczae, opplda, unIVersitates, collegia and eccleszae. Three other subdivisions may also be added to these five-great merchant companies possessing monopolies (collegza mercatorum ad regulanda negotza): Systemata subordznata pro tempore praefinlto constltuta, such as, e.g. assemblies of deputies convened by the King in order that he may take counsel with them, 'tanquam cum una persona cwes omnes repraesentatura' ; and finally Families, in so far as the State has left them with a personality of their own. * We now come to !Jystemata irregularza. They are either unions (foedera) which have no umtas personae, or assemblies (concursus) without any definite organisation or system of mutual obligation. It depends on the purpose of the indIviduals concerned whether they are allowed or forbidden. In general, special combinatIOns and unions for mutual protection among the citizens of a State are superfluous and questionable, because the State CWlUm omnzum foedus lOmmune est; and therefore they are forbidden as conJuratwnes vel factwnes. The simple act of assembling for a legal and overt purpose, e.g. for a festive procession or a theatrical representation, i~ in Itself permis~ible; but even this ceases to be allowable if a greater number than the object requires are gathered together, or if the State issues a prohibition. According to these views, the eXistence of associations depends essentially on the same natural power of association which also created the State. True, any lIberty of association [I.e. the right to create assocIations] only exists in so far as the State allows it to do so; nor can we speak of any independent right of groups, as against the State, any more than we can speak of such a right of individuals. But the life of Systemata subordznata is not a derivative life, which proceeds exclusively from the State; we may rather say that such bodies, like the State, have to some degree their own necessity or utility(S4). On the other hand, while the exzstence of
So far, in other words, as they are left by the law m the posltlon of the
Romanfanulza, wah the jJaterfamzlzas ab Its representative person.
15. The natural-law theory
of Associations
8I
a-group can thus proceed from a force which is inherent in its membfrs, it is impossible for a group to generate from itself any authority to control those members. In the act of making a political contract, all individuals transferred to the Ruler unconditionally all power of every sort; and while they may still possess a capacity of combination for particular objects, even after they have made that transference, they have no longer any power to bestow. It follows that the powers of corporate bodies, so far as they enjoy any powers, are really powers of the State, which it has entrusted to them. Following this line of argument, Hobbes insists that the wholc of the potestas of subordinate Group-persons is a power derived from, and determined by, the State. He refuses to allow that any man can represent any section of the People further than the State (cuJus persona cunctorum persona eft) thinks fit that he should. He holds that the powers belonging to any agent of a corporate authority are determmed, not by a commission proceeding from the community [i e the corporate body], but partly by prccepts or charters issued by the sovereign, and partly by the general laws of the State (55). Otherwise there arises a State within the State (avztas 11l CWltate), and the UnIty of the State is rent in two. It follows that the' system' and its memben are alike immediately subjcct to thc authonty of the State. 'Systema et membrum conewes sunt'. It follows again that, wIllIe the sovereign is judge in his own case in any rystema absolutum, disputes betwcen a systema subordmatuTI! and one of its members must be settled in the court., of the State. In the same way daims of the' system' against its members mu&t be made effective by the process of an ordinary action at law, and not by the exercise of any compulsory power ~upposed to belong to the' &ystcm' (56). With the authonty of the LOrporation thus ab'>orbed III that of the State, Hobbes is able, as he proceeds with his argument, to fit both State and a'>Sociation into the same framework of a general theory of Society at large, without any sacrifice of his cardinal principle of political absolutism In his theory of corporations, as in his theory of the State, the central conception is that of the unity of group-personality. He regards the essence of every ,~)stema regulare as consisting in the persona civzlis (or artzjiczalzs) which is created by the appointment of one man, or one body of men, to be the persona repraesentatwa of a multitude. The basis of this view IS a general theory of 'persons, authors, and things personated', which comes in the
BTSI
82
sixteenth chapter of his Leviathan. According to that theory,a person is one who acts. One who acts in his own name iSr/JeTsona propria sive naturalzs; one who acts in the name of another is persona ejus, cujus nomine agzt, repraesentatlVa. In relation to the representative person, regarded as actor or agent, the person represented is auctor and the right to act is auctontas. In virtue of such auctontas the action of the actor is reckoned for legal purposes as being the action of the auctor, except that, when the authority is only a pretended and not a real authority, the actor himself incurs a personal obligation. Only aliquid quod intellzgzt can be a person; but what is represented (cujus persona gerztur) need not possess intelligence. In that case, however, it cannot be an auctor. Thus when an inanimate thing, such as a church, a hospital, or a bridge, is personated, the rector, master, or overseer is the persona repraesentatzva of that thmg: but it is not the thing personated which is here the auctor-it is the owners, or governors, of that thing. In the same way, it is not the child, but the State, which is the auctor of the representative personality of the guardian. Similarly, when the gods ofthe heathen were personated in times past, the neccs~ary auctontas proceeded from the State. On the other hand, a multitude of men may form a single person [without any intervention of the State] by acting as auctor and givmg an 'authority' to represent them into the hands of one man or person. Here, as Hobbes says, 'it is the" unity" of the representer, not the" umty" of the represented, that maketh the person "one", and "unity" cannot otherwise be understood in multitude'. But smce each individual, in such a group, is auctor of the common actor, the words and act.'l of this persona repraesentatwa are considered as the words and acts of all indIviduals, taken singly. If it be an assembly of men, and not a single man, who is authorised as actor or persona, 'tunc vox partrs majons aCClpunda est pro voce personae' ; otherwise this actor or 'person' would be mute, as is indeed actually the case when the voting is equal. In this way, and by this delegation of the power of decision to a representative, there arises the artificial personality of corpora fictitla, in which 'homo vel coetus unus personam gent omnzum'. There is no intrinsic difference between the personality of the State and that of other groups, except such as arises from the subjection of the latter to the power of the former. But that one difference is the parent of others. In contrast with the all-embracing representation of his subjects by the Ruler, the representation of the members
83
c1f a systema subordinatum is in every case limited to certis rebus a eivitate determinatis. Again, a subordinate group-personality [just as it tJay be limited in the range ofits purposes] may also be limited in its duration; and Hobbes accordingly ascribes a temporary persona ewes omnes repraesentans to an assembly of popular representatives convoked by a monarch. In the same way, he speaks of a persona totius familiae as vested in the paterjamdzas [for the time bemg]. In dealmg with associations, as in dealing with States, Hobbes draws a clear line of division between monarchical and republican constitutions. The absolutist tendency of his thought leaves no room in associations, any more than it does in the State, for a plurality of organs, Wlth a constItutional dIVIsion offunctions. The persona Systematz~ is therefore, in every case, either unus homo or unus coetus(S7). On one pomt, however, Hobbes admits a difference between the legal implIcations of government by a single man, and those of government by a smgle body of men. The point turns on the effect of acts undertaken by a representatlve person which go beyond the limits set to his auctorztas by the law and the constitution. Any action of a representative person which is mtra lzmltcs is a 'factum unzusCUjUJqUf homlnzs corum qUl Systcma constltuunt' ; but no man carries any 'person' other than his own if he undertakes action WhICh IS ultra lzmzter It follows that the unauthorised action of a single man who represents a system IS, In every case, his own action, and hiS own actIOn only. It cannot be ascribed to the system, and It cannot be ascnbed to any of its members But if the' person' representing the system be an assembly, a dIfferent result is involved. Any actlOn of that assembly which goes beyond the bounds of its competence is also an action of the system itself, as a whole, because the system is identical With the majority [of votels in the assembly]. Not only so, but It IS also an action of every individual who co-operated in it, though It is not an action of those who opposed it, or of those who were absent when it was undertaken. Hobbes applies this view particularly to dclicts. He regards the delict of a single representative governor of a 'system' as only the delIct of a smgle person, on the ground that no power of representation can give the representative a right to commit unauthorised actions; and he therefore holds that this single person alone is subject to puni5hment On the other hand he regards the delict of a representative assembly as being simultaneously a delict ofthe tatum Systema and a delIct of the indi vid ual offenders (58).
6-2
84
Gierke's Text: the Period down
to
1650
Corporal punishment must therefore be inflicted on the individuais who joined in the act; but since individuals only can be punished in that way, the system itself must also undergo, in additioh, any punishment of which coetus capax est. A dlssolutio Systematls may therefore be pronounced against a corpus fictltium, as a form of capital punishment; or a fine may be levied upon any funds which it may possess. It is not only to delicts, but also to debts, that Hobbes applies this distinction. If an individual who represents a system contr<J.cts a loan, only he should incur liability and repay the loan, 'vel ex communz thesauro vel ex pecunza propTla'. He cannot make others liable for his debt; and thm the creditor can only sue the persona Systematls contrahens who confronts hIm visibly as a natural person. If, however, a coetus is the borrower, all who have voted for contracting the loan are severally liable, when the creditor is an extraneus; but when the debt is owed to a member, salus coetus ipse, i.e. tpsum Systema, must answer for it. If it cannot answer, because there are no common funds, then the creditor, who is himself a member of the coetus, must put the loss down to hIS own account; for he must have been aware, at the tIme when he lent the money, even if he vote:-d against its being borrowed or were absent from the voting, that he was also incurring a debt m his capacity of member (S9). It is obvious that these deductions, some of which are not very illuminating, are based upon an extremely indIvidualistic pomt of view. Every form of group-personality is dIssolved into representing and represented individuals. Whenever an individual is vested with any right, or charged with any duty, by his own act or by the act of others, he is involved with the whole of IllS personality. Where groups are in question, it is only by the tour de force of identifymg an assembly with the changing majority of the:- individuals who compose it that Hobbes is able in some degree to disengage the idea of a corporate 'Subject' of rights and duties from the individual members of the group. With all its imperfections, however, the atomistic and mechanical construction of Systemata subordmata which appears in his theory has a historical significance ofits own. He was the first to introduce into the theory of Natural Law a conception of Group-persons, which was not simply borrowed from the civilian or Roman-law theory of corporations, but was genuinely deduced from the actual principles of Natural Law; and he was the first to make such a conception the pivot both of public law and of the law of corporations.
15. The natural-law theory oj Associations
II. GROUPS ABOVE THE STATE
When'we come to associations which transcend the State, we find the natural-law theory of Sovereignty incompatible with any idea of a Super-State [Le. any idea of an international or federal political system], but compatible with the idea of a social hond of connection between States [i.e the idea of a free partnership]. The medieval idea of a world-monarchy was an idea foreign to the thinkers of the School of Natural Law. They left to the publicists of the Holy Roman Empire the task of continually re-invoking, on reams of paper, the unsubstantial ghost of the old impenum mundl(6o), but they made the indestructible germ of that dying system of thought yield the new and fruitful idea of mternational somry. Mter the end of the sixteenth century, it became the habit of thinkers to explain the obligatory force ofJUS gentwm by a soczetas gentrum, in which the original and inextinguishable unity of the human race was supposed to have survived, even though sovereignty had passed to the separate nations (61). It must be admitted that the lack of any clear distinction between partnership and corporatlon prevented a clear conception of the character of this society of States. On the one hand, a tendency continually reappeared to harden intcrnational society mto a world-State, and to arm it with the authority of a Super-State organised on Republican lines (62) : on the other, the stricter advocates of the theory of sovereignty rejected in toto any idea of a natural community uniting all States together(63). But the doctrme which held the field, and determined the future ofinternational law, was a doctrine which steadIly clung to the view that there was a natural-law connectIOn between all nations, and that this connection, while it did not issue in any authority exercised by the Whole over its parts, at any rate involved a system of mutual social rights and duties (64). From this point of view international law was conceived as a law binding mter se upon States which were still in a state of nature in virtue of their sovereignty, and bllldmg upon them in exactly the same way as the pre-political Law of Nature had been bmdmg upon individuals when they were hYing in a state of nature. The tendency of contcmporary thought, which regarded all positive law as the product of State-legislation, * deprived inter In the view of Clerk!", expressed In hIS work on Althusius (sec AppendIX II), law IS not produced by the State It l~ the result of the common convIctlon of a human community (whether such conVIctIOn be mamfested dIrectly by usage, Or declared by an organ of the communIty appointed for that purpose) not that there shall be, but that there already are, necessary Iwuls to freedom. From this pomt of view positlve law 1S not, m its essence, the product of State-legislation.
86
Gierke's Text: the Period down to r650

~
national law of any positive character, but gave to it, in exchange, the sanction of pure Natural Law. If the theory of Natural Law were to remain true to its conception of sovereignty, it could never admit a federal combination of particular States [any more than it could admit a general society of all States] to the position ofa Super-State. The conception of the federal State, which was derived by Besold and Hugo, as we have had occasion to notice elsewhere, * from the positive public law of the Holy Roman Empire, could not grow on natural-law soil; indeed we may even say that it has only maintained its existence in modern thought by dint of a constant and bitter struggle with Natural Law. The natural-law theory held rigorously to the principle that it was only the Whole or the part [of a federation] which could ever be a State, and that both could not be simultaneously States. A federation must therefore be a case eIther of a single unitary State with a corporative structure, or of a system of contract between sovereIgn States rC'stm~ on the same basis as internationallaw(6s). But when the natural-law theorists proceeded to apply this idea-treating Germany as a unitary State, and then placing the United Netherlands, the Swis" Confederation and the Hanseatic League, along with the loosest of confederatIOns, under the same indiscnminate rubnc of foedus or contract-they found themselves enabled, by the very elasticity and ambigUIty of their conception of partnership, to glIde insensibly into the use of terms and ideas drawn from the law of corporations (66). t Grotius even goes so far as to draw a distinctIOn of principle between mere contracts ofconfederation and organised unions of States-dIstinguishing further, among the latter, between a union of States under a common head and a federation of States which has been transformed, by a foedus arctzsszmum, into a Systema clUztatum or Corpus confoederatorum(67). Whether the inviolability which he vindicates for the sovereignty of the several States (each of which is to remain in itself a Status perfectus) can in any way be combined with their inclusion in a union of so corporate a character is a question which is left unanswered.
GIerke IS referrmg to a section of hIS fourth volume whIch is not translated here ( 12, p. 228). t I.e. starting from the Idea that a federation IS only a contract or partnership, but then proceeding to oblIterate the line between partnel1lhip and corporation, they are able to treat a federation of partner States as If It had corporate umty, and were thus i~lf a State.
15. The naturallaw theory of Associations

III. GROUPS PARALLEL WITH THE STATE
87
The Church
It was equally impossible for natural-law theory, if its conception of sovereignty were pushed to a logical conclusion, to recognise associations as able to exist side by szde with the State. If the potestas summa et absoluta ascribed to the State was to be a real fact, all other associations must necessarily be contained in the State, and they must necessarIly be subject to its power. But what was to be said, in that case, of the relation of the State to the Church? Here the School of Natural Law had to face the great problem whether the Church was to remain outside its general scheme of ideas, or whether it was to be included, like other bodies, withm the limits of that scheme. From the Catholic point of view, the Church stood outside the domain of Natural Law The Catholic doctrine of Natural Law, equally with all positive jurisprudence which was coloured by Catholic tendencies, maintamed the medieval theory of the two swords;* and it therefore set the Church, as a spiritual State which was independent and complete in itself, over against the secular State. In the natural-law systems of the Dominicans and the Jesuits, the relations between the State and the Church were made to depend entirely on the fundamental distinction which they drew between a human structure created by contract in virtue of Natural Law and a divine and supernatural institution. The Church was regarded as the onginal and innate 'Subject' of an inherent sovereign authority ""hich, by the dispensation of God, was monarchical in character and universal in scope, and was vested immediately by Him in the person by whom it was exercised at any given moment(68). As the hIgher of two separate sovereigntIes, thIs spiritual authonty was superior to the pohtlcal, and therefore political sovereignty was fundamentally not sovereignty at all. Political sovereignty might indeed seem to be safeguarded by a formula, commonly used by the more moderate curialists after the days of Bellarmine, which makes the primacy of the Church express itself, where it touches the secular sphere, only in the form of potestas zndm'cta; but the safeguard is more apparent than real (6g). True some voices were raised, even in the sphere of Catholic doctrine, in opposition to the theory of ecclesiastical supremacy. It was argued that the Statc possessed a jus
'" I.e. it distinguished the two mdependent spheres of spiTltudia and temporalltJ.
88
divinum analogous to that of the Church, and the idea of the sub':. ordination of its authority to that of the Church was accorc;lingly rejected. But even so the Church was always regarded as a separate spiritual State, a politia or societas perfecta, with a sovereign power co-ordinate with that of the State. There were two separate powers; each of them was independent in its own sphere; and the two were simply connected by mutual alliance(70). On the Protestant side too, after the early ferment of the Reformation had subsided, the old medieval idea of two potestates distmctae continued for some time to survive, and to hold unchallenged sway in theory. There was only one difference. Holding, as they did, that the one universal invisible Church was not a legal institution, and believing, accordingly, that the Church only manifested itself as a legally organised association in the form of a territorial Church, Protestant thinkers were free from any idea that the possession of the two powers could be divided between two separate external authorities (71). In the Lutheran Church, the view which came more and more to prevail was to the effect that the one divinely appointed authority [the Prince] was called to the exercise of regzmen in things spiritual as well as temporal, but that he possessed the two powers by different legal titles, and was bound to exercise them according to different laws, through different organs, and subject to different limitations imposed by the right!> of the general community. In this view the State and the Church appeared as separate social organisms, with sovereIgn powers of different origins; only they were united, just as two States may be joined under a system of personal union, by havlOg a common head. This point of view found juristic expression in the episcopal system and the theory of the three Estates * (72). A more definite breach with the medieval system of canon law was marked by the theory which triumphed in the Reformed Church of Calvin. Based on the congregational principle (Ge We may call the Lutheran system one of' quahfied panty'. There IS panty, the sense that Church and State are on a panty as SOCial organISatIOns, with different sovereign authorities corresponding to their dIfferent character as orgamsatIOns j but the parity IS quabfied, and highly qualIfied, by the umon of the two authorities In one hand. The epIScopal system, in which the prince- is summus eplScopus, IS a jurIStic expression of thl~ quahfied panty. the system of the three Estates, m which the clergy are a separate Estate, but have to act with the other two in a smgle State under the supreme authonty of the prmce, is another juristic expression.
In
IS The natural-law theory
of Associations
89
1neindeprinzip) , Calvinism none the less continued to hold, like

Luthlfranism and Catholicism, the theory of the double 'polity'; but unlike the Lutherans, the Calvinists vested the united exercise of the two powers not in the Head, but in the whole Body, of the community. They regarded the People as possessing both a temporal and a spiritual sovereignty, which were in some sort coordinate with one another, and they made each of the two separate sovereignties issue in a corresponding series of group-organs (73). We have noticed, in its various phases, the idea of dualism between Church and State. It was impossible for the theory of Natural Law, as it moved onward to its culmination, to assimilate such an idea. On the contrary, it found ltselfforcecl, by the sheer necessity of keeping its logical system intact, to press the Church, like other bodies, into the common mould ofits theory of the State. The task was the easier because the development of the Protestant system of the State-Church had already provided the theorist with a basis in actual fact The Church had already been incorporated into the State in practice. It only remained to incorporate it also in theory. Such mcorporatlOn of the Church in the State was most readIly achieved by those who held the purely 'territorial' view of the Church. * From the beginning ofthe Reformation this view had always found supporters; and it naturally became an obvious axiom of political theory as soon as thinkers grasped, and pressed to its logical conclusions, the conception of sovereignty which made it the one and only form of social authority ThIS territorial view eliminates not only the conception of a spiritual State, but also any conception of a spiritual authonty. For it there is no other
II< Gierke uses, In the followmg argument, a dIstmctlOn between three forms ofecdcsIastKal orgamsatIOn wInch IS common m German thought. (I) 'CollegIahsm' (' formulated', acrordmg to the New EnglISh Dlclwnary, 'under the name by Pfaff in 1742') IS the theory 'that the (or a) vlSlble chure-h IS a purely voluntary asmClatlOn (collegIum) formed by contract, In whKh the supreme authOrity rests with the whole body of the members, and that the CIvIl magIStrate has no other relatIOns to the church than thme which he has to any other aSSOCIatIOn wIthm hiS terntones ' (2)' EplscopallSm' IS the theory' ""Iuch places the supreme authonty In the hands of oln epIscopal or pastoral order If thIS authonty is In practIce exerci~ed by any recogmsed head of the church, it IS only a~ the delegate of thIS order as a whole, and With their consent' (3) 'Territonalism' IS the theory whIch places the supreme authonty In the civIl power'. Its motto is cUJus reglO, eJus relzglO. In England NonconformIty may be said to represent colleglallSffi " and AnglicanISm a mIXture of 'epIscopahsm' and terntonahsm " With the proportIons and the contInuance of the mIXture both in dispute.
90
Gierke's Text: 1M Period down to 1650
authority, even in ecclesiastical affairs, than the unique and in!. divisible majesty of the State(74). As an invisible communi~v, the Church is a kingdom by itself. In its external and legal manifestation, it is a State-institution; spiritual office is a particular sort of State-office; and spiritual property is State-property devoted to a particular object* (75). Views of this general character are compatible with very divergent conceptions of the limits to which the authority of the State should be subject in the area of religious life. The territorial system can equally find room both for theories of religious persecution and for theories of liberty of conscience (76). But the issue between persecution and toleration is not a question of the boundary to be drawn between Church and State. It is only a question of the boundary to be drawn between the State and the Individual. MeanwhIle the purely territorial system came into collision with the natural-law doctrine of the contract of society. If such a contract could produce social bodies, why should not a religious association be the product of a 'league and covenant' between believers? The question did not stay long for an answer. As early as the seventeenth century we already find thinkers of the School of Natural Law holding the view which has since been given the name of 'collegiahsm'. It is a view of the Church as based on a separate ecclesiastical contract of society It is a view which makes it one of the associations contained in the State. At first this view can hardly be said to have come into actual conflict with the 'terntorial' system. On the contrary, it rather served as a foundation and support for territorial ambitiom We have to remember that a formula had already bcen found, applicable to all the associations contained in the State, which made it possible to combine two different ideas-the idea that they derived their existence from a voluntary contract of union, and the idea that they derived their authority from the authority of the State. On this basis, it was easy to assume that there was also a religious contract of union, and that this contract, like other similar contracts, could indeed produce a society, but not an authority. This lme of thought may be traced particularly in Grotius' work De Imperio summarum potestatum area sacra (77), which sketches a collegial-territorial system of Natural Law for the Church. This
The reader may find some mterest, from thiS point of VIew, in Paley's Moral and Polltual Philosophy, Book VI, c. x, 'Of RelIgious Establishment'. E.g. to Paley the clergy are' a class of men set apart by public authority', and maintamed 'from revenues assIgned by authority oflaw'.
91
;ystem, we have to admit, does not altogether square with Grotius' genem.l theory ofcorporations, as it was described a few pages back. On the contrary, the De Imperio shows a far less liberal attitude to the rights of associations, though the writer seeks to conceal his departure from his earlier views by making an artificial distinction between the various species of social authority. In the scheme of ideas which he now propounds, all regtmen is either dtrectwum or constitutiuum. (I) The first form of regImen imposes no sort of obligation: at the most, it either gives advice, qua suasorium, or it enunciates some existing obligation, qua declarativum. (2) Regimen constitutivum, on the other hand, is a real source of obligation; but it can only impose that obligatlOn either ex conrensu or ex vt impertl. (a) RegImen ex consensu arises from the binding force of contracts. In the first instance, therefore, it can only bind the consenting parties; but secondanly, and indirectly, it may also bind those who are not consenting parties, If and provided that they too are members of the umversztas, and if the major pars of this unwersztas makes a decision which is neces<;ary for its maintenance or improvement Even so, the obligation does not arise from any SUperlOTltar of the majority, 'sed ex llla naturae lege, quae vult partem omnem, quae pars est, ordmaTl ad bonum tottus' (78). (b) Regzmen ex lIZ lmpem [as distinct from regzmen ex conJensu] 'oblzgat ex m zntrinseca superemznentzae suae'. I t is either supremum or supremo znJeTlus. The latter species may again be subdivided. It is either ex supremo emanans (in which case it is sometimes only oblzgatwum, but sometimes also coactwum) , or it is allUnde ortum habens. But it is only the paterfamilias, and (to a le~s extent) the guardian and the teacher, who possess an intrinsic lmpenum which is not derived from the sovereignty of the State [i.e. which ahunde ortum habet]. In accordance with this scheme, Grotius invests the Ecclesla (as a coetus which is not only permitted, but also instituted, by the law of God) with all natural rights of a unwersitas legltuna, including the right to exercise a regImen constltutwum ex consensu; but he will not allow it a regImen zmperatwum(79). To the clergy, as distinct from the Church, he refuses to allow even an ImpeTlUm constltutwum: they have merely a faculty of dlrectlO, such as belongs to a physician (80). All real authority, in ecclesiastical as well as in civil matters, is reserved for the political sovereign; and his summa potestas must necessarily, on the principles of Natural Law, and by its very nature as a unique and universal authority, embrace things sacred as well as profane(81). Similar views had been developed by other writers previous to Grotius (82); but it was an almost
92

~
contemporary writer, Cooring, who expressed most vigorously the general idea that the Church is no separate State, but a corporation contained in the State(83). Collegialism, however, was destined to become the definite enemy of territorialism, as soon as thinkers began to argue from the doctrine of a contract of society to the existence of an inherent social authority belonging to associations. In that case the authority of the Church, like that of other associations, could be regarded as a corporate authority, subject indeed to political sovereignty, but none the less rooted and grounded in the very fact of ecclesiastical society, and independent in its own area. Gisbert Vaet was the first to erect a complete system of natural church-law on this basis(84). He explains the existence of the visible Church as being entirely due to a voluntary contract ofunion(8s). True to the constitutional ideal of the Calvinists, he regards the particular congregation, under its own presbytery, as the primary form of the Church, produced by a covenant made between individual believers; and he proceeds to interpretthelargerecdesiastical groups, organised in an ascending !>eries of dIfferent synods, as later formations due to a contract of union (combznatlO, UTllO, et zncorporatzo) between a number ofcongregations (86). He ascribes to the Church thus constituted a spiritual authonty, in regard to doctnne, ritual, and discipline, which proceeds dIrectly from its natural power over its own body (corpus suum) (87) He admits that, so far as positive law is concerned, the relation of the Church to the State is determined in a variety of different ways, according as such law varies from State to State (88) He allows, agam, that owmg to a stress of circumstances due to the Papacy, the true Church has been forced in a number of cases to hand its authority over to the secular government (89) But he holds, none the less, that according to divine and natural law all that the State can properly do is to exert over the Church a supervision which issues from the nature of its political authority, and the Church itself must always retain its own separate spiritual authonty(go). He utters a warning against the total surrender of the ecclesiastical commonwealth to the State. He protests against the treatment of Church property as the property of the State; and he thus applies in the sphere of the law of property [as well as in regard to doctrine, ritual and discipline] his general idea that the Church is an independent corporation, depending upon itself(gI). It is little wonder that his book was instantly stigmatised by the adherents of territorialism as a backsliding into papalism(92).
CHAPTER II THE PERIOD FROM THE MIDDLE OF THE SEVENTEENTH TO THE BEGINNING OF THE NINETEENTH CENTURY
SECTION I
THE NATURAL-LAW THEORY OF SOCIETY DURING THE PERIOD OF ITS ASC.ENDANCY
16 to 18
CHAPTER II:
SECTION
1,* I6
THE GENERAL THEORY OF THE GROUP (VERBANDSTHEORIE) IN NATURAL LAW
I. The vogue of Natural Law and its zndividualzstzc baszs

After the middle of the seventeenth century the influence of natural-law speculation steadily grew in depth and in extent. The doctrines of the Law of Reason not only acquired an intellectual supremacy over every department of jurisprudence. they also began to translate themselves into fact. Advancing irresistibly on their triumphant progress, they only came in sight of the limits of their power at the moment when, in the general European revolution of I 789, they also achieved the realisatIOn of all the high hopes which they had inspired. To trace effectIvely the development, dunng thIS period, of the views entertained in regard to the legal nature of Groups, we must henceforth endeavour to follow the hIstory of the natural-law theory of Society not only m its inward growth, but also in it" external operation We may first of all glance at the general theory of the Group which was held by the School of Natural Law We have already seen that there had arisen, on the soil of the doctrme of Social Contract, a general theory of society which included the State and all other human groups in its ~cope, and interpreted them all in the light of a single principle This general theory of all forms of lOezetas was now expounded in detail, and it became the more mftuential as thinkers occupIed themselves more with attempting to elaborate Natural Law into a regubr sy~t('m of doctrine-an ambItion which was nowhere pursued more ardently than in Germany. Even when no such attempt was made- whe!} thinkers confined their attention to the State, or when l though dealing also with other groups] they assigned to the State alone an inherent right of eXIstence-it wa~ still their regular habit to raIse the fundamental issues of pnnciple in whIch the problem of Group-life as a whole was involved. The very rebel who followed a hne antagonistic
* Glerke glves at tlus pomt, III the German ongmal, a list of the works to whlch reference is repeatedly made 10 thls sectlOn For thlS 11st, see below, Pp49-4 1 7
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to Natural Law was forced to define his position in reference to tht general axioms of this dominant social theory. The development of the general natural-law theory of Uroups proceeded along many divergent lines, and it was attended by lively differences of opinion. But the guiding thread of all speculation in the area of Natural Law was always, from first to last, individualism-an individualism steadily carried to its logical conclusions Every attempt to oppose this tendency was necessarily a revolt, on this point or on that, against the idea of Natural Law itself. Many of these attempts meant nothing more than an obstinate adhesion to the crumbling intellectual system of the past; some of them contained the germs of a future philosophy; but none of them, at the moment, possessed either the lucidity, or the vigour, whicbr..vould enable it to withstand the progress of the general individualistic tendency.
II. The przorzty of the mdwIdual to the commumty, and the consequent VIews of law and property
The fixed first principle of the natural-law theory of society continued to be the priority of the Individual to the Group-a priority all the more readily assumed because the state of society was universally held to be derived from a previous state of nature, in which it was supposed that no real group had existed. According to the VIew which more and more held the field, the individual in the state of nature had been his own sovereign. Men were originally free and equal, and therefore independent and isolated in their relation to one another. But how could thIS assumption be reconcIled with the postulate, which lay at the root of the whole of Natural Law, that a valid law already eXIsted in this self-same 5tate of nature? Was it possible to conceive a system oflaw as having authority, unless it linuted individual wills? And could individuals be limited and bound by a common law, unless they were at the same time united in a community? The solution ofthis problem was a matter ofdeci5ive importance, not only for its bearing on men's conceptions of the primitive condition of humanity, but also for ItS effects on their interpretation of the contemporary world. The view was becoming more and more prevalent that, after the foundation of civil society, the authorities vested with the possession of sovereignty still continued to remain, in their sovereign capacity, in the same state of nature in which sovereign individuals were supposed to have been before.
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'JIhe first conclusion drawn from this view was that sovereign States were to be regarded, in their relations to one another, as 'moral person\'* still remaining in a state of nature, and therefore subject to the continuing validity of the pure Law of Nature, which thus became a system ofinternationallaw{I). In this way the question originally raised in regard to the state of nature--' How could a system of law be possible among completely free and equal individuals?' recurred again as a fundamental question of international law . Nor was this all. There was also the question of the relations of the politICal sovereign to his subjects. Remaining as he did in the freedom of the state of nature, he was held to be unrestrained by any lImits of pmltlVe law; but he was also held to be obliged by the Law of Nature (2). We can see how the profoundest issues of public law [internal as well as international] depended on the possibility of rec onciling sovereignty with legal obligation. All difficulties dIsappeared If once thmkers consented, with Hobbes and Spinoza, to explain away Natural Law into the natural rule of the power of the stronger over the weaker, and to regard the state of nature as a war of all against all (3). A natural law of that order erected no barriers agamst the play of will, and founded no community. But such Natural Law was no law at all it only saIled under the name of law like a ship under false colours, to conceal the bare piratical Idea of power. If he were subject to no other law than a Natural Law of tIus description, the sovereign Ruler of actual contemporary lIfe (equally with the sovereign indIVIdual of the primitive state of nature) was really released from any legal oblIgatIOn at all. Public law disappeared, so far as his relations to hIS subjects were concerned: international law equally disappeared, so far as concerned the mutual relations of States (4). Unless the theory of Natural Law was 'willing to lay the axe to the loots of its own existence, it was precluded from followmg the line that Hobbes and Spinoza mdicated{s). It is not surpnsing, therefore, to fmd that the prevalent doctrine in the School of Natural Law mSlstcd firmly on the genuine legal chalacter of such law, and regarded its bindmg oblIgation as coeval with the state of nature. The followers of thIS doctnne would
* Moral person (persona moralls, personne morale) sLmply rnean~ a non-phYSical person-a person such as exists m the world of men's thoughts (and particularly m the world of their legal thought), but not m the world of phYSical nature. No ethical connotatIOn JS mvolved, but It IS the danger of the tenn that an ethJcal connotation may be Imported. Rousseau's theory, that the general Will of the moral person of the commumty is always rIght, does not escape tlus danger.
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not even consent to tum an ear to the teaching of Thomasius, who held that the Law of Nature had only a power of inward obligation, and thus turned it into a mere moral imperative (6f. They always insisted that the Law of Nature had the full power of external obligation(7). But they began to diverge, and to diverge very widely, when they tried to find a way of explaining the existence of this external obligation without sacrificing at the same time their belief in natural liberty. The simplest way of producing an external control * which was compatible with the full sovereignty of the earthly Ruler was to find it in God Himself. Now it is true that there was lively controversy about the relation of Jus naturale to God, and whether its origin was to be ascribed to His Will or His Being; t but any appeal to Divine authority was not a matter of such practical moment in connection with JUS naturale as it was in connection with another issue-that of the importance to be assigned, and the scope to be given, to the JUs dwznum derived from immediate divine revelation.t Even If the Divine Will was considered to be the ultimate source of Natural Law, and God was held to be the legislator who formally enacted it, the Reason of man was still regarded as the only source from which knowledge of this law could be actually gained, by way ofa natural or rational revelation running parallel to the process of relIgious revelation proper(8) .
.. Natural La\\', It was argued, IS bmdmg not only lnjaro consczentlae, but also mforo externo. I t IS an external control, whIch has the power of ImposIng external obligatIOn. But how can there be an external control whICh IS really compatible WIth the natural liberty of the Ruler, who fl:mams III the state of nature;> One answer, here diSCUSSed, IS to the effect that the external control of Natural Law is really an external control Imposed by God, whose law IS always above our liberty. t The controversy IS the same as that waged between the medieval Reahsts, who held that Natural Law was the dictate of Reason, grounded on the Bemg ofGod, and the medieval Nommalists, who held that It was Simply the command of God, founded upon hIS WIll Cf. Polltzeal TheorieS m the Middle Age, pp. 172-4. : We may remember in thIS connectIOn St Thomas' dIstInctIOn of the vanous 'leges '-the lex aeterna by whIch God Hunself acts the lex naturaliS, wruch IS the detection by human reason of HIS eternal plan the lex dzvlna, which IS the law He has directly revealed to men m the Scnpturcs; and the lex humana, or posItive law of human societies. The controversy about the extent to wluch lex dzvlna, or Scriptural law, was an external rule that trnposed it~elf on the State was a ('ontroversy of more practical Importance (GIerke suggests), In the penod after the Reformation, than the more academiC controversy about JUS naturale and Its origIn m the Bemg or Will of God. The one toucht>d statesmen and clergy, we may say. the other only affected the professors of Natural Law 1Jl the Universities.
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The idea of a transcendental source of natural-law obligation recedqi still further into the background if the Law of Nature was ascribed not to the Will of God, but to his Being, or if, again, He was only invoked as the author of the Reason which itself determined the rules of such law (g). Much the same may be said of another assumption, which was made by a number of thinkersthat Natural Law had an external sanction in the Divine threat of penalties for its breach; for here agam all that was meant was [not a direct intervention of God, but only an inevitable] retribution which manifested itself in the natural course of affairs (ro). We thus see that the appeal to Divine authority in order to secure a legal validity for the Law of Nature resulted in little more than the provision of a formal basis for it; and those who never introduced the name of God at all were able to secure the same result almost equally well [by contenting themselves with human reason as the formal basis of Natural Law](rr). If, therefore, the power of the Law of Nature to impose obligation wJaro externa was not to remain a mere phrase, it had to approve itself as an actual fact In the current relations between man and man [apart from any Divme intervention] * This was the line actually taken in the prevalent theory. All living beings who came into contact in the state of nature were supposed to have a claim upon one another to the observance of Natural Law; and the claim was held to be guaranteed by a power of using coercive measures, which, under the condiuons of the state of nature, must necessarily take the form of self-help According to this view each individual, in the ongmal condition of humanity, had been the guardian and enforcer of Natural Law as against every other individual(I2) This view was extended to cover the relations of State to State under international law ; it was even extended to cover, in some degree, the relations of subject to sovereign under public law. In both cases [that of State versus State, and that ofsubject versus sovereign] there was supposed to be a right, which could be enforced by the method of self-help, to the due observance of the bmits imposed by the Law of Nature(13). Two results followed, or seemed to follow, from this general view. On the one hand, it appeared as if Natural Law possessed that quality of being enforceable, in
If< Since God was not really re'garded by the' thmkers of the School of Natural Law as giVIng that law the power of bmdmg mforo e,-terno, It must be shown that Natural Law carned In Itself ~uch a power, whIch could be seen at work In the relatIOns of man to man, apart from God, or from any interventlon by Him.
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which, from the days of Thomasius onwards, the distinction ofla~ from morality had been more and more made to consist; /fnd on this, in turn, it appeared to follow that it carried in itself a full power of imposing obligation(I4). On the other hand, so long as any idea of external enforcement by a superimposed authority continued to be excluded, the nature of the legal obligation imposed by Natural Law seemed compatible with the notion of a sovereign and absolute libe-rty. But the question at once arose whether it did not necessarily follow, if natural kgal obligation were once admitted to be a primordial fact, that you had already, in that very assumption, introduced the- fact of commum!y into the regime of the state of nature. It was difficult to answer the question with a simple negative. It is true that the prevalent doctrme in the School of Natural Law made law the source of community, and not community the source oflaw(rs). But even if that were admitted, the question might stIll be asked whether a system of law could exist, even for a single moment, without giving effect to the communitycreating power which was inherent in its nature And yet the whole natural-law body ofthought was based on the opposite assumption -the assumption that status naturabs was the very antithesis of status soczal!s A favourite method of escapmg from this dilemma was found in the conception of soczabtas whIch had been propounded by Grotius. The advocates of the pnnciple of' sociabIlity' held that the Law of Nature commanded sociable behaviour, and they therefore believed that the state of nature, If it were not yet a state of society, was at any rate a state of sociabihty(16). They represented thIS state as a state of common intercourse, but intercourse so formless, and so insecure, that the conception of a socutas was entirely inapplicable to it(17) Yet it contained already, from the very first, the germ of society ; and the antithesis between the natural and the civil condition thus lost its edge. The transition to civil society no longer appeared as a break-away from Natural Law, but rather as a further development and strengthening of its principles. Two consequences ensued. In the first place it became possible to hold the theory that all positive law either was, or at any rate should be, informed by Natural Law (18). In the second place,
This followed upon the idea that cIvil society, and therefore the posItive law belOngIng to It, were developments and corroborations of an orIginal sociability and the OrigInal natural law belongmg thereto.
lor
! basis was provided for a school of legal thinkers (such as we find more particularly in Germany), who, starting from the idea that the creation of society was a stage in the evolution of Natural Law itself, proceeded to add to 'pure Natural Law' -which they interpreted as strictly as ever in an individualistic sense-a separate and subsequent body of 'social natural law'*(Ig). It is obvious that all such attempts to find a half-way house involved no real surrender of the idea that individual isolation was prior to social cohesion. But the strict individuahstic school would not accept even the appearance of a concession to the idea of community which was involved in these attempts. Under the influence of the philosophy of Hobbes, the view continued to be urged that the !>tate of nature did not contain even the germ of community; that the formation of society was a 'break-away', dictated by reason, from the natural order of human relations; in a word, that society began in an act of artificial institution, and as a conscious departure from nature (20). In England, the influence of Locke secured an increasing acceptance for the theory that the original condItion of man was unsocial-an acceptance due to the fact that he used it to support the rights of mdividuals to lIberty of action (2 I). On the Continent, Rousseau's theory spread like wildfire. In that theory the state of nature, as a state in which the liberty and equality of men were stIll unlimited by any socIal fetters, was elevated to the !>plendour of a lost paradise. t community was regarded as a neces~ary evIl; and all social institutIOns were allowed a right of eXIstence only in so far as they were directed to the restoration of the lIberty and equalIty of the state of nature, which the world had suffered so much by losing(22). In Germany also, !o>imilar views wen" WIdely disseminated during the second half of the eighteenth centurY(23) They attained their theoretical zenith in the early teaching of Flchte, who derived the
'" On thIS basIS we get (I) the pure state of nature, WIth Its pure natural law j ~tate of non-pohtlcal SOCIety (whIch develops from the state of nature under the lmpulse of natural law), wlth lts sonal natural law and (3) the state of pohtIcal SOCIety, WIth ItS system of posltlve law t Glerkt"s account of Rousseau has to be mo<hfit'd, partly by a dIstinction between the theory of Ius DlScours of 1753 and that of hIS Con/rat SociaL of 1762, partly (and consequently) by a recogmtlon of the supenonty whIch, In the latter, he asslgrn to the clvll State In companson With the state of nature. See Bosanquet, PhIlosophIcal Theory of the State, and Vaughan, The PolttlCal Writmgs if Rousseau.
(2) the
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whole system of law from the conception of the Ego and itll absolute liberty(24). In Fichte's view the 'relation of Right' (Rechtsverhiiltniss} arises among human beings when the Ego, in the process of becoming self-conscious, has passed beyond the stage in which it places itself in the world of sense as the sole original cause and demands for itself unfettered activity and an absolute power of coercing others. It now proceeds, in the light of its own self-consciousness, to take for granted the existence of other reasonable beings outside itself; it ascribes freedom to them as well as to itself; and it finds that it must, as the price of remaining self-consistent, and in order not to contradict either its own liberty or the liberty of others (which it has deduced from its own), proceed to limit Its liberty by the idea of the liberty of all other persons (25). On this basis' original Right' (Urrecht) is co-extensive with the sovereignty of the Ego (26); and natural 'Law' (Gesetz) is not obligatory, but only permissive, in the sense that it offers advice in regard to the action which the Ego should properly take if it would correspond to its own notion (27). It depends on the free decision of indIviduals whether they will follow this' problematical' (i.e. conditional) rule' whether they will found a 'community', by declaring self-imposed limits and agreeing to their observance; whether, finally, for the purpose of guaranteeing these limits, they will institute a coercive law which operates mechanically(28). But Just because he thus starts from the omnipotence of the Individual, Fichte is unable to regard Natural Law as law in the proper sense. It is only the power of the State, he argues, which gives reality to the rule of law Conversely, he adds, it is only the law of Reason which the State can confirm as real law. 'The State becomes man's state of nature; and its laws should be no other than the realised law of nature' (29). Kant is equally unable to transcend the lImits ofan individualistic point of view. [There are, it is true, some higher elements m his thought.] He bases law, along with moralIty, on the' categorical imperative', which is an a prwri datum involved in the law of thought (go): he believes in an a prwrl existence of the idea of the civil or social state, which is as early as the state of nature itself (gl): he assumes an enforceable legal obligation to enter into membership of a legal community (g2). But [his fundamental basis is individualism:] he makes the autonomous individual prior-in idea, if not in time--to any form of community (33) ; and he regards contract as the only legal method of producing a legal nexus
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~etween human beings (34). If, like Fichte, he attributes no more than a provisional validity to the pre~political Law of Nature, he also, Itke Fichte, holds that the State, as an organisation intended for the purpose of giving a peremptory form to law, is bound to accept and confirm the substance of a pre~existent law of Reason; and he believes that the norm or standard of this law of Reason must still continue to be the inherent and inalienable claim of the rational individual being-regarded as an end in himself-to enjoy liberty, equality, and independence(35). This belief that the primitive system of legal relations need not be associated with the existence of any community was also reflected in the development of theories regarding the origin of property. Thinkers still retained the traditional assumption of an original community of possessions; but while the Middk Ages had belIeved that this communlO przmaeva had issued in a positive system of joint-property, the School of Natural Law interpreted it as being only a commUTlW negatwa, Similar to the present system of common enjoyment of air and sea, and signifying, therefore, not so much community of property as the entire negation of property (36). This idea of a 'negative community' of property in the state of nature was one which could be, and was, increasingly turned to account for the purpose ofjustifying, as consonant with Natural Law, the limits imposed upon private property in the civil state* (37). But unlike positive community of property, from the division of which a system of severalty must necessarily emerge, mere negative community could never be represented as the origin of private property (38). On the contrary it tended to give free scope to the development of theories which derived private pro~ perty (like all other rights) from the primitive right of the Individual. Following this line of thought, Locke argued (and his argument was a landmark in the history of thought) that property already existed, in the pre-social state, as the result of individual labour or occupation; and he was thus able to reckon it, along with liberty, as one of the natural-law rights which civil society found already existing when it appeared on the scene, and which it could not touch or modify (39). From the days of Locke onwards the theory of the pre~social origin of property found an increasingly
E g. to take an example which Gierke CItes from Pufendorfm hIS note, the right of the State to unclaimed property, and Its domInium emtnens over all property, might be regarded as denved from, and as relIcs of, the ongmal 'negative community'.
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large measure of support(40). On the one hand, it received tM homage of Rousseau himself (4 I) ; on the other, Justus Moser made it the basis of his conservative theory of history and society(42). With some reservations, it was adopted also by Kant(43). But an older theory, which supposed property to have been created for the first time by the emergence of political authority, still survived. Not only was it still upheld by the opponents of natural-law individualism(44): it was even advocated by some of the exponents of that system of thought, who attempted to give it a new basis by arguing that the real source of private property was a 'contract of property', which they held to be included in the general' contract of society' (45). Fichte in particular, arguing upon this basis, arrived at a system of economics which may almost be called socialistic * (46) . Though the priority of the IndIvidual to the Community was thus emphasised with an ever increasing intensity, there were never wanting representatives of an opposite view, which started from the assumption ofprzmztwe community. This view, however, generally took the form of a theological reaction against the secular theory of Natural Law; and all the attempts of theologians to derive Clvil society from the original commUnIon of man WIth God, or from a primitive community of men which had been establishcd by God, were inevitably driven from the field by the victorious advance of individualistic theory(47). This was the more ineVItable because the advocates of such views could not even preserve their own loyalty to their principles. As they developed their theory of society, they deserted their own side, and went over to the view that the community was derived from the inchvidual (48) Leibniz himself, although he started in prinCIple from the Idea of the Whole, failed to escape from this temptation (49) The first attempts at an historical conception of social evolutIOn led to vigorous attacks on many of the fictions of the Natural-Law School; but in their immediate results such attempts were even less effective [than the arguments of the theologians J in destroying the foundatIOns of individualism. Montesquieu never transcends the idea of society as the product of intelligent individuals(so). Justus Moser attacks the revolutionary demands of the law of Reason; but in his own theory he derives civil society from a contractual union between independent landed properties, and from the subsequent contracts
* On Fichte's economics see W. Wallace, Lectures and Essays (Part II, no. VIII), the relations of Fichte and Hegel to Socialism'.
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fnade with fresh individual entrants(SJ). Vieo and Ferguson, too, never really break with the idea of a non~social primitive conditiod(s2). Herder was the first to declare that the 'state of society' was man's 'state of nature'; but even Herder limits this natural society to 'Family organisations'. Nature has ended her work with them; and when it is necessary to go still further, reason and need now lead men on, and freedom takes its beginning (53). It was a matter of no little importance that the idea of the simultaneous origin of the community and the individual was never entirely extinguished. But, at any rate for the time being, the broad and sweeping current of individualistic ideas was not stemmed in its course by that survival
II 1. The natural-law Vlew
of the source of Group~authorzry
From the premiss that the mdividual was pnor to the community the prevalent theory of thIS period immediately proceeded to draw the conclusion that the community derived Its origin from the mdividual. If that premis~ were really held-if, in other words, the state of nature was really conceived to be a non-social stateit was impossible to avoid this concluslOn, unless the idea of supernatural co-operatIOn were introduced mto the process of social evolution. Attempts were constantly made to use the idea of divme intervention in order to refute the theory that social authority was derived from llldividual sovereignty. Among the adherents of the doctrine of th(" original sovereignty of the People, for example, we find something of a tendency to develop the view -which had been originated by Suarez and Molina-that while the eXIstence of CIvIl society may be allowed to be the work of individuals, the power of the a'lsociated community over its members proceeds from God(s4). From another point of view [which may be traced in Bossuct and Fenelon] the community itself, as a simple fact of social union, is held to possess no sovereignty, and sovereignty is represented as arising only when a divine commission is directly given to the Ruler-so that the final constitutIOn of political society [as including both a community and a sovereign] is based on an act of divine institution (55) Horn developed these theocratic ideas still further, and with a more rigorous logic. Basing himself on the premiss that individuals alone existed in human life, he entirely denied the possibility of producing a social Whole by any human means; and he therefore derived social authority from
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an act ofdivine intervention, by which one individual was elevated above the rest, and equipped with sovereign omnipotence(s6). If, on the other hand, the existence of an original community was made the basis of argument, it is easy to see how political authority, like all other fonns of Group-authority, could be conceived as the continuation of a naturally given social authority [inherent in the original and naturally given community], which limited the individual from the very first, and could only be reformed or transformed [but never eliminated] by the claims of human liberty. Some sort of advocacy of this view, more or less clearly expressed, was never entirely absent(S7). But the dominant tendency of the age was neither favourable to theocratic ideas, nor ripe for historical explanations in terms of organic continuity. More and more Widespread, therefore, was the triumph of the idea, inseparable in its nature from the theory of a social contract, that a previous sovereignty of the individual was the ultimate and only source of Group-authority. This was a point on which natural-law doctrines of the most divergent kinds were all unanimously agreed. For all of them alike, political authority was the product of a fusion of so many original individual authorities, whether the fusion was regarded as total, or as limited to certain points. For all of them, therefore, the community was only an aggregate--a mere union, whether close or loosc--of the wills and the powers of individual persons. This was the basis on which Hobbes and Spinoza erected their thoroughgoing theories of absolutism (58): it was also the basis on which Althusius and the Monarchomachi, like Locke and Sidney afterwards, erected their theories of popular sovereignty (59) : it was equally the basis of the theories which attempted to steer a course more or less midway between absolutism and popular sovereignty-the theories we find in Grotius, Huber and Pufendorf, and their disciples, and among all the most influential of the German systematisers of Natural Law (60). Rousseau argued, with all the force of his fiery eloquence, for the derivation of political authority from the individual (61). He tried hard to refute, by the aid of new reasons, an old argument often alleged against this theory-the argument that the right of life and death enjoyed by the State could not possibly have arisen from a devolution of individual rights, because the individual himself enjoyed no right of self-murder (62) ; while Beccaria, taking an opposite line, was bold enough to use that argument in support of the first attack delivered on the principle of capital punish-
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:!bent. (63). Towards the end of the eighteenth century it had almost become an undisputed axiom that the origin of all social authority was to be found in the contributions of power and of will . which had been made for that purpose by free and equal individuals(64). It is significant that two thinkers of such different tendencies as Moser and Sieyes could agree in identifYing the original creation of society with the constitution of a business partnershipt (65). Fichte, too, untIl the days of his conversion [to a beliefin the Group and in Group-authority] was a rigorous upholder of the individualistic basis (66); and Kant also never escaped from the idea that the whole of the right of civil society over its members was only the sum of the rights transferred to it by individuals(67).
IV. Natural Law and the zdea of contract as explaznmg the orzgm of Groups
If this were the case, it followed automatically that the only legal method of bringing a community into existence was the free act of individual wills. How could there be any valid machinery, except that of frcc agreement, by which the inherent sovereignty of the individual could be abolished, or even transferred? It was this process of thought which turned the hypothesis ofan original social contract into an accepted dogma of Natural Law The theory of Contract assumed various forms; but there was a general agreement among its advocates that the basis of civil society was a legal transaction, by which previously free and equal individuals had alienated their right of self-sovereignty in favour of a group which they had themselves created. The prevalent theory in the School of Natural Law continued to represent the transition from the state of nature to the social state in two stages. In the first, a contract of union had substituted social cohesion for individual isolation. In the second, a contract of subjection had abolished the previous equality of all, and constituted a Ruler(68) No great change was made in this theory when Pufendorf intercalated the
Mohna deals with the pomt raised by Beccaria, and prOVIdes an answer; see note 60 to 14. t Contrast the famous passage in Burke's Reflectlons-'the State ought not to be considered nothmg better than a partnership agreement, m a trade of pepper and cahco, coffee or tobacco, or some other such low concern, to be taken up for a httle temporary mterest, and to be dISsolved by the fancy of the partIes'.
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act of making a constitution between the two contracts(6g), dr when other writers, again, proceeded to transform this act into a formal constitutional contract (70). The extremer forms tof the theory, which assumed a single original contract, and made the State spring, directly and ready-made, from one act of agreement between all its members, had only the effect of attaching still greater importance to the immediate action of individual will. On the one hand, Hobbes and Spinoza, assuming a single contract of subjection, ascribe its conclusion to the deliberate act of all individuals(71); on the other, Rousseau, proclaiming the theory of a single contract of soczery, makes it entirely unnecessary for the community, which has already achieved its unity in and by that contract, to undertake any further action for the completion of the civil State(72). Important differences between the various theories of contract were created by different conceptions of the motwe-jorces which were supposed to have determined men to surrender their natural freedom. [But these motive-forces were never regarded as primary factors.] So long as the root-idea of contract was maintained, any force (however powerful it might be, and whether it were regarded as internal or external), which Impelled men to create a society, could only appear a'l one of the remoter cam.es of the civil state, and the legal basis of that state was ~tlll made to reSIde exclusively in a deliberate agreement of wills. Thmkers who beliewd in an internal force might recognise a social mstinct as innate in man, and seek to ascribe the final cause of the State to God or Nature; but they still made its legal existcnce depend upon free consent (73). Those who belIeved in an external force mIght regard man as naturally an anti-social being, who could only be compelled to enter a community by the pressure of external necessity; but they held, none the less, that the commumty only acquired a power of obliging its members when there had been a decision ofmdivIdual wills to that effect, and they sought accordingly to represent the making of the contract as an act which, in spite of the compulsion of circumstances, was itselfjuristically free (74). The same was true of the views which attempted to reconcile these two alternatIves (75) It was also true even of Kant He believed, indeed, in the existence of a duty to enter a legal community, arising from the rational
* Tills Involved three contracts-the contract of society (Gesellschaftsvertrag), the constitutlOnal contract (Verfassungsvertrag), and the contract of government made thereunder WIth the Ruler (Hemcluiftsvertrag).
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imperative, 'that the state of nature should be transformed into the civil state': he even allowed the use of compulsion by each against each with a view to enforcing this duty; but he held, all the same, that the formal consent of all individuals was the indispenssable juristic method by which the foundation of civil society must necessarily be set in motion(76). The general tendency of thinkers was towards unqualified voluntarism. Regarding the institution of the social state as a free act of human will, they dIstinguished it more and more from the motive-forces which lay behind it(n), and they imported into it, more and more, the element of conscious calculation (7 8). If we turn to consider the ejJicary of the original contracts we find, once more, an absence of general agreement. In two directions we find the efficacy of contract deprecIated Those who regarded contract as explaimng the existence of the State, but as incapable of explaining its authority, refm.ed to admit that the force of indIviduals wa~ adequate by It~elfto produce a completely equipped communitY(79). Those who contmued to attach importance to the Idea that a community was an onginal [and naturally given] fact sought to wll1ttle down the ueatIve force of an act of contract until it became a mere power of modifying the original and natural community] (80). But such moderate VIews were increasmgly forced to give way to the more rigorous doctrine which made the origmal generation of the commumty depend wholly and entirdy upon contract(81). The majority of the natural-law theorists regarded the original contracts which they postulated as hzstoTlcal facts, of which, by the mere play of accident, no historical eVIdence had been preserved. The most they were willing to allow was that sometimes primitive man, instead of making a definite contract, might have made tacit agreements of umon(82). They also admItted the possibility of societies which had been, in the first instance, founded and held together by force; but they held that such societIes only attained stability through the subsequent assent of their members, either taCIt or express (83). But side by SIde with these views another began to make itself felt, which Kant was the first to express in clear terms. According to this view, the pohtical contract had not the historical reality of \fact' . it had only the practical reality of 'an idea of reason'. '" It was an a pnoTZ Idea in the lIght of which
In other words, Kant holds that contract IS not the chronologIcal antecedent, but the logical presupposItion, of the State. The thInker who WIshes to
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alone the State could be understood, and by which alone C its leg~l justification could be conceived' (84). The distinction drawn by Kant disentangled the problem of the historical origin of the State from the natural-law fiction [ofits origin in a contract]; but it only did so at the cost of entangling the problem of the philosophical explanation ofthe State's legal basis (and entangling it more deeply than ever) in the meshes of individualistic fictions. When we turn to consider the question of the continuation [i.e. the continuing validity] of the original contracts, we find the progress of individualistic views once more reflected in the development of natural-law theories. The demand for original unanimity [in the first formation of the State] began to be pressed more rigorously. An increasing emphasis was laid on the necessity of explaining all majority-decisions by an original unanimous agreement that they should be valid (85), until finally it came to be doubted whether such decisions had any obligatory quality at aU(86). [The progress of individualistic views, which appears in such insistence on individual unanimity in the first formation of the State, was also reflected in the development of natural-law theory in regard to the subsequent validity of the original contract.] At first, thinkers had been content with the idea that later generations were bound by the contracts of their predecessors; but the fiction of fresh contracts [renewing the original contract in each generation] soon came to be regarded as necessary in order to explain the social obligation of each new age (87). At last a point was reached when the indIvidual was not only assured freedom of entry into the State [by being made a party to a fresh contract when he reached maturity], but also freedom of exit; and each group ofindivlduals was thus given the right of creating a separate autonomous society(88). Here the theory of contract had touched an extreme where, by denying to the will ofyesterday any authority over the will of to-day, it condemned itself to suicide. It was in connection with the State that the theory of contract had been developed. But it came more and more to be applied to all human associations, so far as they could not be regarded as merely creations of the State itself (89); and thus the existence of the Church, like that of local communities and corporate bodies, was ascribed to a special contract of society made for that purunderstand the State must regard It 'as If' It had been formed by contract: the statesman who wishes to guide It properly must regard hill positIon' as U It had been derived from contract.
III
po~e(go). Only in the sphere of Family-life, and only in the shape of the household community, was it possible still to trace a survival ofnadtrally developed and necessarily binding obligation(gl). But even in the sphere ofthe Family itselfthe admission that there could be a society which was independent of the will of its members was finally limited to the relation between parents and children under age. When once the age of majonty had been attained, a contract of partnership was held to be necessary; and the full10gic of the conception was particularly, and increasingly, applied to the institution of marriage (92). Opposztion to the doctrine of contract was never entirely absent; but It was partly based on theocratic assumptions, which had now lost their vitality (93). There was little profit to be gained from Horn's penetrating criticism of the theories of contract (94), when the critic himself, caught in the toils of a crude indIvidualism, at one moment refused to allow any source of a genuine political authonty other than a direct comffilssion of divme 'majesty' to an earthly lieutenant (g'j), and then at the next, when he dealt with republics, was ready to make a mere contract between mdividuals the basis of somethmg whIch in every way resembled a genuine polItIcal authority (96). The doctnne ofcontract was more seriously threatened by the continued existence of the older theory of the natural origin of the State(97). But It was only by slow degrees that a fresh philosophical outlook and a broader historIcal knowledge ""ere apphed to tms theory (g8) ; and meanwhIle the very leaders of the movement whIch wa~ to produce an organic conceptIOn of historical evolution contented themselves with modifications of the theory ofcontract, and never attempted to reject it entirclY(99). In much the same way, the oppOSItion which was offered to the contractual theory by those who attempted a more realistic treatment of the State was in its begmnings no more than tentative(IOo). Humc himself, vIgorously as he argued agamst the idea that actual political obligation depended on a legal baSIS of contract, none the less retamed a belief in the eXIstence of an origmal contract (10 I).
V. The natural-law mew of the purposes of Soczety and zts

varzous Groups
If all forms of common life were the creation of individuals, they could only be regarded as means to zndrvzdual objects; for how could individuals ever have come to such a pass, as to sacrifice their
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natural liberty and equality to an object that lay outside or above themselves ? The view we should thus expect was that which was attually held by the theorists of the Natural-Law School. They agreed in holding an individualistic theory of all social purposes, and, in particular, they always regarded the end of the State (differently as they might define it) as consisting in the attainment of some good which the individual sought to attain for himself, but could not actually attain so long as he lived in isolation (102). They were equally agreed in believing that the end of any community also limited its sphere of authorzty, and, in particular, that the end of the State limited the extent of political authority, for it had to be assumed, on their principles, that in every contract of partnership each individual transferred to the partnership only such rights as the end of the partnership necessanly involved (103). If, in spIte of this large measure of agreement, they dIffered Widely from one another when they came to determine the actual Telatwn between Society and the IndzvzduaI, the difference was due not only, or so much, to any difference of views about the end of SOClcty, as to a divergence of opinion about the amount of the authority which was indispensable to the attainment of that end. So far as any theories were developed, on the basis of the doctrme of contract, which were favourable to the complete absorptwn of the zndwzdual tn soczery, they rested on the assumptIOn that there wa~ no other way for the indivIdual to attain the enjoyment of the end of his life than by an absolute legal surrender of himself. But It was only Hobbes who pushed this paradox, which he had himself invented, to its extreme limits; and even he made some reservations in favour of the individual(104) Spinoza, usmg the same basis as Hobbes, drew very different conclusions, seekmg to build upon it a theory which made the spIritual and moral lIberty of the individual the final end and controllmg limit of the State's authority(IOs). Rousseau starts, like Hobbes and Spinoza, from the idea that the surrender of all individual right!> to the community is the only logically conceivable, and the only legally valId, means of achieving an individualIstic purpose, which consists, on his view, in restoring the lost liberty and equality of all (106); but though he starts from the idea of surrender he succeeds in ending his argument, by dint of a series of sophisms, in a conclusion which seems to guarantee the indestructible rights ofman(lo7). But the prevalent doctrine of Natural Law assumed, as a matter
16. General theory of the Group in .Natural Law
13
ot cburse, that the individual surrendered onlY a part of his original rights into the common stock of society; and the advocates of that doctride increasingly made it their chief endeavour to provide the individual with a guarantee against the abuse, or even the extension, of the social authority which he had called into being. More and more emphasis was laid on the fact that the purpose of all social institutions was limited to the development of individual persons. Even the thinkers who still maintained that the purpose of the State had a general or public character proceeded without hesitation, after elevatmg the idea of salus publtca to the position of the supreme standard of political life, to identify it with the mere fact of the prospenty or hdppine~s of individuals (loB). But the victory lay more and more with a trend of thought which definitely refused to acknowledge that SOCiety had other than limited purposes, or that the State itself had any but particular and strictly defined objects. With the purpose of the State thus confined to the provision of external and mternal security, or to the realisatIOn of a scheme of legal order (109), the sovereign commonwealth was reduced, in the last analysis, to the level of an insurance society for securing the liberty and the property of individuals (I 10). At the same time, and in close connectlon With this trend of thought, the theory of the Rights of Man grew mto a great and spreadmg tree. The sUppOSition that mdl'viduals, on thelT entry into civIl society, were only Willing to surrender the smallest possible part of their freedom, was now associated with the doctrine that certam orthe original rights of the indiVidual were inalienable and intransferable, and could not, therefore, be effectively wrrendered, even by an express act of contract (II I). In this way a distlnction came to be drawn between mherent and acquired rights Acquired rights, it was argued, were subject to the system of positive law, whiLh depended for its existence on the State; but inherent rights were based on the pre-social Law of Nature, and since that law was still valid to protect them, they were immune from any invasion by legiSlative action (II 2). The theory of nghts of man which were thus inviolable by the State itself was used by Thomasius and hiS successors in the struggle for freedom ofconscience (113). It was deVeloped by Locke and the political economists in the interest of economic libertY(114). It was expounded by Wolff in the academic form of a doctrinaire theory (I IS), and erected by later thinkers into a definite and rigid system (I 16). Finally it became,
BTU
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after the French Revolution, the essential core of the whole of the doctrine of Natural Law(1I7). In the heart of social life itself the individual had now a sphere reserved for him which was itself immune from society; and this Sovereignty of the Individual was obviously more original, and more sacrosanct, than any possible Sovereignty of Society, which could only be derived from him, and could only serve hzm as a means. But it must be admitted that individualism was always liable to transform itself into social absolutism,just as social absolutism was equally lIable to transform itself mto individualism (I 18). These imagined contracts could be made to include whatever was nceded to suit the practical tcndencies of the age. An individualistIc basi~ of thought did not prove itself then, any more than it does now, an effective barrier against socialistic or communistic aspiratIOns(119) Only occasionally does there ever appear, during the penod of which we are treating, any inkling of what we may call the mgher view. This is a \'IeW whIch make~ both Sonet)' and the Individual contain in themselves their own end and obJcct, so that neither can ever smk into bemg a mere means to the other, though either i., meant for the other. It is a VIew which regards the juridical orgamsation of a commuruty as ceasing to be true to Its own' Idea', unless it assigns equally onginal, and equally sacrosan( t, spheres to the commonwealth as a whole and each mdI\Idual member, and attunes theIr several sphere~ m concord and harmony(12o)
VI. The natural-law Vlew oJ the Bezng oJ Groups

We may now turn, in conclUSIOn, to enquire mto the natural-law conceptIOn of the Being, or e~sential nature, of Group~; and here we can really see how a logical indiVIdualIsm is ineVItably impelled to annihIlate any idea of the independent existence of the group. If civil society in general was merely the result of a contractual act, whereby indiVIdual rights were pooled in order that individual objects might henceforth be !>ocially pursued, such society must, in the last analysis, resolve itselfmto an aggregate of mere legal connections between individuals. No group could bc anything more, upon this basis, than a simple nexus. This legal nexus might be depicted as loose or intimate, simple or complicated, temporary or permanent; but however it might be depicted, it was constituted by the same elements of thought which were to
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II5
be ~und in the societas or partnership based upon individual rights. In this respect there was no difference to be traced between the variou! groups in the successive stages of group-life, culminating in the State. The State itself simply formed, as the societas perfecttssima, the highest stage of a unifonn ascending series. None the less, the theory of Natural Law did not entirely abandon the traditional conception of Group-personality. [It could not afford to do so.] There was too urgent a practical need for some embodIment of the social Whole as a single umty, constant through all the changes of its individual members, and capable of holdmg a legal position of its own. The consequence was that the point of view we have ju~t described [which treats a group as merely a legal nexus between indlViduals] was only adopted to be dropped agam instantly; and the 'legal nexus' w~ always being transformed into a 'legal Subject' of rights. We have already seen that Hobbes had indicated the way oy which this ascent from indivIdualism to the idea of the personality of a community could apparently be made. His theory wa~ the point of departure from whIch the further development of the natural-law theory of the Group-person mainly proceeded. There was only one writer who remained true to indiVIdualism to the very end, and was audacIOUS enough to deny altogether the fact of Group-personality. This was Johann Friednch Horn Only the Individual, he argues, ha,> any real eXistence. No union of men is anything more than a multztudo szngulorum. Even a society whiLh I~ united enough to form a State is not, in realIty, a Whole. It does not constitute, m any way, a totum' it is only a sum of persons, which, as such, 'nullam serzem Rerum intrat, et zdeo a.Jfectwms Entzs non sustmet' (II, c. I, qI8). Suppose you take a multitude of this sort, suppose you call it by the name of' clVztas', and then describe it, under that name, as the' matena' of a 'corpus' which IS composed of 'membra et partes'; suppose you then mtroduce the term 're.lpubltca', and use that term to denote the 'forma' which permeates, inspires, and vitalIses this body. All you have done is only a matter of plCtonal expression, Whldl you have used 'per analogzam et stmzlttudmem'; and strictly speaking the language you ought to have employed is that of . quasz-matena', 'quast-corpus', 'quasz-pars' and' quast-forma' (I, c. I, I ; II, c. I, I). It is inconceivable, therefore, that a community, as such, should ever be the 'Subject' of rights over individuals. Least of all can political authority belong to the popular community, either originally or
8-2
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subsequently; either in substance, or in exercise; either in wltole, or in part(llll). Only in a monarchy can a single 'Subject' of political authority ever be found; and there one man, as tlte lieutenant of God, becomes the bearer of a transcendental 'majesty' which extends over all individuals (II, c. I, 4 sqq.). In a republic a 'Subject' of majesty is absolutely indiscoverable. Any universitas which it is possible for thought to conceive is nothing but a plurality of szngult; and a plurality of 'Subjects' contradicts the conception ofmdivisible majesty(122). A republic is therefore only a simulacrum of political unity, produced by an imitation of monarchy; and what exists there in reality is only a nexus of mutuae oblzgatzones szngulorum, founded on a commune pactum(123). This utter demal of the existence of group-unity did not meet with the approval which it enjoys to-daY(124). It is true that a number of pohtical thinkers, who limIted themselves to describing the relations between Ruler and Ruled, omitted the idea of StatepersonalIty from theIr theory of the State land, so far as that goes, such writers may be saId to agree with Horn]. But their attitude was simply negatIve; and they werc far from intending to make any attack in principle on the idea of a common or group' Subject' of rights. When real attcmpts were made to expound a genuine legal philosophy of the nature of SOCIal groups, there was a general agreement in assuming the existence of a social Whole which stood above indiVIduals; and differences only began to appear when it came to the actual interpretation of the unity ascribed to this Whole. These differences mainly depended on the extent to whIch thinkers adopted a Representative or a Collective view of the unity of the Group-person. Both views were compatible WIth the general framework of the individuali~tic system; but while those who held the Representative view only sought to fit the idea of a Ruling authority into the scheme of nghts of mdlviduals, thosc who held the Collective view attempted to bnng the idea of Fellowship itself under that scheme. In the thorough-going systems of absolutism the procedure of Hobbes was followed, and the principle of Representation was adopted. The essence of Group-personality was made to reside in the fact that, by virtue of a cession of the powers and wills of all, the Ruler represented each and all of his subjects as a persona repraesentatwa(I2S). But even in this connection the principle of Collectivity had to be introduced as a second line of defence. It is true that this principle, even when it was allowed to appear, was
II7
~ever held to possess a creative or constituent character: and in regard to monarchically organised societies, it was never allowed to app'hr at all. But it was applied, as a sort of supplement to the principle ofRepresentatio~,i~ ord~r to meet the case of republics, and also of corporate bodIes m which an assembly was appointed to act as persona repraesentatwa. Proceeding on the traditional distinction between plures ut unwersz and plures ut szngulz, and adding to it the doctrine of the legal equivalence of universi and major pars, the thinkers of the absolutist school adopted, in order to meet such cases, the idea of the umty of a Collective person, and they made that person the 'bearer' of an ownership of rights. It is obvious that this idea of collective personality waf> bound to playa greater part in the theory of Spinoza, who regarded democracy as the normal form of the State(I26), than it could m that of the orthodox champions of monarchical absolutlsm(127). In opposition to the principle of Representation adopted by the absolutists, we find the majority of the natural-law theoristsunder the influence of a conceptIOn of Groups which was fundamentally a 'Fellowship' conception, such as naturally flowed from the dominant form of the theory of SOCIal contract-maintaining the VIew that all Group-'persom were Collective unities, produced by the actlOn of indIviduals in associating themselves together to form a community. But they too found themselves more and more forced to introduce the Idea of Representation, as a constituent factor which was needed to explain the development of GroupUlllty into a full and complete personality. Huber, for example, starts from the view that the act of associatlOn, with the added aId of the majority prinCIple, IS capable of producing a Groupperson (128); but he proceeds to make the full completion of the unity of this Group-whole depend on a further act '''''hieh devoh-es representative authority upon a Ruler(I29). Arguing upon this ba~is, he ascribes the difference between the full and complete personality of the State, and the less complete personality of the universztas, to the fact that the representation [of the community]
... I.e. the prmciple of CollectiVity (the Idea that the Many can collectlVely form a Unity) was never, 10 any case, regarded by the absolutiSts as producing sovereignty They would not allow that a collective Whole possesses, by the fae t of Its eXistence, an mherent sovereignty over Its members. They held that, ifsoverelgnty was to eXISt, there mwt always be a Representative of the Whole, and they beheved that the presence of thl~ Representative could alone produce sovereignty. But they adnutted that this Representative might Itself be collective -as 10 a republIc, or, agam, 10 a corporate body governed by an assembly.
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by the political authority is not subject to the limitations which hold good, both in respect of contracts and ofdelicts,forrepresentation [of other groups] by other forms of group-authority (I o).
The views of Pufendorf: the persona moralis Pufendorf tried to unite the two ideas of Collective and Representative unity, and he did so by seeking to bring every socutasbe it State, Church, local community, corporation or familyunder the general conception of persona 11l0rahs compostta. Disagreeing with Hobbes [who held that no community could even exist without Representation], he held that this conception ofthe 'composite moral person' had a constituent or creative character, in the sense that it explained how individuals could unite to form a community possessing the capacity for a common rule of law and a common Will(I3I). Here was a Fellowship basis; but a real person had still to be brought into being upon that basis. * To this end (and here he approximated, after all, pretty closely to Hobbes) Pufendorf went on to postulate the subjectIOn of the powers and wills of all to the power and will of a single man or body of men, to the end that the sum of associated indIviduals should be represented by a 'person' who could act as a single unit (132) He believed that he could, in this way, interpret the fact of Grouppersonality in terms which made it belong to the same general category as the fact of individual personality. But the method by which he arrived at this general category [including alIke both Group-personality and individual personality] depended upon a preliminary distinction He distinguished the conception of legal personality, to whIch he gave the name of persona moralzs, from the conception of natural personality. He held that the legal world was a world not of physical, but of mental factors-or rather, in view of the fact that it was the moral aspect of these mental factors which was really in question, it was a world of moral factors, or entw moralza(I33). He regarded these entia moraba as being, in themselves,
In Pufendorf's view, a commumty can exIst on the basis of the conception of a composite moral person. Thi.~ means that It eXIsts on a Fellowship basIS, Without any need for the Idea of a R("presentatlve ruling authOrity to constItute or create It. In other words, it is brought lOto bemg by the mere conceptIon of the compo'lite moral person, which has thus 'a constituent or creative character'. But in order that this person may become 'real', Pufcndorfgoes on to introduce the idea ofa Representative rulIng authonty, 10 the person of which the community attains 'real' personality. He has not, after all, attamed the Idea that the composite moral person is 'real' in and by Itself.
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'oIl'ly attributes (modi) which were ascribed by rational beings to physical objects and movements, in order that they might operate with oa directing and moderating influence on the freedom of human will, and so regulate human life harmoniously (I 34).* Now these entia moralia stood to one another in the relation of superior and inferior. That relation could best be depicted by our minds, always prone to think in material terms, 'ad normam enttum physicorum'. Accordingly, although all 'moral beings' were, properly speaking, only modi, we applied the category of substantia as well as that of modus in trying to think ahout them We regarded some of them as bemg substantzae, which supported (or 'subsisted' under) others, in the sense of being their basis; and we regarded these others as being modt, which 'inhered' in those substantwe (I 3':J) In this way there emerged, as 'entw moralla ad analogzam substantzarum conccptae', the personae morales attributed to human being~ under a system of legal order(136). Since the attribute of being a 'Subject' of right~ is ascribed to human beings not only as indIviduals, but also as group~, these pnsonae morales may be either szmplzces or composztae (137). The pnsona moralzs szmplex is the individual-not the indivIdual in hI~ totality, as revealed to the senses, but the indIvidual sub modo, that is to say in so far as a definite status moralzs is attrihuted to him(138) ThIS is the reason why one indIvidual can represent several persons(139). A persona moralzs composzla [as diStIllct from a Simple moral person] is present when a single will, and with it a definite sphere of rights, is ascribed to a multitude of indiVIduals duly and properly umted (140). It follows that individual persons and Group-persons have both the same sort of eXIstence [l.e. a moral existence]; but both of them are distIllet from personae fictae, those' szmulacra et umbrae personarum moralium' (for they arc nothing more) which only eKlst in semblance or jebt, without havmg any legal effect attached to them (I4I).t
... If you take a physical object (e g. a natural person, regarded as a physical body), or a set of physical ob1ccts (e I!; the natural persons who move to~ether in a group), and then proceed to asCrIbe to that object or set of ob1e,ts the attrIbute of personahty, this attrIbute WIll operate on your free WIll, because you wIll r("spect the object or sct of objects as havmg the attnbute of personalIty; and It WIll also mtroduce mto human hfe the harmony whIch comes from such respect being paId t The argum("nt IS that the attribute ofbemg a pcrson can only really mhere in an appropnate substance: e.g CalIgula could gIVe the 'person' of a senator to a fool, but not to a horse; and the 'person' of a senator, as given to a horse, ISftta, and only eXISts in semblance or jest.
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It cannot be denied that Pufendorf, in enunciating these c'bn~ elusions, is entering into a new world of thought. And yet the individualistic basis of his thought prevents him from achieving anything more than a purely formal assimilation of the groupperson to the individual. As long as it was merely a question of employing a formal concept, Pufendorf could drive firmly home the principle that the corporate person must be conceived as a 'Subject' of rights, which willed and acted with the same unitary quality as a single person (142). But as soon as the real substratum or basis of these attribu tes [ofwilling and acting] had to be defined, difficulties began to appear. Behind the persona moralzs slmplex there stood, after all, the living natural person of the individual, drawing to himself, as persona physzca, the attribute of personality(143); but the persona moralzs composlta had to find its basis, not in a real Whole, or a living community, but in the artificial outcome of contracts by which individuals had bound thl."mselves to one another (144). Even the valIdity of majority-decisions was made by Pufendorf to depend merely on an agreement made to that effect(14S). A unity thus interpreted in terms of the rights of individuals was m the last analysis only a deceptive sham: eloser examinatIOn reduced it to fragments, and resolved it into a mere sum of legal relations between mdlviduals. But if Group-unity was thus reduced to a sum of legal relations, it became inevitable that the two different kinds of legal relations on which it depended-the relation of the Representative person to the body represented, and the Collective relation involved in the obligation of partnership--should each of them seek to vindicate its own separate and independent sigmficance. This was exactly what happened in Pufendorf's theory. Springing as they did from different contractual origins [the one from the contract of subjection, and the other from that of socIety], the two relations were also made to issue in different results (I) Where Grouppersonality was due to the representation of all by a single person, it became engulfed in the personality of this representative; and the persona composzta thus dwindled into a persona szmplex whenever a single man was constituted as Ruler(146). (2) Where an assembly had to represent the Group, that assembly-in and by itself, and without any regard to its representative function-was made to appear as a persona composzta; and here the term signified nothing more than the union ofthe many members of the assembly, associated together on a basis of partnership, to act as a single
12 I
tlody(147) ....Such contradiction was fatal in its very nature to any successful combination of the ideas of Collective and Representat",e unity in a new and consistent system of thought. Here we touch the secret of the peculiar fate which befell the original genius of Pufendorf. His theory of entia moralia ceased to be used by his disciples as the foundation of a general philosophy of Law, and it was only applied as a way of explaining a number of legal phenomena which obstinately refused to be brought into line with the facts of the material world ( 48). The result was that the conception of the persona moralzs gradually lost the general significance which had been given It by Pufendorf. Thomasius and Titius still followed the master's line of thought (149); but Hert, Gundling and Schmier entirely dropped any reference to the immaterial nature of personality. Applying the term persona moralts only to Group-personality, they substItuted for Pufendorf's distmction of the persona moralzs SImplex and the persona moralis composlta a new distinctlOn between the persona physlca and the penona moralzs, composlta, seu mystica(15o). In later writers we find the cxpression persona composlta almost vanishing altogether(151); and the term persona moralzs is made the regular technical term employed in treatises on Natural Law to designate the Groupperson (152) ThIS usage was not affected by the fact that many of the exponents of Natural Law, such as Wolff and Daries, gave a new and vigorous expression to the distinction which Pufendorf had drawn bctween the legal and the phySIcal personahty of the IndIVIdual (153). In the end the origm of the adjective . moral' passed entirely mto oblivion, and its real sense was forgotten. With It there also dIsappeared thme tendencies towards the transcending of mere indiVIdualism, which were obVIously implicit in the conception of a 'composite' person. The more the physical person gained in realIty, the more the moral person was bound to lose. It now stood by the SIde of the living individual as an abstract mental scheme, whieh had the one merit of enablIng thmkers, when they were dealIng with certain species of legal connections between indiVIduals, to provide a ~ingle centre on which such connections could converge. Here the two constructive elements of individuahstic sOClal theory [the Representative and the Collective] proceeded again to diverge widely from one another, as we have already seen them dIverging in the theory of Pufendorf. Among his immediate disciples, we find the possiblhty ofa purely Collective form of Group-unity again receivmg particular emphasis, though
122
Gierke's Text
they also continued to maintain, from the other [or RepresefJ.tative] point of view, that full and complete unity was only made possible by the addition of a representative authoritY(154)JlThere was one thinker, Hert, who succeeded in developing upon this basis an extreme and peculiar theory. On the one hand, he extended the conception of the moral person usque ad znfinztum. On the other, he refused to recognise any community except the State as a Group-person inherently capable of will and action. [We may take the latter side of his theory first]. He begins by admitting that the contract of union of szngulz cum singulzs is in itself sufficient to produce the result 'ut paczscentes fiant una quasz persona seu unum corpus'. But he hastens to add that it is the contract of subjection which first animates this' rudzs et mdzgesta moles', and produces an 'anzma m corpore' by transferring the powers and wills of all to a summa potestas(15S). It follows on this that any group other than the State can only develop a common life as a part of the State, and in VIrtue of a representative authority derived from the sovereIgnty of the State \I 56) [On the other SIde of his theory] we find Hert laymg it down that the Group IS only one of a number of cases in which the conceptions 'man' and 'person' are not co-extensive. He reduces all these cases under two head~, to each of which he devotes a separate essay-one of them entitled 'de uno homzne plures sustznente perJonas' (157), and the other 'de plurzbus homznzbus personam unam sustznentzbus' (158). Appealing to the original sense of the word 'persona', * Hert argues that all that is really involved, under eIther head, is a peculiar method ofallocatmg the 'roles', or parts, which men have to play on the legal stage. On the one hand, the [natural] personalIty of a single man may be divided among any number of roles [and thus become any number oflegal persons] (159): on the other, a number of men may be united together, if need requires it, m a single personality(160). It is plain from the heterogeneous nature of the legal examples which Hert accumulates to illustrate such union that no genuine community can be made to exist on this basis, but only, at most, a formal unity. True, he distinguishes two categories of unitas personarum [i.e. two different ways in which a number of men may form a single legal person], according as the source of
In Lahn, an actor's mask, and so the role or part played by an actor. On this basIS one man may wear a number of' masks', in the sense that he carnes a number of legal personalities, and per contra a number of men may wear a single mask, in the sense that they carry a single legal personality.
123
suc'h unity is only a legal fiction, or an actual contract. But when we find the second of these categories made to include the cwitas and tile unwersitas equally with marriage, the nexus between correi debendt et credendt* and the position of joint-feoffees, we can clearly see that his aversion from the idea of a 'personaficta't is only based on the absence of any true conception of a Corporation. Gundling went further still in the same direction. On the one hand, he made the personality of the State consist only and exclusively in the Representative personality of the Rulcr(161); on the other, he interpreted the unwersltas as a purely Collective person(162)-rejecting the \'iew that a 'fiction' was necessary III order to explain the existence of such a person, or its capacity for expressing a will(163), and rejecting it all the more emphatically because he pursued a rigorously CollectIve interpretatIOn of Groups to its extremest logical conclusion (J64). In much the same way as Gundling we also find other wnters attempting to distinguish between the Representative personality which the State acquires in the per~on of its sovereIgn Ruler and the simple Collective personality [of other Groups] (16.)) That distinction assumed an acuter form when it came to be connected with another and more general distinction, which had long been drawn in the theory of Natural Law-the dIstinction between the SOCletas aequalzs and the soczetaJ maequalll. This connection appears particularly in the theory ofJ. G. Boehmer According to him, the Being of a soczela,\ aequalzs is limIted entirely to the Collective unity of Its a~~oClate members; but when a soczetas znaequalzs comes into existence, there appears along WIth it-superimposed on the 'Fellowship' basis origll1ally present in such a society no le% than in the 'equal sOClety'-a Representative unity in which Collective unity now disappears (166). This line of theory, or something very like it, attained a general vogue(J67); and it came to be the regular opimon, among those who adopted this view, that the addition ofa Ruling authority produced a fuller and completer umty, and that a higher degree of Group-personality
A body of persons who are joint-debtors or joint-creditors. t Strictly speakmg Hert IS not averse from the Idea of a persona fleta. On the contrary, he applies It to a number of cases of Group-unity (see the beginmng of the last sentence of note 160). But he will not accept It as explaining all cases of Group-unity, prefernng to use the Idea of a collective contract of umon as a general line of explanatIOn.
12 4
Gierke t s Text
was thus attained in the societas inaequalis than was possible in \h~ societas aequalis(I68). At the same time, however, the drawing of this fundamental distinction between unequal and equal s<JCieties tended also to erect an increasingly insurmountable barrier between the State and the Corporation(I6g).
The atomzstic conception of the nature of assoczations zn etghteenth-century Germany

There ensued a progressive disintegration of the natural-law conception of Group~personality.The denotation of the term 'persona moralzs' came more and more to be limited to the Collective form of unity constituted by the soczetas aequalzs. The more real and active form of unity, which showed itself in the soczftas znaequalzs, ceased to be regarded as the result of an mternal development of the personality of the Group-whole; it was treated as being the completion of an imperfect CollectIve person, from WIthout, by a 'Subject' or owner of Rulmg authority who was superimposed upon it. This meant that the moral person dIsappeared from the interpretation of the relation of Ruler and Ruled, and only survived for the interpretation of the relation of Fellowship (qo). This was not all. The increasing rigour with which the conception of purely Collective unity was apphed also meant that the moral person gradually lost any real existence of its own [even in its own field of the Fellowship or 'equal society']' The supposed person dwindled down into a mere shorthand description for any sum of individuals which was in any way possessed of social rights or duties. Thus attenuated, the conceptIOn only retained, m the last analysis, a sort of technical value for purposes of external application; in other words, it was a term of art which made it possible for several persons to be treated as being a single person, in an area of action common to them all, as regarded their external relations to some' third party'. Internally, the conception was useless; for if this unity of the moral person was really nothing but a Collective aggregate or sum, it had to be dissolved again mto a multIplicity of different persons before legal relationships could be conceived as existing in it. In this way we find a general theory of society developed [in eighteenth-century Germany] in which the conception of the moral person is only applied to the external relations of a society, while its internal life is interpreted, with the aid of conceptIOns drawn from private law, in terms of societas and man-
125
dat~m, * and is thus reduced entirely to a matter of mutual obligations between so many individuals. On the logic of these principles the StMe could only act as a Whole, and display the quality of a moral person, in the external area of international law. In the sphere of internal public law, it resolved itself into nothing more than a number of legal relations-the relation between Ruler and subjects; the various relations among the subjects themselves(I71). Only in one connection was the conception of the moral person applied to internal public law. If the State as a Whole was not a moral person, parts or elements of It were allowed that quality. When the Ruling authority in the State, or some form of subordinate political authority, was ascribed to a body of persons acting In conjunction, or when, agam, the body of the People, as a separate entity, was argued to have rIghts against the Ruler, such bodIes were treated as moral persons. The same general philosophy was equally apphed to all forms of Groups other than the State; and theonsts were thus content to stop short at a conception of somtas which made It a moral person externally, and internally only a nexus of reciprocal rights and duties. All this meant the disappearance of any dear line of logical division between the genuine corporation and the mere 'society' or partnership Internally the law of partnership was made to explain every form of human community, including the State; externally every form of group-relation, lOcludmg the mere relatlOn of JOInt-owners of property, was vested Wlth a moral personality (172), and the view continued to be advocated that such personahty was equally present, III just the same way, whether a number of individuals were united to form a single' person', or, conversely, a number of 'persons' were carved out of one individual (173). It is true that this atomistic ~cheme ofidea~ was not applied by all thinkers without quahficatlOn (174); but it is equally true that it forms the essential baSIS of the great theories of Natural Law which exerCIsed influence in Germany during the course of the eighteenth century. It dominates entIrely the theory of Wolff(17s). It is no less evident in that of Daries (I 76). It is elabor Soctetas and mandatum are both, In Roman law, forms of consensual contract between IndIViduals SOCietas, or partnership, could be used, as we have already seen, to explam the State m the sense of a pohtrcal society. mandatum, or agency, to explam the State m the sense of a Government. To Gierke they are both inadequate' pnvate-Iaw' notions The true State IS more than a partnership of indiVlduals, and cannot be 0 plamed m terms of socIetas: the true Government IS based on somethmg more than a mandatum gIVen by mdlVlduals.
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ated with laborious care, and with no small measure of juriSti~ ability, by Nettelbladt, whose comprehensive theory of societas may well be termed the most mature product of the whole ~f this movement of thought. In Nettelbladt's theory the entire world of human groups is depicted as developing, in an uninterrupted series, from the one conception of soczetas; but that conception itself-in spite of the differentiation of form through which it passes, and the constant enrichment of content which it acquires, in the course of his exposition-never gets beyond the hmits of individuahsm(I77). At every stage the internal life of the Group appears as a sum of individual obligations; at all stages alike-the Family, the Corporation, the local community, the Church, the State-there never emerges any idea that a community has it~ own law of being, even in contexts where it is impossible to avoid contrasting the Individual WIth the Wholc to whICh he belongs (178) Yet Nettelbladt persists in regarding a plurality of persons, when it canfi-onts another 'Subject' of rights in Its collectIve capacity, as constituting a moral person. The moment that the views, the WIlls and the powers of a number of persons are thus directed externally to some identical object, those persons are held to constitute a smgle person in relation to that object, and to become a persona moralzJ; and on that baSIS, 'what IS not one being deemed to be one' (' non unum pro uno habetur'), they arc treated as being equivalent, in the sphere of their common rights and duties, to a persona szngularis (179). Achenwall's theory of society is based on a similar foundation. He does not reject entirely the idea of a Group-whole, of which individuals are the constituent parts (180); but lIke other thinkers of his time he ends by reducing the rights of assoCIations, in their internal hfe, to a mere aggregate of contractual relations, formed between the associates acting as separate umts (181) , and lIke them, again, he will only allow this Collective unity to be conceived as a 'moral person' when it is acting externally, i.e. when it is dealing with non-members (182). Scheidemantel, starting from the same assumptions, comes nearer to the idea of a true Group-being composed of individual units (183). Generally, however, we may say that the end of the eighteenth century witnessed an irresistible movement towards the disintegration of the idea of Grouppersonality in the theory of Natural Law. This is particularly evident in the controversy, which became
16. General theory of the Group in Natural Law 127 i~deasingly vigorous, in regard to the basis and justification of the
majority-principle. Those who held the Individualistic theory of Societ)" were agreed that the common will of a 'moral person' must essentially mean a unity of all the wills of all the associated individuals, and that any identification of majority-will with group-will could therefore only be based on a precedent agreement of all individuals to that effect. The older School of Natural Law had regarded such a precedent agreement as an institutIOn which was demanded by the very nature of Group-personality, and was therefore always to be presumed(184). But a new view began to gam ground, which ran in the opposite direction. According to this view, the principle of unanimity was the rule which issued, and must always contmue to issue, from the nature of society; and deCIsion by a majority-vote was an exception to this rule for which a speCIal justificatIOn was necessarY(ltJ5). The appearance of thIs view marked the disappearance of the last trace of mternal group-umty: the' moral person' was finally degrade-d into a noun of assemblage, and the Gommon wIll into a sum in arithmetic Thus we find A. L Schlozer hardly using at all the Idea of Group-personality, but expounding, with a stiff pragmatism, a point of view which leads to the COnclw,lOn that any collectIve unity is only a sum of indIviduals (186), any common will can only be regarded as a 'sum of all particular wills' (187), and any organisation of wills can only exist on the basis of representatIOn of mdividual WIlls by a 'foreIgn' mdI\- Idual will contractually empowered to that end(J88) In the same way Christian von Schlozer, in hIS treatise Dr Jure sujJragu, resolves the common WIll into an agreement ofmdividual WIlls; and he therefore attacks the view that the majority-principle denves its ongin from the unity of the Group-personality, arguing that the descnption of a SOCIety as a persona moralzs i:- only a metaphor, from which no conclUSIOns ought to be drawn, and contending that the nature of any societas ought to be properly investIgated before It is thus compared with a person(18g). Hoffbauer equally assumes a purely Collective view of the 'moral person' (Igo) He reduces group-will, where' equal societies' are concerned, to a union of all indiVIdual wills(lgl), and where 'unequal SOCIeties' are in question, to a submission of all other wills to the will of the Ruler appointed to represent those WillS(lg2). Wilhelm von Humboldt goes furthest of all: he demands an express enactment of the legislator, 'that any moral person, or society, should be regarded as nothing more than the union of the members at any given time' (193).
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English and French theory in the eighteenth century: Locke and Rousseau
Meanwhile, in England and in France, the resuscitation of the theory of popular sovereignty had produced an attempt to give a more living content to the idea of Collective personality. Here the distinction between soczetas aequalzs and inaequalzs was dropped; and it thus became impossible to explain the development of Groupunity into a Being possessed of authority by referring that development to the institution of a Ruler who stood outside and above the community. If, under such conditions, there was to be any Group-unity which had the capacity of will and of action, and could be depIcted as the 'Subject' of political authority, such unity had to be found not in a umting Representative Ruler, but in the united commumty itself. The only question which then arose was whether it was possible--and if so, how it was possible-to raise the conception of Collective unity (the only conception possible as long as thought was confined to the limits ofnatural-law individualism) to the required degree of intensity. In dealing with thIS problem, Locke marks but little advance. Although the community, on his own prinCIples, is nothing but a partnershIp of indIviduals who remain individuals, he yet makes it also, at the same time, a single body (194) His treatment of the majority-prinCIple is a good Illustration of his method. On the one hand, he seeks to derive it from the nature of the community as a single body. All bodies, he argues, must be moved by a single power in a single way; in the body politic, the only motive power discoverable is the superior power possessed by the maJonty; therefore the identification of majority-will with the will of the whole is a consequence of the Law of Nature and Reason (195). On the other hand, and in the same breath, [recurring to the idea of partnership,] he thinks it necessary to suppose a contractual agreement of all individuals to submit to the future resolutions of a majority, and he makes this agreement the legal basis of the validity of such resolutions (196). Rousseau occupied himself far more seriously with the problem of raising Collective unity to the dignity of a living and authoritative Group-person. It was a problem which was particularly pressing for him, because he rejected absolutely any idea of Representative unity. He asserts again and again that the social contract produces a moral body equipped with authority over its members; that such a body, like the natural body, is a single and
129
i~cll\risible whole; and that it possesses an Ego, a life, a will of its
own(I97). He makes this real Group-being, under the name and style oGa 'moral person', the one and only Sovereign, which not only stands on a level with actual individuals in all its external relations, but is also the genuine 'Subject' of political authority internally (lg8). But vigorously as he sought to depict the substantive existence of this sovereign Group-person, Rousseau was unable to escape from the trammels of a view which made it, after all, only a sum of individuals united in a single aggregate. But how could a contract between individuals conceivably produce anything whIch was not itself a mere matter of individuals? Rousseau attempts to meet the difficulty. He argues that the associated individual wills blend together in a general will (volonti generale) , which is no longer the will of all (volonte de tous). But all the dialectical arts which he uses in order to prove that the general will is different from the will of all fail to turn it into a genuine common will. In the last resort the whole distinctlOn comes to this -that the will of all is the sum of individual wills, including all their actual variations from one another, while the general will is to be found by adding the concordant motives of indIvidual wills, and excludmg all their dissonances(199). The innate character of tills general WillIS not even sufficient to produce the principle of majority-rule; and if majority-rule is to be substituted for it, it must be stipulated for in an agreement-though it is only fair to add that Rousseau regards such an agreement as indispensable (200). The supposed general will IS thus, after all, no more than an average of individual wills, to be found by the use of a readyreckoner. Only a miracle can enable it to show the higher qualities which Rousseau poetically credits it With possessing (201). [J ust as the general will stays at the level of an average of individual wills, so] the sovereign Group-person never rIses beyond the sum total of individuals who constitute the society at any given time. The same persons who are governed, in their capacity of subjects, also constitute the sovereign in their other capacity of citizens (202). Each is, in part, the joint-owner of a sovereign authority to which, at the same time, the whole of himself is sub. ject (203). Corresponding to this double position [of subject and
Compare the epigram of a French wnter. 'The modern Frenchman looks with pride at hiS face In the glass as he shaves In the mornIng, remembering that he IS the thirty mIllIonth part of a tyrant, and forgettmg that he IS the whole of a slave'.
BTU
30
Gierke's Text
citizen], in virtue of which the individual can contract with hirfiself and owe obedience to himself, there is a double series of obligations which the social contract creates for the individual (2f)4). But while the individual thus incurs obligations, it is inconceivable that the sovereign community should be bound, either by the social contract itself, or by any other sort oflaw(2os). It can undertake obligations, in the same way as an individual, in reference to third parties (206) : it can never oblige itself, as a Whole, to any of its own members (207). By its very nature, * this sovereIgn moral person manifests itself totally, and manifests itself exclusively, in the assembly of all (208). It manifests itself totally in that assembly, in the sense of being so identical with it that each new assembly cancels the whole of the previous political and legal situation; and each new assembly, therefore, unless it prefers an alteration of that situation, or a modification of it, has to give it the validity which it would otherwise lack by an act of express or tacit confirmation(20g). [As it manifests itself totally in the assembly, so also the Sovereign manifests itself exclusively in that body.] In it, and in it alone, can the Sovereign show itself a being which acts and wills(210). Any form of' RepresentatIOn' of the sovereign Collective being is incompatible with the very conceptIon of that being (2 1I). The moral person is so entirely bound up with a visible aggregation of individuals, that no idea of any 'Organ', through which the invisible but living unity of a social body attains an active expression, can ever possibly emerge(212). But in spite of hIS theory of the primary assembly, Rousseau is forced to provide some sort of permanent organisation for the community, and to fill in some way the void which he has created by abolishing the Representative unity involved in the existence of a Ruler. He therefore devises an mgenious system by which the sovereign moral person creates, in the shape of an administrative body (gouvernement), a second moral person-subservient to itself, but yet possessing a life of its own; acting with a delegated and dependent authority, but acting none the less(21S). But this secondary moral person turns out, once more, to be only a Collective unity, composed of individuals, and never transcending the individuals who compose it (214). The theory of Rousseau exercised a great influence on the natural-law theory of Group-personality (215) ; but even in France,
... By Its very nature-as bemg one Wlth all its members, from whom it can never separate Itself, even for the purpose of obligmg Itself.
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131
;h~re it passed into the programme of the Revolution, it was considerably modified, mainly in the direction of bringing it more within~he bounds of political possibility. It was Sieyes who, more than any other writer, gave to Rousseau's theory the popular form in which it long continued to inspire the political doctrines of Radicalism. Like Rousseau, he identified the moral personality of the social body with the sum ofits mdividual members, regarded as a single aggregate (2 16); like him, he identified the common will with the will of all (2 17); like him, again, he identified the will of all with the will of the majority, in \ irtue of an agreement of all supposed to have been made for that purpose(2I8). But Sieyes restored the idea of Representation which Rousseau had rejected; dnd he therefore regarded a Collective unity a~ not only operative 10 a primary assembly of all its members, but aho willing and acting through its appointed reprcsentatIve~(2I9). He was thus able to eliminate from the State the idea of a separate moral personality of the Government, which had been introduced by Rousscau-substituting, in Its place, a scheme by which a variety of different bodies represented the sovereIgn community (220).
Hehte and Kant
In Germany, the writers who dung to the theory of the Sovereignty of the Ruler adopted only isolated elements of Rousseau's doctrine (22 I). Fichte, however, as a professed adherent of Rousseau's theory of Popular Sovereignty, attached lumself also to Rousseau in his speculations on the nature of Groups; but as he was pledged to an even still more drastic form of indIviduahsm, he employed an even more artificial method of arnvrng at a real social Wholeonly to remain, in the end, even further removed from any Idea of a real and living Group-being. In FIchte's view, a CIVIl society is simply an aggregate of so many associated indIViduals. But it is only WIth a part of their personahty-not WIth their whole being or their entire selves-that individuals combine to form thIS' protecting body' or insurance society. So far as they are mcluded in it, they now constitute, in theIr aSSOCIatIOn with onc another, the sovereign 'Subject'. Each person is thus, from one pornt of view, a 'partner in sovereignty'; but each stIll remains, from another, a 'free indiVIdual' (222). Nevertheless, Fichte proceeds to argue that the State is a single 'body' and a 'real united Whole'. With the conclusion of the contract of union, all in theu paruculanty are henceforth confronted by all in theu associatIOn; and all in their
9- 2
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association are a real, and not an imaginary Whole--they a\-e"a true universal (AUhett) in the sense of a totum 'which is one by the very fact of the case', and not a sum total of unitli (AUe) in the sense of a mere composttum. This Whole is the other party to the contract; and it receives its consummation from the fact that each individual makes a contract with it, pledges himself to protect it, becomes a part of it, and identifies himself with it. 'In this way,' Fichte writes, 'by means of contracts of individuals with individuals, the Whole comes into existence, and it is then consummated by the fact that all individuals [as such] proceed to contract with all individuals as a whole'. But how is this transformation of multiplicity into unity really achieved? Simply by a process of abstraction. The act of union, Fichte argues, is not directed to the protection of this or that determinate individual; since each person may, or again may not, be the first to be attacked, it is directed to the protection of all indeterminately. Now 'this indeterminacy, this uncertainty which individual will be the first to suffer attack, this consequent wavering of the imagination, is the bond of union, and the reason why all coalesce into one' (223). A Whole thus constituted cannot possibly be a living being. Fichte may compare it, as he repeatedly does, with the organic structure of a natural product; but all he gains from the comparison is the idea of a reciprocal relation of parts, and not that of a living unity of the Whole. He thinks it most appropriate to compare the State to a tree, in which each single part has consciousness and will. Every part of a tree, however much it may want its own self-preservation, is compelled to will the survival of the tree, because its own survival is only possible on that condition. Strictly speaking, the tree itself is 'nothing to the part but a mere idea, and an idea cannot be injured. But the part really wishes that none of the parts, whichsoever it be, should be injured, because, if any be injured, it must suffer itself simultaneously. It is otherWIse with a heap of sand, where it may well be a matter of indifference to one part, that another should be parted from it, or trodden underfoot, or scattered'. Throughout the course of his subsequent exposition of the organic nature of the social Whole, Fichte never departs from this general view. The parts of such a Whole, like those of a tree, are only what they are in virtue of the connection of the Whole, and the life of each part is therefore conditioned and determined by the life of every other part; but this life of the parts is all that constitutes the life of the Whole, and the only unity that
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exists is the common factor of reciprocal interdependence present in every part(224). If th~ 'organic Whole' is thus left as an abstract conception, it can have no effective personality of its own. Fichte, it is true, sometimes places' mystical', 'moral' or 'juridical' persons by the side of 'physical' persons; but all that he means by these terms i<; relations of connection between individuals(22S). To the State, as a whole, he never applies the category of 'person' at all. Even in the sphere of external relations, he does not employ the idea of State-personality: he derives public international law, no less than private, from the legal relations WhICh arise as the result of contracts between individual citizens of dIfferent States. 'A rdation between States is always based on a legal relation between their citizens. The State per se is an abstract conception: only the citizens, as ~uch, are real persons' (226). In its internal life, the body politic is ruled, in Fichte's view, by 'common will', which he derives, in the same way as Rousseau, from the united wIlls of all, by the process of making each will shed its particularity, and adopt as its only obje-ct the rule of right which is common to all(227). In one respect, he goes even beyond Rousseau he rejects the majorIty-principle, opposing to it, with an eager advocacy, the principle of unanimity, and only making the limIted concession that an overwhelming majority may be allowed, in special cases, to enjoy the right of declaring dissentients to be non-members(228) He follows Rousseau generally in thinking that the true realisatIOn of the general will is only possible in a primary assembly of all the CItizens (229); he departs from him in admittmg that, within certain limits, the representation of the general will by duly appointed deputies may not only be possible, but even necessary (230). But he never abandons the prine-iple that the community must always hold the position of a sovereign pnncipal, wluch can always override the 'presumptive common will' of its agents by a declaratlOn of Its own actual common WIll(231). He is so far removed from any idea of a corporate' Organ' that he even insists on excluding all persons who hold political office--whether popular representatives or administrative officials-from membership of the community; and he treats such persons as mandatory agents of the remainder which is left when they have been subtracted from the body of the whole(232). In his later writings Fichte considerably changed his original theory, and advanced towards a really organic view of society(233). But he never broke away altogether from his pre-
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vious system of ideas; and the 'higher view of the State', whict. he preached in his later days, never reached the stage of a definite expression in terms of juristic ideas (234). This mixed view of the nature of the Group, half individualistic and half collective, was one which even Kant was unable to transcend. Limiting the conception of personality entirely to the individual, in his capacity of a free rational being (235), Kant leaves no room for any real Group-personality. Occasionally, it is true, he applies the term 'moral person' to denote a complex of individuals. While he is singularly silent, in treating of corporations and charitable and other foundations, about the question of their personality (236), he regards the relations of States under international law as a relation of 'moral persons' (237); and in the sphere of internal publIc law he treats a number of bodies as separate 'moral persons '-e.g. the bodies which exercise the three different' powers'; public boards; the People itself( 238). Bu t what he means by this term, which he never explains in any detail, IS obviously nothing more than a sum of individuals regarded as a single aggregate. In particular, his conception of the People is only a Collective or 'Bracket' conceptIOn (Sammelbegnff) , which may be used to signify either the aggregate of the State's subjects, or the aggregate of its active citizens, and may therefore be either contrasted or identified with the idea of the State, according as it is used in one or the other sense(239l. He may proclaim that in the, ideally rational form of State, which is the only legitimate definitive form, sovereignty belongs to the People: the fact remains that the sovereign People is nothing more than a mere sum total of associated individuals, just as it had also been for previous thinkers (240). In his view, as in theirs, the general will which is the true Ruler is produced by a union of all indiVIdual wills, and appears in the form of an agreement between them alI(24I); and thus the political methods of majority-decision and representation, which are indispensable in all large States, can only be justified on the ground of their having been adopted 'with unwersal assent, and therefore by means ofa contract' (2.p). But here again, as we have seen before, Kant finds a way of depriving his theoretical individualism of any practical importance. By pressing his distinction between homo phaenomenon and homo noumenon, and by making the individual co-operate in the creation of the general will 'only in his pure humanity' as homo noumenoni.e. only in so far as 'pure reason, which lays down the rule of
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displays itself in him (243)-Kant really eliminates personality from his scheme. He depersonalises the Individual, in his capacity of joint sovereign, into an abstract rational being; he depersonalises the Group-will into an objective content of will issuing from abstract reason(244). He loses any conception of a living 'Subject' of the common sphere [of social authority]; he substitutes in its place the idea of an impersonal will oflaw-a will remote from actual concrete wills; a will of which individuals are instruments; a will in whose service these instruments have to work, under a system of stnct dependence, at a task which is common to them all.
GENERAL RETROSPECT
Looking back at the development of the natural-law views of the being and essence of groups, we can see that !>tone upon stone has crumbled away from the theory of Corporations which had been built up by the Roman lawyers and the canoni<;t<;. The collapse of that theory becomes complete when Natural Law expressly rejects, and ends by banishmg altogether, the conception of the ficta persona In the general theory of SOCiety which takes the place of the old theory of Corporations, the School of Natural Law uses the conception of the 'moral person', for which it claims a higher degree of reality, to fill the gap created by the disappearance of the fictitious person; and It attempts, but owing to its fundamental individualism it attempts in vain, to give a real existence to this moral person In its treatment of the formal structure of the social connections between individuals, the School of Natural Law adopted the contractual !>cheme of SOCletas and Mandatum, and it broadened and deepened this scheme, in many directions, with the aid of conceptions derived from Teutonic ideas of Fellowship and Kingship (Herrschaft). But impnsoned within the limits of that contractual scheme, it was never able to attain the idea of the inherent and independent existence of a social Whole. It could only achieve its doctrine of the moral personality of groups by combining, in one way or another, two different conceptionsthe conception of Collective and that of Representative unity; and on either conception the Whole is no more than the associated individuals of which it is composed The existence of the 'moral person' is thus only a fact because it coincides, and to the extent that it coincides, with the existence of individuals; and the unity
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of will and power in a Group-person is only a reality because, Ind only a reality in so far as, individuals are actually willing and acting as one, either on the Collective basis of unanimous agreement, or the alternative basis ofRepresentation by a single person or body. On such a view, the' fic.titious person' has indeed disappeared; but with it there has also disappeared any 'person' of any sort which is in any way separate from individuals. The Being of each Group is reduced to the mutual legal relations of its members; and the 'moral personality' is only a formal conception which serves to indicate, as a shorthand expression, certain legal results involved in these relations of connectIon. In such a circle of ideas, a Group-being with a single life of its own is something inconceivable; and a purely mechanical view of SOCIety is the inevitable result. Occasionally, even in the strictest individualistic !>ystems of Natural Law, the traditional organic metaphors and similes continue to be adduced (245): they are even used to some extent (as we have already seen in dealing with Locke, Rousseau and Fichte) as technical terms of art for the purpose of expressing the nature of group-unity (246). But Hobbes, in referring to the' artificial life ' of automata, had already built a bridge by which it was easy to pass from the conception of social organism to that of social mechanism. The precedent he had set was not neglected; and we often find that even when society is formally ranked as a moral body by the side of natural bodies, It is really regarded as merely an artificial imitation of the living organism (247) For Locke and Fichte, and even for Rousseau, the social body is in the last analysis only a mechanically constituted Whole, with a lIfe which only resides in the lIfe of its parts (248). It is hardly surpnsing, therefore, that as the doctrine of Natural Law developed, modes of expression derived from an organic point of view often dIsappear entirely, or sink into an empty form of words (249) ; and the analogy of an artificially constructed machine more and more takes the place of the natural body in the interpretation of the social Whole(250). It was impossible for the idea of an organk Group-being to disappear entirely, so long as the individualism of the School of Natural Law was still confronted by any really vital philosophy which made the Whole its basis and starting-point. But that idea was seldom, if ever, developed clearly to its ultimate results, and still less was it ever expressed in any juristic form. Least of all was any attempt ever made to conceive in terms of personality the living unity immanent in an organic Group-being. Even the
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tlu1J.kers who were most opposed to a purely individualistic interpretation of society evaded entirely the question of Group-personalit.y(25I). There were others who only attained the conception of a moral person to fall back instantly on the idea of a merely Representative or merely Collective unity(252). Even Leibniz, unable to rise to the conception of the personal existence of the group, was content to crown his nobly planned edifice with a shadowy personaficta (253). Nor is there, in any of the social theories of the eighteenth century which prepared the way for an organic view of historical development, anything more to be found than the merest genu-the dormant and undeveloped germ-of a legal interpretation of the living Group-personality (254).
CHAPTER II:
SECTION
I, 17
THE NATURAL-LAW THEORY OF THE STATE
I.
GENERAL VIEW
Th(" general natural-law theory of Society culminated in a 'natural' theory of the State. Within that theory, the subject of natural public law, under the name of ')U!J publicum unzveTsale', , gradually vindicated an independent position as a branch of study distinct from 'Politics' (I). SO long ac; the State was simply treated as socteta~ perJectlSszma, and so long as its theory was simply regarded as an illustration (if the best and completest illustration) of the general conception of soczetas already described in the previous subsection, the ideas which found most vigorous expression in natural-law theories of the State were merely the general ideas about the nature of Groups with which we are already familiar; and these general ideas were freely applied, whether their ingredientc; were consistent with one another or contradictory. But a new situation arose, and thinkers were confronted by fresh intellectual problems, as soon as they turned to face the conception of Sovereignty (whIch still continued to be the essential core of the theory of the State), and attempted to bring it into harmony with their conception of soczetas
* Natural pubhc law is what we might call 'general first pnnclples of constitutlOnallaw'. Pohtlcs (Po!lttlc), as dlstmct from It, means the practical study of political methods and inslltut!ons.
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These problems arose from the fundamental difficulty ofuni4ng a traditional conception of sovereignty-which at the bottom nobody wished to disturb, or indeed, in view of the political trend of the age, could think of disturbing-with the general idea of the Law-State (Rechtsstaat) which was inherent in the essence ofNatural Law. If, on the one hand, the logical evolution of the conception of sovereignty were permitted to run its course freely, It inevitably followed, however much the dictates of God or of Reaf>on might still be exalted above the authority of the State, that the internal system of political relations was deprived of any of the attributes of a genuine system oflaw. On the other hand, if Natural Law were not to annihilate itself utterly in the way indicated by Hobbes, it was bound to retain the Teutonic conception of the State as a system oflegal relations. It wac;; the latter of these tendencies that actually showed itself strongest; and the whole of the natural-law theory of wciety shows an increasingly conscious and vigorous effort to interpret the State, like every other soczetas, as a system of reciprocal legal rights and duties. But the conflict between the idea of sovereignty and that of the Law-State involved a number of compromises or concessions, which could only be made at the expense of strict logic First and fm emost, owing to the growth of an idea which we have already had reason to mention-the idea that there was a part of the original sovereignty of the indiVidual which had not been surrendered in the contract of civil society, so , that a sovereign Individual still remained to confront the sovereign State-it became possible to maintain that the individual citizen had his own inherent rights, which stood over against the authority of the State. In the second place, and on the same basis of argument, it could also be maintamed (as we shall have to show later on) that in the area of their mutual relations all groups had their own inherent rights, which were not abolif>hed by the fact of inclusion in a higher sovereign group. Finally (and here we touch the only point specifically relevant to our present theme, which is that of the internal structure of the State in itself), it carne to be held, in defiance of the logical demands of the conception of sovereignty, that political authority was by its nature divided, in one way or another, into a number ofindependent spheres ofright belonging to a number of different' Subjects'. *
The first point raised in the latter part of this paragraph touches the relation between the State and the IndIVidual, and the hmltahon of Statesovereignty by individual rights. The second turns on the relation between the
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- ~rima facie, the adherents of the School of Natural Law may seem to have found the clue to the solution of this fundamental antin(Jmy [between the idea of sovereignty and that of the LawState] in the conception of State-p('rsonality which they finally succeeded in attaining. This would have really been the case if only they had conceIved the State [not merely as a 'moral person' , but] as a living Group-person. On that basis, it would have been an easy step to explain the apparent antinomy between the idea of a united and indivisible sovereign power and the idea of a constitutional division of powers by drawing a contrast between the unity of the State-personality and th(' plurahty of its organs. But the idea of a true Group-being could never be elicited from the natural-law conception of Group-personahty, as that conception had actually developed on the basis ofindivIdualism. The naturallaw persona cwztatzs might be depicted as 'Representative' or , Collective': in neither case could it ever transcend the category of IndivIduals; In neIther case could it ever possess an inner being which could be formulated in juristic terms. Under these conditIOns each new attempt to give a more defimte expression to the personality of the State as a Whole only meant a new obstacle to the development of the theory of the constitutional State. It is not a mere accident that we should find the advocates of the theory of absolute sovereignty laying the greatest emphasis on the idea of State-personality, or that a tendency to the doctrine of constitutionalism should always go hand in hand with a tendency to eliminate that idea. In the light of these considerauons, it is easy to see that the controversy about the' Subject' of sovereignty, which stilI continued to agitate men's minds, could hardly be settled by sImply admitting the principle (first propounded by Hobbes, aJ1d never forgotten afterwards) that the State-personahty, in itself, was the real' Subject' of sovereignty.
State and the Group, and the hmltatlOn of State-sovereignty by Group-nghts The third concerns the hmltation of the State ill Its own illternal character, apart from any question of Its relatIOns to IndiViduals or Group~ Since the general theme of the present passage IS that of the accommodatIOn of the Idea of sovereignty to the idea of the Law-State, Gierke remarks that the third pOint is the only one which IS speCifically relevant to thiS general theme. In other words, the system of divisIOn of powers attl.'mpts to make sovereignty a legal structure in its own mner nature, and thus se('ks to effect a real reconClhatlOn of soverClgnty and Law; while to let the IndIVidual, or the Group, 'contract out' of sovereignty, in the sphere ofmherent nghts, IS sull to leave sovereignty, in the rest of its range, unhmited by Law
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Ii " We may admit that the formal conception of State-sovereigrlty which was attained by the use of this principle was not altogether without value. But we must also recognise that this conception was not suited, in its actual implications, to lift thinkers above the alternatives of the sovereignty of the Ruler and popular sovereignty. Its effect was rather the opposite. Failing to provide any firm foundation for the views of theorists who sought to mediate between these alternatives, the conception of State-sovereignty as inherent in the personality of the State was mainly used as a cloak for doctrines of the unlimited sovereignty either of Ruler or of People. Being a purely formal conception, it was entirely devoid of any substantive internal content; and it could not, therefore, be developed mto a concrete and actual conception of~overeignty, as resident in a whole Group-being which manifested Itselfin every one ofits parts. This will explain why the advances that had already been made in this direction [i e. in the directIon of the idea of the sovereignty of the whole Group-being] now found themselves doomed to suppression. The theory of a 'double majesty', which had once held sway [and which had made both King and People sovereign, thus vesting sovereIgnty in the whole body politic], was no longer defended by any thmker If it was mentIOned at all, it was only by the advocates of the sovereignty of the Ruler, and only for the purpose of rejecting it as a deplorable errOr(2). The theory of the subJutum commune of' majesty' [whIch made the whole body pohtic the general or 'common' SovereIgn, acting through the Sovereign' proper' as its organ] only survived in a few scattered writers; and it failed to yield them the results for which they hoped even when they sought to combine it with the conception of the moral personality of the State(g). The few who adopted this theory transformed it so utterly, In order to save the reputation of its author [Grotius], that It lost any particular meaning (4); but the majority of writers simply rejected it altogether, as running dangerously near to the theory of popular sovereignty (s). The two opposing theories of the absolute sovereignty of the Ruler and the absolute sovereignty of the People were thus left alone in the field; and thinkers who sought to advocate the cause of constitutIOnalism found themselves faced by the difficult task of attempting, with the aid of no better tool than one or other of these theories, to wrest some soil from the hard ground of sovereignty, in which a theory of constitutional rights might be made to grow.
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II.
141
THE THEORY OF THE SOVEREIGNTY OF THE RULER
At first, as we should naturally expect from the general historical development on which the events of the Thirty Years War had set their seal, the victory lay with the theory of the sovereignty of the Ruler. The advocates of that theory were agreed that the State, as the 'Subject' of supreme authority, was to be identified with the Representative personahty of the Ruler. Except for Horn, whose attempt to treat the monarch as the only possible' Subject' of real political authonty was universally rejected (6), they all maintained that the Ruler mIght be either a single or a collective person, according to the form of the State; but they did not believe that any difference In the scope and the content of his sovereignty was created by this distinction (7). On the other hand, they refused to allow that the People, as such, had any share in sovereignty, after the State had once been formed (8); and even in regard to democracies they drew a sharp distinction between the sovereignty of the community, in its capacity of constituted Ruler, and the original sovereignty of the People, which was supposed, in all forms of State ahke, to have come to an end wIth the transformation of civil society into a State(g). The question, however, remaIned, whether there dId not still continue to exist a Collective personalIty of the People which [if it was not the' Subject' of sovereignty] was, or at any rate might be, a 'Subject' of popular rights as against the SovereIgn. On the absolutist side, which followed the line of Hobbes, and pushed the conception of a sIngle and unique State-personality to Its logical concluslODS, the questlOn was answered in the negative. It was held that the People only became a persun In the Ruler: apart from him, it was but a disunited multItude As a governed community, the People was therefore destItute of any capacity for nghts; and conversely, the instant It was recognised as a 'Subject' of rights, it also acquired, by that very fact, the po~ition of Ruler. A difference of opinion arose, however, when it came to the drawing of conclusions from these premises in regard to the possibility of a constitutional State. The stricter school of absolutists held the view that a system of constitutional law legally binding upon the sovereign was a thIng which was utterly inconceivable. The extremist theories of Hobbes were, indeed, reJected: a sphere was reserved to the individual, beyond the reach of the State' the authority of the State was held to be subject to a fixed standard of
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action, whether derived from Divine command or from the dim: mand of Reason; but any limitation imposed by positive law was held to be incompatible with the essence of sovereignty. Tlris was the reason why the conception of a constitutionally limited Monarchy was regarded [by the absolutists] as particularly objectionable. There might be differences of opinion among them in regard to the propriety and the real character of other historical developments ofa constitutionalist type; but there was a general agreement that a Monarchy which was constitutionally limited was not a Monarchy at all. This was the line taken by Spinoza(lo); by the advocates of absolute monarchy in England (II) and France (12); and by many of the political thinkers of Germany(13). On the whole, however, this drastic theory of the sovereignty of the Ruler was prevented from finding a footing in Germany by its incompatibility with the legal situation which actually eXIsted in that country; and a more moderate opinion prevailed which, while it kept to the general principles of the absolutist doctrine, admltted,in one way or another, the existence of constltutionallimitatlOns on sovereignty. Horn himself, vigorously as he rejected any diminution of regal majesty by popular rights, admitted that there were differences in the modus habendz majestatem. Even in the case of absolute monarchy he assumes a difference of degrees, according as there is a dommatus with an exercztzum absolutzsszmum of' maje!>ty', or a regnum absolutum with a less drastic exercise of ruhng power, or a dictatorship limited in point of time; and by the side of these absolute forms he also recognises a limited monarchy, in which the monarch is under a contractual obligation, in exercising his' majesty', to observe certain condItions, or even (it may be) to take the advice of certain persons. He does not, however, regard the fulfilment of such obligation as a matter which admits of any form of legal sanction (14). But the writer who took the greatest pains to prove that supreme authority was not necessarily unlimited was Pufendorf(ls). [There are, indeed, some elements in his theory which run in an opposite direction.] He regards the personality of the People as absorbed entirely by its representation in the person of a single Ruler or body of Rulers. In other words, he makes the persona moralzs composita of the State manifest itself so fully, and so exclusively, in the Sovereign, that everything which the Sovereign, as such, may will or do must be counted as the will and action of the State; while anything that one man, or many, or all, may will or do apart
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{roAl the Sovereign, must be counted as a private will or a private activity-or rather, not an 'activity , [since the word implies some unity]"but a multiplicity ofactivities(16). He is thus led to follow Hobbes in denying that the governed community can possibly have any rights against its governor; though, unlike Hobbes, he makes individual subjects enjoy rights against the government, which are real, if imperfectly guaranteed, rights(17}. But Pufendorf [also leaves room for the principle of constitutional limitation. He] incorporates in his theory (primarily with reference to monarchy) the idea of differences in the modus habendz of 'majesty'. Over against the patrimonial' mode' or form, under which political authority is m patrzmonw zmperantzs, he sets what he regards as the normal form, under which the Ruler for the time being enjoys only a right of usufruct in political authonty, so that he cannot by himself dispose of the substance of political rights either mter VIVOS or by will (18). Moreover, he recognises that, side by side with the lmpmum absolutum, which is only limited by the rules of Natural Law, it is possible to conceive an zmpenum lzmztatum, where the king is limited by a constitution in exercising his sovereignty, and where he needs the assent of the people, or of an as~embly of representatives, for some of his acts of government. In spite of these lImitations, he argues, the supreme power still remains with the monarch, undivided and unmutilated; nor is any di<;integration of the umty of the State's will involved in them, since it still continues to be true that' omma, quae vult ClVZtas, vult per voluntatem Regzs, etsi hmztatlOne tall fit, ut, non exzstente certa condztzone, Rex quaedam non POSS!t velle aut jrustra velzt'. The assent of the People, or the Estates, is therefore not the radzx, but only the condztlO szne qua non, of the exerci<;e of political authority; and such right of assent confers no share in that authonty upon eIther People or Estates Even a claufula commzssoria, which has the effect of making the monarch forfeit his authority if he transgresses its limits, fails to alter the situation' only a condztlO potestatzva is contained in such a clause, and the cognisance of the question, whether that condition has come into play, will be a matter ofnuda contestatIO, and not ofjudicial deClsion '" On the other hand, if the unity of the State IS not to be
.. In England, we might say that the Bill of Rights IS a clausula commlSSona for succeedmg monarchs. If any of them VIOlates ItS terms he forfeIts the throne. But the BIll only recites the condition on which thIS may happen (condItIO potestatlVa} , and the question whether the condillon on which thIS may happen has actually and really appeared is not a question for a court (none IS prOVIded In
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disintegrated and the essence of monarchy destroyed, the monlrch should never be obliged to allow the positive substance or object of his volition to be imposed upon him by a foreign will. must accordingly preserve full liberty to summon or dissolve the assembly of the People or the Estates, to lay proposals before it, and to accept or reject its decisions; and he may also, in the interest of the public welfare, amend the fundamental contracts on which the State is based, if they are leading to its dissolution(lg). Pufendorf's theory attained an extraordinary vogue. It continued, in its main lines, to determine the character of the naturallaw theory ofthe State till the middle ofthe eighteenth century, and even later. It was adopted, almost unchanged, by Thomasius(2o), Titius(21), Gundling(22), and others of his disciples(2S). It also received the allegiance of both the Cocceji(24), Stryck(2S), Ickstatt(26), Kreittmayr(27), Heincke(28), and other advocates of the absolute authority of the territorial prince(2g). It was pushed in the direction of absolutism, and given a more rigorous form, by J. H. Boehmer (so). Conversely, there were other writers who modified it in the opposite direction, and sought to give a wider scope to the doctrine of constitutionallimits(SI). In particular, a number of writers disagreed with Pufendorf's admission of the patrimonial form of State, regarding It as logically inconsistent with his other ideas, and holding that it could never be possible for a Ruler to dispose of the substance of the State without the assent of the People (32). On the whole, however, we may say that the general fate which befell Pufendorf's views was that his theory of sovereignty was accepted, so far as its practIcal results were concerned, but its ingenious basis [which reconciled popular consent with sovereignty by making it the condztw szne qua non of the exerCIse of sovereignty] was sacrificed, and the old antithesis between the rights of the Ruler and the rights of the People was re-introduced. This antithesis, and WIth it the conception of a Collective personality of the People as still continuing to confront the Ruler, was steadily maintained by the thmkers who, while professing the general theory of the sovereignty of the Ruler, were mainly influenced by constitutionalist tendencies. Critics might censure, and censure with good reason, the disintegration of the unitary personality of the State which was involved In such a position: the
ae
the Bill), but for mere assertion (nuda contestatio) by Parliament or People. Blackstone says much the same In hIS Commentaner, I, pp. 211-14. But Pufendorfwas wntmg, of course, before the Bill of Rights.
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f;ct'remained that, so long as Natural Law was the basis ofthought, it was only possible to safeguard the conception of popular rights, while r,jecting the theory of popular sovereignty, at the price of admitting a dual existence of two personalities-the personality of the Ruler and that of the People. Even the strict absolutists themselves had to recognise, if once they admitted the theory of contract, that the People must possess, at the very least, 'lome dormant or latent form of personality; for as soon as they argued in terms of contract, they were not only bound to make the original sovereignty of the community the premise of their argument-they were also bound to acknowledge that sovereignty might possibly revert to the community in which it began (33) A complete break WIth the whole theory of contract was necessary before the idea of the personality of the People could be entirely eradicated (34) But If It was possible for the People to eXIst for a SIngle instant in the absence of a Ruler, there was no logical objection to the idea that it should also continue to exist, as a personality, szde by szde with the Ruler [Not only was there no logical objection against the idea; there was also a logical argument in its favour.J It was obviously far more consonant with the idea of contract to hold the view that, after the conclusion of the contract of subjection, the community still confronted the sovereign as a party to that contract, than to profess the theory that the community itself expired in the act of concluding the contract, and that the contract produced rights and dutIes for Individuals only. These considerations will explain why the old conception of polItical relations, as relations of contract between Ruler and People, always continued to persist The perSona cUlz/alzs was held to be merged in the lmperans, but the governed community was none the less regarded as a separate collective person, for which certain rights were in every case reserved, from the very first, by the terms assumed to be contained in the origInal contract, and to which more extensive rights might be granted [in particular casesJ by express constitutional provisions to that effect It is along these lines that Huber attempts a general interpretation of the constitutional State, which deserves particular attention. He begins by postulating that in every State the Ruler, and the Ruler only, is vested with 'majesty', and that no dIfference in the form of the constitutIon, or in the method of its acquisition, or in the modus habendz under which it is exercised, can vary or alter this majestY(35). But he proceeds to argue that in every State the right of the Ruler is confronted by two other sorts of rights-the
BTSI
10
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rights of individuals, and the rights of the popular communily-:' which bind and limit the supreme authority, though they do not affect its essence (36). The source of popular rights is the leg,sfundamentales, which, however, are really' contracts' , and not' laws' (37). Some of these rights exist in all States: they are the results of the self-evident terms of the original contracts (leges fundamentales taciiae) (38). Others may be either originally reserved, or subsequently secured, by express agreements to that effect (leges fundamentales expressae) (39); but rights of this latter order cannot go beyond a certain point, unless a system by which the People participates in the office of Ruler has taken the place of a system of limitation of the Ruler's rights(40). Huber accordingly assumes that there are always two' Subjects' of political rights. On the one hand thert' is the personality of the State, which he identifies, in exactly the same way as the absolutists, with that of the Ruler(41): on the other, as he expressly contends, the People also JUS personae reimet, and continues to be a unwersziaf(42). In developing hIS theory Huber delIvers a vigorous attack on every kind of absolutism, popular as well as monarchical, in every kind of State (43). But if he is consistent in that respect, he fails to reconcile the inherent self-contradiction which clearly reveals itself in his theory when it comes to be applied to democracY(44) In much the same way we find the German political writers who attempted to find an independent basis for the rights of the local Estates of the German territorial principalities (Landstande) still holding to the idea of a contractual relation between the prince, as representing the' State', and the' People', as represented by the Estates (4S). The conception of sovereignty was severely limited by many of these writers (46) ; and Leibmz, too, though he failed to transcend the traditional doctrine in his view of State-personality [as resident only in the Ruler] (47), attempted to broaden the whole basis of argument for constitutional limitations on the Ruling authority. He delivered a vigorous attack on the academic conception of sovereignty; and arguing that all human relations are necessarily conditioned [and therefore cannot be 'absolute'], he rejected any idea of absolute sovereignty in favour of a conception which made it no more than relative (48). * For the time being, Pufendorf's doctrine triumphed over that of Leibniz; but there
In other words he held that there is no absolute sovereignty, free from and unrelated to conditIOns of Hme and place; there IS only a relatIVe sovereignty, which exISts under and subject to such conditIOns.
17 The Natural-Law theory oj the State
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w~ many of Pufendorf's disciples who had already begun to revolt against the complete absorption ofthe People in the Ruler (49). Hert, ~chmier, HeinecclUs and other writers, while following Pufendorf in other "respects, recur to the idea that the State must include a collective personality of the People as well as the sovereign personality of the Ruler(50). Occasionally, too, we find writers [who start by assuming that the Ruler is the only' Subject' of rights] slipping imperceptIbly over into the idea of rights of the People [which implies that the People is also a 'Subject'ofrights]; nor indeed was it easy, when It came to the point, to maintain intact an artificial interpretation of the State which limited the Ruler by the Group-will, and yet, at the same time, left no 'SubJect' of will other than the Ruler * By the middle of the eightecnth ccntury we can trace a general change in the theory of Natural Law, which makes it more favourable to the principle of popular rights It is a change which naturally accompanies the dIsintegration of the conception of State-personality, and the consequent weakening of the conception of sovereignty, which we have already described In the writings of Wolff [1740-50] the ~overeignty of the Ruler almost ceases to appear as a defini te antithesis to the sovereignty of the People. He holds that the People is free to choose whether it will retain in its hands the right of controlling its members, which the contract of society creates for the communrty that It constitutes, or whether it will devolve that right in one way or another-eIther on one person, or on several; either wholly, or in part; either uncondItionally, or on such conditIOns as It chooses to impose; eIther revocably, or irrevocably; either for a time, or for life, or with nghts of succession; either in substance, or merely zn exercztzo('jl). If the People decides upon devolution, the rights of any governing person or body must be entirely determined by its will, as declared, tacitly or explicitly, at the time ofsuch devolution (52), and Wolff is thus able to assume, as an obvious truth, that constitutional lrmitatlOns may be imposed on a pohtical authority, and that a constitution may be
... The gISt ofthis paragraph IS that democratic Ideas survIved, or were enuncIated afresh, m the German theory of the first half of the eIghteenth century. ThIS IS Illustrated by (I) advocacy of the rIghts of Estates, (2) Lelbruz's theory of Sovereignty as relatIve; (3) the tendency of some:- of the followers of Pufendorf to admit the Idea that the People IS a personality Side by SIde with the Ruler, and (4) the tendency ofsome wnters to proclaIm the Idea of nghts of the People, and therefore, If only by Implication, to make the People a legal 'SubJect' of constitutIOnal rights Side by Side WIth the Rule:-r
10-2
interpreted as a relation of contract between Ruler and People~3j. Nettelbladt, following a similar line of thought, derives the whole of the system of internal public law from a contract made ~etween the initially sovereign community and one or more 'Subjects' vested with ruling sovereignty or parts ofit(54); and he admits that reservations or conditions may be freely imposed when the contract is being made(55). Only in the sphere of external affairs will he allow that the moral personality of the State is absorbed and contained in that of the Ruler (56): in the field of internal affairs he holds that the People has always and everywhere its own separate moral personality (57); and he even supposes a third moral personality, beside those of Ruler and People, wherever a popular assembly is to be found (58). Hoffbauer expounds an exactly similar view (59), except that he limits the hypothesis that an assembly of Estates may have a personality of its own, distinct from that of the People, to cases in which the members of such an assembly are not bound by mandats zmperatzjs(6o) Even the writers who laid more emphasis on the sovereignty of the Ruler and the need ofits being inviolable were now willmg to accept, without any demur, the idea of the Constitutional State, in which Ruler and People stood to one another in the relation of parties to a contract. We find a theory of this sort, with all the consequences which it entails, in the writings of Daries(61), Achenwall(62), Scheidemantel (63), and A. L. von Schlozer(64), who are even ready to face the revolutionary consequences which must ensue in the event of a breach of the political contract(65). In the course of this conflict between absolutist and constitutionalist tendencies, the controversy in regard to the real nature of the relation between Ruler and People came to be connected more and more closely with another controversy, which turned on the various forms that the 'Subject' of ruling authority itself might take. This latter controversy was concentrated on the one question, whether a mixed form of State was at all conceivable, and whether, if that were the case, such a form was objectionable, or admissible, or even ideal. But before we address ourselves to this question, we must pause to consider the attitude to the problem of Statepersonality which was adopted by the advocates of the renascent doctrine of Popular Sovereignty.
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III.
THE THEORY OF POPULAR SOVEREIGNTY
149
For a _entury past [i e. from 1641 onwards] the doctrine of the sovereignty of the People had remained a living force in England alone. But while the English advocates of that doctrine were eager in insisting that the People possessed the final authority in the State, and possessed it as an inalienable property which might be recovered at any moment, notwithstanding any positive law to the contrary, they never went to the length of breaking entirely with the idea of a contractual relation between People and Ruler; and they did not hesitate, therefore, to di~<;olve the single personality of the State (so far as such an idea was ever present to their minds) into a plurality of 'SubJects' of rights. * Sidney, for example, is concerned to prove the Identity of the sovereign personality of the People with the Parliament which IS Its plenary representative (66) ; but he mterprets the relation of People and Government, none the less, as a relation of contract (67)-though he also maintains that the prcsence of a contract can ncvcr deprive the People of its supenor position, or take away it~ sovereign right of final decision m the cvent of a dIfference of opinion(68). Locke equally seeks to retain the idea of the contractual character of the constItutIOn (6g) ; and w far as he transcend<; it at all, It i<; only in his contention that the People possesse<;, m virtue oflt<, inalIenable sovereIgnty, a power , of adjudIcating finally upon the conduct of the other party to the (ontract, which makes the existence of all constItutIOnal law depend, in the last resort, on the judgment of the communitY(7 0 )' Rousseau was the first thinker to abolIsh every vestige of the idea of a contractual relation between People and Ruler. He began by assuming that a single contract of SOCIety (parte d'arfOczatzon) contamed the whole of the creative force which made the State(7 1); he then proceeded to argue that the social authority thus brought into bemg possessed perfect sovereignty after the pattern of the strictest absolutism-a sovereignty incapable of any alIenation, any division, any representation, any limitation(7 2 ); and he concluded accordingly that it was impossible for the sovereIgn com... GIerke's contentIon IS that EnglIsh thmkers assume a smgle persona CIVitatIS -the People (eIther per se, or as expressed In PariIament)-but then go on to a.sume a contract; and smce a contract Involves two personae at least to make It, they necessanly must end by assummg a pluralIty (or at any rate a dUalIty) of personae CIVitatIS, or, In other words, a pluralIty or dualIty of' SubJects' of polItical nghts.
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munity, even if it wished, to vest any public authority in any other 'Subject' by way ofcontract, or to bind itself by contract to observe any limits upon itself(73). The erection of a government isclmerely a unilateral act of the sovereign: it is a free commission which can be freely revoked at discretion (74). The collective sovereign, when it makes its appearance as a civic assembly, is therefore above all law. The whole of the existing scheme of law collapses before it whenever it meets; it can make a new constitution to take the place of the old; and if it prefers to make no change, it must deliberately decide to confirm the old constitution in order to give it a new title to existence (75). As with the constitution, so with the government: any right to their position which its members may have acquired disappears in the presence of the sovereign, which at its discretion can either renew, or bestow elsewhere, such power of agency as it may have given(76) This is, in effect, the declaration of a permanent right of revolution, and a complete annihilation of the idea of the constitutional State. Rom.seau believes that he has purchased the perfect unity of the State's personality by paying this extravagant price (77). But since his idea of the personality of the State is simply a mechanical interpretation of the personalIty of the People, he is forced after all (as we have already observed) to introduce a further personality of the government into the body politic; and though he tries hard to conceal what has happened by degrading this second moral person to a subordinate position, he really fails, no less than other thinkers, to escape from a dualistic. conception of the 'Subject' of political rights(78). Rousseau's system of thought continued to be the foundation on which the whole revolutionary theory of the State achIeved its further development. It was inconceivable that the sovereignty of the People should be exalted to a higher point in that theory: on the contrary, it was inevitable that it should be curtailed, as soon as there was any return to the ground of actual reality. Any thinker who admitted the possibility of the representation of the People, or believed in the need of a governing authority which was in any degree stable and independent, was bound to modifY Rousseau's views. He must necessarily approximate to the idea of the constitutional State; he must curtail the omnipotence of sovereignty in its actual operation, even ifhe represented it as free from any limitation in principle; he must recognise the' bearers' of the constituted powers of government as 'Subjects' of political rights, concurrently with the popular community, even if he expressly
of the State
lSI
idmtified that community with the State itself(79). The theory of Fichte affords a good illustration of this compelling necessity. He was thf purest exponent in German thought of the principle of popular sovereignty; but he also sought to find room for the idea ofa constitutional law which was binding upon the People itself(8o). The People, he holds, must necessanly devolve upon a government, whether monarchical or republican, an < absolute positive right', which includes the ordinary course of legislation, jurisdiction and administration (81). It reserves, however, a constituent authority, together with a power of supervising the government and pronouncing on the legality ofits actiom (82). Butifit wishes to exercise this reserved sovereignty, the People must again become the , Community' (Gemeznde), in order that it may be able, in that capacity, to distinguish It~ will from the will of the supreme authority which it has constituted, and to rt"voke its declaration that the will of that authority is its own will (83)*. Here a difficulty emerges A private individual cannot, and the government will not, summon the Community into being; and yet the Community must be a Community before it can declare itself such. Fichte meets the difficulty by supposing that < the People is declared in advance, by the constitutIOn, to be the Community in certain contingencies' (84). In small States, this emergence of the Community is made possible by a provIsion for periodic assemblies: in large States, it is achIeved by the creation of a special authority, which has to establish the existence of a case of illegality, and to bring about, at the same time, the meeting of the Community. In large States, therefore, the People must choose special ephors, t and arm them with < absolute negative power' in virtue of which they are able, by issuing an InterdICt that brings all the government of the State to a standstill, to introduce the deciding voict" of the People itself, which thus re-enters upon its sovereignty(8s) The decisions then made by the Community thus brought into being are 'constitutional law' (86). If, however, in spite of all the securi'" The Commumty IS prIor to the People; and It only becomes a People when it constitutes a State, m whIch we may henceforth speak of People and Government. This People, however, must reconstItute llself back into a Community, If It desires (1) to alter the act wruch constlluted the State (I.e. the constltution), or (2) to judge the legalIty of the acts of the Government (1 e. to pronounce whether they are m accordance wIth the constItutIOn). t The idea of the Ephorate, borrowed from Sparta, goes back to Calvin, and appears 10 the Vmdletae Contra 1)raMos and m AlthuslUs: see E Barker, Church, State and Study. p. 84.
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ties which Fichte attempts to provide against such a contingeocy,the executive authority and the Ephorate should combine against the People, there is still in reserve the legal method of Pr0pular revolt for the purpose of giving effect to the real common Will(7). Fichte attempts in this way to construct a constitutional State, in which the People is sovereign, but the supreme authorities are none the less owners of rights secured to them under a contract [i.e. the contract by which the People devolves an 'absolute positive right' upon the government] (88). But while he makes this division between People and Government, Fichte still seeks to preserve the idea of a single' Subject' of political rights; and he does so by dissolving the People into a mere 'aggregate of individual subjects' so long as the Government continues to act constitutionally(89), and, conversely, by making the magistrates relapse into the position of mere private persons as soon as the People again becomes a 'Community' (go). The personality of the State is thus made to appear at one given point at each given moment; but a personality which is now here and now there, and which alternates somehow between People and Government, is a personality which has lost any substantive or continuous existence of its own. We are hardly astonished to find that any idea of the personality of the Group-being vamshes utterly from Fichte's philosophy in the later pha1>e of his thought, when he abandons the principle of the actual sovereignty of the People(gI). Meanwhile [in the course of the eighteenth century] the theory of constztutzonalzsm had also adopted the doctrine of popular sovereignty as its basis. This was due to the influence of Montesquieu. When he gave to the theory ofconstitutionalism the form which was to prove deCIsive for the thought of the Continent, he incorporated in it the idea, which he had borrowed from English thinkers, that supreme authority belongs in its nature to the associated community(g2). But the principle of popular sovereignty never played any serious part in the theory of constitutionalism. It only served, as a rule, to satisfy a need which was felt by different thinkers with different degrees of acuteness. It enabled them to find, at any rate in the abstract, some single basic authority underlying the' division of powers' which seemed to disintegrate the unity of the State; it provided a sort of primary' Subject', over and above the secondary 'Subjects' who exercised the several 'powers' in co-ordination with one another. This explains why Montesquieu himself fails to draw any practical conclusions from his recognition of the basic
17 The Natural-Law theory
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rights of the community, and why, so far from doing so, he entirely omits the conception of the unity of sovereignty (just as he omits the copception of the personality of the State as a whole) from the pieture which he draws of the constitutional State(g3). In many writers [of the constitutionalist school] the theoretical acceptance of popular sovereignty only produces a crop of political maxims, in lieu of any real junstic interprctation(94). Justi, attempting to reconcile the theory of constItutionalism with the unity of power and will demanded by the Idea of the body politic, lays more emphasis than the rest of the constitutionalists on the indefeasible 'fundamental authority of the People' (95); but he is prepared, none the less, to divide the personalIty of the State, and indeed to divide it twice over. Not only does he make the 'supreme executive power', when once it ha~ been erected, stand over against the People as a separate contractmg party(g6); he also suggests a division of this authority itself among a number of different 'Subjects' (97). In the theory of Kant, the principle of popular sovereignty is still retained, in its full integrity, a~ a theoretical basis(g8), but it is transformed for practical purposes into a mere 'idea of the reason' [or logical presupposition] As such, it ought to guide the possessor ofpohtical authontY(99), but it involves no diminution of the formal nghts inherent in a ~overeignty of the Ruler which finds It~ justification [not in this 'Idea' of the sovereignty of the People, but] in the fact of historical growth (100). Kant sketches, indeed, an ideal constitutional State in which popular sovereignty is nominally present; but no living' Subject' of supreme authority is anywhere really to be found in this State. The 'bearers' of the different powers [legislative, executive and judicial] are supposed to govern, but each is subject to a strict legal obligation appropriate to its own ~phere(IoI); and over them all, as the Sovereign proper, the abstract Law of Reason is finally enthroned (102). The history of the theory of constitutionalism shows how a doctrine derived from the principle of popular sovereignty could produce almost the same results as the other [and apparently opposite] sy~tem of thought which started from the principle of the sovereignty of the Ruler. In the one case, just as in the other, the inviolability of sovereignty, and the unity of the personality of the State, are sacrificed, in order to attain the possibility of a constitutionallaw which is binding even on the Sovereign. In either case, the hotly disputed issue of the possibility of a mixed form of State becomes the centre of the whole argument.
Gierke's Text
IV.
THE THEORY OF THE MIXED CONSTITUTION
Whether such a mixed form of State should be recognised, llJde by side with the three simple forms, was a question which had bf)en constantly in debate from the Middle Ages onwards ( 103). When the point of view adopted was that of the sovereignty of the Ruler, and when the conception of such sovereignty was pressed to its logical issue, the answer was inevitably in the negative. If, on the one hand, a mixed constitution was understood to mean the division of Ruling authority among a number of 'Subjects': if, on the other, indivisibility was reckoned as one of the essential attributes of sovereignty; and if, finally, Ruling authority was held to be identical with sovereignty-then, and upon these conditions, it was impossible to admit that such a mixed form could exist But what, in that case, was the position to be assigned to existing constitutions, the actual fruits of historical development, which did not square with the logic of an e,.clusive sovereignty resident in a single person or a single body of persons? Some thinkers tried to answer the question by pointing to the possibility of a simple limitation of the supreme authority (14), or by attempting, in a way which went more to the root of the matter, to reduce the conception of the mixed consutution(forma mzxta) to that of the moderate or limited (forma temperata) (105). But the more exactly the amount of the limitations compatible with sovereignty was defined, the more was such an expedient bound to prove itself ineffective. If, on the other hand, limIted sovereignty was regarded as an impossible contradiction in terms, the opposite course had to be followed; and [instead of the mixed constitution being placed under the head of moderate or limited constitutions] any State in which the power of the Ruler was constitutionally limited had to be reckoned under the head of mixed States (106). [This was, in effect, to dismiss such a State to limbo.] But it was hardly possible, and least of all was it possible in Germany, that any success should long attend the violent methods of the thoroughgoing absolutists who simply abolished with a stroke of the pen, or treated as of no account, any constitution which contradicted their scheme of political theory. So it was that the doctrine of Pufendorf won its way to general acceptance. According to that doctrine, division of powers is indeed a fact, but a fact which is only the basis of a monstrous and irregular form of State, and not of a forma mzxta comparable
155
to'he simple and unmixed forms. The very essence of the State is contradicted by any institution which vests several persons, or assemlillies of persons, with independent rights of participating in p<ftitical authority. 'Majesty', like the mind, is unum et indzviduum; and you can only distinguish its' parts' in the same sense in which, when you are dealing with the mind, you di~tinguish the mental faculties. If, none the less, a division of majesty actually occurs, it is simply a case of a respubltca zrregularzs, and a State of that kind is a dj~eased or 'perverted' State, like the perverted form of State described by Aristotle, with the one difference that the seat of the disease is here to be sought in the constitution itself, and not in the government onlY(lo7). The doctrme of the master was adopted, on this point as on others, by a number of his successors--among them Thomasius(lo8), J. H. Boehmer (log), Hert(IIO), Schmier(lll), Gundling(rI2), Heineccius(113), and Heincke(114). In time, however, this idea of irregularity came to be modified. It was argued that 'irregularity' only signified a deviation from the strict academic pattern, and dId not prevent the recognition of mixed constitutions as systems which mIght, under certain conditions, be active and even appropriate (I IS). Otto declares in so many words that zrregularttas due to a forma mlxta is not an evil, and that, in Germany for example, It is 'ad gemum popuh accommodata' (116). Titius, again, on the ground that no inviolable rules are prescribed for the form of the State either by nature itself or by the consensus gentzum, seeks to elIminate altogether the distinction ofregular and irregular forms in favour of a distinction between respublzcae adstrzctae and laxae (I 17) We find another school of thinkers attempting to reconcile the conception of the mixed form of State, under one designation or another, with the requirements of the conception of sovereignty, by the method of abandoning the idea of divided sovereignty in favour of the idea of an undwlded partzczpatwn in 'majesty' by a number of 'Subjects'. A view of this nature had already been suggested by Besold; and it gradually won a general acceptance, especially in regard to the application of the theory of the mixed constitution to Germany (lI8). We may notice particularly the serious attempt which is made by Huber to interpret the constitutional State, by the aid of this idea of undivided partnership, without sacrificing the unity of political authority. He regards any real forma mlxta as inconcehable; the State, which is one body and one mind, cannot be the reSIdence of a trtplex majestas. On
156
Gierke's Text
the other hand it is quite conceivable that several 'Subjects', ahd more especially a King and People or a King and Senate, should enjoy majesty in common {communicative or simul). Along with forms of the State in which majesty is only limited there may tklls exist others in which it is common; and among the latter we may again distinguish between a complete commumcatio majestatis (such as may be seen in Germany, Poland and Venice, where it is the basis of a formal soctetas impem), and a mere communuatio quorundam Junum maJfstatzs, which leaves the Ruler in possession of a potestas summa, sed non tntegra(1 19). There were other writers who made similar attempt~ to preserve the conception of the mixed form of State while rejecting the doctrine of division of powers (I 20) It i~ obviou~. however, that methods such as these could only have really secured the unity of the' Subject' of political right~ if the different' Subjects' thus conceived as possessing right~ in common had either been raised to the power of a new moral person, or depressed to the pOSItion of mere representatives of a State-personalIty which stood apart from and above them all. Neither of these cour~es was followed; and the 'Subject' of political authority thus remained divided and disintegrated. But if thel e were thus several' Subjects' of sovereignty, It neces~arily followed, however intimate the community of their relation WIth one another might be held to be, that each of them must somehow be allowed, at the very least, an 'unlimited share' in sovereignty* (12 I). [The fact,; of actual politics favoured such a conclusion.] If dose attention were paid to the actual structure of mixed constitutions, and if the heterogeneity of the functions aSSIgned to the several joint-possessors of sovereignty were taken into account-mdeed, If regard were merely had to the way in which territorial sovereignty in Germany had definitely split away from imperial authority-it became impossible to deny the existence of an actual division of sovereignty, at leas t in regard to some part of the essential rights it involved (122). The result was a gradual process of reversion to the idea of divided sovereignty; and such reversion was not really postponed by the introduction
An unlimited share IS a share which IS not lImited to a part, but is a share in the whole (ef 'unlImited liabl1lty') GIerke's argument is that the theory of undivided partnership in sovereignty breaks down. There has to be a diVIsion of partnership into ,hares, WIth each partner takmg his share. True, the shares of sovereignty may not be separate or dlScrete blocks of rights They may only be non-separate and non-dlScrete shares In the whole system ofnghts. But that much, at the very least, they have to be.
I 7. The .Natural-Law theory
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of-a theory which suggested that the various partsovereigns, though each independent in his own sphere, only possessed a full and elltire sovereignty when they acted in conjunction. This theory is "",pressed most clearly in AchenwaIl; 'In Republtca mixta dantur plures personae, seu smgulares seu morales, quarum cuzltbet competlt certa pars lmperu, vel qua propna vel qua communzs, independenter a relzquzs; kmc plures singulz vel corpora, qut szbz mvzcem sunt aequales et lzhen quoad partem impem cuique competentem. Q,uamobrem zn Republzca mzxta zilz, inter quos dzvisum est impenum, non nzSl Junctim habent zmperium plenum et absolutum' ( 12 3). We can now understand why, in spite afall the attacks delivered against it, the traditional theory still survived that the mixed constitution was simply a clear case of dIVIded sovereignty(124). The objection that this meant the disintegration of the State might sometimes be met by the answer that the State itself remained, after all, the permanent' Subject' of all sovereignty(12s); but this plea of' the Sovereignty of the State' could bear no fruit, and produce no result, so long as sovercignty itself contmucd to be treated as an object divided among a number of different ruling 'Subjects'. Nor was a more satisfactory solution to be found in the distinction between the 'substance' and the 'exercise' of majesty, which Leibniz made the basis of his theory(1261. But the theory of the mixed constitution began to acquire a wholly new vigour when the doctrine of constitutionalism associated it with the principle of a qualltatwe dZVlszon oj powers * When political power began to be differentiated into a number of different powers which were distinguished from one another by their own essential c.haracter, it became possible to hold that a system which assigned these different powerl> to a number of dIfferently constituted 'SubJects' was so far from being prejudIcIal to the interests of the State, that it might even be regarded as mdispensable to its true perfection. As the English constitutIon gradually came to be considered the Ideal, It thus began to be celebrated, from the days of Locke onwards, not only for the merits whIch it derived from its supposed mixture of the three simple forms of State [monarchy, aristocracy, and democracy], but also
III From thIS pomt of VIew the doctnne of constituuonallSm reqUlred a mixed State to exhibit a diVISion, not so much between different quantztzes of power divided among different sets of persons, as between different quahtles or kinds of power-the executive, the legislatIVe, the JudlClal--dlvlded accordmg to theu qualzty among different authontIes appropuate to their special reqUirements.
Gierke's Text
for the clear separation of the different powers which was cen- sequent upon and determined by this mixture(127). Montesquieu openly declared that the union of the three powers in a single 'Subject' was the grave of political liberty, their separatio~ f~ one another its guarantee, and their division among different authorities its proper canon and test (128); and it was because division of powers was most perfectly attainable in the mixed constitution that he assigned this form a pre-eminence over the simple forms(12g). When the theory of division of powers proceeded on the assumption of the sovereignty of the People, its adherents could meet the reproach that they destroyed the indivisibility of sovereignty with the reply that sovereignty itself [as distinct from the various 'powers '] remained undivided in the hands of the People. But the more the doctrine of constitutlOnahsm was pushed to its logical conclusions, the less was it possible for it to invoke the sovereignty of the People. On the strict logic of that doctrine, the permanent sovereignty of the community was supposed to find its one and only expression in the legislative power, and this power was held to be exercised [not by the commumty, but] by its representatives; moreover, it was supposed to be only one among a number of powers which were all equally independent(I30). We can trace the consequent reaction in Rousseau's attempt to prove the genuine and unimpalfed sovereignty of the People. He has, it is true, no objection to a mixed constitution, 1Il the sense of a composite structure of the governing body [a body distinct from the Etat, or sovereign people J(132). Mter all, on hiS pnn( iples, the dlstmction between different forms of constitution is a little thing, a mere secondary distinction between different forms of gouvernement (131). * But he attacks the doctrine of a division of powers [in the State itself] with all his power: it is, he argues, an lIltolerable dISmemberment of indivisible sovereignty(I33). And yet, if we regard tht" substance of his thought rather than the form in which It is expressed, we cannot deny that Rousseau himself is not entirely averse from the prinCIple of the division of powers. Not only does he separate the legislauve power as clearly as possible from the executive: he also advocates the exercise of the two separate powers by two different moral persons (134). He even goes to the length of refusing to allow to the People, as such, any capacity for under.. The change In the order of the notes, here and elsewhere, 18 due change, In the translatIon, of the order of the sentences In GIerke's text.
10
of the State
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.talring an act of government: if it is ever called upon to do so, it must turn itself, in order to act, into a governing body, by the aid ofa transformation which is little short ofa miracle (135). Rousseau mlQ' emphasise as much as he likes the principle that legislation alone is really sovereignty, and that every other function of the State is a subordinate form of service; but he fails entirely, none the less, to prevent [executive] government from assuming the character ofgenuine political authority, or the governing body from acquiring the status ofa 'Subject' of political rights (x 36). The advocates of the radical theory of popular sovereignty after his time came even closer than he did himself to the idea of a real and essential division ofpowers(137). Ifradicalism could thus combine diviSIOn of powers with popular sovereignty, the growing school of constitutionalism showed itself still more ready to succumb to the theory of Montesquieu, which combined the postulate of divi~ion of powers with the conception of the mixed form of State(138). From the mIddle of the eighteenth century onwards the exponents of the natural-law theory of the State, even when they still continued to profess a belief in the sovereignty of the Ruler, were seldom or ever averse from recognising a mixed form of State, with sovereignty divided, in one way or another, among a number of different' Subjects' (139). In Germany, as elsewhere, the mixed constitution was gradually elevated to the dignity of a polItical ideal(14o). It was advocated with especial ardour byJUSti (/4/) and A. L. von Schlozer(/42); and its vogue culminates III the theory of Kant, which denves division of powers directly from the rules of logic, and treats such division as an inviolable precept of the law of reason for every legttimate and really authentic State(/43).
V.
THE CONTRIBUTIONS MADE BY THE NATURAL-LAW THEORY OF THE STATE TO THE DEVELOPMENT OF PUBLIC LAW
This was the end of the natural-law theory of the State. Supporting the cause of the constitutional State, it ended, so far as its conception of sovereignty was concerned, in what was almost unconcealed bankruptcy; It ended, so far as the idea of the unity of the State-personality was concerned, in absolute disintegration. Not until the whole of the individualistic theory of the State evolved by the School of Natural Law had been transcended, and the
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conception of a living Group~being had been elaborated b}) a school of thought which followed the organic idea of historical evolution, was it possible to restore the idea of a sovereign Statepersonality. /' Yet the School of Natural Law had rendered a real service. It had refined the idea of the unity of the body politic into that of a single persona moralzs; and in doing so it had shed a definite and lasting light on a number of problems in public law which ~ere capable of solution by a formal and technical conception of personality. (a) The principle that a moral person was a unity, which continued to exist through all the changes of its parts, produced, or helped to produce, a theory of the continuity of public rights and duties; and it began to be generally assumed that the State re~ mained the same identical' Subject' of rights not only when there was a change of persons or territory, but also when there was an alteration in the form of the government(I44). A further consequence followed. In cases of the division of an existmg State, or the union of several existing States (such cases being held to involve merely 'alterations' of the political situation, as distinct from the complete extinction ofa State), rules were laid down which secured the transference of the rights and duties of the old' Subject' of rights to the new 'Subject' which had taken its place(14S). (b) The conception of the Ruler as Representative of the personality of the State was also useful. A clear dl~tinction could thus be made between the Ruler as a 'Subject' of rights in his representative capacity, and the Ruler as a 'Subject' of rights in his private character. Where an assembly was recognised as Ruler (or as Joint-ruler), the natural-law conception of the persona moralis was applied to it; and the members of such an assembly who enjoyed the right of representing the State (or ofJoining in its representation) were held to do so as a Collective unity, and not as individuals. The rules of the law of corporations could thus be applied to the activities of the wIll of this representative Collective person, and they could be made thereby to regulate the wIllmg and acting of the State itse1f(146). Even more important consequences could be drawn [from the conception of the Ruler as Representative of the personality of the State] where a single person was the bearer of Ruling authority. Here an identity was allowed to exist, either wholly or partially, between the representative persona physzca of this individual and the personality of
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the.state; but two roles or persons were distinguished within the persona physica-that of the Ruler, and that of the private individual (147). This distinction produced a number ofconsequences. It proluced a separation in principle between the sphere of the King in public law, and his sphere in private law (148). It produced a separation between acts of government which were done by the Ruler as Ruler, and were therefore done by the State through him, and his private acts ( 149). It also supplied a principle which could be applied to acts done by officials in the discharge of their official duties; for though use was made of the private-law categories of mandatum and ratzhabztlO* in order to explain the validity of such acts, it was also possible to take the ground that officials represented the Ruler as such-i.e. in his public, as distinct from his private capacity-and to argue accordingly that their acts were really acts of the State itself(I50) Again the distinction between the person of the Ruler and that of the private individual automatically supplied the true principle for solving the old and vexed question, whether the successor was bound by the acts ofhis predecessor(151); though it must be admitted that there was always a tendency to confuse the issue again by introducing principles drawn from the private law ofinheritance(152). Even the unlawful dictator ruling during an interregnum was gradually recognised as possessing, to some extent, a nght of representing the personality of the State, which enabled him to bind the citizens by his acts (154); but the theory of Natural Law generally insisted on the need of legitimation of his defacto position by a sub~equent act ofconfirmation (153). (c) But it was in their treatment of State-property that the natural-law theorists developed their conception of the personality of the State furthest(I55). They drew a distinction m principle between State-property and the property of the Ruler: they ascribed the ownership of State-property to the State itself, and vested the Ruler with nothing but a right of administratIOn: they required the revenues accruing from the property of the State to be applied to public objects, and they made the alienauon of such property depend on the consent of the People(156). There was, it is true, a great deal of difference of opinion in regard to the classification of the different clements included under the head of Stateproperty(157). The demesne of the territorial prince offered a peculiar problem, and there were some thinkers who failed to
habJtJO 15
Mandatum is an authorisatIon of the actIon of an agent in advance. Ratia tenn used to slgrufy a subsequent confirmatIon.
BTSI
II
Gierke's Text
classify it preciselY(ls8); but with the passage oftime even demttilne' came to be included, without any qualification, in the general conception of State-property (159). An increasing precision was also given to the distinction betwl!:en the private-law right of the State to own particular objects and its public-law right of government over the whole of its political territory (160). We must admit, it is true, that it was the theorists of Natural Law who developed an intermediate idea-that of the domzmum emznens of the State, in the sense of its supreme or final ownership of everything; and it was they who applied that idea to justify the interference of the State with private property, especially in the way of confiscation and taxatlOn(161). But while we make this admIssion, we must also note the gradual growth of another view of the matter, which was opposed in principle to including the conception of property at all m the area of the political rights of government (162)
CHAPTER
II:
SECTION
I, 18
THE THEORY OF CORPORATIONS IN NATURAL LAW
1.
ASSOCIATIONS CONTAINED IN THE STATE
The natural-law theory of society included its own particular theory of associations (dze engeren Verbande); and this theory asserted itself with a growing independence, and with increasing success, against the trdditional theory of Corporations to be found in positive law. The basis of this natural-law theory of corporate bodies was common to all thmkers; but the results produced by different thinkers differed, and differed widely, according as 'centrahst' or 'federalist' tendencies were allowed to dominate thought.
* The story of the emperor Frederick I and the two jurISts Bulgarus and Martmus IS to the pomt On a nde together they discussed the question whether the emperor had only Imperium, or whether he had also domimum, over his territories. At the end of the nde the Jurist who contended that he had both of these nghts received the present of a horse. The other consoled himself by remarking, Amui equum, qma dlXJ aequum.
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(I) Divergence of centralist andfederalist views

There .was a difference, to begin with, between the different systp,JIls or schools in regard to the proper grading of associations on the principles of Natural Law. It is true that all corporate bodies alike were in some degree or another brought under the rules of Natural Law by all the different schools. As they were all included under the generic conception of soczetas, they must necessarily all have their place in the general scheme which had been elaborated for all 'societies', and which usually formed the preface to every account of the general natural-law theory of society. But this still left open the question whether, and if so, to what extent, the existence of intermediate corporate bodies between the Individual and the State was an integral part of the natural order of sonety, or an optional and arbitrary institution of positive law.* (a) The balance of opinion inclined to the centrahst view, which at most would admit only the Family-and not the local community (Gemeznde) or the Fellowship (Genossenschaft)-to a separate and distmctive position in the natural-law gradmg of associations. The majority of the natural-law theorists contined to follow the scheme of Aristotle; and in constructmg a hierarchy of natural-law groups they accordingly made the State, regarded as a soczetas perfecta or Slbl sufficzens, follow immediately upon the Family, with its three soclCtates slmplzcest and its !oOCletas composzta (the Household) formed by the union of the three(J). True, the local community [the 'village' of Aristotle] was treated m this connectIOn as a stage on the road to the State; but in the State itself, when once it had come into existence, tIllS community was only allowed the significance of a constituent part or divislOn(2). The FellowshIp, as a soczetas arbztrana, was bamshed altogether from the category of natural groups (3). The result was that the rights of corporate bodies (if we leave out of account the background of natural-law principles which was involved in the inclUSIOn ofsuch bodIes under the general head of soczetas) were treated as merely a part of the
Briefly the argument IS that all the shades of natural-law theory agreed that Natural Law applied to all asSOCiationS, but they were not aU agreed that all assoclahons had been produced by Natural Law. They were thus led to differ about the gradmg ofaSSOCiatIOns-some saymg that all assoCiatIOns were natural; others arguing that some aSSOCIatIOns, at any rate, were artIfiCial m ongm. t That of husband and wife, that of parent and chIld, and that of master and servant.
11-2
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system of civil rights which the State first brought into bein~ If any closer examination of the question was attempted, it was generally in connection with the theory of the position of the subject (Untertan), and it only meant the addition of some accoqnt of subjects when acting as groups to the general account already given of the position of individual subjects(4). The centralist tendency in the natural-law theory of society was strongly accentuated in the theories which, following the lead of Hobbes, identified the formation of human society with the creation of the State, and supposed it to be achieved by previously isolated individuals through the conclusion of a single contract. On this basis it became impossible to regard any intermediate groups, of any description, as natural 'group-steps' standing between the Individual and. the State [and leading up from the one to the other]. They could only be secondary formations which had come into existence within the State, and after it had been created. The natural-law system, as we find it in Spinoza, Rousseau, Justi, Fichte, Kant and many other writers, knows only the Individual and the State. (b) In Germany, on the other hand, there was never entirely extinguished what we may call a 'federalist' point of view. Under its influence, thinkers were able to regard the Fellowship and the local community as natural group-steps in the process of political evolution, with a life and purpose of theIr own; and they could hold that these intermediate groups, even in a fully constituted civil society, had their own inherent existence, which was based upon, as it was also secured by, Natural Law. No exposition of this line of thought whIch was as bold or as logical as that of Althusius was ever attempted again; but the idea of a natural articulation of human society in a senes of ascending grades remained active in more than one quarter(5), and Leibniz gave it a new and vigorous life (6). We may also notice another expression of this federal tendency. The more thoroughly the general natural-law theory of 'societies' was elaborated, the more inevitably was it impelled towards the idea that by Natural Law the Corporation and the State stood on a footing of equalitY(7). The most perfect expression of this tendency is to be found in the theory of Nettelbladt, which exercised a considerable influence. He made a radical distinction, both in natural and in positive law, between the rights of the individual and social rights. Basing the latter entirely on the one conception ofa contract of society, he interpreted the whole world
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ofkuman groups-in all its ascending series ofFamily~ Fellowship~ local community~ Church and State-according to a scheme which was c~mmon to the whole series, and yet left room for a large diversity (8). But there were many other systems, besides that of Nette1bladt, in which the natural-law theory of society was developed, with various degrees ofdefinition, along similar lines (9).
(2) The Telatzon of the Corporatton to the State
(a) Vzews inimzcal to Corporatzons. These differences of opinion about the proper grading of associations on the principles of Natural Law were important for their bearing on the general theory of t.he relation between the Corporation and the State. If the corporative articulation of civ;l society was not derived from Natural Law, it must also be devoid of any sanction in Natural Law. It could only be a part of the sy~tem of positive law, which the State was free to determine by consideratIOns of mere expediency. In that case local communities and Fellowships had no lot or part in those sacrosanct rights which, according to the theory of Natural Law, were derived immediately from the law of Reason, and were therefore above the reach of legislative discretion Their' person' was not, like that of the individual, inviolable by the State, and it was not invested with inherent rights. The obligation which they imposed on their members was not, like political obligation, a necessary and inevitable limitation of natural hberty. They were creations ofhistoricallaw~ but they had no rights under the Law of Nature In the age of EnlIghtenment, * the prestige of historical law increasingly paled before the splendour of the new ideal law; and the more it paled, the easier it was to advance from denying that corporations had a sanction in Natural Law to questioning whether they existed at all. Natural-law theory of this extreme order became a powerful ally of the practical policies which were directed to the destruction of the corporative system of Estates inherited from the Middle Ages. There were now two forces in the field-the State, with its passion for omnipotence: the Individual, with his desire for liberation. They had one thing in common, however hotly they might otherwise wage a frontier-war with one another. They could both use the weapons forged by the extremist
The age of Frederick the Great, Voltaire and the Encyclopaedists.
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natural-law theory to wage a joint battle against intermediate" groups. Even the most advanced of the absolutists did not, at first, demand the elimination of corporations: they only desired strict limitation of their powers. The utility ofa corporative articulation of civil society was not in dispute. But the whole structure of corporations, in their inner life and their external relations, was treated as a product of the State; and the State was urged to pursue a policy of asserting and using to the full its authority over them, in order to meet in advance the menace of group-formation and to remedy its existing abuses Thus the legality of every association was made to depend on a government' concession' (10) : any meeting, including the regular meetings of members of recognised corporations, was supposed to require the permission of a higher authority (I I) ; and all the more important activities of corporate life were made to involve the co-operation of the State(12). Where the positive law in force was contrary to the principles of Natural Law, there was no hesitation m assigning to the State a right to annul or remodel corporations on grounds of public welfare(13). In the same vem, the authors of constItutional Utopias in which the State was constructed on the basis of intermediate groups, instead of connecting their schemes with actual and historical corporations, attempted to secure a rational articulation of the body politic by a purely mechanical division of people and territory (14). Mter the middle of the eighteenth century, and more particularly in France, the attack on the pnnciple of corporate hfe was transformed into a regular war of annihilation. In 1757 Turgot formulated, in its extremest form, the idea which had been developed by the School of Natural Law, that 'moral bodies '_in contrast to individuals, who had rights which were sacred even for the whole community-had no rights at all as against the State(IS). Rousseau, who held that the natural right ofassoClation had been exhausted and abolished in the act of concluding the political contract (le pacte d' assoczatlOn), rejected entirely any idea of the corporative articulation of the State, on the ground that it was a falsification of the general will (16); and he made it an object of policy that all separate societies in the State should be eliminated (17) Revolutionary theory afterwards never escaped from this circle of ideas. The actual policy of the Revolution itself, as is well known, went far towards the achievement of an atomistic ideal, for which the absolute monarchy of the anczen regzme had already
167
prepared the way. In the execution of that policy the natural-law theories which were inimical to corporations played a leading part. They llre to be heard, in every note of their whole gamut, during the famous debates of the French National Assembly on the confisc;tion of Church property (18). The older ideas of positive jurisprudence still found a vigorous expression, even in that body(Ig); but they were overwhelmed in the flood of natural-law arguments, some based on the idea that rights of corporations, in the sense of rights separate from those ofthe State, were simply non-existent (20), and others on the view that any possible right which a corporation might possess, being without sanction in Natural Law, was bound to disappear before the sovereign rights of the State(21). After the ruin of the old historical associations, the problem of reconstruction began to appear. It was recognised that some sort of intermediate groups, midway between the State and the Individual, were after all indispensable; and here a new division of opinion emerged m the camp of Revolutionary theory itself. There were some who exalted the merits of decentralisation, as against an exaggerated pohcy of unity, and argued that there ought to be room for the separate hfe of the parts as well as for the life of the Whole. But the conception of corporatIOns current m the old law of France was stilI anathema; and no conception of associations was really permitted which did not square with the general principle that any division of the body of the State should be made by the State itself, and made for reasons of State. It is significant that Sieyes, who had begun as the most uncompromising advocate of Rousseau's point of view (22), afterwards became a champion of the inviolability of corporate property(23), and ended as an enthusiast for a system of self-governing municipalities (24) ; but it is also significant that he always guarded himself against any suspicion of a desire to restore the old system of corporations (25) The mechanical and mathematical divisions of the State which he suggested as the vehicles of communal life had mdeed very little in common with the old corporations. In Germa~y, as well as in France, the entry of Rousseau's ideas was accompanied by his spirit of hostility to the principle of corporate life. It is true that there was hardly a single writer of any repute who went to the length of advocating the complete elimination ofintermediate groups. But from the middle of the eighteenth century onwards we find the adherents of the pure law of Reason denying that associations possessed an inherent right of existence,
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and advocating a view of their origin which made them entiI'ely State-institutions (Staatsanstalten). Justi includes no corporative elements in his scheme of civil society (26). Scheidemantel attaches great importance to the' societies' (Gesellschaften) in the State; but he denies altogether the principles of liberty of association and the right of meeting (27), and he subjects even authorised societies to permanent State supervision (28). He holds that a society can have rights and responsibilities of its own, so long as it remains within the four corners of the law; but in order that these rights and responsibilities may be kept in harmony with the aim of the State, he makes them depend on its influence and control to a degree which gives them a definitely permissive character, of the nature of a precarium (29); and not content with depriving associations of any sort of autonomy under public law (30), he would even place their property at the disposition of the State(31). He distinguishes public and private societies; but his general treatment of the various species of lawful societies shows a tendency to regard the Stateinstitution as the ideal to which societies should as far as possible conform (32). Fichte banishes the conception of the Corporation entirely, in favour of that of the State-institution(33) Kant's attitude to the old and historical rights of corporations sho\\-s a lack not only of sympathy, but also of understanding; and he does less justice to the importance of associations than any of his contemporaries. He begins by directing his attention exclusively to the institutional element in all permanent forms of union; and he accordingly puts the' Corporation' and the 'perpetual Foundation' (Stzftung) on the same basis(34). Holding this conception of moral bodies, he denies that they have any right to independent exist<.>nce; and he holds that the State has the right, at any time that it thinks proper, to annul them, and to confiscate their property on payment of compensation to their surviving members He goes even further. Arguing that the appropriation of land to the exclusive use of subsequent generations, who succeed to it under particular rules to that effect, is invalid, and contending that any title to corporate possession hitherto existing has now lapsed with the change of public opinion, he refuses to recognise that the property of moral bodies is property at all. It is only a right of temporary usufruct; and thus the confiscation of corporate property by the State is only the removal of a 'supposed' or 'assumed' right (35). Nor is it merely as a matter of theory that Kant claims this competence for
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z69
-thCJState. He obviously regards the dissolution of moral bodies as an actual and practical postulate of the law of Reason; and he is convinced that, in this as in all other cases, the law of Reason shoullbreak with the law of History, and should burst the bonds laidoy the past on the present(36).
(b) Vzews favourable to Corporatzons: especially in the theory of Nettelbladt.
If Natural Law thus supplied the drIving ideas to a movement which was ultimately directed towards the engulfing of corporations in the State, we must not overlook the fact that other and different ideas also continued to flourish in natural-law social theory, and that the growth of such ideas served to prepare the way for a restoration of the liberty of corporations in a rejuvenated form. To pursue the theory of a contract of society to its logical conclusions was necessarily also to arrive, as we have already had reason to notice, at the idea that associations had a natural right to exist independently of State-creation. As a societas, each corporate body was the result of contract; and all such bodies derived their existence, exactly in the same way as the State, from the original rights of individuals which formed the basis of contract. The State might forbid its subject'!, wholly or partially, to form separate societies; but if and so far as it refrained from doing so, individuals were only making me of their natural liberty (and not employing a right which had first to be conferred by the State) when they associated with one another to attain common ends by common means. Positive law might limit corporations ever so strictly; but it could not destroy the sap of vitality which they drew from their roots in Natural Law, and it could not but leave them, to a greater or less degree, in possession of inherent rights of their own, even agamst the State itself. Ideas such as these were assumed as axiomatic even by writers who were among the protagonists in the struggle against the independence of corporations. Hobbes himself had shown the way in this direction, by propounding the doctrine that the contract of society, though it could never produce a new authorzty after the State had once been erected, could still produce new forms of associatlOn. Pufendorf followed Hobbes closely in this respect. When he comes to treat of the vmcula peculzaria which serve in most States to bind citizens together, over and above the general bond of
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political obligation, he first directs his attention to the jMcul;"'iti' corpora CiVltati suhdita (37). Among these bodies he treats the Family, and the Family only, as prior to the State; and he therefore holds that the Family has retained the right to everything which has not , been specifically taken from it. The other associations are posterior to the State; and they fall into two subdivisions-pubhca, or those founded by the sovereign authority itself; and privata, or those which owe their existence to a contract (lpsorum ClVlum conventw) or to some external authority. Private associations can only become corpora legzhma with the consent of the State(38). Whatever right or authority they exercise over their own members depends entirely on the assent of the sovereign authority, and can never acquire an independent title as against that authority (qulCqUld Jurts habeant et qUlcquid potestatts zn sua membra, id omne a summa potestate dejinirz, et nequaquam huic posse oppom aut prevalere). Otherwise there would be a State within a State (allas emm, Sl daretur corpus limltatwni summi impeni cWllzs non obnoxwm, daretur clVztas tn clVztate) (39). The conclusions which Pufendorf draws from thIS subordinate position of corporations, especially in regard to the lImits of the representatIve authority of their assemblies and officers, are similar to those of Hobbes (40). Otherwise, and apart from this limItatIOn, he regards it as a characteristic inherent in the organic nature of the State that the body politic should be constituted by members which are also bodies themselves(41). After Pufendorf, the distinction between soczetates aequales and inaequales begins to be used with a view to attammg conclUSIOns similar to those which he had drawn(42). The equal society is defined as a society without social authority; unequal societies (with the exception of family groups under a paternal authority) are regarded as societies which can only be constituted by a polItical group with a Rulmg authority [i.e. the State]; and the principle is thus attained that though a corporation may eXlst as an equal society in its own right, it can only possess any authorzty, of any kind, in the form of a fragment of State-authority with which it has been entrusted. Hert may be reckoned among the first who used the antithesis of soczetas aequatona and soezetas reetona, with a clear sense of its implications, to explain the relation between the Corporation and the State. He holds that the contract of society is capable of producing a body which is constant through all the changes of its members, and possesses a single personality; but he hastens to add that such a body can never have a 'mind' (Seele) ,
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'anci thereby a capacity for will and action, until there has been instituted a supreme authority [which can give it such a mind and capacity]. Now the only example of such an authority is the political sovereign of the State, who has been instituted by means ofth-e original contract ofsubjection; and the umvemtas must therefore be content to receive any organised form of authority which it possesses at the hands of that sovereign, and as a part ofthe State(43). J. H. Boehmer erected this new doctrine of corporations into a formal system (44). He admits that liberty of association, which existed in the state of nature as an effect of natural liberty, has never been utterly extinguished in civil society; but he holds that it has been limited, and that in two ways. In the first place, collegza can now only be formed as soczetates aequales' they cannot, therefore, create an tmperium: at the most they appoint a manager. If an association could create its own government, there would be a State within a State. A collegwm, in its capacity of a moral person, is therefore subject to the authority of the State, and subject in the same way as its own individual members. In the second place [besides being subject in the same way], it is subject to an even greater degree. Where an association is concerned, a still stricter use of political control is necessary, proportionate to the greater power and the more serious menace presented by such a new person, composed of a number of individuals, when compared with ordinary individuals. On both of these grounds Boehmer would vest the State with a power over corporations sweeping enough to leave hardly a trace of the liberty of corporations which he has begun by admitting in principle. He argues that the bearer of political authority has to take proper measures, in his general policy, to prevent corporations from assummg an authority of their own, and thus becoming small States, or causmg injury to the State in any other way. Moreover, the Ruler has also a number of rights of detail. He has a right, in the first place, to prohibit particular collegza at his discretion, and to deprive them thereby of the Jura personae Civt[zS(45). He can also issue an ordinance in advance, as was done in Roman law, proclaiming that no collegtum will be tolerated in the State which has not been expressly sanctioned; and he is further entitled to create collegta et soaetales himself, as he may think fit, and in doing so to regulate their government, constitution and powers. The collegta publtea he thus creates will henceforth be totally dependent on the authority of the State. More especially, they will be strictly limited in the management of property, since,
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whatever they possess, auctoritate publica possident(46); and the swe: reign may even compel his subjects to become members, and to share in the burdens, of such bodies. Finally, he must also exercise a constant supervision of collegia privata (particularly the' guilds, , with their monopolia et mores pessimi) , in order to prevent their taKing any decision which is detrimental to the State; and he may also prescribe in advance definite limits to their action. On such a view there can be no question of any independence of associations. The way is barred in both directions. Suppose, on the one hand, that a real and effective social authority is recognised as belonging to a local community or a Fellowship. In that case such authority cannot be exercised as an inherent right, because authority is excluded from the idea of soczetas aequalzs [which is the idea constituting these bodies]; and it must therefore be exercised in the name and under the commission ofthe sovereign, as part and parcel of the authority of the State. Suppose, on the other hand, that a corporation acts in its own inherent right. In that case there is only a contractual obligation of the members [to accept its authority J and nothing more; and even so the State is still entitled to avail itself of its suzerainty over corporations to interfere and impose limits on their action, or to reserve the right of previous assent. '" True to the logic of his ideas, Boehmer rejects altogether any idea of corporations legislating (47), or judging(48), or administering (49) for themselves. He even refuses to allow the validity of the conception of corporate office (So). Ifwe add to this the defenceless position in which he leaves any privilege granted to corporations(SI), and the strong inclination which he shows to hand over their property to the Statc(S2), we cannot escape the impression that Boehmer has travelled from one pole to the opposite. Basing himselfin theory on the idea of the liberty ofassociations, he comes to a practical conclusion in favour of their absolute subjection. When the antithesis between SOcletas aequalzs and inaequalzs had been developed to such a point, it became possible to use a naturallaw basis of argument as a lever for ~ecting the law of corporations entirely from the sphere of public law, and removing it into the sphere of private law. If public law were defined as the system of rules relating to government, and if, again, associations were held
Briefly-if an association exercises real authority, it does not do so in its own right; and 1f it exercises authority in its own rrght, it does not exercise real authonty.
173
-to be incapable of producing any government) it followed that public law was concerned with associations not as active 'Subjects), put as passive' Objects)) and only dealt with them in so far as it.dealt with the rights of governing authority over them; and on this it followed in turn that the rights which belonged to corporate bodies must be merely rights at private law. This is the line of argument followed by J. H. Boehmer. He explains the distinction between jus pnvatum and JUS publtcum by the fact that in the status cwtlts all actzones are either prtvatae or publicae) and therefore need different normae. He then classifies a<; actIOnes privatae the acts of CLVes ut stnguli, the acts of smgula corpora ut prwatl, and the acts of the Pnnceps qua prwatus; while he limits the category of actlones publtcac to the acts of cwes qua membra RClpubltcae and the acts of the Pnnceps qua talts(53). Logically enough, on thIS basis, he can only find a place for the theory of associatIOns, in his' System oj General Publtc Law', under the heading of 'the State's control of corporations and churches' (54). Tltms goes further stdl; and he never mentions local communities or FellowshIps or Churches except in connection with pnvate laW(55) The du,tinctlOn between public and pnvate law generally continued to be drawn on sinular lines by later writers (56). From another point of view, we find the distinction between 'equal' and 'unequal' societies helpmg to provide a bridge of transition from the natural-law theory of the contract of society to the Roman-law theory of corporJ.tIOns. It only needed a further development of the often expressed idea, that a group could not possess full personality untIl It acqmred a representative Ruling authority, to bring the natural-law dl<;ti netion ofsoczetatesaequales and maequaleJ mto line WIth the Roman-law dIstmctIOn between soclrtas and unwerslfas; and when this had been done it became possible to argue that whIle the contract of SOCIety might produce a societas, or partnershIp, It was only the influence and action of a political authority that could explain the eXIstence of a corporation, or universztas. This is the hne followed by Huber, for example, when he develops the particular theory of unweTsltates which forms part of his general theory of the State(S7). He begms by describing the umversztas as a body of persons, being neither a Family nor a State, who are united for the sake of a common advantage and provided with a definite system of government (reTtus regzmtnlS ordo). He emphasises the element of certum regzmen as the essential attribute which distinguishes a universitas from a socIetas (58); but he equally
174
Gierke's Text
makes it a reason for requiring that, before a universitas can c6lne into being, the sanction of the State, from which it receives a government of its own, must first of all be obtained. NQr is he content with arguing that a corporation only becomes such il\and by this act of the State. He proceeds to make the definite permission (or 'concession ') of the State a necessary element in the idea of the universztas (which, incidentally, at once excludes the Family and the State from that category); and he accordingly includes the fact of such permission in the more precise definition which he finally gives (coetus ... sub certo regzmzne permlSsu summae potestatis ad utzlztatem communem soaatus) (59). In explaining the relation of the Corporation to the State, he applies throughout the two ideas (I) that a corporation can act in its own right only within the sphere which it has in common with a soczetas, and (2) that the orgarused authority, which distinguishes a corporation from a soczetas, can only be exercised by its bearers in the name of the sovereign, and by virtue of a commission given and defined by that sovereign(6o). Huber's exposition of the subject is repeated, sometimes in his very words, by Schmier(61)-and this in spite of the fact that, in an earher passage of his treatise, he expresses his agreement with Boehmer as regards the recognition to be given, and the limits to be assigned, to the rights of association which spring from' natural liberty' (62). Statements which approximate to Huber's point of view are also to be found in other writers (63). In general, however, the adherents ofthe School of Natural Law, far from following the line of thought which we have just described, departed further and further, as time went on, from the Roman-law conception of an essential difference between soczetas and unzversztas. In particular, the German thinkers who applied themselves to the systematic construction of a natural theory of society were so far from accepting that conception, that they directed their main effort to attaining a homogeneous conception of all forms of society, which would obliterate any line of division between partnership and corporation. This tended also to eliminate the artifiCial distinction which had hitherto been drawn between equal and unequal societies. Such a distinction lost its significance as soon as it came to be held that the very simplest form of society already contained the elements of which all groups were composed, up to and including the State. At any rate it ceased to oppose any further obstacle to the rise ofa more liberal view, which would be ready at need to broaden the basis of the inherent rights
18. The theory
of Corporations in Natural Law
175
thet!retically recognised as belonging to associations in relation to the State. The Jlctual development of the natural-law theory of society corresponded to what we are thus led to expect. The emphasis whicII they laid on the homogeneity of all societies really led many of the exponents of that theory to adopt a more favourable attitude to the idea ofthe independence ofcorporate bodies. The status which Leibniz assigns to local communities and Fellowships in the general hierarchy of groups depends entirely on the assumption that they possess an inherent social authority; and though he introduces the distinction between equal and unequal societies, his view remains unaffected by it(64). Wolff definitely lays it down that the contract of society produces of itself, in every society, an initial tmperium of the body over its members (Jus umverszs competens zn smgulos); and he reduces the distinction between the soaetas aequalts and the soczetas maequalis to the simple 1.ct that in the former tmpenum remains with the body itself, and in the latter it IS delegated by it(6s). On this basis the autonomy of the body, and its jurisdiction over its members, are both conceived as Inherent rights, necessanly issuing in some degree from the nature of a society (66) ; and the control of the State over corporatIOns IS regarded as derived, not from the fact that the authority of a corporation comes from the State, but from the general power ofsupreme control which belongs to the soverelgn(67). We find smular views in regard to the baSIS of the au thonty of corporations, and that of the control of the State over corporate bodies, expressed by S. Cocceji (68), Heineccius (6g) and Daries (70). But the greatest exponent of such views was Nettelbladt; and he developed them into a comprehensive system, in which the idea of the liberty of corporatIOns finds full expression. He was the first thinker who drew from the old axiom, that social entitles had a sanction in Natural Law, the new conclusIOn that all SOcletles, like all individuals, had inherent natural nghts. In his view the basis of the existence of a soczetas is the umon of anumber of men to form a moral person, for the purpose of attaining a common object which is not transitory, and not concerned solely with rights of property, by means of a social constitution (an znterna constttutw, which serves as the polttta socutatls). Such a consoClatzo may, he believes, arise naturally, or it may be created by a 'third party'; but it may be also produced by the free will of the members, and
76
Gierke's Text
in that event the means by which it is achieved is a contract' I~ whatever way a society comes into being, it brings with it into the world certain rights of its own, so that henceforth we must ,. dis. tinguish within it between jura personae moralis and jura singulorum. Its own rights, being Jura socialza sive collegtalia, are derived ex natura socutatis, and therefore ponuntur posita societate; but in societies (as also with individuals) original and inherent rights may receive an addition In the shape of acquired rights, or jura sodetatts contracta. The' substance', or essence, of Jura socialza is the potestas societatts: the' exercise' of such rights is the regtmen societatzs. Social authority (potestas societatts) can assume different forms in different kinds of societies: it may be summa, or it may be subordmata; and any original authority may also be further increased by the addition of acquired rights. In a voluntary soctetas, quae 5zhz tpsz origmem debet, the pnmary 'Subject' of social authority is the societas ipsa: in a natural SOCIety, it is the' Subject' determined by nature itself: in a soctetas per altum comtt/uta, it is the constztuens. It is possible, however, for social authority to be transferred, in sub stance or in exercise; and consequently, while it always belongs to its original holder as a perfeLt, unlimited and proprietary right, it may be vested lD the subsequent holder as a nght whIch is im perfect, limited, usufructuary and non-transferable. Impenum, or the JUS dmgmdz actlOnes membrorum SOCletatzs so far as the welfare of the society may demand the curtaIling of liberty, is only a part of social authonty. There is therefore no tmpenum WIthout soctetas, as, conversely, there is no soczetas without tmpenum. ImpeTlum includes the power of punishment. For the rest, the total authority exerCIsed by any society includes three general powers-the directorial (rectona), the supervisory (znspectorza) and the executive (executorza), besides such special powers as the obj ect ofa society rnay require (7 I). When he proceeds to consider and classify the spectes soczetatum, and to draw, in the process, a distinction between the 'equal' and the 'unequal' species of society (72), Nettelbladt is obviously precluded, by the basis which he has adopted, from explaining the difference between these two species by the presence or absence of a social authority. Upon his view, social authority is equally present in both. [The difference between them must therefore be explained, not by the presence or absence of social authority, but by a difference in the residence of such authority.] In a societas aequalis, the authority does not belong to one of the members, or to a part of the members, who exercise it over the rest; it is the property either of the whole body itself (penes omnes stmul sumptos)
The Period from I650 to I800
177
or if an extraneus. If the society has constituted itself, there is a presumption in favour of the rights of the members generally: if it had been constituted by a third party, the presupposition is in favour~fthat partY(73). In a societas maequalzs, on the other hand, one t>f the members, or some part of the members, may properly exercise authority, either limited or unlimited, over the whole body; but it is also possIble for a soczetas znaequalzs zmperfecta to exist, in which some of the rights of social authority remain wIth the whole body of the members (74). The further development of Nettelbladt's argument leads him to the view, that the Jura soczalza soczetatzs which are derived from the nature of a society may be held to include all the nghts which we now describe by the name of 'internal nghts of corporations , (75). This is a view which he stIll continues to maintain, as a general principle, when he comes to describe m detail the relations between associations and the State But there are certain modifications [of thIS general view], which result from an applIcation of the general principles of Natural Law regarding the subordination of societates mznores to the soczetas major many sorzetas composlta. The nature of these modIfications dlfTers considerably, accordmg as the connection between a contained assoClatlOn [or mmor socIety] and the body pohtic [or major sonety] IS close or 100se(76). In this connection Nettelbladt dIstinguishes five mam kinds of socutates. The first is soczetates publzcae 11l sensu emmentl tales, which are regarded as including' colleges', such as Estates, which possess, in whole or in part, the State-authority itself(n). The second IS soczetates quae sunt rnaglstratus, that is to say collegIate magistracies or boards. These are bodies created by the SovereIgn for the exercise of functions of government; and therefore the rights whIch any such body possesses (ItS Jura soczalza) are by the nature of the case, and apart from any question of theIr being taken over into his hands, the rights of the Superwr(78). The third is soaetates publzcae stnde sic dzctae, which are constituted by the Sovereign fOJ other objects of general and public welfare, ann are only dlstmgUlshed from magistraCles by the lack of coerClve authority (79). The fourth IS umverSltates personarum, or in other words local communities and other communal groups, which are ahke in drawing their origin from an act of State-authonty, but which may. none the less, have very different constitutions (80). The fifth and last IS soczetates pnvatae in republzca, or voluntarily formed 'Fellowships', quae szhz ZPS1S originem dehent, szcque publzca auctOlltate zntervenzente non sunt
llTJlI III
Gierke's Text
constltutae. Their creation is permissible-so far as their objec;-t is' not in itself improper, or incompatible with the position of a subject-in virtue of ms libertatis subdttorum civzlis; but, at the same time, 'confirmatto seu approbatw Supenoris utilis, non necessaria est'. These 'private societies' possess a social authority of their 'own, in all matters of dispute, as soon as they come into existence; and this authority includes not only the general jura socialza already mentioned [i.e. potestas Tectona, znspectona and executoTia], but also the special rights which their particular object requires (BI). But they still remain subject to State authority in any case of doubt. True, the Sovereign has no Jura societatis by virtue of which he can control them' he has only the Jura m potestate cWllz contenta; but the effect of this is that their own Jura societatlS . .. eatenus subordmata sunt potestatl cwilt, quatenus salus Reipubllcae ld regumt (82). There are, however, two ways in which this normal position [of private societies, or voluntary FellowshIps] may be varied. On the one hand, corporations may be llberae, and as such exempt from the general suzerainty of the State over corporations; they may even be pmnleglatae, and as such own rights of political suzerainty themselves, as their own JUS propnum (83). * On the other hand, and in the opposite sense, the political Sovereign may himself pos~css the potestas soczetatls in and over a corporation. Before he can possess it, however, he must have a proven and particular title to such power, as distinct from the general power which belongs to his position as Sovereign: he must have, e.g. a title arising from delatlO a socletate, or from devolutlO. Even in such a case polItical authority and social authority must contmue to be distinguished; and a clear line of division mus t always be drawn, even when they are personally united, between JUTa majestatlca and Jura collegzalza(84).
There is hardly another system of Natural Law which can be said to contain so full or so logical an exposItion of the theory of associations; but views of the same general character were very commonly held. Achenwall, for example, tries to distinguish between the inherent and the acquired rights of societies; and he seeks [in dealing with inherent rights] to show that associations have a social authority of their own(85). The same is true of Hoffbauer(86). He relies largely on the views of Nettelbladt; in par E.g. a guild or fratermty may be Mera; and a chartered company (suc-h as the EnglISh East India Company) may be prtlJlleglata. and exercise rights of pohtlcal suzerainty as jura propna.
The Periodfrom 1650 to 1800
179
ticular, he repeats his division of societies into those which are 'public', and constituted by the State itself for political objects, and those which are' private societies', created by the citizens of the St~te for the attainment of their own private objects. He proclaims an express' right' of the citizens to unite in private societies, provided that their object is not m contradiction to that of the State, and to determine freely the constitution ofsuch societies (87). There were other writers towards the end ofthe eighteenth century, and among them some of the sternest individualists of the time, who proclaimed liberty of assoclatlOn as one of the fundamental natural rights of the IndIvIdual, and espoused its cause against the encroachments of political authority. A. L. von Sch16zer, for example, can WrItc-' In the general society, individuals may emerge who are engaged 10 a similar effort to attain human happ1Oess. A number of them WIll associate and form a group, if they believe that they can attain a lawful object, by that means, more effectively than each of them can attain it for hlmself. ... The great SOCIety must not only allow such groups to ari!>e; It must also protect them: the ideas and the acts of each guild are only a matter of concern to the general society, in the sense that they ought not to run counter to the CIVil contract' (88). W. von Humboldt was no le~s ardent a champion of the right offree association. When civic co-operation was really necessary, he argued, the free ... group was preferable to the politIcal 1OstitutlOn as a means of deahng WIth all objects other than that of public security, and, in particular, for the purpose of promotmg the advancement of general welfare, religion and morality (89). Side by side with this current of ideas inspired by Natural Law, we may also trace another movement of reaction against Stateabsolutism and against Its enmity to corporations-a movement which was based on historico-politlcal grounds. The notion had always survived that the well-being of the social system required, not only that the life of aSSOCiations should be harmoniously coordinated With that of the Whole, but also that it should be free and independent withm the hmits of Its own sphere(go). Montesquieu expressly advocates the preservation of privileged corporations and their medIatory functIons in a monarchical form of State, because their destruction inevitably perverts monarchy into despotism(gI). In Germany Justus Moser is conspicuous for his struggles on behalf of the liberty of corporations. In his historical review of the misfortunes of his country, he never fails to celebrate
Ill-II
I>
180
Gerke's Text
the strength and the vigour of the old Fellowship-life, or to lament the days of its suppression (9~); and he draws the political moral, that a free and powerful community is inconceivable in the absence ofa firm foundation in corporate life. In the strength of this' belief, he espouses the general cause of liberty of associations against' the dead level of legislative uniformity (93). He champions theIr independence: he even goes to the length of advocating the Isolation of local communines, and of gul1ds and crafts, behind the barriers oftheir locality and class (94) ; and he recommends a fresh formation of FellowshIps on the lines of voluntary association (95). 'Daily we see', he prophetically proclaIms, 'what great things can be done by corporations, societies, fraterrnties and all such sorts of association' (96).
(3) The natural-law conceptIOn of the mternal nature of CorporatIOns, as affected by the fact of thezr znclwion zn the State
Ifwe turn, m conclusion, to enquire what was the natural-law conception of the znternal nature of corporations, the answer is largely to be found in the account wmch we have already attempted to give of the natural-law theory of Groups in general. We have still, however, to trace the apphcation of this general theory to local communitIes and Fellowships in one particular respect. How was that theory modified, when It was applied to these bodIes, by the fact of their being included in the State? In seekmg to answer this question, we must begin by distmguishing two different tendencies in the natural-law theory of Groupstendencies opposed to one another, and yet meeting or intersectmg at a number of points. One of them led to the elimmatlOn of any idea of the real rights of corporations, m favour of a conception of the Corporation which made it purely an Institution (Amtalt) the other tended to encourage thinkers to reconstruct a belief in the inherent rights of corporatIOns, by the aid of a conception of the nature of the SOCIal group which made it a Fellowship (Genossenschaft)
(a) The CorporatIOn as an Instztutzon (Anstalt). A view ofcorporations as being ofthe nature ofInstitutIOns [and therefore State-created] necessarily ensued (in spite of all preliminary assumptions about the natural basis of soczetates), as soon as thinkers ceased to regard an act of agreement among its members as sufficient to explain how a societas could become a corporation,
The Periodfrom 1650
UJ
1800
181
aItd began to argue that the only force which could explain the existence of a corporation was a Ruling authority imposed from above. and imposed from without, upon the soczetas. '{his was the obvious tendency of a theory which had been developed in connection with the teaching of Hobbes. This theory. involves two postulates. In the first place, the unity of a group's personality is made to depend entirely on the 'representation' of all its members by a single person or body of persons; in the second place, a 'representative' power of thIS order is held to be inconceivable, and inadmissible, so far as regards any group which is included in the State, except In the form of an emanation from the authority of the State. lOn this basis, any corporate group with a single personalIty will be entirely a State-created Institution.] But even in the more moderate theory of Pufendorf, the institutional element [if it IS not everything] still plays a deciSIve part in determining the nature of corporations. We may admit, indeed, that his persona moralzs romponta 1'> made to Involve, as the condition of its eXIstence, a prevIOUS union alreddy adueved on a voluntary baSIS, and held together by the internal ties between its members. But we must aho notice that it only acqUIres the character of a genuine unity, able to will and act a~ such, by the addition of a representative Ruling authority; and so far as regards all corpora cimtatl subdlta, this authority must proceed from the grant and concesSIOn of the State(97). At the same tnne it has to be added (as we have already had occa~ion to notice) that Pufendorf does not push his principles to theIr full and proper conclusion; and instead of keeping his [original] Collective and hI'> [added] Representative umty in close connectIOn wIth one another, he allows them to become detached. The result is that when he comes to treat of the property, the legal proceedings (negotza Jundlca) , and the delicts of the UniVerSItas, he often falls back upon tradItIOnal views and expressions which really imply the prInCIple of Fellowship (9 8). * The disciples and successors of Pufendorf arc under the influence of similar views [but some of them depart even further from the InstitutIOnal idea of corporations]. Going back to the idea that a Collective unity has a substantIve existence of its own, and willing to allow that even a mere partnership already possesses a moral personality, they are more inclined than he was to apply a purely
In other words, he leaves out of account the need of representation of the group, and assumes that, Simply on Its collective Side, It can hold property, conduct legal proceedmgs, or commit delicts.
Gierlce's Text
partnership view of corporations, at any rate in interpreting the legal position of corporate bodies in those connections where the presence or absence of a corporate authority is immaterial (g!V. Thjs is particularly the case with Gundling and Hert(roo); and we ,find ~both of them, therefore, more prepared than previous thinkers to abolish any real line of division between corporation and partnership (101). Huber follows a different line. While interpreting the naturallaw theory ofsociety at large in the light of the traditional [Romanlaw] theory of corporations, he also seeks to maintain a view of the Corporation which separates it clearly from other groups. He takes great pains to distinguish it from other forms of groupingfirst from the State and the FamilY(lo:2); next from the ordinary [voluntary] society or community (103); and finally from institutions which are without a constitution of their own(I04), and from collegiate magistracies which have no particular and specific purpose(los). When, however, he comes to discuss the rights and duties of the Corporation [he seems to alter hi~ ground; for here] he avails himself largely of a distinction between two totally different elements which he regards as being involved-the element of a 'society' or partnership which rests upon its own basis, and the element of an 'institution' which is Imposed on that society. In explaining the rights and duties of the Corporation which fall within the area covered by the contract of society [i.e. the area, corresponding to the first of these elements], he applies the idea of a purely Collective group-personality, using for the purpo<;e the relevant doctrines [about SOCletas or partnership] in the theory of the civilians (106). In explaining the rights which fall within the other area [i.e. the area corresponding to the element of the 'institution'], where the dominant notion appears to be that of a Whole superior to its individual members, he adopts the idea of a sphere of authority derived from, and delegated by, the sovereign power of the State(I07). Ifwe consider separately the two sorts of elements which are present in a Corporation, he proceeds to argue, we shall say that those of the first sort are not generically different from the elements present in a simple societas(108), and that those of the second sort are the same in kind as the elements present in any collegiate magistracy instituted by the State(Jog). If, however, the two are brought into union (a union which, it must be admitted, remains purely external), the product, in his view, is a structure which is suz genens-that of the Universitas. Views of a
183
siJ!lilar character, though not always so clearly or so definitely expressed as they are by Huber, may be traced in other writers, who s,ek to transplant into Natural Law the distinction drawn by positive law between the soczetas and the universitas(lIo). The ultimate result of such views is that the Corporation is treated as being, at one and the same time a Fellowship, in the sphere of private law, and a State-institution, in the sphere of public law(lII). The same result was also attained, on the basis of pure Natura] Law and without any reference to positive law, by thinkers such as J. H. Boehmer and his successors, who made the rights of corporations issue primarily from the conception of the societas aequalis, interpreted as a society which possessed no social authority. It was possIble, along this line of approach, and by using this idea of the natural society of equals (In a heightened form which made it tantamount to a Fellowship), to find a source and a justification for such rules of the law of corporations as presupposed nothing morc than a mere union ofMany to form a One(I 12). [But this was all that was possible.] When it came to explaining the existence of a real corporation, with a real capacity for hfe and action-a thing which it was impossible to conceive in the absence of an organised group~authority-these theorists found themselves forced to take refuge, after all, in the idea of the State 'institution' (II 3). ~ A different situation arose if the assumption were made that even a socutas aequahs did possess social authority, or if, again, it were admitted that a contract between subjects of the State might have [of itself, and without any intervention by the State] the effect of producing a soczetas inaequalzs. But it is to be observed that even those who ach.,ocated the liberty of corporatIOns most ardently on this basis were content to limit theIr actual application of the pure' Fellowship' principle to the groups which they called by the name of 'private societies'. 'l)ublic societies' were ascribed by these thinkers to an act of State-creation; and local communities were accordingly treated in their theory as essentially Stateinstitutions (I 14). The extremest form of a purely 'institutIOnal' conception of corporations was that which finally appeared, as the basis of attacks on the very existence of all corporations, in the militant theory which spread from France over Europe(J 15). Hatred of the Corporation was primarily based on the revolt of the individual against the yoke of obhgation imposed on him by his predecessors;
GiMke's Text
and an exclusive prominence thus came to be given to this factor of obligation, which the Corporation possessed in common with the 'Foundation' (Stiftung)."" Many writers hardly drew aJlY distinction at all between the Corporation and the Foundation (~ 16) ; ,and Kant definitely treats the Corporation as only a secondary species of Foundation (I 17). Even among the most ardent panegyrists of free association there are some who frown on all true corporations, because they regard them as being, in the same way as 'foundations', a control of the living by the dead (118).
(h) The Corporatton as a Fellowshtp (Genossenschaft), especially in the

theo~
0.1 )\(ettelbladt.
Turning to the other of the two tendencies we have mentioned, we have now to trace the- emergence, in the School of Natural Law, of a 'Fellowslup' view of the Corporation. The vogue of such a view depended on the extent to which the legal position of corporations was interpreted as the result of a voluntary contract of society. Up to a point, as we have already shown, this Fellowship view was the inevitable result of the natural-law theory of society. The natural-law theorists alway., held that a simple contract of partnership possessed in itself a cohesive force (an element which was absent from the conception of SOCietas entertaIned by the civilians) capable of holdmg individuals together In a unity which persisted in spite of any change of membership. This view attained increa:.ed significance when a Fellowship group of thiS nature [I.e a group with a unity which was not affected by any change of membership] was recognised as something more than one of the constItuent elements in a full and complete corporation, and was regarded as capable of being, by itse-lf and without the additIOn of any other element, a real if imperfect 'Subject' of rights Such a line was very generally followed in the German theory of Natural Law. Even Huber, in spite of his inclination towards Civilian theory, recognised that a society could already be a moral person before it had attained the position of a unwersltas(llg). The theory of Pufendorf, too, was more and more modified in a direction which led to the recognition of purely 'Collective' persons, side by side with those Group-persons which had attained their full development through the addition of a 'Representative' unity(12o). Finally, we find a frank and unqualified admission (for which
E.g. ecclesiastical foundations, or, agam, economic foundations With exclua,Ive rights, possessing some foem of monopoly.
The Periodfrom 1650 to 1800 185 HcI1: and Boehmer had already set a precedent) that a societas
aequalis, in spite of the absence of any social authority, is none the less a p'ersona moralis(121). Here, at last, a purely Fellowship form of group-unity is really made to take its place, in general theory, by the side of the 'institutional' corporation. But this Fellowship. form of group-unity still lacks the essential attribute of a genuine corporation. If it has the quality of being a moral person, it shares that quality indiscriminately with all forms of community in which the members can conveniently be regarded as possessing rights or duties 'jointly' (znsgesamt) (122). It cannot develop into a Whole which is something more than its members. This Collective person, after all, is only what in Germany we nowadays call the 'joint hand' (gesamte Hand) * But the natural-law theory of society had further conquests to make; and it eventually succeeded in buildmg, on its own foundation of a voluntary contract of society, a real Fellowship possessing the rights of a full corporation. That achievement became possible as soon as the actIOn of subjects ofa State, in concludmg a contract between themselves, ""as admitted to have the power of producing a social authonty. Thinkers who made that admIssion were ableat any rate in deahng with Fellowships which were due to deliberate action-to broaden the rights of the simple soczetas into a comprehensive system of corporate rights without introducing any added element of State-' institution'. ThIS wIll explain the rise of an influentIal Fellowship theory, which in Germany owed its foundation to Wolff, but which passed from him into almost all of the systematic treatises on Natural Law after the middle of the eighteenth century(123). The most elaborate statement of this theory is that which we find in the wntmgs of Nettelbladt. His teaching has an added and speCIal interest, partly because he supplements his statement of Natural Law, at every point, by a corresponding statement of positive law, and partly again became, in the course of adding this supplement, he steadily seeks to apply in detail the same general leading Idea-the idea that the relation of the rules of positive law to Natural Law, which immutably fixes the principle of such rules, must be mainly of the nature of executive ordinance(124).t We shall thus be justified in using his doc On the gesamte Hand see MaItland, Collected Papers, III, pp. 336-7. It is a
form of 'jomt ownership', stronger (m the sense of havmg less flavour of indIvIdual nghts) than our EnglISh 'jomt ownership'. t In other words, pOSItIve law must be related to Natural Law much as 'statutory orders', or 'reglements d'admmlStratum publJque', are related to legislation.
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trine, which may be regarded as typical, as the basis of our accoilnt of the [eighteenth-century] natural-law theory of the Fellowship. We have already seen that Nettelbladt and the other writers of (his way of thinking are under the influence of a view which resolves the existence of a group, in its internal aspect, into a sum of individual relations, and yet at the same time consolidates it, in its external aspect, into a persona moralis possessing rights and duties in the same way as an individual(12S). In accordance with this view, they begin by assuming that the internal rights of corporations, so far as they possess inherent validity in relation to the State, * are entirely the result of contractual agreements. The basis of such rights is the original contract for the formation of a society, which already brings into being a more or less comprehensive social authority (126). The authonty so created, though it actually contains all the elements ofa genuine corporate authonty, is juristically speaking no more than a contractually constituted sum of individual rights, and it therefore denves its power from a continuous act of assent on the part of the associated members (I 27). In itself, such authority belongs to these members only, in their totality( 128); but it may be transferred, hy a further contract, either in whole or in part, to a smgle or a collective person (129). If this is not done, and if the society thus remains a soczetas aequalts, all the members as a whole are still entitled to exercise social!: authority; and on this it follows, first that every exercise of such authority properly requires a fresh contractual agreement of wills among all the members, and secondly that, if a majority-resolution is allowed to count as commums consensus, or the action of representatives is reckoned as the action of unzversztas lpsa, this can only be the case in virtue of a previously made and unanimous agreement to that effeLt(130). In addition, there are also special contracts to be conSIdered. A special contract is necessary to enable new members to be accepted, and to make possible the alteration of personnel which such acceptance involves (131): similarly the exclusion of previous members can only, as a rule, take place by way of a similar contract (132); and in the same way, again, the appointment and authorisation of the officers of a society always depends upon the conclusion of contracts to that effect(133). None the less, and although it is thus constituted merely by
There may be some internal rights of Corporations wruch are given by the State, and do not therefore possess' mherent vahdlty' in relatIOn to the State.

cODtractual relations, a Corporation, in virtue of the union of powers and wills which is produced by the various contracts, becomes a single Group-person in its external relations; and as a persona moralzs, it stands on a level with the Individual (although it is not in itself an Individual), and it is therefore included in the general scheme of the rights and duties of sznguli (134). This last idea is one which we find particularly applied by Nettelbladt, and applied both in treating of natural and in treating of positive law. The method which he follows in dealing with jurisprudentia socialis [or the law of associations] is to begin by developing, in a first section, a general theory of associations, and then to proceed, in a second section, to a systematic exposition of the methods by which the law relating to the rights of individuals can be applied to 'societies'*(13S). In his treatise on Natural Law, he begins this exposition with the theory of act') (Handlungen); and here he starts from the axiom that the soczetdS has to be reckoned as the author of any actio which volente soaetate edlta est. ThIS, he argues, is the case [i.e. an act really has the will of a SOCIety as Its author] (I) so far as concerns unequal societies, or equal societIes not having anypotestas of their own, 'quando supenor harum soczetatum Vl potestatzs szhz competentzs hoc vel illud fieri vel non fim voluit', and (2) so far as concerns a soczetas aequalzs havmg power of its own, when any act' ex concluso socletatzsjit vel nonjit'(136). Ncttelbladt is thus led to insert, at this !>oint, a detailed theory of the acts of corporations. In its course he not only succeeds in making the Law of Nature explain nearly every one of the maxims [m regard to the acts of corporations] which had been developed by the civilian lawyers in the course of centuries of effort; he even lays down subsidIary rules of Natural Law in regard to matter'> (such as differences ofvotmg power, the greater weight of the vota samora, and the method oftaking divisions, or ltzo m partes) which, as he himself admIts, essentially depend on positive law(I37). In his other treatise, where he states the positive law on these matters, he has left hIm~elf little to add; but it is noteworthy that he pronounces the treatment of a unzversztas as a mznor to be entirely a rule of positive law(I3 8). Other writers on the Law of Nature show a similar inclination for dealing in considerable detail with the theory of corporate
Nettelbladt wrote both a Systema of general Natural Law, and a Systroza of general pOSitIve [German] law. In both treatISes alike, when he comes to treat of the law of associations, he follows the same plan-wntmg a first section on the general theory of associatIOns, and then a second section on the applIcation of the rights of individuals to associations.
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actS(I39). It has already been shown, in a previous section, that" the fiction of a unanimous agreement in regard to the taking of future decisions was constantly used as a way of reconciling the validity of majority-decisions with the idea (still firmly h~ld as a matter of principle) that any unity of a number of wills must necessarily possess a contractual character. It has equally been shown that majority-decision was steadily degraded to the position of a mere exception from the general requirement of absolute unanimity, which had come to be regarded as properly applying also to the acts of corporations [no less than to those of public deliberative bodies] (140). Here we need only draw attention to the fact that natural-law theory was inevitably forced, by following this line of argument, to confine the majority-pnnciple within the narrowest possible limits, and (more especially) to extend the scope and to emphasise the inviolability of the Jura singulorum which were regarded as sacrosanct from the rule of number(141). Returning now to Nettelbladt's expO'lition of the application of the rights of individuals to 'societies', we are next confronted [after he has concluded his theory of the acts of corporations] with a view of , things' (Sachen) as the objects of corporate domwwm vel quasl-domwwm. * Here he introduces [in dealing with the naturallaw aspect of the matter] the notion that a 'society' may own a property peculiar to itself (domlnwm soIItanum ), as distinct from any joint property of the members; and he argues that Natural Lav-' . itself can provide a basis for distingUIshing such 'res SOCletatum patrimomales' from 'res socutatum In jpeCleS SIC d!ctae', because it can mpply the critenon, 'Does usus belong to the tota socIetas, or does
.. Gierke's analySIS of Nettelbladl's expositIon of the rights of societates (as given m hIS two 'systems') IS somewhat difficult. Roughly we may put It as follows. GIerke argues that the exposltJon shows a wavermg between the Idea of group-bfe and group-actIon as the hfe and actIOn of the Whole, and the Idea ofsuch hfe and action as the life and action of all the mdIvidual members-with an inchnation to the latter. He has already Illustrated this argument WIth regard to (I) the acts or deCISIOns of assoCiations, and he now proceeds to consider m some detaIl (2) the property of such bodIes, (3) their by-laws or leges, (4) theIr negotla jUrldlca, and (5) theIr obligatIons. Under the last head he dLScus.'les particularly NetteIbladt's view that aSSOCIatIOns have no obligation, and are not liable, m cases of dehct His analysIS next passes to (6) the nghts of mdividual members against associations, (7) to the pOSSIbIlity of associatIOns having possessIon or quasIpossessIOn and (8) to legal remedIes applicable to aSSOCiatIOns. Here the analystS seems to become a simple paraphrase, with less of a constructive argument running through it. Tht" translator has not ventured to omIt any part of the analysIS, but he confesses that It runs mto detail.
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the singula membra?' (142). When he comes to deal with the positive-law aspect of the matter, all that he finds it necessary to do, in fitting the property of universitates into these two categories, is to p.ty attention to some few particular legal questions which ariseo( 143) He next deals with the leges societaturn [or by-laws]. When he is' dealing with the matter from the standpoint of Natural Law, he confines himself to the remark that, so far as regards socutates aequales cum potestate, such leges or by-laws are no more than leges conventionales, because they are simply based on a conclusum; while, as regards societies with an Imperans, they are leges pToprie sic dletae, because they are promulgated by the head of the society (144). When he deals with the matter from the standpoint of positive law, he goes more fully mto the scope of statuta unwersItatIs, which are made to include . observances' or customary rules, regarded as tacit enactments (14S). From by-laws, he turns to the legal proceedings of corporations (negotia Jurzdua), distinguishing them from the legal proceedings of individual members, and dlvldmg them mto negotia publtea (which m turn may be subdivided mto mterna and externa) and negotta prwata(146). In the same way, when he comes to expound a theory of the oblzgatlOnes socutatum, he distinguishes the obligations of individual members from those of the society itself; but all ,.that he actually mentions under the latter head, when he is treating of the matter from the standpoint of Natural Law, is obligations arising in the course oflegal proceedings [i e. ofClvil lItIgation] (147). It IS only when he is treating of oblIgations from the standpoint of positive law that he ever mentions obligations Incurred in connection with delicts. This oml!>sion is to be explained by the fact that he regards the unwersltas as altogether incapable of dolus or culpa; * and he therefore pronounces not only against the possibilIty of the punishment ofa umvemtas, but also agamst its duty to pay compensation, even when there is a question of some unauthorised act committed by all the members In theIr corporate capacIty ( 148). Suddenly to deny mtellect and WIll to a UnIVerSItas, as Nettelbladt does in thIS connection, is to present the reader with a double difficulty-that ofreconClling this particular opinion with
to the PhIlosophy of Law, c.
... On these terms, and the general problem ofhablhty, see Pound, Introdutwn III The lSSue here raISed, of the liabIlity of groups m case of delIct, may remmd the EnglIsh reader of some of the problems of Trade Umon law.
It belong to
go
Gierke's Text
the rest of his views, and that of understanding the opinion illelf, in the form in which he proceeds to express it. Suppose, are told, that an illegal act has been committed on the part of omnes singuli. Then, in so far as these sznguiz, :n tis quae tangunt jil/em communem, sunt ut unus zntellectus et una voluntas, the illegal act-though it cannot be reckoned as factum universitatis, cujus auctor debet esse universitas-must still be reckoned as factum tale singulorum ex unzversitate, cUJus coauctores sunt omnes quz constituunt untversztatem(t49). [This is a perplexed saying; and] in view of the general perplexities in which he becomes involved, we can readily understand why most of the writers on Natural Law were far from sharing Nettelblad t's radical dislike of the idea of corporate delicts (ISO). In dealing with rights, as well as in dealing with duties [or obligations], Nettelbladt attempts to distinguish sharply between the sphere of the community and that of individuals, pitting against the rights of any soczetas, whether inherent or acquired, the jura singulorum which the society cannot touch. His natural-law theory of the rights of mdividual members, which came to exercise a considerable influence, proceeds upon the principle that such separate rights of individuals are always present sz membra soczetatzs, quoad punctum defimendum, ut una soezetas conszderarz nequeunt. Thi~, he contends, is not only the case (I) when a legal question lies altogether outside the nexus soctalts socwrum: It is also the case (2) when, though that nexus is present, there is either (a) a question of sam. right of a member which is something more than that ofjoining in the exerCIse ofa right belonging to the Fellowship, or (b) a questIOn of a superior or separate right of a member, or of a class of members. He accordingly enumerates a list of jura stngulorum, including (I) all rights acquired by voluntary actions which are undertaken outside the area of the society; (2) any right acquired by a tttulus speclallS, even though such a right may affect the society, e.g. potestas, jura dlrectoraiza, and ifJiczalzum jura tiffiCIZS cohaerentla; (3) the right to appear and vote in meetings; (4) a right of user of the res soctetatzs zn specze sic dlctae. * He adds, however, that all this is true with the reservation, quatenus omnza haec jura salva obltgatwne, qua soczus soctetatz obstrzctus
we
* It would appear that no. I In tlus Itst corresponds to no I in the precedmg sentence, no. 2 corresponds to no. 2b; and no. 3 and no. 4 to no. 2a. (The right to attend meettngs and vote, and the right of user, are rIghts of the mdlVidual qua mdividual, and they are thus 'somethmg more than Jommg in the exerCISe of a right belonging to the Fellowship'.)
The Period from 1650 to 1800
19 1
est, I.x~rcentur(151). ~en he expounds the pos~ti~e law of the matter [in'lus other treatlse], he assumes the vahdltyof these general natural-law principles, and he only indicates some peculiar feature~ in the rights of unwersitates [under positive law] which diffetentiate such rights from those of private persons(I52). He next treats of possession and quasi-possession by societies. Possession de facto, he holds, is certainly as much possible for a society as it is for a persona smgularis; but it is always necessary to distinguish the case in which individuals are de facto possessors on their own account from that in which they enjoy such possession socletatis nomzne. Where the possession i,> possession de jure, it is again true that the rules which hold good for smguli are eq ually applicable to societIes, both in regard to jus pomdendz and in regard to Jus possesswms* (153). In dealmg with pos'>ession in his treatise on positive law, Nettelbladt repeats these general principles (154), supplementing them by a careful expOSItion of the rules about acquiring and losing posseSSIOn m cases where the other party is a unwersttas (155). Finally he treats of remedw JUTtS tn applzcatwne ad socutates. In this connection he develops a theory both of the peaceful settlement of disputes by compromIse, conCilIatIOn and arbitration, and of their forcible decision by war or repnsab(I56). He also propounds a theory ofjudiClal procedure (Genchtshzlft), dealing first with the ,,power of a SOCiety to decide, in cases of dispute, in regard to rights and duties belonging to ItS members as mcmbers(I57), and then with the pOSItion of societies when they are parties to a case (158).
It is obvious that Nettelbladt's general natural-law theory of associations represents a vigorous reaction of the German conception of Fellowship, which had never been utterly submerged, against the foreign conceptIOn of the Corporation. In his theory the personaficta, affixed to the group by an act external to itself, has disappeared; and there appears instead an internally united group, shaping itself by its own power into a Whole, WIth a capacity both for the enjoyment of rights and for actIOn, and yet, at the same time, assuring to each indiVIdual member his own separate sphere of activity in the community. And yet we have to confess that the corporate body so constItuted is prevented by its indivi The distinction between JUS posslIiendJ and JUS possemoTlls 15 a distmction between having a legal tItle to possess, and havmg the nght which arlSe8 from being U1 possession whether or no there 15 a legal tItle to posSe&s.
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dualistic structure from rising to the stature ofa substantive Gropp-" being. It is not distinct in kind, but only in degree, from any ca-sual society or community. It is significant that Nettelbladt is unable to give any definition of the idea of a unzversitas other than that it involves a societas plurium quam duorum* (159). [Just as the natural-law theory, as it appears in Nettelbladt, seeks to abandon the Roman-law notion of the corporation, and to return to the German idea of the Fellowship, so] from another point of view, we may admit that it also breaks away from the Romanistic conceptions of soczetas and commumo [partnership and co-ownership], and gives new life and vigour to the German conception of the 'joint hand' (Gesamthand). t The division of every system of common interest into separate spheres belonging to the several members is no longer regarded as necessary; on the contrary, there are seen to be various ways in which a fusion of individual spheres of interest into a single common sphere may be achieved. But our admission must at once be qualified. Naturallaw thinkers were unable to express such a union of persons [in a common sphere of interest] by any legal conception other than the self-same notion of persona morabs which they also used to explain the' Subject' of full corporate rights. They invoked this persona everywhere. They ve&ted the community of husband and wife, the community of parents and children, the community of master and servants, with' moral personality': they even regarded the family... community [which included all these three communities] as a moral person composed of a number of members which were moral persons themselves (I 60). Starting from the basis thus provided, Nettelbladt allows himself to glide Imperceptibly into a Fellowship conception of the broader family-group [i.e. the 'House', including all the members of a princely or noble family] ; and then
... The pomt of vIew of thIS paragraph regards the Group In Itself-' Is It a Roman U1IwerSttas or a German Fellowship?' The pomt of vIew of the next regards the Group m relation to property-' Is Its property a matter of Roman soaetas and commumo, or of German Guamthand?' t 'The mtlmate conjunctIOn of two thmgs, so that they are no longer separable (e.g. A's gold and B's sIlver to produce electrum) .. sometimes produces co-<>wnenhip lD the whole (commumo)' (Poste's edition of the Institutes if Gaius, pp. 166-7) The difference between Roman cQo.ownership and the German Gesamthand may be roughly said to be the difference between (a) two or more penom each laying a hand on the same thmg at the same tune, and each saymg, 'ThIS IS rome-up to such and such a pomt, though It 15 yours beyond', and (b) two or more persons laying joint hands on a property, and saying, 'This is ours, in the sense that It belongs to all of us '.
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[le~Ilg from Fellowship to corporation, because the elastic idea of tne moral person can easily be stretched to that further point] he finds himself enabled to take the rules of law relating to the rights or corporations and to apply them to the aristocratic House and tlIe House-property belonging to the 'line' (161). Without further ado, the idea of their being separate moral persons is next applied to all the collegiate or collective organs which act on behalf of a group, and even to all the sub-groups which exist within it(162); and, finally, no objection is taken to the idea of extending a moral personality (uniting, or supposed to unite, the various parties concerned) even to cases of mere profit-making companies, or of simple co-ownership, or indeed of any other matter of common rights or common dutles(163). The distmction which properly separates a system of common relations from a system in which there is a common 'Subject' of rIghts was thus completely obliterated. All this tended, in no small degree, to encourage a return to Germanic conceptions oflaw, and to promote a more realistic treatment of the actual factors in our own domestic legal institutions; but the price which had to be paid was the saCrIfice of a true conception of Group-pcrsonality(164). Only by the use of artIficial arguments was it possible for this uniform theory of all societies to conceal (and then only partially) the contradictIOns which followed on the fitting of dissimilar things )eta the same Individualistic-Collectivist mould. We can trace this result [i.e. the conceahng of contradictions by the use of artificial arguments] at various points. * First of all, in order to make the
'" Gierke IS here argumg that a theory wInch makes a Group a Collection of IndiViduals (under the n.tme of persona moraIZJ), and which has thus both a CollectiVist and an IndiVidualistiC basIS, will necessanly be mconslStent; '\'0,11 betray Its mconslstencles when It tnes to get all ~orts of groups mto Its scheme; and '\'0111 be dnven to seek to conceal Its mconslstenCles by dOing VIOlence to one or other of Its bases. (I) It will do VIOlence to Its CollectiVist basIS (i.e. Its Idea that a Group IS a collective body over and above the mdlvidual members) when it tries to fit Into its scheme a case of mdlvlduals ownmg property by 'jomt hand'; for here it wIll make concessIOns to the nghts of indiViduals whIch really contradict that basiS. (2) It WIll do VIOlence to Its IndiVidualIStic basis (i.e. Its other Idea that a Group IS only a number ofmdlvlduals) when It tnes to fit Into its scheme the case of a corporation, for here it will make concessions to the rights of corporations which really contradIct that basIS. (3) It Will do VIOlence to both its bases when it tnes to meet a case which cannot be met at all by the Idea of a Collection of IndiViduals (in whatever way that Idea may be interpreted); for here it WIll mtroduce another person, a persona repraesentatlva, who is somethmg more, and something above, the CollectIOn of IndiViduals described under the name of persona moralls.
B'PSI
13
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conception of the Collective person applicable to cases where t~ere was merely a question of 'joint hand', this would-be unitorm theory had to make concessions to the rights of individuals which ended in cancelling any idea of a Group-person as sotnething distinct from the individual persons who composed it (165) . Secondly, in order to combine the fact of corporate unity with its conception of the merely Collective person, the theory had to find room for principles [about the rights of Corporations] which could only be reconciled by dint of a violent interpretation with its basic idea of a Whole as something simply constituted by the addition of Individuals (166). Finally, in cases where it was forced to postulate a Group-unity which was independent of the sum of the members for the time being, the theory was forced to go altogether outside the bounds of the persona moralts, and to set over against it a persona repraesentatwa, as an 'institutional' umty [i.e. a unity not inherent, but due to State-institution, and thus] created by act of commission and de1egation(167). To pursue this line of thought to its logical conclusions was, in the last result, to end by producing a total dissolution of all forms of group-existence. Curiously enough, it was the exponents of the principle of liberty of association who were most inclined to degrade the whole theory of the rights of associations into a mere form of the rights of individuals. Moser [though he was an apostle of associations] refused to acknowledge any distinction betweel't' partnership and corporation (168); and the theory of Natural Law generally ended with what we may call the evaporatton of the 'moral person' into a mere terminological figure of speech(16g). William von Humboldt illustrates most clearly the final consummation of this trend of thought. Concerned to substitute, wherever he can, true' bonds of union' for the 'fetters' forged by contemporary law-to remove all permanent checks on the free individual, to make marriage freely dissoluble, to prevent legal obligations from tying the hands of future ages, to limit testamentary dispositions-he directs his ardour against 'the societies which are generally called by the name of moral, as distinct from physical, persons' (170). He argues that all moral persons have, at the very least, the same disadvantages as wills and testaments They always involve a unity whIch is independent of the sum of their members and which continues over a long period of years. It is true that many of the disadvantages which they produce in Germany are only the result ofthcir possessing exclusive privileges,
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"w~h are not inherently connected with them, but in virtue of whiC\i they often become, in effect, 'political bodies'. But apart from such added privileges, and considered only in themselves, 'they bling in their train a considerable number ofinconveniences. And yet their disadvantages only arise when their constitution compels an the members to use the common resources in a way they do not wish, or when, by requiring unanimity, it really forces the majority to obey the minority'. Otherwise,' societies and associations are the surest means of fostering and advancing human development'. The best course would be that the State should simply enact 'that any moral person, or society, should only be regarded as a union of its members for the time bemg, so that nothing should hinder them from declding at their discretlOn, by a majonty of votes, on the use to be made of common powers and common resources'. Such an enactment, however, must not be allowed to mvolve-what ha<> often happened where the clergy are concerned-that the members are turned mto mere tools. * As for the legal regulation of all such unions-'the principles of testamentary dispositiom. and contract arc adequate' (17 I).
II.
GROUPS ABOVE THE STATE
Internatronal soczery and federatzons The contradictions we find at work m the natural-law theory of corporate bodies are reflected m its treatment of super-State ~ Groups. The problem of the extent, and the nature, of international society still contmued to be met by a variety of solutions If the state of nature were conceived as an absolut('ly non-social state; and if, again, international law were regarded as simply the Law of Nature, still continuing to prevail between Stat('s because they were personae morales who stlll continued to remain in a natural state of hberty and equality-then the loglcal result was a total rejection of any idea of a general' society of States'. For a time it appeared as if, owing to the prestige of Pufendorf, a view of this sort would actually hold the field (172). In the long run, however, the opposite theory triumphed. Assuming [not an original non If a group 18 given liberty, by an enactment of the State to that effect, to determme freely Its policy from tIme to tIme, WIthout bemg restncted by the dead hand of the past, It should not use Its liberty to turn Its members into the tools of a partIcular pohcy, as ecclesiastIcal groups have often done.
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social condition, but] an original community of all mankind, thinkers argued that the state of nature which continued to pfevail among States must necessarily be a state of natural society. Even when they made the solitary individual their starting-point, they ,could still attain the same result. They could proceed to add, to their postulate of the solitary individual, the idea that the creation of a social condition was none the less to be regarded as a stage in the development of Natural Law; and they could then argue that Natural Law [in the course of its development] dictated, or at any rate postulated, a society of Nations. With this conclusion there generally went hand in hand the recognition of a body of positive international law, which was held to be due to a further development of 'natural' international law, among the society of Nations, through a process of express or tacit consent. The conceptIOn of a universal society of States was successfully vindicated by Mevius, byLeibniz, and by other opponents of the theory ofPufendorf(I73): it was also maintained by Thoma&ius(I74); and it was finally . restored in its integrity by Wolff and his successors (I7S). With the aid of the natural-law category of socutas aequahs, an attempt was made to qualify the nature of this internatIOnal society by adding the idea that the original liberty and equahty of all the sovereign personae morales remained intact, notwithstanding the existence of a 'social' obligation (176). On the other hand we also find Wolff, and other writers, revivmg the idea of a czvztas maxtm~ and holding that every State, in its capacity of a citizen of this great City, was subject to a real group-authority(I77) The existence of particular societies of States [or federations] was also recognised by all the writers on Natural Law. [It is true that the idea of a real federation found little favour.] After Pufendorf had once rejected the notion of a 'composite State " in the form in which it had been developed on the basis of the positive law of the Holy Roman Empire, it became the orthodox, and we may almost say the unquestioned, view In the School of Natural Law that a State which stood above other States was an impossibility(q8). [But other and lower forms offederation were allowed to be possible.] Not only was it admitted that relations of partnership between different States might eventually grow out of simple alliances (J79) ; a distinction also began to be drawn between foedera stmpltcia, or mere leagues, and systemata cwitatum which had
Gierke is thinking of the medieval view of a single' humana CIVIl!tas' when he speaks here of 'restoring', and, a few lines later, of' revivmg.
197
. th\ effect
of permanently uniting a number of States in a single corjftJs. These 'systems of States' were then further divided into 'unions' and 'confederations'. The term 'union', in its original connof'ation, was confined to a personal union (180); but the conception began to gain ground of a real union, under which some two or mbre States, in addition to having a common Head, had also pooled their rights of sovereignty(181). 'Confederations', or corpora confoederatorum, were interpreted as being Leagues of States (Staatenbunde) in which the sovereignty of the several States remained intact, and was only 'exercised' in common, and that, moreover, only to a limited extent-with the result that, though the whole might appear to be a State, it never really was so (182). Pufendorf applied this line of interpretation rigorously, and absolutely refused to admIt the validity of majority-decisions in any form of confederation(I83). But there were many who took a different line. Though they accepted the natural-law conception of the societas aequalzs as applIcable to confederations, they were none the less prepared to admit that a confederation possessed some 'social authority' of its own; and while they differed about the extent of that authority, the general result of their views was to render possible some approach to the full federal form of State (Bundesstaat) (184). Nor was this all. If only they cast a glance at the Holy Roman Empire, thinkers had to confess that at any rate "in actual life, if not in theory, there were intermediate formations to be found, which lay mId-way between the federal form of State and the unitary State with autonomous provlDces; nor could even a Pufendorf abolish those intermedIate formationc; by declaring them 'monstrous' and 'irregular'*(18s). In such ca<;es, just as in the analogous case of the theory of the mixed constitution, the irregular forms gradually came to be treated as Justifiable exceptions from the rule (186). Finally, the conception of the federal State was again admitted to a regular place in orthodox natural-law theory. Leibniz( 18 7) and Montesquieu(188) had already defended it to some extent: Nettelbladt restored it fully to its position (18g). He made a definite
... Gierke's pomt is that thmkers were not only forced to go beyond Pufendorf's category of the confederation, and to make an approach to the federation proper, but they were also forced to recogmse the de facto existence of a form of State which was somethmg more than a federation, though something less than a decentrahsed unitary State. TillS Intermediate form was the Holy Roman Empire, as It existed down to 1806.
189.
Gierke's Text
distinction between all unions, or systems, and the respujf.ica composita proper, in which both the whole and the part were States(lgo); and he found it possible, on this point as on so many others, to elicit principles from Natural Law which were curiously and admirably in accordance with the actual positive law of
CermanY(lgl).
III.
GROUPS WITHIN THE STATE
The Church When we turn to conceptions of the Church and its relations to the State, we find the natural-law theory of society exerting an overwhelming influence, and bringing under its spell, to an ever increasing degree, the whole of the literature of ecclesiastical law. The natural-law theory of the Church may thus be appropriately treated, not as a separate theme, but in its connection with the positive.law doctrine [of churches and their rights1 to be found in ecclesiastical law (I<)2). [The section which was to have dealt with the natural-law theory of the Church after 1650, and which would thus have completed the sketch given m 14, III, was never pubhshed.]
APPENDICES
I. TROELTSCH ON NA TU RAL LAW AND HUMANITY

AN ADDRESS DELIVERED ON THE SECOND ANNIVERSARY OF THE GERMAN HOCHSCHULE FDR POLITIK, OCTOBER 1922
II. GIERKE'S CONCEPTION OF LAW
APPENDIX I
ERNST TROELTSCH
-THE IDEAS OF NATURAl LAW AND HUMANITY IN WORLD POLITICS*
. I. The contrast between German thought and the thought of western Europe, 201. . 2. The common European tradition of Natural Law, 205. 3 The tradition of Natural Law in western Europe SInce 1789, 208. 4. The development ofGerman thoughtsmce the Romantic Movement, 20g. 5. German Idealism and nineteenth-century reahsm, 213 6. QuahficatlOns of the contrast between German thought and the thought of western Europe, 215. 7. The problem of modern Germany, 216 8 The new hIstorIcal attitude required m Germany, 217. g. The new ethICal attitude reqUired, 219. 10 Spenglerism and Sociahsm, 220.
I. The contrast between German thought and the thought of

western Europe
Above the practIcal and temporary questions with wluch we are confronted to-day, there rises the theoretIcal and permllnent problem of the dIfference between the German system of IdeaS-Ill polItics, hIstory and ethIcs-and that of western Europe and Amenta. The latter of these systems has Its marked mternal dIscrepancIes, and there are pOInts at v.hich It occa~IOnally approaches the German system of ideas, but it unquestIOnably possesses a logICal unity of Its own We only need read James Bryce's great book on AJodern DemocraCIes to be convmced "bf thiS fact. SImIlarly, in spIte of all the intellectual dIfferences which are so marked a feature In our own hfe, there is also d logIcal unity In our German system of thought. It IS a umty whIch every foreIgner immedIately feels, even If he cannot define it. If he IS unfavourably inc1med towards us, he recognIses it Instantly, WIth a sort of InstInctIve averSIon, as somethmg allen; whIle conservatlves In all countnes, and e~pecially in northern Europe (though we have to remember that northern Europe IS largely under the mtellectual mfluence of Germany) feel a natural kInship WIth It. If you enter mto conversation with the Dutch or the Scandmavlans, you soon learn much which IS valuable and mstructIVe in thiS respect; and m the field of scholarship the works of Kjellen t supply clear evidence of the affinity. One thing whIch is obVIOUS, from the very start, IS that our world of Ideas IS confined to a ... Humanity (Humamtat) means the unity of mankInd, or what Dante calls humana cwllilas. The idea that all men form a smgle society IS naturally assocrated (as It was by the StOICS and by medieval wrlters) WIth the Idea of a smgle Natural Law common to that society. (The diVISIon of TCCleltsch's essay mto sections, and the headmgs of the sectIOns, are due to the translator.) t The reference IS to R Kjellen's Dze Groszmachte vor lind nach dem Weltknege, a descriptIVe work of pohtlcal geography
202
Appendices
much smaller area and a far smaller population. That is the real reason why German propaganda was ineffectIve during the War. Even ~we had possessed more adroitness, and a greater psychological gi'lt for understanding other peoples, we could not have bridged the gulf. Neither side had the power-to say nothing of the inc1inaljon~to understand the other; and of the two sides, ours was the one whIch"was both isolated and numerically inferior. The same contrast also appears, in an acute form, in our own internal polItical struggles. It supplies telling catchwords to those who seek to interpret the obvious fact ofa real and practIcal struggle, between the different classes and interests m the natIon, as a conflict of moral and theoretical prmciples; who desire to transform the clashes of mterests which have arisen from purely natural causes mto a 'spiritual conflict', and hope, in that way, to produce acute and fundamental divisions. The designation of 'western' has thus come to be applIed (a<; It is In Russia) to all movements 111 favour of democracy, or pacifism, or national self-determmation, or a Lt"-ague ofNatlOns, or the attainment of international understand1l1g; and such movements are then opposed to the specIfically' German' way of thought, wIth its histotlcal and organic character. This IS SImply the old external contrast reappearing m a new and internal form; and it IS applIed by the very same means whIch were used by the propaganda of the Entt"nte m the War The war-cnes which then divided the natIOns are bt"mg Imported to-day into our mIdst. The fundamental dIfference between the two worlds of thouf4ht is thus clear enough in actual fact. It IS somf'thmg which can everywhere be felt. But what is the ongm of the dtffert"nce? What IS the genume essence of the thought of western Europe, and what IS the essence, III contradIstinction to it, of the German scheme of thought ? In answerin~ such questions, we are brought up agamst the conceptlOns of Natural Law and Humanity, with the notIOn of Progress now added as the modern corollary of both. These conct"ptions, 111 turn, are closely connected with all the fundamental Ideas of the general culture and the religious life of Europe. TheIr ongmal roots go far deeper than the revolutionary zeal of modern tImes: they run down mto tht" <;plntual development of somt" thousands of years, though they have been made to assume very various forms m the course of theIr long history. The attItude we adopt towards these conceptions determmes the parting of the ways. In Germany we are unprepared, and dismchned, to understand this divergence; we are even unable to comprehend properly the terms 'Natural Law' and 'Humamty', by which the divergence has just been suggested; and our failure is answered, on the other side, by a misunderstanding and misinterpretation of our ideas, which IS If anything still more drastic. We must therefore go deeper into the matter in the course of our argument; and first of all we must explain the sigmficance attached in western Europe to the terms 'Natural Law' and 'Humanity', which have now become almost incomprehensible in Germany, and have lost altogether their original life and colour.
Troeltsch on Natural Law and Humanity
203
~.is essential to remember, in dealing with these terms, that we are d~g with something more than merely modern, or merely west-
European, conceptions. We are face to face with ideas which are both of ~eat antiquity (they go back to classical and Christian thought) and of g~ehl European scope; ideas which are the basis of our European philosophy of hIstOry and ethics; ideas which have been closely connected, for thousands of years, wi th theology and humanism. Remem~ bering the age and range of these Ideas, we can understand the innumerable applications and modifications which they have undergone, and the far-reaching practical effects which they have produced. German conceptions, in comparison, are new and modern; they are inchoate-uncorroborated by the proce'ss of world history-undigested in theory. The force of conservatism and the weight ofnurnbers are both on the side of the tradItion of western Europe ThIS may seem paradOXical, all the more all German thought professes to be essentially progressive, democratic and favourable to the cause of revolution. But it IS just this paradox which we have to master and unde-rstand In the first place, the contrast of 'conservatIve' and 'revolutionary' is one which has to be banished from the whole problem. It has only corne mto existe-nce as the' result of very recent complications: It is only III German thought that It IS regarded as fundamental, and the reason why we take that VIew IS that the modern democratIc movementwhIch flows ine-vItably from th(" mcrease of populatlOn and the educatIOn of the ma~se-s-ha~ only just begun to assert Itself among us, and has done so m a senes of revolutIOns In its own nature, and apart from these temporary condttion'l, democracy may well assume a conservative form. American democracy, in Its polmcal and social aspects, tends to ~ssue in the strictest conservatIsm; it regards its principles as the eternal and dIvine commands ofmorabty and oflaw. The same is also true, If to a less extent, of EnglIsh democracy a~ It has develope'd since 1832; It shows, as we all know, a fimdamentally conservative character Even the French regard the glory of their Revolution as the final VictOry of the' eternal moral order of mankmd, and worship It as a semplternal dogma which is the salvatIon of all humamty. The real revolutionary element, in all these three countnes, has transferred Itself to the sphere of social and SocialIstic movem('nts; and the political constitution of the democratic type 1S now left to wear Its h1stoncal mmbus and to show its fundamentally bourgeois character. The revolutIOns to which democracy owes its origm bdon~ to a far dIstant epoch; and they are already sanctified by history. This IS the reason why it IS much more dIfficult for Socialism to assert itself in these countries than it is in ours. German thought, on the other hand, whether in politics or in history or In ethics, is based on the Ideas of the RomantIC Counter-Revolution. This was a movement which began by seeking to clear away the postulates of west-European thought, along with the scientific basis of mathematico-physical pnnciples on which they rested. It p~oceeded to erect, both in the sphere of the State and in that of Society at large, the
Appendices
'organic' ideal of a group-mind (Gemeingeist)-an ideal half aes~tic and half religious, but instinct throughout with a spirit of antibou is idealism. Finally, on the basis of this ideal, and in order to give i form and substance, Romanticism sought to remedy the political disunity of Germany by the erection of a powerful unitary State. As GerJ.t1any pursued the complicated course of its intellectual and pohtical history, during the nineteenth century, the thread of this guidmg idea, as we shall see, was again and again interrupted, and it was repeatedly entangled in compromises which sometImes ended m makmg It entirely untrue to itself. None the less, it is thIS German system of RomantIc thought which is really responSIble for producing the dlfferencesdifferences that cut so deep, and may be traced in so many directionsbetween the two opposing camps. Here we touch the core of the contrast. We begin to see, on the one side, an eternal, rational and divinely ordained system of Order, embracing both morahty and law; we begin to see, on the other, indIvidual, living, and perpetually new incarnatIOns of an histoncally creatIve Mmd. Those who believe in an eternal and dIvine Law of Nature, the Equality of man, and a sense of Unity pervadmg mankmd, and who find the essence of Humanity m these thing-s, cannot but regard the German doctrIne as a curious mixture ofmystrcism and brutalIty. Those who take an OppOSIte view-who see in history an ever-movmg stream, which throws up unique 10divldualmes as It move~, and IS always shaping individual structures on the baSIS of a law whIch IS always new -are bound to consider the west-European world of Ideas as a world of cold ratIOnalIsm and equalitanan atomIsm, a world of superficiahty and Pharisaism. All this needs, and must duly receIve, an explanation in gte-ater detail. We shall accordmgly sketch the mam hnes of tht! common European tradItion; and then we shall first of all trace the development of that common tradItIon mto the polItIcal and moral ideology of western Europe, and afterwards seek to follow the- course of German romantIC Ideology, through the vanous phascs of ItS evolutIOn, untIl we come to the histoncal realIsm of the pre~ent day. There is one fact which must not be forgotten 10 tins connection. It IS the Germany of ProtestantIsm and Lutheramsm, of Classicism and RomantiCIsm, which presents us WIth dIfficulties of interpretation. CatholIcism stands much closer to the common tradItion of Europe: it can understand that tradition better: It can come more easIly to an understanding with Its modern developments. There are, mdeed, some elements m Catholicism--elements which go back to the medieval system of Estates, or are derived from medieval mysticism-that connect it in some degree with RomantIcism, and have produced a deceptive appearance of its special affinity to that movement. But the real genius of Catholicism is severely rational, and it is directed, as such, to Natural So far as I follow Troeltsch's thought, he is drawmg a dIstinctIOn between the two Germanies-that of the Lutheran north, and that of the Cathohc south and west.
205
La'" and the idea of a common Humanity based on the rational and
religteus unity of all mankind. * It is this tendency that constantly reappears as the main characteristic of the Catholic system of legal and pol~cal ideas. It is a tendency which is still of practical importance to-day, and really determines the policy of CatholIcism.
"2. The common European traditwn of Natural Law The ideas from which our argument starts are the Ideas of a Law of Nature, of Humanity, and of Progress. They are Ideas which are closely connected with one another, alIke In the common tradItIon of Europe at large and in the f>cheme of thought peculIar to western Europe; but of the three It IS the Idea of Progress which IS bemg partIcularly applIed, and has been especIally elaborated, in connl"ction wIth modern life. The OrIgIn of this general phIlosophy IS to be found In the later period of classical antIqUIty-m the Stoic theory of Greece and Rome, and especially of Rome; m CIcero and in certam elements of Roman Law; and finally, and above all, m the combination of these factors with Chnstian Ideology to form the ChrIstIan system of Natural Law The fundamental conception IS that of the digmty of the cornmon element of human Reason, as it appears III every mdIvldual; and thIS conce-ptlOn, m turn, goes back to that of a 'common law', pervadmg all nature and the whole umverse, and proceedmg from a dlvme principle of Reason which expresses Itself Increasmgly m the successive stages of created bemgs. The true nature of man IS assumed to be the dIvme Reason operatmg m him, With ItS ~overelgnty over the senses and affections. Several conclusIOns are directly derIved from thiS assumptIOn. It explams the o:laIm whIch the mdividual makes, and the duty whIch he admits, that Reason should be acknowledged to be the Natural-whIch IS also to say the Divine-Law. Agam, It provides the foundation of all human legal institutions, which thus become directly Identlcal, In the la<;t analysIs, WIth moral prInCiples. Fmally, It furmshes the Ideal ofa SIngle orgamsatlon or SOCIety of all mankmd. The general background of the<;e ideas is Pantheism, whIch first in Rome, and then, and above all, m Chnstiamty, passes into TheIsm and a belief in an overruling PrOVIdence. The whole system of thought IS mnocent of any revolutIOnary mtentIOll; but It ImplIes, none the less, a radIcal renuncIatIOn of the empmcal ",orld of actual fact. In the begmning, in the golden age, men started WIth hberty, equahty, frate-rmty. The almost InVInCIble force of human affectIOns and paSSIOns led to struggle and self-seeking. But that ~elf-same Reason whIch is the source of the dignIty of indIVIduals main tamed itself in the face of these consequences, and created the necessary means for theIr repreSSIOn-law, force, authonty and property. ThIS result once achIeved, it now becomes the Ideal of Natural Law to achieve a rational orgamsation of all
CatholICISm belIeves not In a dIversIfied world of' umque IndIvIdualIties', but In a smgle respubltca ChrlSttana, amenable to a bmgle law.
206
Appendices
these means which shall be compatible with the natural rights tilat belong to the dignity of man. This leads to the idea ofa cosmopoH!l, or world-State, in which all men are at one, and which is best organised as a monarchy, because monarchy is the reflection and mirror ojllthe divine government of the world. < The whole of this system of Ideas was adopted by Christ;ianity as a necessary supplement, or complement, to its own other-worldly and eschatological ethics, which stood helpless before the practical problems of actual society. The Christian doctrine of inherited sin made the system stin more conservative in character. it made the means of repression provided by positive law appear to be far more sacrosanct, and even dIvine. WhIle pOSItive law was thus consecrated, natural fIghts were also attenuated. The realm of Natural Law was overshadowed and dommated by the Kmgdom of God, or the Church, and in this way, and on the assumptlOn that nature could never be free from the taint of sm, the natural-law prinCIples of autonomy and rational selfrealIsation were kept within definite lImits and prevented from going too far. It was thiS combination of StOIC theory WIth Christianity that produced the ChrIstian system of Natural Law which held sway for a thousand years, and dommated the theology, the jurisprudence, the political theory, the polItics, and the history of the MIddle Ages. We may admit that the influence of medieval society (which was based on the lIlStItution of dIfferent corporate Estate5) led the Christian sy5tem of Natural Law to ally Itself WIth a theory of the orgamc dIfferentiation of the social Whole mto unequal parts, associated together on a prmclple of division of labour whIch assIgned ddferent functIOns to each.... Bu~ this theory could, WIth the help of ArIStotle, t be treated as a necessary consequence of the order of nature, and thus be mterpreted as part of the essence of natural ethics and natural law ; and by its side, and under its cover, the purely mdividualistic Ideas of Natural Law still survived m their full VIgour. Nor did they only survive m theory. they also asserted themselves actively, m an sorts of radical revolts among the varIOUS 'sects ',t untll they culmmated m Ockham's theory of the State and the Jesuit views on the rIght of revolution. There are always two separate IllSpirations-the organic and the individualistlc-m the 'natural' SOCial theories of the Middle Ages, and however closely they
... I.e. the three Estates of clergy, nobility and commons were held to form a 'body polItic', or pohtical orgamsm, which starled from the principle of the inequality of the different parts, and of theIr contnbutmg dIfferent and unequal functlons to the common hfe of the organi.~m. t Aristotle's theory of KOlvc.:lvla assumes that It IS naturally based on the existence of vanous mutually complementary parts, whIch attam a hIgher and more self-suffiCIent hfe by exchangmg theIr dIfferent products. ~ In his Sozzallehren der Chnstlu;hen Krrchen (n, g), Troeltsch traces the SOCIal ideas of the vanous dISSIdent or nonconformist 'sects' of the MIddle ARCS.
20 7
JIl3f be connected in theory, it is always a question which of the two will t-etively come to the front. It was on the basIS of this Christian system of Natural Law that there dew:Jo~d ~e modern a;nd secul~r system ofNatural Law which we find in tke wrItIngs of Bodm, GrotlUs, Hobbes, Pufendorf, AlthuslUs and many less famous thinkers. Their object was partly to explain the ab, solutiSt governments whIch had been produced by the movement of events, and partly (at a later stage) to justIfY the emancIpation of the citizen from such governments, and to proceed to the erection of new pohtIcal ideals upon that basis. The double aspect of Natural Law still persisted. On the one hand, It was argued that the very nature of a community inevitably involved Rule and Sovereignty, and that it was necessary for a power to exist which could introduce order among smful men-indeed It was even argued that the rIghts of the people had been absolutely transferred to such a governmg power, and such arguments were supported by theologIcal doctrInes about the nghts of , the powers that be' and the deSIgns of ProVIdence. On the other hand, the movements opposed to absolutism sought comfort and countenance in Ideas of mherent and mdestructIble human rIghts which were based upon the divmely appomted order of the Umverse In the course of developments such as these many new mov{"ments of thought naturally made themselves felt. The Humamstlc revival of classIcal learning, and thc new growth of atormcal natural SCIence, prOVIded a varIety of new Ideas and methods. But the old termmology, and the old basIC ideas, stIll persisted; and such new movements as appeared are almost exclusively to be found on the radIcal and progrC%IVe SIde-the SIde which had transcended the natural nght of absolutI~m m favour of a popular 1nd radIcal doctrine of the natural nghts of man, and whIch came, in process of time, to be called the School of Natural Law par excellence. Here the doctrme ofmhented sm has crumbled away, and Its place has been taken by a convinced optImIsm III regard to human nature and reason and a belief that, If left to themselves, men wIll follow the lead ofthelr natural mterest m the commumty, and will solve every problem rationally by the standard of utilIty. The dlSlntegration of the Church mto separate churches and sects, coupled WIth a new spmt of relIgIOUS indIVIdualism, removes the control of publIc hfe by the Church, and issues in demands for freedom of conscience and the separatIOn of Church and State. The natural sciences brmg mto the common stock the analogy of theIr own fundamental atomIsm and of the natural ratIonal laws by whIch atoms are orgamsed. In all these ways the idea of a steadily moving Progress, and the Ideal of a ratIOnal self-development of SOCIety and the State, are evolved from the old and predommantly conservative Natural Law of the Church
208
Appendices
3. The trad'tion of Natural Law in western Europe since 1789
Secular and progressive as it may be, this new Natural Law stilfcontinues, none the less, to find its basis in God's ordinance. It is closely connected with rationalistic theology: it can even be the ally of'Ca1;Vini~m, in the extremer forms of that doctrine. With all its zest for progress, the theory still remains moderate: it retams a conservatIv~~and bourgeois character. Even in the writings of Rousseau, where the idea of Natural Law finds its most revolutionary apphcation, it has still a profoundly religious basis; and mdeed-as a force Impelling men in the directIOn of political instItutIOns whIch are Simple, clear and austere -It IS sharply contrasted with the so-called 'progress of civIhsation'. Not until the days of the French RevolutIOn do we find the Idea of Natural Law directed along the hne of pure and radical Progress, and pressing towards the goal of absolute popular Sovereignty within the area of a great modem State; and the French Revolution, for that very reason, marks a break with the Church and the whole of the past. In the Anglo-Saxon world, the new idea of Natural Law is essentially a demand for personal hberty, the free chOIce of rulers, and the people's right ofcontrollmg the conduct of affairs by the rulers they have chosen: in France, It IS a proclamatIOn of the theory of direct self-government, the prinCIple of polItIcal equalIty, and the partICIpatIOn of all ItS members in the control of the State. A deep diVISIon IS here Involved-the dIVision between democracy proper and a system whIch should be designated as LIberalism rather than democracy. Besides thIS cleavage, and in addition to It, the practical applIcatIOn of thIS new natural-law idea of Humamty has produced, in the course of time, a great number of other antinomIes and problems, whIch have not only gradually cooled' the original ardour of Its adherents, but also make any theoretical exposition of the Idea to-day exceedmgly dIfficult, complIcated and self-contradictory. The difficulty can be traced m the dIscreet and quietly elegiac exposition of James Bryce, a widely travelled observer equally versed III theory and affairs. He is conSCIOUS throughout hI~ book (Modern Democraczes) that he IS descnbmg the mam polItIcal forces behind a development extendmg over a century and a half, and covering the greater part of the world, as far afield as AustralIa and New Zealand. This is the ground of hIS confidence in the type of government he describes and in the permanence of the type On the other hand, the jurist Laski,'" in his FoundatIOns if Soverezgnty, belIeves that the modem idea of parliamentary democracy IS in a state of collapse; but what he is really attacking III that idea is the rehcs of the old natural-law theory of absolutism, and he is attacking them in the cause of a higher Humanity and real Progress. In spite of what has been saId about its antinomies and its problems, this general body of thought remaIllS something in the nature of a consistent whole; and if it IS challenged III its fundamental prmciples,
H.J. Laslo, Professor of Poliucal SCience in the London School ofEconomics.
'Troeltsch on Natural Law and'Humanity
209
tJr has to face an opposition whIch menaces it politically, it can be ralli~d together in some sort of unity to meet the challenge. The reaction againSt it which appeared in Positivism has made no essential change in its nature. Positivists, in the last resort, are equally anxIOUS for the uni~<offnankind,and they equally desire ItS organisatIOn on the basis of natural laws, with due recogmlIOn of the individual's human rights and his claiWS to happiness. Socialism itself, m we, tern Europe, is willing to dress its demands in the terminology of Natural Law and Humamty: it simply extends the demands for pohtlcal equality and liberty to the economic sphere; and it expects the consummatlon for whIch it longs, and the comll1g of an Ideal condltwn of all mankind, from the operatwn of the general laws of the order of the world. We need not be astol1lshed, therefore, to find that trus system of Ideas, in spite of its imperfeCtions, and notwlthstandmg Its diVISIOns, was able to form a common front m th", hour of ncC'd agall1st German Ideology, or that it could evoke, to mC'et the challenge of' German barbarism', the enthusiastIC mstincts of all who believed m umvC'rsal ends common to all mankmd-m Humamty, the came of Natural Law, and the moral rules of Natw'e. Pacifism, and a belIef m a Leaguc of NatIOns, which very naturally came to be used 111 tbelr own mteresls by those who were ongmally Impelled towards them by theIr genume conVictIons, are tendenCIes whIch readily ongmate m thIS general scheme of thought:* they can be viewed as the dIctate, of God, of Nature, of Humamty. Anoth"'r result, whICh follows as rC'adI1y, IS a gospel of lIberty whIch would brmg enslaved and backward peoples, WIth or WIthout theIr own consent, uuder a reglm", of self-determmatIOn and self-government, and which seeks to ensure, by reward and pUl1lshment, the maintenance of that regIme. It was only the other day that a Judge of the Supreme Court of the Umted State>, C. E Hughes, ddlver",d a cours", oflectures to students, descnbll1g dC'rnocracy as the form of constltutIOn whIch, If it was the most dIfficult, and If It madt th", greatest moral demands on Its members, was yet the form dlctatt-d by God, by Nature and by Humamty In his ll1troductlOn to the German translatIon of these lectures,D.J. HIll, the fonner Amencan ambassador JIl BerlIn,makes the charactenstlc remark, that the lecturer never mentIOns the essentIal premISS ou w111ch hIS lectures dre based-the natural and dIvme foundation of the nghts of man-simply because It is self-eVIdent to all Americans.
4. The development oj German thought since the Romantic Movement

The intellectual thought of Germany originally shared in thIS general system of Ideas, or at any rate It shared in thl:' conceptIOn ofa Chnstian Law of Nature whIch was the baSIS of the system It goes WIthout saying I.e. the peoples of Wel>tern Europe, who held conVICtIOns about a Law of Nature and HumanIty, were unpelled by those conVIctIOns towards a belief In a League of Nations and a gospel of Pacifism; and they naturally used that belief and gospel to support their own SIde In the War (' the war to end war ').
BTS I
2 I0
Appendices
that the Germany of the Middle Ages was no less dominated by the idea ofa Christian Law of Nature than the rest of western Europe; and tven t~day the idea ofthat Law still perslSts in the ranks of German C&olicism. Luther, too, and the older and orthodox form of Protestantism generally, shared this inheritance; but an excess of emphasis 011 ol'llinal ,sin, and a corresponding excess of emphasis on mere authorit}'-the authority of the- powers created by historic development, and thus, as it were, legitimised by Providence-mvested Lutheran doctrine with a peculiar tinge of authorItarian conservatism, which the close connection of Church and State in the Lutheran system served to strengthen. The result was that, for practIcal purposes, the natural-law ideas of western Europe only affected Germany m the sadly attenuated form of enlightened despotism; and even the theoretical protagonists of that law, such as Wolff and Kant, proclaimed its principles WIth conSIderable reservations-rellervations In favour of the actual hlstoncal enVIronment which, as it impinges upon those principles, gradually subjects them to a rational process of modification. The peculiarity of German thought, In the form in which It is nowadays so much emphasised, both inSIde and outside Germany, I~ pnmarIly derIved from the Romantic Movement, whIch Itself IS SImply a development, a progress1.O ad infimtum, of the classical spInt of antIqmty. Romanticism too is a revolutIOn, a thorough and genUIne revolution a revolution against the respectabIlIty of the bourgeOIs temper and against a universal equalItanan ethIc: a revolutIOn, ahove all, agaInst the whole of the mathematIco-mechamcal splnt of science 10 western Europe, against a conceptIOn of Natural Law which sought to blend utilIty WIth morality, against the bare abstractIOn of a universal and equal Humanity. Confronted WIth the eruptIOn of west-European idees of Natural Law, and WIth the revolutIOnary storms by whICh they were accomparued, Romanticism pursued an mcreasmgly self-conSCIous trend of development in the OppOSIte directIOn of a conservatIve revolutIOn. In the spirit of the contemplatIve and the mystIC, the Romanticists penetrated behind the rich vanety of actual life to the Inward forces by which it was moved, and sought to encourage the play of those forces 10 a steady movement towards a nch universe ofumque and indiVidual structures of the creative human mmd. From dus point of VIew Romanticism too connects Itself naturally WIth hlstonc tradition-not, it IS true, with the theological and scientific elements in that traditIon which magrufied the idea of Natural Law, but rather WIth mystical and poetical tendenCIes, * which were entirely free from the influence of any such idea. The thought of Romanticism III dIrected to the particular, the posItive. to what IS eternally productIve of new vanety, constructIve, spIritually organic: to plastic and super-personal creatIve forces, which build from time to time, out of the material of particular indIviduals, a spIritual Whole, and on the baSIS of that Whole proceed from time to
I.e the histone traditIOn of Romantlc18m goes baek to the German mystics, and to the old TeutoIllc poetry of the Volsungs which inspired Wagner.

~ti~'" to create the particular political em~y and incarnate its significance.
2II
and social institutions which
Here we touch the essence of the peculIar form which German RomaIltIcism assumed. Wnters such as Wordswortht and Byron, Victor Hug a~d de Vigny, and more espeCIally Leopardi, use the old Stoic conception of Nature, and measurmg thereby the claims for happines~ made by the modern spmt they arrive at peSSImism and Weltsclzmerz. Schopenhauer was the only thinker who followed that lme m Germany. German Romanticism in general derived from Its conception of individuabty a new principle of reahty, of morabty, and of history. The decisive factor in this connectIOn was a feehng, half mystical and half metaphysical, whICh mterpreted the Idea of indiViduality as meamng the particular embodiment from time to time assumed by the Divme Spint, whether In lIldlVidual persons or III the super-personal organisatIOns of commumty-bfe. (I) The baSIS of Reahty was regarded as conSiSting, not in material and SOCial atoms on a footing of equahty with one another, or III universal laws of nature by which these atoms were combmed, but in penonabties constantly moving to different speCific forms, and III plastic forces constantly at work on a process of IndIVlduahsatlOn (2) ThIS in turn resulted in a totally dIfferent VIew of Humanity Instead of Ideas of the equal dlgmty of Reason everywhere, and of the fulfilment of uruversal law, we have the conception of a purely personal and umque realisatIOn of the capaCIties of Mmd In every directIOn, primarily 10 indiVidual perf>ons, but secondarily also in commumties themselves (3) The result of that conceptIOn, m turn, was a dIfferent theory of CommunIty. Contract and ratIonally purpOSIve construction were no longer regarded as the factors which created the ~tate and SOCIety out of mdividuais. The true factors were rather to be found in super-personal spiritual forces, radlatmg from mdivlduals who laId the foundations of sOClall&:,t III the National Mmd (Volksgezst); in the' Idea' of the Good and the BeautIful (4) Along With thIS dIfferent Idea of Commumty there goes a different Ideal for mankmd m general -not the ideal of a final umon offundamentally equal human bemgs III a rationally orgarused commumty of all mankmd, but the Ideal of a wealtlI of national minds, all strugghng together and all developmg thereby their lughest spiritual powers, in a ""ord, tlIe ideal of a mirror of God presented by a number of national Minds, all hfted above the world of Utlhty and matenal welfare. (5) Add these factors togetlIer, and you substitute the Idea of Development for the old Idea of Progress. You abandon a world where men are always seekmg, on the basis of equahty and by a mere process ofincessant clImbing, to lllcrease
* 'Jewells', whIch I have translated by the phrase 'from time to time', recurs again and agam m Troeltsch's argument. It ImplIes a constant genesIS, or re-geneslS--as opposed to creatIOn once and for all. t An English reader naturally feels that Wordsworth, who wrote the Ode to Dury and The Happy Warrior, has here fallen into the wrong company : Compare Carlyle's teaclung m Heroes and Hero-worshIp. 14.- 2
2I2
Appendices
the range of reason, well-being, liberty and purposive organisatipn, until they attain the goal of the unity of mankind. You enter a world in whIch there is a hierarchy of qualitatively different cultures-a ~orld in which the people that from time to time enjoys the hegemony hands on the torch to the next; a world in which all peoples must be' ptl~' together, as mutual complements to one another, in order to represent the totality of the He-process. (6) The baSIS of the wholr scheme of thought is ultimately a metaphysic m whIch mdlvlduality, pluralIty and pantheism are combined. It is a metaphysic whIch stands in sharp contrast to the pantheism of the StOICS, WIth its momstlc trend, Its identIficatIOn of moralIty WIth material well-bemg, Its reference of everything to a smgle law' It IS a metaphysIC which equally stands In contrast to Christian TheIsm, and also to naturalIstic DeIsm. Here we ultImately come upon the final and deepest dIflerence between Germany and western Europe; and it IS a dIfference whIch perhaps goes back as far as the days of Master Eckhard and Leibmz. * The general system of ideas we have Just descnbed was developed by our claSSIcal phIlosophers and theIr contemporarie~-Hegel and the Historical School; and it was developed on every side, as a new philosophy of nature, hIstory, ethics, aesthetics, relIgIOn and pOhtICS It is as a philosophy of polItIcs, In particular, that Its mfluence ha~ been most permanently important, both for international relatIOns and In the general dIvergence ofVIews whIch It has helped to produce. (I) When the State becomes the embodIment and expreSSIOn of a partIcular spiritual ,",orld as it eXISts at a givt>n time, the Justice and law It enforces also become partIcular and pOSItIve. Law ceases to be a mere nonspiritual product of authOrIty It becomes the pecuhar expression-the expreSSIOn at a gIven tIme, condItIOned by the CIrcumstances of tha~ time--of a world of ideas engaged m the process of organi'lmg itself in an external and legal form. The result of thIS view IS a total and fundamental dIssolutIOn of the Idea of a unIversal Natural Law; and henceforth Natural Law dIsappears almost completely m Germany. Law too, like other thmgs, becomes somethmg partIcular and pOSitIve, whIch only belongs to a gIven tIme and penod (2) Not only so, but moralIty proper-moralIty 10 the strict sense of the word-becomes altogether a matter of the inner self, In Its own partIcular spintual substance. The moral code is distingUIshed not only from the rult's of Law, but also from the demands and requirements of SOCIal well-bemg. This conception served as a solvent to the combinatIOn of law, moralIty and social well-bemg whIch was prevalent in western Europe, and whIch, indeed, went back through the MIddle Ages to StOIcism. It made Law something whIch lay outSIde the bounds of moralIty. (3) In addition, however, to this development, there was also another, whIch was ItS
* In other words, It was not, after all, RomantICIsm and Hegel WhIC'h first divided Germany from the West It was the mystiCIsm of Eckhart (A.D. 1300), and the philosophy of Lelbmz (1700), WIth its relativism and its doctrine of immanence.
2 I3
I co1\verse. This de-moralised Law was associated, in virtue and in con-
sequCVlce of a basic philosophy of Pantheism, with the idea of a spiritual and divine, essence inherent in the community.* This meant a deIficatioB .pf..the actual particular State; and thIS deification not only excluded the possibility of any revolutionary impulse, or indeed of any human initIative which was merely a maHer of 'personal accident'--it ultimate~ resulted in the mystical elevation of every State, even the State which was actually as imperfect as It could be, to the position of a sort of deity. (4) The whole of thIs hne of argument assumed the inequality of individuals; and this inequality, even If it did not result in the mdividual bemg treated as a minor, or dIvested of hIS autonomy, involved at any rate the neceSSIty of a sy~tem of SOCIal grades, social complements, and a social hIerarchy. It placed leadership in the hands of great men, from whom the spmt of the Whole essentially radIated, and by whom it was organised. The result was an aristocratic bias and a pyramidal system of graded Estates, utterly repugnant to all the ideas of western Europe about polttlcal equahty, and only artificially connected With the Ideas of organic SOCIal umty which the MIddle Ages had sought to formulate in Aristotehan terms. t VIewed m ItS results, the contrast between Germany and western Europe IS complete and allpervadmg. On the other hand, we have to admIt that there IS no real dIfference between them in regard to the value to be assigned to the free personalIty itself. And we must also admIt that CrItiCIsm of German thought, on the ground of ItS break WIth histonc tradItion, can only be properly apphed WIth any ngour after allowance has first been made for the novelty of the German conception of the phIlosophy of hIstory, j-s compared WIth the somewhat mechamcal VIew of hIstory whIch is connected with the ChrIstian and secular doctnnes of Natural Law.
5. German tdealtsm and mneteenth-century realism It was not fated that this German system of Ideas should be gIven the opportunity of a free and unprejudiced development, In the course of whIch It could correct and punfY ItS principles by actual tnal and experiment. It was only a handful of the great men who belonged to the age of the War of LIberatIOn that could work and thmk m these terms. There came, after rBI5, a return of the old enlIghtened despotIsm; and for want of a better object, that despotIsm was made the legatee of the new system of ideas. The result was a certalll narrowmg and hardening of the system. Then there arose the necessity, before anythmg else could I e Recht IS Volksreclzt Volksrecht IS the product of a Volksgeut. the Volksgezst
is an embodiment and 'obJectification' of the Eternal MlOd. Thus Law is
'associated With the spiritual and dlVlOe essence of the commuruty'. Because it IS the expression of mens populI, and mens populi is an expression of mens Dei, it attains a sort of diVinity. t The use of ArIstotle's theory of 'genesis', proceedmg through successive stages or degrees, to foster the Idea of a SOCial Stufenfolge, IS explained ID Troeltsch's So,(,iallekren der chnsUlchen KIrchen, pp. 270 sqq.
2 14
Appendices
be done, of constructing from the resources of the German spirit and' of I

German culture a new and united Germany: there came conta~ and struggle with a new wave of west-European thought: there came the disillusionment of the old beliefm spiritual forces, after the collaIiC of the revolution of 1848: there came, ultimately, the realism of the.Bismarekian epoch, engaged m a struggle with a sea of troubles, and seeking to wrest from that struggle the realisation of polItical unity. The result of all these facton. was the converSIOn of the onginal idealism into a stem realism. It IS true that the fundamental Ideas of Romanticism shll continued to be held; nor was there any return to the Law of Nature and the Ideas With which It was alhed. But the conceptIOn of a wealth ofumque National Minds turns into a feehng of contempt for the idea of Universal Humanity: the old pantheIStIC delficatlOn of the State becomes a bhnd worship of success and power; the Romantic RevolutIOn sinks mto a complacent contentmf'nt with things as they arc. From the idea of the particular law and right of a given time, men proceed to a merely positive acceptance of the State morahty of the spintual order, transcending bourgeOls convcn tiOH, passes 10to moral sceptIcism; and the urgent movement of the German mind towards a pohtlcal form and embodiment ends merely m the same cult of impenalism which is rampant everywhere. Caught in an obscure welter ofmotive~, thought turned readily in the dlrectlOn of Darwll11sm-a phIlosophy whIch, distorted from the ideas of Its author, was plaY10g havoc WIth pohtIcal and moral ideas In western Europe as well a~ III Germany. Henceforth the pohucal thought of Germany IS marked by a cunous dualIsm, which cannot but impre~s every foreIgn observer. Look at one of Its Sides, and you WIll see an abundance of remnants of RomantIcIsm and lofty Ideal-, ism: look at the other, and you wdl see a reahsm which goes to tht> verge of cyniCIsm and of utter mdlfference to all Ideals and all moralIty; but what you will see above all is an mclmatlOn to make an astom~hing combinatIOn of the two elements-1O a word, to brutahse romance, and to romanticise cyniCIsm. One especIally dangerous method for the makmg of mch combinations was offered by the later phases of the teaching of NIetzsche In himself, NIetzsche was essentially and thoroughly sympathetic with the very trend of development In German thought of which we have already spoken; but hIS peculIar comb1OatIOn of romanticism and materialism led none the less to his lending the brillIance of a fine poetIc dIctIOn to aid the:- sad confusion into which that trend was [alhug. By the:- SIde of NIetzsche we may also place the philosophy of Marxism, itself a child of the romantic philosophy of history, but a child which attempted to banish the spiritual and moral elements m its parent, and largely borrowed its own ethics (so far as such an element can be attributed to It at all) from the revolutionary theory of Natural Law current in western Europe Bismarck, Nietzsche and Marx-these are the three who, in their different ways, have at once fostered and dIssipated the movement of the ideas of romanticism. Fundamentally, however, the stream is still there: it IS sull a flowing

cve~here.
215
river; and to-day we can hear once more the great murmur of its waters
6. Qy.alificatlOns of the contrast between German thought

and the thought of western Europe The differences between Germany and we~tern Europe are now cleilr and intelligible. But it is only in a purely theoretical and extreme formulation that they appear to be so clear-cut. In actual life pure theory is never sovereign, and peoples are much more akin in reality than they are bound to apprar in the light of theories. What is true of the theones themsrlves is rqually true of their development. Here that development has been sketchrd entirely as a matter of the logiCal evolutIOn of principles. I n actual hfe, the growth and development of these theories is inevitably connected With the concrete needs and the active mterests of the practical pO~ltlOn at the time The Idea of Natural Law Itself, in the ancient world, sprang from a strong current towards individualism which was inherrnt m the actual sOClallife of a umversal empire; and each new development of that Idea was produced in Its turn by the practical necessities of the general conjuncture of affairs in each new phase of history. In the same way, but to an even greater degree, German theones were ongmally the product of the ideahsm of a small cultural lhte, destitute of a State, and thrrefore mtent on the thmgs of the mmd, and the changc~ which they underwent were due to a practical impulse towards their political embodiment, which was itself developed m the course of great European conflicts. It is not a slmpk matter of two logical alternatlve~, of which one IS adopted here and the other there, and either IS then developed on ItS own baSIS, With the primary purpose of satIsfymg the demands of consistency, in order that they may be pitted as nval systems and engage III an opinionated struggle agamst one another. It IS rather a question of systems of thought whIch are connected With actual situatIOns and actual needs, and which, because they are thus connected WIth real hfe, are generally defended not only on grounds of theory, but also, and mdeed pnm.lrIly, on the ground of their practical effects and advantages. This IS a point which Bryce expliCitly make~ in dealing with the thought of western Europe: but the !>ame line of argument IS equally, or even more, common in Germany. Here too we find practical arguments used; and here too appeals are made 10 the actual psychological nature of the nation, the uniqul'" character of the hIstorical destinies of Germany, and the difficulties of pohtlcal geography which she has had to encounter. Paul Joachimsen, in an excellent essay on The Psychology of the Gennan State, has recently illustrated thiS practIcal method of approach. Nor must we forget that the differences of which we have spoken are, in the last analysis, less mutually exclusive than they appear at first sight to be. Both systems postulate the Idea of the autonomy of man and of personality: both postulate that cntlcal attItude towards experIence and tradition which was the product of the Age of Enlightenment. It
216
Appendices
is true that this ideal of the autonomous personality is only a sort of common ingredient in two different systems which still remain fundamentally dIfferent it is also true that any attempt to develop thIS Ideal logically involves some difficulties for both. But from our present point of view-which IS that of seeking to understand the purely-.thcareti~l ,'elaboratibn" Df wbJ.ch the contrast between Germany and western 'lnrope is capable, and the actuat"use whiCh was made ofit,'f6r purposes ') C'!f propaganda, In the Great War-we must forget the practicar" qualificatIOns ofthe contrast, and neglect the Internal contradictions an~ limitations In either of the opposing-views So regarded, the two sYstems confront us purely as systems, and eIther seeks to vanqwsh the other as ~_ code of eth~cs.and a school of philosophy. The most definite formulation;~rest dIfferentIation, are then the methods attempted, with the object of mobilising every moral mstmct against the opposing side.
7. The problem of modern Germany If we would simply understand these dIfferences, we are thus entirely justIfied m treatmg them on thIS ground of pure theory, and m thIS concentrated form. On the other hand we are bound, as soon as we nse above the ImmedIate objectives of war, to regard any understandIng we have attained as simply a prelimInary baSIS, on whICh our WIlls can then proceed to adopt an attltude and make a declSlon in regard to these differences-Qr even to bwld a bndge and attempt a reconCIlIatIon between them. ~ut the fundamental questIOn to whIch we naturally come in the last resort is this 'Who is m the nght m this conflIct of 'views'" Perhaps we ought to restate the questIOn, and remembering that on thIS Issue, more than on others, It IS Impossible to be lIfted above the strIfe m a temper of complete dIspaSSIOnateness, and that each ofus is bound, after all, to judge the issue prImanly from the pomt of VIew of hIS own natlon and Its hIStOry, we ought to ask, 'To what extent are we perhaps compelled by thIS conflIct to correct our German theOrIes, , sInce it has undeniably dealt them some shrewd blows, on some of theIr essential points, and SInce we cannot possibly evade our difficultIes by any sort of appeal to Kant and the German Age of EnlIghtenment?' For a glance at the great mam features of our development wIll teach us, beyond any shadow of doubt, that m all our VIews of hIstory and politics and ethics we bear the stamp and show the influence of the postKantian perIod, far more than we do of the penod of Kant. Indeed It is as clear as anythmg can be that It was really the post-Kantian age which first revealed the wealth and the depth of the hlstoncal approach to reality , We need not enquire whether such self-analysis and self-critiCIsm can have any effect on the general pOSItion of mternatIonal affairs. That is a separate and mdependent questIon; and that field IS stIll predominantly one of conflIct and the dehberate fannmg of the flames of difference. What we have really to face is a problem whIch springs from ourselves, and has its roots m our own actual duty of self-analYSIS, at this
217
tragic hour of our national destiny and in the stress of the spiritual crisis which it Imposes upon us. Our primary concern IS not with propaganda and apologetIcs for the world outside: it is with order and clarIty at hom~, and among ourselves.
8. The new hzstorzcal attztude required We can only find a solution of thIS problem if we apply two standards ofjudgment We may ask, first ofall, whether our theories actuallyjustify themselves by providing a clue to the meamng of hIStOry; 'we may ask, in the s~cond place, Iww they stand related to the fundamental demands 'ot ethlC:s.~et us attempt, m conclusion, to give the briefest of answers 'ttr our final problem, along each of these lines of enqmry. A full answer can only be given a~er a long effort of mvestIgatIOn J?Y_2~_h~~~~!c3:1 and moral sciences hat is the new labour that confronts U~; It JS the "duty ~d upon us by e spIritual disturbances whIch the War has proauced: ,All that can here be attempted IS some indication of tile maIn lines on whIch such an effort must proceed, If ever we are really to solve the grave questIOns which have been raIsed by the world-propagandi. again.st us. Pursumg first the histoncal hne of enqUIry, we may faIrly urge that German theones, m VIrtue of the very Idea of mdlViduahty whIch has formed theIr baSIS, have contnbuted m a remarkable degree to hIstorical mvesugation and the understandmg of history. They have taught the world the nature of hIstorIcal thought they havecreafeaUle hlstm"icat @se~ a~ a specific and definite thmg. ThIS IS the advance which they mark on the hIStonography of the Age of EnlIghtenment, and on the .later historians who wrote in the sptrit of Positivism or belles ~.""it IS the lesson which we can learn from an English work~y GoosJi\ on 'Modern HIstoriography', * 'though the work does not appeafto have ...evoked any great amount of sympathy m England But thIS same Idea of Indlviduahty has also produced some consequences which may well gIVe us pause In ItS permanent effects it has been altogether dIsastrous to the conceptIOn of umversal history It dIssolved and dlSlntegrated that conception' It enslaved It to notIOns of 'relatIvIty'. it transmuted it either mto specialIsation, buttressed by 'method', or pure natIOnal introspectIOn In thIS respect the.JeIJ.d.ell.c.y.ofthe Age of Enhghtenme.w. was somethmg greater and broader, t and thIS tendency has sUI)C~d \tn western Europe to a greater extent thari it has with us. ltoman~ ,fr.Se1f). like contemporary classicIsm,t had been read. enough to think' ,m terms ofumversal hIstory; but there came a change':'The increase of 'specialist research, the abandonment of the phIlosophy ofhistory wnich
The reference is to Htstory and Htstorzans zn the Nmeteenth Century, by G. P. Gooch, 1913. t Compare, for example, Gibbon and Glesebrecht-The DeclIne and Fall of the Roman Empzre (vol. I, 1776) and Dte deutsche Katserzezt (vol 1, 1855) t E.g the' classIcISm' of Wmckelmann's work on Greek Art and Wolf's Prolegomena to Homer (CIrClter I77lr-Q'i).
218
Appendices
had once held sway; the complete detachment from any sort of philosophy in a school ofresearch which sought the particular, and immersed itself, either from partt pro 'of llnder the weIght of learni12B> in pure detail-all these causes turned mo_st of Q1,lr !iiSforiOirapfiymto"the paths ~~t~nalism or"emnplete -relativity. -"" - _. a -was needed, m the face of such a development, was a return to a way of thinking, and a way offee1ing about hfe, which was not merely 'historical', but' UIllversal-histoncal '. It will be one of the great tasks of the future to attam such a way ofthinkmg and feelmg We may even say that thought and feeling of this nature are always essentIally present wherever there is an Impulse towards hIstory, and they can only be repressed by the pressure of speCial CIrcumstances But if you wam: universal hIstOry, youmust have some notion of the future and its goal; '"for only in the light of such a notion can the recor~ of man be drawn together into a unity. How far that IS pOSSible, and in wnat sense it is possible, is one of the great burnmg questIOns of the day. The attitude towards history which is merely speciahst, or for that matter merely contemplatIVe, has to be transcended: the image of Clio has to be made to face, once more, towards the great and umversal problems of the future. The ngour, the WIdth of eqUipment, and the devotion ofresearch mto what has happened {G.ewesenes),t "must be combmed With the will ':11Tht acts and shapes the future; and thIS active WIll of the hIstorian mWlt~ :ii6t on1y-p~netrate Into the bemg of hIS own particular nation, but It -lfi'tlst also nse to a view of the being of that nation as connected with the 'Deing and the development of the whole Worta-.. Here again western Europe has certamly preserved, at any rate among some of its representatives, a greater degree of active VIgour and practical sense. r Last of all, and most of all, the problem of attaming a harmony of culture ln ou&:-generatt6n reqUIres US to pay a much greater regard to ;the great world-forces m polItics and ethIcS-which dommated the mne\teenth century, and pnmanly ~~velopmentswhICh sprang f~oii} ~tl!ral Law and the Idea of Humamty.. .'T1i:ese developments wl1l, and must, play theIr part m determmmg the Ideal whIch must underlIe any future harmony of cIvIhsatlOn~and they WIll do so beca;gst_ they are inextncably connected wiHi a certam mtcllectuarma:funty, a certain. stage in the mcrease of populatIOn, and certam relIgIOUS and philosophical elements in our modern phase of cIV1hsatlOn~,They wIll also have a decisive mfluence _on what we actually are. as well as on Q1.!f ideals of what we should be. These are matters which have mdubitably been neglected by our. German histonog:aphY,'l0r at any rate treated WIth an Ill-advisea- 9Jl1ipathy,5> whIch astoniShIngly combines an exaggerated romantiCIsm with a habIt of relIance on Prussian militarism for the support oflaw and order. "A change is po';'sioIe Without a:ny re-jectIon of the essence of German Ideas: on the contrary, a change would
... 'True hIStory', we may say, 'IS teleological hIStory'. t Compare Ranke's saymg about lllstory, 10 the preface to hIS first work, Er WIll bloss zetgen wu es elPentluh pewesetl.
Troeltsch on Natural Law and Humanty
2 19
only mean a return, in many respects, to an earlier, broader and more candi2....treatmtul..Q.~Q.Q'. It would also restore a new contact with t1ietiiougIit of western Europe, at a number of pOInts on which there was once a large l1;1~.~1~ <!f~~~l1;!~~W~..s11 it awiQJJ.t..own..classicaromantic .~~I77O-I800),and on one point in particular-that of the -so.:eatted ~ts of Man t-~it would aid us in correcting a certain onesidedness, ~""Was arre~dy fraught with serious consequences in that ~, and is even more serious to-day Ul. view of the universal drffusiOfto. oTWestem ideli"S which has since ensued:"But we need not, in changing Our attitude, forego altogether any criticism of the ideas to which we turn-the Jess, as s~ch cnticIs'ffi"tsalready being applied tp them at" eYi?~m~ in western E_urope itself, where It is generally curJ::eI.lt ~ (the form, not Indeed of MarxIan SOCIalism, bllt at any ra:te osocialistic' \ IQeas:'We may even say that the best elements of German thought have itrtnany respects a close affinIty WIth such criticism, so far as it IS dIrected to somethmg more than econOmIC Interests and~!:1!ggle~d~.p.Q..SO ~t has!3d :tQ"J2.roblems of spIritual hfe and(~~ ;"soeiaI well-heir
w...aa.
9 The new ethzcal attztude reqU1.red When we turn to our second, or ethical, hne of enqUIry, we have to begm by insistIng once more on a fact to which we have already referred. If the dasslco-romanuc spirltJS closely connected ':Vith German hlstorial.th15ii'gIiI;i~lCS ~ extraordinary advance, If we look at its general tendency~j~wards a free, personal, and indIvidual ethic "~In order to feel the aesthetic invigoration and emancipation which such an Idea of morality can inspIre, we must read t~_Edmburgh Rector!.a!. Address in w~Ich Mill expressed hIS desire that something of the spirit bf Humboldt mIght fall on the 'gentleman' trained by PUrItanism and businesst-a suggestion afterwards rejected by Herbert Spencer~..as derogatory to the natural sciences and emfIrlc_<:tlohserv.auOJ1 An Ideal such as that of Huml5nlm-m indeed a rea emanCIpation, when we set it OltU ~st.!d~a~_of morahty whIch a~SImpJy those of a relIgIOUS confeSSIOn, or of middle-class-'convention and social position, or of bare '"and abstract ratlonahsm The same is true of the. 9fgaAlC ~onceptwn .of the co~umty which IS connected'"with such an Ideal. The conceptIOn ~la community has a unity ofh~ pervadmg ItS dIfferent p~::!ts, which is directed to th-e wen':'oeing of The wnole and determined by ine.. 'indIVIdualIty of the whole, i~_surely somethmg rIcher and .wore1l~, from a purely ethical pOInt of view, than any conception of' contractf! . and 'controls' ...--_II.l4-_......... . ,. . r_ }.!!tended to secure a common dIffusion of prosperity.
\
'It Because it starts from the conceptIOn QU~glV!guahty (p. 21 I supra), and because It postulates the Idea of the auto~0ptY~fman and ofpersonali~.2 I 5). t In the Essay on "]';;herty also, c m, Min cites Humboldt's Sphere aful Dutzes qf Government, and states, as a theory of which 'few persons, out of Germany, even comprehend the meaning', his ideal of mdlviduality of power and development.
220
Appendices
And it provides as surely, from the same ethical point of view, a high&r principle of conduct than the opposing idea of Equality, which always tends to result in a tangle of radical contradictions, or else in l'anal superficialities. Yet when all is said, the moral philosophy of Romanticism "ha'!l"its d~fects. The idea which it presupposes, and yet only allows to emerge in one particular form-the idea of the fundamental person~ liabIlity, the responsibility, the autonomy of Personality-is one which ought to have been given a very much greater prominence than It ever received in Germany, espeCIally in the later transformations and political perversions of the spirit of Romanticism. The theory of the RIghts of Man -rig-hts which are not the gift of the State, but the ideal postulates of the State, and mdeed of Society ltself, in all its forms-is a theory which contains so much of the truth, and satisfies so many of the requirements of a true European attItude, that we cannot afford to neglect 11; on the contrary, we must mcorporate It mto our own ideas The same is true of the theory of Associations, as possessmg theIr own individual unity of hfe, whIch has now become so important a factor in our VIew of Society and the State. * We must not allow that view to be petrified by tradItion and custom and natIonal self-esteem we must not allow It to leave out of account other State~ and peoples and communities, or the need of an ordered system of relatIOns WIth them The WIder horizon of'the parliament of man and the federation of the world' mu~t mclude all the elements of whIch we have spoken, as moral neceSSIties and postulates; and while we recogmse the obstacles which actually confront these postulates, we must none the less chng to them as our Ideal At the heart of all the current ideas about a League of Nations, the organisation of the world, and the lImItatIOn of egmsms and forces of destruction, ' there is an mdestructible moral core, whIch we cannot in Its essence reject, even if we are pamfully aware, at the moment, of the dIfficulties which It presents and the abuse to which It is liable. We may see the difficulties and the abuse clearly. we may seek, WIth all our strength, to overcome them; but what we cannot do, and must not do, IS to deny the ideal itself in its own essence, in its ethIcal signIficance, in its connection with the phIlosophy of hIstory.
10. Spenglerism and Soczalzsm We have sketched a programme of self-analYSIS for the historical, polItical and ethical thought of Germany; but it is no more than a mere mdication of the directions along which the effort has to be made. Such a programme can only be achieved by the labour of generations, and by the gradual formation of a common resolve, among our leading
* Troeltsch IS contending that just as German thmkers ought to give a deeper sense, and a wider scope, to the idea of indiVidual personality which RomantiCism implied, so they ought to generalise (and not confine to Germany) the idea of Group-personality which it also assumed.
221
thinkers, to work together for its realisation. We are not required to

retra~e th~ whole.of the path we have trod, or to renounce the quality
of our national Spirit: we are only asked to recover ideas which we have all"wed ourselves to lose, and to develop and adapt the thought of our stoi:Jc. fa the vastly altered condItIOn of the modern world At the moment we are still very far from being of one mind m regard to tQe assumptiolis on which we ought to proceed. When we look at a book such as Spengler's Decay of Cwllisatwn, whIch is fundamentally inspIred by Nietzsche, and reflect on the enormous impreSSIOn which it has made, we have to admit that the current is flowing in the opposite direction to that which has just been suggested. It is encouraging men to formulate, in theIr extrt"mestform, all the deductIOns which can be drawn from Romantic aesthetIcIsm and Romantic Ideas of mdividuality to foster the cause of SCeptiCIsm, of amorahsm, of pessuIDsm, of belief m the policy offorce, of sImple cymcism 'Decay' is mdeed a consequence whIch follows logIcally on such a basis, for with such Ideas in their mmds men SImply cannot exist, or fight the battle of the future. Spengler's book is an absolute confirmatIOn of the reproaches whIch western Europe bnngs agamst us: It is nothmg le~~ than a hauling down of the flag of lIfe in the course of man's perpetual struggle to keep It flymg. He who deSIres to survive-and our natIon does desire to survIve--ean never go that way. Our duty to our German traditIOns IS not to push them to an extreme and one-Sided conclusIOn-surrendermg, m the process, the relative merit of strict and scholarly accuracy wluch they possess-but to brmg them mto new contact WIth all the great movements In the world about us. But It would also be an error, and an t"rror in the reverse directIOn, , to believe that soclahst theory, and the SOCIahst mterpretatIOn of history, are on the right track It IS true that the German theory of SOCIalism, 1Il Its Marxian form, IS a combination of elements It umtes a theory of hi~tory whIch was formed by RomantIc plulosophy, and which makes hIstory a process of comtant mdlviduahsdtIOn, WIth the prmciples of a democratic and humamtarian cosmopolItam~m The first of these elements is responSible for anything whIch Socmhsm can offer in the way of a realistic VIt>W of hIstory and evolutIOn, or of spIntual suggestion and constructIve SOCIal power. the second IS the source of the whole of ItS gospel of world-revolutiOn, world-salvatIOn, the (ause of Humanity, the universal organisation ofall mankind. But ifSocrahsm I~ a combll1atIOn of elements, It is a defectIve combmatIOn. The first of Its elements has been utterly desiccated by a barren econonuc materialism, and the atheism whIch goes along WIth It, and the union between ItS two elements IS so external, and so artifiCial, that they are cont1l1ually breaklllg apart. Socialism IS a compound which IS always dIssolving into its component parts-a ngorously determ1l1ist Idea of evolution, altogether barren of controll1l1g Ideas; and a totally unhlstoncal passion for revolutIOn, to be achIeved III the name of H~al11ty and Equality. When the socialIst feels that he must enunCIate prmCIples, he naturally
222
Appendices
lays his emphasis entirely, or almost entirely, on the second of these factors. When that happens, socialistic principles become practically indIstinguishable, in spite of the Socialist challenge to the bourg~oisie, from the bourgeois philosophy of the West; and the mdividualistiC 'lnd utilitarian basis of that philosophy, in particular, is simply cfdo1?ted "'iholesale. The distinction between German Socialists and the peoples of western Europe is thus practically reduced to the fact thaf the latter, with the proud confidence of great nations, feel themselves to be representatives of great natIOnal positions of leadership, while the former simply follow in their wake, failing to bring their own nation into any touch WIth the problems of the future, and faIling equally, as a result, to pay any real attention to the peculIar political conditIOns of its life. NeIther the doctrines of Spengler nor the doctrmes of SOCIalIsm are the new gospel that we need. They are rather the Scylla and Charybdis between which we must steer our course We must make for the open sea of fresh, unprejudiced, far-seeing thought upon all these issues, remembering that, if they are in themselves the oldest objects of human action and human thought, the answers they ask for from us to-day are new.
APPENDIX II
GIERKE'S CONCEPTION OF LAW.
The devel~ment of natural-law Ideas in regard to the relation of the State to Law attained its culminatIOn at the end of the eIghteenth century. After that time we can begm to trace a process of collapse and dlSlntegration in the whole of the natural-law system of thought. In Germany the theory of Natural Law dIsappears before the new world of Ideas introduced by the Hlstorlcal School. It wa~ the achievement ofthat School to transcend, at last, the old dichotomy of Law into Natural and POSItIve Regardmg Law as a UIllty, and concelvmg it as the posItive result and livmg expreSSIOn of the common conSCIOusness of an organic commuIllty, the thmkers of the Hlstorlcal School refused to content themselves WIth merely contmumg to emphaSIse one or the other sIde of the old antItheSIS: they sought and achH:ved a synthesis of both in a higher unity. The factors whIch determlIled theIr conceptIOn of the relatIOn of the State to Law were factors equally derived from the Natural and the Posit.ive Law of the older doctrme. In the new Vlew whIch they attained, Law ceased to be regarded as partly anterior and supenor to the State, and partly produced by and mferIor to It. Law and the State were held to be so intertwmed that they were regarded as coeval WIth one another; as intended to supplement one another, as dependent upon one another The phIlosophIcal elaboratIon of thIS ldea has not yet been fully achIeved. MeanwhIle there has been an abundance of CrItICIsm, from all sorts of quarters, some of It devoted to dlscovenng the errors of the Historical School, and some of It even to callmg 1Il questIOn again the very foundations of the hlstoncal view of Law. So far as the problem of the relation between Law and the State IS concerned, we can detect 10 the chaos of modern opimon two particular currents of thought, opposed to one another, but umted together m OppOSItIOn to the l11storic-orgaIllc idea of Law. On the one hand, there has been a penod durmg whIch conceptIOns of an abstract Law of Nature pres5cd once more to the front, and menaced the very Idea ofthc State. On the other hand, there is now a current of thought, whIch I~ gradually gammg volume m Germany, t that threatens to undermme all the foundatIOns of Law. It recurs to the old ideas of POSItIve Law, but It abandons the notion of Natural Law which used to be the complement of those ideas. In this last and newest way of approach, the Idea of Law ultImately vanishes altogether. So far as ItS content or 5ubstance goes, It is en Translated from lus Johannes Althuszus, Part 11, C VI, 111. t These words were ongmally WrItten about 1880. They are repeated later editiOns.
In
the
~g4
Appendices
,'gulfed in the idea nfUtility; so far as its power or efficacy is concerned,

it is engulfed in the idea of Force. If this way of approach should prove' victorious, ~e only merit of the Historical School will have been its rejection pfNatural Law; and the ideas of Natural Law, reduce9 t~en idle play of the human imagination, will have pursued in vain tlleir many centuries of evolution. But if there is to be a true Law in the future-a Law wh1~h is not a mere dieor of traditional well-sounding names, but the genuine expression of a specific, unique and intrinsically valuable idea of the mind of man-a different historical perspective reveals itself to our eyes In that perspective, we can see that the idea of Law has won real and permanent conquests from the development of Natural Law; we can see that the Historical pomt of view, far from surrendering those conquests, has only generalised and diffused them; and we may confidently belIeve that these conquests wdl never be lost 10 the future, whatever changes or improvements may be made in men's conceptions ofLaw. On such a View the sovereIgn independence of the idea ofJustice, secured before by the old conception of Natural Law, will still continue to be firmly secured by our new conceptlOn of Law as somethlOg thoroughly pOSitive-no matter whether the idea which opposes that conception be the idea of social utilIty, or the idea of collectIve power.... If Natural and POSItIve Law thus c010clde in their essence, the relation of Law and the State will no longer be conceived in two opposite ways, as it was 10 the older theory; and the Ideas which found expressIOn in OppOSIte powts of view may now be united in one We shall no longer ask whether the State IS pnor to Law, or Law is pnor to the State We shall regard them both as 10herent functions of the common lIfe which, is inseparable from the Idea of man They WIll both be primordml facts' they will both have been given, as seeds or germs, coevally WIth man himself' they will both appear, as developed frUits, Simultaneously with One another and 10 VIrtue of one another. We shall regard the State, and all other orgamsed forms of collective power, as no mere product of Law; but we shall hold that every form of power, from the lowest to the highest, can only enjoy a sanctIOn, and receive Its consummatIOn, when it IS stamped and confirmed by Law as being a legal power Conversely, we shall regard all Law as needing the sanction and consummatIOn of power; but we shall not count the State, nor any other human power, as the maker and creator of Law. Law, which is, in its essence, a body of external standards for the actIOn ofjree wills, cannot Itself be made of the substance of will; for if will is made the standard for WIlls, the logically ineVItable result must always be that w111 turns itself into power. If there IS to be an obligatory external standard for the action of will zn general, and not merely for the action of this or that partuular Will, such a standard must be
... 'Social utility' and 'collective power' seem to represent the creeds of Socialism and Radical Democracy.
Gierke's Conception of Law

'som~ing
215
<.
rooted and grounded in a spintual force which confronts the will ~ independent. That force is Reason. It follows that Law is not a common will that a thing shall be, but a common conviction that it is. Law IS the conviction of a human community, either manifested dir~ctl~y usage or declared by a common organ appointed for that purpose, that there exist in that community external standards of will -in othe~ords, limitations ofliberty which are externally obligatory, and therefore, by their very natvre, enforceable. I t is true that the State, in its capacity of legislator, not only shows itself actIve, over a large and Important field, as the 'bearer' and the corroborator of thIS conVIctIOn of Right (or Law), but also consummates every development of such conviction (I) by the issue of a command and (2) by the use ofcompulslOn. But (1) the action of the common will m commandmg obedIence to what zs Law is not an action which creates Law: It IS only an action whIch sanctions Law. Similarly, (2) the fact that a supreme power IS needed, in order to realise fully the compulsonness demanded by the nature of Lav., does not prevent Law from stIll bemg Law even though, in a particular case, compulSIon is lackmg, or can only be imperfectly applied, or IS altogether Impossible for want ofa hIgher power which IS capable ofusmg it-provided only there really is a common conVICtIOn that compulSIOn would be rIght if It were pOSSIble, or if a competent authority were in eXIstence. On thIS basis, we may, indeed, hold that the State It. more ilian a legal institutIOn, and eXists for more than the purpose of Law; but we shall also hold that the purpose of Law IS pre-emment among all the purposes of the State's eXIstence-Just because the full consummation of Law reqUIres the presence of a sovereIgn power-and we shall therefore regard the legal purpose of the State as ItS e~sentIal purpose, which cannot for a moment be abstracted from our Idea of Its nature. Conversely, we may, mdeed, regard Law as intended pnmarily to serve the purposes of the State's hfe; but we shall also consider Its objects as far from being exhausted by, or lImIted to, such service There is mdeed one admission whIch we shall have to make on such a VIew If we place the State neIther above Law, nor outt.ide It, but m It, thus confining the lIberty of the State within the bounds of t.he system of Law: If, agam, we set Law neither above the State, nor outSIde It, but In It, thus allowing the formal ommpotence of the sovereIgn authonty to assert Itself even agamst Law-then there will be a possibIlIty of contradIction between the Matter and the Form of Law*, the actual and the Ideal. But to deny the pOSSIbIlIty of such a contradICtiOn IS to deny the very idea of Law. A deep element. in the spIritual nature of man longs for the union of Law and Power-ofRzght and MIght. DlvI~Ion between them is always
The Matter is what IS actually eJWressed by the sovereign authority in ita enactment: the Form IS the Idl al of RIght whIch ought to shape and control such enactment.
226
Appendices
fult to be something wrong. This feeling is the best evidence that Law may exist without Power, and Power may exist without Law. But it is also the Source ofa healing and reconciling influence, which is af'ways tending to bring us back to a unity of Right and MIght. The hu~ conscience cannot pennanently endure the separation of the tWot.l R%ht wpich cannot establish Itself vanishes at last from the common conscience, and thereby ceases to be Right. Might which ex~~s without Right, if it succeeds in maintaining Itself, is felt at last by the general conscience to exist as of right, and is thus transfonned into Right. In a note appended to later editions Gierke adds: The statement of the author's own views on the relatIOns of Law and the State, and his ammadversions on the Power and UtilIty theories, make the concluding remarks of this chapter depart from the spirit of historical analysis to a greater degree than the occaSIOnal remarks at the end of the previous chapters of thiS work. This may appear to be open to criticism. The author would plead m excuse that he was dealing with a matter which lay close to hiS heart.... I still live to-day m the conviction that our legal tht"ory and our legal life can only thrive on one condition-that 'posItiVism' should somehow learn to preserve for the idea of Law that ongInal and mdependent title to existence which was vindicated for it by the School of Natural Law. I reg-ard as mlStaken all the attempts to resusCitate Natural Law mto a bodIly existence, wluch can only be the eXistence of a simulacrum But the undymg spmt of that Law can never be extingU1~hed. If It is denied entry into the body of pOSItive law, it flutters about the room like a ghost, and threatens to turn into a vampIre which sucks the blood from the body of Law. We have to accept together both the external expenence which testifies that all vahd Law IS pOSItive, and the internal expenence wluch affirms that the livmg force of Law is denved from anldea of Right which is mnate in humanity; and when we have done that, we have to blend the two experIences m one generIc conception of the e~sentIal nature of Law. The method of acluevmg thIS object IS a matter on which agreement cannot so eaSily be found. But many who seek to attam it by other means wIll agree with me about the end which we have to attam.

VOLUME II
CONTENTS
VOLUME II
v
GIERKE'S NOTES
14. The Natural-Law Conception of the State IS. The Natural-Law Theory of Associations 16. The General Theory of the Group in Natural Law \ ' I 17. The Natural-Law Theory of the State lB. The The91' Jf Corpotations in Natural Law
229 26g
288
333 3 67
VI .LISTS OF AUTHORITIES
1\. 1500-1650
B. 165-1800
VII INDEX
401 409
GIERKE'S NOTES
[of. THE NATURAL-LAW CONCEPTION OF THE STATE
1. After the sketch given 10 my work on 'Johannes Althusius and the natural-law theories of the State', the only matter on which I need to go into detail here is the relation ofthe natural-law doctr1Oe of the State to partlcular problems which are of special importance 10 the history of the theory of the Corporation; and for the rest I shall content myself WIth glving references to that work.... I have not worked through the large body ofliterature which has appeared since the completion of thlS subsecuon. But I may refer to the Addenda to the second and third editlons of my work on Althusius for an account of my attitude to views dIffenng from my own which have been put forward smce I first wrote. 2 This is the case WIth]. Oldendorp (1480-1561), JUriS naturallS, genhum et Civilis lSagoge, Cologne, 1539 (Opera, I, pp. ISqq); N. Hemm10g (15 I31600), De lege natmae apodeutlta methodus, Wittenberg, J652 (also pnnted in Kaltenbom, n, pp. 26sq~); G. Obrecht, DeJustltlO etJure, 10 SelectlSSlmae dlSputallones, Strassburg, 1599, no. I; B. Wmkler (1579-1648), PnTlClpwrumjuris llbn V, LeipZig, 1615 ,Kaltenbem, n, pp 45sqq.), B. MelSzoer, De uglbus, Wittenberg, 1616; John Selden (1584-1654), DeJure naturall et getltlUTn,juxta dlSClplmam Ebraeorum, London, 1640 See also Bolognetus (I53g--85), De uge, ;ure et aequitate, in Tract Umv Jur. I, fo1. 289-324. 8 . See Franciscus Victoria (l'omlmcan, t 1546), Relectrones tredecim, Ingolstadt, 1580; Domimcus Soto (Dominican, 1494-1560), DejushllO etJure, Vemce, 1602 (first published 1556), F. Vasquez (150g-66), ConlroverSlorum Illustflum alzarumque usu frequentlum llbrl Ill, Frankfort on the Main, 1572; Gregorius de Valentia (JesUit), Commentanl theOIOgZCI, Ingolstadt, 1592, II, Dzsp. I, Balthasar Ayala (1548--84), De jure el ojJiiilS belli, Antwerp, 1597; Ludovlcus Molina (1535-1600), Dejuslltla etJUTe toml VI, Mainz, 1614 (and also 10 1602); Leonhardus Lessius (Jesuit, ..J554-1623), De Justlha et jure llbn IV, 3rd edition, Antwc-rp, 1612 (first pu!:?lished In 1606); Cardinal Robert Bellarmine (1542-1621), De potestalt! ftl1PIflIti pontzficzs zn rebus temporallbus, Cologne, 1611 (first published 10 1610), Johannes de Lugo (Jesuit), De ;ustzlla et Jure, ed. nova, t..yons, 1670. 4. F. Suarez (Jesuit, IS48-1617), Tractatus de legibus ac Deo legislatore, Antwerp, 1613 (first published in 161 I). 5. Hugo Grotlus, DeJure bellz ac pacts 11M Ires, 1625; the edition used by the author is that publlShed at Amsterdam, 1702. 6. See Machiavelli (I469-1S27), II przru::lpe (first published in ISIS), and the whole body of literature written about and against hIm. See also the numerous' Mirrors of Princes' and cognate writings, such as: ~. Lauterbeck, &gentenbuch, new edition, 1559, Osorius, De RegIS mslitulzone, Cologne, "S7~ Waremund de Erenbergk (Eberhardt von Weyhe), Au/us'JolztICUS, IS96; Hippolytus a Collibus, the Pnnceps (1592), and t.!:le ConslllaTZUS, ~e Palatinus and the Nobi/is, edIted together, with additlons,oy Naurath,
Early works on
NaJural Law
&clesiastieal
Wflters
on
Natural Law
Polztual
wrihngs on
practual questions
BTsn
15
2.,30
Gierke's Notts
Frankfort, 1670; Mambrinus ROIIaeus, Institutio prillCtpis christiani, Str8lllburg, 1608; Tympe, Aureum speculum principum, Cologne, 11>29 (firtlt published in 1617); Georg Engelhardt von Lohneys, Ho/-, Staats- und Regiwkunst, 1622; Carolus Scribanus, PolitICo-Christionus, MUnster, 1625; Ambrosi\as J,4arlianus, Theatrum pollt1.Cum, Danzig, 1645; Saavedra Faxardo, Id4a da uno prin&ip~ Cnstiano, 1649. See ako the writings on arcana rtlpuhlical, such as: Clapmarus (15'4164), De arcanis rerumpubltcarum llbn VI, Jetla, 1665 (first ~ublished 1605); G. Obrecht (1547-1612), Secreta politICa, Strassburg, 1644 (previously published in 1617). In addJ.tion, we may cite: Oldendorp, Von Ratkschlagm, wie P1IQn gute PollCey und Ordnung in Stedten und Landen erhalten moge, Rostock, 1579; Ferrarius, De republICa bene wtituenda, Basle, 1556, translated into German by Abraham Saur, Frankfort, 1601; Melchior ab Ossa, Testamentum, Frankfort, 1609; Zech, PollllCorum ltbn III, Cologne, 1600; Gentillet, DISCOUfS sur les l'1IOyens de bien gouverner, 1576; Jacobus Simananca, De republica lib'; IX, Srd edition, Antwerp, 1574; Lipsius, PollllCorum libn VI, Antwerp, 1604; Loys de Mayerne, La monarchle aTlstodhnocrahque, Pans, 1611; J. a Chokier de SUrlt"t, ThesaufUS POLJtlCorum aphOflSmorum, Cologne (many editions) ;]ean de Mamix, /lbolutzom POlztlqU/!,s et T1IIJXlme,s d'Jtat, Rouen, 1624. 7. Botero, Della ragiane dl stato, Venice, 1559, Zinanus, De rahOne optlme Treatises on raison d'etat imperandl, Frankfort, 1628; W. F. ab Efferel1, Manuale polltlCum de ratIone status, Frankfort, 1630; Wangenbeck, VlTldlClal Polltlcae adversus pseudoPOlItICOS,. DillIngen, 1636. The work of HippoIIthus a LapCie, De ratIone status In Impmo nostro R01lUlno-GemuznlCo, 1640, belongs m Its general tone and treatment altogether to the purely political school, cmd mak6ll the dIctates of raIson d'itat superior to the reqUlrements of Law; but In dt"Altng WIth German conditions the author dJ.sunguishes sharply between (I) the analysis of the existing conditions (which is treated from a J)urely hlStorico-legal pomt of View in Part I), and (2) poliucal maxiIns 'which are suggested in Pa;ts II and m).* 8. Petrus Gl'egorius Tholosanus (1540--91), De republica, Frankfort, 1609 (first pubhshed in 1586). 9. H. Amisaeus (t 1636), Opera omma POII/ica, Strassburg, 1648. Among Arnisaeus his writings may be specially nott"Cl: DOCtrlllq polltlca In gmulnam methodum qrAU at Ari.Jiotdu ,educta (first published in r606); De Jure maJestatu '&lirl III (first published in 1610); De auctoritate prl1lClPIml In populum semper invzolablll (first published in 1611); De republICa ,seu relectlOnlS politICal llbn II (first published in 1(15). 10 H. Conring (1606-8r), Opera, Bnmswick, 1730, vol. m. II. See B J. Omphalus, De mllil polltla llbrl IIJ, Cologne, 1565; Casus, Works on Sphaera civitatIS. Frankfort, 1589; Albergati, DISCorSI polltlCl, Vernce (pomt polJtUal by pomt against Boehn and for Aristotle); J. Stephanus, Demomtrallones POlltltheury not corum, Greifswald, 1599; Melchior Juruus, POlttzeaTUm quae.stlOnum centuna et based on tredeClm, Strassburg, 1631 (first published in 16()2) ; J. Cruger, CollegIum politiNatural cum, Gieuen, 1609, H. Velstemus, Centuria qUal.ttzonum polltlCarum, Wittenberg, Law 1610; W. Helder, Sy,sterna phtlo,sophlae politICal, J ena, 1628 (1610) ; C. Matthias,
in
ratio,
the the sense of the general prmcipies and the particular reqwrqnents, o~ State and us gOVernment. This is the sense in whl(,h e.g. Althusiuaeuses the phrase. The Idea of "ZSon d'&t or StaatsrazsDn is a later devdopment. Cf. F. Memecke, DIe Idee tier Staat.mzison III tier neueren Geschzchtl.
In
* Rallo status, or ratio admlmstratlOms, in its original sense, is concerned with
Notes to 14
Collegium politicum, Giessen, 1611, SystemtJ politicum, Giessen, 1618; C. Gneinzius, &ercitationes poliucfU, Wittenberg, 1617-18; Diodorus of Tulden (t 1645), ~ ttglmllll Clvtlilibn VIII (in Opera, Louvain, 1702); Aaron Alex, \.nder Olizarovius, De pollUca homlnum socutate lIbn Ill, Danzig, 1651 . 12. J. Bodin, De republica llbn VI, ed. 2, Frankfort, 1591 (first French edition 1577, first Latin 1584)' On the epoch-making importan~e of his theory, see tlv: modern works mentioned in the author's work on Althusius, p. 351 n. 2. [See also J. W. Allen, PolitICal Thought in the SIXteenth C8ntury, Part m, c. VlU.] 18. Among the writings of the so-called MOllfJrchomachi' there are pamphlets both on the Protestant and on the Catholic side which equally advocate the cause of popular sovereignty. (a) On the Protestant side, thework of Hotoman (1524-90), FraTlC~ gal/la, Frankfort, 1665 (first published at Geneva, 1573), has still mainly an histoncal basIS. In the anonymous treatise [probably written by Beza, Calvin's successor in Geneva], De Jure magzstratuum m subdltoS et offiCIO subdltorum erga magzstros, Magdeburg, 1578 (first published in French, and stated on the title-page to have been publIshed at Lyons, J576), the argument from Natural Law still plays a secondary part. Natural Law is the basis of argument in the followmg. Stephanus J umus Brutus (the real author was H. Languet (1518-81), or accordIng to others P. Duplessis-Mornay), VIn-dlClae contra Tyrannos, Paws, 1631 (first publIshed at Edinburgh [the real place of publication was Basle] in 1579), George Buchanan (1506-82), De Jure regm apud Scotos du';ogus, 208 edition, Edmburgh, 1580 (first published In 1579); Lambertus Danaeus, PolltlCae ChrlStlanae libn VII, 2nd editIon, Pans, 1606 (first publIshed in (596);John Milton (1609-74), The Tenure of Kings and Magzstrates (1648-g), Elconoclastes, Defenno pro populo Angllcano (1651), Defensw secunda (1654),in hIS Prose Works, London, 1848 (n, pp. ~sqq, I, pp. 307sqq., 3sqq, and 216sqq). [On the three Huguenot authors first CIted by Glerke-Hotoman, Beza and Languet-see J. W. Allen, POlztICal Thought In the Sixteenth Century; and on the authorship of the Vlndlclae contra Tyrannos sec:' E. Barker, m the Cambridge Hzstoncal Journal, 193 I and R. Patry, P du Plesszs-Mornay, pp 275-/12] (b) On the Catholic Side there are the following: Manus Salamonius, De prmClpatu lIbn VI, Pans, 1578 [origmally nlll,lished at Rome, in 15#; the wnter seems to have been a Sparuard]; Boucher, De Justa Hennci III abdlcatlone e Francorum regno lIbn IV, Lyo'.-, =Jyl; Guilie1mus Rossaeus, De justa relpubllcae Chrzstlanal In reges Implos et MeretICos authorttate, Antwerp, 1592 (first published in 1590, with a preface dated 1589); Mariana, De rege et regIS Instltutlone, Frankfort, 161 I (first pubhshed at Toledo, 1599). New works on the Monarchomachl are mentioned 10 the author's work on Althusius (especially Treumann, Rehm, Landmann and Gooch). See also A. Elkan, Die Publl;;.isten der Bartholomausnacht, Heidelberg, 1905 [a work valuable for its account of Hotoman, Beza and Duplessls-Mornay] ; F. Atger, Essai sur l'hlStoire des doctrines du contrat socU2l, Paris, 1906, pp. loosqq. [Mention may also be made of G. Weil, Les TheOrieS sur Ie pouvolr royal en France .JJgulant le~ guerres de relIgion; G. de Lagarde, L'Esprlt polltlqlle de la Riforme; A. Mealy,.us,JIublicistes de la Riforme; J. N Figgis, From Gerson to Grouus.] 14. See G. Barclaius (1577-1608) [really 1543-1605], D, regno et regall IJotestaJe adversus Buchananum, Brutum [i.e. the author of the V-mdIClae contra "''Tyrannos], Boudzerium et reliquos Monarchomachos libn VI, Hanover, 16HZ (first
15-2
Bodin
Tile MonarchomaetJ'
Aduocate.s of absoluhsm
232
Gierke's Notes
published in 1600); T. J. F. Graswinckelius (1600-66), De jur, tnlJjutatis, The Hague, 1642; Claudius Salmaaius (1588-1653), DefensiD regIa pro Carow I reg' Angliae, Paris, 1651. Altlwsius 15. Johannes Althusius (1557-1638), Politita wthodlc, dig,sPa atlJUl empllS sacris ,t profMIlS Jlustrata, 3rd edition, Herborn, 1614 (first published in 1603l. [Recently reprmted, from the 3rd edition, with an intr&lu~or1 by C. F. Friedrich, Harvard University Press, 1932.] 16. See Otho Casmannus, Doctnnae ,t mtae polJticae wt~ieum " breve Politit:al systema, Frankfort, 1603; B. Keckermann (1571-1609), SySImIa dlSclpllna, text-books polltlCae, Hanover, 1607; J. Bomitius, PartitlOnum poltticarum lJbri IV, Hanlifter 1600, over, 1607, 1), maje.rtate PolltlCa, Leipzig, 1610, Aerarium, Frankfort, 1612, &ased on Natural Lau, D, rerum srifficr.entia m republICa ,t ctvitate procuranda, Frankfort, 1625; H. Kirchner, &spublICa, Marburg, 1608; Z. Fridenrdch, PolltlCorum lIber, Strassburg, 1609; J. H. Alstedius, D, statu rmnnpublICarum, Herborn, 1612, Busius, De republIca lJbri III, Franeker, 1613; M Z. Boxhornius (t 1613), Instltutwnum politlCarum llbn II, 2nd edition, Leipzig, 1665; G Schonborner (1579-1637), Poltticorum lthn VII, 4th edition, Frankfort, 1628 (first published in 1614: a second-hand work, based upon this, is the D, statu polItico s,u cwIlI llbn VI published at Frankfort in 1617); P. H. Hoenonius (de Hoen, 1576-1640), DisputatlOnum polutearum lIber unus, 3rd edition, Berborn, 1615; M. Bortius, D, natura jurium maj,statlS el regallum, in Arumaeus, I (16 I6), no. 2, Konig, Acie.r disputationum poldlCarum, Jena, 1619; Ada1i Contzen (Jesuit, I573~ 1635), PolltlCorum /ibn X, Mainz, 1620; ClaudlUs de Camin, Malleus tnpartltus, Antwerp, 1620; Menochlus (Jqpit) , HI~opolltlCa, 2nd edition, Cologne, 1626, Werdenhagen, UniversallS introduetlo m omnes Respublleas, Amsterdam, 1632; C. Liebenthal, CollegIum POlIIICum, Marburg, 1644; N. Vemulaeus, DlSs. polulCae, Louvain, 1646; Daniel Berckrmger, Instltuliones politicae sive d, republica, Utrecht, 1661:. 17. The reference is to Resold's Opus polltlCUm, ed. nova, Strassburg, 1626.... Hobb,s 18. Thomas Hobbes (1588-1679), EllrMnta phIlosophlCa de elve, Amsterdam, 1647; Levtathan, Slve de matena,forma et potestate rimlallS ecclesiastICal et CIVILIS, Amsterdam, 1670 [in EnglISh, under the title of Lemathan, 1651]. On Hobbes see partIcularly F. Tonnies, Thomas Hobbes tier Mann und der Denker, Leipzig, 1912. [See also A. Levi, La Filosqfia di Tommaso Hobbes, Milan, 192 9.] 19. Compare e.g. Schneidewin in Comm. on the InstItutes, 1,2; Mynsinger, Apotel,StnIJ on 1. I D. I, I ; Rittershusius, Instlt. I, 2, pp. 25sqq.; Ostermann, Rationalia ad Instit. I, 2. 20. Compare Cantiuncula, Instlt. I, 2; Vasquez, Controv illustr. cc. 7, 10 and 54; Hunnius, Comm. In Instlt. I, 2, Coll. Instlt. DlSp. I, Var. resol.Jur. C1V. I, I" quo 19sqq.; Binnius, Comm. m Instit. I, 2, Sylv. Aldobrandinus, In pramum Instlt. Just. llbrum Comm. (Venice, 1567), J. F. Ozerius, Comm. in LIbros Instlt. (Vemce, 1562), pp. 37~, Bachoven ab Echt, Comm. in Instit. I, 2, pp. 9sqq., Paneket. pp. 16sqq.; V. W. Forster, Tract. DlSp. I; P. Busius, on 1. I D. I, I; J. Harprecht, Instit. I, 2; Wurmser, Exere. m, quo I; T. Schuminovius, In 1. lIbr. Instit. Just. eatholica explieatlO, Brussels, 1663, I, 2. 21. Compare Connanus, Comm.jur. civ. I, cc. 1-7; Melchior Klmg, Instlt. I, 2; Vigelius, juris eontrov. IV, no. 6; Fa~, JurnJr. e'aplR. 1, ~ pp. 31-57, Rationalla, I, 1-4; A. Matthaeus, Comm. In Instlt. I, 2; Ludwell, Comm. in IrBtit. I, 2; Schambogen, Leet. pubL. in Instit. I, 2, quo 1-7; G. Frantzke, Comm. in Instlt. I, 2; Lauterbach, Coll. I, I, 22sqq. Compue-'
'x.
P'ClSlOntS
Notes to 14
233
also Duarenus, I, I, C. 5; Cujacius, I, pp. gsqq., VII, pp. 14sqq.; Diodorns Tuldenus, Comm. in Instit. I, 2 ; Petrus Ligneus, Annot. ad Instit. I, 2; H. Giphanius, Instit. 1.2 ;tCothmann, Disp. I, thes. 4-12, Instlt. I, 2, Cod. I, 14. 22. More particularly, we find Ulpian's dictum about the participation Qf animals in Natural Law dISputed, or explained as an unauthoritative mode of<:xpression; and this leads to a rejection of the hitherto generally a~cepteddoc~e thatJus naturale (orJus naturale jmmaevum) is a law common to men and animals, whlleJus gentium is to be regarded as a law peculiar to men. On this basis the difference between jus naturale and JUS gentlU11l was explained simply by reference to the distinctlOn between the 'absolute' and the 'conditioned' dictates of reason, or, again, between' onginal' knowledge of the law of Reason and the knowledge which is acquired' in the course of historical development. See Corasius, on 1. I, 2, D. I, II; Connanus,loc. cit.; Forster, op. CIt. no. 30; Bachoven von Echt, op. Clt. p. II; LudwelJ, loc cit. 28. See especially Connanus, Comm. JUT. ClV. I, C. 4 Compare also Boxhom, I, c. 2, 3-8, c. 3. 15 sqq. ; and the Commentary of an ex-professor of Jena on the Codex, I, 1-13, in G. A. Struvius, Jus sacrum Jus/tTl., Jena, 1668, PTOOemJUm. 24. See Hotoman, Instlt I, 2, pr.; Vultejus, loco Cit.; Glpharuus, loco cit.; Forster, Tract DJsp. I, no. 29, Wurmser, Exerc. I, qu 3 (jus publicum exprae~ephs naturaLJbus, gentIum et~zvzLJbus colleetum est). 25. ThInkers who mamtamed the theory that only a condition of universal lIberty and community,pf prope~y corresponded to pure Natural Law, and that government and property first came mto the world through the corruptlOn of human nature and the breach With pure Natural Law whIch was thereby mvolved, are sometImes found declaring the State itself to be a .creatlon ofjus gentIum see e.g. Lesius, n, c. 5, dub. 1-3; MolIna, n, d. 18, 17 and d. 20; GryphIander, De eivJIJ soc. 60sqq. But thejus genhum of which they spoke was for them Identical WIth Natural Law, m the only fonn in whIch It could be apphed to the real world. 26. MelchIOr Klmg (Instlt. I, 2, folIo J verso) remarks in general terms that philosophers, In contradistInctIOn to Jurists, generally Identify JUS naturale Wlthjus gentJum. Th1S 1S correct; for whIle Oldendorp (op. cit. tJt. 2-4) and Hemmmg both use the threefqld diVISIon [of natural law, jus gentJum and posItive law], the later legal philosophers generally assume as their basis a simple dlBtInctlOn between natulo: .::.nd positive law. This is the case with Winkler (II, CC. 9-10), though he proceeds to diVide jus naturale into (a) JUS naturale pnus C. lSq) and (b).Ius naturale postenus, Le. genhum JUS (IV, C. I sq.), and to contrast both Wlthjus pontlvum seu CIVJle (v, c. I sq.). See also Beneckendorf, RepetJtio et expluaho de regulu juns, Frankfort on the Oder, 1593, pp. 8rsqq. The eccleSlastical legal plulosophers almost always start from the antithesis of lex naturalJS and lex pOSJtlva. But along with the former, they postulate the existence of lex aeterna or dJvJna, whic.h they rank as superior to or coordinate with it; and in the same way [as they distinguish two' ideal' laws] $oey proceed to divide lex pontwa Into JUS humanum [pOSItive secular law] and Jus dJvmum"ont.vum [positive revealed law]: cf. Soto, lib. I and II; Gregorius de Valentia, quo 3-8; Bolognetus, ceo 3-7; Suarez, lIb. II-IV. We find a similar view in Meiszner, lib. II-IV. ' Among the jurists we may note Donellus, who (I, c. 6) recognises only two
Natural Law and Jus gentium
The State as product of

Jus gentium
I
.il ,
of Natural and Pontwe Law, with jus gentium disapfllaring
Dtstinctwn
Gierke's Notes
investigation of the nature and authority of majesftU; hi! prefaces (in the author's work on Althusius, pp. 18-20). 87. On the history of the conception ofsovereignty see the autpor's work on Althusius, Part n, c. v and pp. 35J sq., with the works there cited by' Hancke, Weill, Dunning, Dock, Merriam, Rehm and Jellinek; and also Preuss, Gjrnnnde, Staat, Reich aIs Gebietski1rjnrscJw..ften (Berlin. J Bag), pp. i 06 slJ.q..... [See also the exhaustive analysis of the conception in de la Bipe de Ville-' neuve, Traitl ghlirol tk l'Etat, vol. I.] 88. References for all these points may be found in the author's work on Althusius, pp. J51-8. 163-78 and 351Sqq. [Gierke also refers to the notes on pp. !2I3-15, 218-19 and 220-3 of the fourth volume of his Genossmschafts recht, in a sectIon not here translated.] 89. See the author's work on Althusius, pp. 143sqq. 40. The classification of fonDS of the State of course assumed a far greater Classijicotwn importance when the Ruler was the 'Subject' or owner of Sovereignty than of States when he only exercued a sovereignty which always and everywhere belonged to the People; and indeed a strict interpretation of popular sovereignty reo duced the classmcation of fonDS of the State mto a mere classlfication of forms of government. Althuslus was the first to express this consequence definitely; and he deals with classification only at the end of hIS PolltlCa (c. 39), in expounding a theory ofthe speCIeS summl maglStratus: see the author's work on Althusius, p. 35; and see also Buchanaflp p. 20, and Milton, The' Tenure oj Kings and Magutrates. 41. This explams why we find opponenle~ of the q>nception ofthejorma TIrI mixed ConstJlUtum: mlXta not only among (I) the advocates of the sovereignty of the Ruler, but also among (2) the devotees of popular sovereignty and (3) those of 'double opponmts and advocates sovereignty'. The opponents of the first kind are e g. Bodin. n, c. I, nos. 1748, c. 7, no. 234; Gregorius, v, c. I, 3; &rclay, v, c. 12; BornitlUs, Part. pp. 46sqq. and 102sqq.; Remkingk, I, d. 2, C. 2, nos. 231 sqq. and d. 5:c. 6; Graszwmkel, c. 6; Hobbes, De cwe, c. 7, uVUJthan, c. 19. The opponents of the second kInd are Althusius, c. 39; Hoenonius, II, 42. Opponents of the third kind are Kirchner, ro, 7. litt. e, Alsted. pp. 6gsqq.; Arumaeus. I, no. J l' Otto, Dw. an mlXtus tktur mpublu4e staJus, in Arumaeus. n, no. 22; Brautlacht, m, c. 2, 10; Cubach; Beindorff; Hilliger, Konings; Schieferer. [Gierke also refers to a note on p. 21g of the fourth volume of the GenossenschaftsrlCht, in a section not here translated] Conversely, the mixed form receives the adhesion not only (I) of some of the advocates of popular sovereignty (such as Hotoman, Prancogallta, c. 12, and Danaeus, I, c. 6), and (2) of advocates of 'double sovereignty' (e.g. Besold, DB stat~ rnp. mixtae, c. 2; Frantzken, De statu rnp. mlXtae, in Arumaeus. m. no. '27 and IV, no. 41, 60sqq.; Tulden, II, cc. 16-17; Berckringer, I, c. 12, 15--21; Werdenbagen. n, c. 25; Liebenthal, d. VlIl, quo I; Paurmeister; Llmnaeus; Carpzov) [Gierke also refers to pp. 2tBsqq. of the fourth volume of the GMwssensChaftsrlCht, in a section not here translated]; but also (3) of many of the advocates of the sovereignty of the Ruler. Examples of this last class are Molina, u, dlSP. 23; Suarez, ro, c. 4, no. 5 and c. 19, no. 6. IV, c. 17, no. 4; Albergati, I, ce. Bsqq., pp. '25ISqq.; Arnisaeus, Pollt. c. 8, Dej~re maj. 1~ ec. 1 and 6, I?e rIP. D, c. 6, s'. 1 ~d s. 5 1-134, II, e. I, J, .0. auet. c. I. 4sqq.; BUSlUS, II. C. 6; Knipachildt, I, e. B, nos. 6J-3; ~eekennann, D, ce. 4--6; H@lder, pp. g82sqq.; Schonbomer, I, c. 16; Felwinger, Dus. pp. 147-84 [a reference is also added to other writel'l cited in a note on-
cr.
Notes to 14
237
p. 222 oftht fourth volume ofthe Gmossmschaftsrecht). A similar view occura in Grotius. I. c. 3. 17-20 C. 4, r3. It shoul4 be added, however, that the conception of the mixed constitu'tion has obviously a different significance, according as the right ofthe Ruler :rhich is held to be divisible among a number of different 'Subjects' is regaNled L (a) the one and only form of Sovereignty, or (b) merely a.mo.jestas 'jersonalis, or fj) a simple 'magistracy'. 42. Cf. Bodin, n, c. I; F. Victoria, Rei. m, no. 10 (there is the same potestas and the same libertas in every form of State, whether MUS or plures be the 'Subject' of sovereIgnty); Graszwinke1, c. II (whether the ruling authority be persrma unum or corpore unum, * the same theory is applicable in regard to Imperium and obedlentla, and theIr MlgO a Deo) ; Arnisaeus, Polito C. r I, DeJure mtl). I, C. 2, De rep. n, C. 7, s. 2; ClaudlUs de Carnm, I, C. 10; Hobbes, De CZVt, c. 7, 7 and 9, c. 10, Levw.than, cc. 18-1 9 Those who maintained, in regard to monarchy, the pnnciple that the king was superior not only to all the members of the commuruty as mdividuals, but also to the commumty Itselfas a whole, were logically compelled to admit the corresponding principle m regard to democracy-that the governmg commumty of the People was supenor not only to individuals, but also to the whole body of the governed. In domg so, they allowed the conception of the sovereIgn Whole to transform itself into that of the majonty [l.e. they regarded the majority, rll$her than the whole community of the people, as superior to the body ofthe governed}; but failure to analyse their conceptions adequately enabled tl~m to av"Id the paradoxical concluslOn, wroch this involved, that the maJonty had a greater authority than all the members taken together. Thus we find Bodin saymg of the populans status (n, c. 7), Gives unIVerSl, aut maxtma pars ciVlum, caetens omnibus non tantum smgulatlm, sed etiam Slmul coacervatls et collectis, Imperandijus habent. Other thinkers, m dealing with -democracy, taCltly dropped the dlStinctlOn between the sovereign community and the whole body of the governed [or, as Rousseau expressed it, between the people as souveraln and the people as 'tat}, and SImply spoke of the authority of the populus unlVersus over omnes ut S1Tlgull. Bornitius (Part. p. 51) expressly remarks that m a democfl:LLy the sovereign ClVes, collective unlh, only govern slIlgull; for &unctlS non possunt [Imperare}. Hobbes was the first thmker who was able, without self-contradictIon, to reject the Vlew that m a democracy there was a personality of the people [as a governed body] which was dlStinct from the collective p"rS0T vf the people as Ruler, and he was able to do so because, in every form of State, he regarded the people as being, m relatIon to th. Ruler, a mere sum of 'dissolute' mdividuals (cf. De dve, c. 6, 13 and 17, c. 7, 5-7, C. 12, 8, LeViathan, C. 18). 48. Thus Besold (De mo.). s. I, C. I, 5) ascnbes to the popular assembly in a democracy, acting by majority-vot(', only a majestas personalIS, whIle he assigns to the community of the citizens a mtlJestas reallS; and he consequently draws the conclusion that unanimity is required for constItutional changes and for any regulations which relate to the State itself. DlOdorus of Tulden (I, cc. II and 12) takes thesamehne. The advocatesofa 'double sovereignty', who distinguished between mq]estas reallS and perSrmallS even in treating of d'emocrac~ were theoretically bound to assume two different forms of the PrrsoNJ rmum - one in the sense ofpossessing a single legal personalIty (though several physical persons may unite to constitute that smgle ~ty): WjJor, fIIIIIJII - one in the sense of bemg a single phYSical person.
T", ab solwt view of d8m0crfJ.1. as equally absolute rmth monarchy
The problem of the People as Rukr and the People as ruled
Gierkt's Notfs
sovereign community of the People. Similarly, too, in the pure theory of popular sovereignty, the sovereign People (which is ultimately supreme in all forms of State] cannot be logically identified with the people which is instituted as the Ruling authority in a demooacy. Even the advocates of the sovereignty of the Ruler, if they pushed the doctrine of a co~ract rt subm~n [I.e. of a contract of government] to Its logical conclusion, Were bound to distinguish, as the two separate parties involved ill this contrac\ when a democracy was in question, (I) the ori~inally sovereign People, and (12) the sovereign popular assembly deciding by majority-vote [to which the originally sovereign People had submitted Itself' by contract]: cf. Victoria, nt, nos. I, 6--8, Soto, IV, quo I, a. I ; Molina, II, J. 123, 12; Fndenreich, c. 18. It was impossIble, however, to take these cllStinCtiOns seriously without being involved 10 contradictions. ThInkers ~an by argwng, where other forms of State than democracy were concerned. that both the original rights of the People and those of its rights wluch still remained 10 actIon after the mstitution of the Ruler belonged to the same a.ssembly-the assembly of all the members of the Stat~eciding as a /UltVerSltas by maJonty-vote. Then, as 800n as democracy was in question, they n1ade a sudden volte-focB, and required unanlImty. [I.e. they claimed that the sovereign People, when exercising its original rights, must be unanimolls, though they allowed that the popular assembly, when exercising the rights which It acquired by being im\\tu\ed 'A'b R\l.k~, nw~h\ d~~\d~ b"j ma)~n\"f'~'\te.~ Th~ wu.?~ e~tkd'J arbItrary procedure; and yet Without it the d.stmctlon of the two forms of the popular commuruty remamed Without iny prac4cal significance. Many thinkers, accordingly, dropped any idea of a contract ofsubmISSIon [between the sovereign People and the popular assembly] In dealIng WIth democracy, and substituted for it a special resolution of the sovereIgn People to retam its sovereignty: this IS the lIne taken by Suartri:, IlI, c. 4, nos. 1,5-6, II. Others, agam, substituted [In lieu of a contract between the sovereign Peopre and the popular assemblyJ a contract between the People and the governing body of the RepublIc, thereby abolIShmg <Jny clear logical dlStmction between a Monarchy and a Rcpubhc. This IS the lme taken by Althuslus (c. ~): while descnb10g the People as itself the summus maglStratus in a democracy, he nevertheless assumes a contractual relauon between the People and its offiCials and ephors; cf. Rossa-eus, c. 1, 2, and Ml1ton, Defen.rio of 1651, c. 6. The majority of thinkers were altogether SIlent on tlus difficult question. Hobbes, however (lac. cit.), saw clearly this weak spot in the armour of the doctnne of populat nghts, and he used the inherent self-contradiction of the view that in a delinocracy the People must be supenor to the People in order to refute entirely the Idea that a popular community, as dISt10ct from its Ruler, could have any sovereignty at all, whether in the way of onginal rights or of' nghts that still remained in action after the Ruler's instltutlon. 44. See the author's work on Althuslus, pp. 143sqq. and 356. 45. Gp. cit. pp. 85, 91 and 341. 46. In this connection the three basic forms of government distinguished by Aristotle [the One, the Few and the Many] continued to be generally recognised; but there was an increasing tendency to unIte ~tlIr Aristotle's threefold diVISion a logical dIStinction of governments into the two forms of Monarchy a"hd the Republic-aristocracy and democracy being then taken together as forma of State with a collective govenunent [i.e. government by
Notes to 14
239
rnore than One]. Of. Althusius, c. 39; Victoria, lUI. w. no. 10 (IDIW' vel plwes) ; Bornitius, Part. p. 45 (majestas ifl8Jt uni semper 'T~ A&ycp, interdum etiam jlfrS01UJ, interdWV multis*); Keckermann. Polito II, c. I; Arnisaeus. D,jure rfI4j. I~ C. 2, Pol~ C. II (the sovereign is unum either natura, or conspiratione It Q1UIlogla); Grotius, I, c. 3, 7 (persona una pluresve); Busius, I, c. 3, 4. (unus '011 pittr,s); Brrckringer, I, C. 4, 10 (unum numero vel tmtllogia); Graszwinkel, c. 1 I ~ers~a unum or corpore unum); Hobbes, De rive, C. 5, 7 and C. 7. LI'tnathon, c. 17 (unus hotfto '011 cOItus). Althusius, Bomitius, Keckermann, Besold (De Arist. c. I), Tulden (II, c. 12) and other writers use the technical expressions 'Monarchy' and' Polyarchy'. 47. The believers in a mixed constitution regarded a division of the right of government as ppssible; and conversely the indiVlSiblllty of governmg authority served their opponents as the chiefground for rejectmg such a form of State. Both allowed that other' Subjects' (and, 'more particularly, assemblies of the Estates 10 a monarchy) IDlght participate to some degree in the exercise of the nght of government. But behevers in the mixed constitution-assuming that States in which the right of government was constitutionally limited could co-exist Wlth absolute States-asserted the posslbulty of an Independent nght to particIpate in the exercise of State-authonty; wlule their opponents-refusmg to allow any binding force to a constitutional hIDltation of the Ruler-treated any modification of governing authority J>y the co-operation of other factors as only a vanation Within the mode of government (ratw gubernanft or forma gubernandl). Most of the advocates of the ffilXed form (cf. supra, n. 41) recognised in addition the merely '111!11 ted' foPro of government (e.g. Mohna, II, d 23, Suarez, III, c 4, no 5. c. 9, no. 4, IV, c. 17, no. 4, Keckermann, I. c. 33, II, ec. 4-6; Heider, pp. g82sqq.; Busius, II, cc. 6-7; Grotius, I, C. 3, I6-18) , but there were some ofthem who thought that while dIviSIon of sovereignty was c~ce1Vable, hmltatJOn was n~t (Arrusaeus, De JUTe maj. I, c. 6, De rep. n, C. 2, s 5). Even the opponents of the mIXed constitution (supra. n.41) -not only those who advocate popular soverelgntvand double sovereIgnty', but also many of those who advocate the sovereignty of the Ruler-are willmg to accept the Idea of lunited governm( :.~, .md to defend, in so qumy words, the mviolability of constItutional HnuiatlOns on the right of the Ruler (BornitlUs, Part. 43, De maJ. c. 13; FridenreIch; cc. 18 and 2g). On the other hand the thorough-going absolutists reject 'the hmited form no less than the mixed (Bodin, I, C. 8, nos. 85-g9; GregonulI, . I, g, XXIV, c. 7; Barclay; GraszWlnkel, cC. 3. 4, 6, II; Hobbes; SalmasIUS, C. 7). 48. cr. the author's AlthUSlus, pp. 80sqq and 341. The fact that Armsaeus (op. cit. p. 81 n. 19) ancPGrotius (op. CIt. n. 20) recognise other grounds [in addition to delegatIon by the people] for the acquisItion of the rights of government, or again that Graszwinkel (c. 2) rejects the contract of government altogether, hardly weighs in the balance against the general trend of Contractarian theory. 49. Op. cit. p. 85, n. go. 50. Op. cit. p. 85 n. 32. 51. The identity of the people as it now stands with the people as it originally exlSted was used to explain why a contract ofgovernment assigned to a primitife past was obligatory upon the present generation. In defence ill "The' Subject' of SovereJ.gl1ty is always theoretically ODC; somtltimes it may also actually be one person, but sometImes it may be compoaed of many."
Mu:edand litmted Constltutums
The People uimtical through eM

gtrIITtItions qf its lift
240
Gierke's Notes
The Peopk asa Corporate Body
The use
theory of Corporations Grotius
of the
,n
And zn ecclenastICal wrzters
of this identity we find an appeal expressly made to the principlea of the [Roman-law] theory of Corporations in regard to the continuous existence of the umversdas through all the changes of its members:. cfj especially ]uniusBrutus [the author ofthe Vzndieiaeeontra TJ"'aMOS], quo m, pp. I718qq.; but c a!soAlthusius,c. 19, 74sqq,C. g, 16, c. 38, 65sqq., and Victoria, ReI. ill, no. I I. GrothlS uses the same idea (II, C. 5, 3 I), extending V: ft) cover cues of the forfeiture of imperium by delict or in war-quia suecessi.c'" partium non zmpedit quominus unus nt populus; cf. also m, C. 9, g~ 52. According to the VuulicuJe tonka Tyrannos the people, as a universitas wmch unzus persoruu uu:em sustulet, (I) acting in conjunction with the King, concludes a covenant with God (qu. n, p. 75), and (2) acting by itself, concludes a covenant with the King (qu. m. pp. 131 sqq. and 248sqq.). Now since universztas nunqwm morztur, and no prescrIption runs agamst It (qu. m, pp. 170-1), the people continues to possess inVIolable rights and duties in virtue of both these covenants. (I) It 15 responsible to God, as correus titbendi [or joint debtor] with the King, for the well-being of the Church, and it makes itself liable to diVIne punishment by tolerating godless magistrates, while according to the rule quod umversitas tkbet, singuli non tiehent, the primates of the people exfoetkre cum Deo non tenentur (qu. n, pp. 76, 84sqq. and 115). (2) Agam, in regard to the King, the people, as a unzverntas, has a higher authonty, and in the event of his becommg a tyrant it has the right and duty of resIstance and deposition (qu. m, pp. 143sqq. and 2g2Sqq.); while.. smguliprzvati are in noway called upon to take such action (ibid. pp. 3I9sqq.). Althusius brings the popular community, as a consOClllt,o publICa umversalzs, entirely under the category of the unzvern'-r (Pollt. gsq). He ascnbes to thIS corpus cORSocwtum-the totum corpus consocwtzoms, or Wllversztas populi-inahenable sovereIgnty, the ownership of State-property, and the rights belonging to an employer in regard to a.l{ officers vested with public powers of administration; wmle, citing m justification the [Roman-law] thlY-lry of corporations, he excludes mdlviduals from the enjoyment of all these rights (Praef. pp. 9, 17, 18, Ig, 38). See also Buchanan, pp. I6sqq. and 78; Hotoman, FratlCogallw, cc. 6-g and Ig; Rossaeus, c. I, :Z-3; Mariana, I, C. 8,.Manus Salamonius, De pnnc. I, pp. 19-20. 53. See, for example. Paurmeister, I, c. 17, Bortius, c. 6, :z; Besold, D, fTIIlj. sect. I, C. I, 4 (corpus) and 7 (penes unzversitatempopulz); LlIIUlaew, Cap. zmp. p. 352 54. Grotius employs the concepnon of the unzversitas and the principles ofthe [Roman-law] theory ofcorporations ( I) in dealmg WIth the contractual devolution or transference of supreme authonty ~ the people (I, c. 3, 13 ; n, c. 5, 3I, C. 14, 2 and 10; m, C. 8); (2) 10 his account ofdehcts of the people and its responsibility for the delicts of its members (n, c. 2 I); (3) in regard to the question of the obligation of the people by the acts of the king (II, c. 14, (0); (4) in justIfyIng reprisals under international law (m, C. 2) and tht: taking of pnzes (m, c. 6, 8); and also in other respects. 55. See Victoria, m, no. 8; Vasquez, c. 47; Soto, IV, quo 4, a. 1-2 (the people as corpus); Molina, n, disp. 23; Suarez, m, cc. 2-3 (the people as commU111tas, corpus "!YstlCUl1l, corpus pol,tlCum, onginally possesses and transfers the supreme authority). See also Pruckmann, pp. gosqq. (con~act with the unlVersztas or commumtas) , p. III,nos. 25sqq.; Boxhom, I, c.~, I (corpus multorum); B~us, t, c. 3, 3 (rmiverntas cUJUScunque totius kgitamat civztatis uno I7nperio contenttu).
c.
Notes to 14.
24 1
56. See Bodin, I, c. 8, nos. 85"""'99; Gregorius, I, I, 6-7 (unum cfl'l'/Ju$ civile according to 1. go, D. 41, 3 and 1. 1, 1, D. 3,4); Knipsehildt, v, C.I, nOB. 3-"4, 57. The_~le united in a State is described as a societas citnlis, naturally The Pq1I. developed By the extension and perfection of the Family, in the following dlscriJJed as writers: Gregorius, 1, c. I, 6 and c. 2, 1-6 (societas, quae natura c04llult), a societas xJ!r.,,f. UJ!.; Arnisaeus, De rep. 1, c. 5, s. 4 and s. 5, Polito C. 6 (the civitas is a "'-cietas, the clllis is a socius) j Beaold, DISS. I, c. 3 (societas citnllS, which~ 'Utero naturae comepta: in ejus gTeTnl() nutnta est); Kirchner, Disp. I, 3 (societas popul~, legitimo civilis potestatis :mperio coalita) ; Keckermann, pp. 12 sqq. ; Fridenreich, C. 2 (growth from consoc:ationes domestlCae, like a many-branched tree from its roots) and c. 10; Schonborner, I, c. 4; Cruger, Dup. I; Heider, pp. 25sqqj Werdenhagen, n, cc 1-3 (the populus is a SOClBtas c:vilu); Tulden, 1, C. 5 (SOCietas civtlu, whIch arose ex naturae tnstructu), and c. 6 (the finIS r,;,puhluae is soctetatis c:vtltS tutela atque cultura); Conring (SOCIetas civtlis, with impmurn) ; Knipschildt, I, cc. 1 and 6; and many other wnters. A SOCtetas c:vdis founded by a umon of men originally living in isolation is the basIS adopted by Buchanan, pp. I I sqq.; Manana, I, c. I, Rossaeus, c. I, I, Boucher, ee. IOSqq.; Hoenomus, I, 4sqq. ; Wmkler, I, e. 10, n, ce. !rIO, v, e 3 (multltudo sese cDnsOClat, and thus produces SOCtetas cllJIlu) , cf. the description of the State as SOCIetas c:vIltS et VOluntaTIa in Vebtenius, dec. 2-5, and in MatthIas, Coll. dlsp. 4-5 and Syst. pp. 2osqq. The treatment of the comlIlIlunity of the people as a contractually created 'society' is carried into greater detaIl by Salamoni~s, I, pp. 35sqq. and 38-42, and by Paurmeister, I, c. 17, nos. 3sqq. (the sOClltasformed by mutua conventio), C. 3, no. 10 (SOClltas et MeTa conventlo), c. 30~ nos. I-~ (the ending of such SOCletas by contrana
voluntas).
Althusius, who is the first to develop a formal theory of the social contract as constttutmg the State, mterpr~ts the State throughout (hke all other corpollllte bo<hes) as a consoclatw or SOCietas (Poill. cc. I -g, DlCaeolog. I, ee. 8, 32, 78 and 81). Grotius constantly applies the conceptIOn of consociallo or SOCtetas to the political commumty (Proleg. cc. 15-16, 1, c. I, 14, n, c. 5, 17, 23, 24, II, c. 6, 24sqq., In, c. 2, 6, C. .l D, 7-8). 58. cr. the author's AlthusIUS, p. 94 n 51, P 96 n. 59, p. 98 n. 63, P.IOO n.68. Schonborner, I, c. 4, defimtely says, Fssentla r,;,publlcae est mpersontS vel :mperantlbus vel obtemperanttbus, slbI invuem ",utu.s offiCIU obstrr.ctls. 59. cr. the author's Althusius, pp. 96sqq. 60. Thus, according to Molina (II, rl Q~' ~8"""'9), SOCietas polltica arises The theory from the union ofongmally mdependent indivIduals; but because the natural of tJte R:ghts reason given by God impels them thereto, there results eo ipso, quod homtnes of tJte People ad Integrandum unum corp3s &Ipubltcae convenlunt, Jure Mlurall, eI sic a Deo In tJte Immediate, potestas corporIS totius Reipubllcae In singulas partes, ad eas gubmumdum, tJteolog:ans ad leges tlllS ferendum Jusque IlllS dlcendum, PI ad eas pumendum. The homines convenientes, because they are partes, are a conditiO sine qua non of the authority thus resulting, but they are not its creators' otherwise it would be impossible to explain why the commumty has a right of hfe and death, while no in. dividual h~ such a right over himself. Moreover, longe dwersafit potestlls, fJIJ'U ex natura Tn consurgd In RepublIca, a c"llecllone partlculanurn potestaturn nngulorum ; and a RespuillCa does not hold its power auetoTttate singulorum, sed l17WIeditJte o Deo. The theory of the theologIans may be Illustrated from the analogytfmarriage. The agreement of hwband and wife 1lI necessary to the existence of marriage. But BTSD 16
Gierke's Holts
Suarez (UI, cc. 1-3) argues still more emphatically that, inaatnuch as man is born free and subject to no hwnan power, the /JIrf1Cta cOl7UPlUnit4s only ari.aes in consequence of the interventus Iwmtmtu voluntahs, and indesd ter volll1ltatnn ommum qui in illa wrwenerunt; but at the same time, man bc:iIig by nature subJ&Clbllis, tlus agreement ofumon corresponds in hiS case to the demands of natural reason. Moreover, although the community itself coakscit consmsf4 et voluntaU smgulorum, the authority which it possesses is not acquirctJ' dtrectly from the slngull, who did not previowly possess any shch power, and least of all any right ofhfe and death; nor is such authority acquired directly from God; it is derived ex VI ratumis MturallS, as a proprietas consequens ntlturae which God baa WIlled; and therefore It follows that mdividuals, though they are creators of the corpus polltu:um, are not the source of the authority of that body over Itself and its members. See also Didacus Covarruvias, Prado quo I, CC. I and 4 (socutas CIVIlIS is formed tegf! Mtura/i, and by the same law it possesses all authority, which it proceeds to devolve upon a ruler): SOlO, I, quo I, a. 3 and IV, quo 4, a. 1-2 (God, per IIgem Mturalem, gave mdlVIduals a right of self-preservatIOn, and with it-because self-preservation IS lII1possible in ISolatIon-an mstmct for society, and thus He gave the congregata Respubllca authority over Itself and its members); VIctOria, m, nos. 4-8; Bellarmme, De laulS, ce. 5-6; ClaudIUS de Gamin, 1, C. 9. 61. Suarez (m, c. 3, nos. 6-7) compares the sovereignty of the corpu..< polltzeum et mystuum With the lIberty of the mdividual person In both cases there IS an authorIty over the self and its own members-an authority wroch is necessanly gIVen With and by the fact 8f eXIsten~e. Now as the child receives its existence from Its father, but its lIberty from God, In vutue of Natural Law, zta luuc potestas datur commumtatl homznum ab auctore Mturae, non tamm sme znterventu voluntatum et consensuum Iwmmum, ex qUlhus talu communlt4s perfecta congregata est. As the father can beget or not beget the child.. but if he begets It can only beget it as a free being, so It only needs a human Will directed to that end to bring the community Into eXlStence, but ut Ilia commumt4s habeat potestatem praedzetam, non est necessaria SPecza/1S volunt4s horrunum, sed 6f natura rez consequztur et ex provzdentltl auctorlS ntlturae. Jwt because they are not Inherent In the nature of eIther, the sovereignty of the COmII1UDIty and the liberty of the indiVIdual are both ahke ahenable and transferaWe. See the author's Althuszus, p. 67. 62. Such a view is already implIed in the argument, that sovereignty must onginally belong to the community because there is no dIScoverable reason why It should belong to one person rather than another: cf. Victona, op. cit. no. 7; BeUarmme, op. CIt.; Molina, d. 22~Suarez, m, C. 2, nos. 1-4. But It appears more explIcitly In the further conception, that the community is driven by the nature of things to transfer Its onginal authority to a ruler because It cannot, as a multltudo, exerCISe that authority itself: d. VictorIa, op. cit. no. 8, BellarmIne, op. CIt. (where It IS definitely said that supreme authority Immedzate tanquam .n subje&lo .n Iota multztuthne est, but is transferred by this muit.tudo). Soto argues In the same selISe, IV, quo I, a. 1. A timiIar hne is adopted by Molina (II, c. ll3). While descnbing the sove-
""io
on the oragin of soverngnty
SU6re~
The
t&ologi4ns rllly make the community an aggregau of .ndlvulU4ls
it dOell not explam, or create, the instItutIon of marriage. The instIlUtIon is an J.D-o herent part of the diVIDe scheme; and the agreement of the pkrtIes is simply an agreement t,.o fit themselves mto that scheme, which exists jJW II apart from their agreement.
Notes to 14
243
reignty of the people as the authority of a body over its members, he none the less takes the totrml corpus to be the [mere] sum of all; and he depicts the transference of tutilority to a Ruler as a command of Natural Law, inasmuch as otherwise [i.e. if the transference were not made] all would be constantly obliged to act in unison and by unanimity. -- f,.ven'Suarez, in spIte of the emphasis which he attaches to the c~rporate nature of the unity of the people, cannot transcend the conception of that umty as a me~e collection ofall Its members. He describes the hominum coilectUJ (m, c. 2, no. 3), or the Iota commundas (ibid no. 4), as the original 'Subject' of supreme authority; and he contents hImSelf with adding that multitudo hominum dujJlwiter consuierari potest (I) uno modo, ut est aggregatum quoddmn stn4 ullo ordl1le vel unione physlCa vel morali..., (2) alio modo, quatenus speci4l1 voluntate Stu communi consensu in unum corpus politicum congregantur uno societatis vinculo et ut mutuo se Juvent in ordl1le ad unum finem pollticum, quo modo ejJiciunt unum corpus mystzcum, quod morallter dlCZ potest per se unum. He argues that it IS only in this second mode or sense that the community IS the 'Subject' of a communIS potestas, cm singult de commumtateparere tenentur; in the first sense or mode it only possesses such authority, at the most, radicaliter (III, c. 2, no. 4; cr. D, c. 3, nos. 1 and 6-rud1S collectto stve aggregatum as dlStmct from corpus mystzeum). * 63. In Buchanan (pp. IIsqq.), Mariana (I, c I), Rossaeus (c. I, I), Boucher (cc. IOsqq.) and Paurmeister (I, c. 17, nos. 3sqq.), the authority of the State IS regarded a.\ proceeding merely from the social union of free and equal mdlvlduals wlio onginally hved in isolatIOn. Althuslus (Pollt. cc. 1sqq.) ascnbes the nghts of all associations to a communtcat,o mutua ill thmgs, services and nghts whict are useful and necessary for social hfe. Grotlus (n, c. 5, 17sqq. and c. 20, III, C. 2, 6) derives the nghts of the State, mcludmg the power of punishment, entIrely from the onginal rights ofindiVlduals. Mdton (The Tenrqe, pp. 8-10) considers the authonty of the Stateoas the product of a contract of society formed among men who are naturally born free, 'thIS authority and power of self-defence and preservation being originally and naturally in every one of them, and unitedly in them all '. See the author's work on AlthUSl1lS, {'p. 105sqq., 344sqq. 64 A typical example of this conceptIOn 1~ the way in which Salamonius (PP. 33-42) attempts to prove that pofJulUJ Ipse suis legibus llgatur, although nobody can be Imperans and obedzens at the 3ame time, and nobody can be setpso potenttor. In reahty, he argues, each law ,~ a contract, and the people is a contractually umted body of person... l'i.t. very beginmng of the CIVitas, as a CIVIlIS societas, already Implies binding contracts, and therefore laws. J t is all a question, not of Ife obligatIon of the people to itself, but of mutual obligation between the mdlvldual members of the people-SOCIetas npn .nbt obltgatur, sed IP.n I1Iter se SOCII; and the Ruler, who occupies the position of1 praepo.ntus or t1IStttor 10 the SOCIetas, is 1'0 less bound than the other members. cr. Milton's phrase (op. cit. p. 8), 'a common league to bmd each other from mutual injury'.
The
authority
of
the State as a sum of IndIVIdual nghts
Salamonius on the State as a sum rtf contractual oblIgations
* Here again (cf. the translator's note appended to note 60), the theory of the theologians seems really to be lugher than Gierke alloWll. The consentmg parties who are necessary to the exlStence of a political society (jwt as they are necessary to the instltutlC:~ oflPlafr1age) may be, as such, only an aggregate. But the Institution wluch emerges from thelr act of agreement as a number of mdtVlduals is a part of the divine scheme, and IS a true 'mystical body' in that scheme. The-distinction is fundamental; and if we accept It the State IS really a corpus.
244
Gierke's Notes
The Stat.e In Grotius part!y a Corporatwn partly a partnlrslnp
The People as a sum, ora Collection

ofu.mts
65. Althusius identifies the body politic (e",Pus ~tUum) with the contractual community of the members of the people (eommulJlO symbiotU4 wiversa/IS): he bases all the rights of governing authority on the obligation, incurred in and by the contract of society, to participate in a ~rmJeatw of material and spiritual benefits and means of action; and he ascribes to the government only the position of 'administrator' of such rnatt&s llSJIotlt: the objects of this communicatio. cr. Polzt. cc. 98qq.; DiclUolop, I, C. 81; and-" the author's work on Althusius, pp. 21 sqq. < 66. Of. Grotius (II, c. 5, 23): consociahO, qua multi patresfamilias in unum populum ac civttal.em coeunt, rnaxtmum datjus corptm uz partes, qrna Irate perfectlSslma est SOClet/Js, fUgue ulla est actIO hominu externa, qua. non ad kane socutoum aut per se spectet aut ex eircumstontilS spectore posslt. In 24 he argues that the 10dividual is entItled by Natural Law to terminate his membership [of the State]; but just as in the SOCIetas przvata of Roman law a member cannot quit if his leaving affects the society, so here he can only quit on condition of paying in ready money hIS share of any debt with which the State may be burdened. or of providing an idoneus 10 lieu of himself if the State be engaged in war: moreover departUre III often forbidden by posItIve law, and a pat:tum sic zmtum 15 valid. In 1Il, c. 20, 7-8, he argues that it follows from the act of consent,implIed in entrymto civll SOCiety, that res SUlgulorum may be saCrIficed for the sake of publtca uttlttas in the event of the conclusion of a peace-treaty; but it equally follows, he adds, that individuals have a claim to compensatlOn for war-losses from the means at the dl5posal of die community. The reason is that. though the inflictIon ofmjury and loss on an external enemy is lawful in war, eWes mter se sunt SOCIi, et aequum e1} ut communla hobeont damna quae sOCIetatIS causa contzngunt. But positive law may ordaIn, none the less, ut rn bello amISsae nulla adversus CIV/totem actzo Sit, ut sua quuque arctlus defendat. 67. For Althusius the sovereign People 15 Identical WIth the consoclata multttudo; with homznes conjunch, ronsOCUltl et cohoerentes; with the u:uversa membra ,onjuncnm; WIth the populus unwersus; with the consocUlho unwersallS. with the totum corpus (Pold. Praef., cc. 9 and 17; DlCaeologUl, I, cc. 7-8.) Slffiilarly the author of the VzndJeZae contra Tyrannos Identifies the sovereign With the pepulus conJU7IChm non divmm, the unlverst, or the unwersa mulhtudo (qu. n, pp. 75, Bgsqq., 91sqq., 114; quo w, pp. 149, 171 sqq., 297sqq.). To Buchanan. the sovereign is the unlverSUS populus (pp. 16,30,48, 78--80,87): to Hotoman. it is the unwersus populus or universz (FrancogallUl, cc. 6--9 and 19); to Danaeus, the subdttl or populus unwersus (I, C. 4, pp. 36-44; m, C. 6, pp. 217 sqq.); to Boucher, the multJtudojure coacto, which must not be confused with the Ulcondlta et confusa turba (I, c 9); to Mariana, the unwem (I, C. 8); to Salamonius, the rnultttudo homznum or unwersl (I, pp. !fo, 36); to Rossaeus, the untverSl (c. 2, 1I); to Hoenomus) the unwerSl, or populus un/versus, or populus tnbuttm CUTUltzm centunahm vel vzntim coUectus (a, 46, 51; IX, s); to Milton, 'all as united together' (The Tenure, p. 9). In the same way majestas reallS is aacribed by KIrchner to the SOCIetas populi COallto (a, I); by Paurmeister. to the populus zmiversus (I, C. 17); by Berekringer. to the populus unwersus col1e,tlW--but also, at the same time, to the Slngult as members of this collective body (I, C. 4, 6-8), by Alstedius, to the subdltt unzversi (p. 18); by Werdenhagen, to the people as COl4fctlvum quid, possessed of quantitatlve and qualitative attrIbutes (n, c~ 6). Similarly, again, we Lind the 'Subject' of onginal sovereignty, and of the popular rights which persist after the alienation of that sovereignty, described in
Notes to 14
50to as the multitudo collf&tim sumpta or the populus congregatus (I, quo I, a. 3, quo 7, a. II; IV, quo 4, a. 1-2); in Victoria, as the multitudo or omnes simul (m, nos. 8, 15). iII Bellarmine, as the tota multitudo (cf. n. 62 supra); in Molina, as the sum of all (u, d. 22-3, 25; III, d. 6) ; in Suarez, as the hormnum col18ctiD or multttudo (cf. n. 62 supra). Grotius too regards the untlJerSttas as consisting 0'*; ofAnguli qusque congregatl vel tn summam reputati (II, C. 21, 7) ; and Keckermann describes the people as collectivum qUId ordmatum (Praecogn. p. 68. The aetvocates of the theory of popular sovereignty, like those of the theory of 'double sovereignty', expressly emphasise the fact that the Ruler is superior to his subjects ut singulis, but inferior to them ut umversis. Cf. the Vmd. contra Tyr. quo II, pp. 9lSqq., quo III, pp. 39ISqq.; Buchanan, pp. 7!r80 (the king is to smgull, as the people is to the kIng); Salamonius, I, p. 20 (the king is major Stngulls, sed minor umverSlS, as being the servus universitatIS, but not the nngulorunt minister) and p. 28; Rossaeus, c. 2, I I ; Danaeus, III, c. 6, pp. 1117sqq.; Althusius, c. 9, 18 (non smgulis, sed conjunchm univerSlS mernbrlS et toto corPOTt cOnsOCiatl regnl competit) ; Hoenonius, II, 46 (URivern, not nngull, are the Superior); Alstedius, p. 18 (supenor Stngulis, lrifmor subdltis unlVerSlS) and pp. 56sqq.; Milton, DefetlSlo of 1651, p. 70 (Rex est Rex singulorum, and also umversorum, but only St volumnt). Conversely, the advocates of the sovereignty of the Ruler argue that the Ruler IS superior not only to Stngull but also to unlversi: cf. Soto, IV, quo 4, a. I; Molina, II, d. 23, ~8; Bornitius, Part. p. 41, De mal. c. 4. cr. also Bomltlus, De mal. c. 6 (the end of the State IS salus seu beatltudo reIpublicae sive populI umversi !mmum, deLnde smgulorum); Suarez, III, c. 2, no. 4 (supra, n. 62) ; Grouus, I, C. 3, 7-9, 12, III, C. ft, 4. 69. Cf. Salamomus, I, p. 36 (although the populus una Interdum censetur persona, It is only utficte una, and vere populus non allud est quam qUlJildam homlnum multltudo); Suarez, I, c 6, no. 17 (pta personaficta) , III, C. 2, no. 4 (unum corpus mystiAnn, quod morallter dU:1 potest per se unum), Vmd. c. Tyr. quo n, p. 75 (univerSItas unlUS personae vlCem susllnet, as the Lex mortw:l teaches); Limnaeus, CafJItul. nos. 48sqq (majestas reallS is the power quae Relpublu:ae adhaeret, hoc
7).
Omnes ut singuli and ut uniu8rsi
Tiu uniry oJ
tlu PlOJ1le a' Fu:tIon'
est umVeTSltatl, qUlJil non nISI ficte personae nomm ITIducere potest, ex personlS tamen constat); Grotius, II, c. 21, 8; Werdenhagen, IT, C. 6, 22-4 (persona ii used in polItical theory only for the singulus, but In lure It is also used for populus, for an office, for a univerSItas, and in all c,;;::a in which plures personas unus sustlnet). 70. When a decision of the whole pc.vple ... reqwred, thinkers often speak The vaguely of a consensus POPulI or a voluntas Universorum, WIthout gomg into the common question whether or no tRey mean a regular act of an assembly which must unll an follow the forms that are necessary for the deCISIOns of a corporauon: cr. agreement oJ Buchanan, pp. 16sqq., 30sqq., 78; Rossaeus, c. 2, 4 (the consetlSllS populi as many wills the will of the JUspubllCa) , Salamoniur., I, pp. 8sqq., 11, 3ISqq.; Mariana, I, C. 9 , Vasquez, c. 47; Molina, II, d. 25; Suarez, Ul, c. 4, nos. 1-2, C. 4, no. 5, c. 9, no. 4; Boxhorn, I, c. 3, ISsqq. (since rule is contrary to nature, it depends on the constant consetlSllS of imperans and subdltl); Grotius, I, C. 3, 8 (POPUlI unlverSlm sumptl arbltrio), 13 (populi voluntate delata) , II, C. 6, 3, 7, 13, JIJ, C. 20, 5 (popult totius consensu); Salmasius, c. 6 tsovereignty belongs to the King eijher VI or valuntate POPulI)
The reference actually given in the Vind. c. Tyr. is to LeN commissis.
mortuI~!l
D, de fidei
GirrTr.e's NOMS
But we often find the decision ofthe people definitely treated as equivalent to the tacit and cumulative acts of consent ofso many individuals. This idea is applied to the conclusion of the original contract of govtl'qlent, or to some later act of approval of a limited government which is a substttute for that contract: cr. Vwl. c. Tyr. quo UI, pp. 2/i4sqq., 287sqq.; [Beza's] D,jur, mag. quo 5, PP' 18-20 (where the condition is made that the cf)flSmlus ~'t not be \orced) j Danaeus, I, c. 4, p. ,p; Hoenonius, IX, 5&-1; Suarez, nt, c. 4, no. 4 (the consensus is 'tacit' when rule has been usurped, but it is deb.tus when subjection has been imposed by a just war), c. 10, no. 7 (consmrus taCItus); Arnisaeus, De auet. C. 4, 1I-I4, De rep. n, c. 2, s. 5, c. 3, SS. 7-8 (consmsus taatus, and until it 15 given there are no submtt); Knipschildt, VI, c. 4, nos. 12-13 (no right [of government) exists untIl suhditi paulahm consensummt); Fridenreicb, c. 10 (all Ruling authority rests upon ,lecho, since it is the consmrus umversorurn whtch has either devolved it upon the ruler onginally, or legitImised It afterwards); Bornitius, De rnaJ. C. 3, Part. pp. 47sqq. (consensus spontaneus aut coactus, expressus vel tacItus, verus vel quast, is what constitutes the Ruler); Grotius, J, C. 4, 5sqq., II, c. 6, t8; and see the author's work on Althusius, pp. 305-7. Similarly we often find writers who argue that the consent of' the people' is reqwred for laws contenting themselves with an informal approbaho (Molina, II, d. 23, 6-7, v, d. 46, 3) or an acceptaho PopulI (Suart'z, IV, c. 19, and Claudius de Carnin, I, C. 3). In the same way consensus tacztus was held to suffice for certain alienations [of public pr~perty] (Grotius, II, C. 6, 8, 10). On the other hand, many thinkers demand a' formal resolutton by a regular assembly in certain cases. Most of them, though there are some exceptions, require it for the deposition of a lawful ruler who has become a tyrant 'in exerctSe'j cr. Soto, IV, quo 4, a. I; Mohna, Ill, d. 6; Vlnd. c. Tyr. quo m, pp. 292sqq.; Mariana, I, c. 6 (conventus publIcus); Althusius, C. g8; cr. the author's work on Althusius, pp. 3og-HI. Some writers also reqUtre an act of a regular assembly for the appomtment of the Ruler; cr. Soto, IV, quo 4, a. 2 (publICUS corwentus); V,M. c. Tyr. quo Ill, pp. 248sqq. It may also be l'9luired as a way of gIving assent to certain alienations [of public property]; cf. Grotius, II, c. 6, 9. 71. Molina, d. 23 (supra, n. 62). Althusius (c. 9, 16 and 18) holds that only universa membra de commum consensu can dispose of the Jus rnaJestatls, because only membra regm universa sirnul can constItute that nght, but he also believes (cf. his Preface: cf. also c. 9, 19; c. 18, 15, 84,104,123-4; and c. 38, 125-9) that even the whole of the people, acting unanimously, cannot make any valid alienatIon or diVISion of sovereignty. Hoenoniw (0, 39) regards regnuolae as competent to decideJura regm 'by common consent'; cr. also his phrase ( 40) " cornmum plactto . VIta socaalas tnter membra retpublica, instUutlur et regitur. 72. The assumption of unanimity was taken for granted in regard to the contract of society; cr. Althusius, c. 9, 19; Suarez, Ill, c. 3 (per voluntatem omnium gut in lIla convenerunt); Grotius, II, C. 5, 23 (vide supra, nIl. 5g--(2). The consensus omnIum is required for any change in fundamental laws by Bortius (D, rnaj. n, 17-21); and, as we have already mentiqned (supra, D. 43), Besold (De rnaJ. S. I, c. I, s) and Tulden (I, C. II) recfl.tire the consent of omnes nrzpll in a democracy for any change of Ipsae leges democratu:ae. A.. cording to Althusius (DtcQlologltJ, I, c. 87, nos. 37-43) a unanimous resolution
Ail must oet if the PeojJk is to oet
Notes to 14
247
should also precede the imposition of new taxes. [Gierke adds a reference to a note in a previous section of his fourth volume (p. 241), which is not translated h~.] 78. Cf. ~thusius, c. 17, S8; Buchanan, p. 79 (universus populus vel major PMS is legislator, creator of government, and Judge of the King); Milton, BflfIISIO"Of 16SI, c. S, pp. 63-4, c. 7, pp. 69-70 (populi pars major It potior, i.e. plus quam dimidia pars POPulI, is Superzor Rege). Generally, a majority-tlecision was regarded-as adequate both for the [original] choice of a form of State and appointment of a Ruler, and for any subsequent changes in the constitution, ef Victoria, III, nos. I4-IS (lo the appolOtmentofaRuleramajority is enough, etzam alns mVltlS, smce the consent of all cannot be attained; the whole of Chrlstiamty might gIve itself a Ruler by majorIty-decision; and in the same way a majority in a republic may, if it WIShes, choose a monarch) ; Soto, quo 4, a. 2; supra, n. 43. 74 In most writers we only find a reference to the general rules of the [Roman] law ofcorporatioIlS. Grotius is the first writer (n, c. S, 17) to use the fiction that the maJority-prlOciple must have been introduced by an act of contract into all assoCiatioIlS, both public and private (quod In us rebus, ob quas COnsOCUltlO q7laeque Inshtuta est, unwersztas et e.JUS pars major nomme unlversztahs oblIgant szngulos qUI runt In socutate). He argues (I) that lo each contract of society we must assume a voluntas In socutatem coeuntium . ut raho allqua esset expedundl negotza, (2) that this ratIO, or way of traIlSacting business, can only COIlSISt in the stfpremacy of the maJority, because it is obviously improper 14/ pars major sequatur mlnorem, and therefore (3) that so far as special pacta et leges do not prtvlde otlferwIse, pars major habet JUS integn. Hobbes takes a similar VIew (De cwe, c. 6, 1-2). Only unammity IS valid in a multztudo extra clVztatem, but it marks the beginmng of the traIlSformation of such a multitude lOto a State when its members agree ut in lIS rebus, quae a quopUlfTl In coetu proponentur, pro voluntate omnIum habeatur Id quod voluerit eorum major pars. Otherwise no single WIll can be attawed. If any person WIll not accept thIS agreement, the rest can COIlStitUtt: the State WIthout him, and can exerCise against hIm theIr origmal rIght-the jus bellz' cr. ibid. 20. 75. See the author's work on AlthuslU~. pp. 2 16-19, and 12, n. 129 of thlS volume [not here traIlSlated]. The author of the Vznd c. Tyr. invotees, as the organ for securing the observance of tIle rights and duties imposed by contract (whether it be the contract made WIth God, or that made with the king), not the unwersa multltudo, but t;~e 'c. n maglStratus regm-the ojJiciam Regm non RegIS, or consortes et ephon ItTPtl1l-masmuch as these officers apopulo atJ&torltatem acceperunt, and thus unlversum populI coetum repraesentant: quo II, p. 89, quo III, pp I48sq4'. A similar view appears In the DeJure mag. quo &-7 (ordlnes szve status), Buchanan, p. 30 (ex omnIbus ordl1libus selec/i); Hotoman, CC. 13-14; Mariana, I, c. 8 (procere~ or deputatz). Althusius includes both the Ephors' and the summus maglStratus among the admznlStratores ofpubhc authorIty, who are appointed and commissioned by the consoczata multltudo because It cannot easily meet itself, and who, within the limits of theIr commission, unwersumpopulum repraesentant (c. 18, 1-47): Ephorl sunt qmbus, populI In corpus POlltlCUm consociatl consensu, dmrandata est summa ReiPjblzeae seu unlversalis consonatlonlS, ut repraesentantes eandem potesta18
The VituJ. ~. Tyr. supposes two contracta--that of people and king with God (the divine covenant), and that of people and king (the secular contact ofgovern.
ment).
Whom
majoritytkcisitm allou#d
Th4./i&tiDn thatmajoritydecision is made equal to
unanimous
decision by a contract to that effect
Representation
oj1h6 PJPl,
by Estalls or' Ephors'
Gierke's Notes
et JUTe illius utant/lr in summo maglStrom constilumdo, tOfJl# ope ret] col'LSilio in negotiis corporis ~tijuvando, necnon in eJusdem licentta coercenJa et imjJfdinuia In cawlS iniquis et Reip. pernidOSJs, et eodem mtra limites officii CtmtirtenJo, et dmique m provuisnrJo et curanao ommbus modis, ne Resp. quid d8tnmmti ca'piat pnV8tis sturJiis, odlis,jacto, omissione vel cessatlone summi magistrattLS (ibid. 48). These 'ephors' are appointed by popular election, but they may also be appoinllJll, ex poputi concessiOTlt et ben4icJo, by nomination or co-optation ( 59): their commission may also be made hereditary ex consensu consocl4&nis universallS ( 107)' they constitute a collegium, whIch acts collegwllter and by its major pars (62): as such a college they dIScharge the officium generale, with which they are vested, of representative exercise of popular rights (63-8g, c 38, 28sqq.); but there is also, distinct from this' general office' of the college, an Ojfilum speciale of indlVidual 'ephors' (c. 18, 90-1, c. 38, 46-52). Hoenonius has a siInilar theory (n, 46-5 I, IX, 44-54): ephari Stu ordints regnl have to exerCISe the right of the sovereign people ex JUSSU et consensu populI: as uniDersi, quatenus unwersum populum repraesentant, they are superior to the Ruler. Grotius argues (n, c. 6, 9)' populum autem consenslSse mtelllglmus, sive lotus coid .. Slue per legatos partlUm antegranttum mandatu sufficaente tnstructos; namfacimus et quod per allumfaclmus; cf I, c. 3, 10, 111, c. 20, 5. See also Fridenreich (c. 10), who holds that, in lieu of unlVersl, smaller assemblies have often to elect the Ruler by virtue of'delegation': Tulden (n, cc. 19-23), who regards the optima forma as a monarchia temperata, optlmatlbus aut duectlS populi in partMn reglmlnlS admissis): Milton (Defensl~'of 1651, c. 7, p. 70), who argues that the objectIon of Salmasius (that we regard plebs sola as populus) is incorrect; for we mclude amnes ordInIS cr4uscunque hues In the people, inasmuch as unam tantummodo supremam cunam stablllvtmus, In qua etlam proceres ut pars populI, ntm pro sese qUldem solis, ut antea, sed pro lIS mumclpilS, a qUlbus electi fuermt, su.Jfragzaferendi legltlmum}us hobent. The Peopu 76. The author ofthe Vlnd. c. 'r",.. ascribes to the assembly of the' ewors ', assuperior as Regni quasi EpItome, equal rights with the people, and an equal supenonty 10 its with the people over the kmg, inasmuch as any act of a majority of that represmlatives assembly counts as the action of the people (qu. II, pp. 91, 94, 114; quo ro, pp. 11-8, 149, 248sqq., 297sqq., 326sqq.); but he expressly insists that this assembly cannot, by any resolution or any omission on its part, forfeIt the rights of the populus conshlums (qu Ill, p. 173). The same hne is adopted in the DeJUfe mag. (qu. 6-7): the ephors, in regard to the Ruler, are defensores ac prDuctores JUflum IPSIUS supremae POtestatlS [i.e. they are the guardians of popular sovereignty], but they cannot actually prejudice the sovereign nghts of the people itself. Buchanan (pp. 30sqq.) only allows the assembly of Estates to produce a 7Tpo{3ov>..evp.a 1D the sphere of l~gislatIon,vindicating the right of final deCISion for the unlVefSUS populus. 77. Althusius expressly insists that though the Ephors, in their collective Altlwsius position as representatives of the sovereign People, are superior to the Ruler, sqfegvards and though, in their assembly, they exercise the rights of majesWs in respect th4People as against to him (c. 18, 48-Sg, c. 33, c. 28, 28-64, and also c. 17, 55~I), they are merely commissioners of the people; conshtuuntur, removentur, deJiciuntur aut its Ephors
This whole theory of the 'ephorate' (wlllch appears later In Fichte) is derived from Calvin's lnslltu", (IV, C. XX, gI) where he speaks of 'magiJtratcr: cOIlStituted for the defence of the people, to bndle kmgs, such as the Epboh in Sparta, the tribunee at 1l.ome..and to-day, it may be, 10 each kingdom the Three Estates
8ISeOlbied
Notes 10 14
t~U&torMltur
by the people; and they must recogniae the people as their
Superior (c. 9, 22-3). Accordingly while he applies to the Ephors the principle that tVe action of corporate representatives counts as the action of the corporation itself (c. 18, II, 26, 53-8), he limits the application of this principle by the lamites of thell' commission (ibid. 4I-6); and he expressly af!ll,es that the Ephors cannot transfer any right of the People to the Ruler, or forfeit any such right by omitting to exercise it, since, in that cale, penes Ephoros, non RkpubllCaTn et Populum, summum Rnp.jus esset (ibid. 124). Again, if there be any failure of the Ephors, he daims that all their functioI1ll revert to the community ofthe people, in virtue ofits imprescriptible and inviolable right; and then these functions are to be exercised consensu totius populi trlbutim, curiatim, centunahm vel VlTltlm rogatl aut collectl (ibid. 12g). Similar views appear in Hoenonius, II, 46, 51, IX, 50. 78. This is the view of Hotoman (cc. Igsqq.), Boucher (I, c. 9; II, c. 20; The P,opte III, c. 8), Danaeus (III, c. 2, p. 221), Mariana (I, c. 8), MUton (op. cit.): cf. itselfas Alstedius, pp. 56-61 (the ordIniS [or Estates] are a Rnp. COmpendIum), Friden- the true reich, c. 29, and Keckermann, c. 4, pp. 56ISqq. We also find German pro- 'Subject' of fessors of public law (and especially Paurmeister, Besold and Lunnaeus) popular generally ascribing to the people of the Reich the rights exerClSed by the nghts Reichstag, and even the electoral rIght of the Electors, just as they also ascribe the nghts of provinCial Estates to the people of the provmce as the true' SubJect': cr. supra [in a part of vol. IV not here translated], p. 242 n. 129. Bortlus (De maJ. v, ~9), in speaking of majestas realu, remarks that its possessor is tota Respubllca, et secundario ordmes et status regni. 79. See the author's ~ork on ~thuslus, pp. 9C>-91, 343. 80. Supra, n. 46 81. Supra, n. 47. 82. The 'Subject' of Soverelgpty in a Republic IS plures, according to The VlctOlaa (III, no. 10), Bellarmine (De lalClS, c. 6), BUSlUS (I, C. 3, 4), Kecker- plurality mann (II, c. 2), and others; it IS either paucz or unlversi, according to Bodin qfthe (II, c. I) and Suarez (III, c. 4, nos. I, 5-6, I I) : it is multI, which may again be 'Subject' qf eIther pauetorer or unlVerSl, according to BOTIlIhus (De mtU. c. 3, and Part. Sovereignty p. 45): it is palJi:lores or tota CIVItas, accordmg to Winkler (v, c. 4). SimJ.l;lrly, in a intheVlewofGrotlus (I, e.g, 7),plures are the subjectumprop,zum of maJestas in Republze a RepublIc; and plures or unlverSl are the ::'ubJect' of majestas persolUllu in this form of State on the theory of the advor:iltes of 'double sovereignty' (e.g. Alsted1us, p. 14; Tulden, p. 12; Besold, De "<.1J. sect. I, ce. 2-7). ThetheorlSts of popular sovereignty also make a plurality of persons into the organ of government in RepublIcs' cr. Mariana, I, c. 3; Danaeus, I, c. 6; and Althusius, c. 39, I (sum~us magistratus polyarchzeus). On the technical term 'Polyarchy' see n. 46 supra. 88. Of. Bodin, II, c. 6 (the magnalt~, in a system of aristocracy, colleetl';' The imperant), and c. 7 (where the same IS said to be true, in a status popularn, of plurality a the cives unIVlrSl); Borrutius, Part. p. 5 I (the elVes collechm unlti are to be re- collective garded as the Ruler); Keckermann, II, c. 2 (Plures ex aequo indwisim); Alt- plurality husius, c. 39, 32sqq. (when there is a magutratus polyarehlcus, the ruler is omnes c01!iuru:tim), 4.6sqq. (when there is a [magutratus] arntoeraticus, the exercise of jesty belongs cOrUuru:tzm et IndlvuJue pauets optimatlbus), 57sqq. (when there is. [magutratus] democrahcus, the populus eonsociatus is also the.rummus magutratus). Similar views occur In Hoenonius, IX, is, x, 4.o; cf. also Gregorius, v, ce. 1-2; Molina, II, d.llS, 1-I4; Heider, pp. 970sqq.;
250
I,
Gierke's.Notes
7lis collective plurality is a single, but artf!U;Jal, Ruling 'person'
Cniger, Coli. pol. Disp. 1, m, IV; Amisaeus, DtI rep. n, CC. 4-5; Knipachildt, c. I, no. 50 (Plures ut univerSl). 84. Arnisaeus (De maj. I, C. 2; Polito C. II) contrasts the republican Ruler, as consplratume vel an.alogw lInUS, with the Ruler who is unus natura; Berekringer (I, C. 4, 10) opposes the lInUS an.alogia to the unus numero i Graszwinkel (cc. 3, II) contrasts the corpore unus with the persona linUS; Bornitius (~t. p. 45; ~e maj. c. 3) opposes the unus TclJ '\oYY' to the persona lInUS. Keckermann (Pollt. I, C. 2) explains that the whole perfection of the status polyarchzeus depends upon the plures qUI zmperfJ1lt assimilating themselves by their unity to a monarch. According to Althusius (c. 39, 59) the essence of democracy lies in the fact that populus ipse znstar IDUUS exercetJura majestatis et guari unum repraesentat in imperando. Hippolithu.~ a Lapide (J, cc. 3, 4, 6, 14, 15) assigns the rule in an aristocracy to the privileged Estates as constituting unum corpus, unilln'sitas vel collegium, etc. Cf. also Suarez, JJJ, c. 3, nos.
7-8
Hobbes (De ave, c. 7, 13-14, C. 12, 8, Leviathan, c. 18) insists most definitely that, as compared with the natura unus on which the will and action ofthe people is devolved m a monarchy, the democratic assembly or the aristocratic curia constitutes only an artmclal urnty. He draws the conclusion that, while a monarchical Ruler may contravene the Law of Nature, a republican Ruler cannot, on the ground that in the former case the natural and the artificial Will are one and the same, but in the lattt"r there is only an artificial will'. The pre-eminence of the monar'chical form of State IS constantly referred by most writers to the supenonty of natural umty over unity which is artmcial, cf. e.g. BodIn, VI, c. ~, nos. 7~osqq., Hobbes, De ctve, c. 10, LeViathan, c. 19. 85. Cf Bodin, II, CC. 6, 7; Bormtius, Part. 41, De maj. c. 3; Althusius, c. 39, 32sqq.; Hobbes, LeViathan, c. 18;.Hippolithus a Laplde, c. 3, sect. 3, c. 6, sect. 3, c 7. Mention has already been made (supra, nn. 42,-43) of the difficulties mto which thmkers fell in thIS connection, when they sought to extend to democracy the distinction between the people as the' Subject' of popular rights and the people as the duly constituted Ruler. Keckermann (n, Cij. 3) finds even m a democracy [no less than m an aristocracy] a system of reciprocal alternation of ruling and being ruled. 86. Bodin (u, cc. 1,6-7) refers the whole distinction between aristocracy The and democracy to the numerical relation of rulers and ruled, malung the c077l71Ulllity in a democracy former a rule of the minority, and the latter a rule of the majority. But since, from thIS point of view, he ranks as a democracy a state of 20,000 citizens in idmtified which 11,000 participate in the popular assembly, and since, again, he With the allows a majority of the assembly so constituted tJ decide, it follows that the majority unirJlrSl VII major pars who, on his definition, are the rulers in a democracy may in certain circumstances be represented by a minority of the community. Grotius agam and again enumerates together the king or the major pars proeerum or the major pars poPUll as being the 'SubJects' of international nghts, according to the form of the constitution: cr. e.g. UI, c. 20, 2-4. Hobbes (De ClVl, c. 5, 8) says bluntly: voluntas autem concJn Int811zgJtur esH, quae est voluntas majoru jJartu eorum hommum, IX quibus conczllUi consut,t; cf. c. 7, 5. See also Bomitius, Part. p. 45 (universis aut 11Uf]6ti parti) ; Keck.ermann, n, c. J; Be$old, Duc. w, De dmwcratia, c. I, I (populus vel moJur pars).
Notes to 14
87. (in an aristocracy, he argues,just as in a democracy, the time and Jlli1ce of the meeting must be fixed, because otherwise there will be nOft pers0ft4 1UUl, sed dissoluta mulntudo sine imperw summo. For tlus reason the coetus or CtmlMfltus is often described as the Ruler; and Hobbes constantly av" himself of the formula that Sovereignty resides either in unus Qamo or in unus COItus unum conciIJum). 88. See the antitheses in n. 84 supra. 89. Cf. Bodin, I, c. 8, nos. 105-6: Princeps m4jorum pactu convmtiJ aeque ac
cr. Bodin, D, cc. 6-7; Althusius, c. 39, 37sqq.and 58sqq.; Hobbes,

10
De tive, c. 7, 6 and
The asstmb{y in 4 /Upublic tlucrihed as
IIu lUdn
0'
Howfar is
privatus obligatur, si regnum h4tredJtano jure obvenent, vel etJam testamento delatum a Ruler
SJt: otherwise [I.e. where he has not obtamed the Crown by inheritance or oblJged by by will], he is [only] obhged quatenus RelpublJcae commodo contractum est. the acts of [GIerke seems to have telescoped the argument of Bodm, which is really to his the effect (I) that a king succeedmg by hereditary or testamentary right is pretkcessors? bound as a private man by the pacta conventa of his predecessors in title, but (2) that such a kmg is only bound to respect such pacta to the extent to
which his predecessors were themselves bound-i.e. to the extent to wluch they were made for the benefit of the State] Of. also Armsaeus, DeJure m4J. I, c. 7. Grotius (I, c. 7, 11-37, n, c 14, 10-14, III, c. 20, 6) also starts from the pomt of view of the law of mhentance. He dIStinguishes two cases. (I) When they are omm1J6J bonorum heredes, the successores are absolutely obliged by the actiOns of their predecessors, (2) when InJUS regTn dumtaxat succedunt, they mcur no personal SlblIgatlOn at all. In the latter case, however, there %S still an oblIgatIOn, whIch IS produced and medIated per mterpOSitam civJtatem. There IS a presumption that the devolution of supreme authonty on a Ruler involves, as part ofitself, the simultaneous devolutIOn of the JUS se obllgandl, per se aut per m4JOlle71l SUI partem, which belongs to the people just asit belongs to any other group (n, c. 14, 10). It thus follows that, 10 so rar as the people Itselfis obhged m vIrtue of thIS JUS se obllgandl, the successor will also be obhged ut caput (Ibid. 12). Now an obligation of the people is to be assumed not merely in any case ofullllle gwum [where there has been an act done in the defilUte expectatIOn of a bellefit], but abo in any case where probabuis rallo is present [where there is good ground for expectmg a benefit from an act done] j and it is only in regard to contracts preVIously made by usurpers that the people-and with it, ,I. "fore, the rex verus-has merely a limited liabIlity de zn rem verso [for expenses actually mcurred] (Ibid. 14) 90. Grotius, 11, c. 14, i 1-2 and 6; Ill, C. 20, 6. Controverting the thesis of Bodin, that the sovereign can dispense himself from his contracts, or recover his freedom of action (zn Integrum se restltuere) in respect of such contracts, Grotius (n, c. 14, 1-2) dIStInguIShes actus Regis qUI regll SWit and actus regis prwati. The first sort of acts count quasi communJtas faceret: In tales autem
Grohus
dutinguishes betwelJn the official and the personal actus, SJcut leges ab ipsa communitate factae vim nuUam haberent, qUIa commWlitas acts of the seipsa su/J8rior non est, ata nec leges regzae; quare adversus hos contractus restItutIO King locum non habet; venit enlm JUa ex Jure C1VIlJ. At the same time Grotius malntains that the people can challenge such regll actus [though they count as
acts done b~ltselfJ on the ground that they exceed either the special limits of the Ruler's right [in a given case] or the general limits of such right [in all cuea]. The private acts of the king, on the other hand, countl1lOn ut actus eommunitatis sed fit actus partis; and in case ofdoubt they fall under the ordinary
Gierke's Notes
law, and are thus subject to restitutio in integrum and to the 'King's power of dispensing himself from leges POSlttVtJI. In the same chapter (n, c. 14, 6) Grotius allows that cot\tracts between the king and his subjects always give rise to a true and proper obligation; but he adds that it is only under Natural Law that this obligation can be assert~ if the king has acted qua rex-though it may be also useruL at civil law if he has acted otherwise [i.e. qua pnvatw]. 91. Grotius himself, in the passages just cited, has recourse to the right of the commumty of the people and the devolution of that right. 92. cr. Guevara, Horologlllm PntlCIPU, I, c. 36 (based on John of Salisbury -see Gierke, Polittcal Theories qf the Middle Age, translated by F. W. Maitland, p. 24): cr. also Knichen, 1, c. 6, thes. I I (which is similar); Modrevius, Of tJu betterment of the general welfare, 1557, p. 162; Buchanan, pp. 13 sqq. (a comparison of societas ciVills with the human body and its ordermg, articulation, harmony and unity); Gregorius Tholosanus, 1, C. I, 6-I6, In, c. I, I, X, C. I, I, XVIn, C. I, 4, XXI, c. I, 4-IO, and elsewhere (analogy of the corpus ctvtle with the corpus physicum, in regard to head and members, soul and nerves, harmony and umty, and the dIfferent powers and functions of the dIfferent parts see also his Syntagma, 111, c. 2, 1-2), LeSSIus, Dedlcatlo of 1605 to the Archduke Allx-rt of Austria (comparison of the Prince with the caput, of the TlspubllCa with the corpus, of ciVitates with membra, of cwes with artw eX qwbus membra et totum reipubllCat corpus clf1lesClt); Besold, Pnnc. et fin. polito doctr. Dusertatio, I, c. 5, 4, c 8, I, Dus. de mal sect. I, C. I, 4, sect. 3, C. 3, 2, c. 7, 3 (companson of the Stale WIth ~ corpus pliysicum or corpus liU11llUlum, in respect of its head and members, and the dIfferent functwnes of each); Berckringer, I, c. 4, 10 (the Rulers are the head of a body, whOfle parts have also their functions); Werdenhagen, n, c. 24 (the essence of the State is unio-summum ~llud venerandum voc4bulum mystlCum-a union produced by status et ordUUUlo harmonica, just as in a physical body), cr. also B6dm, n, c. 7, DO. 236 (rezp. partes at veluti membra szngula, quae pnnclP~ reip. quast caPlti zlllgtmtur). It still continued, in our period, to be a favourite habit of thmkers to pursue this analogy into a theory (I) of the growth, the successive ages, the taaladies and the death of States, and (2) of the methods which were serviceable in preserving or restoring their health. cf. Buchanan, op. cit.; Gregorius, lib. XXI-XXIV; Besold, Diss n, de republ~ca euranda; Knipschildt, I, ce. 15-17. [On this analogy in general see Maitland, Collecttd Papers, lIl, pp. 285-3 0 3.] 98. See Besold, DtSs. I , C. 5, I; Arnisaeus, Polito c. 6, De rep. I, 5, s. 3; Bomitlus, De maj. c. 5, Part. p. 45 (thefinu pnnC'l/'alu of majestas is anm'UU'1l imperio .summo unlllersah rempubllcam); Fridenreich, c. 10 (government is the splntus vitalis of the body polItic); Bortius, De mal. v, c. 8; Graszwinkel, c. 4 (quod in umllllrso Deus, In corpore ammo, td in unperio majestas est); Knipschildt, I, C. I, nos. 50-5 I; Tulden, I, c. 9 (urbs - corpus, civitas - anima, respublica - ammus mens et ratio). [With the dictum of Graszwlnkel compare a dictum of the eighteenth century, quoted in Van Tyne, Causes of the War of American Indepmdence, I, p. 218, to the effect that 'legislative sovereignty is as essential to the body politic as the Deity to rehgton'.J
Grotzus thus disagrees With Bodin so far as official acta 0' thl'king are COIlcetned (the kmg cannot dlIpeme himself from an official act of COJltract, or recover freedom of'aetioll in regard to such an act); but he agrees With him in regard to penonal acts of the king.
SoverngnUi as the Soul of the Statt
Notes to 14
253
94. See Gregorius, 1, c. I, 6-7 and xvm, c. I, 4- (corpus cilliZl, guod ex singularibus personis proprIo corpore et ammo compo.ntls, tanquam membris, constat); cr. also Besold, De maj. m, c. 7, 3. 95. See ~ictoria, m, no. 4-; Soto, IV, quo 4, art. I; Molina, n, d. 22, 8-g; Suarez, m, ce:. 1-3 (supra, nn. 60-61). Vasquez, however, in C. 47, n,6-a, warns his readers against drawmg conclusions from the analogy betWeen the relation of populus and eWes and that of corpus and T1Iembra. There are alslf, he contends, fWldamental differences' the limb cannot change its position, and the citizen can; the foot or the hand cannot become head, but any Citizen may; the death of the head causes death of the limbs, but the death of the head of the State produces no simIlar effect; in the body government remains always in the head, but m the State it may change its residence. 96. Althusius, Praef. and C. 9, 18-19: 'majesty', like the anima In corpore physico, resIdes as an indivisible and inallenable unity m the corpus .rymhiotlcum unlVersale considered as a whole: It is the basis of the nghts of government which this whole exercIses over its parts. Cf. also Dlcaeologla, I, C. 7. 97. Grotius (II, C. 9, 3), referring erroneously to anCIent writers, ascnbes ;gLV p.lav or splTltum unum to the people, regarded as a corpus ex dlStantzbus [sc. composltum). He adds, IS autem SPIritus slve EgLs in populo est mtae elmlls consOelatlo plena atque perfecta, CUJUS prIma productw est summum Imperlum, VInculum per quod respubl,ca colw.eret; plane autem Iw.ec corpora artificialla Instar habent corporzs naturalLl Just as the latter [the natural body] Idem non esse deslnlt partlcullS paulatlm mutatIS, so the former-the' moral' body of the People-remains the sam~ though~ts members change. But like the natural orgamsm, the People may also succumb, and lose Its nghts; and it may do so (I) Interltu corporIS, that is to say, either by the slffiultaneous disappearance of aU Its members (4) or by the dlsmtegration of their unity ( S), or (2) 111tertlu SPyltus, that is to say, by los~ any supreme authonty (6). On the other hand, the People still remams a 'SubJect' of rights and duties, as much as ever, in spite of any alIenation of territory ( 7) or any alteration of the constitution (8); and the umon of two pl"op1 p s to form one (g), or the dIvision of one people mto several ( 10), prNluces no loss ofa people's n~hts, but only a communlCatlo or divlSIO of nghts, as the case may be. See further I, C. I, 6, C. 3, 7j n, c. S, 23 (maxzmumJ....."rpoTlS znpartes), c. 6, 4-S (Imperium in an undiVided body polItic IS tik,. th,. soul m the body), C. 16, 16 (the body politic remams the same I:ven 11' the constitution be altered), C. 21, 7 (on mors of the body pohtic). But Grotius, while he notes these analogies, also remarks (I, C. 3, 7) that in contrast with the 'natuPaI body' the corpus morale may have one common head for a number of bodies [e.g. in the case of a federal State]. Gomg more mto detail (n, c. 6, 4-S), he argues that the 'moral body', bemg voluntate contractum, is different in kind from the 'natural body'. Owmg to its contractual origin, the integral parts ofa moral body are lion Ita sub corpore ut JUllt partes corporIS naturallS, quae sine corporIS VIta vzvere non possunt, et Ideo III Gierke here refers the reader back to vol m of the Gerwssenschqftsrecht, p. 22, n. 47, and to the correctIOn on p. Vlll of hiS preface to that volwne. The POlllt IS that Grotlus 'WiS dOlllg VIolence to StOIC theory, and to Plutarch and the Roman lawyers who used !tat theory, when he ascnbed to them his own idea that a slllgie spirit pervades bodies composed of different parts. The Stoics and thew followers, Gierke contends, held no such view.
Vasquez on differences between the body and the Body Pol,tic
Grotzus all
the analogy
o/the Body PolLtlC
Gierke's Notes
consocrationrbus consocratus. The Respublrca cannot transfer or alienate these rights of majesty, even if It wishes, any more than an individual can share his hfe WIth another. At the same time, however--both in this .ontext, and when he subsequently proceeds, in the body of his work, to justify these general principles In detail (cc. 9, 18, 19, 38) and to deal wIth the several rights of majesty (cc. IQ-I7)-he identifies this sovereign body wJaich posses:es the regm proprtetas WIth the populus, and he identifies the populus in turn WIth the umversa membra comocrata or with omnes srmu'- Similarly he ascnbes to the 'People' the property and usufruct in res publIcae et fiscales, assigning to the summus maglstratus [ only) the power of administering them znstar tutorrs, WIth such rights as the 'People' has granted (c. 37. I-2)j but in the same breath he descrIbes the Respubllca (IbId. 117-18) or the corpus consoCUltum (c 17, I sqq ) as being the owner. 107. Salamomus, De prtnclpatu (J, pp 28-g), seeks to prove that Prtnceps SUIS legrbus llgatur by the hC'lp of a dllotlnctlOn, based upon CIcero, * behveen the Persona CWltatrs and the Persona Pnnczprs. Smce It IS the Persona Crvrtatls which is acting through the PrlTlceps when he ISsues laws or does any oth("r act of government, the Ruler who obeys hIS own law submits himself not to hImself, but to eo persona quam gent. It is true that he represents that 'person' [the Persona CIVltatrs) ; but he only does so ut gerens [and he does not therefore absorb it mto hImself] In reahty, both 'persons' act at the same time, but they act m dIfferent ways-the CIVitas actIng ut mandans, and the Pnnceps ut mandatarlus, WIth the result that the mandans acts~ut major, and the mandatanus Itt mInister It follows that it IS Ipsa CIVltas whIch vere aglt et vere leges condIt. But Salamomus always Identlfieq thIS' CWltas lor Persona CWltatlS) WIth the umversus populus which creates the Ruler and remains his Superaor (pp. J 6-28) , be tn"ats the leges ab unll'erso populo scrrptae as bemg pacta betwee-n the People and the Ruler (pp. 8-16) , and he mterprets the People Itself as a SOCIetas, and the Ruler as its praeposltus or InstItor (supra, n. 69) See_also his Commentartoll, foho 41 verso. 108. It IS true that the- Ruler IS often descnbed as Relpubllcae pars, and the prinCIple that the whole IS greater than the part IS often applied m favour of the~overeigntyofthe People (e g. in Salamomus, pp 40-1, and m Manana, I, c. 9). But as the' SubJect' of the rights of the Ruler thIs' part' leaves the Whole, and is made to form an antitheSIS to a separately and independently existing personalIty of the People, of whKh It IS depIcted as bemg the servant, admmlstrator, mandatory or agent, cf supra n 104 and n 107 All the Monarchomach! accordmgly InsISt that the People I~ prIOr Rege in tIme [as well as In Importance), and that it only proceeds to erect a ruler, by Its own free choice, often t has already constItuted i!self. cf.'Buchanan, pp. 16ff ,p 69, the Vmd. c. Tyr, quo II, p. 148 (Rex per populum, propter populum, non sme poPulo)j Rossaeus, c. 1. 1-3, Boucher, 1, cc IOsqq, Danaeu~, I, C. 4, pp. 36-44, Hoenomus, lX, 5 (populus enzm et przor et pottor est MonorchIS, qUlppe quos rectores et curatores Rlpublicae IS creat et consl1.tult). AlthuslUs is partIcularly emphatIc In explaimng that the People (whIch is tempore prIOr, and whIch, as the constItuent organ, contmues to be prIor et superIor to the- organs whIch It constItutrs) first of all a<;sonates itself to form a 'body'. and then-but only then-appomts minrstT! et reetores to aVOid the difficulties of getting all its members to meet together. Tbt-se 'Ininisters and
Gierke here refl'fS to vol. m of hIS Gerwssenschaftsreeht, p. 24 n. 52.
Th
persona CiVltatls rn Salamonrus
It rs really the same as the People
Th Ruler corifronts the Respublica or Populus as somethrng external to rt
Notes to 14
257
governors', it is true, UnJVeTSum populum repraesentant, tjusque personam gerunt In iis quae Reipublacae nomane facllmt; but they remain famult et mutlstri of the assoc18.ted multitude', and their right of acbon IS derivative (c. 18, S-IS, 2&-31, 92-ltJ6; c. 19, 2-3; c. 38, 121-2). Even so, however, and even while he thus separates People and ruler as two parts, he also describes the co~tituent People at the same bme (c. 18, (8) by the style of ipsa RespublJca [as if it were the Whole] 109. In the-Vznd c. Tyr. the contrast is parUcularly marked between Populus and Rex as two separate persons', who first contractJointly with God, and then form a second contract WIth one another, on whIch It follows (I) that the king on hiS Side has a right to take measures ofcorrection agaInst the People, in vIrtue of the contract made WIth God, inasmuch as he pledges himself for [the good behaVIOur of] the People by entering (jointly WIth it] into that contract (qu. II, pp. 84sqq.), and (2) that he also acquires rIghts as agaInst the People, In vutue of the contractus mutuo obllgatoNus which he has made With It, if It becomes seda/lOsus by breach of such contract (qu. Ill, pp 260sqq.). A sllmlar vIew appears III Boucher, I, cc. I8sqq Danaew also, In dealmg With the relatIOn of the Ruler to the People, applIes the idea of contract stnctly [to both parties]. cf. I, c. 4, pp. 41 (where he speaks of a voluntary 'pact', the VIOlatIOn of which cxtlllgUlllhes rights on both sides), 43, 1II, c 6, pp. 214sqq (so long as the fundamentallaws are observed by the Ruler, the People on It~ Side cannot touch the constitutIOn or, more particularly, the royal rIght M succeSSIOn, masmuch as wntractus popult cum Pnnclpe et f!JUS famIlia ab lnltlO qmdem futt voluntatzs, postea autem factus est necessltatlS, It IS only In t~e eventlOf the Ruler breakmg the pact that the People aho becomes free, or can proceed to the depOSitIOn of the Ruler and hIS family and an altt>ratlOn of the conslitUtlOn) Sllmlar views are to be found in [Beza'sJ De Jure mag quo 5 and 6 (where the Idea of mutua obllgatlO appears throughout); Hotoman, Jf'raneogaUla, cc 13 and 25, Quaest. IUUSt. quo 1; tSalamomus, I, p. 11, Ro~saeus, I, C I, 4, c. 2, 6 (obltgatlO reelpToea) and II (resistance and depOSltlon are only pOSSible eXJusta causa). Manana, I, CC. 6 and 8, Hoenomlli, II, 41 (pactIO rezpubllcae) and IX, 44-54. In the same way AlthuslUs, while he applies the <..ategory of mandatum, IS not prevented thereby from treatIng the wmmlSSlO Tegm SlVe uRlVersabJ'lmperil to the supreme magl~trate a~ a contractu', made by reciprocal oaths and entailIng reupro<..al oblIgatIOns (cc. 19- n n e~p c 19, 6-7 and 29sqq.), which confers on the Ruler [as well as 011 the People] a nght that IS only forfeIted by defimte breach ufcontract (c 38). He ascnbes to the governmg authontlt>s full admln/stratzo and repTaejp~:.at', 'Jf the State-authonty, WIthin the lImits of the const1tut~n (<.. 18, 26sqq.), though he holds, It IS true, that If they overstep their 'laws and limIts' they cease to be mInisters of God and the umversal assOCIatIOn', and are only prlVati... qulbus obedlentza zn lUIS qUlbus suae potestatIS Ilmltes excedunt non debetur' (IbId. 41-6 and 1O'j). He treats the contract of government a~ :l naturally Imposed element in the constitutIon of a Statt> (c 1, 32--9, c. 18, 2o-4), and he seeks to prOVl" Its presence In all forms of State (c. 39), but In dealing WIth democracy he substitutes [for the ordmary <..Gntract of ruler and ruled] a contract between the commumty of the people, which directly exercIses the rights of majesty Itst!lf, lliId the bearers of authonty who represent' it successively from time to tune (c. 39, S7-9). See the author's work on Althusius, pp. 144-9
BTSD
The tlreory qf contract mvolves a dualISm qf People and Ruler
Gierke's Notes
ApJ1r.oxima-
tions'to
Rousseau (
Idea ofth. State Itself as the true Soverngn
'Real
majesty'
ascTlbed to
the Respublica or Populus
110. Some degree of approximation [to Rousseau's theory] is to be found in Buchanan (pp. 16sqq., 48sqq., 78sqq.), who is reproached even by Rossaeus (I, c. I, 4) with contempt of the right of the Ruler; and still more in Milton, who goes to the length of allowmg the depositIon cf: the kmg by the People, in virtue of the rIght ofself-determinatlon offree-bom men, even If there be no other occasion than the wish for a change of the constitutIon (The ,Tenure, pp. 14sqq.). But there was no thinker before Rousseau who defirutely and m prmClple demed that thrre was any conn-actual relation between the sovereIgn People and the Ruler, see the author's work on AlthuslUs, pp gl sqq. [Locke's theory already makes the relatlOn between them not a relatlOn of Contract, but one of Trust. see below, n. 68 to 16.] Ill. See Regner SlXtinus, I, c. I, no 23; PaurmelSter, I, c 3, no. 10, c 18, nos 6-10, c. 23, no. 13, Kirchner, II, I, Boxhorn, I, c 4, 1-27, Alstedius, pp. 14 and 6gsqq.; Arumaeus, IV, no 2, Otto, II, no. 14, I7-19; Brautlacht, III, c. 2, 5-9; Bortlus, De natura JUT rna) c. 1, z, c 2, 16, c. 5, g, c. 6, 1-2; Resold, De maJ. s. 1, C I, Tulden, 1, cc I 1-12; Werdenhagen, Ill, c. 2, 7-9, LIebenthal, VII, 3-13 j Frantzken, De pot prine 19-22 and 92-101; Carpzov, Comm. In leg. reg. c. I, s 14, c. 13, S I; Limnaeus, Juspubl I, c. 10, no. 14, Capltul. p. 532, nos. 48-79, Bercknngrr, 1, c. 4, 10 see also the author's Genossenschaftsrecht, IV, pp 2I6sqq. [not here translated] and hiS work on Althusius, pp. 165sqq., nn I24-g 112 We may trace such a feehng m Borbus (c 5, Sg), where he desCrIbes the tota Respubllca et secundano ordmes et status RAgTll as the subJectum absolutum MaJestatIS, and the Kmg, m so far as regImen translatum est, as the subJectum l,mdatum. It may also be seen m Besold l De nUl]. L. I, C. I, 4). nunquam censendum est tatam et UTlllieTsam Rempubllcam Iler Prznclpem repraesentarl; caput est, non totum corpus; et quomodo In corpore humano etJam allarum par/lum funet/ones sunt, Ita et adhuc CorpoTZS pubhcI et populi allqua est Maystas. (Brrcknnger says the same, almost word for word, I, c 4, 10.) Compare also the attempt made by Fichlau (m Conrmg, Opera, Ill, pp 976sqq ) tomterprettheao<-trme of Althuslus as If majesty were ascnbed by hun to the body of the whole asSOCIatiOn only ratIOne fundamentl et radlcallter [I.e 111 theOly, and not m practice]. 113. In PaurmelSter, for example, we often find the summa potestas, which in the passages quoted above m n. I I I he a!>Signs to the Respubllca or Imperium, also ascribed to the populus or uTltversuspopulus (1, c 17, nos Isqq., c. 19, nos. 6sqq., II, C. I, no. 1 J). Kirchner (II, J) vmdlcates 'real majesty' for the societas populi coallta; Boxhoro (I, c 5) attnbutes the majesty of the Respubhca also to the populus, Alstedlus (p 18) asCrIbes ~o"erelgnty to the populus or subdltl unlVersl; and Bortius, wlnle he gt>n.erdlly vmdicates it for the RespubllCa, gIVes It equally in cc 2,6 and 7 to the populus. Besold and Tulden also identify the RespubllCa, as the' Subject' of' real majesty', With the commUnIty of the people, mdeed, they even IdentIfy the Respubllca With omnes S1ngull, when they are distInguishmg it [as the possessor of 'real majesty'] from the democratIc authonty possessmg 'personal majesty' (n. 43 supra). Limnaeus,loc Cit, expressly descnhes the RespubllCo, which contmues to remain in possession of 'real majesty' after the creation of a 'personal majesty', as being the UTIIVersltasor uTltversuspopuJus (see supra, n.69). Werdenhagen (I, c. 6) and Berckringer (I, c. 4, 6-IO) descn1;le the 'Subject' of 'real maJesty', whIch they sometunes call by the name of RespubllCa and sometImes by that of Populus, as collectIVum (supra, n. 67).
.Notes to 14
259
114. Thus the &spublua or Populus, as the Subject' of real majesty, is Tk generally held to possess (1) the right of originally appointing the Ruler, partitulaT which cOIlles into force again in the event of the extinction or forfeiture of nghts the powers of the authorised Ruler; (2) the nght offixmg and maintaining Involved the conditions of the contract between ruler and ruled; and (3) the right of In real consenting to constitutional changes and ahenations of territory. It 15 also, majesD> as a rule, held to possess (4) the right of resistance to, and deposition of, a Ruler who hls broken the contract, and (5), 10 addition, all other rights which are reselved by special prOVISIon when personal majesty' IS vested in the Ruler. See particularly Bortlus, on the du.tmction between Jura regni andjura regza (c I, 2), on the vanousJura regm which ad Iftsam Rernpubluam, or adpopulum, spectant (c. 2) "and on the several jura regia Slve regalIa in detail (c. 3). See also Paunnelbter, I, cc. 19,21,22,23 and 30; Besold, De maJ. s I, c. I, 5-8, c. 6, 2, S 3, cc. 2 and 7, Tulden, I, c. II, Arumaeus, loco CIt.; Limnaeus, loco Cit; Bercknnger, I, c 4, 8 115. Cf. Besold, De maJ. S I, C I, 7, where a dlstmction IS drawn State between the' patnmony of the Kmg' and the' dem('sne of the Kmgdom'. property as regards the latter, nuda propTletas est penes UnIVersltatem populi sIVe Rem- belongs to publzcam, usufruetus autem penes Regem, and therefore there can be no ahenatlOn the owner WIthout the consent of the People See also Bercknnger, I, c. 4, 8: the o/real ownersrup of the dememe, as the dos Regm, IS ve~ted m the unrversus populus, majesty but the usufruct belongs to the Imperans Cf also BortIUs, I, c 2, 16. 116 ThiS IS partJculafly emphaSised With regard to changes m funda- The owner mental law, or m the tern tory of the State (Besold, s. I, C. I, 5 and 7. o/real Tulden, I, c I I , Bortius~ c. 2, l'Ij.-2 I) , and m regard to the chOice of a new majesty as ruler (BortlUs, c 2, 3-I3) and the depOSItion of a tyranmcal ruler. For controlling the nght of depOSItIon of the tyranmcal ruler, see Boxhom, II, C. 4, 45sqq. the owner and Dzsquzs. polzt c 3, HIlhger m Arumaeus, II, no 13, c g, }<'rantzken, ibId. 0/ personal IV, no 42, g2-IOI, Brautlacht, !plt. VIII, c. 5, Llffinaeus, loco CIt., Berck- majesty ringer, I, (" 5; and Borhus, C. 7, who argues that contraTlatur maJestatl, SI PTlnceps w pernuzem et rUlnam Relpubluae abutltur potestate; contra quod remedium est ut reszstat populus et, Sl opus, deponat eundem; for ~mce the Prwceps eo ardine, VI et Jure admzssus est, ut salutem Rezp. procuraret, dzssolvltur oblzgatlo ... et hoc solo casu populus potlOr. The same general thcory [which is apphed to the fyranmcal ruler) IS also applied by BortlUs to th~ case ofa breach of pacta expressa 117. The fIght ofthe Ruler to publl< power and pubhc property was often Personal conceived as a dzngliches Recht" Cf. R. '-!xtmus, I, C. I, no. 38 (quasi propTla); maJesD> as PaurmelSter, I, c. 18, nos. 6-10 (domlmum verum et plenum In all rights of a propnetary government belongs to the People, t ... t t' .,~ domlmum utile, the uszifructus and right the otherJura realla Innonftnata belong to the Ruler); Limnaeus.loc. cit. (usufructus). According to Berckringer (I, c 4, 6-7) the People abandons the 'exercise' of majesty pTlVatlVe, but retams the 'substance' cumulatIVe, whether we regard it as retammg that substance ratione jurIS et proprzetatlS, or whether we apply the analogy of a case of 'letting' or locatiO (there can be no question of 'sellmg' or vendltlo)t. In 8, however, Bercknnger slffiply says that the
.. I e. not as a nght aflSlng from the obhgauon to him of others, but as a propnetary ngh\ belongmg to hIm per se, and therefore pnor to obligation. t I.e. the peopfe as a whole retams the substance of majesty either m the Simple sense of bemg owner, or In the sort of sense m which a person lettmg Wlt property still retaIns a 'substance' though he has let out the control.
Gierke's Notes
two 'majesties' are related to one another as dormnium is to usuJruttus. Otto ( 18-19) regards the Ruler as only administrator. 118. On the vaneties in the treatment of majestas personalIS see the author's work on AlthusIUs, pp. 168-71. 119. The statement of Berckringer (I, c. 4, 7) is obscure. He makes the people, by creating a 'personal majesty', cease to be a persona attu, but cont1Olfe to remain a persona potentUl, tmmo attu, sed possibill. It is equally difficult to detect any clear meaning 10 20, where he deducesef'rom the 'real majesty' of the Respubllta tontrahms the conclUSIOn that the People, after erectIng a Ruler, has st1l1 no Superior reall~, though it has one personall~. 120. See the writer's work on Althusius, p. 171. 121. This is the conception which Grotius applIes 10 deal10g with the acquisItion of political authonty by the voluntary or enforced subjectIon of a people (I, c. 3, 8- I 3; n, c. 5, 31 ; 1lI, c. 8) ; WIth the alIenatIOn ofpohtical authorIty, or some particular pohtlcal nght of government or property, whether by the Ruler or the People, or by both together (u, c 6, S3-14, III, c. 20, 5) ; with the loss of polItIcal authority (u, c. 9) ; with the nght of resistance to that authonty (u, c 4); and WIth the oblIgatIOn of the People In VIrtue of contracts concluded by the Ruler (n, c. 14; III, c. 20, 6) Cf. supra, notes 54, 66-7, 70, 89-90 , 97. 122. Cf. I, c. 3, 8-g: It 15 a ffilStaken tht:'ory that suprema potestas always belongs to the People; for the people can alienate or forft'It Its ongInal sovereIgnty Just as much as an IndIVIdual can aUt-nate or forfeit hIS lIberty. There is also error In the theory of those qUi mutuam quandam sUb)ectlOnem s,b, fiTlltunt, ut populus umversus regl recte Imperalttl parere liebeat, rex autem male Imperans populo subJulatur. See also 11, c 4, 1-7, c 5, 3 I , Ill, C 8. 123. II, c 9, 8: the people is the 5aml' whether It IS ruled rfgID vel pluTlum vel multltudlnlS Imperw, nor does It change Its Identity If, having been before smJuos, it afterwards becomes subject ptenzsstmo Jure Nam tmperlum quod In rege est ut In capI~, In populo manet ut m toto, tU)US pars est caput, atque adea rege, s! elettus est, aut regIS famtlla exttncta,)us Imperandt ad populum redit. Consequently, non desmlt debere peculllam populus, rege stbt ImpOStto, quam Itiler debebat, est emm Idem populus, et dommium retznet eorum quae popullfuerant, tmmo et Imperium m se retlnet, quamquamJam non exercendum a corpore sed a caJnte For the same reason' he who has receIVed supreme power ovel a people preViously free' must hold the same poSItIOn m rmternationalJ conferencl's as that held before by the people itself StC, VlCiSSlm, qUt regtS fuerat locus eum populus llber zmpleblt cr. also 11, c. 6, 16. contracts made WIth a free people are always pacta realla ... qUia subJectum est res permaneTlS.. tmmo ettQmsl status Clvttalls 111 regnum muletur, manebltfoedus, qUia manet Idem corpus /!oSI mutato captte, et ut supra dz,x,mus Impertum quod per regem exercetur non desl1Ilt esse Imperium populi. 124. He always speaks only of 'people' and 'king', and, ~omewhat astoDlShmgly, he never finds room for any techmcal employment of the expressIOns sub)ettum commune et proprlum. The manner in whIch Grotius sets on out' SIde the opposite Vtews of ArIStotle'" ill peculiar (11, c. 9, 8). Like other 'artifiCial thmgs', he argues, the ... GIerke here refers to vol. lU of his GeIWssenschajtsrecht, p. 21. For ArIstotle's own Views on the question, 'When is a ~tate the same', see Poh~s, 111, G. 3 (1276a 81276b IS). Actually the mterpretatIon of these views by GrotIu seelDll to be more accurate tlJrn GIerke's IIlterpretanon. ArIStotle, as W. L. Newman says (vol. m of lus edttlon, p 149).' decides that after any change of COIlJlutuUon the State IS not
The People to ero/ius merery an

aggrega~
'erotlus
lz",its popular sovere!gnty

Grotius on the tontlnulty of the Sta~
Grotlus on Anstolle's lJl8W of tIM contznUlty if JheSttJJe
Notes to 14
26z
State may be considered from different points of view: civitatis species una est consoclauo Juris et lmpem, altera relatlo partlum inter se earum quae regunt et quae reguntur; hpc spectat Polltleus, lilam Junsconsuitus. ArIstotle only spoke as a student of pohtics, and he therefore did not attempt to solve the question of the contInuance of a public liability, because it belonged to ars altera. Grotius' ffilStaken conception of the argument of Aristotle (who clearly denies the existence of a public liabIlity himself, and only leaves as an open ~uestion the appeal to'egal opinion) is obvious. It is interestmg, however, to notice that Grotius vmdicates the' SOCial' [or partnership] conception of the State for jUrIsprudence, and the' governmental' for political science, and that he places himself among the JUrIsts. 125 Even in dealing with the question whether acts of the Ruler are bmdmg on hIs successors, GrotIus, although he speaks (cf n. 8g supra) of an mtervemng obligation of the CIVitas, makes no use of his conception of the subJectum commune; he apphes mstead the different idea of the Ruler's having a collectIve authonty [because he represents the collective people] which has the effect of obhgmg the community at large cf. also n. go supra. 1 \o!6. In wars, agreements and treaties of peace It IS not States as such wmch are mvolved, but their soverelgns-' those who have supreme power in the State' (1, c. 3, 4; n, c. 15, 3, lll, c 30, 2). Accordingly we often find Rex and Populus lzber mentIOned as alternatIves (e.g n, c 6, 7, c. 9, 8-g, c 6, 16 and 31 ,.IlI, C 30, 3-4), but we also find Rex vel Cmtas mentioned as alternatives WIth the same meanmg (e.g II, CIS, 916) 127. See supra, n. 66 GrotIus ascnbes dominium emlnens to the CIVlttl.> , cf. I, c. 3, 6-dommzum erHmens, qu8d CIVitas habet m cwes et res ClVlum ad usum publicum cf also n, c 14-, 7 and lll, c 20, 7---res subdltorum sub emlnentl domlnJo esse CIVitatIS, Ita ut CIVItas, vel qUI CIVitatIS vlcejungltur, ItS rebus Uti easque etlam perdere et alienaTe POSSlt. But, ~ere agam, what he understands by CIVitas is the commumty of the people; and he therefore holds that whIle the question of compensatIOn concerns the relation of CWltas et nngull, the question of confiscation ex }usta causa concerns only the relation of Rex et subdlll (m, c. 20, 10). Cf also II, c. 3, 19, on the pOSSIble reversIOn ofland WIthout an owner ad UniverJltatem aut ad domlnum superlOrpm. 128 Cf I, c 3, 8 and 11, c 4, 8, Il, c. 9, B, There may even be reges sub populo, but they are not true kings. 129. Cf.I,C 3,IJ-I5,Il,C.6,~'3,III,C 8,I,C 20,5. 130. m, c. 8, I A conqueror may also mstitute at WIll mtermedlate stages between the two extremes of sub)ectlO mere cWlltS and subJettlQ mere hmlls. He can also abolIsh the conOll. . State entirely, and tum It either mto a province or a ma/najamllta (~2) Along WIth hIS nght over the univerSitas, he also acqUIres the res UnlVelsltatzs and its mcorporalla)ura, inasmuch as qUI dominUS est personarum, Idem et rerum est et )UTlS omms quod personzs competit. It follows that, even when he leaves a conquered people in possession of the) us CIVitatiS, he can take away from the ClVltas, or leave to It, as much of its property and its nghts as he hkes (4). On the applicatlOn of the JUS postlimini! to a people, see Ill, c. g, g, and on the moral lrmlts to the nght of conquest, see m, c. 15.
The
commune subjectum never active
Externally
Or Internally
Grotius on Tights of conquest
the same, but tha. the question as 1<' the fulfilment of contracts IS a separate one'. In other words, Anstotle (Just as GrotlUs says) only makes a pronouncement on the pohtIcal questIOn, and leaves the JundIcal question alone, as MyOS m,-os .. The right of returmng to a former status and resuming former pnvileges.
Gierke's Notes
181. x, c. 3, 13: at in regnis (jU06 populi voluntate delala surd, coneedo non esse prae.rumeruium earn fuisse populi lIOluntatern, ut alimatio impIrii SUI regl permltteretur. 182. x, c. 3, I I ; II, C. 6, 3; tn, c 20, 5. In such a case, therefore, [i.e. where the King is king by contract,] it is the people only, and not the king, who can alienate right over the State or any part thereof. At the same time, the peoflle can only do so accedente eonsensu regu, quia is quoque jus atlquod habet, quale usrifructuaTlus, quod inmto aufem non debet (II, c. 6, g); all.d further the consent of the part of the people concerned is also necessary when it is a question of alienating a part of a State (ibid. 4). Even ahenations which are necessary and advantageous do not form an exception [to the rule that popular consent is required); but here we may take the mere fact of silence as consent (8). The same is also true of the granting of enfeoffments and mortgages (9). The Ruler cannot even alienate any of the lesser rIghts of government (minores funetiones omles), so that thl'Y become the inhentable rights of the recipient, unless the people expressly concurs, or tacitly gives authority by developing a customary rule to that e{fl'ct ( 10). The cooperation of the people IS also necessary for regulatIOns about a regency or the successIOn to the throne (I, c 3, 15). If the Ruler seeks to carry Into effect alienations which are invalid, the people has a nght of reSIstance (1, c. 4, 10); and It also possesses thIS right In other cases In the last resort (ibid II) 133. II, c 6, 7. temtorlUm et tatum et eJUS pa~tes sunt eommunia populi pro indIVISO: a lther populus, or Rex mtereedente popuh eonsmru, can alienate without questIon uninhabltl"d parts of the terntor1. " 184 II, c 6, I 1-13; III, c. 20, 5 The principle [of the people's ownership of Statl"-property) carries the consl"quence that patTlmomum POPUli, eUJus fructus destl1latt sunt ad sustentanda relpublleOf! aut regtae dlgmtatu onera, a reglbus allenan nee In tatum nee tn partern potest Res modIcae constitute no exceptIOn, except that here it IS easier to argue from the people's knowledge and SIlence to its consl"nt. On the other hand, the kmg may, as fructuoTlus, dlsposl' of the income; and he may also mortgage effectively wh("re, and In so far as, he has a nght of ImpOSing taxes by hIS own actIOn [I.e. If the kmg can tax any property by hIS own action to get resources, he may also mortgage that property by his own action for thl" same purpose). 135. x,c.g,8, I1,I6,18,c.4,12,I4,II,C.I4,2. GrotiUsdlstmguishes two sorts of limItation [on the Ruler), accordmg as it affects (x) only the exerCltlUm, or (2) tpsafacultas, and according, therefore, as actIon contrary to the limitation (I) is SImply illegal or (2) IS null and void Even limItations of the latter sort [I.e. lImitations on zpsa facultas: which make any action exceeding the limits null and VOId) do not involve any dirrunution of the Ruler's sovereIgnty, because the annihIlatIOn of his 'faculty' proceeds non ex vi superroru, sed tPSO Jure. Nor is any diVISIon of sovereignty produced by a stipulation In favour ofpopular consent to laws, taxes, etc. Even the addition of a lex eommlSs07la, by which the sovereIgnty devolved on the Ruler must in certain cases be counted as forfeit, and must therefore gIVe way to the original sovereignty of the People, does not eltminate the exclusive sovereignty of the Ruler during hIS tenure. 186. The case is dIfferent, according to x, c. 3, JJ, \'\IiJere'rule is only vested in ~e Ruler as a preeQrlum [I.e. as a thing of which the use only is granted, for a period determined by the will of the grantor].
Crohus on the People as owner of polltu;al autlumfy
Grotius on the People as oumer of Stote property
Grotius on tlu paSSI bie llrmJatwns of the Ruler
Notes to 14
187. I, c. 3, 17-20. Summum tmpmum, although it is unum IJC per se indwuum, is none the less divisible into potentiales and subJectlvae partes; and there is an ,etual dwisio summitatis between king and people if the people, in the fundamental contract, has reserved some of the rights of government, or has reserved a power of enforcement of the conditions, or some of the conditions, of the contract). cr. I, c. 4, 13; there is aJus renstendt if the king, in a case ofdivided impmum, encroaches on 'the part belonging to tht"people or senate'. 188. Cf. vol. IV [of the Genossenschaftsrecht, not here translated], p. 217 n. 44, on LampadlUs and Scharschmidt cf also the author's work on Althusius, p 175 n. 157. 189. Cf. ibid. pp. 175-6. 140. F Victoria (III, no. 7) ascribes origmal sovereignty to the &spublua. Caus! vero materwllS, tn qua hUJusmodl potestas resldet,Jure naturalt et dWlno est Ipsa &spubhca, cut de se compettt gubernare selpsam et admlnlStrare et omnes potestates suas In commune bonum dmgere He argue~ that, even after the transference of thiS sovereignty, the Ruler IS still bound by hIS own laws, because he is hImself pars Relpubllcae, and hIS laws are to be regarded' as if they had been passed by the whole Respubltca' (no 23). But he expressly Identifies thiS Respublua With the muItitudt-, which IS mCdpable of exercblIlg polItical authontYltseIf (no 8), he places the kmg supeT totam Rempubllcam, and thereby also super omnes Slmul (no. IS); and he thus makes the active 'person' of the State always resident m t~e Rull"r (cf also no. I i). Vasquez ascnbes to the populus both ongmal SOVerl"Ignty, and, m cases of doubt, a right of co-op'hatIOn 1t1 legislatIOn and alIenations of terntory, which arises from a re.ervatIOn to be supposed m the act of transfernng ongmal ;overelgnty (cco 42-3 and 47); but he deSLnbes Ipsa Respubllca as the SubJect' ofa nght of resistance to.a monarch who breaks his contract (co .8). Accordmg to Soto, the Respubhca ha~ the JUS selpsam regendl, but by divme instruction' It transfers that right-rl"tammg however (along With other nghts) the nght of deposmg a monarch who has become tvranmcal ['m exercu.e 'J. The Respubhca, which I; really nothmg more nor less than the sum of omnes, IS mcapable by itself of exernS 1 t1g Its sovereignty; and only by transferrmg sovereignty does It become a body whIch has also a hea~ and IS therefore capable of actIOn. The re~uL " that the Ruler non solum smgullS Telpubllcae rnembTlS supenoT est, verum et fnf,us col/ectlm COTpons caput, totlque adeo supeTemmens, ut totam etzam slmul punlTe flu,slt (I, qu I, a 3, qu 7, a 2, IV, quo 4, a. 1-2). Cf CovarruVlas, I, c. I, and Bellarmme, De lalclS, c. 6 (RespublIca non potest peT semetlpsam exerr p lt :c potestatem). Molina defimtely sup~ses two' persons' m the Slate-the People and the Ruler. He reserves the name of Rcspublzca for the commumty of the People, although he admits that the Ruler possesses sovereIgnty The &spubltca, he argu("S, ongmally has aU authonty (n, d. 22, g). It transfers It secundum QTbltTlum and on such conditIOn. as)1 thmks fit (n, d. 23, Isqq.); and It recovers It, by right of reverSIOn, If the Rulership be vacated or forfeit (v, d. 3). It preserves, m cases of doubt, the nght of approvmg laws (n, d. 23, 6-7): it also preserves the right of property in the bona Regm, so that the Ruler cannot alIenate any of them, Just as he cannot dIvide the kmgdom or surrender ifto fi8reigners non consentlente RepublIca tpsa, or, again, alter the constitutIOn or the succession to th~ throne (n, d. 25). The Resp,ubllca has a right of resistance to tyrants; it can, quoad capita, convemTe, an~ depose or
GrotJus on dwuw'; of Impenum.
Th8 VIeWS of Catholu wrtiers on the natural nghts of th8 People agaInst the Ruler
Gz'erke's Notes
punish the tyrant 'by the express will of Its whole body' (III, d. 6; v, d. 3, 2). None the less, Rex est SUPerior tota Republtea [withm the terms of the authonty granted to him]; and he is subject to no real jus t/eponendi, smce (I) the Respubllca can only proceed agamst him when he 'asswrtes a power not granted to hlID', and (2) when he does so, and thus acts outside the terms of the 'grant', neither he nor the people is Superior (II, d. 23, 8-JO). Suartz regularly descnbes the commumtas, populus, totum corpus, or hommum COl/ectlO, as the' SubJect' of original sovereignty, and also of the rIghts of transferring and recovering that sovereIgnty (m, cc. 2-4) and of the reserved rights of the people whIch are never transferred at all (m, c. 9, no. 4; IV, c. 19; v, c. 17), and he opposes thIs Group-person, as the Regnum or RespublICa, to the Ruler. Accordmgly he terms the contract of subjection a pactum inter Regnum et Regem (m, c. 4, no. 5), he speaks of a consensus Regni to laws (IV, c. Ig, no. 6); and he vmdlcates for the Regnum or tota Respul:u:a a nght of insurrection agamst a kmg who has become a tyrant' m exerCise', arguing that, though the people has transft'rred to him a real ownershIp of political authority, It has added the conditIOn ut poll/tee non ryranmce regnet10 that. while in hIS essence Rex superior est Regno, a contmgency may arlSl~ in which tota RespubllCa superior est Rege (m, c. 4, no. 6, c. 10, nos. 7-10; Opus de tnplll:'1 Virtute, pp I055~). See, III addition, nn 62 and 67 supra, on the' collective' conception of the personahty of the people m the wnters mentioned. The Ruler 141 Cf Waremund de Erenbergk, De reg'" subsldlls, c. I I, p. IS0, 1ll1nted by the BomitlUs, De mal. C. g (legesfimdamentaltr et pacta cum populo), c 13 (where contractual It is argued that the admlmstratlOn of paris of maJ~,ty may be devolved, so that an imperium moderatum takes the place of summum Imperium absolutum), and nghtr of the People Part. pp. 42-3 and 102sqq , FridenreIch, cc. 18 and 2g (on the pOSSIble limitation and restrictIon of the exerCIse of the 5upreme power by certam pacttones); Keckermann, I, c 33, pp 531-'-2 (on speCIal pacts with subjects, which restnct but do not abohsh monarchy), BUSIUS, 11, C 7 See also Molina, II, d. 23, and Suarez, III, c 4, no. 5, c g, no 4, IV, C. 17 (the Ruler may be llIDIted m the exercise of supreme power, m legtslation, in taxation, etc, by a translatlO sub condItione. for such a conditional transference IS a convm'tw znter communztatem et pmu:lpem, et IdeO potestas recepta non excedlt modum donatzonzs vel conventzonzs). Dluisum of 142. We fmd this duahsm in Amisaeus (Polzt. C. B, 3Bsqq.; De rep. powers and II, c. 6, S I; De jure mal II, c. I, Ill): 'maJesty' is unum Indwlduum, non tnthe mr.xed dllltnbtle .. unum potenttale, non essenttale. It contains 'parts', VIZ. the 'n~hts ConstitutIOn of majesty', and though It cannot, szmul sumta cum ommbu.\ SUIS partrbus, beas affecting long to a number of persons, nzhll tamen prohzbet qrt.n partes tn hoc toto umtat soverezgntl' secerm, et dwtStm mter plures dzstnbUl, POSSInt The mixed constItutIon 18 interpreted by most of Its adherents m the same sense of a real [and not merely conceptual] dIvision of powers: cf for example, Grotlus in n. 137 supra; Helder, pp. g82sqq.; Werdenhagen, II, c. 25; LlffiDaeus, Jus publIcum, I, C. 10, Schonborner, I, c. 16, Keckermann, II, ce. 4~; Liebenthal, V11I, quo I; Bercknnger, I, C. 5, 7 and c. 12, 15-21; Fel'hmger, DlSs. pp. 4I7sqq. But the 'person' of the Ruler stIll remains a diVided 'penon' when the essence of the mIXed constitution is held to consist merely in a diVision of majesty into tdeal [or conclf>tu:lt] parts; cr. Paurmeister, II, c. I (cf. vol IV ofthe Genossenschaftsrecht [not here translated], p. 218); ~old, De statu rezp. mlXtae, c. I; Tulden, II, cc. 16-17, Carpzov,
Notes to 14
COmrtl81lt. in leg. reg. c. 13, s. 9, nos. 28-31. We find, however, In Besold, op. eit., and still more decidedly in Frantzken, De statu reip. mIXto, an approximation to the ....i ew that the partners who share supreme power only constitute the person of the Ruler when they are taken con)unctlm. at'll) Suarez, ro, c. 4, no. 5, IV, c. 17, no 4 and c. 19, no. 6. where the king needs the consensus Regnl In publiCls com~tlls for his laws, the' supreme leglSlator' is not the kmg by himself, but Rex cum Regno. Other thmkers only speak vaguely of a c~on capacity for thl! nghts of majesty: cf. Busius, n, c. 6, and also L de Hartog, A Dutch Writer on the State at the Begmnzng of the Se/lenteenth Century (in an offprint from Nleuwe bljdragen /loor rechts-geleerdheld en wetgevlng, 1882), pp. 24sqq. and 33 148 Bodm, I, c 8 and Il, C. I, and especially the argument (In nos. 85-99) that any constitutIOnal limitatIOn of the true Ruler by the nghts of the Un!versitas"popull is unth1Okable, because It at once makes the unIVerSitas populz Itself the Ruler 144. Bodin, VII, c. 2, nos. 640-1 (where there IS a comparison of the Respubl~ca to a minor). Cf. also vol. IV of the Genossenschaftsrecht [not here translated), p 249 n 156. 145. GregorIus, although he has a doctrine of the Sovereignty of the Ruler Even the which makes It s1Ogle, tlhmltable, mdlvlslble, and Irresponsible (I, c I, 9, absolutzsts v, c. I, 3. VI, cc. 1-3; XXIV, c. 7; XXVI, c. 5, 24-5 and c. 7), none the less suppose a makes a sharp diVision between bona Relpubhcae and bona patTlmomalia Przn- personality CIPIS; and he Will only desc~be the former as be1Og, at the very most, quas~ of the People proprza Prznczpzs (III, cc 2-3 and Syntagma, Ill, C 2, 8-1O) He also allows the pos~lblhty of a hmltatfon of sutJreme power per legem electlOnlr (Ill, c. 7). BormllUs, aga1O, Wllllt' he a5;lgllS the' pt'rson of tht' State' deCisively to the Ruler-by whom aloD(' Respubltca statum adlplSCltur et construat (Part. p. 45, De rna) C 5), and who stand~ above the Pf'opk, even when thev are regarded as a community, III VIrtue of be10g the 'SubJt'ct' of a s10gle and mdlvlsIble majesty (Part. pp. 47sqq., De rna) cc. 3 and I I)-at the same time refuses, lIke GregorIus, to recogmse the Ruler's rIght of property in bona Relpublzcae (Part pp. 70sqq ), and regards lImitatIOns of absolute power as pOSSIble (supra, n 141). Keckermann goes to the length of allOWIng- lhe POSSlblhty of reslSt:!nce and dt'poSItIon even agaInst the absolute Imp"flns, though he makes the exerCise of these rIghts more chfficult In that ~.tse than it IS agamst the Monarcha eertls pactlS et cond~tlOnlbus assumptus (I, c. 2r, P 431) Accord1Og to Claudlm de Carnm, Regia pofR<IU and Relpubllcae potestas are identical (J, c JO), 10asmuch as by na..... ai .;).w the RespublIctl necessanly transfers, Without any rdhvatIon, the whole of the power which rested originally m Itself (I, c. 9), but the acceptatlo populz contInues to be necessary for legislation (I, c. 3). Barclay [unlIke these thinkers] r{'Cogmses no nghts of any deSCrIption as belonging to the People. Accordmg to 1.IS argument every true monarchy is absolute; and Its existence is incompatIble with any lImItatIOns, or any dtvISion of power, imposed by fundamental law (II, IV, V, C. 12). All the rights of the People are transferred, and thereby cease to belong to the People (IV, c. 10; VI): unwersa negotr.a l1npubllcrre demandantur Regl (IV, c. 25), there is never any rig?!.t ofaresistance or deposition (m, cc. 4-16; v, ce. 7-8). In Barclay, however, there IS no question of any theoretical construitIon of a State-personality [I.e. he does not get beyond the conceptIOn of the personal
cr.
266
Aplisaeus on
the Ruler and the societas if the ruled
Gierke's Notes
Hobbes' verSlon if contract Hobbef rejects the idea if the People as a 'person'
king to a conception of the impersonal 'persona CivitatIS', which might have involved him in problems of the relations of the king to this persona]. 146. cr. Pollt c. 6, De rep. 1, prooem. 4sqq. and c. 5, s. 3,5. He thus assumes that, when the fonn of the State is changed, the Rispubll&a dISappears but the CIVItas remains; and he states the question which Aristotle raIsed in connectIOn Wlth such changes In the fonn, 'QluzlenUs acta RelpubllCck obllgent CIVltatem?' HIS conclusion IS that 'contracts made by the RespubllCa only' do not bind the whole CIVItas': on the other hand 'contracts made by the whole people', and 'agreements made and expenses incurred for the welfare of the CIVItas' (m regard to which the' tacit consent of the people' IS to be assumed) contmue to hold good' Ifthe RespubllCa disappears'. He also contrasts the personality of the People with that of the Ruler In other connections, and, more particularly, he rcfuse.s to include within the scope of the Ruler's' majesty' the nght of property m the te'tntory and belongings of the State (De Jurf maj. Ill, c. 1). But he- entirely excludes the People as such from all the fIghts of the RerpubllCa (De rep n, c. 2, S. 5, c. 3, s. 8; Polll c 14; De aucl. prmClpum In populum, cc 2-3; De Jure maJ I, cc. 3, 6), and he accordlllgly holds that where a monarch IS hmlted by the constitutIonal nghts of the People, there IS no longer any question of a true monarchy, but only of ajorma mlxta (De auct etc. c. I, 4~qq., De Jure maJ. I, c. 6). It follows that the Respubltca, whIch mclude~ and connotes the whole authority of the State (De rep I, c 5, s. 3), IS identical with tlIe Ruler; and the' person' of the ReljJUbltca can therefore'be also exprc~se'd by a personmcation of !us majestas or dlgmtas (De rep. I, c. 5, s. 4, De maJ Ill, cc. 1 and 3). More e~pecially, the Immortality oi hI~ dlgrtltas serves as a means of securing the contmwty of the Respubllca m the event of a change m the line of succeSSIOn. 'So far as the fIghts of majesty and the status Impem are concerned " the successor to the throne 18 bound by the contracts (though not by the decrees) of hIS predecessors, wh~re sULh contracts have been made IlO11lIne dlgmtatlS, et pro Republtca, m regard to matters appertaming to the dignIty itself; but' m matters appertammg to the fisc' [1 e. to hIS own pnvate treasury, as dIStinct from the pubhc fund~], he IS only responSible' as heir (De Jure mal. I, c. 7) Betwet>n the' person' of the State or Respubllca, as thus conceIved, and that of the People, there may be an obligatiO maequalu, but there can be no really effective wntractual relatIOn (Ibid. c. 6). 147. De CIVe, c. 5, LeVIathan, c 14, c 17: tanquam Sl umculque unusqulSque diceret: Ego huzc homml, vel hulC coetuz, auctorztatem et JUS meum regendl me IPSum concedo, eo condlclOne, ut tu quoque tuam auctontatem etJUS tuum tUI regendl In eundem transjeras. Cf. the author's work on Althusius, pp 86sqq, IOISqq., and for different conceptions see pp 34-1 sqq 148. De ewe, c. 6, 1, C 7, Levwtharl, c 19 In particular he argues that the assembled people, even when It WIshes to retam supreme power, cannot cominue to be a person' unless it unmediately transfonns Itself into a conCIlium regularly meeting and deCldmg questions by a majority-vote, which involves a devolutIon by all and smgle of their whole personality, through a mutual contract, upon the democratIc Ruler as una persona (De ewe, c. 7, 5-7). In an arlStocracy, the constitution of a curIa optlmatum to rule as a single person' means that the people immedIately' ceases to exist as a single person' (IbId. 8), and IS 'at that moment dISSOlved' (!t), '~emg no more See supra, n. 124.
Notes to 1.4a single person, but a dissolute multitude' ( 10). Similarly, if a monarch be chosen, populus statim atque idfactum est persona esse desimt ( 12, 16). 149. De tive, c. 6, 20, c. 7, 7, 9,12,14,17; LeVIathan, c. 19. Themon- Hobbes arch in a monarchy, the Senate in an aristocracy, and the majority of the rifuses to people in a democracy, are all omm obltgatione Men; they are not bound by adtmt a any contracts made wIth mdlvldual subjects or with the whole body of contract qf subjects. they are not even pledged by any oath they may have taken. 'They Ruler and cannot therefore do Injustice to their subjects, either as mdividuals or as a People whole. Any reservation of the rl~hts ofthe People in a democracy, by means ofa contract made at the time of the institutIOn of the Ruler, is mconceivable, because the People was not a person before the establIshment of the pnnciple of majority-rule, and the only contract wIuch was pOSSible at that time was merely a contract between mdlvlduals and individual~. A siIIlllar reservation me an anstocrat-y, or a monarchy, would be null and VOId, because the people receivmg the promIse [that Its reserved nghts WIll be observed] disappears as a person with the lDstitution of the anstocratlc or monarchical Ruler, 'and when a person disappears, all obligatIOn to that person dISappears also'. A contract between the Ruler, after he has been instituted, and the People, i~ Impossible, because all that then remains over against the sovereign IS merely a 'dIssolute multItudt' Nor can any legal nexus of any sort eXIst as between the Rukr and his indIVidual subjects, because the will of indIViduals has beenJllerged entIrel~m the, sovereign WIll 150 DeclVl',c 5,II,C ti,4-20,c 7,c 12,1-7,c 13,c.14,2Q-33, LeVIathan, cc. 18, I g, 2 I, 23, 30. 151 DeclVe,c 6,17-T9,c 7,\and 15-17,c.12,5,Levtathan,cc.18,2g. 152. See supra, nn 84,86,87 153 Hobbes' account of the s1IIlllanty and dIfference between the mon- SovereIgnty archlcal and the republIcan soverelin lllustrat('s partIcularly how much he to Hobbes IdentIfies the' personahty' of the Ruler With the phySical substance of a man a phYSIcal or a body of men. The republIcan sovereign only really eXIsts for him as long fact as it is actually m seSSIon in the interval It sleeps, and tlus ~leep becomes death if the fIght of meetmg at ItS own dIscretion be lost. Cf De cwe, c. 7, 6, 10, 13 and LeViathan, c. Ig, and especially De cwe, c 7, 16, WlthIOthe acute deductIons m regard to temporary ror;.archles which are denved from thIS prmciple. 154. De cwe, c. 5, 6-11 , LeVIathan, c j'7 ThIS contract IS more than a The Soverelgn consent or concord'. It IS a real unIon vI persons, In personam unam vere as plenary ommum Un/O. By It 'the WIlls of all are rec'''" -, r to one'.. ut unus homo vel RepresentatIve unus coetus Personam gerat umuscujusque szngulaTtJ, utque unusquiSque auetorem se fateatur esse actlOnum ommu~, quos egerit Persona zlla, eJusque voluntatz et JudzclO lJoluntatem suam submttteret 155. De Clve, c. 5, g-IO, II, C. 6, I, LeVIathan, cc 16-18, 22. Hobbes declares absurd the opmIOn of those who say, 'of Kmgs beanng the Person of the State', quod etsl slngubs majores, unrverszs tamen mlnores sunt; nom Sl per universos intelbgunt CIVItatiS Personam, ipJUm mtellzgunt Regem, ltaque Rex sezpso mInor erit, quod est absurdum; sm per umversos multztudznem zntellzgunt sollttam, smgulos intelllgunt, Itaque Rex, qUI major smguliS est, major quoque ent Itnrvtrns, quod lterum est absurdum. '" Most thm1.crs are, however, In Hobbes' VIew, unable to see towlCiVltas In Persona RegiS contznetur (Levzathan, c. 18) '" See the statement of thIS argument In the Enghsh versIon of th~V1athan, c. 18, at the begmnmg of the third paragraph from the end of the chapter.
268
Tkl'eople Without a Jj.uler a mtre multitude
Gierke's Notes
156. Hobbes is never tired of drawing out the distinction between a community constituted as a person and' a dissolute multitude to which no action or right can be assigned', or of describing the people wiViout a Ruler as a mere 'multitude' cr. De Clve, c. 6, 1-3 and 20, c. 7, S, 10, 16, 18; Leviathan, ce. 16, 18, 19. He will not even allow the name of 'people' to be applied to such a body, and he- remarks (De ClVe, e. 12, 8) that it IS a mark of revoltItionary opinion quod hommes non satlS dlStmguunt Inter populum et multltudmem. The 'people' IS a unity with a single will and activity'. the 'multitude' is not. The 'people' rules in every form of State, and even In a monarchy (for 'the people wills by the will of one man ') : the' multitude', In all forms, means the subjects. In DemOCTaha et ArlStOCTaha clVes sunt multltudo, sed rona est populus; et In Monarclna subdltl sunt multltudo, et (quamquam paradoxum SIt) Rex est populus. If, following the vulgar use of language, we call the masses by the name of 'people '-if we speak of (what is totally impossIblt!) a rebellIon of the civttas contTa Tegem, and descnbe the will of dIScontented subjects as 'the will of the people'-we are Invoking, sub pTaetextu IJopuil, Clves contra Clvltatem, hoc est multltudmem contra populum The Ruler 157 De ClVe, c. 6, 19. the usual companson of the Ruler to the he-ad is as soul of false; a companson of hIm to the soul IS the only proper companson, because the soul is the- Instrument of the Will, and it IS through the IllStruthe body politic mentalIty of him qUI summum habet ImperiUm, et non aliter, that' the State has will', et palest velle et nolle. The duef council IS a better analogy to the head, cr. LeVIathan, Introduction and c 19. Hobbes 158 Cf supra, notes 100 and 101, DecllIe,c. 5, 9, 12, c. 6, I, C 12, on the 8; LtDlathan, cc 17-19. Hobbes' very'defimtIoh of the State already inperSOTlllIIty cludes the attnbute of personality. In the De cwe, c. 5, S9 (after an account of the State of the inStitutIOn of a 'CIVil person' by means of a umon of wIlh, and an explanation of how thIS 'person' dlffe,rs from individuals, and ("ven from omnes simul, SI exClpwmus tUm cUJUS vo/untas SIt pro lIoluntate ommum) we get the defimuon: CIVitas ergo (ut eam difinwmus) est persona una, cUJUS voluntas ex PactlS plunum hommum pro voluntate habenda est IpsoTum ommum, ut smgulorum vmbus etfacuLtatlbus uti POSSlt ad pacem et difenslOntm omnium. A similar definition also occurs In the LeViathan, C 17. Here, after gIving an account of the contract ma~(' at thl" time of the State's foundation, he contmues, quo facto multltudo Ilia UTIIl Persona est, et vocatur CIVItas et Rnpubllca, atque haec generatlO est magni zllIUS LeVIathan veL-ut dlgmus LoquaT-mortallS Del, CUI pacem et protectlOnem sub Deo Immortall debemus omnem. Then follows the defimtlOn-' A State IS one person, of whose actIOns a great number of men have made themselves authors by mutual agreements one With another, to the end that he should use the powe-r of them all at hIS own Will lor pea1:e and common defence'. Contemporary 159. About the same time as Hobbes (1642) GraszWlnkel developed an vuws SImilar absolutISt theory of indiVISIble and illImitable 'maJesty' (potestas una, summa to those of In se, et absoLuta) WhICh held the same position In the State as God 10 the Hobbes Universe or the soul m the body, and excluded any independent rIght in any other part of the State [cr. n. 93 supra1. But Graszwmkel failed to attam the conceptIOn of a single and homogeneous State-personalIty; and hIS failure was due not only to the theocratic basis from whIch he started (cc. 1-3), but also, and indeed pnmanly, to his duali~tic conception of the nature of 'majesty'. He maintained the dlStmction between 'reuI' abd 'personal' majesty;, and all that he contended was that the one might [on occasion] exclude the other. E.g. 'real majesty' eXists to the exclusion of' personal
Notes to 15
269
majesty' (a) in a Republic, (b) in a monarchy during an interregnum, (c) when It appears as a source of fundamental laws, and (d) where the monarch 1& lie" sub eoneiltlOne. Conversely, the 'personal majesty' of a true king mcludes 'real maJesty', which thus dISappears as a separate entity (ce. 10-11). Salmas1U8, in the DefinslO Regw of 1651, is already obVIously under the influence of Hobbes. Like Hobbes, he regards the unwersus populus or unlversttas, m a true monarchy, as a mere aggregate. He holds the original nghts of the people to be entirely merged m the sovereignty of the kIng, argumg that these nghts only belonged to omnes eolleetwe sumptl, I.e. to the people as a eonew, and that the kmg has taken the place of such eonew (unus lnstar eonewnts). He depicts the kmg as the one representative of the unity of the people (unus lnstar totlUS populi) , and he holds that there IS no community of the If::ople confronting him which is capable of exerclsmg any rights (cf. esp. c. 7). SalmaslUs, however, does not attempt to deduce any conception of the personality of the State from these ideas
I5' THE NATURAt-LAW THEORY OF ASSOCIATIONS [DIE ENIJEREN VERBA"NDE]

I Bodm, who Includes in hlS mItIal defimtIOn of the State the fact that The poslhon it IS composed offalmltes (I, c I, no. I), vigorously defends agamst ArIStotle if the Family the propnety of makIng the theory or the Farmly a part of Pohtical Science, m poMleal on the ground that the faml1y IS both a fundamental element in and an theory 'Image' of the State (I, c. 2), and he proceeds at once (I, cc 3-5) to treat in detail of the three powers wluch eXist m the family [the power of the husband, that of the father, and that of the master]. ArnlSaeus takes a Similar hne, Pollt. cc. 2-5 and De rep I, cc 1-4. see also Danaeus, I, c 3, Cruger, dlSP~II, Helder, PP' 32sqq.; Velsternus, dec. II-IIl BorrntlUs, Part PP 38sqq; Liebenthal, dlJp II-IV, OhzarovlUs, lib. I On Be&old's treatment of the three famIly ~ocletIes and the general farmlycommunity which they compose, see vol. IV "f the Genossenschaftsrecht [not here translated], p 13. Gregorius do(~ ho.l.:lge to a Similar pOInt of view (I, c. 2), but he doe. not dls~ss the Family m any detail Connng also holds that it is only sonetates domeshcae and the State which have their ongin in Natural Law: cf. Dus. de republICa, Op III, pp. 763sqq , and De necessams eWltatls partlbus, Ibid. pp. 748sqq. 2. This is the line taken by Boom, I, ~ 6, Armsaeus, Pollt. c 6, De rep. I, c. 5, Cruger, dISP Ill, Heider, pp. 25sqq , Velstemus, dec. IV-V, Bormtlus, Part. p. 40; Llebentllal, dup. V; Ohzarovius, lIb. n-III. 8. Bodm first treats of corporatIons In his third book, under the head of
Anstotle, I~ the begmning of the PolitICS, where he IS controvertlng the POlltlCUS of Plato, dlsttngUlsh@s the theory of the FamLly from that of the State. Later, however, In the course of Book I and the begmnmg of Book II, he deals la.reely With the theory of the Falmly as a part of the theory of the State.
27
of groups
Gierke's Notes
Thlotreatment administrative law. Here he describes, as Rnpubli&ae partes tit veluti membra' slngula, quae prilUIPI Rnpuhlr,cae quasi capltt Illigantur, first the Senate (c. I), tnrhtuhon.r then the officials (co 2) and the administrative boards (ce. 3~), after that of" admInIStra- the corporations (c. 7), and finally the Estates (c. 8). Gregoflus surularly bnngs under the head of administrative law his tive law account of the advantages and dangers of corporatIons (De rep. xm, cc. 2-4). He regards corporations as being mere institutIOns of positive law after the State has once been formed-although, m the same context', he refers to the natural development of an ascending senes of groups [whIle the State IS being formed} (Ibid. c. 2, 2). Arnisaeus, in hIS comprehensive treatise on politics. only devotes a few scattered remarks to local commumties and corporations at the end of his theory of the subdltl majestat! (c. 12, p 133) Bormtius simply treats associations as subdiVIsions of Estate., (Part. p. 72), and many other ~litical theorISts sinnlarly consIder local commumtles and corporations merely as political divisIOns of subJects-cf. Helder, pp. 268-71; Hoenonius, dlSp. 2, 52-7; Velstenius, IV, quo 8-g; Busius, I, c. 13 (m a context m which the faIUlly has also been preViously treated m cc. 10-11, and the institutIOn of cllentslup in C. 12); Kirchner, dlsp. XIV; Liebenthal, dlSP V, 1-78. We often find associatlons completely oIUltted by political theorISts (e g. Cruger), and still more often by the theonsts of natural law (e.g. in the treatbes cited above, 14 n. 2). 4. ThIS IS partIcularly the case With the eccl61astIcai theorISts of Natural Law, and more espeCially With Molma and Suarez. 5 Badm, dlslmgwshing collegza reruAt dWlnarAm ac publzcae pletatlS causa Bodin's classificatIOn from collegia rerum humanarum, diVides the latter mto those which have 'jurISof collegia dIction', and those which have not. In the former category of these secular 'colleges' he mcludcs only' magIStrates and judges'; m the latter, 'collt"ges' for the educatlO juventutlS, and medzeoru'm, scholastzeorum homznum, mercatorum, op~um, agrzeolarum sodallila [such colleges thus being eIther educational, or professIOnal, or occupatlOnal}-3ee lac. Cit no 330. Later, in dealing With the 'powers of colleges', he gives pre-emmence to the, 'colleges of magIStrates and judges', as bemg praeclpua, because they non solum collegas slngulos ac collegll tollUS mznorem partern, sed caelera quoque rehglosorum et opz.ficum collegia, pro Jure suae POtestatlS moderantur el coercenl. These corporate bodIes of Judges and magIstrates arc dlstmgulShed from other 'colleges', which are only concerned With their own parhcular negolza commlUlza, by the fact (a) of their handhng tum sua tum alIena negotla, and (b) of being constituted pottus allorum quam sua causa. But they too' must rightly and duly administer law for theIr own members, Ifldividually as well as collectively', before they assign rights to others. Bodm adds one qualificatIOn. The fight of a college to exercISe Junsdlction Itself over its members IS a right which IS only to be recommended in the case of the' most prudent' collt"ges: for other colleges, the Junsdlctlon of supenor colleges and of the Prince is preferable (nos. 332-3). 6. Bodm argues that these other colleges [I.e. colleges other than those of Bodin on the rights of magistrates and judges] jurisdlCllOne et lmpeno vacant, and have only a 'fight of coercion and moderate castigation' Within the hmits of theIr statutes: pnvate even Fredenck II assigned no more power to Rectorstof AcadeIUles and 'colleges' headnIaftel1l ofschools. Where collegia rellgtontS causa COnstltuta are in questIOn, the Judex ordInarIUS has to decide how far a penalty or sentence of expulsion
.s
Notes to 15
27 1
imposed by a college is admissible. Any rule to the effect that disputes between members must only be brought before the college has no validity In crimme etJudulO publlco; and In prwatlS JudlcilS the decisIOn of disputes by a college is only vahd when it takes the form of an 'arbitral award'-and even so It must be passed by a unanimous resolution. The summoning of a meeting by the senior members or officers bmds nobody to appear, unless the summoner impenum habet: fallmg that, recourse must be had to the government in order to Issue a bindmg summons; but only moderate penalties can be Imposed on those who absent themselves, even when such a summons has been Issued. Collegza and unIVerSItates may Issue edIcts, salvis legzbus, but they must not even discuss what is forbidden to them by law, or anything that is not mcluded m the sphere of their corporate affairs (nos. 333-7). 7. aoc Cit. no 331 (VlctuS communIS is no more necessary than an aeranum Bodm on commune) see also no. 332 (a 'college-' can only acqUire a capacIty of incorporate hentance by a spf'Clal pnvl1ege to that effect [cf the modern French rule property winch reqUires adminl~trative authonsatlOn for tht' acceptance of a gIft or legacy by an etabllSsement publique] ; the Idea of a corporatlOn does not necessanly reqUire a capacity of mhentance, or even of acqulSltlOn). 8 Although unwersltas non potest fteccare, zmmo ne consenttre quzdem, Bodin Bodzn on holds that, m consequence of the ld('nufication of the majonty WIth the tIM offences whole body, p('nalnes may be prop~rly Imposed on the corporate body (such if corporate as withdrawal of the f1ght~f meetmg, cancellatIon of pnvileges, fines, and bodzes confiscation of property), if an offence has been commItted after proper dIscusslOn and decisIOn in due cerporate forms On th(' other hand, he would spare mnocent mdivlduals from mcurrmg penaltIes wIuch affect theIr body or hfe-or even theIr propt'rty, ~o far as It is possible to dIStingUISh their property from that of the corporatIOn For the rest, basmg himself 011. a full reVIew of hI~toncal facts and on pohtIcal conSIderatIOns, he advIse~ the following of a Just mean between seventy and t'xceSSIve clemency (nos. 337-42) 9 Gregorius, after speakmg of the ongm and the varIOUS species of cc- Gregonus cleslasbcal and secular corporatIOns, and aftn hrmtmg drastIcally the scope Tholosanus of collegw llczta (De rep XIII, c. 2), proceeds to dIsc~~ m his next ch;fpter on the same (c 3), WIth an unusual wealth of detaIl, th,. offences of corporations (especi- t1Mme ally those ofmonopoly and heresy), and tl.e three remedw whIch the sovereign can apply In deahng With such offencf'. !'hey are (I) reformatto InstltutlOniS (by way of changes, prohibItions, VISItatIOns and penalties, 2-15); (2) abolition ( 15-21), and (3) a rule :" t~ effect that non permlttendae sunt faerie novae rellgtones aut coiiegla (c 4). In the course of this argument there is no mention of any legal lImits on the sovereIgn power. Cf also Xlll, c. 19 (on offences of fraternities and their suppreSSIOn) and XXIlI, cc. 3-4 (on 'factIollS and cOllSpiracles, and theIr remedIes ') On the juristic treatISes of Gregorius, see above [vol. IV uf t::e Genossenschaftsrecht, not here translated], p. 60 n. 2, p. 65 n. 17 and p. 91 n. 90. 10. BornitIus demands that 'for the preservation of the State', persons Bormhus' should be dIVIded mto three Estates (Part. pp 68sqq.), and these Estates theory if should be subdiVIded m alIas parln, quae collegw dlCuntur, ut eo rectius et corporate faczllus sua mlnera ~xpedlre pomnt (p. 72). Each of these colleges-mclu<!IDg, bodzes In the spIritual Estate, those of prIests, professors, doctors and the like; in the pohtical, those of magIStrates, Judges and councillors, and in t1!e private
272
Gierke's Notes
Estate, those of agriculturallits, merchants and artisans-is Quctorilate Princlpisfactum et concessum. The colleges, when formed, are then united to form a corpus, and a number of corpora are finally united to fonn a unll!f'sitas.* For the most part they have.ruam pollham Injure, legJbus, prlVllegJU, pactu, suaque admlnutrandlfonno.; but the rights of collegIa In statu prlvato [i.e 1fi the third or 'pnvate' Estate] belong only to the sphere of private law as a JUS clvium speciale (p. 93), and such prIvate colleges, like familieS, can only have a polltla pnvata (p. 105). Of. De maJ. CL 14-39 (where It 18 argued that a grant by the State is always necessary to Jusufy collegIate self-government, JurisdlCho, the chOIce of officers,Jus comltlorum, the nght of taxation, and the like). 11 Armsaeus (Pollt c. 12), at the end of hIs theory of the subdltl maJestatl, Armsaeus speaks of their diVISIon mto certain classes, ut scilIcet commode gubernan per on corporale Jussa et lmpena majestatIS possmt. In thiS connectIOn he dISCUSSes collegza, bodtes corpora and UlIlVeTsltates on the basIS of Bodm's scheme: he rejects entU'ely any toleration of assoclallons without 'the consent and the confirmatiOn of the State', but he allows to colleges a power of makmg rules tit rebus SUIS et In collegas, and also, by authonty of a special grant to that effect, a JurlSdlCtlO In collegas. Smularly, in his de Jure maJestatIS, he mterprets all corporate authonty as the result of a 'concessIOn' made by the State, except m so far as It IS merely the exernse of a power to ("nter into contracts or of other nghts at pri"ate law. ef II, (' 2, 8--g and III, c. 7, 10 12 ThIS IS the argument, essentially based on Bodm, whIch we find, BIISIUS on e.g m Velstemus, Dec. IV, qu 8--10, Helder, pI> 268-71, and Liebenthal, corporate Dlsp. v, 1-78. BuslUs tak('s a more independent lme' he starts by dlSbOOtes tmguishing the State, as the all-embraclIg unwer.l't1as, from a unwersltas such as a local commumty or a collegwm ([, c 3, 3), and he then pro('eed~ to treat particularly of collegza et corpora, winch he consIders to be Idenllcal (I, c. [3). He defines a corporatiOn as umversltas plurlum ClVlum, qUI m certum allquemfinem contrahunt socletatem ad slmllttudznem CllJltatlS he refuses to tolerate any other ~oClations than those whIch are authonsed by the State he recommends an extreme prudence, which WIll allow only useful l:-orporatlons, WIll admIt no dISCUSSIOn of pubhc affairs, wlll only recogruse 'statutes ' [or by.lawsJ as 'pnvate agreemenb', and WIll permit only pnvate, but not PUb~lC, assooatlOns He also refuses to allow any liberty of meetmg. Cf. Hartog [as Cited In 14 n. 142], pp. 15-16 and 20-1. 13. Cf supra [vol. IV of the Genossenschaftsrecht, not here translated], pp. IIsqq 14 Cf. e.g. Oldendorp, Isagoge, I, p. 181; Wmkler, v, c. 2 and c 4, where a dlStmction IS drawn between respubllca ma)estatlJ and respubllca mUnlCl!iallS WInkler argues that 'majesty' has, 'ofltsdf and ~ Its own fight', the whole of the authority of government; but he adds that concedltur etzam maglstratul prOVlnczall aut mumclpalt mterdum, ut pro modo JurlSdlctwnlS slbl commlSsae legem firat, sed haec omma precarzo et mdultu maJestatIS, non Jure propno. 15. In thiS sense we find Covarruvias argumg (Pract. qu I, c. 4) that the EccleszastlCal 'supreme jurisdIction of the kmg' (whIch he calls the' MaJona') excludes umters urifavourable any independent nght ofnobles, or of CIVItates, if the kmg himselftakes actiOn It 15 only when the kmg falls to make provl~lOn, or IS prevented from domg to Groups
Does thiS mean that the colleges in anyone Estate form a coc..ous, and these corpora in tum form the urnuemtas Rtgnz? Bodin has a somewhAt sunilar vIew of the relations "f collegium, corpus and Universitas, but hIS umversllas IS only a local commumty (cf pp 64-65 supra).
Notes to 15
273
so, that a unwemtas can appomt a Rector for Itself Molina (Y, d 3, 3-5) ascribes alljunsdtctlo to the tota Respubllca, and therefore to the kmg, WIth the result that Vlagnates, towns, and the 11k!.", can only have a 'derivative jurisdiction': cf. II, d 666, and LesslUs, II, c. '33, dub. 2, on the nght of taxation. 16 Suarez (1, c 8) dIVides potestas praeceptlVa, which can issue commands, into potestas dommatlVa (or oeconomlw) and potestasJurzsdtcttonts (or polztlca). The former may be found even m an 'Imperfect commumty , [e.g. the FamJly] ,for (a) thl." father has lnaturally] a potestas domwatlVa over hiS child, and (b) such power may also ansI." from contract-elther under natural law, through an agl Cl."ment of marnagl.", or under po~it.Jve law, through voluntary entran< e mto a relatIOn of Sl."rVILe. The potestas JunsdtcttOnts IS confined to the' perfect commumty'. Only a 'supreme head' can have the leglslatlve authonty on which ~ potestaJ Junsdlcttoms follows, and an Infertor can only exerCIse such authonty Wlthm the limits tIl which It ha, been 'communicated to 111m by the head' 17 ALcordmg to Suarez (Ill, cc 2-3,9) leglSlatl\c authority, m the sphere of leges cIVlleJ, belongs only to soverelgm TIns means lhal It belonged ongmally to the People, and has suhsequently come to belong either to Reges supremt (and, m addition, other 'prlllces Without a supenor', and tern tonal pnnces ~ubJect to thl." empl."ror who have been duly cnfeoffl."d as soverclgns), or to soverCl,sn republics Per contra, accordmg to Book Ill, c 9. no., 16-21, the ',tarut~s' lor by-laws] of 'commutllues' have mherently Hotlung of the nature of lex The' statutes' of CIVttates mlnores [elUltas bemg heIC understood to ,'!gmfy a~Itahan city of the medIeval type], m the form m which they arc recogmsed by Bartolm,'" arc eIther mere pacta, or praeupta humana temporalza, SICut sunt praeoepta patnsfamilws III domo sua, and even the enactments of CWttates rnaxtilae and magnae (species which ought not properly to be distingUIshed) are really either JJacta, or (as Baldus holds) SImply thl." expre~slOn and outcome of JunsdtdtO The real questIOn [when we arc di,cussmg the legl~latlve powers of a mumclpalIty or ewttas] IS whether (I) the elmtas IS a 'free people', and, as such, retmeat tn se altquam potestatem supremae Telpubllcae et per zl/am se .flam gubernet, or (2) tllam.[~ J>otestatemJ szmplzetter tramtulerzt tn alzquem pr. ',"eTtl, vel quolthet altO Justo tttulo [potestas tila] translata Stt It I~ only of the runner of these two alternatlve~ that the Lex' omrlCS POJ1Ult' ~peab The InsLa':!t a CIty zs ',ubJect to some supreme Prlllce', It Lan no longer make law, ex poteJtate propna. At the mostand then only by vrrtue of a reservatIOn m:- ': 'y It~elf at the tlffie of' tt aIlSference', or as the result of a later' concessIOn' made by the sovereign-it IS able statuere de rebus ad ol\am pecu/larem gubernattOnem et admtntstrattOnem jJertlnentzbus. In other respects [I e. apart from thl."~e parhcular matters] It needs the 'confirmatIOn of the superior'. What 1, true of cIties IS simiially true of provmces, and particularly of corpora 11!.vs f tca. A >IItlllar view appears III I, C 8, no. 5 and II, <.- I, nos. 8-10 Cf. also VI, c 26, nos 4-25. magzstratus cwtles aut reJpubllCae lriferlOres et Ctl/ttates subJectae can never establISh any rule wInch runs contrary to the Jus commune of the State, the Supenor, on hiS Side, can abrogate even the statuta whIch he has confirmed, but the statuentes themselvL' have no such power of abrogatIOn
Suarez regards all real atJtlwrzty as belongmg to the State
Suarez on the rights if muntclpaltttes
On Bartolus, and his doctrme of the clVztas >Ibt princeps (the ItabaneCltv-state as 'Its own prmce'), see eNS. Woolf', book on BartolusofSassoferrato, pp J 12 sqq BTsn 18
274
Clerke's Notes
if the confirmauon he gave was ersentwlts, or if, even though It was only accldentahs, 'the PrInce by confirmIng [a statute] made It hIS own law'whICh IS to be presumed the "ase ( 18 Cf VII, C" 1-20. Accordmg to c 3, nos. 8-g, c g, nos 3!I I and c. 14, Suarez on no 4, a 'pnvate person' or an 'llnperfect commumty' (unafamlha) can pass the validity nnther a lex expreJsa nor even a lex tacita' they can only estabh~h a praeceptum, of custom or a statutum, per modum pactl seu mutuae COnlle/ltlOmr-and the' precept' or 'statute' must be clear!} expre~s('d On the other hand, any 'perfect commumty' (CIl~tas, populUJ, congrel?atlO eccleslasltca, [corpus] mercatorum) may consuetudlllem mtroducere, inasmu"h as, pas~lvdy tegalded, It I> legIS capax, and, regarded actIVely, It (an make law~ ut corUUllcta pflncipi vel facultatem ab eo habCTIs, although Its mherent power extemb only to the makmg of statuta conl'CTItlOnalza None the les~ (accOldmg to cc 13, 14, no, 5 and c 18), the consent of the Pnnce IS alv.ays nece~ary rto the valIdIty of cu~tomar,rule~], whenever 'the p('ople It~df IS not the mpreme I'rmce' In the ca~e of communItIes WIth a pOWCI of makIng rule" thl~ con~ent call he glvcn by a general authonsatlOn' In the case 01 other commuIlltlr>, the de facto toleratIOn of a 'pre~enptIve custom' IS adequate, but oth('rwlse all act of personal assent I~ nece~sary-though that a,slnt may bc glvul tantly, aS~lImmg alwavs that the PrInce IS cogmsant of the mage 1Il que~tlOn 19 Cf v, c 14 onl} the sovcrLlgn can Iflbuta zmpolloe II h eOlTh'fjuent Suarez on on the natuH' of 'maJcsty' that any other person-though he may acgulle taxatIOn a nght to the exactIOn of tradItIOnal ducs- din ncvcr acqlllre .1 fight of taxatIOn, and ~imllarly, whIle the SOvcl('lgn may grant to an mlcflor ut nomzne et auctontate Jua tnbulum lmpollat 1ft partlculrfrz casu, he callnot m.Ikc a valId grant to an Infenor of 'the general pflvilege of Imposmg a tax mdependently of hIS own approbatIOn', 511l( e SU( h a pn\'llege would olfrnd agamst the nature of the Stale and the SIlprema flOlestas. 20. Thus the ans\\ers gIven b) SUarez (IV, c. 6) to the que~t1On, Quae Suarez on commumtates seu wngregatlOllI's ecdeHastlcae hab'ant potestatem leges condendl, reltglOuf congregatIOns depend entIrely on the fundamental pflnuple that any autonomy bdongmg to e( deslastlcal aSSOCIatIOns n1ust eIthel be the result of an 'e( cl( 5Iastlcal JU1l5dl( tlOn' granted by the Pope, or, If It takes the lorm of passmg by-laws, then such by-laws can only be regulae o/Jerandl pos/tae e>: COlll'fJ!tlOne zllorum qUI sunt de commumtate see espeCIally nos 12-13. Iq and 21 21. Thus m Gregonu~ (XlII, l 2), Vt.btcl1l11~ (Dec/J IV) and LIebenthal The corporate body reduced (Dls/). v), collegia, cor/lora and umuersltates are JCc'koned as soclftales 111 Helder (pp. 268-7 I) they aI e c.ontra~ted, a~ soczetates prIVatae, v.lth the Joczetas to a mere /Jubllca of the Statc Bodm (I, c 2) compares famIlies and corporatIOns, partnership, WIthout sugge~tmg that there I'> any dIiference :'etween the Idea oj famIly Me the authonty and that of the authonty of the corpOlauon In hIS vIew famIlIes Family are already competent to make stalula (e g 'home-laws' [hke that of the Habsburg famIly], or compac~ ofmutualm.hentancc), and he only re/uses to allow the makmg of such statuta tofamlhae obsturae (no 13) It has already been mentioned (supra, n 10) that Bormtms assigns the fights of corporatIOns proper [collegia III statu prlvato] to the sphere of pnvate law. Armsaeus (Poltt III, c 12) also reduces the Internal nghts of associatIOns to the level of the nghts of'societie~' [or partnershIps] supra, n. I I, adfinem. 22. BUSIUS (I, c. 13) theIr fights contlllentur prope Jure..soczefatlS, but with some modtflcauons, e g. they are not dIssolved by the death of theIr members, and they can act on the maJonty-pnnclple; see n 12 wpra.
Notes to IS
275
Contmued use of the Roman law c( corporatwns
28. The traditional [Roman-law] theory of corporations is reproduced almost in Its entirety in Gregorms (ef also XIII, c. 2, 7 on hospltalla and pza loca regarde~ as collegza) , in Besold [see voL IV of the Genosse7lS(haJtsrecht, not here translated, pp 11-16], and mother wnters. Some of the essential parts of that theory are also reproduced in Bodm, in Molma (cf e.g. II, d 3 on the property of ('orporatlOns, d 300 on loans to an ecclesla or ctVltas, and d 536 on hypotheca taclta of the property of the admlnJstrators of a corporatIOn), m Suarez, and elsewhere 24 Thi> IS the view ddopted by Bodm (III, c. 7, nos 334-6), when he draws a hne of dIVIsion between (I) affaIrs m which omnes szngulz must agree, because there IS a que~tlOn of a nght beJongmg to all the members seorsum a commumone, and (2) affair, m wluch thc majontv decldc~, because JUS umversorum IS conCl"rned Cf Oldendorp, op CIt 1, P 163, and Liebenthal, Dlfp '" ~63-77 It I, on the ba.. ls 01 tlll~ vIew thdt Bodm argues (Ioc. CIt no 331) that It I~ compatible wIth Ill(' Idea Ofd 'college' that there should be a !mnccps collegll who has Impenum m col/egas II cover ea< h dlstnbutlvely], but not that thele ~hould be a prmce/iS WIth lmpmum In umversos II e over all ('o!lt'etlvt']y], as there 15m a conslstonum, a IfYmnaszum, OJ aJamllza Armsat'us takes a 'Imllar line, op (It P 133. 25. Thus Bodm (lac. CIt. no 332), m ~plte of his descnpnon ofJus collegll a5 JUS Uml'CTJOTllm, drgue5 In favour of the eontmuaucc of tlus JUs coltegZl until It IS legally abuh~hed, eve~ when all the mcmbl"r, [colle~ae unwerHl have dl,appeared-dcclarm~ that It I~ folly to IdentIfy the collegium WIth the collegae. [He thus assumes that a college IS a fictitIOUS mdIVldual, distinct from ItS mdIVldual members.l He 8.1~0 regards the capaCIty of ownmg property, and particularly that of mhentmg It, as a ~penal pnvllege granted to the collegIUm a, a fictitious mdIVldual] 26 BodlU (Ioc Cit nos 334--6) peals 111 detail With the vabdity uf the IndjOnty-pullnple, recogm...mg that prmClple m ~u far as there IS nothmg to oppose it elthcr mJura smgulorum or m leges elUJ qut collegli creator est quasque prmu'ps ImperIO suo valere jUSSlt But majunty-den,IOru., he argues, reqUire a Jl'gular meeting, and the presence of two-thlrd~ of the members, and then plul J'OJfllnt duae IJOrtes wactae quam omnes SeOTS1I77/ They bmd the mmonty, and all mdlvlduals, hut they do not bmd the \\' k body Itself or the majo;lty The majonty can alway~ abrogate It~ del 15Ivtl~, a~ the ~ovelcjgn can abrogdte a law, ur the tc~tatOl a Will, or contractors :l contract; and thiS IS the case even WIth a Ullammous deCl~lOn, if the qUf'stlOn concerned IS one de Jure unwersorum, though not Iflt be one deJure SI" '''rum seorsum Bodm mentIOns, 11\ thl~ connectlOn, that he had hunseIJ prevented a deciSIOn of two of the Grdmes Francorum which \lould have enured to the detriment of the ThIrd Estate 27. Cf BUMUS, supra, n. 12 j Armsaem, De maj. Ill, Co 7, 10 (' VI conven-
Bodlll's dlStmctlOn between 'dlstnbutlVe' and 'collectwe'
But he also assumes a

ficta
per~ona
Bodm on the maJollryjmnnple
tlOn/S ')
28. Cf Bodm,loc CIt. nos. 337-42 (supra, n 8), and Oldendorp, loco CIt.
p. 39
2U. Thus Molma (u, dlsp. 3, 7, It, 12) draws a dIStinctIOn between (I) domtnlum unwersltatlJ, wInch belongs to 1t Jure UnlVerSltatr,s and Includes pastures and flilrests whIch are used by all and (2) domimum partlculare .. quod . Universitas seu comml!lltas altqua non seCUJ habet ac 51 esset persona prwata He holds that the takIng of wood In the common forest (dlsp. 58), and the l.1iIe of the common pasture (dlsp. 59), are dependent on the regulatIOns maul' by the
18-!;!
The CatholIC WTlters on mllage commons
Gierke's Notes
local community as owner, but he argues that offences by members of a local commumty against such regulatlOns-unhke encroachments on the pa~tures or forests of other commumhes-5hould be pumshed Nlly by fines, and not by the exactlon of compensation (unless it be a question of really consIderable damage), because the common property still remams intact [after the offence has been committed). He refuses to admit that the lord of the manor court has any property in the common, and allows hml only a Jomt nght of user suo ordme et gradu (d. 3, II, d 59, ~3-5) SImIlarly Le~~1Us (n, c. 5, duh 13-14) demes any obhgation to pay compensation (unle" 'great damage be held to have been done to the commumty') m ca,e~ where a lommumty has proillblted the me of Its pa~tures and publIc \~oods and a person has offended agamst such a prohIbition In loco publico commumtatzs cUJUS Ipse est pars Lugo (I, pp. 142sqq., dlsp 6, sect g) takes the same view [that i,h compensation IS due], unless there IS a que,tIon of considerable dama~e, or of use for profit by means of sale to othns, or unless the common has been let to a thIrd party. Ht" algues that any offence [by a memher of the commumty against Its regulatIOns], unhke encroachment~on entirely stran~e wood, and pastures, which belong to another commumty or to a pnvate pI'rson, I~ only an offence against oboedtentta, a:nd not an offenlc agam,tJustttw The re!,\tlOn between UniversItas and smgulz IS dltlerent, however, III a mona,terv [from what it 1< In thl" case of a sf'cuJar body]. [In latta case], olp/dam smgulz retment suumJus paltwle ad Illa bona, and they have a nght of coutrollmg theu share~, becau~e full and flee property remams With the commulllty and Ih mf'mbt"rs, t"ven If the admlIllstratlOn tH~reof has been transferred to ,orne manager on ItS brhalf [In a monastery j, although the monks m communi habeant corum bonorum domInium, Ita tamen tota adm!lllStratlO est penes communltalem vel praelatos, ut smgulz neque ex flarle POSSlnt condonare alzqwd 30 Suarez dlshngUlshes bet\',een (I) the 'natural eommumty of mankmd' and (2) the communltas polztlca vel mystlca, whIch I, 'only Ol1e 111 VII tue of a speCIfic act ofumon m a moral as~oC1allOn' The latter kmd of eommumlV Ib either ofdlY1ne foundatIOn (the Church) or of human mventlOn The commumty whICh IS of human mventlOn IS agam either (I) 'a perfpct commumty, whICh Ib Lapable of pohtlLal government', or (2) 'an Imperfect commumty', \\-hlch docs not form a corpus and I~ destitute of VIS coactwa 'Pt"rff'ct commumttt"b' mclude not only the State but al~o local cOmmUnIties, and not only 'real' but also 'personal' groups (such a~ orders and fraterrl1tle~) prOVided that such local commumtles and' personal' group~ have flerJectum regImen et moralem unlOnem, and so, \\-lult" 'Imperfnt a, parts In regard to the wholt"', are 'pufect a~ regarded m themselves" Even so, they are 'not ab~olutely, but eomparatlvt"ly or relattvely, perfect' all the other hand the 'pIivate household' under the paterfamlhas IS absolutely Imperfect cf r, c 6, nos 18-20, and also supra, nn. 16 and 18 31. A( cordmg to I, C 6, only a 'perfect commumty' IS passIVe legIS capax (nOb 1-16 and 21-22). But law need not always be unposed on the eommumty qua c.ommumty (ut commumtas est et corpus mystzcum). On the contrary, It generally affect~ the commumty not as bemg a commumty, but as bemg <0 many mdlvluuals (non collectwe, sed dlstnbutlVe, no. 17), a1ld It may also refer to a part of the eommumty only (nos 23-4). Yd a law which only amcts ~he commumty qua commumty-e.g. a law which commands or forbids some act which can only be done by the corpus mystlcum itseif:-'Is stIll
tnr
~WJ.rez on the varIOus forms rif commumty
Notes to 15
a true law; for though such a law applies to una indwldua communitas and this community IS called una personaficta lI.e though the law seems to be made for one 'per~m', whIch IS contrary to the nature of law], yet the' community' is a' community' [i.e a,um of persons], It POSSf"'Se'i the neces~ary permanence, and It IS dIrectly mtended to secure the common welfare of all ItS memben. Moreover, the szngUl1 de llla communttate are also mdlrectly oblIged bv such a law See, m addItIOn, I, c 7, and (on the other hand) the pa,sages on the contractual character of'statute~' CIted 1'1 nn. 17, 18 and 20 above 32. Cf the Vznd. c. Tyr , where It IS argued that any part of the kmgdom, and therefore any provmce or CIty-but not any mdlvldual, because the indlVidualis not a 'part '-has the nght and duty of reSIstance when the pact WIth God IS broken (qu II, pp. 94,>qq.) These part~ too have severally promIsed for them,>elve~ [Just as the whole kmgdom has promISed for Itself] that t~y will be true and obedIent to God m accordance WIth the StipulatIOn He has made (pp. 99-tOo)-a~ IS also the case, the author adds, WIth the E,tates of the EmpIre m Germany, or WIth 'parts' of the Church, suth as the ecclesza Gallicana [a~ a part of the Church UrllversalJ. Therefore, unwerSI tn reglOnzbus et urblbus may n,e III revolt, auctonbus magtstrattbus tanquam a Deo przmum, delTl a PnncljJe COrl.ltLtutLS (p 114), and Cities and provmces whIch do not seek to avert an attack on God's churc.h by force of arms are gUIlty of a grave sm (p 228). [A~ unwerSI in a province or CIty may reSIst, '0, too, may the governors] qut a1LC1IJ~Jartls regwmsve tutelam susceperunt, tyrannzdem tyrannumque ab ea re/;lOne urbeve arcere Jure suo prHsunt (qu III, PP 304 sqq. and 326 ~qq.), and thu~ mdwldual nobles [as havmg the tulda of a 'part'] may begm a revolt, though pnvate ~er,om can never a%ert the JUS gladll agamst a tyrant The treatise De Jure mag (qu 6, pp 26 sqq and 74, quo 7, p. 92) arnves at SImIlar re,ults Danaeus (m, c 6, p 223) requires the consent of every provmce to- any change of tbe constitutIOn, and he add, that, when a provmce IS not as1.ed for Its consent, 'some hold that it can choose for Itself It~ own form of poltty'-but thIS, he adds, IS dangerou, 33 Cf for what follows, the first eIght ch_~pters of Althuslus' Polltlra, and aho c 9, 1-7, c 18, ~90-1, c 38, ~76 and 110-14, c 39, 84 see also the connected account of the argumen. or these passages m the auttar'__ work on AlthusIU~, pp. 2 I sqq Referf"Pse may also be made to hIS ])lcaeologza, I, cc 7-8,2)-33, 78--81 lH Cf vol. III of the author's Genossmschaftsrecht, pp 544-5. 35 AlthmlUs mention, (POllt c 4 I'-~< but WIthout ascnbmg any great sIgmfieance to It-the s~enal category of the corpus (whIch is a broader aSSOCIatIOn of a number of collegia), as assumed m Bodm and other wnters LIke Bodm and others, he counts as 'colleges' not only (I) guIld~ and tradecorporations and (2) corporate Estates and eccleSIastIcal SOCieties, but abo (3) collegiate courts of Jushcf", admmistratIve Boards and eccle~IastIcal Board~ (c 4, 3 0 ), and (4) assembhes of representatives (c. 5, 54 and 60sqq.), prOVInCial dIets (c. 8, ~49 and 56sqq ), and general dIets (c. 18, 62 and c 33). 36. In the first edItion of thePo[ltlca, the category of 'politIcal aSSOCIatIOn' is lacking. ~ that edItIOn Althllilus begIn' lus clasSIficatIOn of as~oelatlOns by distingUlShmg"the consoclatto partlCulaTls flOm the cOnsoczatlO umversalzs (1 e. the State); he then subdiVIdes the cOnsocwtlO partzcularzs Into the.consoczatzo naturalls necessaTla (I.e. the FamIly) and the consOctatlo ctVllzs spontanea; and
The Vmdlciae on the rzghts of provinces and CltleS
AlthuslUS' classification of collegIa or 'FellowshLPJ'
Gierke's Notes
finally he subdivides the 'voluntary civil association' into the consociatlO prll'tlta In colleglO and the consoclatlO publica in umversltate 37. On the polItical theory ofAlthusius see, In the prevIous se~lOn, nn. 36, 52, 57,65,67, 70-3, 75, 77, 82 5,87,96, 106, 108-g 88. See supra [vol IV of the Genossenschaftsrecht, not here translated], pp. 178 sqq 39 Thi~ i~ the lmt> followt>d hy Casmannus (c 66), who contrasts this composlta respublzca v.ith clLltafer confoederatae It IS most marked In Hoenomu~, who places the kmgdom composed of a number of Clues-under the name of respubbca composlta (d. 12)-half-way between the city-stat!", which he terms a respubltca Simplex (d. I I), and the 'confederation' proper He vests the ~evcral parts of thiS 'compo~ltc State' With a large measure of autonomy, Includmg even the nght of secessIOn (d 9, &44-'j4), but he regard~ collegza el soda/ltates as merely useful dIVISIons of the wbJccts of the Statc"(d 2, 52-7) 40. See, for c-",ample, Matthl,t~ (Coil. polzt d IV-V and Syst /lobl. pp 20194) Soczetas, whIch IS the pnmary conception, I~ clther 'natural' or 'nvil and voluntary', 'natural 50cit>ty' mcludes the three 'dorne~tIc sO(lchc~' [husband and Wife, father and dllld. rna~tcr and ~ervant] 'nvJl and voluntary sonety' shows itself first 1ll Il~ 'partI< ular' fOI m-In the I'ZCIlS, !Jagu \, oppldum, collegzum, cO/pus, UlIlz'ersltas and llVltas-and thLn 111 It~ '\ull\ersal' form, thf' respublzw , Gnell1zlUs treal~ succe~sl\ely of thc FamIly (rx II-VII), the plUvmCldl commumty (ex \III), collegza (ex IX), and the CZtltas (ex x) he dedarcs 'Fellov.shlp~' to he useful (ex IX, qu 2\ but regards them a~ pcnrm~lble only ex auctOTltate sll/lerlOTlI (Ibid qu 5) Koelllg begms hIS theory of thL Slatc by enumeratmg Famlllt~, collegia, cor/iOra ,md unrversltates among the comtll.uent elcmenb of the Respublzcn, and he then sketLhcs the proces~ of dc\clopment to""ard~ IIln('a~mglv hroader and hlghCl form~ of sonety (ACles dtsp I, 123-9, Theatrum /'olzt I, c I,
37~1).
The Idea of of the Rrspubltca Composlta
German lega/wrllers ll'lw largely follow the fedrral scheme 0/ A/thuslus
Werdenhagen start~ hiS classIficatIOn of societas humana (II, c 13) from the distInctIOn Letv.een 'particular' and 'ulllversal' ~oclety 'P~lltlculal' souety hedl" Ide~ mto the' ~Implc' SUCH: ty of the family commumty (cc 14-17), and' composite sOCIety', willch may be clther an exlended family-group (c. 18) or a 'FellowshIp' (c 19)' Under the head of 'ulllvr'I'>al ,>oClety', whIch IS also termed umversltas, he counts the VlCUS, pagus and cIVitas, but he thmks It a ffilsuse of language that lllStltutlOllS of higher educatIOn should be designated by tillS term (c. 20). He expres~ly \nsl~t~ that the 'prmupal cause' of every collegIUm IS the agrt'ement of ItS members, the' grant of a supenor' bemg the 'less prinCipal' (though still an mdispensable) cause (r. 19, &5). Bercknngcr (1, ( 17), in deahng wIth' the conjunction of persons and things in the family, college, corpus and universztQJ', begms With the Family (2) , he then deals successively with the' college', whlLh I~ pi oduced by the consensus coeuntlUm et magutratus (3-l:l), the corpus (9), and the unwersltas ( 10-11 )-mcludmg both the UniVersitas personarum (~ 12-17) and the UniversItas rerum (I e the terutory, & 18-21), finally, he trcats of,the union of both of these spenes of unwersztas In the ReJpublzca, which; he holds, may be eIther 'si~ple' or 'compound' ( 22-8). KJrchner, III treatmg of sodalttla, collegia and corpora (dlsp. XIV), regards
Notes to 15
279
all corporate bodies as havmg autonomy and JudiCial authonty over thclr own members, wIth a certam power of coerCIon and punIShment. In ~ I, htt d, he s~eaks of a 'conces~wn by the supreme power' as nt"cessary; but m htt. e he states that corporatIOns are advantageous to the State, and only a tyrant WIll ever suppr{'~s them entIrely-tl10ugh secret and nocturnal meetmg, are never to be' tokratrd ( 3) 41 Cf espeCIally Keckermann (I, c 15. PP 255-75), de speclall cura subdltorum collectlm consldfratorum He dlsbngUl,hes subdltorum communzo ex natura (I c. the FamIly) hom subdltorum comrnumo magIs e'f: znrtltuto ctvlll, though he admIts that commumty of the latter sort IS aho based partly on natural law Commumty by GvJ1lmtltutlOn may be eIther (I) 'more partIcular', e g. collegIUm. coctus, conventus, lynagOl(c and lodalltal, or (2) 'morc universal'. a~ In ant sort of collectlO plunum dWfTJl ItatUJ homtllurn 11l unum corpus et locum zn quo SInful habItant The latter SPf'c1('~-the terntonalcorporatlonor unzversltasmay bl:: either 'mdjOr' or 'mmor' The 'mmor' sort \5 the local commumty, whIch appear, as a UniversItas rustlca III Vl(lr Vel/Jaf!,ll, and as a unzversltas 0PPIdana vel urbana In thf' vanous sorts of town, The' maJor' sort of terntorIal corporatIOn IS an ana tomposcd or a number of rural and urban tommUnItIe" and such an area may be eIther angustwr (e g the' dI,>tnct, plcfecturC', barony. county') or lattor (e g tl](' 'pIOVIntt', duchy. lmgdom ') In ,pIte of thC' ,tIucturt' wInch he thu,> buIld" Kech.ermann rejccb the pnnople or hbt rty of a.,.,.ClatlOn" as beIng mcompallbk WIth the monarclntal prUH Ipk. Wht re 'colleg!'s have hbnty of meetmg', as the nobles have In Poland, It I, a su~e sIgn of the prc~ence oran~tocra(yor dcmotracy. The monarch cannot allow any as,o< liltlOn w~Ilch has not recenTd hI' coment, and he must pum,h 'C( Iet Ulllon~ '>l vcre]y, nor WIll he ever permIt Ill'> SUUjtcts to elect a corporatIOn CUI Ipse IlOll praeslt Jua aYdontate per jJersonam alzquam a se de/egatam Ill" wIll ab(~rcserYe t!w appomtment, or at any rate the confirmatulll, of the omeen, of 'colleges', slllce the' conshtutlOl1 and authonty of the Wlhllc college' res\de., III these ofu,('fs, and therefore the person apPollltmg or confiurung them' ha., also control over the constItutIOn and authonty of the whole college' Evt'n 1lI lepubh,s, he arguf'S, tIllS [nght ofappomtlllg oftonfil mmg the offi,e" of' ( olleges 'J IS adVISable (pp 26J-2) He treab the local commumty III the saInt way a, the' (ollege', vestlllg the sovereign \\lth the ordellng of ItS con,tIl "JOn, the appomtment of It, officers, and a perpetual tuttlary '>uperVI'lOn (r~ !bS sqq ). Schonborner adopt, a SimIlar view fIt' treats of the Family (I, c 10), collegta et corpora (c Il), U/ll1'enltatn ( .nd the CIUltas (c 13), but hke Keckermann hc allow~ t~e erectIOn of corporatlons only 'by the authonty of the ,overelgn', and he glYes the same adVIce to the sovereign, word for word, HI regard to [the appomtmcnt or confirmatIOn of] officers. The same hne I, taken in the tHatlS!' De statu potztzco seu cwzll hbrz rex, I, diSC 35-42. 42 Ked-.ermann (lac Cll) adopts .". IllS baSIS the conceptIOn of commumo. MatthIas (loe. ot) uses the Idea of the communzcatlO: produced by sonetas Schonborncr adopt, Althu,lUs' theoly of consoClatto and the commUlllCatlO rerum, operarum, Juris et benevolerzttae WhICh It produces (1, c. I I); but he regards thIS consoclatlO and commU/luat n a, creatmg a corpus mystlcum whIch IS hke the nalral ~odY-Instar umus homtnlJ est, ,!)usque perJonam repraesmtatand he avazls hllnse1f of thIS pomt of VICW to reproduce 11l e'f:tenso the whole of the Roman-law theory of corporatIons (1, c. 13). Bercknnger takes the same Ime as Schonborner. He uStS the idea of a
Keckermann on assoczatlons
[,,<
Prevalence
of Idea
if
Partnershlp
280
Gierke's Notes
Grotlus on assoclatlOlls
Grot/us on the majoTl!>'pTlllCiple
Grotlus on corporate ltabtll!>'for debt
Grotlus on the dellcts of corjJorate bodzes
'umon of minds, sen'lces, persons, thmgs and laws' (I, c. 17, 7) , the fiction of the ~Ingle personahty, combmed with the idea of the matenal idenuty of the Imwrrsllas wIth Its mdlvldual members ( 10), the traditiollll.l theolY of the nrgotza jUndlCa and the dehcts of corporations ( 12-17); and the customary dlstmcuon of the vanous speCies of public and common property (c 16, ~IS-33) 43. Afterward~, m hIS theory of contracts (n, c 12), he treats of socutas negotlatona (24) and soclrlaf navalw (2S), and devotts a whole chapter to foedera (c. IS), 44. Cf I, ( I, 3 a' socIety ....ithout inequahty' exists as betweenfratres, cwes, amUI, foederatl' an 'unequal society' a~ between pater et llben, domznus et serrl, rrx rt subdltl, Deus et hommes In the same way there are aho two sorts of justum-aequatorwm and reetoTlum 45 II, c 6, 4-8, III, C 20, S cf the passage's m nn 97 and 132 !o 14. 46. Cf supra, nn 57 and 66 to 14 47. Cf supra, n SI to 14 and pp 'j1-2sqq, With nn fJ7, 98, 99 48. Cf the deCISIve statement m II, C 'j, 17, quoted m n 74 to 14 Grotius proceed~ to discuss m detail a number of questions-the pos~iblhty of an equahty of"otes, m wInch case no decl'>IOn can be attamed [m matte'rs of policy), but m cnmmal proceedmgs acqUlttal muo.t toHm'v (& 19). the methods prescnbed bv Natural Law for arrivmg' at a decu,IOn when there are more than t.... o sententlae (& 19), the rule of /\~atural Law hy \\llIch IUS absentlllm accrfSczl znlerzm praesfl/Izbuf, while PO\IUVC' law oftcn requlles the pIe~ellce of two-thirds (&10), the' natural ordel ' among the rom, accordmg to the ages of the members (& 21). and the count III'S of a maJonty by the shares [bclongmg to the members] where a res (e g an mhentance or an estate) IS the ba\l'> of the sOCielas (~22) . 1,1} III, C 2, &I It IS tIue that the m<Jmben are re~poml1Jle for the sum mvolved m proportIOn to the)r ~hares, but they are r('~pon~lblc lion qua szngulz, sed qua jmrs Urllverrnrum As agamst t}1I~ rule of Natulal Law, the JUS gentzum lIobmlarzum may IIltroduce, and appears to haw> actually mtroduced, the rule that pro eo, quod debet jJrarstare clVllls ahqua soculas aut eJus caput, 'there IS a hen and oblIgatIOn' (sometIme\ prImary and sometlme~ ~econdary) 'on all the goods, corporeal and mcorporeal, of th(' per-,ons who are 111{ luded m ~uch a socIety or are ~ubJect to ItS head' (Ibid 2). Thf'ft:" I~ a n('ed for such a rule, smcc It I~ dIfficult to get at the Im!Jerantes, nOI doc~ It umtradlct Natural Law to ~uch an extent a~ to he madml>\lble. 50 Cf II, c 21, ~2-7. A commumty IS responsIble, plOperly ~peakll1g, only for Its own delicts, and thm it cannot be respolmble for a factum szngulorum, except a~ the result of It~ ownjJatlentla or rereptus (I e harboullng the person or persons concerned) Conversely, smguh are responsible for the offences of the UniVerSItas, and Iubdltl for thf' delIcts of the summa potestas, onIv III cases where they have II1culfed a Jomt re,ponslbl1lty by glvmg assent thereto or b} executing an unlawful command The rf'~ult~ [of a corporate delict] debcend, It IS true, from unwerSI tu smgulz, became ubI unwrrSl, lhl et fmgulz . unll'erSI non possunt m rz ex szngulzs qUlbusque constare, nam SzngUll qUIque congregatl, vel zn summam rejJU/atl, faczun/ umversos. But the mnocent mmonty must bl" treated gl"ntly m the matter of punishment, because, 111 spite of what has Just been saId, dlstznctae sunt poenae sznglLlo~um et UrllVersltatlS. There IS a..dlStmctzon, for Instance, between the death-penalty, as applIed to indIVIduals, and mars clVltalls, cum corpus CIVIle dusolVltur simJ1arly the enslave-
Notes to IS
28r
ment of mdlvlduals ddfers from the sermtus clVzlzs of the unlversztas or Its transformatIOn mto a mere proVince Similarly, again, the confiscatIOn of COlporate pro~rty IS somethmg different from the confiscauon of private property. It I~ thus unjust that mnocent mdlvlduals ~hould lo~e theu property through the delIct of a umversttas (cf also S I I, 17, 18) On the other hand, a 'consequenttalloss' may afTect mnocent mdlVlduals; Just a~ dllidren suffer from a confiscatIOn of property pronounced against their parent, so mdlvlduals sufler from the punishment> mfllcted on corporatIOns-sed ea tn re, quae ad zpsos non perltnel mSI per utl/venllatem 51. See the preceding note, and also nn 67, 70, 8g, go, 121 and 127 to 14 52. In trcatlllg of tlw que~tlOn raISed In II, C 21, 8-whether 'a penalty can bl" I"xac-tcd m every case for the tit'hct of a utl/verrztas'-GrotlUs argues that an affirmattvt answer appears to be mevltabll:', brcause quamdzu unwer;ltas durat, ~em cor/Jus esl. The true an~wer, howevcr, l~ m the negatIve. A dlStm< tlOn has to be drawn bt't\H'en attT1bute~ whICh are plcdlc-ated de umvenltale pnmo ac per se, ( g the posse~"lOn of an aeranum 01 of leges, and those which only Lelong to It de derIVatlOne a fm~ullS, e g the attnbutt's oflf'armng, t ouragc, or ment, for ~uch attllhutes prnnanly appertam to mdlvlduals, u/ ammum haben/zbus, quem ulllversltaj per se non habet In the latter casc, therefore, the ment d)~appears e.ttmctls ZlllS per quos ad utl/vewtatem mentum dedllcebalur, and what I> true of ml:.nt IS ahu trut' of [the 0ppo~lte of ment, Ie] a delwt whl( h mvolves a 6lenalty The pOSition IS dlfTerent, however, III regard to divine pUl1lshment, wIll< h ofI en Lome; upon a later generatIOn onl}. 5:1. HobbLs' theory of assoclatlO~, wilich IS only Illdlcated III the treatise De cwe, I~ developed m the Levtathan, where the whole of c 22 IS devot('d to It 54 Cf LeVIathan, L 22 and De ewe, cc 12-13 Hobbes compares corpora legltlma to the muscl('; of the hun\an body, and ll!eglilma to ItS wonns fHoLbes nmarb that III any cwnt 'til(' great number of corporatIOns' IS 'lIke worm~ III thp ('ntrall~ of a natural man' ] 55. Hobbe,>, 111 c 22 of the Levzathan, abo apphes thiS Idea to parhaments, wludl he rcgald~ a,> . regulal suLordmate ~ys,em;', witlI a personalIty of their own, wInch have been lI1stltut("d for .1 lllU1t("d time They can <4nh dISLU% proposals put befOle them by th(' Rl\lf'r, and they have no authonty othtr than gIVen by the terms of their S'I"":1mOnS, oth.. rwl~e there would be two powers III til(" Stall:' 56 Thl; IS the argument of the Levzathan, L. 22, but It already appears 111 the De (lve, L 5, 10 In ,uch a case [I (" 'he lOe of a claim by a ;ubordmate system agdlmt It; member~] the members may aho occasIOnally protest With SUCLess agam;t maYllhy-de<.lSlOns, but thu. I~ llladffill>,>ible m a sovereign assembly, where ~uLh a protest would bnng III questIOn the suprema J>otejtas Itse1f~ and where, apart from that, quzcquzdfit a summa potestate auctonbuj fit clVzbus smgulis el ommbus 57. In provinces and colonies he thinks a monarchkal constitution pre[('labIe, as even democlatu's generally recognISe Tradmg compames, on the other hand, are best managed by a roetus, With a light of votmg for all who contnbute money. Levzathan, c. ~2. 58. He sta.es a different pomt of View m the De ewe, (. 7, q14 DealIng With the question ~hether the 'person' of the State can Itself commit ~m, he concludes that m a monarchy the Ruler hunsclf commits a sm Ifhj: offends against Natural Law, qUia tn zpro voluntas cwzlzs eadem est cum naturah, wher("as
GrotlUj tends 10 resolve corporatIOns mlo zndIVzduals
Hobbes on corporatIOns Hobbes on Parltament
Hobbej on colomes and compames Hobbes 011 and dehcts of group;

J!TIS
Gierke's Notes
In a democracy or anstocracy the sin IS not that of the persona clVdlS, but of ClVes till quorum suffraglls decretum est-peccatum emm sequitur voluntatem naturalem et expressam, non polttlcam, quae est artzficlOsa. No questIon ofa delIctum [1 e. a legal offence, as dIstinct from sm or peccatum] can ever ansI" m thIs connectIon II I" In rrgard to the State], as It does In rrgard to S)'stemata subordmata The point IS SImply that peccatum, I e sm as dlstmct from delict, cannot be attnbuted to a persona cll'llls [a~ ,uch, and apart from the 'natural WIll' of It, bearer] 51). Hobbe> would regulate responsIbIlity for debts In Sys/emata mercatorum In a ,omewhat dIfferent way In such' systems' there should be an oblIgatIOn 'of each membtr severally to pay tilt' whole of the debt' to a thud partv, because that party knmv, notlung of an 'artIfiCIal person', sed jJersonas naturales eorum omnes obhgarz Slbz suppomt On the other hand a credItor who IS also a 'member of the System'-bemg, 1lI th,it capaCIty, a debtor"fmnself [and so unable to take actIOn ag~nn,tllldl\ Iduab wluch would also be actIOn aganu>t hlms("lf]-can only take a,tlOn aga1l1~t the ...y<;tem and Its common funds [In thl> latter ca,l , thel efore, the g('neral rule enuncIated III the text, that the system alone IS hable, apph('<; a\~o to systemata mercatorum] II the State, by vutue of It> supleme PO\\eI, demand5 money from sud1 a sy,tcm, the memher, must furm,h the mm demanded by mallllg proportiOnate contnbutlOm [I (" contnbutlons proportIonate to then . . harc<;l GO CJ e g Blf! mann's Dlls d" Jure jJrl11Clpa'IS, I, p 6, &10, MIChael, I, p 188, g . . qq , Cluten, II, p 10, ~3 and PP 35sqQ, ~(j-I5. EngclllIecht, 11, p 187, &~!)7sQq , ~molt Schutz, I, f'X I, th IG-I(j A dIfferent vIew appt'ar~ m V,urmst'T, Exerr lll, qu 2 and ~2 (the EmpIre Ib now only a name) . ef also Lmmaeus, VII, C I, IlO 32 (Roman EmplIf and German mondrehy have gradually merged to such an f'xtent quod nemo, m.ll Il/e qUI dwum dlOros reglt. dlSSol,'ere polen.! esl) t' Suarpz (Ill, I" 7, nos 1-11 and c 8) ""pre,,ly demes the emperOl's ImperIUm mundl even the Pope, accordmg to lll, c 6, has no such Imperzum, becau,e, apart from the State., of the Church, he ha, no 'dIrect tempOIal power' Cf also VasqUf'7, cc 8,20,21 601 Connanus (I, c 5, no... 1 and 4, and c 6, no, 2-3) hold... that JUs gentIUm Ib the produc t oj a .lonetas humlllw, 111 wInch the ongma\ umty of mankmd ha> contmurd to be pre.. erved even altCl Its dlvl.,lOn mto 'CIvIl sOClelIes', and m whIch a rehc of the old commumty of dll men thm pnslsts For ...umlar expre,slons cf Omphalu.>, I, c 38 and Vvmkltr, I, c 9 Grr gonus Thol (I, c 3, ~& I I sqq ) regards commUlzeJU\ gmllUm as the survIval of a cmtas mundana, WIth God for Itb kmg and all ,men for It" CItIzens, whICh In all other f("SprCls ha~ spltt Illto roelus el Cl1'I/ales parllcularer. Grvp)uander, In I2Sqq oj 1m De ClVllz fOclftate (pnnted III Arumacus, I, no. 6), speaks of a untversaln soclelas humana, cuJur vmculum est JUs naturate Cf ]ohanne, d Felde, J, c 1,9;:; Suarez (III, c. 2, no. 5, c 4, no 7, (" Ig, no 9) argues that III secular matters alzqua umtas ,tlll survIves from the l ongmal J umty of mankmd, so that men contmue to constitute a soczetas et commUntcatlO, and although unaquaeque CiVitas perfecta, respubllca, aut regnum, Sit In se commumtas perfecta et SUIS membrzs constam, mhtlomInus quaelzbet Illarum est etlam membrum atlquo mod6 hI/JUS unlVerSI thIS IS the baSIS of mtematIOnallaw Grotnn speaks of [States as] membra umus cor/loYls (II, c. 8, 26, c. J5, 5 and 12), of a SOCIetas humana (Ibid. c. 20, cf. c. 2 I, 3) ; and of JUS gentIum
Hobbes on the debts of groups
The Empzre a mere /lame
The ulea of
a socIetas gentIUm
Notes to 15
as securing property even to children and lunatics, personam t1lorum interIm quasI sustznente genere humano (IbId c 3, ~6). 62. Albehrus Genhhs (m hIs De Jure belh of 1588, pp. 11-13) refers the obhgatlon of JUs gentIUm to the fart that, although all peoples have never assembled [to enact it], quod sll,ccesswe ommbus placere vISum est, Id tOtlUS orbls decretumfuzsse eustlmatur. He adds Immo, ut rectlO CIVItatiS et leglsiatzo elt pener cIVltatlS rnaJorem partem, Ita orbls re~tzo est penes congregatzonem maJons partls orblS In the same way Vletona ~peaks of a human commonwealth, mdudmg all States as Its members, m whlrb maJonty-decislOns are vahd (ReI JII, nos 12 and 15) The Vmd r Tyr makes the umtv of humana societas the source of a nght and duty of nelghbourmg States to intervt'ne for the protcctlOn of oppressed subJec~ agamst a tyrant (qu IV, pp 348-58)-Just a~ (Ibid. pp 329-48) It makrs the con~eptlon of a smgle Church tlw JustlficatlOn of interventIOn agamst rehglOus opprCS,lOn Boxhom (I, c 2, ~3-8) regardsJur gmtlum as thc outcome of the unwenalls Respublzca omnzum homlllum 63. The Idea [of a natural commumty connectmg State~] IS absent III Bodm and 1m school In the VlCW ofHobbes, as we should cxpcct, thc natu! al conditIOn 0/ Statcs. lIkc the Pllllutive ~tate of natu! c among mdl\ Idual5, I~ a condluon of bellum Omll!/fm wntra omnes, and a real llltcrnational law is therefon' ah..olutt'ly Impos'olble 64, SUart'7 (Ioc (It) lays emphaSIS on the Id( a that It IS only part\( ular natIOns "Inch <tn' State.. WIth Ieg~latlVc pO\,er Thelc cannot, tht'lefOJt', be any leges avdes unwersales. common adht',lon to mternatlOnal law ~onstltute~ only a SOCIetas quasI Polltlca et moralls, and It IS only' 1Il a ,{'me' (allquo modo) that States are mtcmbers ofa'Ialger whol" Connanm al~o (Ioc. CIt) tt'rms the umvcr~al sOLlety only quaSI ommum Ilrbs et c!VltaJ, dnd mternauonal law only quasI 17/f cwzle 65. Cf Bodm (II, c 6, no 224 and c 7); AlthuslUS (Pollt c 17. ~ 25-13), Casmannus (c 66), HoenoIllu~ (dd 12 and 13), Grotlu~ (Ap%getlcus, P aII~, 1622, C I) See .1150 Bnt', Der Bundesstanl , pp 14,qQ and G J E~el~' rt'cent work on Die Lehre vom Staatenbunde nre~lau, 1910, pp lo~qq. 66 St'e abOve [vol IV of the Geno~,e'lsc!wftsrecht, not ht'Te translated], p. 274 no, 74 See abo Werdenhagcn ("'~, t 21' S16), on a fedt'Tatlon as a corJJus joederatorum, but not a re(publtca. r\ld1UslU~ (c 3'3. 122-36), on comltza soclOrum conjoederatorum, and Ar..~at J.. (Dc rep II, c. 4" ~ 2, S&22>qq.), on confoederatwnes arctlOres }Vhlch have the appcarance of a ResJ)ublua 67. In I, c 3, ~ 7 Grotms deab both wIth' umons' (whIch he knows onlv III the form ofper~onal UIuons), and With 'confederatIOns' (Staatenbunde) In II, cc 15-16, on the othtr hand, he deah only withfoedera or treatIes, whICh he diVides Illto I equal' and' unequal', ,uId he rt'mark~ m an earher passage (I, c 3. 21) that even an 'unf'qual treaty' dues not extmgUl~h soveIt'lgnty. Grotlu~ was the first thlllker to draw the contIast between umons and federatiom. d jurascht'k, Penonal and Real UnIOn, p 2, and Ebers, op Cit pp 17~qq 68 See Vlil-tona. Rei I, qu 5, no 8 and Ill, Vasquez, Controv 8,20,21, 27; Soto, IV, quo 4~ a 1-2, x, quo 3, a. I, Molma, II, d 21, LesslUs, II, C. 5 and III-IV; Suarez, I, c 7, no 5, C 8, no. 9, Ill, C 3, no. 8, ce 6-8; Contzen, II, C. 16 and VI, Claudius de Camlll, I, cc. 13 and 15; Menochius, Hlero-
Ideas of a world Commonwealth
No mternatzonahsm III Hobbes Suarez on mternatlOual soclery
Federal Idea;
Grotzus on umons and foedera
Cathohc theory of the Church as superIOr
Gierke~ s
Notes
politlca, I, C. I and II, cc. I sqq. Among the Monarchomachi, see Boucher, I, cc 5-8 and 18, and II, Rossaeus, LC 3-1 I; Mariana, I, cc. 8 and 10. See also PlghlUS (t 1542), Hlerarchlae eccleSlastlrae asrertw, C.logne, I 'is I (first pnnted 1538), Sanderus, De vlSlblil monarrhza Ecc/mae, ltbrl VIII, Louvain, 1571, Schultmg, Hlerarchlae anacT!lts, Cologne, 1604. 69. S{'c Bellannme, De membns eccleslae mllltantls, III, 6, De Summo Pontifice Thto1)1 rif ltb V, and De flOtestate summl PontificlS In rebus trmporaltbus adv. Barclatum, lIs potr~tas Rome, 1610, Molma, n, d 29, Suarcz, III, c 6; Barbosa on c 6, x, 1,13 [of Indlrl'cta the canon law I, GOllzall'z Teller on e- 6, x, I, 6, no 34: and c. 6, x, I, 33, nos. 14-19. A 'Imllar view IS already to b{' found In Soto, IV, qu I, a I. Of cour~e the th{'ory wluLh ascnb{'d to the Pope a direct pow{'r O\'l'r empelOr and lIng.. did not dl~appear: cf e g Restauru, Caldus In Tract UtrlUsque ]UTt.I, hVI, no. 30, quo 50, Marta, Tract dejllTlsdlrtlOne, MalnL, 1609 (esp I,CC 5,8, 17-26 and IV), Laymannoll c 34,x.I,6andc.6,Jt, 1,3'3 70 Cf Gn:'gonus Thol \'11, C 2, Tulde-n, De rel!.lmme CWIiI, I, LC 17-18, P Theory of de Mal ca, De concordia sacerdotll et ImjJerll sell de hbertatlbus eccleslae Ga/ilca/lae Its pant;' lzbn VIII, ed. J H Boehmer, L{'lpzlg and Frankfort, 1708 (boohs I-IV first with the printed at Pan~ In 1641, and the whole work m Baluze's <dltlOn of 1603), Stat~ esp II, ( I, where It IS argued that wlule there are potestates dlstmctae, there IS a SOCietas betwecn the two'" See aho supra [vol III of the GenoSfenfchajtsrecht], pp 813~qq 71 ~ee supra, vol 1II, pp 79l}sqq .. 7~ A completl' formulatIOn of thl~ I'Xple~~lOn IS to be found m B Carpzov, The Lutheran Junf/Jrlldentza ecelestastua seu conslstonalls In I, tit I, dcf 2, he descl1be~ the theo/)' 'double per'>on' of the te-rnlonal prince', Voho exer(I~n 'double power, ecck~la~llc.11 as well as polItu ai' m I, tIl I, deff I 1-12, he treats of the e-onsl~tonf" .1; Ius organs WI, lIt 3, def 27, Ill' explalll~ thc ordered co-operatIOn of the 'whole dlUrch' III the three ES~.ltes see aha Deczf 113. But a full elaboratIOn of the theory of thc eplswpal sy~lem may already be found In M Stephani, De )UTlJdlctlOne, Ill, pI, e-e- I and 15 In additIOn sec Omphalus, I, e 3 (thfTe- I~ a 'double polity', but the e(cl~la~tILal Lomrm~SlOn of the terntonal prInce comes from God). E Cothmann on Cod I, 2, qu./vand Cod I, 2, Arnisaeus, DeJure ma). II, c 6, De sub)ectzone et e~cmptzo~ clerzrorum, ctc. (publL~hed at Stras~burg In Ib35, but wntten In 1612); B Melszner, De leglbus, IV, s 2, Wurmser, Exerc V, qu 1-24, C]utcn, ill Blelmann, II, pp 18~qq, &5-8, LampadlUs, p I, S 16-29, Schutz, II, exerc. 14, pp. 911-1000, Knlpschlldt, II, c 3 and v, c 8 73. ThiS 'i1ew IS workcd out completely In e g. Zepper, De polztla EccleslZepper and astlca, Herborn, 1595 He treats 10 Book 1 of the subject-matter of ecc!eslothers on the a~tlcal administratIOn, in Book II of eccle~lastlcal office, 1Il Book III of church Calmnlst government Church government IS conducted by conventus III the four stages poltry (cc 1-7) of 'pre~byterzes', corwmtus claSSICI [or 'classes'], provlOClal synods and general synods (subject to the general prmclple that quae In uifenonbus conventlbus aut gradlbus decldl pOJsunt, ad ruperlOres devo/VI non debent), and also by lJlSltatlOnes (cc 8--11) But the ~ecular authority has a power of cooperatIOn, since maglstratus and mlnls!enum are two InstltutlOns of one and the same community, ordamed for the ChurLh by God (c 12). Compare also the doctrmc of the Vznd c. Tyr (qu. II, pp. 74sqq.) on theJPlIlt contract ... Cf. for thIS theory of'alhance', the work of Warburton, i3L~hop of Gloucester, on Tile A4/zance between Church and State, publIshed m 1736. It was a work which had some vogue m England durmg the eighteenth century.
NotestoI5
of people and kmg with God, the treatise DeJure mag. (qu. 10), Hotoman, Franeogallta (c. 22), and especially Althusius (c 8, 6--39, c. 9, 31 sqq. and c. 28). Cf also David Blondel, DeJure pleblS In regzmlne eccleszastzco, Pans, 1648, on the mallenable nghts of the congregatiOn, whidl arc nevcl transferred to the government None of thiS applIes, of course, to the body of opmiOn whIch IS based on th!" teachmg of ZwmglI. ZwmglI rejected entirely the conception of a splntual State' and a spIritual authonty', and ascnbed all power of eccle~Iashcal governm<.nt, a~ bemg external' m Its nature, to the ChnstIan State see hiS Works, I, pp 197 and 346 74. Cf Stephen ofWmchester, Oratw de vera oboedlentza (1536), m Golda~t [Monarchza Sanctl Romam Imperzzl, 1 pp 716-33, where It IS <.antended that RegeJ, Pnnczpes et Magls/ratus Chnftzam unusquzsque suae Eccleszae suplemum In terns c~ut sunt, et relzglOnem cum pnmls procurare debent Cf also Johannes Be<.klIl~av, De supremo et absoluto Regzr Imperw lzber unus, WIth a dedicatiOn to Hl'nry VIII, In Goldast, I, pp. 733-55, Waremund de Erenbergk, De regm subndllf (cc 1-2, pp 12-43), who argues for aJlIS maJertatzs, supremltatlS, JupenontatlS allsolu/ae potesta/IS eflam In rrcl~Slastuzs); Alexander Irvmf' (Scotu,), De Jure regm dlascepsts, Leyden, 16'l7, Keckermann, Polzt I, c 32, who holds that pmzcellJ habet IUS TlwJeltatzs eccleSiasticum, Ideoque Ilotestatem ordmandl ea quae ad cultum Del et veram relzgwnem tllimdam pertment, p 'j 16 FlldcllleKh, Potzt C 12, Hwenomus, Polzt 1, S43. v, 3-55, KlrdmeI, J}z~p VI, Graszwmkel, De Jure TIlaJ c 5 See also Carolus Molmaeu;, Comm. ad Codlcem, on Constzt Frzd Imp 'CHIll et Irrzta'. pp. 29-30, and Be~ld, DISS de mOJ sect 2 75. Sec abo\e (vol IV of the GenosJenschaftJreclzt, not here translated], p. 82, n 65, and cf Bt',nld, DISS. d; maJ sect 2, DlSs de Jure coll l 2, 5-6, DISS de Jure et dWlslOne rerum, l 5 76 See, on thc one >Ide, Hobbes, De cwe, c. 17 and Levzathan, l 39, and on tht' othe1, MIlton, Prose WorAs, II, pp ')2osqq Biermann (DlIs deJure prmc I, no 1b, :v sqq ) al~o combmes the dt'mand for freedom of comClence (26--B) WIth a general pOInt of VIew wIll( h IS , tcn Itonal '. 77 Fourth edItion, the Hague, 1661 j T,>l pnntcd at ParlS, 1648. 78 In thiS justIficatIOn of the maJoTuy-pnnciple (c. 4, 6) GrollUS, II 15 cunous to notIce, deserts the mdlvld":ll~tlc pomt of VIew on whllh he ~tnctly mSlsts, m tIns very conncction, In ~ll the re~t of hiS wlllmg, (cf supra, n. 48) 79. S<.e c. 4, 9-11 The regimen constltutwum ex consensu, whIch ISSUes m e g the mstltutlOn of the ~abbath and the appomtment of deacons, belon~ to the Church by Natural Law, data enzm UrtlVersltate, hoc zpsum JUS ex natura unwersltatls con/muo seqUItur PosItIve law may depnve the Church of particular nghts, but It may also confer upon I: an Imperzum summum or mfenus. 80 POSltlve law may confer upon pastors an zmperzum liferzus But III that case such zmpenum IS not the expressIOn of the sacra funetw they exerCl,>e--a funlhon which I~ ~ubject to the State only m the ordmary way It I~ tht outcome, and the expreSSIOn, of pl\lItKal authonty and therefore pastors, m so far as .hey exerCIse such an Impenum, supremarum potestalum Vlcam et delegati sunt. Cf c 2 and c 4, S 7-8, I I -12 and 14 81. Cf. c I. GrotlUS proceeds to deal m detail with the actlO~ of sovereIgnty upon the different areas of eccleSiastIcal lIfe, mamtaIlllng throughout
0 0
The terntoT/al theory
Umformlvor toleratlOll
GrotlUs' De Impello
286
Grotlus all the TIghts qfthe Sovereign Ol'er the Church
cxi~t,
Gierke's Notes
Antonius de Domlrlls
ConrlTll{ on Church and State
the pnndple that the indestructible rights of the sovereign continue stIll to by virtue of Natural Law, even where certain lights are delegated, by virtue of posItive law, to other eccleSiastIcal or secular '~bJects'. It depends on the will of the sovereign whether he admits e-o-operatlOn of the derg)' (c 6) or the partIcipation of synods (c. 7, I -8) In the excrclse of ee-cleslastlcal authonty, which mcludes the power of deudmg on doctnne (e 5) He can appOint the members of synods, 01 he can allow them to be elected With a rt"~ervalion m favour 01 hiS own Jur Imperil lTl electlOnem, he has the po\\er of summonmg, adJourmng and proroguing synods, and he possesses the right of (ollfirnllng, changmg or altenng all the acts of synods ( 7, S9- 1 7) EccleSIastical l(gl~latlOn belong~ to Inm, mcludmg the allowance and disallowance of confeSSIOn;, and the ordering of all thmgs ""hlch concern 'the pubhc exerCise of true rehgIOn', the Church has no right of legIslatIOn at allm VIrtue of the law of God, and so far a, It po>sessci .uch a right m virtue of poslU"e law, It possesses It, at the most, only cumulatwe et dependenler (c. 8) The sovereign alone has ecrleslasllcaJunsdlctlO, all)unsdlctlO of the clergy, ~o far a, It IS not leaHy 'Imple SllaslO et dtrectlO, IS b,l.(d on delegatIOn by the State, and I~ subJcct to ajlpellallO ab abusll (c 9) The wvereign has the tonhrmmg and dlsmlssmg of the holdel' of the nce-es~ary eedeslasue-al of1]tes (presbytenum and dW{(HlaIUl) , and wlul( the ollgmal appOintment 01 .ueh perwns belong. naturallter (though at the same tane mutabllzt(1) to the Church, the sovereign not 0111)' wntrols, all appomtments, but rn<ly aJ.,o make them 111m~clf (e- 10) He can <lIsa 1l1.~tltute ecc!e.la,llc.ll ofhces will( h arc not' ne('("ssary' (th(" offie("~ of bl'>hop and elder, c 11) he. rel<illl, ~upreme authollt)' over all boards or ca:.pOl atlOlls or per,on; 1Il poe.>IOII of ecde'I..J..~tIcal powers, sll1ce any wferlOr polfSl11.l exercbmg a JUS CIrca sacra nece<,.anl)' denve. such rIght from Illm, moreovt'r, tht' authonty exerCIsed bv.uch mfenol po""ers must be oreur,LScnbed, on ground, of expedlene-y, \\ Ithm tht' narrowest po,slble limit;, (( 1:.1) The only limIt tOJUS zmpem circa iacra admitted by GrotlUS, OthCl than the Impo"lblhty of controlling actus ZIlterm, I. thcJus dWl1lum, but even command., of the so"erelgn winch are contrary to the word of God oblIge the membCl, of the State-not mdeed to obey, but at any rate to abstam from adlve oppo'ltlOn (c. 3) 82. \'](:,ws ~mlliar to those of GrOl1m are to be found III Marcm AntolllU~ de Domulls, an archbIShop of Spalato \\ho went over to the Church of England (1560-16:.14) ~ee hiS De republica eccleswstzw llbn X (01 whIch Parll appeared 1Il London m 16 I 8, Part II In London III 1620, and Part III m Hanover m 1622), more espeCially Book v, wInch a~'lgn; to the Church only a potesll1.l slJZTltualll, and no vera praeftctura et JutzSdlctlO, ef also Book VI, cc 3-7. 83. For eonnng's vIews see the Corollanes to hIS tre<itiSe De constllutlOne eplscoporum Germanzae (Exerc. VII In l!.xerc de rep Germ. Imp ), of May 26, 1647. At-cording to the Third Corollary, Ecclesla zn hll~e terrzr vere non est aliqua recpublzca, sed natmam potzus habet collegzz zn republzca constztutz. Accordlllg to the Fourth, however, the' authonty and assent' of the Respublica are not needed omnz ex parte for an eccleSiastical society', as they are for the mshtution of other' colleges', and accordmg to the Fifth, the' uIllversal e-hurch " in virtue of natural law and the law of God, IS 'one bcjy' ln exactly the same sense as the whole of mankmd or Universitas omnium bonorum hommum. 84. P'Olltza eccleslastlca (Amsterdam, 1663sqq.), vols. I-IV.
Notes to 15
85 IbId Part I, Bk. I, hact I, c. I As dIstinct from the 'mystic and mvIsible Church', the' external Church' IS a 'vlslhle collection', whose' Immediatc fou~dJ.hon' l~ consensus muluw (I arbzlrwm exsertc dcclaratum corum quz coeunt In eecleszam, though 'dIvllle Institutton' hits 'ultImate foundatIOn' (4). The erectIOn of the rmntstry also depends un consent. 86 IbId 8 With stnct logiC, he rCJects the theory of canon law in regard to the dlstmctIOn of nclesla szmplex and ecclflza eollegzata all churche~ are 'collegIate', and none of them haS any advantage over any other (IbId r, r, tr I, c. 6). He also pronounces agamst all separate ecclesIastIC-al fellowshlp~ and fratenutles (n, IV, tr 4) 1'7 I. I, tr 2, cc 4--6. He descubes the pojmlus seu corpus eccleSiastIcum as t}l(' 'SubJ('ct' or ownCI of C( clcsla,tlcal authonty-not the' peopl(' alone', nor the c!('rgy alone, but the whole orgamscd e( dcsiastIcal people mc1udlng Its past.,l; 88 In I, I, tr 1, c. I, 8 VoetlU, dlstlngubhes four possIbllthes. (1) Identtty of the polttlcal WIth the eccleSiastIcal corfJus, as In Israel, England, SWItzcrland and UUleva, (2) the n cOF!:mtIon of the truc religtOn as the only pubhc rehgIon, With tolelattOn of dIfferent creed\ and conks~lOns, as In the Nt therland" (3) a hetaodox pohtlcal commumty, WIth toleratIOn of the hue Church, <1\ tn France, (4) a pohttcal commumty ho;ttle to the true Church, as 111 most countnes
IHI
r,
I, tf. ~,
The colltlglal thcory of Voetlus
Four pomble relatwns of Church and Slate
4-5
90 I, I, tr 2, cc. 2, 5, 7-15. II, Ill, tr I, cc 3-5. He speaks accordingly of a separate polztza eedeslastlea, dlstlTllta a polztza flolltlea et oeconomlca, I, I, tr 2, ( 7, 5 Ill. I, IV, tr 2, c r, 1-2 pxperty belongs to the 'vlSIbl(' church', because the' my;ttcal church' IS n t capable of holdmg plOperty It docs not bdong to jmuatl, nOt agam to e legza emea or the aeranum publIcum We may descnbc what belongs to the Church as bona Dez or fJatrzmomum ChrISti, became Chn~l I~ the Head of the' my\tlcal bodv' of wlll< h all behevers arc
membel~
112 Cf LudlOmaeu~ COlUlllUS, Papa UltraJLolmus, seu Myslerzurn zmqUllal1S redlJlum a dansszmo Vlro Gzsberto VoetlO, In opere Polz/zeae cccleszastlcac, London, 1&68 TillS work ~eeh to prove that the thepry ofVoetlu\, If It ;bows ~ore PlCty. also bettays mOle absurdity, than 'hat of the papalrst> Any theory v.Iucb a,.,umc; two ;epalate pov,ns IS llflrl" IslIan....
... The redl author of tillS work WdS L du !II" '..1 (1606---80), who after studymg medICine at Leyden ,md Cambndge v,a, L lOf, ",vr of AnCIent HIstory at Oxford from 1643 to 1660, ,IUd afl,rward., fned at WestmImter He aho wrote a work, In English, on The RIghts of Churches
Gierke's Notes
16. THE GENERAL THEORY OF THE GROUP (VERBANDSTHEORIE) IN NATURAL -LAW
1. See Spmoza, Tract pol. c. 3, I 1-18, Pufendorf, Elern. 24-6, DeJure States as moral jJersons nat. et gent 1I, c. 3, ~ 23, ThomasIUs, Instlt.Jur d!/!. I, C 2, IOI sqq., CundImg,Jus/lat and DIsc c I,54,HertIUs,Comm 1I,3,PP 2ISqq., Becmann, 1I1 a state of Med.L2;] H. Boehmer,P. gm c.2,3sqq.,P spec I,C g,22n 6 (who nature ~peaks of 'a state of nature or liberty', mvolving a spazes Jurlf naturae, a~ cxl5>tmg among f)('e and equal' moral per5>on;, '), Wolff. Instlt. I088sqq , Jus /lat IX, HemeceIUs, Elern I, C I, 2I-2, II, e. I, & I and 21, Danes, P spec. 790sqq , Ncttelbladt, S.VSI nat I405sqq (quaelzbet p,ens, qua talzs conslderata, est persona moralts In statu rlOturall vlVens, et Jilures gentes Sliqt plures lStzusmodl personae), Achenwall, II, 21 0-88 (Jus naturale e"{Ists among 'eternal sooetle-5', I e among gentes regarded as 'free moral pf'rsons') ,]ustI, Natur und Wesen, 222-3; Locke, II, c. 12, 1.1.5-6 [of the Second TreatlSC on Government] . 2 See the authoI'S work on Althu;,IUs, pp. 287sqQ and goosqq 3. On thiS pomt Spmoza (Tract theol -pol c 16 and Tract. pol c. '2) agIees entlrely WIth Hobbes 4 ThI;, IS the' VIl"W not only of Hobbes (see ~upra, p 85 and no 63 to 15), but also of ::'pmoza (Tract. theol-pol cc 16, 17,20 and Tract liol cc 3,4,5) 5. ThIS I;' the leason why the Cerrum wnters on natural law, though followmg Hobbes closely mother res'wcb, from the time of Pufl"ndorf onwaIds, always attack Ins eonceptlOTI of the 5>tate of natul(' Gundlmg comes nearest to Hobbes' conceptIOn (Jrts nat c g and Exerc 4, pp. 155 sqq ), but he arnves at totally dIffer< nt result;,. 6 At fir5>t ThomasIUs regarded all law as the' will' of a 'mlt'r '-treatmg Thomas IUS lex posltl1'a a~ the command of men, and lex naturalls as that of God, cf. on the InstltJur dl1' I,e I,28;,qq andAnnot adStrauchdzss I,pp 2sqq InhIs nature qf later days he contUlued to belIeve m the Imp'Tatlve characte'r of P05>ltlve Lou law, but mstead of descIIbing lex naturalzs as a dlVllle command with' external oblIgatIOn', he now defined 11 as merely a constlzum produans znterllam oblzgatlOrlem, or adze/amen ratlonlS, ofwhlCh God wa~ the ultimate author but not the legl5>lator cr. Fund JUT nat I, c. 5, '28-81. [Thl5> latc1 Vl(W mvolve.~ lum In some difficulties] MakIng a general diVISIOn of the normae wInch hmlt the actIOn of human Will mto the ethical, the polItlcal and the legal (Ibid. cc 1-4), he proceeds to apply d\l~ tripk dlVlSlon not only to posItive rule;" but also to the rules of nature (c 5, 58sqq ), but he fads to makf' any real dlstmctlOn between' Natural Law' proper and' natural ethIcs' or 'natural polItlcs', bt.cause he cannot prove that Natural Law [rt"garded as a 'counsel' or 'dictate of reason' J po5>sesses that attnbute of bemg cnforceable which he regards (c 7) as essentlal [to law proper]. [We may compare With Ius change of front m regard to Natural Law a 5>lUular change m regard to customary law] At first he regarded customary law a~ only cXI;,tmg m consequence of the sanctIOn of a sovereIgn (Inst.JUT dw. I, C. 2, 109) afterwards, he allowed that 1t possessed the character ot law even If It had no s~h sanctlon (e g m the case of customary law Inter gentes), but he qualIfied thl;, admiSSIOn by addIng that such cu~tomary law was a law w1thout oblzgatlo, cf Fund. I, c. 5,
Notes to 16
28 9
78, Addlt. ad Hubert Praelect. Inst. 1, 2, nos. 7 and 12, and DlSS. deJlJTe (;()flSIJtt. et obseroantUJ. 7 This f!lit of external obligatIOn is expressly emphasised. by Gundlmg, c. I, 47-So (obligatIO mterna et externa) , Beckl"r, 2, 5, Mueldener, I, I (exachsslme obllgans) ,]. H. Boehmer, I, P. gen. c. 1; Achenwall, Prol 9B sqq.,
8. Thi~ is the composite view which appears in Pufendorf; cr. De off. hom. et CIV. I, C 2 taken along WIth c 3, and J. n. et g. u, c. 3 taken along WIth I, c. 6 (God may be regarded as 'Sovereign', and lex naturalzs as HIS voLuntas, but apart from lex dlVma positIVa there is also a lex d,vma per Ipsam rerum natuTam homlnlbus promulgata). It was the onginal view of Thomaslus (supra, n. 6), It appears m Alberti, c. I; Cumberland, c. 5, Becker, 2-6; Mueldener, Pos I, ~ I (jus naturae est decretum voluntatlS d,Vlnae per ratlOnem promuLgatum) , JI. de Coccejl, Prodromus, S de Coccejl, De prmc Jur. nat UnlV, Tract Jur gent Parts 1 and II, Novum systema, I, 56.{}0 (' a command of nature and ItS author, declared to mankInd by reason'); Kestner, c. I; ]. H Boehmer, P. gen. c. I (a 'norm' which proceeds from the 'will' of God, but 'IS wntten m the hearts of men '), Schmler, 1, c I, S I, 3, Heinecclus, 1, C I, C. 3, Achenwall, Prol and I, 7sqq (a true law of God, m thcjunstic sense). 9 ThiS I~ a view whIch appears 1Il Horn, sanctltas dlVzna, and not voluntas d'Vlna, IS the source of natlial law, and human reason (as a rehc of man'& beIng ongmally In the Image of God) IS the means ofknowmg what it IS (II, C 2). The same VIew appear& In Huber; he holds that there can be law even Without a Superior or force (I, I, c ~2-5)' and he regaIds natural law as a command of reason Implantt'd m n by naturt', and by God as the author of nature (Ibid. c 2). A similar VI IS a1&o to be found In Cundhng (c. I, 4-1 I), and III LeIbmz, who denV natural law from the nature of God, and regards command and enforrt'ment as unessential (Op. IV, 3, pp. 270sqq., 27s sqq, 294sqq.). Cf also Wolff, Instlt. 39, 41, 67, and Montesquleu, EsPrit des LOIs, I, CC 1-2 (raISon primitIVe. les lOIS de la nature dtfrlvent unlquement de la constitution de notre ttre). 10 Cf e.g. Gundbng, c I, 47-50, S. de CoccejI, I, S6 (zdque metr. poenae); Achenwall, I, 44 (wb commmatlOnt 1'l!mae). II. When, as In GrotIus (Proleg no. II ~nd 1, c. I, 1O) and Ins precursors (on whom see the author's work on Althu:.lUs, p. 74), the assumption W3& made that there would be a Natural Law even if God did not eXISt, or If He were unjU&t, the logll.al consequence of tho.!' _,~umpt1on was the abandorung of any Idea that It was denved from the Will or the nature of God, and thiS IS what we find In ThomaslUs, Fund I, c 6 [cf. supra, n. 6] Mter Locke in England, and Rousseau and Ius successors m France, had contented themselves With merely Invokmg 'the order of nature', the connection of Natural Law With the Idea of God tended also to disappear among German thmkers, it IS not prc&ent, e g In JU&tI, Scheldemantd, Schlozer, Holfbauer or Flchte. Kant defimtely holds that the notion that God IS the author of the moral law is untenable, for Cod IS Hunself under that law, and He IS oblIged to act by its rules (Works, vu, pp. 8sqq.). 12. Cf. Leibmz, Nova methodus, ~74, and IntroductIon to the Cod. JUT gent. I, I I, ]~H. &ehmer, P. gen. c. I, Schmler, Jus pub! umv. I, c. I, S. 2, 1-2, Achenwall, Proteg. 98sqq., 1, 34sQQ, Fldlte, Works, Ill, pp. 14s sqq.
BTSD
I,h4
Natural Law
and human
Reason
Natural Law ratlonalzsed
Natural Law ucularlSed
19
Gierke's Notes
13. In regard to internatlOnallaw, there was unanimity on this point. So lUgflts under Natural Law far as the pubhc law of the State was concerned, all the theorists who recogmsed a nght of resIStance to any breach of Natural Law byJ;he soverrign sought to Justify their view by assuming a return to the state of nature, and therefore to the nght of self-help belong1Og to that state Cf. the author's work on Althusius, pp 314-5, and esp. Wolff. Pollt. 433sqq., Jus nat. VllI, 104Isqq., Instlt. 107gsqq.: Danes, 7IOsqq., Achenwall, I, 2, II, 20osqq., Scheldemantcl, 1II, pp. 364sqq., and also Rousseau, Ill, c 10. 14. For this reason Natural Law was declared to be a 'perfect law' With Natural Law as obligatory 'coerCive power' . cr. ThomaslUs, Instlt ,ur. dlV. I, C I, 9 103sqq , Gundlmg, I, C. I, 54; Achenwall, Proteg. g8sqq. and I, 34sqq , Wolff, Instlt. 80sqq. [One exct"ption was made], III regard to the relallon of the sovert"ign to 1m subjects, the opponents of any nght of resistance held that Natural Law had only a 'dlrectlvt" power' [over the sovereIgn], aQd thelefore only imposed an 'Imperfect obhgatlOn', but at the same hme tht"y dId not abandon the Idea that thIS unperfect obhgatlOn ""as areal legal obligatIOn cf Pufendorf,Elem.l,d.12,~6,J.11etg.YII,C.5,8,vlII,c I,ThomasIUS. loc. CIt 111-13, J H. Boehmer, P. jpec I, c 5, Ill, C I, Schmler, Y, c. 1. S I and C. 3, S. I; Krelttmavr, 32-5. 15. ThI~ Idea is defimtely formulatt"d 111 e g MevllIs, PTodromus, Ill, ~ 13, cf also MontesqUlcu, EspTlt dej lOLl, I, C 2. 16. Cf Pufendorf, De off hom et CIV 1, C. 3, J- 11 et g II, C 1, ThomaslUs, Inst. Jur dzv. 1, c 4, 54-72, Becmann, !l1ed c 2, Comp p Ib, HertlUs, Comm. I, I, pp. 61 sqq (de soclalztate pTlmo natuTalH lUTH pTlnClplO). Elem. I, s. 1; J. H. Boehmer, P gen c 1 Sl'e also MevlUS, IV, 3'), and Mueldt"ner, POS. 11, 91: and (to some extent) Fenel(~, C III and MontesqUleu. I, C 2 Sociahtas 17. ThomaslUs (Inst.JuT. dIe I, c. 4'1 expressly warm Ius reader~ agamst and SOCIetas confus1Og soclalltas and SOCietas As ag~.nst Hobbes and Sp1Ooza, thc advocates of SOClalltas contend that the statc of nature was a state of peace, but they admIt that thiS peace was unstable, and that It mIght at any momf'nt (as still happens between Statt"s) pa~~ Into a state ufwar. Cf Pufendorf, lac CIt., Ht"rtlUs, 11, 3, pp 2 I sqq , Thoma~lU~, Inst. JUT. dzv I, c 3J, 51 sqq. and c. 4, 54sqq. (later, however, 10 'Fund I, c '3.955, he state~ the VIew th"lt the state of nature was' nelthel a ~tate of war nur <l ~tate of peace, but a confused chao~', wlmh was hke war, yet not Without a tendency towards peace); J. G Boehmer, lac CIt 38 The transition from mere soaalitas to a defimte 'SOCiety' IS ascribed not to the operatIOn of nature, but to reason and free chOice, thiS IS tht VII'W of Pufendorf, HertlUs and Bermann (loc cit) Thf'~e th10kers also a~sume that there 1S no fOCUtas among States, cf. Becmann, lac Cit, and HertlUs, u. 3, pp 21 sqq A different VIew, however, appears In Huber (I, I, c. 5) and in MevlUS (Y. 5-9, 18, !20), but they both regard JUS gentIUm as Lemg ~omdh1l1g more than mere natural law. 18. The theory appears In Pufendorf, Herbus, Comm. II, 3, pp 2lsqq; Posltwe law Gundlmg, C I, 77-9 and c. 3, J. G. Boehmer, C. 2, 8sqq., and other based on NatuTal Law wnters. Cf also the view of Huber (I, I, c 3) that anythmg opposed to CIvil SOCIety cannot be Natural Law, because the desideTlum soaetalls IS natural. Strauch (Op. no 16, deJuTlS nat. et av. convenientia) goes stili further [In the way of connectmg natural and positive law]. 'PUTe' 19 Thus Mevius dIStinguIShes between JUS natural//.., pTimaevum and JUS naturale secundanum et voluntaTlUm The latter IS based on reason itself, and not natural taw and' SOCial' on the mere fact of agreement, butlts rules have to be determmed by the natural law
Notes to 16
29 1
principle of 'social conjunction' (v, 5-9). It is m this latter category that he places intematlonallaw, assummg the existence of a socIetas COl1UTlU1tlS inter omnes POPuloSfl(Ibld 18-20). HeinecClus admIts that natural law, in the narrower sense, refers only to free and equal individuals (I, C. I; D, C 1, l-IO), but he holds that Jus gentIum [as dIStinct from Natural Law m thIS narrower sense) IS l/JSum JUS naturale vItae hominum sociaii negotllsque sooetatum atque tntegrarum gentIum apphcatum (I, c. I, 21-22, Il, C 1,921). To Dafle~, the 'moral state ofrnan' IS eIther 'natural' or 'adventltlous'; and the' natural moral state', in turn, IS eIther' absolute' or 'condItional'. ProceedIng With Ius subdlvlSlons, he next lays It down that the absolute state of nature, which IS marked by 'hberty' and 'equahty', may b(" either a state of 'solitude' or of 'society', and, In the same way, the conditional state of .ature may be either 'non-s~cIal' or 'social'. FInally, he classifies the 'civil state' as belongmg to the last of these categorIes [I.e. it IS a <..ondltlonal state of nature of the SOCIal typeJ, while he regards the state of the relatIOns III winch States stand to one another [I e. the state of mternatIOnal rclallons] as a status naturallS absolutuJ SOClattS (ef Praecogn 11-28, P spec ~ 790sqq.). Nettelbladt dIvide.> the whole body of 'natural JUflsprudence' into that which is 'natural ~tnctly so called I and that which IS 'natural-social'. In hiS View, mternatlOnal law ~ a mixed body of law, composed both of leges gentIUm stncte naturales and of leges soczales-the reason bemg that the pure state of nature IS here modIfied by the eXIstence of a 'soCiety constituted by nature' among all peoples (~~1419~4) Achrnwall dlstmgUlshes between he JUS mere natural/!, which IS vahd m a state of nature, and theJus sOCiale na rale, wIuch IS vahd III a state of SOCIety, dnd mcludrs the law of the Family, he law of the State and Illternatlonal law At the same tIme, howev{"r, he holds that there IS .J. sense In which pure natural law IS Itself ~oclal, for tht"re IS a societas umversalts or Clvttas maxlmaWIth God as ItS natural sovereign, and all men as Its natural memberswhl( h lays down thiS JUS mere naturale, and thus creates an obhgatlOn of sOClablhty (ef Proleg 982--97, I, I, 43--1. fT I) Hoffbauer has a complicated scheme. (I' He starts from the exalted I~ea of a 'pure natural law ' which IS valid fvt all forms of' rational eXIStence'including even other forrru. than man, .! ~uch were known-and IS partly 'absolute' (pp. 64sqQ) and partly' condlt 1 onal' (pp. 70 sqq) (2) Descending 1Il the scale, ht" comes next L tn, applied Natural Law' of man (pp B6sqq.). (3) Here he dlstmgUtshes between an 'absolute' form (pp. 108sqq.) and a 'conditional' (pp 120sqq). (4) He then divides the conditional form of applied naturdl law mto the 'ul1lversal' (pp. I22sqq.) and the' particular' (pp. 155 ~qq.). (5) Fll1ally, he SUbdIVides the' particular condltlOnalform ofapphed natur.alla\. ' iUto the' extra-social' (pp IS6sqq) and the 'SOCIal' vaneties (pp. I86sqq). Only when he reaches thiS fifth and last stage in Ius process of classlncatlOn does socIety first appear in hiS scheme. A final reference may be made to Cumberland, c. 5 20. Gundling, for example (c 3, 11-60), begms With a prImitive state SOClev- as a1/ of perfect bbllJ'ty and equahty, .and explams all forms of connectlon between 'artifice' human beings as 1tavmg been Instituted by conscIOus agreement, m consequence of the discovenes made under the pressure of necessIty. He deSCribes the status clVillS accordmgly as a work of art and a status ;ttjiclosu.:;.
19-2
Gierke's Notes
Schrrner (I, C. I, S. I, 1-3) also assumes a state of nature in which free and equal individuals have no form of union; but he believes that the whole of mankind never hved, or could have lived, in a pure state of .ature at one and the same tune. 21. Locke (Second Treatise, II, c. 2) regards the state of nature as the state which eXisted previously to the erection of civil society, but he also regards it as a state wInch still exISts III the absence of clvd sOCiety. From the latter pomt of View, he depicts the state of nature as a relation of man to man such as still occurs to-day, e.g when a SWISS and a Red Indian meet m the backwoods of America ( 14) He also speaks, It is true, of' natural society'; but the only conclusIon he draws from that Idea IS that men have a negative duty not to disturb or oppress one another (4-5). That he does not assume the existence of any real commumty IS ~hown by hiS remarks about the substance of Natural Law, as ~omethmg older and higher than all 'soQloaI laws' (Ibid 6,C.2,6-13,C 3,16-21,C 5,25-51;c 4,~22-4). ASlmilar view IS to be found in Sidney, c. I, SS 2 and 9, C II, SS I and 2. 22. Rousseau has already attamed these Ideas m the DlScours of 1753, and repeats them m the Contrat SOCial [of 1762], I, C. I sqq He adml\';', mdeed, that the Family IS a natural socl/fli, but only until such time as the children are adults Filanglen saY~ much the samt' m the state of nature tht're was no inequalzty other than phySical, no law other than natural, no bonds other than those of fnendshlp, neces\ityand the family alas, that tlungs could not remam as they were (I, c I). See also Sieyes, I, pp 131 sqq and 205sqq 23 Thus JUSh (Die NatuT IJnd das w~en, S 1-18) begm~ With an anginal state of nature which was marked by h erty and equalzty-a state m '\\IhlCh men were half ammals, and had no n tural mstmct for SOCial life. Knowledge of the advantages of umon first I pelled them, after they had attamed some degree of reason, to erect some form of society At fil st, the eXIstence of such a ~oclCty imposed no hmlts on natural hberty, and even to-day that government IS stili the best which realzses the purpo~e of the State \<\ IIh the fewest pOSSible limitations upon natulal liberty. JUSti take, a similar lme III hiS Grundrzs:;. ( 5 ff). and he mterprets mternatlonal law III a correspondmg'sense (Ibid ~222-3). Fredenck the Great, wntmg m 1777, similarly assumes a pre-political conditIOn, With no sOCiete (Oeuvres, IX, p. 195). In the view of Krezttmayr (~2sqq ) the State I~ not based onJus naturale absolutum, It IS based on hIStOry, as a res mere factt ~cheldemantel (I, pp. 44sqq , 56sqq , 68sqq ) holds that the State IS not a nece~~lty of man's nature, and that the Law of Nature do~ not unpose upon him any bmdmg obhgatlOn to renounce hiS natural liberty. A. L. von Schlozer regards pnmltIve man as homo solttarzus, and treat~ all social institutions al> artifiCial mventlOns (pP 31 fl) Cf. also evan Schloze-f, DeJure suff 3 24 Grundlage des Naturrechts (I 79&--7), vol I, Introduction and pp 51 sqq (Works, 111, pp. 7~qq and 17-91), when' Flchte argues that the rule of Right, or law, IS deduced Without the aid of morahty, and yet Without any surrender of the umty of law and morahty That unity depends on the lIvmg self-consCiousness of the Ego The Ego IS one, but lD the form of subjective Instinct [Tneb] It produce~ morahty, while III the form of force (as a fact of &cht here 15 more than our Engh~h 'law' (I) hecau~e, on'Its 'obJective' SIde, It has a co~notatLOn of somethmg mhercntly 'right' and (2) because It Imphe~, & Its other or subJective' Side, the right of the mdlvldual.
Locke's slate qf noture
Rousseau's state of nature
PrimitIVe liberty as concewed by German thinkers
Fichu on the ollgin qf Right or law
Notes to 16
293
objective existence) it produces law. In all essentials, Fichte maintains his earlier theory of the OrIgin of the rule of Right in hlS later System tier Rechtslehre [lectures dehvered in 1812], printed in his Posthumous Works, u, Pp495 sqq 25. Works, nI, pp. 92sqq : cf. Posthumous Works, n, pp Soosqq. 26. Works, III, pp. 128sqq. the origmal rule of RIght is 'the absolute right of the personality to be nothIng but a cause m the world of thought', i.e. the nght of the absolute will, but the original fights of different persons cancel one another, unless each person hmlts himself. 27. Works, III, PP 92sqq. It is not an 'absolute', but a 'problematical' command. 28. Works, nI, pp. 92sqq., 14osqq., 166sqq. Subsequently, however, Fichte came to regard the eXistence of a legal commumty as an 'absolute law of abe reason' and' a necessity of thought', and he accordingly made the rule of Right issue in an obhgation to make and keep contracts. But he still continued to hold the firm conviction that' a state of law is never produced by mere nature ... without art and free Will, or without a contract' (Posthumous Works, II, pp. 495-500). 29. Works, III, pp. 137-49' Porthumous Works, II, p. 499. The Law of Nature is not law proper, inasmuch as the Ego IS absolute, Natural Law has no sanctIons other than loyalty and good faith, wInch he outSIde the bounds of law any fight of compulsl~ whIch each can exert upon ea(,h IS not enough [to constitute a genume legal sanchonl On the other hand Right or law which IS sanctIOned by the force of the State IS never Right unless It IS based on reason. Both propOSitIOns are ~erefore true. (I) that' all law IS purely the law of reason' and (2) that 'a law IS the law of the State'. 80. Cf. Works, VII, pp. 8sqq; nd see also, on the relatIOn of law to moralIty, pp I I sqq., 15sqq., 26sq . and 182~qq., in which a particularly strong emphasiS IS laid on external compulsIOn as the e~~entlal attrIbute of law 31. Works, VII, pp. 62sqq., 14-17, p. 131, 45. 32 Works, VI, pp. 320,415, VII, P 54, U, p. 130, 44, p. 107, 4J. Fichte also used thlS pflnclple In order to deduce from It a duty of States still hvmg m a state of nature (m their external rclarlons to one another) to form lome umon, cf. VI, pp 415sQq, VII, p. 169 &54, p. 168, 6J. 33. Works, VII, pp. 20,133: the wJ1\ "fthe ratIOnal mdlvidualls its own legislator, but when It proceeds to enact a law for Itself, It should always adopt a maxun which IS quahfied .(' b" unwersallaw. 34. Works, VI, pp 329,409, VII, p. 133, 47. 35. On the pOSItion of Right or law before the State eXIsts, see Works, VII, p 130, 44 On the State's oblIgatIOn to respect thelaw of Reason which IS given d prlOTt, see VI, pp 338, 413, VII, PP 34, 13 r. 45, p. 136, 49 On the mVlOlablhty of the prinCiples ofthe lIberty, equahty, and mdependence ofevery mdlvldual, and on the illegalIty of mstItubons (such as slavery, and also hereditary nobilIty) which are contrary to these pnnciples, see VI, pp 322Sqq, 4I6sqq , VII, pp. 34sqq., 147sqq. 36. See Pufendorf, De off. hom. et CtV. I, c. 12, 2-3, J n. et g IV, C. 4, I-I4, c. 5,'2-~; ThomaslUs,lnst.}ur. dtV. II, C. 9, S8-9S, Fund II, c 10, S-7;]. H. Boehmer, P. spec. II, c. 10, HemecClUS, I, c. 9; Wolff, Insht. 191: Nettelbladt, 208sqq.; Achenwall, I, 106-8, 116 (omnes 'es nullIUS,
Fzchte's later vuw II! law
Natural and posztwe law

In
Fuhte
Kant on law
Kant on the State and the law of Reason
Kant on
property
294
Gierke's Notes
usus omnium); Kant, VII, pp. 49, 57, 61, 66. (Kant accepts communio fundI origmarla, as a prmciple mvolving an original common ownenhip of the surface of the earth, but he does not believe in a communio primaeva" in the sense
SurvIVals
of a commurnty of property erected at a point of time and contractually established by the pooling of pnvate possessions) 37. See e g Pufendorf, y. n. d g. IV, ce. 4-6 and VlII, c. 5, 7, on the remnants of the ongmal community of property which may still be traced in the right of the State to ownerless thmgs and in Its domInium emlneTlS, Wolff, Insht. 30o--I2, on the continuance of 'pnmitlVe commumty' in regard to res usus Inrxhausll and the sea, and agam 10 the case ofJUS necessltalls andJus InnOXlae uludallS; and Nettelbladt, 471 sqq. 38 Wolff ( I94sqq ). though he has prf"vlOusly df"pIcted the onginal community of property as negalwa, sees no objectIOn to makmg pnvate property develop out of It by an act of dIViSIOn which IS duf" to supWVf"nmg needs, and is thus compatible With the'law of nature 39 Ac.cording to Locke (n, c. 5, 25-51) the mdIVldual may aCqUlre property by a legItimate tItle 10 the state of nature. Though all tlllngs are common, h(' has a pnvate nght In hiS person, and he may tIm' acqUlre thmgs [for hunselfby annexmg them to hiS person, Ie] by means of labour, which also mcludes occupatIOn No contract or law need prccede such acquisItIon; but hmlls arc set to the acquISItIOn ofpnvate property m VIrtue of Natural Law (I) by the measure of the mdIVlq,ual's own need, and (2) by the reqUirement that there shall be a supply of{'qual and equally good things for all (Locke thmks that thl';e conditIOns are satisfied so far as land I~ concerned.) 40 See He1OecClu5, I, c 9, Schmler, I ~. I, S. 2, 3, N ette1bladt, 215 sqq. ; Achenwall, I, I IOsqq (pnvate prop rty C()Ine~ mto eXistence by 'condmonal Natural Law' [d. n. 19 supra], 'rst by way of occupatIOn, and then m virtue of contracts). The French physlOLrats (Quesnay, McrClt'r de la Ibvl(:re, Dupont de Nemours and Turgot) an. espeually emphatic m proclalInmg the Ofl~m of private property in the state of nature, and the duty of the State to recogmse it In vutue of les lOIS nalurell,s de l'ordre socu~l, ef Rosch{'r'~ WlflhschaJtsgesc1!zchte, pp. 480sqq ,and Janet's Hlstolre de la Science polztzque, II, pp 684sqq. 41. Rousseau, Gontr soc. I, Go 9; but the theory already appears m the Dtscours [of 1753]' Rousseau, however, regard~ the e~tabhshmt'nt ofpnvatt' property by an act of approprIation m the state of nature as a u;urpauon, which lS only legItimised when, 10 the act of concludmg the SOCial contract, all men surrender to the sovereign all their belongmgs as well as their powers, and receIVe them back agam from the sovereign as legal possessIOns under the lunits dctenruned by the law of the community. 42. Justus Moser always treats property In land as the baSIS of perfect hberty: he regards land-owners as the 'onginal contractmg parties' of the State, and other owners as shareholders m the State-partnership (m which onginally the shares were only.shares In land, though later there came to be also shares m money); and he therefore considers them to be the only fully qualified Citizens (ef hlS PatrIOt. Phant. II, no. I, III, no 62, IV, no. 43). 43. Accordmg to Kant (Works, VII, pp. 53sqq. and 62sqq.) there IS already a real, If only proviSIOnal, meum and tuum in the state of-natu;e, which first acquires a title of prescription (pe:remptlo] and a guarantee in the civd state; also pp. 56sqq. and 64, on occupatIon as an original method of acqulsi-
of orrglnal
commumry
Locke on property
Gmeral VIew thai property IS pre-soCIal
Rousseau on property
Moser on property as the basIS of the State Kant on prlmlllVe property
cr.
Notes to 16
295
Property as State-ereated
tion (but one which only exists in so far as the possession thus acquired can be actually defended). 44. Thua Mevius (Prodromus, v, 42) denves pnvate property from an act of concession by a societas CWIIIS (under resel vation for cases in which the SOCIetas itselfis m need). Horn (ll, cc. 3-4 and 6) ascribes Its ongin to an act of dIStnbution by the sovereIgn, who has receIved authonty from God for that purpose [cf Paley, Prmclples of Moral and Political Philosophy, Book m, c. IV], and who contmues to enjoy a real' emment domain' Bossuet (I, art. 3, prop. 4) finds Its source m a creative art of the government; and Alberti (c. 7. 19) denves It from a dm'ct declaratIOn of will by the community, whIch at one and the ~ame time establIShes property and the limIts of property. 45. Pufendorf (lac. ot ) requires a pactum tacltum to bring private property into ewstence, and Cundlmg (c 3, 27-3I, 39-42, and c 20) makes dominium, lIke Imperium, ongmate IIi a 'pact' SImIlarly A. L von Schlozer argues (p 46, I 1) that rIghtful acqumtlOn of property fIrst becomes pOSSIble after Its orIgmal commuIllty has bt'"l"n abobshed by contract, for even ocrupatIon, and the approprIatIOn of dungs by labour, were only admItted as proper titles after other persons had' renounced their Jomt nght therem' (p 49) 46 Accordmg to the theory OrIginally developed by Flchte m his NaturTecht (Works, m, pp. 21~qq.), but also mamtamed m hlS later penod (Posthumous Works, pp 528sqq, SCI2sqq., 594sqq), property arIses from a contract of property, winch IS to be regarded a~ a part of the pohhral contract, and thu~ It becomeSfOSSIbh- only after the ongmal nght of each man to everythmg has been emoved bv an act of renunuatlOn. Even so, however, 'absolute' propert only eXlst5 III money and the value of money m exchange (m hIS Rech .chre Flchte mak{'s It also mclude house property), property m land shll remams subject to oblIgatIOns and lInutahons, and IS only a 'relatlVe' speCIes of property What IS true of the rIght to own land is aho twe of the rIght to pra('tJ~e trade and mdustry, and the Stale has therefore to dIstribute nghts ofpu,"umg trades among ItS members, and to orgamse theIr mdustry, In order to ~atISfy the claim whICh all men have to subSIstence ThIS constltutes tht t1a;r,> on wluch FIchu' subseqtfently erected (m 1800) hIS theory of Der ~esc!J ,Helle Handelsstaat (' the close Tradingstate'), WIth Its economIc omlllpoten rp Lcf W. Wallace, Leotures alld Essays, PP4 2 7 sqq.] 47. In Germany PraschlUs IS CO'- _;)1( IUS for hls advocacy of the fundamentally SOCIal character of Natural Law The pnmary prInCIple ofthat law, he holds, l~ love, and the greatest of the dutIes based on that prmnple IS devotion to others and espeCIally to the whole. SOCIety is God's Wlll It IS, even more than the mdivldual, the nurror of the Tnmty, and the aim of nature's plan IS not the mdIHJual, Lut SOCIety, cf g, add. tTiplex de VI et amplltudzne JurIS SOCtallS, p. 47. The VIew of PlaeClus (Book I) IS slmilar. Mevius (v, 4), Becker ( 5 and 12) and Alberti (r 2, 9 and c. 10, 1) also assume the eXIstence of an ongmal community, of whIch traces contmue shll to eXIst m CIVII socIety Accordll~ to Kestner, the source of Natural Law and society IS not SOClalltas or consensus, but 1I1e WIll of God (c I). Onginally there eXIsted a primItive sOCIetas humana whlch ('JOd had founded, the Imperzum m thlS society belonged to 'all manlund', and coerclOn was applied to misdoers by caettn collectwe
Property as based on contract
FIChte on property
Theorzes of
SOCIety as oTlglnal and
dIVine
296
Gierke's Notes
sumptl (c. 7, 2). Mter the dlSintegration of this unity the imperium, which lutherto belonged to all without dlStmctlOn " passed to the separate' societles' which were now established (c. 7, g). The two Coccejl (Henry and Samuel) sinularly reject the principle of 'sociahty', and base all social authonty on the power over mdivlduals onginally bestowed by God on the whole body ofmankind at large--a power which subsequently passed to separate peoples, when they arose, and from them in turn passed to theJr rulers Later, however, Samuel Cocceji developed the VICW that politICal authonty arises from the Impmum over its own members onginally bestowed by God on each family as a corpus-this Impmum bemg afterwards transferred. WIth the aId of God's mtervention, to the umon of heads of families, and then m turn from thIS umon to a Ruler (NoVllm syst. 280, 612-(3). In France we find Bossuet regardIng SOCltti as thefalt pnmttif, and -.:plaining the origm of dil'erses nations, as societls'ciVIles, by the human passion'! whIch led to the dlSmtegratlQn of the primitive fraternal union of all mankind (1, art 1-2). In England, we find FIlmer, m hIS Patnarcha, denvIng all social authonty from mhcrltance of the patna potestas bestowed by God upon Adam. 48. ThlS indiVIdualism appears m MevlUs (v, 23, 2')). AlbertI (loc. cit.) , IndlVldualum Kestner (op CIt g), S. Coccejl (Nov syst I1I,I99-207, where the theory In elghteenthof a contract IS adopted). Thomasius, m spIte oi'hls a.mmptIon that there century ongmaUy eXlSted, m statu mtegro, a commumty between God and man and a Germarry communIty of all men WIth one another, and that thIS double commumty was the source of a sOCIal law of natur~el' c. 2, 27-43 and 51-54), none the less applIes the mdIVldualIstic theory f contract in hlS Institutes of DIVine Law, and in Jus later wntmgs he drops is whole theory of the status wteger, on the ground that such a state is beyo d our knowledge. 49. LeibnIz denves the eXl~tence oflaw from the community, and regards El'en In all communitIes as orgamc parts of the Kmgdom of mmds 111 the Umverse Lelbm<. and at large, which constItutes a world-State under God's government (BruchWoif sttuk vom Naturrechl, 111 Guhrauer, t, pp 414~qq., and IntroductIOn to the Cod. dlpl JUT. gent, 111 Dutens' edlllon of Ius Works, IV, 3, pp. 287sQq) At the aame tIme he defines the State as a contractual assouallon (Caesar -Furst c. 10), he makes the baslS ofpumshment comlst m the promise made by each indIVIdual to observe laws and legal declSIons (Nov meth II, 19), and he regards conventlO populi as the source of the valIdity of all CIvIl law (IbId. ~ 71). The Ide.a ofsociety as somethll1g naturally gIven still survIves m the theory of Wolff, and It even leads hIm to think that peoples hvmg in a state of nature form a natural society, which, as CIVitas maxIma, po~sesses an Impmum unwersale (Insttt lOgO). But hIS whole argument proceed'!, none the less, on the assumptIOn of equal, free, and mdependent individuals (Instlt. 70 and 77; Jus nat t, 26sqQ ). 50. Esprit des lOIS, I, cc 1-3. Natural laws eXIst before man and before Indwulualum society: pure natural law is valId for un Homme auant l'etablusement des SOCltUS, of Montesand It produces, first the deSIre for peace, then the satIsfactIon of the needs quleu of sustenance, then the beginnings of connectIOn, and finally a dislr de VlVre en socittl. In socIety, because the feelmg ofweakness and equahty'd,sappears, wars anse, both within and WIthout, and these produce'on the one hand intemationallaw, and on the other a CIVIl law whIch varies consIderably [from one'state to another], according to CIrcumstances.
Notes to r6
51. See Moser's Osnabruck Htstory and his Patnom Fantasies: supra, n. 4 2 For his objectIOn to the law of Reason see esp. Patriot. Phant. IV, no. 3D, on the importaAt dIStinction between actual and formal law'. 52. Vieo starts from God and human nature: he believes that the primibve ideas of bonum and aequum continue to survIVe, even after the Fall, as ideas ofjustice and sociabIhty; and he regards utIlity not as the source, but only the occasion, of law and society. Ferguson, rejectmg the supposed statc of nature and the ongmal contracts, prcfers to take men a~ he finds them, 1 e as hving m sOCIety; and he regards SOCIal progress not as the OppOSIte of nature, but a, Ib consummation (Essay, I, c I) But he too is Inconsistent, and having rejected contract and a state of nature, he proceeds to ascnbe th(' hIst01Ical begmmng of SOCIety to the operation of two mstincts-the mstinct of affection whIch unites, and that ofmdeplndence whKh diVides (IbId. cc. 3-4) 53. Herder's Idem Z;UT GeschlChte der Menschke1.t, lX, c 4. 54. Cf supra, p. 46 and nn. 60 and 6 I to &14; Schmier, II, c. I, S 3, 1-3, Heincke, I, c 2, g-I 1. 55. Thu~ Bossuet (I, art 3, prop 1-6), m agrcement WIth Hobbes, holds that the State first come'S into existence through the complett> and Irrevocable subjectIOn of all mt>n to one sovereIgn, under the compulsIon of nature, prevIOusly there had only been an anarchIcal sort of multitude, whIch possessed no sovereIgnty befo~ thIS act of subJcctIon, Just as It possesses nont> afterwJ,rd~. Unlike Hobbes, however, he aSCrIbes the origm of sovereIgnty to the will of God, and not to a contractual act of surrender of rights. A sIDular VIew IS to be found m Fen~n, chap. VI. cf also AlbertI, c 14-, 3. 56. Horn, n, c. I for further detaIls see the author's work on Althusius, pp 70-7 1 " 57 Cf. supra, nn. 47-49 and 52-3 to thIS section. 58. Cf. supra, p. 60, Spinoza, TTact. theol -pol c. 16, Tract. pol. cc. 3-4, Gundhng, J.n c 35 and DISC. c 34 59. Cf supra, P 46, and n 63 to 14, Locke, II, c 7, B7-g (the SUTrt>nder by all of theIr natural nght to self-hdp, and the surrender of power to the communIty, constitute CIVIl SOCIety\ 'lnd al~o c. 12, SIdney, I, s. 10, II, ss. 4, 5 and 20 (all socIety IS constItute': by the fl ee assoclatlon of i~dI vlduals, who 'recede from theIr own n!<.llt'). 60. Cf. supra, p. 46, and n 63 to ~ '-t, Huber, I, 2, C. I , Pufendorf, ]. n et g. VII, CC. 2-3, De off. hom. et eIV T' r 6, Thomasius, Instlt JUT. dlV. III, c. 6, Hertius, Comm I, I, p. 28G, 1 ,Jonetas multoTum hommum mutulS eOTundem pactzs conjlata, et potestate lTlStructa), Becmann, cc 5-6; J.G Wachtef, OTlg p. 34 (CIVitas mhll allUd quam multltudo homznum mqjOTIS UtllltatlS et secuTltatlS gratia potentlas agendl suas TUJturales znVlcem Jungentlum ad pToducendam mutuam et communemfellcltatem);]. H. Boehmer, P. spec. I, c. I, HeinecClus, II, 14. IOgSqq , Wolff, Instlt 830, Ddnes, PTaecogn 24, P spec. 655 (tum voluntates tum VITes In unam transtulerunt personam vel physlcam vel moralem) , Nette1bladt, Syst nat 1 15, Achenwall, II, 2, 9, II, Kreittmayr, 2. 61. Contr soc. I, c 6 (1' allenatwn totale de chaque assocle avec tous dTOlls d toute 1a communauti), III, c. IB, IV. c. 2. 62. Contr 60C. II, C. 5. The mdividual, it is true, has no fight to commit SUIcide; but he has ! fight de TISquer sa vie POUT 1a conserver. On this prmcIple, we may say that the man who IS willIng to preserve his lIfe at the cost of others must also risk loomg It for thr- sake of others, if that be necess:ry. His
Vleo and Ferguson
Bossuct on the oTigm if the State
The commumty as a meTe agf?Tegate
Rousseau on punIShment
Gierke's Notes
hfe, after the conclusion of the contract, is no longer a simple bilrifait d~ la nature, malS un don constllutlonnel de l':Etat: the sovereign has now a share in deciding when It is to be sacrificed Thus even capital punillbment has a basiS In consent, though it IS also a sort of war against un ~nneml public. 68. Beccana, 2. In addition to the argument denved from the fact that sUIcide is wrong, Beccana also presses mto his service the assumption that the indiVidual, in entermg nVII sonety, deSired to incur the least pos81bl1" sacrIfice of hiS hberty State-power 64 Even Montesquieu hImSelf had suggt'sted no other way [of explaining social authority]. for accordmg to the Espnt des loIS (I, c 3) 10 reumon de a pool of mdwldual toutes les forces partleulzeres forme u qu'on oppelle l':Etat polltlqut ... les forces powers partlCullires TIe peuvent pas se reumr sans que toutes les volontes se reunlssent; 10 reumon de ees volontes est ee qu'on appelle l':Etat CIVil Similarly JUSh (Natur lind Wesm, ~73-6) contends that the actllf)f union m a moral body, which constitutes the moral basis of the State, depends on the umon ofmany wills in a single WilL and of all mdlvidual powers in a smgle power, thiS IS the dlffl;'rence between the State and thl;' state of naturl;'. m which each WIll stands by itself A. L von Schlozer (pp 63 sqq. and 93, I) and C von SchlozCT ( II) both InsiSt on the ong111 of the State m a unw VlTlum, which produce\ sooety. and a unw voluntatum, which crl;'ates authority Tlu State 65. Cf Justus :Moscr, PatrIOt Phant III, no '62, on 'pea~ant propertIes as a shareconsidered as a form of share-holdmg' All ClVt! socletIe~, he argue', are hke company share-compames' the cihzl;'n IS one v.ho I' a &hareholdl;'r OrIgmally there ""ere only shares 111 land [cf supra. n ~l subsequently, money-shares carne into eXistence also, and nowadays all c1ongmg-s, and even our bodies, are part of the capital. A slave [Knecht] I' man Without a 'share' m the State, and tht'refore v.lthout lo~se\ or proflt&. lut thiS contradILts rehglOll po more than It does to be m the East India Company without hold111g a share The basi, of CIVil souety IS an expH'S~ or tant contract of sOCiety bctween the aSSOCIated owners of land, who Ill"est their propertIes as whole or half or quarter shares, and a body of dlrccton IS lIlstltuted for the purpose ofkceplllg uP.and gettmg In the contrIbutIOns rf II, no II Compare also Sleye~ (1789), I, pp 283sqq and 445'qq IndIViduals constitute a natIOn, as shan-holders a company the artlve cItizens arc' the true shareholders in the great SOCIal undt'rtaklllg', and tht' pas'IVe CltlZt'ns (WIVes, children and foreigner&) arc only protc<tl;'d per~ons. Sleye& IS neVl;'r hred of repcatmg that political authority 1& '( onstltuted' by mdlviduals, and only by mdlViduals, and that the indiVidual WIll forms the only element m the general will (cf I, pp 145, 167,27,211, II, pp. 374~qq.). F u:htr' J earl; 66. In hIS Bettrage of 1793 [' ContnbutlOn to the judgment of public IndnlduallSm opmiOn on the French RrvolutlOn '], Flrhte denves the State, a~ he also derIves law, from the mdlVldual Will, smrc 'no man can rIghtfully be bound except byhlmst"lf' (Works, VI,pp 80sqq ,cr alsopp. 101, lOgsqq, J 15sqq.). In the same way he makes the begmmng of the State, under the regime of Natural Law, depend on contrarts, under which indiViduals agree to pool a part of their nghts-renouncmg the reSidue of tht"lr property in return for the guarantee of a fixed part, and pledgmg themselves to pay a fixed contrIbution to the protectmg authority (Works, In, p. 20t, cr. 1\, PP' IOgsqq. and m,'pp, 269sqq.). In his Grundzugen of 1804-5 ['The Charactenstlcs of the present Epoch']
Notes to 16
299
we find a change: the State is not to be interpreted, 'as if It were based on this or that set ofindividuals, or as if it were based on individuals at all, or composed of them' (Works, VII, p. 146). 67. See Kant's Rechtslehre, 47 (Works, VII, p. I3S), on 'the original contract by which all the members of a people (omnes ut sznguli) surrender their external lIberty, in order to receIVe It back agam at once as members of a commonwealth, i.e. of the people regarded as a State (unwersl)'. [Kant adds that the mdiVldual, by thIS seemmg surrender, 'has totally abandoned hIS WIld lawless freedom m order to hnd hIS e-Iltrrf' freedom agaIn undlffiini,hed in a lawful dependence, that IS, In a condItIon ofnght or law-undimInlshed, because this dependence sprmgs from hIS own leglSlative will'.] 68. ThiS is the theory whIch appears m Huber, I, 2, cc 1-2 (with a divlSion of the contract of aSSOCIation mto the three stages of a treaty of peace, umon of WIlls and the fonnatlOn of a constitutIOn, c I, I-IS), Becmann, c. 12, 4; J. H. Boehmer,,," c I; Wolff, Instzt. 972sqq., Jus nat. VIII, 4sqq., S CocceJI, Nov syst. III, ~6I2Sqq. and 6I6sqq ; Daries, P. spec. 659; Nettclbladt, II24sqq.; HeIncke, I, c 2, ISqq., Scheidemantel, I, pp. 63sqq. According to A L. von Schlozer, pp. 6'lsqq. and 73sqQ , the ciVIl SOClety estabhshed by the pactum umoms la~ts for centunes without any government, courts or cO("[ClOn, untIl dISturbances appear and the State IS erected by a pactum subJectzonzs, cf also pp. 95, 96 and '73sqq The dIstmctlOn between the two contract~ finds an echo also tIl J ush, Natur und Wesen, 2S-7 In Sidney (c I. ss. B, 10, II, ItJ, 20, C. II, SS 4. 5, 7, 20, 31, and c. III, ss. IB, 2'j, SI) and Locke (II, c 7, 87sqq , c B) the contract of sUbjectIOn recedes mto the bac.kground tIl COI'1panson WIth til(' contract of UIllon, but it IS b)O no means e-ntirdy abandoned [More exactly, we may say that Locke uses the conception of Trust, and not that of Contract, to explatIl 'subjectton', The trust I~ a conception peculiar, on the whole, to English law. In pnvate law [Prwatrecht] the trust means that A, as trustor, "ests nghts m E, as trustee-, for the benefit of C, as cestuz que trust or benefiCiary of the- trust In public law [Staatsrecht] , to wIuch J 0r)r,. may be saId to trallSfer the doctnne of trust, the People or ' Public' \which IS both the tru~tor am! the cestm que trust) arts m its capac.ity of tro.l,>tor by way of confe-rnng a fidUCiary power' on the legislature (whIch thu~ ~c('omes a trustee), for the benefit of itself, and all ItS members, m its other caj)~('1ty of cestUi que trust or be-nefiCIary of the trust. ThIs' trust' rOnCeptiOa pC. \ ;Ides Enghsh polItical thought m the eIghteenth century, not only is It applied internallv, to the relations between the PublIc and the 'supreme legIslature" It IS also applIed (for example by Burke) externally, to the relations between Great Bntam and India, whIch IS regarded as held m trust for the benefit of the people ofIndla A trust IS not a contract; ana th<- LI ustec does not enter mto relatIOns of contract WIth the trustor-or Wtth the benefiCIary. Roughly, he may be said to cOllSent to mcur a umlateral oblIgatIon-an oblIgation to the benefiCIary which, if it Implies the trustee's posseSSIOn and vmdicatlOll of nghts agamst other partIes on behalf of that benefiCiary, Imphes no nghts for the truitee himself on iiS own behalf If therefore polItlcal power be regarded a~ a trust, It follows that the Sovere-ign has not entered mto a contract With the People, or the People WIth him-whetller we regard the People as trustor Or as beneficiary of the trust. The trust, in its applIcatIOn to politics, ~eaves no
Kant bases
the State on
indiViduals
Th4 Two Contract th40ry
[Locke's theory of Trust]
300
Gierke's Notes
room for a 'contract of subjection'. We may say that Locke did not assign a contractual position to the sovereign because it would have given him nghts of his own, derived from the contract; and he had no wish to vest the sovereign WIth elgenes Recht. Conversely we may say that Hoboo (who equally leaves no room for a 'contract of subjection ') did not assign a contractual position to the People because it would have given d nghts of its own, and he had no ",ish to vest the People wIth eigenes Recht) 69. See Pufendorf, De oi!. hom. et CIV. 11, c. 6,] n et g. VII, CC. 2 and 5, 6. The same mtercalation of constitution-making appears in Thomasius, Inst. jur. dlV HI, C. 6, 29-31; Hertms, Elem. I, s. 3, De modo const. s. I, 2-3 ; Scllmier, I, c. 2, S. 4, 3; Kestner, c 7, 3, HemecClus, II, c 6, lOg-I2; Ickstatt, 11-1 2 70. This is the view of Achenwall, II, gI-8, and of Hoffbauer, pp 187207. ~ 71. See supra, p. 60 and n. 147 to 14. also Spmoza, Tract. theol.-pol c 16, Tract pol c 5, 6, cc. 6, 7, 26, c I I, 1-4. The same VIew appear~ m Houtuynus, Pol gen 9c;l, no. 14; Tltlus, Spec jur publ VII, e 7, & 17sqq. and note to Pufendorf, De off hom. et CIV II, C 6, 8, Gundhng,]. nat. c 35 and DISC. c 34, 1-17. The One 72. Cf. Rousseau, I, ce. 5--6 and III, cc. I, 16-18 (With the author's work Contrad on AlthuslUS, pp 1l6-17 and p 347 n 50) Fredenck the Great also beheves theory m a constituent pacte social (Oeuvres, lX, pp I95sllq , 205), and the Idea also appears in FilangIen, loc Cit, MO~f'r, Patnot Phant 11, nos. I and 62, and Sleyes, I, pp. 12gSqq The contractualthl'ory of Flchte also mpposes only a smgle contraLt of all men with all mea, the' contract of state-Citizenship'; but thiS smgle contract IS composed of three fundamental contracts-that of 'property', that of 'protectIOn', and that of 'assoCiation' (Works, III, pp. I sqq. and IgI sqq , but in the Posthumous Works, II, pp. 49c;lsqq., Ins view is somewhat different). Kant always mterprets the pohtIcal contract as a single pactum unlOms CHllllS, Works, VI, p 320, VII, p. 133 78. ThiS is the Ime of thought whlLh appears m Huber, 1,2, c I,!l I sqq. PsychologICal (meln's lunate Idea of Justice and hiS natural deslfe for sonety both Impel motwe arid hlII~ to the makmg of contracts, which remain, however, free acts of hiS Will); legal act Sdimler, I, c 2, s 4, 2 (although the natural m~tmLt for Lompany whIch God has planted m man Impels him towards socIety and the State, It IS a matter of liberty for the mdlVldual whether Inter soC/os sese Jungere et allCnum tmperlUm agnoscere velIt) S CocceJi, op. CIt. IJI, 200 (natura mediate per !Jacta); Heincke, I, c. I, I sqq. (Ipsa [ex naturallJ I~ the causa Impulsl1'a, and pactum the modus constltumdl) The same IS also tru.., to a certam extent, of Grotius, and of all the advocates of the theory of 'sociabIlity', cf. supra, n. 16 to thiS section. 74. See Hobbes, De eIVe, c I sqq , LeVIathan, cc. 13-14; Gundling, Jus nat c. 35, Duc c. 34. Kestner, c 7, ~3; Danes, 6;J7 SImilar Ideas are to be found m Thomasius, [nst.Jur dlV. Ill, C. I, ~4-1O and III, c. 6, 2-28 (it is not an tmpulsus Internus winch brmgs the State 1I1to bemg-for nature impels men, on the contrary, towards hberty and equahty-but the impulsus externus of fear and necessity) Compare Scheldemantel, I, pp. 44-70 (the foundation of States IS due 111 the first place to fear, and secondanly to other impulses leading men to renounce their natural libef1:y; b"ut It is only achieved by free legal action). J. H. 'Aoehmer (P. spec. I, c. I) thinks the pnmary cause of the foundmg
cr.
Notes to 16
31
of States to \)e Vlolentla lmproborum, first producing bands of robbers, and then associations for mutual defence agaInst these bands; and a simIlar Vlew occurs m Heinecei\ll!l, II, c. 6, IOo-4, and in Krelttmayr, 3 75. Thus Pufendorf regards sOClal,Uls as the primary and metus as the secondary cause of the foundmg of States, but he makes consent the constitutIve factor, J. n. et g. II, cc. 1-2, VIII, C. I, De off hom. et CIV. II, ce. I, 5 Cf. also Locke, n, c. 7, 87sqq and c. g. 76. Kant, Works, VI, pp 320,415, VII, pp. 54, 62sqq., 130, 162, 168. 77. Just as AlthuslUs had aheady InsISted (Pollt. c. I, 28-g) that union in a CIvIl SOCIety came about ultro cltroque, so the voluntary character of the conclUSIOn of a contract Ib strongly emphaSIsed, on the one hand by [the absolutists] Hobbes, Spmoza, Gundlmg, etc., and on the other by [the radIcals] SIdney, c II, S. 5, and Locke, 11, c. 8, 95 and gg. Wolff (Instlt 972) and Ac1enwall (n, 93) also speak of the liberum arbltnum whIch IS the deCISIVe factor m the foundation otsoClety. Pufendorf (J. n. et g. VII, C. 2, 7 and De off hom et ClV. II, C. 6, 7), SchmLer (see n 73 to this sectIOn) and many other wnters expressly reservt" the nght of every mdlvidual to stand aloof and remam m the state of nature. J H Boehmer defiles the' absolute necessLty' offormmg a State. Scheldemantel (I, pp. 68sqq ) thmks that the State IS not a nt'cesslty of human nature, and that the law of nature ImpoSCl> no mevItable duty of surrendering lIberty It is only m certam ClrCU1TLbtances that the State IS necessar~ Rous~eau (Contr. soc. I, c. 6) InsLStS even more upon hbcrty he goes to the length of proclalmmg (IbId IV, L 2) that I'assoClallon CIVIle est l' actf du monde Ie plus volontatre. the man who opposes It cannot be compelled to Join, but tle I~ itranger parmI le~ cltoyens. The same vLew recurs In Moser, A. L. von Schlozer and Sleyes, but l"Ichte goes furthest, holdmg that It IS mcollcelvable that there should ever be any other legIslator for ali mdlVldual than rus own WIll and hLs own delIberate and permanent purpose (Works, VI, pp. 80sqq. and 101), and that the conclUSIOn of the contract of State-cItizenshIp IS therefole purt>ly a matter of free WIll (Works, Ill, p. 201) 78 According to Hobbes, Becmann, Gundhng, etc., but equally also according to Rousseau (Contr. soc. I, c. 6'. an understandmg of the imROSsIbIhty of the state of nature precedes tlie formation of the contract~ In Spmoza (Tract theol.-pol C I b, Tract. pul. cc 3-4) reason takes a foremost place. In SIdney (II, s. 4), Locke (II, k. ;, 9), Wolff (Jus nat. VlII, I sqq.) and Achenwall (II, 93). a process of de!,h",atIon and reflectIOn, leadmg to a sense of the Ul1lIly of SOCIal hfe, IS sUlJpoSl-U. A. L. von Schlozer speaks of the State as 'mvented'. In Flchte and Kant reason rules m full sovereIgnty. 79. Cf supra, p. 105. 80 Cf supra, p. lob. 81 Cf. supra, pp. 106-107. 82. ThIS l~ an admISSIOn wruch appears in Huber, 1,2, C. I, 33-5 ('on OCcaSIOns '); Pufendorf, J n et g. VII, C. 2, S20 and De off. hom. et CIV II, c. 6, I3, TltlUS, Spec.JuT publ IV, c. 10, SS2sqq, VII, C. 7, 17sqq, and NOH'S to Pufendorf's De off. hom. et ClV II, C. 6, 8; Schmler, I, C 2, S. 4, 3, no 188, Locke, II, c. 8, 101-12, Hemck~, I, c 2, 2sqq ('as a rule'),]ustl, Natur und Wesen, ~27 (contracts, resolutions and decrees are not essentIal: rules came mto l:iemg afterwards, fOI the mOb! part gradually and taCItly). 88. Cf. Huber, I, C I, 14,-26, HertlUs, De modo const S I , 4-~, p. 28g; SIdney, c. 3, S. 31 (until coment IS there, the uruon only exists de facto),
General view that SOCiety IS the resul if a free legal act
The art a calculated act rif Teaso'l
if a taCIt
contract
The idea
Force and consent
302
Gierke's Notes
The contract
as 'an Idea of reason ,
Contract
renewed by
each
generatzon
Freedom to renounce the contract
Locke, II, c. 8, c. 17 (until that tune, there is only the appearance ofa society) ; Achenwall, II, 98. Of. also Rousseau, I, c. 3; Heinecciua, D, c. 6, 106 and 113, and A. L. von Schlozer, p. 95, 2. Scheldemantel, on the other hand (I, pp. 65sqq.) regards war, along with contract, as a nghtful way of foundmg a State, cf. also Daries, 659, and Hemcke, I, c. 2, 8. 84. Cf. Kant, Works, VI, pp. 329, 334, 416sqq., VlI, p. 133. A similar theory already appears in Becmazm, Compo p 13, and m Krelttmayr, 3. ThomaslUs also suggests (m Fund. 111, c. 6, 2-6) that, whatever he has laId down previou~ly, It IS non(" the less dubiOUS an constitutlo cwl/atu Ita subito et U110 quasi contln1l0 actufactafzm1t Smc(" these hnes wea' wnttcn th("re has been much discusslOn-ansmg from the contentIOn, advanced by several wnters, that the sonal contract was for Rous~eau too [as well as for Kant] only an 'Idea' [I e. onlynloglcal postulat(', and not an actual fact m t\me]-w,th regard to the extent to which the SOCIal contract had been alread)' mterpreted m a purely' Ideal' sense before the days of Kant. See, on thiS matter, the Addendum to p. 121 of tht' author's work on Althuslus (PP 347-50 of the 2nd and 3rd editIOns). 85. Cf supra, pp 47sqq., nn. 72-4 to 14, Pufendorf,.7 n. et g VII, C 2, 7 and 15, c. 5, 6. and De off hom et CIV 11, C 6. &7. 12; ThomaslU~, Inst. Jur dw. III, c 6, S64, Locke, n, c 8, 97sqq ; R<,usseau, IV. c 2, Hoffbauer, P24 86. The question IS ra15t:d most vigorously by FKhte. Works, III, pp. 16, 164, I 78sqq , 184~qq. 87. Pufendorf (} n. et g. VlI, C 2, 20 and De off hom et C/u II, c G, 13) regards subjectIon as mcumbent ''dthout any questIOn on lat('r generatIOns, and It 11> only the subjectIOn of fr('sh Immigrants whlch he refers to a, 'taCit pact' conduded at the trrne of their entry mto the country The same VIew occurs m HertlUs, De modo const ~. I, S 7-8, and m TltlUS, lac CIt. Locke, on the other hand, rejects the Idea that descendants are bound by the aCl of their ancestors, and he a~sumcs a free aLt of agreement With the State, at the time of conllng of age, whICh IS evidenced by remammg m the country (n, c. 8, 113-22). :'Iffillarly Rousseau wntes (lV, c. 2), quand l'Etat est lnstltui, Le consentement est dans La resldeme. Cf. Hoffbauer, pp. 18g and 242sqq. 88. Pufendorf, Schmter. Locke, Rousseau and other wnters, who expressly emphasIse the nght of mdlvlduals to kel"p aloof from contracts and to remam m the state ofnature, none the le~s admit that when once accessIOn has been expressly or taCItly declared, it IS bindmg for hfe (supra, nn. 73, 77 and 78). Rousseau (Ill, c 18) argues that It 15 only the sovereIgn commumty which can at any tlffie annul the contract. Fichte, however, argues that not only can a ciVil sOCiety itself alter ItS constltuuon at any tlffie m spIte of any proVISIOn 10 the contract to the opposite effect (Works, VI, pp. 103sqq), but each indiVIdual can also secede from the SOCIety at any tune by virtue of hIS own free 10abenable WIll, smce it IS the' inalIenable nght of man to annul hIS contracts, even by umlateral act, as soon as he Wills to do so' (pp. II5sqQ and 159). In th~ same way a number of persom have the like right, and if they exerClle It, their relations to the State are thenceforth only relatIOns of natural law, so that they can conclude' a new civic contract, and are thUll able to erect a 'State WIthIn the
Notes to 16
33
Stat(" at will (ibId. pp. I48sqq , the famous example of such a procedure gIVon bJll-'Fichte is the 'Europt"an State' of the Jews, but' partIal' examples whIch he cites are the army, the nobIhty and the hIerarchy) 80. Mter Althusius had generalised the theory of a socIal contract [I.e. Contract applied it to all forms of assoCIatIOn], m a radIC'al sense, and after GrotlUs the basis had accepted thIs generalisatIOn wIth some modIficatIons, and Hobbes had qf all Incorporated It mto hIS absolutist sy~tem (supra, 15, pp. 62-92), the assocuztlons thmkers who succeeded them-PufendorJ: ThomaslUs, ]. H. Boehmer, Wolff, Danes, Nettelbladt, Achenwall, Hoffbauer, etc -contmued to follow thIs lme of thought. We mmt admIt one exceptIOn. Rousseau's conceptIOn of the polttical contI act [as the one and only contract] leaves no room whatsoever for other forms of SOCIal contract ["~'1ultmg m SOCietIes other than the State] 90 ~e below. [GIerke's reference IS perhaps to the mtended sectIon, whIch was never wrItten, on die A1JrporatlOnstlzeorze 1m hlrchenrecht As hb work stands, there 1'1 only a shght reference to the Church at the end of 18, p. Ig8.J In. To meet the case of the FamIly, a c<1tegory of' necessary ~ocletles' The FamIly wa~ often added to the category of 'voluntary SOCIeties' In whIch the t:ltatl' as based on and the Church were both mcluded <.J e g Danes, ~549, Nt"ttelbladt, contract 11 332; Achenv.aU, II, 9 Many thmkers also mduded the societas gentium among the nCLeSSar) ~OCle14le~ whIch were not dependent for theIr ongm 011 an act of WIll cf ThomaslUs, Imt. JUT dw. 1lI, C I, S4~qq , and Dalles, 11 549 But the dIfficulty of ascnhmg the ollgm of the FamIly.as~oClauoll. hke that of otheI a~so( latIons, to an a<.t of (ontrad, was often qUlctly evaded, and WIthout further ado contract was declared to be the onc and only sourcc of all form~ of soual obligatlon-d. Hoffbauer, p. 187, C von Schlo~r, 3, Fichte, I-VOTAJ, VI, Pl'. 80sqq Wolff takes tins hne (Instlt 836), but he prudently mentlOm quasI-contract m addItIon to contra I t proper 92. ThomaslUs (In.lt Jur dw III, e 1, 4- 1O) , ~chmler (1, c 2, s., 1-3), Tlzcorzes of Gundhng (c 3,111149-53 and cc. 26~qq.), and other wnters ~tIllcontillue to the Family treat societas pauma and soczetas Tluptzalls as brmg both eq ually non-contractual societIcs, whIle they regard sOCietas hertltS l the '~oclet) , of master and ~er~ant -the trurd of the three mb-group" wll1ch together constItute the Faml1yJ as denved from contraLl But Gundlm[: ;:(1ds that the authonty of the father and that of the husband are not true form- )f ImpeTlUm. Locke (u, c. 6, SS52-76) Icgards OJ.!, p"L"rnal authonty-whKh he holds, however, to be a matter of duty rather than of lIght-as belongmg to the state of nature Rousseau (I, c 2) pronounces the FUIlllly to be the oldest and the only natural socIety, but he argues that It contlllues to be natural only untIl the <-hildren have come of age, and that after that tIme It depends, hke other SOCIetIes, purely on contract. Most of the wnters on natural law speufically mclude marriage among the soczetates voluntanlU! cr. e.g. Danes, 549, Nettclbladt, 333, Achenwall, II, S42-52 TI115 vIew 18 expressed most vIgorously by W. von Humboldt (p 121), and he drd\\-~ from It the conclUSIOn that rnarnage should be lieely dIssoluble, the same conclUSIon a,Epears ill Hofibauer, pp 209-12. 93. Such 1heoc~l1calas~umptIOns are to be- found III Plasc!llUS, PlaeClm, TheocratiC H. CocceJI and the earher wOIk.~ ofS CoC'ceJI, d supra, n 47 TheL are also views of to be found III l"ilmer (who denves all authOrIty from the patern\l power the ongm of the Slate
Gierke's Notes
bestowed directly by God upon Adam), in Bossuet (I. art. 3, prop. 4); and in Fenelon (c. v and conclus. I). F. C. von Moser, in 0ppoSltion to the 'dreams' of a social contract. also appeals to the idea of the diGine origin of the State (Neues patTlot. ArchlV. vol. I) ; for an attack on his view see A. L. von Schlozer. Anhang. pp. 173sqq. 94. Horn attacks both the conceptions of contract. He attacks the conHum's ception of the contractual foundation of human society [the GesfllschaJtsver. atttUk on trag]. on the ground that men had never hved in Isolation and had never the Sonal come together for the first time to make such a contract (I. c. 4, 3-6). and ContrtUt he attacks the conceptIOn of the d~nvatlOn ofpohtlcal authonty from an act of contractual devolution [the HerrscllaJtsvertragJ-whether such devolutIOn be regarded as made by tlle commumty (n, c. I. 17-18). or by mdIvlduals (ibid. Ig)--<ln the ground that there IS no commumty dlstmct from the aggregatIOn of mdlvlduals, and that indIViduals had never posses~<ci a sove relgnty to devolve. He declares not orily the theones of Barclay. Salmasius and GrotlUs, but also that of Hobbes, to be revolutionary, and a danger to the State, smce every pactum made by men can also be unmade Just as he rejects the SOCial contract as an explanation of the State's ongin, so he rejects military fOlce (ibid c 13), natural evolution ( 14). theJus naturale et gentIUm (IS), and mcemtas et mdzgmtla (16). 95. Horn admits that the C\Vltas IS constituted' by nature' alone, but he HIS View of holds that the respubltca, which presupposes '~,)esty', non natura constllultur authoTlty (I. c. 4, 3-6) God HlmselflS the 'sole and uruque and direct cause of as gzvm majesty', by commumcatmg a part of HIS own authonty to the monarch by God and thus appomtlng hun 'vicar ofGod ' (n, c I, 4-I2). Conquest. electIOn, heredItary successIOn, and even actual appomtment and mvestIture, are only modi consequendl, and they are destitute of constitutive or creative power(Ibld 13-21).. In the same way the authonty of the husband does not ?epend on any 'devolutIOn' by the Wife, sed quampTimum nub It. maTitus a Deo COTlSequztur potestatem In uxorem (IbId. Ig) 96. Horn, III, c un. 1-5. True, genume 'majesty' never exlS~ In are Yet he admits publIc, because such majesty can only be the 'work of Almighty God'. The secular subjection of ll1dIviduals III a republIcan State IS lImIted to the extent of authority In their COIL~ent. there IS no 'emlllent domalll', and capItal pumshment IS Republics properly speakmg excluded. But by 'pacts and conventlOllS' formed III lntitation of monarchy somethmg like subjection IS attallled m a republic, quoad e.fficaaam communIS utllltatlS. A substitute IS ultimately found even lor 'emment domain' , as a result of the soczetas ommum bonorum mto whIch the CItIZens of a repubhc enter;t and capztal pumshment Itsclf is made pOSSIble by treatment of the cnminal as an em'my and by the assumption of a prevIOus act of consent to Its Inflicuon. 97. ThiS reVival of a phtiosophical theory of the natural ongm of the State appears espeCIally among polItICal thInkers WIth an ArlStotehan tend I.e they are ways of acqumng an authonty already eXlstmg, because already constituted by God, but they do not cause ~uch authonty to exist, or constllute it as such. t In a monarchy, the State's nght of 'emment domam " whlC.h enables It to expropnate land for a publtc purpose, IS due to the fact that the Ii mg, as God's Hear, possesses God's final ownershIp. In a republtc, the'" &tate may still expropnate land, but Its nght depends on the fact that the cItIZens have lormed themselvh mto a company and made that company the final owner of the land.
Notes to 16
ency. cf. the author's work on AlthuSIUS, p. 100 n. 68, Boecler, I, c. I; Knichen, I, c I, tho 2, c. 8, tho 2, Rachehus, I, tit. 12, 2 and tItt. 14-3 I. 98. PartIoularly by VICO and Ferguson (n. 52 supra). 99. ThIs IS the case WIth Lelbm.G (supra, n .10) and Montesquleu (supra, n.5I) Even Herder (op. CIt. pp 210-22) does not ehmmate contract altogether It IS only the' first cla~s, that of natural governments', whJch, m hIS VIew, depends upon the natural order of the famIly the' second class' IS composed of commuIlltles based on 'contract or commIssIOn', and the 'thIrd cla&s' consIsts 'of heredltal y governments over men', whIch arise from war and force, but ale legah,ed by a 'tacIt contract'. 100. Such moderate Oppo&!t!on IS to bc found mJu&tI (supra, n. 82). 101. Hume (Essays, II, 6) argues that the duty of obedIence to the State cannot be based on a foundatIOn of contract, because the extinct prOlTIlSe of our anc~tor, no longer bmds u, to-day, and the assumptIon that all were born free, and only became membds of the :,tate by VIrtue of theIr own promise, IS lontradIcted by expcnencc. As a matter of fact, every man feels hImself obhged "'Ithout further questIOn, and hI, lemammg m the countly does not depend on hIS fn,e chOIce, and cannot therefore be 1l1terpfLted as an act of consent The real legal ground of the duty of obedIence IS the fact that we feel It to be a duty to obey, when once our pnmItlve Instmcts of dl&obedlCnce and ambItIOn have been modIfIed by a growmg rccogllltlOn that It I' IInpos,lble for soul:ty to endure "'Ithout obedIence (pp 269-303). But Hume regard, tht. makmg of an ongmal contI ad, WIth a provlSlon lor reSIstance, as an actual fact True ",e pos,ess no documents to attc:.t the fact, became the contract was malic m the ",oods, before the dIScovery of wntmg, and It wa. not wntten on parchment or the bark of trees. But we may read It m the nature of man, SlIlce the .urr('nder of our natural hberty m favo~r of our fellow& could only come about by voluntary chOICe, and the begmIllngs of a government LOuld not an&e m the absence of consent (pp. 266-9). Cf ai.o Essays, II, 2. 102 ThIS conceptIon of the purpose of the State appear& mo.t definItely in Hobbes and the absolutIsts who adopted hI' Hews, d supra, nn. 74 and 78. It al>o appeals 1Il RoU&seau, who \1, c 6) regard, the fundament:!l problem as bemg 'to find a form of assoCI,' lIOn qUi difende et protege de toufe la fane commune la personne et les bLCn~ de rl'aque assocIe, WIthout aboh~lung the h berty and eq ualIty of all' . see the auth". ';; work on AlthUSIUS, p. 345, n. 47, and see al~o p. I 13 mfra. 103 Thl, proposItIOn [that thc P' " p, '< "f the State determmes the extent of ItS authonty] wa~ never contested by the absolutlsts, It IS the baSIS of thc deductions of Spmo.Ga (Tract. theol -pol. cc. 16-17 and 20), and It IS employed by Rousseau (I, c 6, n, c 4). It IS expre,sly formulated by a number of "'nters-e.g HertlUs, De modo const s. I, 6 (the Cltuen> are not ab,olutely bound, clther to one another 0r tl the Ruler, but only quatenus ad finem SOCIetatIS obtmendum expedlt, smce It IS not to be supposed that any further oblIgatIOn has been mtended), J. H Boehmer, P. spec I, C 5, 20-30, Wolff, Instlt. g80, Jus nat VIII, g35, 37, Pol. 215, Locke, II, c 9, 131, Achenwall, n, 10, 98; Danes, g26 and 780-9 (m all States, eertam 'naturallllIllt~' on polItIcal authonty flow fronI the scopus CIVItatIS the.e are the only hm'ts wh~h exISt m a CIVlta.! nece~sana, but lmllte~ P~t1tll may al>o eXIst In addItIOn m a ClVltas voluntana), Beccaoa; ~tmayr, S 1-2, Scheldemantel, III, pp. 330sqq. '- ~
Even Herder uses the Idea of Contract
Hume on the SOCial

Contr~t
Rousseau's VIew rif the purpose of the State
rif the State

lzmlted by lis end
The power
i:.;
BTSU
20
Gierke's Notes
Even lhe absolutzsts admzt lzmzts Oil the State
104. Cf. Leviathan, c. 21, on the matters which m their naturt" are not subject to thc authOrIty of the State, see also cc. 17-19,21,24,20 and De ewe, cc. 5-7, 14 MevlUs (Prodromus, VI, I sqq ) IS hkc Hob~es m holdIng that men have submitted everythmg to the State-IncludIng even the rIghts which they hold by nature-and that no man. therefore, can mvoke the law of nature agaInst the State. But ht' recogmses that the dIctates of)us naturale and)us dwmum in regard to the rIghts of the IndivIdual are objective hmlts on the exercise of authonty by the State. A similar View, though It rests on a dzfkrent basiS, I; to be found m Horn, II, C 2, 10 and c. 12, 2-13, Bossuet, VI, a 2 and VIIl, a 2, h~nelon, ~ XI 105. Spmoza regards each mdivldual a; havmg translened all his power, and thereby omne)us Sllum, to the commUiuty, wluch thus posses;es ab;olutc power over all men Tract thcol -j)ol. ~ 10, Tract. pol cc. 3-4. But the authonty of the State IS limited, none the k;,>, by the natUlal law of ItS own power It cannot really Issue arry cc1mmand, nor can the subject really tramfel everythlllg, inasmuch as he n("ces~anly remams a man, and there!olc a bemg who IS spiritually and morally free. More e~peclalli, the Individual resenes for lumsclf the power of tlllnk111g what he hkes, and of expre,smg hiS 0plmons orally and 1I1 ""lltIng But when' the pOW!'1 of the State end;, ItS nght also ends, and reason, which alway; con;lders It- own mter!',t, Impels the State accordmgly to hmltltself: III order that It may not suller the loss of It; power, and thus of It; nght, through.;r!';lstance In tillS way the State attams a recogmtlOn of the 'dictate of rca;on'-that It> true object I; not dommatlOn, but lIberty cf Tract theol-pol CT 16-17 and 20, Tract pol. c 3, ~ 5~1, c. 4, 4, c 5, S \-7 [It wOClld thus seem to follow that ~pmolla IS not, after all, one of the' absolutbt; ., a'> haS been suggested prevlOu;ly ] The reader 1\ referred, for an account of the views reLently expr('s~('d by Menzel [Wandlungen In der StaatJLehre Sjnno::;a'J, Stuttgart, 18qBJ, ""hICh to some extent diverge lrom those stated here, to the Addenda to the author'~ work on AlthuslU~ [2nd edition], pp 3J:2~qq, nn 39-41, and p 'H6 n 49. and also to the Addenda to the grd editIOn, nn 54-7 [The Engh,>h reader may be aho referred to Dufl~ 7 he Moral and Pohilcal I dras eif Spmo:;.a ] 106. Contr SOL I, C. 6 (l' alienatIOn totale de chague a ISOl Ie avec tous drozts tl toute La tommunaute) , cf also e 7 107 Ibid II, c 7. Although there can be no legal hmll; upon the sovereign power of the SOCIal body 0\('1 ItS members, there arc Illhercnt lImits ansmg from the very nature of the general Will, of winch all mdlvldual Wills are part, and which Lan only Will what IS equal and Just for all. Absolute as the ;overelgn may be, It can never r!'ally burden one subJcct male heavily than another, parce qu'alors l' aj[atre der/mant IJartuullere mn POUVOLT n'est plus competent, and thu; the mdlvldual, In the last resort, has not made any real alIenatIOn, but rather an advalllagcou~ exchange, receiving baek for what he has given a greater secunty of hi; lIberty, hl~ equahty and hl~ bfe This IS not logic; and It IS m vam that Rousseau tne~ to shelter hllI1M:lf, m a footnote, from a charge of lllogicahty The reader IS referred, for an account of the vigorous controversy which has an;en recently 1Il regard to RoU!>seau'; attitude to the theory of the nghts of man, to the Addenda to the author's work on Althus\U; [2nd editIOn 1, p 347 n 50, and to the Addenda to the 3rd editIOn, n. 63. " 108 Sleyes expressly say~ that soclehes only eXist for the sake of mdlVlduals,-and that the happiness of mdlvlduals IS the only object of the SOCial
Spzno::a on the State's lzmztJ
Rousseau on the TIghts if man
Notes to J 6
state: Works, II, p. 32, J, pp 4 J7, 431. But the purpose of the State IS al~o (If only ImplIcitly) made to COnsist m the happiness of mdlVIduals, when It IS defined b1 HertlUs (s. J, I) as tranquIl/a et beala vita, or by Wachter (p. 34) as mutua et commums [eltcilas, or by \\-olff (Instzt. 972 and Jus nat. vrn, J4) as .lufficlentla VItae, tranqUll/ltas et sccunta.l There IS less of an mdlvldua1lstlc hnge 1D the formula ofJ ustI (Natur und Wesen, 30-44.). He makes 'the common happmess of the whole State' the object of commonwealths and their sovereign law (though he adds that, sovereign as It may be, It can never warrant any action that IS unjust m Itself): he regards lIberty, secunly and mterna 1 ~trength as the mam elements of this happmess, but otherwIse h(' leaves each people free to determme the particular objects of Its own 1Ife. But even Justi adds that lhe 'common happIncss' conslsls pre-emmently III the happme55 of the subjects, and secondanly In that oj the Ruler A L von Schlozer (pp 17 ff) dlSt!;IgUishes between (I) the jim.l negatIVus of the Stale, which IS lImited to securmg and proteetmg, as agamst fellownhzem, alIens and natural cause~, til(' four kmd~ of property (m a man's pelson, hiS possessIOns. hIS honour and lus relIgIOn), and (2) the fines POSItIVI, whICh come to be added With the development of cIVIlIsatIOn, and arc directed to the ad,anc.ement of prospenty, populatIOn and enlightenment (ef p. 93, ~ I) 109 The purpose of t~e State IS defined by Kestner (Co 7, 4 and 17sqq) as)ll.ltltza colenda, by S de CocceJl (Nov syst 280 and 613), a. difmslO Junum nngulorum, by Heme( cms ( 107), as secuntas CI<ilUm, by Danes (Praecogn 24 and P SPfC &&656 a~d 661-6), as sewntas, by Hoffbauer (pp 236"qq), as legal secunly, by Scheldemantel (I, p. 70), as 'the attamment of mternal and external se( unty by means of umted resources'; by Klem (1'1, pp 5'Jsqq), as 'protectIOn ofsocial lIfe'. In Filanglen (r, cc. 1-[2) the purpose IS cOIIServa;:lOne e tranqulllttd III MerCier de la RIViere, Turgot and the other Phy;'lOciats, It I. lzbert! et sflrete of person and property III Hume (E'.lSays, II, no 3) It IS Simply Justrce, and Kmg, Parliament, mmlsters and the rest-mcIudmg even the dergy-properly eXIst only m order to support thc twelvc Jurymcn 110 Locke (II, c g, 123-31), follo\\"lg thIS Idea of 'msurance', dcme;, any other purpose to the State than tlmt of guaranteelllg natural nghts, partrcularly the nght~ of' 11 berty and plOperty' In the tlIeory of W von Humboldt t hr '.IIal object of human eXistence I> the development of perwnalrty (pp. 9~q4) The Slate IS only a means for attalllmg that secunly of It~ otlzens, and thereby that' conscIOusness of legal freedom', which are the mdI'pensable conditIOns of such development (PP J6sqq) Securrty has to be attamed both m regard to enemies WIthout Ipp 47sqq) and between the citizens themselves (pp. 53sqq.), and therefore the legitImate actlvilies of the State are confined entirely to ([) the enactmg of admmistratIve, CIVil and cnmmal law, (2) Junsdl( tlon, (3) thc care of nllllors and lunatics, and (4) the prOVISIOn of the meam necessary for mamtalmng tlIe structure of the State (pp. IOlr-77) Conversely, the makmg of any prOVlSlon for the common good (1)11. 44~qq ), and any attempt to mfluenee educatIOn, r~glOn or moral Improvement (pp. 61 ;,qq ), are mJunous. Kant goes furthest of all III the 1ImitatIOns whrc.h he as'lgns to the purposes of the State. It IS confined to realIsmg the Idea of Right or law.(Works, 'vi, p. 322 and VII, p. 130), and that realIsatIOn must be attained WIthout
20-2
Salus pub1lca as consisting In the happiness of Indzvlduals
Defimtwns
if the State'.l
J)urpose
The State as an Insurance .lOClety
Gierke's Notes
reference to the consequences of good or bad which follow [I.e. the Idea of Impersonal Right must be calned mto effect regardkss of Its effect on the Good of persons], cf VI, pp 338,446, VII, p. \')0. Kant ex~ressly attacks the Idea of the' welfare-State '-i e. the State directed to the well-bemg of Its members-unless such well-beIng or happmef>s be understood only to mean a condition III which the constItutIOn IS m the greatut pOSSIble harmony With the pnnClples of Right, or unless, again, a law WhICh [unmediatcly] al1lli> at some form of happmess (e.g. opulence) IS only mtended to serve [ultimately] ar. a mf'ans of securing a sy~tem of RIght, espeCIally against external enennes; cf VI, pp 330sqq., VII, p. 136. III Cf e.g. Locke, II, c. 9, 13I and c II, 134sQQ, Wolf!: Instlt. 74, Sle'yCS, I, p. 417, II, pp 3sqq. and 374sqq., Kant, VI, p 417, VII, P34 112. ThiS theory [of a dlStmction between' cIvIl' and' naturr I' nghts1 Natural as IS already Imphed III advance by all tlie doctnnes 1Il wInch. from the Middle opposed to Age;, onwards, the law of nature IS exalted above the StatL, <ind It playf> ell'll Tights an Important part m the thought of e.g. AlthuMu~ ami GrotlU~ But It was only during the reactIOn agamH J lobbes' attempt to anmhllate the Idea of the natural rIghts of man that It was formulated a~ an exphclt theory. Ilubel wa, partie ulady resp0lli>lble for the developmtnt of a formal theOl y of the nghts (of person, property, hberty of thought and freedom to follow the dJVme commands) M-IJJcJJ mllSI be re.:,erved m ~11 Jormo, oj Slate Jor I1Je mdlVldual, by means of the necessary artlcles m the contract [01 governmelltJ, and are thus removed from the control of the sovereign. d De Cll'. I, 2, cc. 3-5 and I, 3, c 4 Pufendorf aho re~rves for the mdlvldual, as a man and as a utJzen, natmal nghts which, though they arc Imperfectly protected as agamst the sovereign, are still mdestructlble Elem I, d. 12, 6, J. n et g I, C I, cc. 8-9, De off. hom CIClV. II, C. 5, C 9, 4, c 1 I. HertJus argve51f1 the same sense, De modo canst S I, 6, and Schmlf'r devotes a detailed expOSitIOn to the theory, III, c. 3 and v, C. 2, s. I. 113. Cf Thomar.lUs, Inst!t JUT. dw I, C. I, 114sqQ and rund. I, l.. 5, Thomaszus IISqq., where a clear dlstlnl..tlOIl IS first drawn [before he come;, to the on lzberty p~rucular questIOn of liberty of conscience] (I) between)us connalum and JUS of consCIence acqulS!tum, and (2) between the 'subJective' Side 01 any body oflaw [law or 'Right' as expre;,sed m the nghu. of 'SubJectf>' or pl'rsons] and ItS objective Side [law or 'nght' as expressed externally m a concrete body of rules] ~ee also J. H. Boehmer, P. spec. I, c 5 and III, Cc 1-2, and Gundlmg, C I, SS5 I - 62 . 11:1.. Locke, II, c. II, cf abo ~Idney, I, Sf> I() and II and II, ss. 4 and 20. The r.ame view appears III the French physlOCl"ats. 115. The mam object of Wolff's enqulnes mto the extent to whlCh the Wolff on onguw.llaw of nature IS either over-lldden by Ihe contracts wInch form the natural Tights State, or sull contmues to preserve ItS vahdlty, IS Simply to attam a baSI;' for dlvldmg the nghts and duties ofpohtlcal man ItitO those which are acqUired and tho;,e whICh are umate. The conciuslOn wInch he attains IS that the mdlvldual retam~ the sovereIgnty he enjoyed In the state ofnature, m regard to all actlOlli> which the pohllcal authonty IS not warranted by Its purpose 1Il regulatIng, but he also VIndicates the IIIvlOlabihty of those' ar,,'";ulred' fights wInch are so much bound up With man's bemg that he cannot be dcpnved of theIl'. Irnt!l. 68sqq., 980, Jus nat. 1, S26sqq. and VIII, 35 and 47; Pol. 2 I 5 and 433.
Notes to J 6
116. Cf. e.g. Daries, P. spec. 7 10-46 (Jura nafuralta absoluta) ; Nettelbladt, 143sqq, 193sQq, 1[27, 1[34-42 (there are obltgatlones connatae as well as contractae, ana Jura connata as well as quaeslta) , Achenwall, I, 63-86, rr, ~ I 1 and 98-108, KrelUmayr, 32sqQ , Sci ll:'ldemantel , rrr, pp. 17 2-343. See also Turgot, art. FondatlOn, 6, p 75 les cltoyens ont des drolts et des devoirs sacres pour Ie corps mime de la societe. Compare also Blackstone, Comm I, c. I, pp 124sqq. [where Blackstone dIstIngUishes 'absolute' rights from those whIch are' social and relative '] Montesquleu, It IS true, assIgns to the State the object of reahsmg as far as pos~lbk the spiritual and economic hberty of the mdlvldual (cf. l:'.g XII, cc l-i8, XIII, ce. 12 and 14, xx, c 8, XXIII, xxv, cc. 9-13), but In attackIng slavery he merely uses the Idea ofth.. Inahenablhty ofhberty (xv, cc 1-(8). [In other words, he speaks of hberty as achIeved by the State, but at the same tm~ regards It as mdependent of the State.] Just! also ( 18) pronounces that gtlvernment to be the best whIch hmits 'natural hbcrty' as hule as possible and Yl:'t succeeds m achlevmg the purpose of the Statl:'. 11 7. ThIS is especially true of Sleyes, whosl:' Reconnaissance et e~pos!tlOn des drOlts de l'homme et cltoyen, ofJuly 1789 (I, PP 427sqq ), form~ the ba~ls of the pubhc DcclaratlOn of the Rights of Man (I, pp 413sqQ). Along With freedom, whICh the citizens brmg With them as their mahenable right mto the soual state (II. pp 3sqq ),~le makes property, 'that God of all legislation' (II, p 35), mVlOlable by the State cf also II, pp 374~qq * In the present context, m WhICh we are only concerned With the theoretical [and not With the hl~toncal] development, we noed not reckon With thl' fact, on which Jellmek has rcmarJ...t d, that the Amencan 'bl1ls uf nghts' [e g the Vlrglfila BIll of RIghts, and the Pennsylvama 'Declaration of the RIghts of the InhabI~nts of the Commonwt>alth or State', ofJune and Septembl:'r, 1776] were anterior to thl:' French RevolutIOn of 1789 as comtitullOnal assertions of the fundamental rights of mdlvlduals In Kant also the mnate and mahenabk rights of the mdlvldual-in the three senses of the hberty of man, the equahty of subJect~ and the mdependell< e of the utlzen-form the hmIt. and the canon of all pohtlcal hfe Works, VI, pp 322sqq and 416sqq ami VII, pp 34sqq, 147sqq A ~1~llar VH'W IS to bc found HI A L von Schla c-r, pp. 51 sqq Hoffbauer goe~ to the furthl'st length. He bcglm by dev~l";:.'mg a sy~tem of the absolute (or ongmal), and the condIllOnal (or acqwrl:'d) nghts, whIch belong to all ratIOnal eXlstenc.. (pp 64sqq), ht . It-. ~roceeds to depict the absolute or ollgmal rights of man (pp III sqq.) , only after that does he arnve at man's condItional or acqUIred llghts (pp 120Sqq) But even now he has first to dlSCUSS the' umversal', and then the' partIcular' , species of such rights, and afterwards, under the latter head, to treat of an 'extra-SOCial' form, before he finally arrIve~ at the' SOCldi' fc:-:n of the' partIcular' Spl'UeS of 'condltIOnal' nghts [cf n 19 supra for thiS process of subdlvlSlon In excelsls], Moser attacks the conceptIOn of the nghts of man (A/lsc Wntzngs, i, pp. 306, 313, 335) but he defimtely recogmses m an earher work (Patnot. Phantas. III, no 62) the exIStence "ffree rzghts of the mdlvIdual which are not forfeited I~thc social state
Vogue of theory of natural nghts
DrOlts de I' homme In 1789
Reference may also be made to T. Paille's Rights of Man, Part I (of January, 179 1).
3 10
Gierke's Notes
118. In thIs connection [I e. as regards the passing of mdividuallsm into The lIanations 0/ a system ofsOCIal absolutism, and viet' versa) the vanatlOns ofopimon which Flchte's VIews Flchte could achIeve without abandonmg hIs theoretical haslS are particularly slgmficant In 1793 he regards the purpose ofthe State as consistmg only m 'the- cultIvatIOn ofllbelty' (WorAs, VI, p 101), m 1796,10 speakmg of' the purpose of RIght or law', h(' IS already willm~ to thmk of an economIc transformation of the State 10 conformIty WIth the Idea of RIght , and m 1800 (IIT, pp 387~qq) he- even clellves hi; sonahsllc State, directed to the general welfare, from thIS Idea [Gierke here IS refernng to Flchte'~ Der gescltlossene Hande/Sftaat, on v.hleh SLe W Wallace, Lectures alld Essays, pp. 427sqq 1 By 1804 he IS expandll1g tIlt" purpo;e of the State mto ' the purpose of the human race', whI<h leads him to lI1terpret It as bemg the promotIOn of general culture (VIr, pp 144;qq), and III 1807 he depKts the Ideal of an educatIOnal State (VIl, pp 428~qq) LatLr still, he attempts to recono!c thIS ljlter purpose of educatIOn and moral developr>lent WIth the earhn purpose of 'the cultIVatIOn of lIberty' (Works, 1':, PP 367sqq, PmtllumorlS Works, II, PP 539-4 2 ) Correspondmg to the vanatlOm III hl~ vIew of the State'; functloT! are the changes m hIS conceptIOn of the relatIOn of the mdlvldual to ;oclety At fir;t he empha!>lSes the inalIenable nghh of man whIch cannot be dmllm,hed by any form of contract (l+'or'\I, "I, pp. 159-61) In hIS NaturTtclzt (17'1&-7) he argues vlgoromly, m oppo,itlOn to Rousseau, \hat the mdlvldual I; only merged mto the orgamscd whole m one part of hl~ bemg and nature, but othelWlse remams 'a completd) free person, who I; not woven mto the whole of the bod) polttIc (Works, Ill, PI:- 204-6), and even ill Der gesc!zlossme Handelsstaat of 1800 he stIll mamlams tlllS pomt 01 vIew (m, pp 387~qq). I n his Grund:ugm des gegenwartlgm ZeltalteTs (180 !--5) he entIrely alters hIS \ lew tIle mdlvldual I; now completely merged III the perfect ~tate whIch oughl to be the goal of endeavour. He has nothmg per se he ha~ everythmg m \ Irtue of bemg a member of the State, he IS entIrelv the mstrument of the State, and he b only sovereIgn 'm regard to Ius nece~,al y Pul po~e a~ a member of the race' [I.e. he IS only ~overelf.!:n 111 so lar a; he I, part of a general humamty whIch IS Itself ;uverelgn III determllullg the purposes of It; I.f!'), cf VII, pp 147sqq, 153, 157~qq. 210 He takes the same lme m the Reden an dIe deutsche NatIOn (1807-8), but later stIll ht adopt; more of a Via media, emphaslsmg the' moral lIberty of the WIll' whICh I, slIll left to the 'Instrument' of whlLh Ill' had preVIOusly ~poken (n, pp 537~(jq) 119 [Not only I, mdlvlduahsm no bulwark agaln>t SOCIalIsm and commumsm]. on the conhary, It rather appears as If the elevatIOn of the mdIVldual mto the termmus a quo and the termlllus ad quem of ~oClalll1stltut!Ons were an Inseparable element of soclah,tIc and commum~tK system>. 120 Lelbmz approaches nearest to thIS way of tlunkmg, m the mtraRecogmtwns 0/ the socIal ductlOn to hIS Cod Jur gent. dl/ll I, 11-13 There arc abo ;talements m Ferguson (I, cc. 7-10) whICh make the SOCial aim COI1>ISt, not 111 the greatest whole In pOSSIble amount of pleasure, but m the greatest po~slble amount of spintual tlghteenthactiVIty, and therefole 111 the free devdopment of the powers both of the century thought natlOnal commumty and of mdlvlduals ef also v, c 3. Scheldemantel too nses to the vIew (1, pp 75sqq) that there ale Lertam natural baSIC rules for the attamment of the aim of the State, of whIch the 5;eatest'~lS that the well-bemg of the whole and the pnvate well-bemg of the parts are to be sunultaneJusly and Jomtly pursued by every mdivldual and every SOCIety,
Notes to 16
3 11
but that, where there is any clash, the well-bemg of the whole must be preferred. 121. Hor'l accordmgly makl.'s a definlt(' attack on theones of the ongmal sovereignty of the people (II, c I, (8), of th,' eXistence of a 'real majesty' [as dlstmct from' personal'J (n, e ro, I 1-(5), and of the posslblhty of a subJectum commune of majesty (n, c. I I, I) But he equally Impugns the posslbllrty of the popular communrly P)ss('ssmg any n~ht whatsoever as agamst the Ruler (n, c. 5, I) 122. Horn attempts to prove (III, c un 2) that It IS Impossible for plures Horn's conJuncttm to be the' Suhject' o{ maje'oty When rule IS a~nbed to aU ut Unt- attack on verst m a democracy, It IS IfJsofallo abo attnbuted at the same time to all ut (myform smgulz, and tlw If'~uh IS that, &IIltC tmpeTlum et obuqUlum non mhabttant unam ifplural personam, the eXI~tenee of any' Subject' at all 15 really denied If, on the soveretgnry other hand, It be admitted that slnt;ulz are 51mply rubdltt, It follows that no other qualrty than that of bcmg a boHy of subdttl can be predicated of smgulz conJunctlm, I (' of all when they arc regarded a, unrted III a umversltas * Moreover [apart flOm th(' logical difficulty] thl'rl' I~ a furthl'r difficulty, which I~ Illvolved m the reeogrutlOn of the majollty-pnnelpk That rl'cognltlOn meam elth('r that unWCTSl arl' deposl'd [Ill favoul of a mere majonty] or that the rulers are, m part [I e as regard~ dlt' mmollty], turnl'd mto bemg the ruled. but III any ca&c a sovereign wlndl changes 'WIth each vote would be a cunous &ort of &overclgn- If we now turn from dcmouacy to an,tocraey, we flnd once more that there 1& no 'Subjcct' or owner of majesty Hele agam,just as m demo( racy, a dl~tlIlctlOn ha~ to bc made between umversl and smgulz, though the t\Vo thmg, thugedlstlll~Ul,hl'd are really one and mdl~ tlllgmshable For Jf szngult have nothmg, unwelSl l'qually have nothmg, and If umversl have authonty, slTlgulz equally have a part of that authollty. and the re~lt [on tht' latter &UPpo,>ltlOn] IS that each member ofthl' rulmg class Will have a fJartlcula maJistallS whIch, like- the whole of whIch It IS a part, will be summa. and thu~ a numbt'r of summa Imprna WIll an'>e Horn thl'n argue<;, in 3, that It 1& no leS& Imposslblc for omrlr~ or plurcs to po~sess 'majcsty' severally (dl1'ISlm) than It 1& for them to pns~css It jomtly (corlJUllillm) ] 2 a Cf III, ~ un, amI supra, n 96 to t IllS sectIon 12,1. PufendOJ f (J n et g vn, c. 5, ~ v) delIvers a VlgOIOUS attack OJ! the Cntzcs if 'Sop}llslIcal' arguml'nts of Horn, obJu tmg to mm that, at any rate zn moralz- Hom' J Vtews bus, the whole can PO&Sl'SS attllbutes . :'Ich no part pO&~t''''e&, and arguing accordmgly that, tn corporzbus moralzbur rr>7~!JOHtzs, alzquld tnbul potest umverslS quod neque ornmbus (I e szngullf dWlJtllt ~.'u2tl~) neque Un! ahcUl ex tUIS szngulzs queat trzbuz, adeoquf umversltas revera est penona moralls a smgulls dlstmcta, CUt pecullarzs voluntas, actIOnes etJura trzbul queant, quae In smt;ullS non cadunt Compare also Schmler (I, c 3, nos 62-72), who sceks to prove, m opposItIOn to Horn, both the plu!osophlcal and thc legal JustificatIOn of the dl&tmctlOn bctween a tatum comjJOJltum and ItS purtes separatlm acceptae 125. Spllloza agrees entirely With Hobbes III thmkmg that a &O( lal body The Ruler as controlled by a &lI1gle mllld (ut ommum mentes et corpora unam quasz mentem representzng unumque corpus componant) can come mto eXI,>tence through the vestmg of all the Group pow('r in the Ruler, m vlrtuc of a transference of theIr power by all mdlvlduals,..o that the Ruif'r, qua CIVitas, henceforth represents thc will of every mdlvldual CIVttatls voluntas jJro ommum voluntate habenda est Id quod Cf the argument of Hobbes, supra n. 155 to 14.
3 12
Gierke's Notes
Pufendorf on corpOIa moraha as created by consent
Pufendorf on tlte COndItIOns rif real Grouppersonaltty
CWltas justum et bonum esse decermt, tanquam ab unoquoque decretum esse censendum est. cf E/It IV, prop 18 schol., Tract pol c 2, IS, C 3, 1-5, c 4, 1-2. Mevius (Prodromus, V, 23-6) simIlarly holds that the unIo,-by virtue of which the State is una ve/ut persona (CUI una mens, unus sensus, una voluntas, et anima mter mul/as velut una atque eadem), I~ based on the submiSSIOn of all Wills to that of the Ruler, whence It follo~ that lmperantes totam multltudmem re/Jraesentant et ejUS vIce surt/-thelr actIOn countIng as the actIOn of the 'whole community and of all severally', and the' Will and Judgment of the Rulers being the WIll and judgment of the "hole sonety or State' See also Houtuynus, Pol gen 99, no 14, l\Ilcraehus, I, c. 10, 14-17, Bossuet, I, a 3, prop 1-6, VI, a I, prop 2-3 126 Cf Tract theol-pol c. 16 (coetur unllJersur hommum, qUI collegzaltter summum JUS ad omma, quae potest, habet), Tract /'01 cc 3, b (utjUS, quod unusquzsque ex natura habet, collectwe haberent) , Eth IV, prop 18 srhol. 127 E g the one conr!uslOn that emerges In Bossuet (v, a I) IS nothmg more than the dl("tum, so often quoted ~mct', that the monarch IS l'Etat meme 128. Huber, Dejure CIV. I, 3, c 4, 8-83, II, 3, c I, 35 see also, on the valIdity of the maJorIty-pnnclple, \dllCh I~ referred to an ongmal act of agreement, I, 2, c 3, ~27sqq ,II, 3, c I, 21-2 and c 2, 3-4. 129. Ibid. I, 3, c. 2, 14, c. 6, 26, I, g, (. 5, 51 and 65-72, II, 3, c 6, 2. 130. IbId II, 3, c 6, ~ I-IO ]~n Cf Elem I,def 4,13,J n.e/g I,C I,!r13 personamoraltscomposlta canstltUltur, quando plUTa mdllldua humana Ita m/fT se umuntur, ut quae VI HtlUS umoms l'Ohmt aut agunt /'ro una volulltate unaqw' aUzone, non /Jro /Jlunbus censeantuT Therefore, he argues, not only I~ a pactlt.n umoms nerC's~ary m ordn to producc, first of all, the State (J n et t!, \ II, C 2, 6) , a SImIlar ptu:tum Sl7lguloTum cum smgulzs, to the effect that certam things shall be managed JOintly and m the intere~t of uTUl/Jerrona mOTalls, IS also mdlspensable fOI famlhes, CQ! poratIons and local group~ (Elem II, d, 12, 26) In another passagt', where he dIstIngUIshes bt'tween wr/JOra naturalw, aTtificzalw and mOTalta, Pufendorf repeat~ hl~ View that a corpus morale, whIch remaIn~ IdentIcal In splle of all the change~ ot It~ part~, may be produced by a SImple conjunctw IlOmmum (J n et g VIII, C 12, 7) [In othC'r wOld~, a moral body mdY already eXI~t 111 VIrtue of co'hjUnctlo, before any further ~lep has been taken, such as the appoIntment of a representalJ\ e organ to a( t on It; behalf] 1 a 2 Cf Elem I, d 4, 3, J n et g I, C I, I3 Idque tunc fien mtelltgltuT, quando smgult voluntatem suam voluntatl umus homznls aut conclltl Ita WbjlClUnt, ut pro ommum voluntate et actwne velInt agnoscere et ab altzs haberl, qU!cquld ISte decreverlt aut gesserIt CIrca lila, quae ad umoms fJus naturam ut talem spectant et jml fJusdem congruunt, unde est, quod cum altas, Ubl/Jlures qUId voluennt aut egennt, tot lioluntates et actIOnes extare mtelltguntuT, quot numelo personae pl!YSlcae seu lIulWldua humana lbl numerantuT, In /Jersonam tamen com/JOsltam coalttls una voluntas tnbuatur, et quae ab IIlIS ut talzbus PTojiClscztur actw, una censeatur, utut plUTa Indwldua pltYJlca ad eandem concurrennt He adds that under these conditIons e where there IS a moral body actmg corporat('\y through a represrntdIJVe] corporate property comes into eXistence, whIch docs not belong to smgult, and other SimIlar devdopments follow. See also J n et g VII, (' 2, S, De off hom. et CIV II, C 6, 5-6 unlTl multorum homInum lIoluntates nulla alta ratIOne POS~\,.,t, quam Sl unusquzsque suam voluntatem voluntatl umus hOmlnIS aut umus ct!7zCrlll SUb)lClat, Ita ut delflteps p~o volunlate ommum el smgulorum sll habendum, qUlcqUld de rebus ad secuntatem communem necessams lile voluerlt Pufendorf argues, on thiS basiS,
rl
Notes to 16
that a Group-person never anses from a simple contract of umon, It must always be called mto bemg by a number of contracts (neussarzum est, ut voluntates vzreffjue suas umvermt mtervementlbus !lactlS) , which find their culmmatlOn m the contract ofsub]ectlOn, cr. J n et g vn, c 2, 6. It follows that a s..ystema CWltatum [I e a confederation], bemg a nuda conventlO, and not havmg erected any ImperIum, IS not a 'person' [,mcc there IS no man, or body of men, with authonty to represent it], and cannot act by majority-decIsIOn cf J n et g. VII, C 5, 20. [In brief, the argument I~ that while simple conJunctlO can produce a 'moral body' (see the end of the precedmg note), and while such conJunctlO may thm be the fir~t step m constltutmg a 'moral per~on', there IS somethmg more needed before a real' moral person' can emerge That somethmg more IS the creatIOn of a representalive organ, and ~ubmlsslon thereto, for only m the 'per~m ' ofthe repre,entative organ can the' person' of the corpus morale really eXist and function] 133 The doctnne of entia moralla already occurs, m essence, m Elem I, d. 1 ~qq [of the year 1660], but It IS dl'wloped further m J n et g I, CC 1-2 [of the year 1672] 134 J. n et g. I, C I, 3 They are mere modI, which do not come mto PifCndoif's eXIStence, lIke entia !,hyszea, through '( realion " but through 'Imposition' theory of I e. they are' superadded' to somethmg alrcady in eXI~tence They have no entia power of plOduung physI~1 changes, and the only effee t they produce IS moralra on the Imnd, hy makmg men understand h('ller the naturl' of their actIOns (4) Just as they onlv coml' mto eXistence by 'Impmltlon', ~o they may he changed, or l'ven ahoh,hl'd, by ~om~ltl'ratlonofsuch 'Im!)O"tlOn' (whether by God or men), but the sort of change to winch they al e thus subJcct I~ one by which Ipsa personarum aut rerum substantw ph)'ilCa IS not affected (23)' 135. IbId. 5-6 Pufendorf prefers thc twofold cla!>,lficatlon of 'moral Some are entltIe~' under the,e categorIes [of ~ub~tance and attrIbutc] to the smgle substances classlll( atlOn ""hreh we should have to adopt If we confined ourselves to the some only Idea that all entza moralla, bClng modI, arc attrIbute~ of homznef, actIOnes or rej. attnbutes 136 Pufendorf begms by argumg that m the moral world status, as the Moral baSIS of the eXI,tenu' of 'moral person.' rnrresponds to what spatlum I> III persons the physl('al world as the baSIS of the e,,,u nce of phYSical persom III p'aee lzke and tlmc * He admits some dlfferenu. spatlUm can contmuc to eXist after suh.rtancn the disappearance of all natural obJec:o, but jtatus I~ Inconcclvable aftel the disappearance of the per,ons who eXist 'I' 'hat medIUm (loc Cit ~6-IO) HaVIng drawn thiS analogy lbctV>LLIl l.le ba,l, of eXI,teIlce of moral and that of phY'Kal person, J, Pufendorf proceeds to mtnpret 'moral peIson,' theITlSeIv~s m the lrght oj the analogy of physical substances ( 12-1 5) [But whIle he thus mterprets persons as bemg moralm a way analogous to that m which substances arc phySical], he thmks It unnecessary ever to mterpret objects (res) as bemg 'moral' 1ll lius ~()rt of way, Slllce the attnbutes of objects (c g. that they are' ,acred ') can be referred on a deeper analySIS to an obllgatzo homlllllm ( 16) t Other entIa moralza [I e moral entities other than
j ,
Pufendorf '8 fjlattum " 'tIme-space' It" both temporal and ~patlal f'xtent. We need not regard a thmg, .uch as a sanctuary, as bemg an ens rrwrale, on the ground Ihall'rl has tJee attnbute of bemg sacred, and that there mmt be an ens as the 8ub\tance whIch carnes that attnbute Really, the attnbute of bemg sacred can be reduced, If we turn from the thlllg to the men behmd the thmg, to,n obhgatron of men to regard the thIng as sacred
* t
Gierke's Notes
personae] are not ad analogJam substantiarum concepta' they ale sImply modi, or attributes, of a purely' formal' character ( 17) They exist, that IS to say, eIther as 'quahtles' (e g a' tItle', or a 'power', or a 'right', err an 'obhgatlon', are all quahtles, 18-21), or as 'quantltle~' (e g 'price', or 'credit', or the value of a business, are all quantIties, 22) Moral persollS 187 Lac CIt 12' Entza moraha,quae ad analogzamsubstantlarum{,onclpwntur, sImple or dlcuntur personae morales, quae slmt hommef smgull aut per vInculum morale III unum wmpound systema connetl, COIlJlderatl cum statu JUo aut munere, In quo 171 mta commUTlI versantur Sunt autCln personae morales lie! sImplices vel composztae 188 Loc CIt 12 The perJona morallS sImplex I~ therefore ("lthel publICa SImple moral (whether ~uch 'person' be prmczpalLs, or mmus pnncljJaltJ, or repraesentatwa), peTsollS or prwata (accordmg to profeSSIOn, CI\ IC status, famIly standmg, de~cent, sex and age) The ens morale can neve-r he- a qualztaf PhySICO If a plebeian becomes a noble, or 'Ice versa. no phY~lcal change IS mvolved, and the Calhohc doctrine 01 an mdelIble moral (haraeter' I'> therefore ab~urd (~23) l Sec n 134 supra, on the' ImpOSItiOn', dnd the conSt'quent pOSSIbIlIty of 1emovdl, of the modus-the attnbute or character-wln{ h COllSl1tute~ 'moral be-lIlg'. It follows, on th1'> argumtnt. that 'Impo'>ltlOn' makes the 'dlar,lctcr', 01 ellS morale, of a prle~t, and "hat has been' Imposed' UIn he removed lIoly orders, therefore, arc not 'an mdehble moral character'. to argue III that sense I'> to treat such orders as a' pll'rSlcal quahty' whIch cannot be altered J 1 a9 Loc CIt ~ 14 (the IIldlvlduaI may' bear l<a numblf of' per~ons' becau'>e he has a number of 'posItlOm' (statuf) wInch do not confhet) 140 LoCo CIt J 3 cf ~upra, n 132 141 Loc ot 15 here we S(T thal1ll.1r lmjJOsltzo of an ellS morale I'> not 1Ildependent of ev~ry qualIty of the ohjt't t Cahgula rould mdkc d fool mto a srnator, but not Ill~ hor~e Pufendorf abo rejects the peJ~omficatlOn of mammate objects, ,dllch Hobbes acllleves m c 16 ofthl' Levzathan [e g ofa bridge on whIch there IS a right of chargmg tolbJ a~ an unncC{s,>ary licuon-lllm slmpllCllJlme dlcatur, a Ctvltate certa homimbus lII)unrtam curam coillgendi reditus !Stu rebus servarldls destmatos, et quae eo rzomme orzuntur actzonef /Jenequendl aut excl/Jlwdl 142 Cf.Elem.I,d.4,3.] 11 etg I,C 1.13,\Il,C 2,6 It follows that Nature of compound pers~nae morales compositae are not able selpsaJ qua talt \ obllgare, any more than moral persollS ~mgle persons are able to do so TheIr deCl~iom only bmd membra IOCletatis qua smgula, nequaquam autem soaetatem ljlsam qua talem The contract for the foundatIon [of the socIety, as a 'compound moral per~on 'J IS not a case to the contrary the SOCIety doc, not' oblIge Itself' m any way even by that act; all that happens I, that' the members severally, as ~uch, bmd one another mutually, to the effect that they arc w111mg to eoale~ce m a smgll body'. If an mdividual afterwards glve~ a vote, he too does not obhgl' h1ffiSelf dIrectly thereby, It I~ only md1rcctly that he does so-I.e in so far as he hclp~ [by that vote1 to form the WIll wlllth under the pactum fundamentale IS bmdmg upon hIm Cf. Elem 1, d, 12, 17 148. Pufendorf hunself often mes the cxpre,slOn persona phynca lIlstead of personamoraltsslmplex:cf] n etg I,C I,I3,VIJ,C 2,6andc 5,8 Such persons 144 Pufendorf expressly urgl'~ that' naturally' a confu.flO ommum voluntanot natural, tum III unam IS ImpOSSIble, and that a common WIll can only ans.e, [by somebut created thmg more than a natural process, Ie] by a moralzs trallSlatiO voluntatum, by agreement whereby illud qUlsque velle censetur, quod zn alwm contullt, [aeque ac] Si ipse vellt. In the same way the union of the powers ofmdIvlduals [as dlStmct from theIr
Notes to 16
WIlls] does not come to pass naturally, but as a result of promises ofobedience and the giving of guarantees for the fulfilment of those promhes cf. J. n et g. VII, C. 2, 5 "nd De off hom. et cw II, c 6, 5-6, and see also, as regards the 1mposs1blhty of unzo naturalzs and the nature of :mzo moralzs, Otto's commentary on the latter passage. Pufendorf accordmgl) goes so far as to commend the companson drawn by Hobbes between the State and an artlflClal man', J n. et g loc Clt 13 and De off hom et cu' loc nt ro. 145. Elem I, d 12, 27, J n et g VII, C 2, ~ 15-19 and c. 5, 6, De off hom et CW. II, I 6, 12 Such an agreement [estabhshmg the vahd1ty of maJonty-deCI~IOns] IS aJway~ to be presumed, m Pufendorf's view, because there 1& no better way than maJonty-declsIOn of arnving at a UnIted exprc~SlOn of w1ll by an assembly He admlls that any md1v1dual, on ente-rmg a SOClct), may reserve for lumsclf a nght of ~IVlllg or Wlthholdmg hl& assent [to a m~onty-de(l51On] on any Issue, but he argue~ that, even m that event, th{' mere pertznacza of such an Ind1vHiuai does not affect the deCISIOn of the as~embly adversely, for though the deCISIon w1Il not be- bmdIng upon him ex suo COllsensu, It WIll &tlll 1)(> bIndIng rx generall lege ut caetens fese commodum praebeat et ut pars se conformet ad bonum tOtlUS 146 .7 11. et l! VII, C. 2, 13-14, De oj[ hom el CIV II, C b, ~ 10-[ [ The commentator~TltIm, Otto, Trauer and HertlUs-expl essly censure Pufendorf for takIng over trom Hobbes, In tllPse pa&~ages, the 1dentlficatIOn of the ImjJerans WIth the Clffltlas d abo TltlUs, ObSfTi' 557 147 Pufe-ndorf accordIngly d{'scnbes the sover{'lgn Concrlzum In a repubhc a5 a persona morolzj com/Joszto or conl1mUa Elem I, d. 12, ~27, J n et g VII, e 2, 15,c 5,~5,De(iff hom etcw II,~8,~4 148. Hert, f01 example, empha515es the fal t that what 1& 'phy~ically' impossible IS sometImes' morally' pO%lble, and what 15 momtrous In pl!ps1cZS may bl;. unexcl'ptIOnablc zn moralzbUJ e g. on a cOTmderatzo phySlca a plurahty of men cannot be one, nor one man a plurahty, but on a cOTLflderatw moralzs a number ofml"n may be takl"n togl"ther a~ a ~Ingle per~OI1, or onl' man may be taken to be .everal per~on~ In the rl'alm of l1atu[l" a smgk head "11th a numbe-r of bodle" or a SIngle body WIth a number of heads, IS a monstrum, but tlllS IS by no means trul' of moral boche' Cf Allflot ad PuJerul J. II et g I, C I, 3 n 4 and OpUfC 1,3, PP 27sQQ and II, 3, PP 4[ sqq 149 ThomaslUs defines a jlrrsona _(5 homo cOllszderatus cum suo statu He dlstll1gUl5he~ between thl' /Iersona sImp"., Sl umcum mdll'zduum humanum, and the persona composlta ex plunbus zndWldulf CPTln flatu umtzf (instlt Jur dl1'. I, C I, 86-7) , and he definc~ the Stak a, u po _,'110 moralls comjJOszta (Ibid III, c 6, ~62-3) Tlllu~ rcgald& Jun,prudence a& almost eM IU'IVely concerned With personae morales, wludl are eIther smt<ulareJ or composztae (Observ 94, Jus pnv Rom.-Germ VIII, C 2). Cf. aho kkstatt (OpUSC II,Op I, C I, ~ 14-15), who regards persona moralzs szmplex and persona moralzs composlta as dl5tll1cl, exactly hke Pufel1dorf ISO. Hert,Opusc J, I, pp 286 and 288, 11,3. pp 41 and 51, Gundlll1g, Jus nat. c. 35, ~34, C 37, ~3-1O, and Exerc 16, 5 (flenonae mystzcof vulgo audzunt, ac morales compojztaeque dlcuntur), Schmlcr, I, c 3, no~. 62-72, and also Becmann, c 12, 7 151 ~telbladt (Syst nat 83) can still remark mcidentally that 'phYSical persons' !ire also caJled 'SIngle' (smgulares), and 'moral persons' also go by the name of' composIte' or 'mystical'; but he lUIIlsclf only uses the expressIOn' moral persons' Cf also Scht'ldemantel, Ill, p 244.
Even theIr ma)onrydeCISIOns depend on a prevIOus agreement
Hert modzfies Pufendorf
Thomaszus retams hts theory
Gierke's Notes
152. Cf e g J H Boehmer, P spec. I, c. 2, I, e. 3, I n. 0, Heineeeius, Elem. II, 20, Achenwall, Proleg. g2-g, II, g and 15; Hoffbauer, pp. 190, 244, 292, g IO Lnbmz adopts the:' t("rms persona naturalls and Ilersona CIVILIS in hiS termmology, but he al~o uses the adjectives morahs or ficta as synonymous with cWllzs Nova meth II, 16, Introd to the Cod Jur gent. I, ~ 22; Caesar -Furst. c I I ,Spec demonstr Ilol pr. I and 57 Wolff also 15:J. In the theory of Wolff (Instlt. g6) man is a persona morahs or Slftllche PerJon m so far as he IS regarded as the' SubJect' or owner of nghts or follows obhgatlOns, and IS thus m a morallS status or nftllche Zustand; cr. also 850, Pujendoif In part 963, logo Danes (Praecogn g, 24) holds that by 'person m thejundlcal sense', or 'moral person', we mean man 'm so far as he has a certam moral status'ex quo manifestum est a personalztate ut Ita dlcam physlca ad personalltatm:. moralem non valere consequentlam ColiectIVe and 154 Thus Treuer, m a note to Pufendorf's De off hom et CIV. II, c 6, 5, represmtatwe holds that a 'umon of wills' IS possible by means of mer(' soczetates et foedera, Unlry \",thout ImperIUm-though a umon by means of Imperlllm IS better. ThomaslUs mterprets the personahty of the State m exactly the same way asPufendorf(InstltJur dl1' m,e 6,~&27,gl,62'-4, 157, FWld m,c 6,&7), but after mcludmg the State m the category of societates mlxtae, wluch blend the pnnCIple of FellowshIp with that of RulerslTlp, he pr(lceed~ to add to the~e 'mIxed SOCIetIes' two other forms of society-the soclelas maequahs of God and man, "" hlch rests on the pure pnnuple of Rukr~lup, and the soezetas aequa/lI, whIch rests on the pure pllncPple of Fellow~hlp (Inslll Jur dw I, c I, &~9I-IIg, III, c. I, &57-74) Tillus ascnbe~ the umty of the personahty of the State entIrely to th(' repres('ntatlOn of all ItS members by the Rul('r, who has thus a double .:,crsonahty, ""hIIe the subject only po~s('sses a ~mgk personalIty (Spec Jur publ I, c I, 43sCjq , vn, c 7, Igsqq ), but In deahng WIth the UniVersItas, ""hICh he relegates altogether to the sphere of pnyate Jaw, he a~mmc~ the C'l:I~tence of a purely CollectIve persona moralzs composlta (Oblerv 94,]w Jlrl/! RomGerm \ III, c 2) 1 a 5 De modo canst s. I, & 2-3 (Opuse I, [, pp 28G-8), cf abo Elem I, s 3. 1 56 Cf Opusc I, I, P 288 (Quod e711m de umversltate dlCltur. eam nee anlmam Hert's VIew nee mtelleclum habere, non consentIre nee dolo facere, hme alzenum est, quomam umthat groupum ry Involves versz/.as pars est tantum CIVItatIs et qUlcqUldJuns sJnrltusve habet, aeeeplt coneeHU vel expresso vel taCllo compotum summae potestatlf, * atque hactenus persona est myJtlca, a RepreslVe e..: praelmpto Juns personae Vlcem swtmel; neque dublUm est, qum hoc aspectu lentatIVe contrahere et delznquere possll) Hert accordlllgly ascnbes an ab~olute representative authOrIty to the Rector CIVitatIs [the Head of the Statej, but he WIll only allow to the Rector UnIVersitatIS [the Head of a corporatton] such representatIvc authonty as comes wlthm the hmit~ of the powers granted to hIm by the sovercign (note g to Pufend.]. n. et g VII, c. 2, 22, and Opuse. II, 3, p. 55) 157. Opusc. I, g, pp. 27-44. 158 IbId. II, g, pp. 41-7 HIs theory 159. In hIS treatment of thc first set of cases [those III whu;l). one man of one man sustalIlS several penons], Hert begins by cOIlSldermg thep<:lSsi bIhty ofthe same with many * 'By the concession of those who are In control (compotes sunt) of the supreme 'persons' power.'
Notes to 16
individual being reckoned, upon a conHderatw morallS, as bemg several different persons m his different capaCities (sect I, 1-2) He proceeds to lay down some 'eJune general rules for such contmgenCle~ (sect. I, 3-7) He then discusses, a~ cases which come under the,e rules, (I) the union [Ul one man] of vanou~ nghts of ~tatu~ whKh have then basis in the FamIly and the State (sect 2), (2) the different capaCities enjoyed smlUltaneously by the EmpelOr, and by the Estates, in the German Empire (~cct 4), and (3) the conJunLllOn of a number of dlffercnt powers [m the ~ame mdlvldualJ m the domam of pnvate law (sect 4). 160. In trl'ating the second set ofcases [those m which several mcn sustam one per~on], Hcrt begms by attemptmg to prove the pos~lblhty of ~everal men umtmg to form a smgle persona moralll There ale three sorts of unumthe unum I)(r se, the unum per acclden \ and the unum per aggregatlOnem-accordme; as It I' ~ 'natural', an 'artificial', or a 'moral' bond wluch umte~ the parts in que~tlOn A' moral body' I' bn1ught mto bemg by a 'moral bond', quo per Illstltutum humanum dlVersa rndIVldua Ita colliguntur, ut unum esse rnteiligantur (Proleg & 1-2) He proceed~ to ,uggest general ruk~ for coUcctive persons [of thl~ moral orderJ Either a societas aequalI' or a locletas rectona may be the basl~ (& 3) the Group-person may come to posse~s capa(ltles and np;hts (e g of legl~latlOn, or the power of lIfe and death) which belong to nonc of the smgle pel sons so p;rouped (4), the a~,ouate~ contmue to remam certo asIJfCtU Jrnguir (& 5), the nb"lts and duties of the collective person non Junt smgulorllm TUSl per corllCquenttam (S6) Hert then dlstmgulshes two '~ources' of tius unrty of pel sons' [m a moral bodyJ. The one I' Lex jmglt' , the ether IS 'CorlVentlO hommum tjftClt' Under the hr~t head-that of the lugned umty of pel sons (sect I)-he treats of paterfamIlias et filIUS (SS 1-7), of dijunctus et haeres (8--16), of defunctus et haeredl/,as jacens (S 17), 01 JUS repraesentatlOllls ( 18). and of Chnstus et Ecclesla ( 19). Undel the second head-that of contractual umty of persons (sect. II) -he deab With matnmOrllum (S 1-3), CIVitas (S4-H), Urllvemtas (g-II), correl debrndl et credendz (SI2-I5), and lIasallz feudum mdwlduum habentes WIth feoflt>es ( 16) 161 Jus nat c. 3, 52 (m ImperIO Cll"" 1',,,perantes solz mens cI,JltallJ wnt, etl! sllbjecll non carent mente, sed sapwnt Ipszmet, , 'lmo alzquando Imperantlbus saplelltlOres sunt) , Co 35, 30 (magHtratUJ uoluntas eH 'JOluntas unIVersorum et sillgu[orum), c. 37, & 2-3 and DISC c. 34 The persona Tll& "':,s seu mystlca only appear~, there/ore, III GundllIlg's tht>ory of the State when hp IS speakmg 01 a republIc Jus nat. c 35, 34, c 37,S3- IO 16~. Dlssert de Urllversltafe delmquente, 1-5. A unIVerSitas IS only a 'muItItude' uIllted by 'co~ent' the object of sue h consent IS rn unum coalescere, ut Idem zntelligere et velle cenStantur. from consent dIrected to that object resultat Urlltas, CUjUS ratIOne personae mystIwe vulgo audwnt, ac morales composltaeque dlcuntur. 163. Loc CIt 6-8 A jictlO JUTZS IS m no way necessary to explam thiS Group-person We can see for ourselves how a umty hkt> that of anmdlvldual man comes mto eXistence through the umon of the Wills of a number of men. It does not matter lIlt IS only wI:h the Intellect, and not by ~eme-perceptIOn, that We'llll.'lhse the umon of the Many In the One, and the dlstiIlctlOn of the One from the Ma\ly. If It dId matter [I.e Ifsense-perc.eptIOn were a necesSity], all res mcorporales would be Imagmary, and only what we "eel" or hear or smell or feel or taste would be real, and that IS absurd, for SInce there IS
HIS theory qf several men With one' person'
Gundlmg holds that tllf'State needs a represmtatwe He makes a corjJoratlOn only a collectIVe umt HIS rejectIOn qf the theory (iffictIOn
3 IB
Gierke's Notes
no demonrtratlo without mentis ahstractlo, and no truth without demonstratlOn, we should be drzven to saymg that truth ltsdf IS untrue . Nor IS a fictlO necessary to explam the assumption of a consensus umversltatlS, for although a consensus ommum IS not easy to attam, It none the les~ follows from the nature ofa unn-fTfltas (~mce It eXists, but cannot contmue to eXIst Without motion, and mu~t thelefore nece~sanly choose modus volendl aut nolendl pos.llhllzs m order that It may set It~c1f m mOhon) that' the will of the major part should count a~ the will of the whole person constltute-d by a number of men' Gundlmg, howevLr, admIts that unIVerSitates certo sensu artzficlales sun! . qllla padls coaugmentaTltur quzhus Hohheslus non male artlficil nomen !rzbul! They al e not created by nature, but by reflectIOn and WIll 164 Wl' must note, It IS true, Gundhng's conte-ntLon (loc nt. ~ l:i-4B) HIS Inslstmee that a unweTSltas may even be gUIlty of dehct and ~uffer penalties accordmgly on the But It IS al~o to be noted. fint that ~uLh dehet can only be commlttrd (m Ius collectIVe Vle\\) by the common actIOn of all, ana not by a maJonty or by the body of prlnnple managers, and secondly that a umversltas may abo commit murder or SImilar cnml'S, while, as for thl' penalties of dehet, It I~ only thl' gUilty pnsom (either takl'n togetllf'r or severally) \\ho are affected by them, and the abohtlOn of the corporatIOn a~ such IS not regarded as a pos~lble penalty I fill TIIl~ dl>tlllchon appear~ III Kestner, c 7, ~1 (ef also Ill'rt, ~upra p I~~) and In Schmltr, I, c 3, II, C 3, s I, ~~I-'i, v, e I, nos 87"qq and c 2, nos 'j2sqq I6(j Accordmg to J H. Boehmer. a socletar meam. a complexu.I jJluTlum /)erBoehmer on sOTwrum umtarum mler .Ie ad certumfiuem It con~htute~ a 'moral body', and the equal and .IplTllus of that body IS a umon of the wflls of all, III one Will, such that conUlU'qual JUTlctim con.llderalluTlam m moralzbll.\ rcpraesmtenl personam In an 'equal ~onety', SOClttles thl~ umon of wills' I~ based upon Simple obhgatlOn', but Just for that leason It remams IInperfect In an 'unequal souety'-though the (';lOund or baSIS I~ still an 'assoclallon of equals'-the fa([or~ of ImpeTlUm and sub)eetlO arc supulmpo~ed, by the 'subml~~lon of all Will. to the ~mgle Will of 011(' man 01 of a whole counCIl', "'lth the result that volunta.s ommum ITl valuntale hUJus zta coTlCentratllr, ut quod Imperans summus ITl nel{OlllS adjznem clVzlatls speetalltlbus vult, omnes velle moralzter censeaTltur (Cf Jw pub! llTllV P gen c 2, ~ 4 n J, P rlee 1,( 2,~I-18,c.3,ln o,15-2I.) 167 Cf HcmecclUs, Elem II, S 1'3, 115, Mullerus, I, C I, WoliT, instil 839, Nettdbladt, Syrl Tlat 351-1) I , Achenwall, II, ~22-39, Dafle~, Praecogn. I7-23, P spec 550sqq ,HofTbauer, pp 194, '99sqq., 205sqq I 68 Thl~ Vlf'''' ('xplams why the ~tat(', as a SOCtetas /JerJectZ.lSlma, wa~ nThe State a.l garded a& begmmng Its eXistence With the sub~tltutlOn of an 'unequal an uTlequal ~oC1ety' for the oflglllal 'equal society' (which IS sharply dlstmgul~hed flOm .IoC/ery 'democracy' (Boehmrr, I, c 2, &6-12), and occaSIonally even descflbed a~ 'anarchy' (Dafle~, ~651 sqq when the ImperfectIOns oft/us equal sOCiety began to make themselves felt It WaS often urged, too, III the strength of thIS View, that umty was more perfect m a monarchy than m a repubhc, where the Ruler III hl~ nature reflected and represl"nted an 'equal sonety' 161). The family system of government was generally the only' unequal CorporatIOns socIety' whIch was recogmsed, other than the 5tate, and all corporatIOns, as equal mcludmg the Church, were interpreted as bClllg 'equal socletle~'~I'ef. i8, societies mfra [on the natural-law theory of corporatlOnsJ 170 ThiS IS the reason why we often find the conceptIOn of the persona Difference of morallS clVitatls treated as entirely Ifrelevant III regard to monarchy, and only monarchy and repuhlzc
Notes to 16
apphed to republics' cf Gundlmg, III n. 161 supra Ickstatt expressly says that In a monarchy, where the kmg represents the whole State and all Its members, tot.us Retpublzeae Intelleetus atque voluntas zn zntelleetum et voluntatem personae morahs MmphCI~ refolvltur, wherea~' P,)lyarchy', or the government of Many, mvolves a persona moralzs composlta O/JUsc. II, op I, C. I, g 14-16 and 66. 171. Thus J H. Boehmer apphes the conceptIOn of the persona moralzs of the State only m the sphere of IllternatlOn,t1 law P gen. c 2, 3-7, P. spec I, c 3, 22 172. Wt" have already notlCt"d, m n 160 above, the lengths to whICh Hert wa~ plepared to go m thIs direCtIun. 173 LIke Pufendorf aud Hert (supra, n 139 and nn 157-60), NeW'Ibladt, m hIS Syst nat ~&82 and 1194 and Syst POi g16, and C. "on ~chlozer, m the n'Jure wjJragll, ~ II, both draw thI' paralIc!. 174. I-IemecclUs allows that ever,. 'society', mdudmg the State, IS only HemecclUs tht" r,,'ult of consensus duorum l,[urzumu m eundem jl1lem eademque medza, quae ad on the Willy finem lllum obtznendum sunt necessaria, but ht" also holdb that-Ill VIew of the of a faddy fact that' ont" Will and one mmd' anse, Cit her through consjnratlO In unum or through submlsslO ommum vo/untalum to the wllI of a Ruler-omms soczetas est !Ina jJenona moralts, and po~'t""e~, a~ such, hke duties, nghts, and even 'affectIons' (c g hfe, 'Icknes~ and death) WIth the mdividual Accordmgly, he argues, I:'vt.'ry .ouety C<Alflont~ Hot only other SOClCUe\ and IndIvldual~, hut abo It~ mvn SOCll, a\ d dIstmct . SubJcct' or owner of nghts (Elem II,
~g 13-2'), I I '))
17 j Wollf's general theory 01 \oaeues (IT/.ltlt 836-53) I' based through- Wolff's out on the Idea of a (antract duccted to the attamment of common ends by theory of common meam , and It I~ f10m till, contract that he denves the whole system Groups oflaw, ~nd ofnghts and duties, which regulates the mternal hfe of corporatIons-mcIudmg thf" authonty whKh alI taken together' [allen !1lsgesammt] exeruse over' mdlvlduab'. It IS only HIlts extrrnal relatIOns, he hold" that each SOCIety, hr( aU5e It5 mC'mbers a( t WIth UIuted foree~, appears as a slngl, pel~on' , and It 1\ particularly m tIns ,phere \of theIr extel nal relatIon. to one another) that' a number of dIfleI ent soelt'tle, arl:' to be Vlewf"d as If they werl:' so many free mdlvldual persllm' Wolffllns Imd, no (hffieulty HI d(""cnl~ng a 'moral per,on' as the owner In any c" , OfJOlllt propertywhcI e a number of perbon, are each deemed to havl' a sh,'r::, slllce In ,ueh a ca~e that 'number of persons, taken together, ale treated d~ a "ngle person, and what IS true of an mdlvld ual owner IS true of the... " ,'n taken together' ( 196) L N ot only does he thus reeoglllM' the sImple' moral person' he also rl:'eogmses compound 'moral per\on,' I He tI cats the Family as bemg a soczetas compos!ta, became the member> of winch It IS composed are not mere' physIcal mdlvlduab', as they are III a 'simple sOCIety', but are' whole ~oCletles willch are treated as smgle moral pcr,ons', 1 e the ~oClety of hu~band and WIfe, the SOCIety of father and child, and the society of ma~ter and servant (977) On the other hand [and whIle he thus recogmses a vanety of moral persons], Wolff regards even the moral personallty of the State Itsc'lfas nothmg more than' the whole comrnumtv ', III the ~ense of thr sum total of all IlldIvldual~1dudmg the Ruler ( 1030), and the rebult IS, that whlie he thmks that Illterna~nallaw(3n be ba!>cd on the character of States as 'free persons hvmg III a natural state' (977 and J088), he never mentIOns the State as a person III dealmg With Its sybtcm of [mtcrnal] publIc law.-
3 20
DaTies' scheme qf assoclatwns
Gierke's Notes
Nettelbladt's theory of associations
AcheTlwall's theory of asjOClatlons
176 Danes begins by constructmg a comprehensIVe scheme of.JUS soclalf In genfTe on the babls of a conceptlOn of SOCietas which makes It a status per qucm pCTlOTWe m personam compett/ JUS perfeetum atque affirma/lVum..-or, III other worch, a conditIOn which mvo]vrs a nexus of legal rclaliom by whICh indivIduals are either connected with one another by equal nghts and dutleq, or are set OVl"1 agamst one another a, ruler~ and ruled (S 517-61) On thlb baSI' he prot ef'dq to mterpnt all socwl1eq, up to and mdudmg 'CIVIl boclety' or the State (&& 5G2 sqq) In deahng with the State, he dIstmgll1~fws the tv.-a sorLq of nexus between Its members-the nexlI'> between the Imperanr and 1m bublects, and thaI of the subjects with one anothel ( 661 )-but he makes the ImpeWTl!> the one and only 'Subject' of[polltlLall nghl~ (655sqq) lIe appheq the concrptwn of the' moral person' only In regard to the external relatIOns ofa group [and not m r('gald to Its lI1ward umty]. Cf Plaecogn 24, plures homlTlfs, qUlbus ad commune altqllld obtmendum coneessa sun/ Jura, m uno eodemque slatu moralr vJUun/ atque Ideo unc.'11 peTlonam moralcm eOllstl/Uu';t 177 NettelbladllaYb the found,I1lOn [for hi, generdl vie"" ufa~so( IallOlli] In hiS theory of)uTlsprudmtla naturalls L;eneralrs soczalts (as ~tated 111 hlb Syst nat 36cz-414) In expoundmg dUb theory he starts flOm the defillltlOn of societas as a coTlJunctlO IJlunum homlTlum ad eundemfinem conJunetls vlnbus obtmmdum, and then proceedb to devcloIJ 111 advance all tht' COIl( epllom by the aId of whICh he afterward, explams the nghts and duties of FamIly, CorporatIOn, ChUrL h and State ] 78. Tim Iq espeCially the ca~e II e Nettelbladt IS forced to qe-t the whole over agaillit mdlvluuals] m regard to the' eq ual SOCIely' wluch possesses poustas, for here authonty OVCl the mqlvldual 5OC!! I~ abcnbecl to the sOCietas Ipsa, and not, as In an 'unequal bOClety', to all Imperans, or, ab In sOCictle~ \\Ithout potestas, to an e:..traneus ( 335-46 and 355-6) BUl Ndtd\;laut hastens to add that SOCIetas IS to bl. underbtood, In such a C;1,(', as sl~rufymg only omnes SOCII simul sumptl 17H Cf S)'st nat &83-6, 329-30, 335, and S)'st POj 9917 and 865 Nettelbladt does not beek to mvoke the Idea of a fIclion' 11l thiS connectIOn he preft'rs to thmk that tum .eorum m/ellectus, rlolun/ates et vires sunt ut unul mtelleetus, una voluntas et una VIS, Slcque ab uno homme non TIlS! In corjiOrum numero difJ.-runt, quae differen/Ia hlC non est attendenda (84) He also argueb that while the- conceptIOns of bu th and death arc not applIcable to ,ueh a person, ItS ongln may be compared to birth and Its dlssolutlOIl to death (~H5) But hc alway~ Identlfie~ the' moral person' WIth plUTa mdwldua Ilumana SI1nul sump/a ( 83) , and thm he says of the ~tate, Gwes alrcuJus Relpublreae Slmul sumt! persona moralrs sunt, quae est Ipsa RespubllCa (Syst nat S 1122, cf g t 132-3, 1200, 143 sqq ) ISO Cf. Proleg 92-3. a SOCietas, as a body of men, conslderata genera/1m, abstrahendo nempe ab I!S quae hoc vel !llud smgulum eJus membrum concernunt, spectaTl neqult mSI tanquam ens unum Since It I:' a whole of winch the partb are men, It has the bame natural nghb and dulieb as each of ItS mem\;er~, except m so far as the 'very nature of society , constitutes a difference It IS therefore a person, though It IS called a 'moral' or a 'mYbtlcal person', or a 'moral' or a 'mysllcal body', to dlstmgulbh It from the mdlVldual, who IS a 'smgle person', and the' whole system of the natural nghts attcl dUlles of mdlvlduals IS aceordmgly applIcable to It, except in so far as dwersa hOlmms mdwldul et SOCietatis natura makes modlficatlOfib necessary These modificatIOns are then- developed m Il, 16-21.
Notes to 16
321
Achenwall's I1ldWldualtsm
181 Note, m tIns connectIOn [I e as showmg the mdlvlduahstlc baslS of Achenwall's thought], the account which he gives, m developmg hiS theory of soczetas m gillere (II, ~S2-40), of JUS soclale unwersum mternum (Ibid S-13). He alway~ mt('rpret~ this JUS a, e,on'lstmg m the reciprocal nghts and dutles which belong to llldlvlduals as SOCll-1 e the nghts and dutles which sprmg from their' sOClalJundle,al nexus', and arc thus to be dlstmgwshed from their nghts and dutles a~ hommes, though Ifmore than two members are concerned [so that It IS a case not of A versm B, but of A + B etc ver,u, CJ, he regards the sum of reuprocal nghts and dutles as mvolvmg a JUS sonale universorum zn smgulos szngulzque cUjuslzbet zn unwersos On dus ba~1S, In an 'e,qual SOL It ty' m winch thc 'lIght and obhgatlOn of all' are the samt', there IS no mtclnal umty of the gloup tlanscendmg the aggregate of umverSl, and the voluntas loczetatll qua umus personae IS thus IdentlCal With the communis conSeT/SUS SOClOrum (n, 22-31). In an 'unequal SOCiety', on the other hand, there IS <fddcd to the collectlve um~y [l,e the umty of the aggregate of umverslJ, winch al~o eXI~ts m such a sonety [Just a, It does an 'equal sonetv'], the further fador of reprt'~entatlOn of all, to a greater or Ie,s degll>t, by the lmpenum (II, S 32-9) 11>2 AlreadY]J1 tus Prolegomena (q2) we find Ae-henwall (onttndmg that the (OllccptlOn of the 'mOlal per,oll' can only be apphed to any sonety respectu rlOn-soelOrum, and that It IS then-fOll llllutcd to 'partICular SOCieties' (It cannot apply to the 'un*eI~al socldy of all men', * the eXI;tence of wInch IS supposed m Pro leg ~8;!-90 and 1Il 1, &43-..j.) Accordmgly, he only mhoduces the' moral pel \on' mto hiS gencral theory of sOClcty when he, IS dealmg WIth externumjus socwle (n. SS 14-22). d the dictum m S 15, quum SOCii conjUnctls vmbus ad communemfiuem agant, atque ldeojura ac obllgatwnes cum talzfine talzque Llllum USll (Onno.ae lPSlJ communes SlIlt, SOCletas est persona morahs et ab extens tanquam tailS spectUT! debet et potest WhIle holdlllg thiS merely ColIce-
He reduces Groups to Ollectwe bodln
tlve cO~ccptlOn, he find, no dIfhculty 111 rcgardlllg the Family-with It, three rdatlOmlnp\ of hu~band and wI1e, parent, and children, master and servant-as a 'compound ~OClcty' who\e members are 'my;hcal' dnd not 'mdlVldual' persons (Proleg ~94, n, & 78sqq ). 183 He S<1ys of the ~tate (1, pp 32sqq ) that from the ullIon of the power~ and wllb [of llldlviduab] With the conullands of ItS Hcad 'there all'tlIJ a \Vhole, a composite belllg mdepend""'1t of other ,0CletleS, wl11ch e'<lIlce. It,elf III actIOn determmed by ItS own l'l.der,tandmg and Will, and I' therefor" Lapable ofhaVlllg nght; and obbgatlOns-m other word., a cIvil sOCiety, a people' In the same way he dt" ,JI' .,ouehe; other than the State a~ 'tOmpo'lte persom' (m, pp 244sqq.) Sec also I, pp 64 and 157sqq, IIJ, pp. 408~qq , and n 120 ;upra 184 'Ilus had been the theory adoptl'-d-after Grotlus had set the example (~ee 11 74 to ~ 14)-by Pufendorf (n 145 to dus ,eCtlOn), ThomaslUs (Instlt jur dw. IIJ, (' 6, 64), Cundh'lb' (n 103 to thiS sectIOn), Wolff (Illstlt SS841-S, where It I. argued that by the natUle ofsonety all mll.t concur III an agreement that the Will of the maJonty \hall be regarded as belllg the will of all), and Nettelbladt ( 388, where the maJoTlty-pnnllple IS said to CXI~t by the very nature of the jJenona moralls, and by virtue ofJura socretatls socwlw). ~e fullest argument m favour of thiS view IS to be found III Ickstatt, de jure maJorum..n conctusls cWltatls commumbus formaudlj (Opusc II, op I) ... It cannot apply to the' umversal SOCIety,' bec,ause that .oclety, d; It; name Illdicates, mcludes all men, and there arc therefore no /lOn-som BTSll ~I
Sdwldemantel har some ulw oj a (;rolill-persou
The basiS
if the n!!hts if majontles

on the old I'lew
322
posses~ed of reason
Gierke's Notes
New demand for unammlty
A L. 1'0/1 Schlo;;.er on the Idea of the Penlile
The common will a sum of wills
He appeals, In the first place, to the nature of the' moral person', as a umty and wIll, whIch must determme Its deCIsions, m any case of mO(Il'a dlsparra, by the mo(lVO firtlOra-tllOugh it IS only tpe external (or quaniltatlvt>], and not the Internal [or qualItative], weIght of' motives' that (an settle the issue. He then addures, as a furthl"r argument, the posslblhty of removmg a dead-lock hetwcln the different elements of the group-will which IS prOVIded by the me 01 majonty-de(l~lOn, and he ah.o appeals to prartlcal eXlgenCle~. But he mamtams, notwlthstandmg (c 1, ~65-68), that the majonty-pnnuple I~ ba~ed on I'actum lwluch IS somcwhat Inconsl~tent wIth the Idea that maJonty-declSlon proreeds from thl nature of the moral person dS a unity] A peruhar Vle-w appeal~ 11l Danes (~73~2), who, m the splnt of pnmltIve TeutOniC law, demand~ unanllmty. though he also a~sumes an oblIgatIO perfecta of the mmonty to arrede to the drrmon of the majonty 185. In hIS treatment 01 what hI:" ('alb thl~ 'gl eat controversy I, Chnstlan von Schl07er (De Jure suJlragu, qq-14) ntes GrotlU~, Locke, Pufcndorf, PetlOnJ, COlceJl and Schlett"'nn a~ supporte!> of the larher 'commul1ls opmlO' wluch regarded the validity of the majonty-pllnClple a" derived from Natural Law He descnbe~ the opmJOn of Wolff (unJu;tly) a, doubtful The mam authontle~ he Cites for hiS own View (WhH h makes only unammoll~ denslOm vahd per Ie) are Hobbe~-whose real dortrme, a\ ~tated m n 74 to tlll~ ~l"rtlon, IS very different-and Rou~~ea..l He al~o I Ite~ Arhenwall (who does, a~ a matter of fart, Idrntily the l'olllnlas fOoetatls qua UlllUJ IJenonae wIth the wmmun/J sellSus JOClorum, II, 24-8, and t I I at; the valIdIty of maJonty-denslOns a, a deVIatIOn-though a u~l'ful de\latlOn-from the geneIal I ule 01 unalllmi tv . secured b, a ~pellal contract to that effect), and he Clte~ III additIOn Wedekll1d, Hopfm r, Kohler and Srhmalz 186 Arcordmg to A. L von Schlozer 'maJr'ty' belong; ongmally to the people, but ~mre the people l'i 'the whole 01 all the chIldren of men', It can do a~ httle WIth liS soven'lgntv as a c1l1ld ran do "'Ith a fief whIch has fallen to It Any real ~overelgnty of the pu)ple [a~ a whole 1 I~ altogeth() InconceIVable, because the Integnty o! ~Udl sovell'lgnty has already been destroyed [m any eXlstll1g fOIm ofthl so-called sovcrllgnty uflhe people wlnrh wr. can actually observe] bv thl" U"c!USlOll of v. omen, mmors and paupers, by the mtroduetlon ofthe majonty-pnnClple, and by the lrertlon of a representatIve assembly cf p 97, 3 and pp 157-61 [Smce the peopll" can thm do nothmg "'Ith It~ ongmal sovereIgnty], that sovereIgnty l'i devolved upon a Ruler, who may be eIther a number of persons or a smgle pelson, but If a numbe"r of persoru. be the Ruler, a 'U,mm morale must be pletended by that Ilumber' [I (" they mU'it feign them~('lve, to be a smgle UTIli] d pp 73-8, 1 13, I. ~chlozer proceeds to descnbe such a collective Ruler as a 'bemg composed of~everal mdlvlduals' or a 'corpus' . but [though he thus seems to recogmse group-exIstence,] he Ieally remams a thorough-gomg mdlvlduahst, even to the extf nt of holdmg that m a republic' a new Ruler IS created for each new deCISIOn of the government' [became a new majonty composed of dIfferent mdlvlduals has to be creatl:'dJ, and therefore a momentary Ruler' IS all that can eXIst m such a State. cf p. 113, 2, P 125, S9, p. 131, 13 187. The 'common wIll', wluch (he Iemarks) thmkers fr01)'o Rousseau onwards have IrresponMbly Idf'ntlfied WIth the 'common man",'" I~ nothing '" Or, as we mIght exprl"ss It, the' gCl1l"ral WIll' (which IS the term that Rousseau really u!.e'i) I; too readily Identified WIth the' general run' of people. Or agam, to
Notes to 16
but the' sum of all mdlvIdual wIlls', and therefore It IS only sovereign m pre-poliueal SOCIety, where pure unalllmity is the rule. In the orgalllsed State, even ]{It be an extreme democracy, It IS always a number of particular persons, or a single person, whICh wIIl~ and decides for all. The people, which gives such persons or per~on thtlr comml,<'lOn, IS ~Imply tricked, by means of frequent electIOn" mto thmkmg that It Wills and deudes through Its rt>pre,entatIves, or It IS dazzled with the Illmory Idea that 'law IS the true soverel~n'-the fact bemg that law, as an ab~tract thmg, can only act through mcn dnd therefore can only be <,overcIgn through the person, or persons, who declare dnd enfc)lce It] Cf pp 76-7 [of A L. von ~chlozer's Allt:ememes Staatsrecht, whl< h Gierke I, paraphra<,mg here, a, m the prevlou~ note] 1!i8 The social contract, accordmg to A L von Schlozer, produces only The Will of a 'lITlloQ of powers', and a 'umon of WIlls' first arises through a ,upple- the Ruler mentary contract of government, bjl which each man prOllllscs that' others as represhall wIll Instead of hIm, and that he Will acknowledge thiS Will, external to sentatwe hlm,e1f. as hi, own Will, and ,hall be C ompclled, If be break hI~ word, to recogmse that It IS Ins Will'. It IS thiS fact (thdt 'tbe mn,t part renounce their Will, and transfer it to one man, or to a number of men, or to the maJority') v.hlch l'i the baSIS of maJonty-declSlons, repre'icntatlve as'iembhes and the rights of ruler~, op ot PP 76-9, 93, ~ 1 The Ruler, bemtl' able to Wlll and dec Ide for all, IS the' dt Ih~sltory of the common wIll'; pp 9.) and 100. HW evan ,"'chlozel, De Jure su.ff In soc aeq. (of the year 179')), 1 I. In C von agreement With the theory onus father (A L von Schlozer), he adds that the Schlo::;er on sOCIetas mere tah r IS only a 'umon of~owers' to begm with, a new' pact', by the maJoTl0'... Inch e.J.ch man <,urrcnder, Ins WIll, IS nece~~ar) before a unIOn of Wills' pnnclple can eXist, and the comparison With a persona IS only permlS,lble when that pdct hII-' been concluded Hc proceed~ (~12) to attack the other argument~ of the advocates of the maJOlily-pnnople, on "hom he slgl1lficantly seeks to Impose th(~ burdcIl of proof (& 10) He frankly holds that dIly decI<,lOli of any ~oClCty reqUires an agreement of all It~ memoers, dcpendmg all theJr jlactum et conseniUS (&9), and a( cordmgly h(" Will only lecogmse a deCl'>lOn by the major pars If It I, based on '>peu.J.I parta adJerta to that effect ( 15) -WJth the provIso that the<,e pacta adJecta can nc' cr extend to the jJactafundamer~allll, 01 the Jura smglliorum, or affect either ,S 18) He Will not even dHow that the ah~ent are automatically bound by '!.c vote of those pn.'>cnt (~13) such a prmCIple can only be llltrodueed oy SfJfC1 rd W pacta ( 19) 19 () Cf p 190 'thl' conceptIv.. of ., moral person call thus be under- HCiffbauer's ~tood 1Il the broad sense In winch It mcludes every collectIvc "SubJect" or theOl)' qf owner of nghts and duties, whether such collective" SubJect" be a society groujJs or no'. See also pp 53,66,106,206,244,292, 307sqq, 310, 317sqq
put the matter III another way, wp m IV .ay that the volante generate properly mean> a wIiI that IS general III re,pect of the qUdhty of the obJectwIiled (wluch " the general good), but tenth to be Identlfied WIth a WIll that", gt>neral only III r"'pect of the quantIty of the subJect'i wIlhng (or the general mass of the people) '1 he confUSIOn IS mherent 1Il Rou,~eau's thought, but Jt mmt be added, ill falrne,~ to Rom,eau, that he d,d attempt to reconule th,' two conceptIOn', f"elmg that the g"neral rna'S, by the IU:.oce" of d,sem'lOn of Idea' whIch" the essence of th" democratIc 'y,tem. was mo,Th~ely [Q a,.n"e at a general sense 01 what wa, really for the general good In other word~, the proces> 01 general thought, 1Il the general body of d commumty, IS the right way to the general good, which IS the obje(.( of the general wIll and the sovereIgn standard of commumty-hfe.
21-2
Gierke's Notes
191. Pp. Iglsqq. and Iggsqq. ongmally, unanlffilty was alone vahd, but the maJonty-principle may be mtrodueed by means of a unanimous rNolutIOn, provided that It be understood that the maJonty-{Vnnciple has no vahdltv m regard to the constitutIOn, or as agamst the nght~ of a member. 192 Pp 20ssqq. accordIngly (Hoftbauer argues) It IS the Ruler aloneor some 'sonety' wInch partlLlpate~ m Ruhng authonty-that appear~ m the area ofmtcinal public law a~ a 'moral person' (pp 244,211>,292,307, 310), and the People It~elf appear~ as a person only m the area of [external, or] mternatIonallaw (pp 3 I 7sqq ) 193. W. von Humboldt's Ideen, p 130, ef 18 infra [on the natural-law theory of corporatlOm1. 194 See, more espeLlally, II, C 7, ~8g, C 8, S9S-g, C 12, 145. 195 II, c 8, &96. LocAe 011 196. II, Co 8, S 97-9 Without a prOVl>lon to that effect, tilt' on&lIlal conlhe maJorlty- tract would not achieve It~ aim of end.!ng the state at nature, It would not produce at all, or would only produce for a bnef space, a sOCIety with the lmnczple qualities ofa 'bodymcorporated' It would tllU~ be Without sIgnzhcanu, and not a real contract at all. Rousseau 197 I, C b. al'wstant, au lzeu de la personne partlcullere de chaque contrartant, un the mOl cet acle d'asronatzon produzt un corlis moral et calfectif comli05e d'autanl de membres commun of que f'assemhUe a de l'OI\, leque! refOlt de ce meme actlUll son unlte, IOn mOl commUIl, sa the body me et sa l'Olontl [The reader Will readily note, 100tlllS passage a,> I:'I-,e wlwre In the Contrat SOCial, how much Rou;;eau IS Indebted to thl.' wnter'> of the POlztlC School oj Natural Law ahke for Ill~ thought and 1m vocahulary HI~ per501l11e partlwhere IS the usual perJona smgulans .11I~ cm/15 moral el cuUectz} IS the rmpw morale coUectll'um We may almo~t say that the vogue of Rou':>Lau depend~ on the fact that a great master of ~tylc gave to the world of letln;, and the general reader, a system of thought v. hie h had hitherto bcen cxpru~l'd mainly m Latlll, and wntten by lawycr~ for lawyer,> ] , See m additIOn II, c 2, on the mdIVI~II)Ihty of soverclgnty which I"UC~ from the umty oj the corliS SOCIal, II, c 4, on the nature oj SO\(,[cignty a,> an ab;olute power whle h thc soual body necessanly po~se~~('~ OV{ I ItS In! III bl r~, Ju~t as the mdl\Idual ha, un pouvolr absulu sur ses mernbrn, and III, U 10--11, on the ~Iekness, age and death to which corps Polltlgues ale ~ubJect In the ~ame way as the phySIcal bodies oj men, and on thc art of pI olongUlg thcn cXI,lenee (Ie corl)s flo!ltlque, aUSSI bun que Ie corps de I'homme, commence tl mounr des sa nazssarzee, pt porte en 1m-mime les causes de sa destructIOn) lOn the birth and death of 'moral bodIe~' ef '>upra, nn. 174 and 179 ] Its personne 198. Cf I, c 6, whne Rou,>~eau explallls that the personne puhlzque, whICh morale the is constituted by the umon of all other person~, IS called Republzque or corps 'SubJect' of PoZztlque, but that It IS abo termed by ItS memueTs (I) Etat, when It I~ paS;lve, Sovereignty (2) Soul'eram, when It IS actIvc, and (3) PUissance, when It IS compared With Similar bodle~ out~lde. Cf also I, c 7, where he speaks of a liersonne morale, 01 ltre de raison, which 1ll regard to foreign bodle,> IS un Ire Simple, un lndwldu, and in regard to Its subJec.ts IS ie Souveram 11, c I, where he speaks of un ctre collectif, and II, c 4, where a penonne morale IS made the' SubJect' of pohtlLal authonty Its volonte 199. II, c. 3 II y a souvent bun de la difference entre la z'%ntt! d;.lous et la generale volontt! generale, celle-cz ne regarde qu'd i'mterCt commun, l'atJre regarde a l'mtlrtt jmve et n'est qu'une somme de volontes partlcu/leres mal5 ote;;. de ces mimes volontes les plus efJ.. les moms qUI s'entredetrulsent, reste pour somme des differences la volonte
Hoffbauer's theory of Groups
Notes to 16
generale [It IS mterestlng to compare Rousseau, on thh fundamental matter, with Pufenet0n see nn 131,132,1'36 There I~ ofcour~e a difference, but Pufendorf IS the rock from winch Rousseau hewed] 200 IV, C. 2, where we also find an argument to prove that hberty IS not d(>stroyed by thiS agreement to respect maJonty-d(>clslons It IS my own will that the volonte generale should be law If I am out-voted, that shows that my view about the volonte generale was mistaken I really Willed what IS now shown to be the I/olonte generate, and I did not really Will what IS now shown to be only my volonte IJartlcu!lere Cf al~o II, c 2 n '2()1 It 1'\ prc5umahly always dUf'ctcd to what 15 nght and benefiCial 1t IS mcorruptlble, Mmple and clear, wIJ.hout subtlt'ues, and attamed WIth httle If any debate J t Will not, and cannot, df"( ree anythmg contrary to equalIty and Ju~t1ce. no guarantees arc needed aRamst It, and all that IS requIred I~ the pre~ntlOn of any deceptIOn. Cf I, c 7, II, cc 3-4, IV, c I 202 I, c. 6 d l'egard des assoclls, tis prennent collectwement Ie nom dupeuple, et s'appellent en partlcuher C!((!yens, comme partlclpam d l'autonte souverame, et SUJets comme soumIs aux lOIS de ['Etat. 203 It follows that the size of the Stat(> diminIShes hberty With 10,000 cItlzem, (>ach has onc ten-thousandth part of sovereIgn power' for hIS ~hare' With 100,000, only onf' hundred-thomandth part, but m both cases each IS soumis tout entur. Cf III, I 204 1, c 7, each pledges Illmself by the SOCial contract sous un double ralport comme membre du Soul'eram envers les partlculzers, et comme membre de l'Btat enverr le Souverazn, a contract thus made avec lm.mme IS pOSSIble, becaU'it' each contract~ enverr UTI tout /ont on fazt IJartle Cf II, c .} 20.3 I, (, 7, II, cc 1-2, III, c 16 20(1. But the Sovereign call never mcur ~uch obligatIOns towards a third party fls contlavene the act on whHh ItS own eXistence depends. I, c 7 ~()7 The rea~on why the Sovereign can never bmd Itself a~ a whole to Its member,> IS thl~ (I, c 7) the body pOlitIC, beIng only able to view It~e1f always under one and the same rallport, would by contractmg with one of It~ own member~ be dans Ie cas d'un partlculzer contractant avec SOI-meme [I f" Slllce the ~overelgn I~, and mmt always regatd itself as beIng, IdentIcal wI~h It~ members, It cannot contract With v.hat '~Itself, any more than an mdrvJdual can contract WIth himself But the ong!H:ll contract of sOCIety I~ apparently an exceptIOn to tlll~ rule, l f n 204 supra] 208 III, c 12-14 Any formal exc,,, ,",n oj a smgle CltJ~en annuls the genelal WIll (II, e 2 n.) 209 Cf III, cc I.},IB ef also the argument, m HI, (' 11, that tht' soverPIgn WIll oj yestt'rday dot's not bmd that of to-day (fa tOl d'hler n'oblzge lias aujourd'huz), and therefore the validity of[past] law~ depends on the presumptlOn that the sovereign I~ always c-onurlTI1ng thl."m tautly by not revokIng them '" 210 III, c 12 the sovereIgn can onlv act quand Ie peujlle est aHembU. 211. Cf II, c. I Ie Souveram qUI n'est qu'ull itre colleetif ne Ileut itre represent! que par IUI-mme Cf also III, C I 'j sovereIgnty can no more be repre~ented than It can be alienated, because though power can be transferred to others,
Rousseau on majorltydeCISIOns
On the quahry ofgeneral Will
c.
HIS Sovereign can never IJlnd IIJelf to ItS subjecfJ
Yestnday's Will not bzndmg to-day
Rousseau on representatum
.. Cf Pamt"s Rlfizts of Man, "here the same Idea IS apphed to each generatIOn 'Altho' laWS made m one generatIOn often contmue m force through suceeedmg generations, yet they contillue to denve their force from the conscnt~fthe hvmg " and the non-repealmg passes for consent'.
'",
Gierke's Notes
WIll cannot be. elected deputies of the people cannot be representatives, but only commlS~anes or delegates. What le Peuple en personne does not enaLt IS not law, the people whIch IS represented' IS no longer free, an'a no longer a people. 212. Although the legi~latlve power IS compared to the heart of the body The 'organu ' pobtlc, and the executIve to Its blam, and the zmportance of both for pohtlLal metaphor In bfe I~ meamred by that companson (m. c II), thl~ sohtary reference to the Rousseau analogy of the orgam~m remaIll~ WIthout Influence on Rous~cau's general interpretatIOn of Group-personabty [nut cf abo note 197 supra] 213 III, cc I-'j, 16-17 The gou/lemement IS un corps I/ltermidwzre between Rousseau's the Sovert"lgn and the memben orthe S.tate It IS un tout \ubalteme dam /e tout; l'lewof 'GollernIt IS a ne~ personne morale dans la personne jiubllque. Smce It~ proVInce IS sunply the execution oj the so,;crelgn WIll, and SlllLC, In ItS Lapauty of mlntstre du ment' Sou/leralfl, It holds a comnll~~lOn ~hl('h can be hmlted at WIll and Ii alway~ subject to re<all, the' governrnent' has 1.0 WIll of It~ own, but ha~ mcnly une /lit emprulltee et fubO/donnee None the less It reqUlre~, If It IS to fulfil ItS object, a umty of ItS o~n and Its ov.n 5pcClai quahfi(atJOm. and It then-fore develops, m virtue of the authority WIth winch It I~ vested, ztrle VIC reel/e. un mOl partlculzer, une SeIlSlbz/lte commune a ses membres, uneforce et une v%nte pro!Jfe, qUI trod a /0 conservatIOn It I~ thus, m small, ce que Ie corpJ jlOllt/que qUI Ie renJerme eJt en grand Thne are dlflercnt ~ays in whIch It way be constituted, but It IS alwav~ a Whole ~ Hh a defImte totahty of power, part of wlm h It employll, m order to keep lt~ own members III (o-opcrauon, "Inle It retam,> the rLst for the purpose of actmg upon the whole people. Three Wills me(\ III thiS government-the mdlvldual wII]" of ItS Lomponent members, thc common Will of them aiL and the general WIll of the ~hole State-but Il1 a perfect condItIOn of thmgs the fir~t of these would be non-eXistent, and the ~econd ~ auld only be the expressIOn of the thIrd It u a 214 In 111, c I. Rousseau terms the 'per~on' of the govemm(nt a percollectwe sonne morale et colleetwe, ume par La force des lOIS et diposltazre dam l' Etat de la puzsJance executIVe. Its es~entIal difference from the sovereign 'person', he !Iersoll holds, con,l"t~ m tht fact t11.lt It only eXI~ts III VIrtue of the Soverugn, and not, lIke the SovereIgn, per se As a whole, It I~ called the' Pnnce " and Its memuels, v.ho may be collectl,;e person'> themselves III theIr turn. * are called 'magIStrates' In a monarchy, however, the govnnment (accordmg to III. e 6) IS Identical WIth a 'personne naturelle' . toute au contralre de:> autres adl/ll1llJtratlOns, ou un etre colleetif represenfe un IIldll'ldu, dans celle-GI un lIldWldu represente un Ire collectif 215. Fllangien (I, cc 1 and I I, VII, c 53) follows Romseau'5 theory entirely. 216 Cf Sleyes, I, pp. 50~qq., l:lg, 144 ('a pohtlcal sOCIety Lannot be Szeyes anythmg but the assooated members of such SOCiety when taken together'), generally follows 167, 445sqq., II, pp I95sQQ 217. Cf. t, p. 129 the common wIllIS a umty, but its essential clements Rousseau are the WIlls of mdlvlduab, only they arc no longer Isolated Cf also I, p 145, where It IS ~ald that' the WIll of the mdlvIdualls the only element III the SOCIal will' , and I, p. 167, where the wIll of the Nation IS saId to be 'the result of the Will of the mdlvldual, because the nation IS a sum oj mdv ~Juals', and where It IS argued accordmgly that thl~ WIll can never be medIated or * I.e. a ',fOllege' of magl~trates, whIch, as such, 15 a collective person, may be one of the parts of government.
Notes to 16
expre~sed by estates or corporations, but only by heads [, e by direct mdlvldual suffrage], on the bam of a general umty and equahty Similarly Sleyes remarls (I, p. 207) that the common WIll of a sOCIal group 'must naturally be the general sum ofthe WIlls ofall mdlvIduals' ,cJ also pp 431 sqq. 218. Cf. I, pp. 144-5, 167, 207-8 for the future, he ar'lUes, we must ascribe the qualIty of a general Will to the WIll of a majority thiS IS ba,ed on the fact that each submits hunselt flccly In advance, WIth a reservatIOn of the right to emigrate [If he dlsagret"s WIth the maJonty-wIlIJ his staying m the count! y IS a taCit (onfirmatlon of the obltgatlOn he ongmallv assumed, and thus the common Will always (ontlnues to be the sum ofmdlvldual 'WIlls 21 U For Sleyes' vlew~ on repruen~atlOn <,ee I, pp 68sqq, 129-30 (where he speak~ of government wndu( ted by pIOXV, and of the representative WIll of an as>embl'j' of deputIes, m wluch the common willIS, a~ it we're, III comml,slOn),eI 34, I4qsqq , I9"J,qq, 208>qq (where deputIeS are deSCribed as representatIve" WIth a generdl mandJ.te, whICh remam~ none the !c,s at the fn'!" dIsposal of thme who gave It, and I' thu~ revocable a, well as lImIted, so thdt the deCl>lOn of the representatIves IS 'the product of the gene rahty of the wl11~ of all IndlVlduah '), '37'isqq, 3R5~qq, 11, pp 275'Qq and ',72-4 (where It IS argued that everythmg m the SOCIal ,tall" IS a matter of H'pn,entatlOn, and that men lI1CTeas(' thl'lr Itberty 'When the) dllo'W themselv" to be represented 1Il as many wa\, as pos'lble, Just as they dlmullsh l It when thl'Y accumul.lle a number of dlilen nt Ieplesentatlve capaCItIes In one plrson) 220 Cf II, pp 37 t ~qq there IS, essentIally, anI) one pobtleal authOrity, but there are dt/fe-ft'nt forms of repr.'sentatlOn based on dIfferent mandate~. 221 ThIS IS the ca~e WIth ~l heldemantel, the Sehlozers (fath( r and son), and Hoffbauu, d pp 126-7 ,upra, and nn. 183 and 186-90 to thIS sectIon ... 222 Cf Flthte\Naturrfcht,ll,pp Ig-'H (Wor.\.r,lII,pp 204-6) Itlsonly 'hypothetICally' that the IndIVIdual IS also a subject, for he only becomes such if he falb to fulfil hiS dUtIlS Cf also Works, Vll, pp 153 ~qq 223. Sl'e, for all tlus, the Naturrecht, II, pp 15-18 (WorAs,lIl, pp 202-4) cf also II, pp 23-4 (Works, Ilt, pp 207-8). ~24 Naturrecht, II, PP 17, 19, 23-4, '14,qq (WorJ.s, III, pp 203, 10 4, 207-.'1, 215~qq). In the later Rechtstchre ~PosthumoUJ Works, II, pp 49j and 632) he stIll holds that the 'Whole IS only the 'totabty of the membns', and that there can be nothIng In the wholt ' :ch doc~ not eXI~t In a part 225 Thus he. remar],s that 'phYSical, or mystICal, penons' may eIther of them exeruse pubht authorrty, but he proceed, to explaIn a 'my,tIcal person' a~ beIng the m.IJorrty at any gI\Cn tIme, and therefore as 'frequently also a variable person', Naturrecht, I, pp 191 and 195 (Wor.\.s, III, pp. 1:/1 and 161) AgaIn, argUIng that marrrage IS a natural and moral sOCIety, he counb husband and 'W Ire as 'one person', and he dla'W, the condu~lOn that, WIthIn the household, there I, eomplele commulllt) of property, though externally the one 'Jurldrtal peThon' IS represented by the husband alone, who can act for hts Wife along With Illmsclf. SImIlarly a marrred couple, as one JUridical person, has only one vote, whIch IS given by the man, though hIS WIfe ma".:lso gIve It on hIS behalfIn the popular a&~embJy Iflle be prevented from domg so, but ~nmarrled and mdependent women have therr o'Wn right to vote (Naturrecht, II, pp I58sqq and 213'qq. = Works, III, pp 301sqq. and 343sqq). Cf. also II, p I = Works, III, p Igl.
But Szeyh admits rcprcsentatzon
Flchtcand Rousseau
Flchtc on moral pcrsons
Gierke's Notes
226 Naturrecht, II, p 250 = Works. III, p. 371: Rechtslehre, p 638 227 Natum'cht, I, pp. 122~qq. and IlJosqq = Works, III, pp I02sqq and 150sqq. Rechtrlehre, pp 507sqq and 627sqq No account bn be gIVen here of the subtle cham of deductIOn by wluch FlChte attempts, in hiS Naturrccht. to solve' by a strict method' the problem' of finding a Will such that It is Simply Impossible for It to be other than the common Will, or, m other words, a "'Ill in whICh pnvate wIll and common wIll are synthetically umted' nor (an we attempt to des(flbC' the moddlcatlOns m the ~olutlOn of this problem which art" mtroouced m the Rechts/ehre. 228. Naturrccht, Introduction, Ill, and vol I, pp. Ig8, 217sqq, 225 sqq. = Works, Ill, pp. 16, 164, q8sqq ,IQ4sqq Abwlute unanimity I~ nt"cded not only for the pohtlcal contract, but aho fOT eVt"ry alteratiOn of a 'constItution based on Right and Rea~on' (though an)' person may take 111 hand the transformatIOn of a constitution which IS not based on RlghtllltO Ole which IS) relative unammily I~ ~uffinent for the eleclion of mdlvldual magistrates, and aha for deCiSIOns of the people In rt"gard to a magistracy or Ephorate whllh has offended agamst RI~ht.1 e a very considerable majority (~ay~even eighths) may exclude dlssenlients from [paItlclpatmg III the action of] tht" State on such Issues. 229. Naturrccht, I, pp 179sqQ, 196, 201 sqq, 206, 210-16, 222sqq. = Works, Ill, pp 150~qq, 163, 166,qq, 170, ,173-7. 182,qq; see aha Urorks, IV, pp 238sqQ For the exerCl~(, of Its sovereIgnty the People romt assemble as the 'commumtv" thou~h In gre<lt Statcs It ne/;,d not assemble m one place. but may gather' hele and there 111 really con~Id(Table bodlcs' 230. Naturrecht, I, pp. 179~qq and 1~2sqq = Works, m, pp 150sQQ and 160~qq In order that the common wIll, which ..hows It~elt pnmanly 111 thc unammous wlll of all, may always remain a really common WIll, the exerns" ofpubhc authorIty must be transferred to one or more per;c;J~ (the Executive), and thIS transference Involves In ItS turn the appoIntment of representatives of the people to watch the Exeeutlvc (the Ephorate, or body of'ove~eers'). The reason whIch rlchte give; IS slgmficant Sl1lce both the law-breakers and the 1I1Jured per,ons, who repre,ent pTlvate wIll~. are slmultaneousl)' also members of the commulllty, it follows that the eommudlty [If It attempted to deal", Jth the (onflIct, Instead of leavmg It to lt~ repre~entatIve5] would bc both Judge and party tu the 'Ult 1Il the ca,e at Issue betwet'n the two ,Ides (We may note that Flc/,te's 'Ephorate' ha~ an ancestry It goes back through AlthuSIUS to CalVIn, cf. supra p 248] 231 Naturrecht, I, pp 192, 204--Q, 224 = WorAs, III, pp 160,169-73,183 thus he ,peaks of the re~pomlblhty not only of the government, but also of the ephorate, of the final decL'lOn of the commumty, of the nght of revolulion 111 the last resort, and of the total cancellatIOn, by the commumty'~ Immediate declarallon of It~ Will, of any as~umptlOn ,eemIng to suggest th/;' expressIOn of that WIll by those who arc really it~ ctecutorr 232 Naturruht, I, pp. 213-15 ~ Works, 1II, pp 175-7 233. Sueh an organic conceptIOn appears In the Grundzuge des gegenwartrgen Zl!ltalters (Works, VII, pp. 144sqq ), the Reden an die deutschen Nation (Ibid pp. 380sqq ), and the Staatslehre (IbId IV, pp. 40gsqq. and 419SQQ ) 284. In particular, he never atta1l1s any conc"ptlon of tloJ' State's personalIty. . 235. See Kant's Metaphyslk der Sitten, Works, VII, pp. I and 20. 286. Works, VII, pp. 120--3 and 142-6.
Flchte on the rnaJonrypnnctlJle
Flchte on
representation
and on
, Ephors'
The People always finally SovereIgn
Notestor6
237. Works, VII, pp 161 and 165, and the essay <:urn eWIgen Fneden, VI, Kant's VIew pp 405sQQ Kant derIves the whole of mternatlOnal law from the aXIOm qf States a~ that States stand to one another m the po~ltlOn of 'moral pprsons' m the TTUJral persons ~tate ofnatllre~ubJ{Tt,however, to an obh~atlOn of RIght that they should enter mto a sy~tem oflegal relatIons Argumg that It I~ wronl1; to aboh~h the eXIstence of Ihe Slale a~ a moral person, and to turn It mstead mto a mele 'thmg', he deduces from that argument the IllegalIty of arrangement~ by whIch one State can acqullt' another, a~ If It wen' a thmg, through mhentanLe, purchase, exchan~e or donatlOn, or by whIch 'States can marry ant' another', as has hItherto been the usage m EurolX' [cf. tu, felIX AUJtna,
nd~
2as The three powers are' the umted common WIll expressed m three Authontles
In the State moral persons In Kant's
persons' (WorAs, VII, p 131) they are' co-ordmated' WIth one another' as manytnloral persons', but at the ~ame tIme they are aha' subordmated " under a sy~tem by which each of thctn, 'wlule commandlllg III the capaCIty of a ~eparate peNon, Issue~ It; command~ under the lImIts Imposed by the WIll of a person who is supenor' (IbId VII, P 134) The ~upreme Head of the State can be eIther' a physical or a moral per~on' (Ibid VI, P 323, VII, P 134) the hIgh court ofJustIce IS 'a moral person' (IbId VII, pp 25 and ~17) People and SowreIgn, 'legally consld'red. are always two separate moral persons' (VII, p I "l~) 23!l Kant often oppo~es the 'State', In the sense of the Ruler, to the 'people' (e g VI, PP 418 and 421); but, conversely, he often defines the 'State' a~ 'a umon of a multItude of men under rules of la\\-' (VII, p 131), and 111' thus Id"nllfie,> It \\;Jth the' J-!.oph ' (VII, p (33) 2,:1.0 Wor!.s, vI, pp 327~qq, VII, pp 131 and 13'3 The people bt'comes a Stat" \\ !wn ornnp, Ilt Hnf{llh ~urrender dIelr external fr('edom, In order to receIVcert back a~aln at once ut Ulll/lenl, 'a~ parts of a common eXI~tenLe, I e of tht' people regalded as a Statt' , , all now deCIde about all, and therefore each about hlm~elf, and since no man (an do wrong to lumsclf, thl'> I'> the orrgm, and the only orrgm, of bmdlTl~ law 2 to 1 Wor!." , VI, PP 327-8 and 41&-20, VII, pp 34, G2-3, b(i-7. 106, 1'3 1- 2 Kant alway~ ~pt'ak~ of the' WIll of the wl.uk people', 'the agTecment of all', 'thF Uluted wIll of a whole pl"ople " 'a collectIvely general (or common twill vested WIth power', 'the Uluted WIll of all', 'thF conspntwnt and Uluted \\-ill'> of all', de In dOIng ::'0, howev,r, he huut::. the nght tOJOl11111 exprc,>slllg thl~ w111 to tho~e who have the light tn v r ,_ -a clas~ \\-hleh dof''' not rndude those who work fOI wagt'~-though he adnllt~ the pilIlclple of equal votlllg by hcads wltlun tIm da~,> (\,I, pp 327-8) 242. Work., VI, pp 32U-9, cf pp 33 I and 336, wherf' the Supreme Head of the State app('an a~ the' represf'ntatlve' or 'agent' of the SOVt'1 elgn power, and when' It IS argued a~c()rdlllgly that 'hl~ WIll gIve~ command~ to lus ~uhJect~, as CltI7 f'n.." only becamt' he represents tllP general wIll' 243. CL VII, PI> '36-7, where Kant, argulllg that the theory of law, hke that of morab. IS a theory of dutIes, contend~ that man can and must be Lonsldered, from tht' standpornt of such theory, '111 the lrght oflus attnbutf' of possesslllg capaCIty for tret'dom-a capaCIty which IS wholly supra-sensual -and t1'tLrefore In the lIght of hl~ pure human Lharaeter, as a personalrty independent of ph)'~ILnl determmatlOn, 111 contradlstmctIOn to hImself III hIS other character of a bemg a{frcled by such drtermrnallOll, I,e'li member of the human SpeCINl (homo phaenomenon) , See also p. 153, n E, wnt're Kant
~o
VIew
Kant on State awl People
Kant on the will of the People
Kant on 'phenomenal' and 'noumena/' Man
33
Ciierke's J\(otes
The survwal of/he 'urganu' metaphor
The Idea oj the mechamsm
explains that a subject who is undergoing a penalty is, as such, a dIfferent pelson from the 'co-legIslator' who enacts the penal law. 'When I pass a penal law against myself a~ a law-breaker, what happens IS that the pure lawgl\ mg Reason in me (the homo noumenon) mbJects me to that law as one capable ofbreakmg It, and therefore as another person (the homo I}haenomenon), at the same tIme that It subjects alI the other members of the CIVIC assoCIatIOn'. Cp the consequence~ derived from tlus distInctIOn [of noumenal and phenomena] man) 1U the Tugmdlehre (pp. IQ5sqq.. 222, 241 sqq., 244sqq), where they are made to mc1ude (I) the PO,Slblhty of a duty which one must enforce upon ont'~elf, (2) the ab,o]utc value of persons, as ends in themselves, and never mean, to ends out5>lde themselve~o and (3) the pm~lblhty of bcmg one's own court of law 24.1, Cf Works, VI, pp 329~qq, VII, pp 158-9 and espeCIally p 173 245 We find such ana]ogIc, with the orgam~m drawn bv a nwnber of \Hlters Spmoza(cf Tract pol C ~,&l~,( 3,&&I,2,'),andEth IV, prop. 18 scho1.) gencralIy df'scnbf's tl](' cWltas a, unum corpus WIth una meTlS Pufendorf (] n. et g Vlll, I" 12, 7) expound, a thf'ory of the 'thlee speCies of bodies' (natural, artlfinal and moral), and a~cnbing to thf' mOTal speues a umty which IS produced by a lImmlum moralc. and remams romt':lI1t tluough all the changes In ItS compOSItIOn, be conr/udes that the State, a~ an example of the moral speCies, est res quaedam unzco et contmens, SZnlmallf Instar Hl.-rtlus, In til(' De modo conrt ;ect. I. &2-3, 'pc.lks of Ulla quasI persona, Jell unum corpus, which rem;llItS IdentlLal thruugh all (hal1l;(e, and pre,crvcs permanent attnbutes, and of an amma m corpure, cxi~tlIlg 1Il virtue of an lmpmum. cf Ill~ AnnotatlO/les to Puf('ndorf'~ ]us nat et I?ent I" I, 3 n 4-quamquam nei;aTl qzu:at entwm morallllm et naturalwm magnam mterdum eJse slnlI!ltudmem, e g corpons humaTli et cWltatlr, quae etwm orpus /'Oea/ur rt ammam swe vItam habere daltur (scc aho p 122 supra) Analogle, ... lIh the orgamsm are aho drawn by.GundImg, De unn' delmq 6--8, Schmlcr, I. c 3, no. 66,J H Boehmer, P. spec. I, I" 2, 1-2 (corpus mmate. and unus spzntus) , Al.-henwall, n. 180 to tIllS sectlon Note aho the elaboratIOn of the anal0ln' WIth the vanou' hmbs and organs of the natural body Lv Kmchcn (Opus. poll, C 6. th J I, ... here head, eyes, tongue, ear~, hair, arms, fl.-el, J0Int~, hcart and nel.-k arL found fOl the corpu.; mystlCum ad rorpons lIlTI venque modum concmnatum, and reference I~ made to the SimIlar, If In some re\pects dIfferent, Jeux d'espnt of Guevara, Fauus and Hobbes) 246 Cf supra, nn. 195, 197 and 224 to thIS sectIOn 247 This Idea lof an artlfiClallmltauon of the h,Ing orgamsm] appeals in SpInoza, lac. Cit. We aha find It In Pllfendorf, who expres~ly commends the analogy WIth homo art!llcw!ls (n 144 to thIS sectIOn), and argues (] n et g VlU, 1".12, S7) In favour of the permanent unity of the 'moral body' from the aXIOm laid down by Hobbes III hiS Pllllusophw pnma, I" 2, 7, that Sl rel allCUI propter formam talem, quae SIt pnnClplUm motus, nomen mdttum Jlt, manente eo pnnClplO idem eJt Indwlduum The Idea also appears in Herttus (supra, n 148 and n. 160 to thIS ~el.-llOn), In Gundhng (n 163 to thIS sectIon), and other wTlters, cf also Horn, supra p I 15 248. Cf supra, pp. 1~8-130 and 131-4 Rouss('au even descnbes the govermng body, In so many words, as a corps artlfiCiel whIch I~ c~d.ted by another corps artzjicul, III, c. I. 249. We thus find the analogy of the orgamsm entIrely absent from the wrItmgs OfThomaslus, Wolff, Danes, Nettelbladt, the Schlozers (father and
I:
Notes to 16
33 1
son), Hoffbauer, W. von Humboldt and Kant MerCier de la Rlvl~re f"X, phcltly says that a nation IS not a corps umque, and that It has no smgle will.
ee qu'on appelt'e une natIOn en eorps n'e!>t done Jamals qu'une natIOn rassemblee dans un mime luu, ou chacun apparte ses OPIniOns persannelles, ses pretentwns arbltrazres et laferme resolutIOn de lesfazre prlz'alolr A majonty IS nf"ver more than a 'coHntlOn of mterest~' and a vanable 'result of egOJsIDS " and unammll y I.'> Impomble (c 18). \:!50 A. L von Schlozt'r says (p '3) that' the most mstructlve way of dcalmg with the theory of the State IS to treat the State as an artdiclal macIunc, entirely composed of a,scmblcd parts, whIch ha~ to operate for a defimte end'; cr. pp 99, 157 Kdllt .'>umlarlv !>peaks of the 'mechamsm' or the 'machme-hke character' of the ~onst1tutlOn of the State, and descnbcs the State as 'the mechamcal ploduct of the unIOn of the peopk by COLrnve laws' (W,.,-ks, VII, pp 1')7-8) SICyC.'>, though he docs not wholly ~uc(Tf"d III aVOIdmg the companson with a bo<!y (I, pp. 283 ,qq and 44':isqq ), base, the State entirely on 'the mechamc~ of SOCIal art' which rea,on prOVIde, (I, pp 128, 195.'>qq, 217~qq ,II, P 370) [Tom Pam.., would-be engmeel and bndge-bullder, ~mularly use!> mechamcal anaJoglf'" m 1m Cornman Smsf of 1776 e g 'as the greater weight Will alwayS can y up the Ie,,>, and a, all the ",heels of .1 machme ale put III IT.otlOn by onL, It only I ( mam, to knov, '" IULh po\.\er m the (Oll,tltullon ha, the most weight, for that Will govern' I 251 We find dll~ lr.Hlu~e to face the problem of GroUP'pl r~onahty] In PrasLhlw" Place1U5, Alberli, FIlm... r and other antl-mdlvlduah,t tlunkeT' It IS aho to bt' found 111 Jmtl It IS tru<, that he empha!>I'e~ 5lJollgl\' the orgamc nature of the' moral body' ,argumg that the <-ommollwralth IS 'a smgle Illdnl~lble bod., wlucll hd'> the do~e,t (OllnectlOll 1Il allib pal t, " and seeklllg to prove, by th" algument, the nCcC'5lty of a ,mgJe glOup-authonty <-ontrull.d by a latlOnal wlIl, the eXI!>1eflCe of a ,y~tem of mutual lIlteractlOn by winch all the parts affect one anoth(f and the whole, and the perl1luou~ result~ of any mperfluou5 part which contnbutes not!ung to the general ~ystem But he has nothmg whatever to ~ay about the per!>olldhty of the State or the people (et' III' Natllr Imd Weten, 23-6, 28, 45-50, and hiS Grundm:;., 15,17, 23sqq, :.!gsqq) 252 McvlU'> for examplt, though Ill' makes It the object of pohtfcal a.>,ouatlOn ut una velut penona Ht, CUI una mens, unUJ sensU!>, una <Joluntas et 4mma mter multos velut una atque eadem, m.lkc" the UnIty of thIS pcr,on depend for ItS eXistence entuel y on the mbm"'lul' :! all other Wills to the wJlI of a representatIve Ruler (,>cc n 1Z5 to tim !:oee-tlOn) In the samt' way S. dt' C()(U~J1 wIll only reeogm::.e a representative dnd collective Ulllty of [group-]persons,'" notwtthstandmg the fact that he cxtend, the eonceptlOIl of the sonal body, with authonty over ItS member.'>, untJllt I' made to embracc the f:ltate, the CorporatIOn, the [College of] Magll>tl.ltes and the FamIly The remit I, that all these bodle, lemalll for hun corpora artificzalw seu m)'stlca, except that the Family magIS natwale than the re.'>t. Cf hIS NOI' Syst 199, z05, ZHo-I 253 Lelbmz argues (Nova methodus, 16) that the legal 'Subject' (the subJectum of a 'moral quahty' which may be eIther a nght or an obhgatlOn) can be eIther a jJerrona or a res Definmg the:' former as a substantza ratzonalll, be then ~IStlllgU1shcs between personae naturales (Deus, angelus, homo) and
The Stall' a mac/line
"flllure to face the problem GroupjJerSanallly
or
1,
Letbm:;.'s theory of assocIatIons
1I1
In
1 e. they are' on:' In VIrtue of bemg 'rcpresent...d' by a smgl... agent, or one' the ~ense of bemg a collectIVe aggregate of wills, but not one' tnherfntly and
thelll8e1ve8.
33 2
Gierke's Notes
No real Idea ifGTOUPpersonalIty In the eIghteenth century
!iersona cwllls (collegzum, quod qUIa habet unam voluntat~m certo signo dlgnosczblleme g ex liluraZztate votorum, sorle, etc.-Ideo obllgare et oblzgari POlest). He- regards a res as the' SubJect' of nghts and duties when e.g. property IS lett to an qfficlum, or an qfficlum IS made responsible for some act, and general1y 111 any case of JUS reall'. He descnbes a !iersona ClVIltS seu moraZzs, 111 so many words, a~ a persona ficta, brought mto eXI;tence ad mstar naturaZzs by an artificial umon of wills, and to be regarded, m the last resort, as an aggregate or col1ectlon of nght~. In Jure relpublzcae persona I'Jus cwllts seu moralzs contmetur, nam omnes personae cWlles seu fictae corporum, colleglOrum, unwersltatum m aggregatlOne JuTtum conSIStUll/ (Spec. dem pol. prop I, p. 52,')) : persona CWzllS omnzum Junum collectlO est (Ibid prop. 57, p 585), cr. also the IntroductIOn to Cod gent dlpl. I, 22, P 306, and Caesar.-Furst c I I. He re-gards the person of the State as Identical With that of the Ruler, and he makes It accordmgly a persona natwalts m a monarchy, but a persona CZVzllS 111 a rer-ubhc (Introduction to Cod gent dzpl lac Cit, Caesar-Furst, lac cIL; Spec. dem pol prop 1,12,57) In 1I1ternatIOnal law, therefore, both' natural' and' CIvil' penons are In Ius VH'W 'SubJects' of nghts (IntroductIOn to Cod gellt dlpl lac CIl), but he argues that If fnend;hlp IS nowadays rare mter prmczpfS (S!iec. dem pol prop 41, p. 560), neither fnendshlp nor enmity IS pOSSible mter Rerpublzcas Such ft>elmgs anse ex ammo, and ammus non mSI personarum naturaZzum est, cZlizlzum nullu.r; and [while the' CIVIl person' of a repubtlc thus cannot have fnendship or enmity WIth another ~tate, because- It ha; no ammus, neIther (an the 'natural persons', or mdlvldual~, who constitute such a corporate person, because these] natural penons and t1,elr amml are 111 a state of perpetual flux (lind prop 42, p. 56!) For a cntique of the VIew recently advanced by C Ruck (DII' Lelbm;,sche Staatslehre, Tubmgen, Igog)-that LelbIllz understood the permnah~ of the State m our modern sense, and created the legal notion of' organ' to expre~s the relation of the Ruler to that personalIty-see the author's r('VIew 1tl the Deutsche Llteratur,;:,ellung of IgIO, pp 566-8 254 Any such legal conceptIOn of Group-personality 1; not to be found 111 Monte~qUleu, VILa or Fergu~on FredenC'k the Great ha~ some element~ of the 'conceptIOn on the one hand, he represents th(' ~tate as an ammate body WIth lImbs and organs, and explam; Jls birth, It~ maladJ('~, It~ death, and the pecuhanlles of It; nature, by means of a compan;on WIth the mdlvldual man (Antlmach. u 3,9, 12,20, ConsIderatIOns, 111 In; Works, VIII, 24, Essaz sur leJ formes, Ibid IX, 197sqq) on the other hand, he regalds the Ruler as only [an 'organ', or J Ie premll'r sermteur et premIer maglStrat de l' Etat (Antlmach e. 1, Memolres, mIlls WorkJ, I, 123, last Testaml'nt, Ihld VI, 21'), Essay, Ibid IX, HI7), but m SPltl' of these two complementary Ideas he never attams to any clear expressIOn of State-personality. Justus Moser kno\\s nothmg of any' person' of the State (Patnot Phant. I, no 62)' he even disputes the nght of a natIOn to gIve Itself freely a new constitutIon, on the ground that It IS 'not a smgle bemg m Itself', but is composed of two classes WhiCh, If clther IS umted mternally, are only connected together m their relatIOns With one another as separate parties to a contract (Mlsc Wntl1lgs, I, PP 335sqq). ~ Herder agam-however vigorously he may champlOn'the Idea of development, however resolutely he may insISt on regardmg the Ide of a people as the comihon lIfe of an orgam;m, however frequently he may speak of a
Notes to 17
333
national splnt and a national character-none the less falls to transcend a mechamcal conception of monarchIcal InstItutIOns when he seeks to analyse actual States-(Ideen, IX, (', 4, XIX, (,6). While he trace5 'thl' first breath ofa common eXlstenct" In the constitutIOns of town" gUIlds and UniVerSIties, he nl'ver carnes his account of the' body pohtJr' to the pomt where he reache~ the conceptIOn of an Immanent Group-personahty (Ibid. xx, Co 5)
J7. THE NATURAL-LAW THEORY OF THE STATE
1 Cf Hub( r, 1, ( 1, 12-23, Hert, I, I, pp I \qq , J H Boehmer, P gen ( 3, ~~ I I sqq. Schnucr, Jus pub! Utili', Du ( praeambula, DarIe\, P sjiee ~b,)45qq , Adwnwall, n, g85-7, Hflllcke, Pro leg (, I, SID By all the5c \\lltl rs JU( jiublzcum uTl/versale IS Identified wlth)us jmblzcum naturale, 01 With a part of)UI soczale naturale. and the dl~tmCl1on dra\\ n bet\\ el'll Jlubhc la'" and pohtJral thl'ory IS explamed a5 comlSl1ng m the fart that the State I~ consIdered In (he tm mc~ ratiOne jurtt, and m (he latter ratIOne UtellS .J H B(whmc r was the flr,t to compose a 5eparate (ompendlum of JUS publzwm uml'enale ror, a, French WrIters expre,s It to-day, 'droit eOllstltullOnnel compare'] under that title 2 At first we find no dl,tll1ctlOn drawn, by thost" who are en~aged 1ll altal kmg the older doctrInes, between thL pure theory of the sovt'relgnty of the ueople and the theory [of the CO-('xl\tence] of ma)erta\ realls and (iersonalzs cf Mlcraehus, I, c. 10, I2sqCJ and qu 7, pp I 12sqq . Cellanus, c 9, 18-25, j'elwmger, De mil) ~22 and 41. Bubel, I, 2, ( 1, ~21, T, 3, c I, ~1I-20. Pufendorf, J n etg VII, C 2, &14, C 6, 4, and De off hom II el1'. n, c g; Thoma'lus, InstIl )Ur dw. Ill. c G. 12 I. J H BoehmeI, P (PiC I. C 4, ~22 n. t and Ill, c 2, S5, n x, Schm ...r, II, c I,' 2, I, no, 48sqq Gradually, however, both oj these tllcuJle, [that of popular ~OH rel~nly and that of 'double majesty'] were lumped together, and any (OnuptlOll of maystas rcails was 5tlgmattzed a~ a product ot . monarchornaehl\m' Born [who \\rote about 1660] J\ aires:' . ondemnmg 'real majesty' as a mOll.rlTllm and jabulo5Us joetus mdeed he evpn declares the theory of 'leal maJe~ty' a ellmmal theory, and expresses a pIOUS WIsh for the exec utton of Its advocates, addlllg that, If they lIve l1l a nelghbourll1g 'plebeIan' State, a request addre"ed to that State for their execution would be warranted by mternatlOnallaw (II, c 10, I 1-15)' See 1Il addItion Zlegler, I, c I, ~ 44 5qq Boeder, II, C I, pp 93-B (where the theory of real maJesty I., ~ald to be a theory of regleldae). Beemann, c 12, SIT. Hert, OPI/SC I, I, pp 30 7- IC), Kl:'~tnf'r, c 7, g, Stryck, Diss. XIV, no 7, C 2, no. 54. Gundlmg, Jus nat. c 38, 22 (,uch theoue, are lm'enta otWSl zngcml), AlbertI, c 14. 3, Hemecous, Praelee. I, c. 3, 8-g and Elem )ur nat II, I3o,qq , Ra,hehu", I, tIt 32, ~2 (~e theory IS summa pernlCles), Hemckc, I, C 2,9 1 5, c 3, 4. Krelttmayr, 5, Schelde~ntel, I, pp. I I I sqq (where even the theory of Rou~\eau IS descnbed as a theory which makes' real' majesty eXist by the Side of pelsonal " and is controverted aecordmgly)
Umwrsal publiC law
.1t1acA\ on the theUlY rlj 'doub(e ma)esIJ'
334
Fortunes
qf GrotlUs'
Gierke's Notes
theoT)' of the subJectum commune
Sovereignty the same m all forms qf State
S. Thus Beemann Writes (c. 12, 7). subJectum majestatlf est tum &spubltca SPU perso/la moralls quam Respublzca mdult, tum I'ersonae smgulares quae moralem , IStam lepraesentant. But .... hat he understands by Respublzca IS \10 more than UllwerSI or omnes slmul. and he proceeds to assume a system under which this collective body IS lepresented hy lht" Imperans so perfectly that neither IS supenor or ~ubordmate to the other, but the one stands to the other III the same relatIon as an object docs to Its reflectIOn m the mirror. cr. also Treuer. on Pufendorf,De off hom et CIV II, C 7, ~9 (respublu:aperpetuum majestatIS subJectllm manet). Rachehus, I, ttt. 32, 2, Mullerus, I, c 7, 6S. 4 Schn1ler, for example, holds that It is pos~lble to follow Grotlus m a~~umll1g Loth a subJectum commune and a sub]tctum propTlum, provided thdt the dlstUlctlOn be interpreted as It I~ by'Boeder and van der Muhlen 111 their notes to Grotms-I e pIOvlded that It be under~tood to refer merely to the Imeparable connection ofmaJ<'Sty \\11th the corpus rezpublzcae Tltefo'J!latum and the possible reversIOn of that maJesty ,to the people (Il, c 3, s I, &I) Kulpu, (m hIS Exerc ad (;mt1um, n. 6 n ) and Hert (p 2g8, 12) take a ~Imllar lme Ickstalt mterpret~ the subJectum commune of Grotms as ~Igmfymg mt'rely the ongmal sovereignty of the people, and he therefore prefers to suh~tltute the term~ mbJcctum constltutwum and actlVum [for subJutum commune and pro/JT/um] , d OpUJc II, no I, C I, &12. 5 (f Horn, II, ell. I , Pufendorf, J. 71 Ft g VII, C 6, ~4, Dc oJ! hom et ClL II, C g. Kestner, c 7, 9, Boeder, 17lSt1t ',I, c I, AlbClII, C 14, 3, Strylk,Dlss XIV, no 7,C 2,no 'J5.Helllcke,l,c 2,~I5,c 3,4 6 Cf supra, pp. I I I and I IS-b, ~ee also, for anw/{fS to Horn'> theory, Huber (I. 3, C 2, ~ 7~) and Pufendo"" (J /l et g VII, ( S, Ss, De (!if hom et (IV II, c 8, 4). 7 ~ee Spmoza, Tract. theol-pol c 16, Iract pol C 6~qq , 1-llcraehus, I, cc 10, I3-IS,Hubcr,I,3,c 2,1,7.( I,Pufendorf,J n etg vlI,c.i),DeojJ hom. et CIV II, c 8, Lelbmz, Spec /)01 dem prop 16-18. Hel t, Opusc I, I, PP 3 l g sqq, TltIUS, VII, C 7, ~~I7-28, Bm~uet, II, art I,]. H BoehmeI, P. 111fC 1, e 3, ~ 13, c. 4, 29-34, ~chmKr, 1, c 3, HemecclUs, II, 116 ~qq , Wolff. Inrl1t ~99osqq, Jus nat VIII, ~ 131 ~qq , Danes, 747~qq , NettclbJadt, S1133, IIS3;qq, AchenwalJ, II, ~~I495qq. ~cheldemantd, I, pp' 39-40, Hoffbauer, pp 206 and 295~qq . A. L 'von Schlozer, pp 7ssQq and 95, ~ '1. The last of these wnler;, ~tate; 'the Ruler IS the Ruler, the d('pOSltOry of the common ",ill, be he ont, or some, or many crown, sceptIC and throne are essenlwlza In ~chafI hau~en and In Stamboul' Tlus pnnuple 'overturns once and for all the lllsolence of the smgle ruler, dnd a\\lakens the democrat from hiS dream~ of hberty' [1 e It shows to the one that he IS but a depOSitory, who has received hIS authonty as a de/Josllum--' a thmg for custody, to be redelivered on demand '-as It shows to the other that even III the democracy of lll~ dreams there cannot be absolute hbf'rty, WIthout any sceptre or throne, smce wink there IS a sOCiety With a common will man cannot be, as Shelley dreamed, Sceptreless, free, uncIrcum,cnbcd, the kmg Over hunself] On the other hand we find Cundlmg contending (Jus nat c 37, ',,-IO and DISC c. 36) that, whIle there IS rule by una persona ev<!tl 111 a republic, thiS , person' IS only morallter una, and the process of dehberatlOn whtch must necessarily precede ItS decISIOns makes the suprema /ioteslas weaker.
Notes to 17
335
8 Cf Huber, r, 2, c. 3, and IllS Opera minora, r, no. 2, c. 7; Pufendorf, J n et g. VII, C. 2, 14, c. 6, &4sqq., Alberti, c 14, 3, Hert, Opusc I, I, pp 3 11 sqq.e; Gundhng, c 37, J H Boehmer, P spec I, c 4, III, C. 2, TIlluS, VII, C 7, 20-Q, H. CO~Cql, Prodromus, S. CocceJI, t>17-IH, SchmlCr, II, c 4, s. 2, 2, no. IOgsqq , Hemeccrm, II, S 138, lekstatt, Opusc II, op I, ~ I, 14- IS, Krelttmayr, 5 9 In dcvelopmg these Idca~, the thml,crs of tIm age were no more successful m eludmg the contradIctIOns whIch they mevitably entaIled than those ofa prevIOUS age had b('en (rf supra, P 43 and n 43 to 14) Mo,t of them a~sum('d that t1H'n' must havt' been, even m a dt'mocracy, a formal translatlo Imperu, whIch had taken the form of a contract of subJectIon made with a permanent popular as~emb~ or a maJonty th('reof (S('e Mlcraehu~, L 10, gsqq , Huber, I, 2, c 3, 25sqq, c 4, Ilrsqq, Pufendorf, J. n et i VII, C 5, 6-7, De (iff hom et CIV II, C 6, g, Becmann, c. 12, &.pqq , Hert, Opusc I, I, pp 286~]q and 317"QQ ; Kestner, I, L 7, 3, HemecClus, II, r2g"qq.; Danc~, Praerngn S24 and Jus nat 6S8-60, Ickstatt, SHsqq) Those who made thIS assumptIOn wen' forced to suppose that the oth('r party to the contract [1 e the party other th.ln the p('rmant'nt popular assembly or a maJonty thcl eof] wa~ eIther (I) the sum of all mdlvlduab, or evc:n (2) a mrnonty of those mdIvldual>, '" and they were thui> compdled to make democracy an e "e eptlOn from the general se-heme whIch they applred to all otht'r Mtm~ of State [Strictly speakmg, 11\ e may argue that on the first hypothe51s, I c the hypothc~ls that the sum of all mdlvlduah contracts With the' popular a~se'rnbly, thtre WIll be no exceptlon from the general scheme, which make'S allmdlvldualt; contract WIth a Ruler: but then' WIll be the dIfficulty, or th(' absurdIty, that tht' t1l\0 partIes to the wntrdCt are the same, and A I~ mel ely contractmg WIth A On the second hypothesIS. 1 e the hypothc~ls that a mmoflty of mdnlduals contracts WIth the maJonty of the j>opuiar ass('mbly, thIS dIfficulty or absurdity dI"appcan;, because the parties are dlf!prcnt, but there IS now an exceptIOn from the general scheme, because It IS only a mmonty (and not, as m the g('neral scheme, all) whIch IS the oth('[ party to the contrad \\1th the Rulmg authOt ltv 1 Other thmkers dropped the Idea of a contract ofsubJecuon altogethC'r III treatmg of democracv, and only \poke of a ""parate agreement or de.~lOn (followmg on the pIlmary contract of"oclety) to retam ,overeignty mst('ad of tran"ferrlng It TIllS Idea, wll1(h d~It't'S with the doctnne of ~marez, appears partIcularly m S~hmler, n, c 1, n ~ 3 and c. 4, s. 2, S3, and he IS led by ItS lOgIC to argue that the reverSIOn UI orH~lllal sovereIgnty to the people [m a case where that sovereIgnty has not been retamed, but tramferred J docs not l11so facto produce a democrac y, but only the pmslbIlrty of InstItutmg eIther that or anothel form of State [accordmg as the people, now 111 pos"esSion of the reverSIOn orlts sovereIgnty, deCides eIther to rdamlt or to transIer It]. The Idea may abo be traced III WolfT, ITlJtlt 982 .lnd Jus nat VII, 37tl., Nettelbladt, II'32. and AchC'nwall, II, g6-g8 and 174- 179 But the thmkers who propounded thI5 Idea faIled to explalll how the nature of soual authonty could be changed [I.e how vague popular sovereIgnty could pass mto a defilllte democratic authonty] when the' SubJect' of sucl>"authonty underwent no change. 10. Spilloza, TWlct. theol.-pol. c. 16, Tract. pol. cc 6-rr. It IS true that
0
The problem qf InterprttllU; democracy In terms nf contract
'" The other party wInch contracts With a maJonty of the popular &:>~mbly may naturally be suppo"ed to be the rrunonty.
Gierke's Notes
Spzno.<.a 011 monarchy
Spllloza regards an omnirlO absolutum zmpenum as desirable only III a democracy, whIch he considers the most natural and perfect of all forms of Stateor, to a less extent, III an an,tocracy Butjust for thIs leason [l.tJtjust because he confines absolutism to democracy or art>tocracy], he leJects monarchy, as belIlg a form of government whIch IS necessanly absolute by ItS very Idea, and he substItutes for It a mIxed constitutIOn, [~tnctJy ,p("akmg, Spmoza does not 'r("Ject' monarchy, He argues that, !lotentla bemg JUS, the form of State whIch has most potentia WIll have most JUS , and he cntl( Ises monarchy accurdlllgly, not because It IS absolute, but becau,e It cannot be absolute111 other words because one man cannot, however much he may try, posse,s a, much potentw (by whIch Spmon means mamly power of mtellect) d> a number WIll pm,ess, and cannot th~refore possess as much JUS Bavmg cntlcJS(d monan hy a~ defective III pown, .Ind therefore m nght, Spllloola proceeds to fortIfy it, III the seventh chapter of the Tractatus polltu:us, by a great counul, whILh wJ11 brmg mtelleft to Its serVl( e, and by a rfumber of other devlLe, \-\'e may call thIS a lmxed constItutIOn, and It IS, III effect, a mIXed constitutIOn, but Spmoza was thmkmg of a fortlilcatlOn of monarchy, and not of a mIXture of dIfferent pohtlcal clements On IllS own theory monarchy rem.ams, m ItS fortIfied conditIOn, as a pO~'lble form of Statenot rejected, but not preferred, even III ItS fortified condItIOn, to other fonns] 11 }'Jimer, who rejects millS Patnarcha all forrr1, ofStatc except monarchy, regards monarchy as necessanly absolute 12 Bo"uet (II, art I, m, art 2-3, rv, art. I, v, art. I, VI, art 1-2, VIll, art. 2, x, art, 6) arguLs that the peopl~cannot be conceIved apart from the l\fonarch, becaille he IS i'Etat mime, and willie iOLSforulamentaltl lIlay ,ecure hbertyand plOpcrly, they only bmd the monarch [mternally,J m Hrtue of the authonty WhILh thcy denve from God and lea~on, and never obli,ge hUll externally A sundar view appears afterwards m the PhYSlOcrat ab~olutl~ts, who SImply ehmmatt> the theocratic t>lements III the older thcory cf MerCler de la RlvH~re, e. 14, p 102, C 17, P 129, cc II), 23~4 (the only ratIOnal fonn of State IS a legal despotISm, all absolute heredItary monardw, where, the pnvate IIltere,t of the monarch cOlIlCldmg WIth the mtert>st, of hi, subrct" the mathematIcally ('vldent and mevltable pnuClple, of the ordre soclOl reIgn undIsturbed) 13 U Cellanus, c. 9 (' he who IS limited by fundamental laws I~ no longer sovereIgn'), PclzhoeHer, II, c 3, llccmann, c 12, ~4-7, Boecler, ll, c I Mevlus also (Prodromus, v, 23sqq) regards all the nghts of the Universitas as absorbed III ItS f>mgle, pit-nary and exclu~lve 'representatlon' by the WIll of the Ruler, and hold, that by the law of nature the potestas ImperaTltlum is necessanly una, summa, absoluta, ~oluta Iq~lbus et ratlOnLbus non obnox!a On the other hand the supreme authof1ty must do nothmg whereby SOCtetas pereat vel mfirmetur It must not, therefore, bnng the State under a foreIgn yoke, ahenate land, altt>r the fundamental laws or exercise tyranny (30), and It must use bona publica only for usus publiCi, and Impose taxes only In ca,e ofnece,slty Cf, m the same sense, AlbertJ, c 14, S3-IO 14, Horn, De ClV II, C. 10, 1-15 In a limIted monarchy, summa potestas reSIdes exduslvely In the monarch, and It IS only Its 'exercIse' lo"hlch IS hmited: the monarch can therefore, III case of need, brflk even the rules of the constitution, which can never be anythmg more than a contract to whlLh he has f~ely as,ented The oblIgatwn Imposed on hIm by an oath to the
French theontJ l!J

monarchy
German wnters on monarchy
Horn's
VieW
of
monalchy
Notes to 17
337
constitutIOn is only a relIgIOUS oblIgatIOn; and he can never be deposed, because he has no SuperIOr. 15. Pufen<forf attacks Hobbes for maklllg the two conceptIOns [that of 'supreme' power, and that of 'unlimited' lJuwel] mterchangeable. ef
n et t: VII, C 6, ~ I 3 16 J.n.etg.vlI,C.2,14,Deoffhom ellIV II,C b,II.cfn 132to16. 17 ] n el g VII, c 2, ~ 14 If flaIm/us I~ understood to slgmfy a Sub]ect' or owner of flghis (unum alzqllld unam habew .'olunlalem el CUi una aclw trzbuz potest), It becomes Identical \Hth clVzlas and ItS Will becomes Identical With that of the Ruler, and thm the paradox holds good 1Tl a monarchy lhat Rex efl populus But If pojJUlus I, under,tood to mean the multzludo jubdztorum, a~ cOlltrasled With the homo vel connluim haheTlI Impenum, It ceases entirely to ]
Pufendorf's view of popular rzghls
be a umt to whICh any o",nershlp of nght'> can be ascnbcd; and the tl'Lory of the 'nght,: of rCioI\tame, wlmh (onfuse~ mu/lzludo ""Ith pojmlus and proceeds, on the baSIS of that confUSIOn, to the 'mpo"'lble lonceptlOn 01 a rebelhon of the cWllaJ against tht Rex, I~ as absurd as It h ,ellIllOUs On the other hand IIldlvldual ,ubJc( t~ of th,' State contmue to be th.. pmse'>sor, of ~"parate Wills, although they are merged III a corj'Uj morale With una voluntas (J n el Ii VII, ( 4, ~2.])e off hom et lW II, C 7, ~2), and a, pm,e,wrs of separate wllh, they contmue to be natural' SubJccts 01 owner~ of fight<.. to ",hom the Ruler oWC\ oblJl~atlOns and 10 whom he may do all lfljw,I,(t' ( ] rl et g V'll, CC 8-g. VIII, C I, De off hom el Cl1:a II, cc ~J, If) BUl lIldIVldu.ll~ cannot appeal to any coeruve samtlOn III support of theIr ndtural nghts they mu,t endure the misuse of thf State's authol it \' a, men endure storms and bac! weather. they must go mto CAlle the~eh e, ~thel than expel theIr ruler, but they may bc competent to resl,t If the- wor,t (orne, to the wou,t and thc funddmental (()ntrae t Itself I' llloken (J Tl et!i vII, c 8, Dt, uJJ hom el ll<! II, e 9, ~4~ Al. compared With thu, eXpOSitIOn, PufemlOlf's attempt to prove the POS,Iblhtv of an obligatIOn eXI,tmg bLtween opllmaln and czvef m an anstm r.lcy '" both obseure and mvohed III ,elf-contradH tlOn In dealmg WIth thl\ p''''lbilIty, he not onl} mvokes the- argument that, allhough j}{lplllus ut persona moralzJ e>.plravlt, the personae j,lzy I 1(('1' 'll~ ,tlll there he IS even wlllmg to contend that the people elm-, not beev",e a multlludo dlSsoluta (thou,h It I f a~es to be a persona jlerfecta) after the tf'lnsferenre of I~ sovereignty, and he alleges III favour of th!> contentIOn llle argument that' at any rate when then' IS a Sellate, to ~erve, as It wen, as :<, ',cad, tht. people 1()rrns a per;on' (qUia ullqlle Jam cum smatu lanquam capzte JUU personam COlLltlluzt, cf ]. n et g VII, C. 5, 8). Ll'uJendorf's VH'W appear, to be that while a people With a king as It~ head I' not a person, ,I pLople With a Senate as ItS head IS, and lu~ reason may pelhap~ bf' that wlnle there IS ,orne slmtlanly between the people and a Senate, and wlnle the t""o may both somehu", be 'PC1SOru.', tht're IS a great dlfierenee between the people and a Kmg, who IS so dl,>Unct lrom Ins people that he I; a umquc pel ~on', and the y III comparbon are only a dllsolula multztudo But whatever IllS reason may have been, he ccrtd11l1y talb Illto ,eli-contradlctlOn, for after prodalmmg (Ill the precedmg paragraph) that there I' only one' State-per,on', Ill' allo","s two to cnllT man an,tocracy. (I) the \person' of the corzC2lzum habens zmpmum, and (2) the 'person' of the Normal people, wIlh thiS co mcI! ,ervmg as It, hedd 1 It! ]. n etg VlI, e G, ~13-17. In dealIng wllh bona publica Puf"ndorf monarchy follows a Similar lme [to that winch he lol1ow~ m dealmg war.. pohtical and Slatenn
property
III
s 11
""
Gierke's Notes
authority]' he assigns ownership of such bOlla to the cIVitas qua talzs, and he ascribes to the klllg only the pOMtlOn of a 'tutor', debarnng hun from ahenatlOg bonajJUbl1ca except by consent ot the people'.]. n etg. VlIl, L S. ~8; De '!fJ hom et CI1'. II, CIS, S. At the same time he regards a monarch appomted for a fixed time as somethmg In,oncelvable 19. ]. n. et g. VII, ('. 6, S!17- [2. De ojJ hom el cwo II. C 9. :.w bz.;tlt Jur. dll' Ill, C 6, Sb3 (defimtlon of the t;tate as a !JcrJona morallf composlta, which can \\-111 and act as a umt through the Ruler), S IIS-2U (on the nature and attrlbutu of lll<1jesty), S [27-31 (on the difference between an ImperIUm absolutum and an ImjJCrZUm lzmztatum With fundamental laws), S 132--41 (on the pOSSible vandles 111 the modus habendi) But ThomasIUS prefers to call non-patnmoruat rnonarchH'~' by the name of fidel commlSJarza rather than by that of uslifructuana ( 135) , * he doe, not consider a monarcha temporaTzus to be al)'o('lutely ll1concc'lVable (~S 122-6); ar;d he doe;, not allow that there can evt"r be a fight of rnl,lance to the ~ovef( 19n ( 119-20). 21. Spec. Jur. publ. VII, c 7, ~S 17-28 and 30. In a clVllas winch I;' una, I'era et perfecta, comtitutlUnal lImltatlOI15 do not affect the suprema pokstas, but only the modus exercendl 2~. To some extent, Indeed, Gundlmg mav be ;,ald to be nearer to the theory of Hobbes he follows him. for example, III the mtt IplctatlOn he places on the orlglOa.! contract (d ;,upra, pp"oo and JoB), 10 Ill;' conceptIOn of the Ruler as the soul of the ::'tate (cf n 101 to 10 above), and III the dcscuptlOn he gives of the authonty 01 the State (]us nat ( 36 and DlJe. c 3S). But he lecogru;,t>S contJ:4cb made With subject;, a> bmdmg (]us nat (. 12, SS 43-0 and DISC c I I, S 43-&) , and he hunts the pnnople that III a normal ::'tate the people has no fight of resl;,tmg the Rulel who breaks IllS contract, by remarkmg that, all the same, no InJu;,tlce IS done to a tyrant when he z;, expelled (Jus /lat c 3B, SS 19-23 and Dlle t 37, S~ 19-23) ~3 The conunentators on Pufendori SImilarly adopt hi;' View, (e gOtto, Treuer, etc ), although with some reservatlOl15 24 H. CocceJI, Prodromus, ~. COCCCJI, Novum syst. SS617-18, 633 (there can be no ahenatlOn oftcrfltory Without the consent of the people, eJo..ct>pt III regTl(l palnmomalza) , and S638 (there IS no nght of resl;,tancc) ~5. Dzss XIV, no. 7, De abrolula prlllClpls poteJtate, t 3, and DZSJ IV, no. I, De stallbus prolJlTlczalzbus, (. I, nos 22 ;,qq and c. 4 26. Opuse. II, op. I, C. I, SS 13-15 (;,ee n '70 to S 10 above) and sob. 27. (~nJTldrzu., SSS, 11,32,34,35 28. Systema, I, c. 3, SS5, 13.26, III, c. I (there IS never a Jus reJlJtendl). 29 The same homage to Pufendorf's authonty IS also, and ('specially, to be seen III the treatIses whICh descnlx the pOSItIve pubhc law oj the German terntonal pnnClpahtles 80 Boehmer, lIke other thmkers of hi;' tIme, regards the penonahty of the State a;, rcsldmg entirely III the ImperallS (whether a person or a body of persons), and he make. the Will and act of thiS Imperans count, externally and IllternalIy, as the Will and act of all for every purpose falImg wlthm the area of the State's functIon (P sj)ec. I, ( 2, S 18, c. 3, SS I, 15-21) ThiS representative 'Subject' or person neceanly posse.ses, as ItS JUS j)roprzur;r. et IOOependens, a 'majesty' whIch vcsts It WIth two saris of cOQScquentral nghtsthe nghts of free actIOn appertalllmg to the .tate of nature (so far as external * S~C nn 30 and 35 mIca, on the ddlerence.
Thomaslus
on
monarchy
Gundlzng monarchy
011
]H
Boehmer on sovereignty and Its limits
Notes to 17
339
relations are concerned), and the JUS summz zmperzz (includmg all the particular pow~s reqUIred by the State's functIOn), so far as Internal regulatIOn IS roncerned (IbId. I, c 4).* But though thIS 'maJe~ty' IS mdlVI~Ible, equal at all pomts, all-embracmg, permanent, and subject to no posItIve law, the sovereign who po~sesscs It stIll remaIns bound by the lpx natUTall~ (P gen. C I, ~ 14-:.!2). He has therefole dutIes as well as nghts m regard to hl~ subjects, and these duties arc denved partly from the nature of CivIl SOCIety [as based upon natural law I and partly on ~peClfie contraet~ [which rest upon the same basI~J. On the other hand the obhgatlOn thus an"mg, If It 1& IJerficta for hiS subJerl'., 1~ only Imperficta for hIm, and therefore' there IS never any nght of coen IOn or re.'n~tanre a~ ag't.lllst lum (P spec I, ( 2, 18-21 and nr, C 2, 9-25) Further, It I' only mdlvldual 'ubdltz who confront the sovereIgn as' SubJects' or owners ofnght~ the comrrlunlty of the people, as such, ha~ no ptltsonahty (IbId Ill, ( 2, ~4-6) Boehmel admlt~ that thLle arc va;'lOu~ forOlS of State, 'aceordmg as the nexus con~tItuted hy pacts IS ~tn( ter or looser' On the one hand, there are re~na hnzlza, where zmpenum has been extended, hy mean., of contracts to that clled, beyond the lImIts rt'qUlred by the ~tate's functIOn on the other, there are regna hmltato, where the Ruler I~ subJe:>ct to lImItatIOns Imposed by contract, and there are abo he:>redltary and dective Inonarchle~ (01 Impena jJatnmomalla I't twn patnmo7~ha), though the ldtter must not he called by the name of usufructuanat (Ibid I, Co 3, ~~3o-6, II, ( 3.5' 15, III, c .h ~ IS) But the people never ha~ any share, stante zmperlO, In the exerCI~e of polItIcal authonty. and It ha& therefon no le/Z~latlve or JudICIal capaCIty, and no nght 01 re~Istanc('" or depOSItIOn (I, c '3. ~ 25-6, II, I 3, 14, 1Il, c 2, S4-I6 dnd ( 4, ~~ 3 2-3) If, tlwrdore, the l>oven Ign IS hound by leges jundamentales, qua !Jacta, he alone can Intcrpret such law~ or paLl~, and he cannot be forced to ob~(T.. {"them (m, ( :.!, SI3 and c -j., IU) Should he break the rules of the con~tltuhon, the people I~ bound to obey, and even If the dausula nullztatls be added to any rule--e g If the pc-rformancc of an act 01 govenunent "'Ithout Loru,ultatlOn of the Iepre&CntatIve~ of tile peoplp be expressly declared to be null and Invahd-the nulhty of an art done In contraventIOn of that prOVISO can only be e~tablrshed by the nf"'<t succe,\sor, and not by the P'iopk Itsdf (I, r 4, I) The:> pOSItIOn IS dlfTcrf"nt, Buchuler allows, vacante unjJerw, ~ince sovereignty reverb to the:> peopL .il the event of ~ulh vacancy. Even here he adds aquahiicatlOn (m,c 4. PP 0 -.!) Vacancv,heargue~,can OClur III a non-patnmomal monarchy \\1Lu.ou. ,he consent of the people comIng Into play, as the result of an ahcnatw rcgnz lin which case there Will be no IcvelSIOn to the people, and no consent of the people]. [See abo n 3'3 mfra ] 31 Kestner, for example, though he follows Pufendorf In other respects
..
Bo"hrner'~
argument Inay be Illu.u.<ted by a pedigree:
r------_._- I
Jura IzhtrtatH naturalls (quantum ad external
The fundament.!1 nght of mGjeslas (Jus 1'70P71UIII et tndejJendens)
--I
JUS <ummz ImjJeru
(quantum ad wterTUJ)
Jura partlculana Imperu
..
Cf
~upra,
20,
where
Thoma~lu~ IS
quoted
al>
rejecting
thl~
name
III
favour
ofjide. comm,ssana
For the differenc,- bctwecn the.; 1"'0, 'ce n 35 mira, al\d Huber's
explanatlOn there gIVen.
34
Gierke's Notes
Vawncy
if the
throm' and the TIghts oj Ihe People
Absolutist VIews if popular rtl!,hts
Huber on morwrehy
(c. 7, 3 sqq ), allows the people a JUS reszstendl where there IS eVlden t tyranny ( 19) 32. We fmd thIs vIew m LudeWIg, I, I, op 8, c. I, Kestner, Co 7. 11-12, HemecclU&, II, 147-9 On the othel hand the conct'ptlOn of the patnmomal State IS retamed not only by ThomaslUs, CocceJI and Boehmer (see nn. 20, 24 and 30 supra), but also by Hubl:"r (1, 3, c 2, ~~ 16sqq ), Schmler (n, C 2. S 2, 3), Wolff (Instlt S9(6), Nt'uelbladt (S Ilg8), Achen\\'all (II, 158-73), and others. 33. J H Boehmer, for example, expre&sly treats de Junbus subdltorum vacante Imperw (P. sllee 1lI, c +) He dl~tmguishes t\\'o cases of vacan< y (I) totalts tnlentus relpublzcae, ",hlch dl~ohc~ the 'body CIvIl' and ledve~ the ground dear for a fresh a< t of a~soClatlOn (S 2-3), and (2) 'Imple dIsappearance 01 ImperIUm, whICh transforms any State m whICh It ocrurs mto a democracy, and thus make, the peopl(' capable of a fresh tranrlatlo ImjJenl (~4&qq). A testamental y d"poslllO~ by a deceased Ruler doe~ not bmd the people In the latter of the~e ca,e" even If he were competent to ahenale hIS kmgdom (S 7---8). * Vacancy of ImjJerlum may an&e through an alienatIOn made ultra vms (Sg-lI), or through death (12-IO), If there arc no nghG of successIOn to pre\ (,l1t the vacancy (s 17-27), or thlOugh abdICation (~28-31), but not tillough d('pmItlon (~~32-3) [We may remf'lllbtl the vote of the ConventIon p,\! ham('I!t of Ib8q-tha. J ames II . ha, abdIcated the government' (or ImperIUm) and 'the throne IS thenhv vdcant' On the other hand we may also remember that' abdIcatIOn' here was a euphembfll for depositIOn J '" Cf ThomaslUs, Instil. III, c. 6, 67--114, Fund llI, Co 6, 99-1O, and Bocc!('r, II, c I. 34 hlmer and Bossuet r(,Ject slmultaneomly both an ongmal and d reversIOnary soverognty of the people In a SImIlar way we find Horn den"mg the successIOn to the throne from the expre~~ed or presumed wl11 of th(' prevIOus Ruler (n, c 9, S7-18), and refusmg to allow any ('ventual r('versIOn of majestas to the people, though he conf edes the nvenIOn of an ongmalJus ehl{cndl, II. c II, ~ I [proVIded thcre be no exprc,&ed or pnsuml:"d WlIJ.of the pn VIOUS Ruler~] He regard& tlw people WIthout a RuIn a, a corpus szne amma, and therefore a cadaver [but how, ",e rna) ask, cana cadal'er exerose a JUS eltgendl~] 35. Huber, DeJureelV 1,2,C I, 16, 20, c 3,24,CC. :r7, I, 3, cc 1-2 Even 11l Imperza herllta or despotlca, he argues, all that I, add('d IS Simply an mcrease of the e.fficacza of majesty (I, 3, c 2, 10--15). Conversely, If we turn [from these ab&olute form~ to the I('ss absolute, I e.] to ImjJcna !Jafrzmomalza and non patnmonzalza (and tht.. ldUer of these, Huber remdrks, I~ not a ca&e of a mere nght of usufruct, but of a bmlted nght of prop('rty, properly to be regarded as a quasI-usufruct, and analogou& to a fidel commIssum or the prop('rty of a man m hIS WIfe's dowry), t we mcrely find a difference 1Tl the
... Ergo, the wIll of the Kmg ofSpam III 1700, leaVing hl& pos~es~lOm to the grandson of LOUIS XIV, dId not bind the people of Sp,Hn. t These subtletlcs are fa.'cmatwg A Kmg who rule~ a non-heredltar} monarchy (e g a Klllg of Poland III the s~ vcnltenth and eIghteenth centum,',) ha' tlelther a mere uwfrllcl III all Impenum which" the property of anoth~, nor the lull ownership of an Imperium which 1& lm uwn propt..rty He IS III a half-way how,(, which, however, to nearer to owner,lup thdn to mufru<.t He IS like a man who IS th... holder of what we may roughly call a tru.>l-property (thejidn commlssarzus of Roman Law),
Notes to 17
modus habendi of majesty [but not m 'majesty' Itst'lfJ, Ibid 16-3 L It IS a matter of mdlfference, Huber add~, whether the summa potertas IS acquIred lIolentr or mutto populo, by dectlOn or by mhentance, m pt'rpetUlty or for a penod ( 32-5), and the size and style (I" form) of the ~tate an' matters of no ,Igmficance (51-6). See al~o his IrlStlt Relp I, ec 3--5 :l6. De Jure ClV. I, 2, C 3. We must neIther follow Hobbl.'s In exaggerating lIe admits sovereignty to a pomt at whIch the people bn.omes a mert' fluck of shel"p limits on (1- 8 ), nor the author of the Vznd e 1;"r and AlthmlUs and other WrIters the monanh III mlnImlsmg It untll Rukrs become nothmg UV're than mznlstrz populorum (g). The truth IS that a contract bttween kmg and people IS the baSIS of theIr rdatlOm (~ 17-20). and m mterpretlng tillS contrae t we must start nt'lther from Hobbe~' VIew that tht' Ff'ople necessarily devolved the whole of It~ nghts, nor from the view of Althuslus that the peoplt' could not In any way alIenate ItS supreme authonty, but rather from the assumptIOn that there I~ one and the '>arne time a leal ahenatIOn of maJesty and a reservatIOn of popular nghts wInch hmlt n's exerCise (~ 21-51) Cf 1, 2, ce 4-7, T, 3, ec I, 4~5, Opera minora, I, no. 2, (.( 1-7 37 De Jure ell' 1, 3, c. 5 l'undam("ntal laws ale hmdmg III vutue of natural [and not of pOSItIve] law they are not to be confused WIth' pnvIleges' or !mcta <Um SzngUllS 38. Rights of the people [as a v. hole, and a, agam~t the government] He allows eXIst eVt'n III a dcmocra,lty, wherc they anse from the Irmlts unposed on rights qf maJonty-governmt"nt (I, 2, c 3, ~3c)-5I) they also ("XISt, to the ~amt' ex- the People tt'nt, in an an~tocraey and a monarchy when the case I~ one of translatzo Slmple>: (IbId c 5) Cf I, 3, c 4 :W De Jure <11' I, 3, cc 4-5 -J.O Huber (UII, '3, c 5, S23~qq) mvestIRatt"~ these Ilmlts [hmlts Imposed HIS theo~y on the ruler by 'express fundamental la w~ 'J m some detail If we ~tart from (if express a theo;y ",Iuch makes alllmlltatlOn of the summa potertas purt'ly 'COnstltu- fundamental tlOnal'Ill charactel [I t" dependent on exprt"~~ con~tItutlOnal rule~], we are lawj not precluded by OUl baSIS from belIeVIng In a proH'lOn v. 1m h makes the a,sent of the people, or an approbatw In senatu, a necc5Sary condItIon of the vahdltv of cutam of the Rulf'r's aet~ (1,3, c 2, 57), nor dre we, agaIn, prelluded from behevmg In a voluntar) ,ubml5slOn of the Rukr to P'lvate law and the uVII courts (I, 9, c 'j. S~ 7-25) '''!hat we arl' predudt'd from holdIng, on that ba5I5, I'> that the P.u:;:,r can really be bound by ordrnary posltlve law, or slIby;,ct to any coC,"rnOr> whatever, for we cannot suppose [as we should have to suppose If w,- tnu.. to hold such a view1 either (1) that the Ruler pm5es'>es a po'Wcr of command and (oeruon over !lImself, or (2) that the people can be legally ,ccUled m the POsst"~lOn of such a power over hlm--except, mdt'ed, at the pnce of a ,>Imultancous ceS~lOn by hIm of part of the lmpenum (1, 3, c 1, &S 10, 24-38, T, g. e 5, &26-49) But the people p()sses~es a right of resistaUl-e In defence of ItS nghts against a Ruh'r who break!> Ius contract, SInCt" the qur.stion th('n ral'>ed IS one of natural, dnd not of pOSitIve law (1, 9, C 3); and the people may even pUUl5h a tyrant
i'
or ht "hk, .z hu,baml who has a 'ort of property m hI' WIfe'., dowry Just a~ the former', tru~t-property IS ,ubJect to the requ('~t (or' precat,ve d"pmltlOn') of the te,tato'f, and a, th", latter's property m tht' dos I ' subject to Ctrtam hmlt~ In favour of hl~ Wife, 50 the krtlg m a non-heredltalY monarchy has a propcrry mbJect to the reque,t' of hi, people, or to certarn hmlts 111 favOur of hiS people And the people Itselfl5 a te~tator, or a Wife, or anythmg che, but !lot a hvmg or mascuhl'c propnetor
Clerke's Notes
Huber Identifies the State Qnd the Ruler
when once he has proceeded to forfeit his impmum, either by violating the le~ commlssorza, or by mamfestly gomg beyond Ius nghts (I, g, ( 4) 41. For thIs Idt'ntlficatIon of the person of the State Wlth that t.>fthe Ruler, cf the following dlCtd In Huber'~ De Jure Cllll/z (!/Iltater per eos qUI habent summam potfstatem personae fiunt (I, 3, c 6, 26) , summa potestas ert Ipsa c!Vltas (I, g, C. 5. 'j I), l'Oluntas Imperantlum est valuntas tlVltatH (I, 3, L 2, 14 and c 6, 26). agam, because the Cll'lta\ JUS personae habet, tht' Ruler (who IS the c!Vltar) can bind by l('gl~latlOn hiS mdlvldual subjects, who are dwersae prrwnae, but he (annot bmd Illmsclf (I, ), C I, 32) [5mLe that would ht' a casr of the same 'person' hindmg and bemg bound at the Sdme tIme1 Sl'e also 1, 9, c 5, 65-72. It follO\\~ from Huber's argument that If the Ruler ~ubmlts hunsdf voluntanly to the courts m pr!'l ate-tnv case~, he IS pros(cuted and sentenced nomme suo lrI semel Ipsum. 12 Huber argues, WIth particular reference to the Opposite opmlOn of Hobbes, that the people. when lram~erIlI1g ~ovcr(1gnty, wwm qt!od est, It retams the JILr personae raftrr that transferenct'], and remams a umveYSltas, quam/'IS nec congregatllr SIt neque sczat tem/lILs fittlln conventus; and therefore It ran have nghts agamst the Ruler, and, m p.lIlllular, ran e\feclively reserve such nghts [at the tIm!' oftraI1~ferl'ncel, or acqUIre them by VIrtue of subsl'quent contracts (I, 3, e 4, B a3 and c 5, S~ 58 -C) 43. Startmg from democracv ~ the form of 5tdt!' winch approachf" D('arest to the ~t<lte of nature, Huber hegms by pnllineratmg the rp'oervatIom whKh are Imphutlymade [m favour of thL whole people] under a de monatlc constitutIon, y, hen the wII! 01 the majorIty IS made the Rulmg \VIlI (I, :.I, c 3, C!5-51 and c. 4), and be then ~gue~ for the eXl'otencc of the same reservatIOns [m favour of the v.hole pC'oplel In all forms of ~tate, on the ground that the Ruler In any fOfm of ~tate has merely taken thl' place of the majontv (IbId c 5) But he goes further. and he argues With ;Olllt' 'rarmth III favour of express con~tItutlOnal lImItatIOns on 'maJc~ty', such a~ <ire common In monaIchles, but are seldom to be found In demouacle;, and only rnfrcquently in an5tocracie;, Whl'It' they art' partICularly nec t'ssary (I, 3, C 4, 1, 7, e I, 1, B, ec Q-4) In our century 01 oppn.sslon by prmce; l the seventeenth], he sa)~, It IS particularly nClL5~ary to Lh,.l1I1pwn the came of hberfov, but If It IS partIeularl) necessary III monal (hIP~, It I'> also nee e'>'>ary in Rl'pubhc~ (I, 2, c 8) 44. [There I'> a contradIctIon Involved m Hubcr's attempt to huut demoeraLy by the nghts of tIlt' people, because] In dealmg WIth democracy he tnes to assIgn to a mlI10nly the popular nght~ wluLh he vllldicate~ e!scwherefor the commumty. He a,>sume., the eXI~tencl' of two pact., (one between smgulz and smguh. and the other between mmor pars and major flars), and vmdIcates a facultas reslstendl for the mmonty m th!' event of a breach of the latter of these pacts (by the maJOrIty] , cf I, 2, C. 4, ~~ 1-25 45. Cf e.g MICraehm, 1, c 10, ~g-16 and quo 1-5, pp 108sqq (where then' IS also an argument for tht" nght of resIstance m case of neLl'sslty), FclwrngeI, De rna). ~27sqq , von ~eckendorf, Furstenstaat, II, c 4, c 7, ~ 12, m, c. 3, no. 8, Moser, PatrIOt. Phant IV, no 5] The same tendency appears In many of the exponents of posItIve LonslitulIonallaw 46. Seekendorf, fOf example, qualIfies the Idea of ,>overeIgnty (tho~'gh he desenbes it as a 'supreme and final power of command flir the preservatIOn and mamtenanee of the common advantage and eXIstence ') In two waysby Iru.Istmg strongly on the responsIbIlIty WhICh attaches to sovereIgnty m
ret he recogmses the People asa uruversltas He would lImIt all govemments by popular Tights
.Notes to 17
343
virtue of Its bein~ an ollie e (Furstenstaat, II, C. I, Chnstenstaat, II, cc 6-7), and by reJ~tmg enhrely the notIOn that the sovereign IS eXl'mpt from posItIve law (Furstenstaat, II, r 4, 2) Fenelon, too, though he IX'heves In the Ileu s,lty of an autonti souverame, which creates the body pohtIC by ~IVInR It umty, and brings about a poolmg of powers (multljJllcatlon df'S }orcf's) m that body, and though he adds that thIS authority mmt neLessanly be 'absolute' (c v), none the le~s prote~t, agamst any Jdenhfi( atlOn of such a final and suprt'mc authonty of the la;t Instance with mere arbitrary and unillmted powel (c XI), and he therefore attack> despotllme des Soul'f'razns as well a~ that de La populace, whIle he eulogIses a monarchy quahhed and moderated by the nghts of the people (c xv)notwIthstandmg the fact that he rdusD to I e( ognI~e any orupnal soverCIgnty of the people or any Il~ht of reslstan, e (('(' "I and x) [For the" lew of soverClgnty a~an 'authOilty of the last ImtaIH l" C f Loyscau, Trazll des Sngneunes, II, 6 la SOUl'f'Tameti t.lt Ie comble et la ;irIOde de fa jllllJ.lanCe ou zljaut que l'EslQ.t s'arreste f't establzs.le Loyseau, "'rltl1Ig about 1610, ",a~ a natural authOrity for l"cnelon, wntmg toward~ the end of tht ;( venteenth <entuI); WI" may abo note (I) that Loyseau mack a dl,tmctlOn betwt ('n mvcrelgnty m abstracto, whlc h was a proper/) mherent 1Tl and atladwd to the Stale and sOH'leIgnty !II conerelo, wlllch wa<; the eXlTC1Sf or enJO) ment of that pWp('1 tv by a per~on 01 body of per~ons (though he proce( d" to confuse thl' dl,tmclIon IJy argUIng' llMt a J...~nR 'may ac qUlrc by pre~cnptIOn a property m soven'Ign pow, r, and tim; add property m It to exercI;'c of It', 1 ralle des OjJlces, II, L 2, &~:l5-6), and (2) that It was a tradlllOn of the French lawver~, from Bodm 'Hiwald" that ('veil If' m!jC',tv' werc a '~uprem(' pow(>r. e.. . empt from law", tim only nlC'ant exemptIOn !rom pOSItIve law, of the ordmary ;Oft, and maJcsty \\as none til(' le~, 'ubJ<'ct (a) to 'fundamental law,' such as the ~alrc La\'> (' \\ Inch ale connected "'Ilh maJe~tv IISdf', Bodm, De rep. I, 8B), LInd (b) to the lex dl1'!na, the le:t nalurae and the le, ommum gentlllm COmmlllll\ (IbId 84) J 47 Cf ,upra, p 117 .1,8 Cf LubmL: (Ganar -Fiml, rraif rp 329~qq, (( 10--12 and 26-'13) on the dCg'1 ee, of majestas, fUpremlfas , ...! J ujJeTlonlas ; on the- pos'lble JIScrcpanc)' IlCt",etn the mternal and the eAternal pOSJllOll of tIll' sove~lgn, and on the pmslbIhty oj dl\l\lOn and ,J,otllbUllOll ofpoht!{dl aUlhonty We may note t,peClall) (c II, P 360) the defLllce ofthcsc VIC\\S agam.., t Hobbes and other ",nler, they arc velY It fl(:, . ubmz wntes, to produce a monslmm, but thclr LOIle' pIlOn of sovereIgnty IS only m place mea Repllblzra CUJUS Rex Deus e.ll [I e 11l a ~tatc wh're ommpotencc really (,XISt,]; It docs not apply to any UvllI,ed ~tate, 01 eVen to Turhey, and It eonlIadl(1s human nature We may therefore ,ay that Lelbmz belIe-yes that the .Iu/iremlta; of the Prince IS not de~troyed by th, pXI,t nce of a r ontract gualanteemg TIghts to the people 01 the E,tates, or even by the prc,cnLe of a lex COmmlSJOTla [wInch delegate, Impenum to be exerCIsed as a fidunary powel dCTIved f10m the eommumty], cf c 33 49 Thus we find TalUS, Trcuer and He-rt censuring Pufendorf for adopting Hobbes' IdentificatIOn of the Imperans and the CIVItas, and SimIlarly we find t1~ filSt two of these, along WIth Otto, bldmmg lum for not mtroducmg 'fundamental laws as Inmts upon the representatIOn of the State's Will by the Will of the Ruler (Comm on ll, L. 6, 10--1 1 of the De off, hom. et CtV ; TItius, Observ. 159, 557)
Fenelon's qualificatIOn of sovereignty
[Compart LOYJeau'l views]
Lelhnz:;.'\ the01.y <if sovereIgnty as rflatwe
344
People and Ruler as hath personae
Gierke's Notes
50. Hert, It IS true, make~ 'the person of the State' reside entIrely in the summus I1nperans, but he hold~ none tll(' ll"ss that a perwna et corpus may be .lltllbuted to thl" people, quatmus jmmo pacto contznetur [I e so fa~ a~ it IS c-onstJtuted a 'person' and a 'body' by the ongmal contract] A~ a collectIve pelson, whIch c-omes mtn ("'.Iste-nte by virtue of the origmal c-ontIac-t of society, the people has mhtl OmmU71e cum ImpfrlO [I e It IS not a 'SubJ{'ct' or owner of nghts m anythmg lIke the sam(' way as the Ruler1, but It may ac-qUlre nght~ afterward~ b} c-ontract or by presCllption Agam the populus conJunctus pacta pnmo contlllues to ~UrvIVI" even whl"n the pactum securldum [i e. thl" contrac-t of govl"rnml"nt or SUbJcTtion ll~ dIssolved, and It ha~ III that tase to re-constltute the pactum JeCll71dum afresh cf Opusc I, I, pp 288, 29 I, 295--8 Schnuer regards the summa j>otestas As the ~oul of the State', and he make'S the' Subjl"ct' or O\\iner of tlll~ power' thl" prrson of the State' (II, c I, S I, 1-3) But he also hold~ that the po/mius collectwe sumptus c-01;ltmue's to pcssess a ~tatus of It~ own a~ agaInst thr Ruler It was the' ongmaf' SubJe'('(' of ~overclgnty (II, c- I, s 3), sovereIgnty reverts to It vacantI' lmj,eno (II, c 3, ~ I, I, c- 4. s 2, 3, v, c- 2, nos. 65-9), It IS at all time, a umversltas capable ofpos~e~~Ing rIghts (v, c- 2, ~ I, S 2, ~3, c '3, s 2. ~'2-'~). [He' proc-eeds to claSSIfy those nghts] (I) LIke' indIvidual subdltl, the' tommunity in general enJoys ev('rvwhere c-ertam rfserved nght~ (II, c 1, ~ I, ~ I , V, C-. 2, S I) more espeClallv, no change of the sunes~lOn, and no alIenation or mortgage of any of the nghts of~ovprelgnty, c-an nave any validIty 111 a 'nonpatnmomal' State Without the coment of th(' people (II. L 2. S I. ~~ '2-3 and s 2, 3). (2) Th(' people rna) also acquIre exte'nMve nghts m VIrtue of contracts or ler;esfimdameutales (II, c 4, S I~2, V, C. 2, S I, no~ G and B)-such as, for example, the right of gn,mg Ih assent to laws (m. c 2, nos 2B-30), and It may SimIlarly acqUIre nghts b.., presc-rJptIon (II, c- 2, ~ 3. 2, nos 1742(0). The summa potesta~ may tim'> be either' ab,>olute' or 'hmltl:'U' ~a,cord mg to the degr('(' of these populal nght~] Yet ('ven where It I~ lumted, It stIli remams tntacta, although then' may b, ,ertam Ole ts of the Sow'relgn whKh hav(' no validlt) WIthout the tonsent of the People or the E~tates. and even although a Ie>: IOmmlssona mal iJc Impo~('d upon Illm (II, c- I, S 2, ~2) The commumty ha.;, no nght-at any rate 111 ease~ whrre It I~ not the leal and~rue sovereH~n Itself-to resIst or depose the Ruler who has broken Ius contract, unless It be by way ofself-dt'fencl:' agaIn~t a Rukr who has beCOffil:' hostlS ajlertus (n, c 4, ~ 2. 2. v. C 2. S I and c 3, ~ I). [The rtght~ assIgned to the people In tbe til ~t part of this argument would thus appear to be dellled III the set ond part 1 Heme,C1us, while ('mphasl~mg the exdu~lve repre~entatlOn of the State by the Ruler, and Inslstmg on the umty and indlVlSlbIllty of ~overelgnty, yet recognls(,~ the Pe'ople as po~sesslllg the collectIve personality of a soclelaJ aequalzs, and he also admlt~ that, beSIdes th(' popular nghts whlc-h are everywhere cstabhshed, 111 all form~ of State, there may al~o e'''{ist addItional popular rights tn vIrtu I" of speCIal eonstltutlOnal prOVI~lOn~ to that effect (Elem. II, & 12Q-149. Proel academ I, ( 3, ~B cf note 32 supra) 51. Instlt. 97!rB9. Jus nat. VIII, &&29-36. 52 Instlt. 989, Jus nat. VIII, ~ 37 sqq Even the representation of the people by the Ruler m the sphere of cxt('rnal relatIOns, Wolff adds, I.,lnerely a matt('r of pr('sumptlon. but when any dIfferent arr!:ngement has been established by fundamental laws, that arrangemcnt is effectIve only If, and so far as, tl IS known to other peoples (Instlt. 994)
NotestoI7
345
Wolff's of popular nghts
VIew
58. On Wolff'~ dlstmctlOn between Impl!TIUm ahsolutum and lImztatum, 'ee his Jus nat. VIII, 66~qq and Instlt ~9B3, and on the applIcatIOn of this dlstmction to ~arious forms of the State, .Jus n(Tt loco ol ~~I'll~qq and Instlt ~~9gosqq. In dealmg with the nature of let:es Jundammtales Wolff views them as eontrarts, wInch It IS bcyond the k~l'ilallve competence of the Ruler to modIfy, hut WhH h may be altered by the people, proVided that they are not entIrely hasl"d on an act of voluntary 'df-IrmltatlOn by an Othl"rwlSl" unIrmlted Ruler, and provided aha that 'iueh alteration does not affect advl"nely the acqUIred rights of the RuIn or hi'; suece,sors (Jus nat loc Cit 77 sqq., and Instlt ~~gB4, gBg, 1007, 143) rhc people, l1l hi, View, h." a duty of unrondltlOnal obedH.>nu, l"ven when' there IS abuse of the summum Imperzum, and he re~ard~ as 'nadrnuMb!C' any provIso which make~ the duty ofobedIence cease In a case oj had government On the other hand, he ronst<.\rtly Insists on the nght of paS~lve re'ol'otanee, whenever any order I'; Issued wnlch rontravene,; the rommapds or the prohibition'> of Natural Law, or whenever, In a constitullonal State, the hmlt'; of the fundamental laws art' vlOJatl"d Hl" even regards the people as a whole, or the m)ured part then'of, as entitled to offer active resl,tance whenever an attack IS made on the rights reserved to the- pcopk-on thL ground thdt in 'ouch a ca,,," there l' a reverSlOn to the state- of nature, and each must thnefnre protect hiS rIght; for hlm'ielf (Jus nat loc ot ~& 1041-7, Instlt g85, I079, Polzt 43'3) 51. SYft nat I 132 10tertas Cll'zlIS ert orzgmalzter penes omnes cwes slmul sumptos, a quorum arhltrlO dependet an, qunmodo, et In quem earn traTLIferre velznt It i'i only when the foundatIOn of the State ha'i proceeded from some thIrd party [dI'otlIlct from both pl"opIc ~nd ~overnmelltl that the pO;ltlOn IS dIfferent 55. Lor. nt ~ I J 33sqq , 1153 ,qq. There IS mcleed (Nettelbladt argues) a presiVllptlOII agaInst any lImItatIOn of thl" Ruler by tht' rl"CogmtlOn ofJura populana to sharf m the exerCise of potestas cll/Ills, and [still morel against any lImitatIOn of hzq nghts by the adml;slOII of the people to the ,;tatus ofJomtholder'i of ~upreme authority, but thne 1; equally a pre,umptIOn II1 favour of a vit'w of monarchy as merely 'USllf1l.1(tuary', under a system III whieh Jura potestatls are ve-stt d entirely 1Il tI ,'" tIlcefls, but the Jura czrca poteltatem reslde as entirely m the people (S~ 1 I yb-g) In all forms of State thcwClvl1 power IS ~ubJect, by the nature oj th cast', to llmltes and rfficw, and the Respuhllca thenforc confronts the .superIOr as a 'SubJect' or owner of rIghts ( 1127, I 134) In the event of an , . trans~re""lOn of lzmltes, the people has the right ofrevoIt (~I27o) ... The conce-pllOn of~overelgnty I~ so much attenuated m the theory of Nettclbladt that he makl'" mne poteJtas CIVIlIS (dIe Hohelt 1m Staat) tht' Criterion of the State, and even hold; that tIl(" summa fJotestas (fa SOlJlJerametl) may ht' subordmata tht'reto ( 1125--9) [If summa potestaf can thus be 'mbOlnmate' to CWzllS f'otestas, the sovereignty w}uch IS mdIcated by It cannot be more than the' courtesy' tItle 01 sovereIgn, a, when we speak of 'our ,0vereIgn Lord the Kmg' It IS not a trut' IUmma fJotestar III the legal sense~ the aUlhOllty of thr' la~t IIlstance, whIch finally deCides J 56. Loc. Clt. I200 theprmceps, as a 'pubhc per~on', IS a person 11l the state ef nature, who 1'0 ont' With hIS people (una fJerSOTla cum populo) 11l the sphere of external ..elatIons. 57. In a monarchy the populus IS always a persona moralls dlSt11lct from the kmg, but 11l its character of a moral person the people varies--.sometImes
A
Nettelhladt on popular nghts
NeUelbladt on the People as a moral person
Czerke's Notes
be10g altogether subdztus, sometImes retaimng reserved powers, and therefore [and to that extent] remam10g 111 statu natural!; sometim~ po'lsessmg pohtl('al authOrIty Jomtly WIth the pr1OLe, and therefore hvmg, along WIth hIm, 10 the state of nature (1201). The same pOSItIOn also eXists In an al1~tocracy, as between the populus and tht' collegIUm optzmatum (~ I:! 17). In a democracy, on the other hand. the Senate IS a persona moralll subdlla populo, n01l In statu natural! vwens ( 1220), as ah.o ..Ire all the magI~hates (& 1226\qq ) 58 Lac CIt 12 IC>-E!. The Estates exerCise the nghts of the people' 10 On the theIr name' (whether these nghts be merely the gt"neral nghts orca potestatem, Estates as or partICular nghts of t'xerCl~zng authonty apart hom the prmce], or nghts a moral of sovereignty'" ~hared WIth tht pnncc), and therefore they' reprc\ent the person people, and hav!:. Its nghts' We have thus three ~('parate . SubJect~' or owncrsofnghts [the Ruler, the P<'opl.. , and tht" as~embly of the E.\tate~] who may all hve m a statt of natUle; for the' body of tht' Estate~', III ~,o far a~ It exerCises nghts of smcrelgnty III tht I)amt" of the people, IS aho free from subjection [and therefOie III a ~tatl of nature]. 59. Naturrecht, pp. 240, :!44, :!46, 292,qq , 308~qq , 317 flO Loc CIt P 310 Danes 011 61. Danes holds that the es,cnce of the State reqUires an lmperzum sO/Jere!gnry summum and an ImlJeranr (~~655,qq) The contt"nt of maJ"\ty IS alway~ the and its limits same (&&667 sqq) the' SubJect' of maJe~ty may be either a Lollectlve P'" son or an zndtVlduum (~S7't7~qq) But tlll're are limtles ma)estaln-bolh the natural, v.Iuch dre to lit' found 1Il all form~ 01 Mate, and the pactllll, whKh are found III wru,tztutlOnal Statls III additIOn to tll(" natUlal (~ 780sqq ). Limited monarchy, ",here the peopk Im~ only gIVen a consensus fOndtflOnatur, and v. here the Ruler I~ bound lJy Ifges fUlldammtaleJ l'C! calJlIUlaltonel, l~ none the les, monarchy. and the erectIOn of ordlnel Imperil v.lth powa, of supelvmon, or even the presence of a pactum commlSsonum [a JI'ahlJ.ajnJuratZ01l, pledgmg the monarch at the time of hi, electlOIl? I. doe~ not turn It mto a mixed form of ~tdte (786-9) 62. Achenwall regards all clVzlaus ordmatae a~ based onjlactafurulamentalza, Achenwall whIch cannot be altered by umlaterdl adIOn (n. q109) By the pnunples of on conslltu'umver~al absolute pubh< law', the contract of government I~,ues 1lI an 1I0nar types tmpenum summum plenum et z1l1mttatum, eltlwr of the' people', or of a . phyMcal of State person', or of a 'moral penon' ( 1 12 sqq ), but by 'universal LondltlOuul pubhc law't the lmjJenllm may be hmlted by 'fundamental law,', and we thus find, by the ~Idt' oj absolutt' monarchy, monarchw mznliS plma and "lOnarchta ltmltata-the monarch, 1D the latter of these two vanetle" bemg obhged to act by the consent of thL pLop!e, and the people pof>Sessmg nther a corrcglmen defacto or a formal cO-lmpenum (q 148~qq ) 63 Schcldemantcl hold~ that every State reqUIres' a wmmon Head', Srhademantel on the limIts who rcpre~cnb the 'maJe~ty' of the State, and IS eIther the whole SOCIety, or some of ItS members, or one (I, pp 38sqq) Majesty, a!> 'the highest form !if ma)esry of eXistence mthe State'. I~ not subject to any laws, but may be bound by dIvine command~ and by the fundamental laws whIch It has aLcepted for Itself by contract (I, p 116) .
... StrKtiv ,peakmg, the word Hohcz/ (wIllch IS here tramlated a~ SOVC~lgnty) means somethmg different from sovereignty m Nettelbladt, bemg Ident1fied With nmtzs potestas and dlstmgulshed from La souverametl (n 55 supi'a, adfintm) But 1t IS dIfficult to render the word otherwise t For th,,~e elaborate class1fi(.atlOn~ of)us, see p. 291,
Notes to 17
347
const!tutlOnaI!Jt theory
64. A. L von Schlozer treat~ the relation of the Ruler and the People a, Schlozer'.r
entirely a contractual relatIOn (pp. Cl5sqq.), which should Ideally be defined in a fundam~ntal wntract mad!' under oath (p 102, 6); but he allows the Ruler the nght to denounce the lOntract at any tIme, and he gIves the People the nght of denouncmg 1t under gIv!'n condItIons (p 108, 10). Though he rejects the theory that 'law should be the one and only Ruler', and though he emphaslse~ ~trongly the nee esslty of a 'E,overelgn' or 'Ruler' who constItutes the common wIll. and r!'prese-nts the State, eIther as an 'md!Vlduum' or as 'unum morale feIgned by a maJonty' (pp 77--9,9'i, 100), he none the less Imposes fixe-d lImIts upon the power ofthI~ SOV('rC"Ign III the cour~e of hIS argument (cf p 94, I)-contendmg that he I~ bound by posItIve as well as by natural law (p 96, 2, P 101, f>J, and that he IS subyct to the fundamental contract (p 102) 65. Danes, e g , regard, the wlthholdmg of Ju~tlce as causing a return to the state 6"r natur!' (~713) Acllenwall allows mdlvlduals only the nght to emlgrat!', when the fundamental contract IS broke-n, but he allows a Un!VCTlltal, or an wSlgms pars popuh. th!' nght to rLSl~t by force of arms and expel the tyrant, If tIl(' danger threatened by acqUiescence m wrong I~ gr!'ater than the dlsad"anta~cs of rebclhoIJ, 2oO-7 ref Bentham'~ Fra~ment of Governmenl, where resistance I~ hdd to be 'allowable to, If not lIlcumbent on, every man. when the probabk ml~chlefs of re~I,taIlee (~peakmg With re~pect to the commumty m gene~l) appear less to lum thall the probable mlschlef~ of submlssIOll' (c IV, XXI), cf also Paky's Moral and Polltlral Phz{osophy (Book VI, c m)-' the JustICe of resistance I~ reduced to a computatlOll of the quantIty of the dange rand gnnlince on the one bIde, and of the probabilIty and expenst> of ledresbmg It on the othe I 'J. Seheldemantcl dunks the natIon entltltd, If there be real tyranny, to nse m fore 1~le resl~tance, on the' ground that the bond betwt"en the pnnce and the natIon IS broken by abuse of the power of the State and transgrt"b~IOn of the lImits of that power, and that the natIOn thus retuI TIS to the liberty and equahty of tIl(" ~tate of nature (m, pp. 364-75) S, hiozel allows a drOIt de ref/'tance Ii th"re be eVIdent tyranny, along \\lth a power of enforcrng that rrght by coe _')1l, depositIOn or pUnIshment, 'all bemg In accordance WIth the notIOn uf a contract III general' But he 1Ioes not thmk the mdlvldual Justified m ('xerclsmg, or the ma~,es capable of usmg, tIns nght 'woe, therefore, to tne' State where there' ale' no rC'"presentatIve~, and happy Germany-the onl . 'd III the' world where a man can take actIon agamst 1m rulo, WIthout prt>Judlce to hiS dlgmty, by due process of law, and be'fore an extClnal trrbunal' (pp. 105-7). [Schlozer, wntrng m 17Cl3, IS thrnklllg of the Relchskammergcncht at Wctzlar, dlbwlved, along WIth the ReIch Itself, m 1806] The reader IS also referred to the :lllthor's work on Althuslm, p 3 I5 n 128. 6li. Dlscounes, III, sect 44 The power of parlIament IS 'essentially and radH ally m tht> people, from whom thclr delegates and representatives have all that they have'. In England, however, unlIkt> SWItzerland and the Netherlands, the several counties and towns are not sepal ate ~overelgn bodies, but only' members of Ih.. t great body which comprehends the whole natIOn'" and therefore the rrpre,entatIves do not serve the bodies by wluch they are elected, bttt the whole natIon If these representatives eauld assemble of themselves [1 e Without a royal ~ummons-a summom whICh, at the tIme when SIdney was wntlllg (1680-3), Charles II steadily J1efused to
Theorzes of rcmtancc
Sidney on parlzaments
Gierke's Notes
issueJ, they would be responsIble to the natIOn, and the natIOn only. when It IS ImpossIble for them to assembk, they have only a re~ponslblhty to theIr consnences and to public opmIOn Hut thI~ great power of th~ repre~enta tlve~, mstead of dlmlm~hing liberty, really mamtams It It IS Identical, at bottom, WIth the POWC'I of the ekctorate The people stIll ren1am~ suverClgn, because only tlle pos~(.'S~or of an lInlllmted n!!;ht can gIVe an unlimIted power of Iepresent,ltlUn. The rea~on fUI the people gl\,mg such power, mstead of Imposmg 'mstructIOns' or mandate~, is simply a pludellt self-resttamt [SIdllCY'~ argument, in favour of true' natIOnal' repre,entatIOn and agamH 'mstruchons', IS a harbmger of Burke's famuus speech to the Bustol elcctOls m 1774 (!<VarAs, m Bahn's edillon, vall, p, 447, cr. a SImilar pa~sagc m hIS RtfleetlOTlS, ,01 II, P 457) Mr No~on, a member 01 une of Eluabeth's parlIaments, had already argued In 1571 that ill parlIamentary reprc,entaUon 'thf' whole body of the realm, and the serVIce of the same, wa~ rather to be re~pc(.t('d than any pllvate regjlld of place or person' (H~llam, Con. HlSt I, c V, p 267).J 67. DIscourses, II, sects. 7, 32 (on ~oIemn, ~worn and hmdmg runtrarts betwcen the magl~trates and thf' natIOn) fiR The People, ~ltlney argues, the source of all authonty (1, S 20), It creates authonty (n, s. 6), and It determme, lts hmlt, (n, ss 7, 10-33); It necf's~anly rt'lam~ legl~latlve power, even In a monalchy (III, 'is 13-14, 4'i--6), and it contlIlue~ to be a Judge above all thC' maglstrate~ (III, s ,p) 111( ruler 15 an officer appomted by and respon~Ible to the people (II" 3, III, SS I ~qq) no obedlCnce IS due to hI~ commands If they arC' unJu,t (Ill, 'S 1 I, 20) resI~tancC' IS pelml~lble, Iflc abusc' hIS offi( e (Ill, ~s. 4sqq ), and he may even bC' deposed (III, s 41, ef ~ 36--' the general revolt of a natIoll cannot be called a rt beliIOn '), the people too [as well as pallJamentj thus retam~ tht'" right offree as'iembly (Ill, ss 31, '3U) G9. Cf Locke's Second TreatHc, II, c 10, 132, cc. 13--14 The p;ople (or 'the communzty') contmuc'i to be the fountam of <Ill powers, and retams a right of rc-eISlon therem (n, e l l , !P41, c 19, ~~22() and 243), but l~ '5upreme powu' only t'xprc%es It~df III tht' event of the dI"iolulIOn or forfeiture of authont) (II, c 13, 149), and tlIe legl,latIvp power 15 ,overelgn 'wMlst tht government subSI'its' (II, c 13, ~ 150) [Locke g(W~ further than GlCrkr allow.. 111 hiS Vl("W of the nght, of the People In c la, ~ 1'12, antI< 1patmg ROlli>spau, he argue~ that' the m~onty, havmg . the whole powel of the commulllty naturally III them, may employ all that power m maklllg law~ fur the commumty from time to time, and execulmg tho~(' law~ by officers of theIr own appolIltmg, and then the form ofgovernn1ent I, a perfect democracy' Normally, we mmt admIt, Locke regards the people a~ delegatmg its power to a 'legislative', rather than as makmg law~ It,clf Even so, as we have already had rea~on to notlc(' (supra, n 6B to 16), h(' does not sprak of a contract between people and legIslatIve, but of a umlateral act of the people vestmg a trmtee or 'fiducIary' puwer In the kglslatlve It follow, upon this VIew that, whIle thiS fidUCiary legIslatIve may be called '~upreme', or even 'the one wpreme power', the people IS always a ~uper ,0vereIgn, havmg another and hIgher' supreme power to removf' or alter the legi~latIve whf'n they find the leg1slatIve act contrary to the trust re~'Jsed In them'. Thus the people come~ mto actIOn, not In the pre'iumably rare event ofa breach of contract, but III the presumably more frequ('nt event of 'actIon contrary~o the trust'. For such an event, to Judge from the analogy of the
SIdney on the People
I,
LocAe on the rzghts of the People
Notes to 17
349
treatment of thc tru~tee In EnglIsh Prwatrecht, may b(' confidently expected by the trustl" who IS also thc benefiCiary of the tru~t-all the more a~ he IS In addition (In Locke's theory of the politICal LJ ust) theJud~e ofl~exewtlOn ] 70 The people I~ the sovereign Judge which deCIdes whether the powt'rs appomted by It, mrludmlS the leglslatlvt' power, ob~erve theu hmlt~ If a fOlmal orgam,atlOn of Its nghts IS lackmr, It can appeal to Ht aven If It has once removed the powers which have forfeited tht'lr authonty, It can either contcnt Itself by Simply placmg authont" III fresh h.l.lld~, or erect an entirely new comlitutlOn [Lockt' ac tually ~av~, m C 10, I '32, where hc 15 'peakmg of lcglslalive power which ha~ been given for hve~, or for any IUTIltcd tlm< , that upon rt'Vcn,lOll 'the commumty ~ay dispose of It agam antw mto wh,lt hand, they please, and so (not' or ') comtItutc a new form of gov('rnml nt ' (The refcremes wInch Glcrke glve~ art' to c 19, e~p &2U, 220, 242 3, .lnd to c 18, ~J()q-210, but tlH'Y do not ~upport hiS account of Lockc', VI('WS ) Nor does Glerke'~ phrase about the p~ople appeahng to lkavt'n If a formal orgam,allon of ItS nghh I~ lackmg' corre~pond to what Locke actually says (c 19, S242) Theil' I~ nothmg m Lock(' about ab,('nc(' offormal orgamsatlOn of nght, for him th(' l ommumty I~ 'presently m< orporatc' by tilt' ongmal contract of 'OClety, contmues to remam In that COndltlOIl, and IS thus 1'01 Illcllly orgam,,,d for VllldlCalln~ It, ught,> A"aln, the' appe,tl to II, avtn' m< am ~omethIng mOIl' ~tfillJtt', and mure legal, Ihan (;lelJ..J"~ bnef quotatIOn sugge,ts Lockc IS arguIng that If a controversy an,es Iwtwt'cn the prInce and some of the people on a matter on which law IS sIlent or doubtful, the prop,r umpire I' the b~dy of the people, \'.ho have given !urn hl~ power ,1'> a trust and I an therefOl e del Ide upon IllS u,, or abuse of that pOWI r If the pnnce, hown,er, del hnes that way of determmatlOn, 'the appeal then he, nowhere but to Heaven '-I.e the case IS carned m the last n'~ort t~ the dlvme ordeal of battle In uvil war] 71 Cf supra, p lOR 72 ContT soc II, cc 1-2, 7, III, cc 15-16, cf supra, p 112 73. On "lverelgnty a~ mahenabk, '>ec COTltr Soc 11, e 1 Sovereignty, bemg nothmg but the excrcl~e of the v"Tlf"ral will, IS mahcn,1ble. A contract of suhJectlon It,acte de gouvernemtntJ wop'd mean the dl>\olutlOn of the people -Ii Jlerd sa quailtlf de peuplr. Will SL"ply cannot be. 'tramferred' ttll' !overeign may ,ay, 'I do '.'111 what such ~-:~ smh a person Wills " but not, I ,ha.lI Will whatcvCl ~uch and ;uch a person m~y Will to-mOl row' On the mdlvlSlbillty of sovt'rcI"..ty, C II, cc 6-7 The people IS the only legislator It needs to be Instructed by an enhghtened Iaw-glvu, because It IS not always able to se-co the good which tl always Wills, but the law-gIVer has only the ofhce of proPO~lIlg and draftmg-le peuple mime ne peut, quand II le l'Oudralt, se depouzller de ce d,olt Incommulllcable. On sovereignty as Ilhmltaulc, ,,1 111, C 16 A conti act between people and kmg IS lllcOIlcelvablc sovereignty IS ilhmltable as wl"ll as mahenablc la lJmlteT c'est fa detrUlre II ny a qu'un contrat dans ['itat, c'est celul d'assoczatzon, et Cr!UI-CI seul e"c!ut tout autre, on ne sauralt Imagzner aucun contrat publzc, qUI ne fi1t une vwlatzan du premll'T On .he Impos~lblhty of reprc~cntatlOn, see Ill, c 15 74. Governmen. IS a comnllS~lOn . un emplol dans lequel, Simples rifficlCTS du Souveraln, ds exeTcent darts von nom le pouvolr dont Illes afalts dlfposltalTes, et qu'li peut limiter, modifier au repTendTe quand dlul plait, l' alttnatIOn d'un tel dr~lt itant In~ompatlble avec la natuTe du corps SOCial et contTalTe au bout de l'assoClatlOn (Ill, C I).
Locke on the People as sovereign Judge
ROIlSSfaU on sovereignty
On Government
35
Gierke's Notes
The 'mstltutlOn of the government' is not a contract, but a twofold act-the passmg of a law In regard to the future form of admmlstrat'oll, and the puttmg of thIs law mto effect. The lact that the political body can thus achieve an admullstrative act [i.e the act of puttmg the law mto dfect] before the eXistence of an adminIstratIOn i, cxplamed by tim body's astomsll1ng conJunction of apparently lontrac!Jctory propel tit'S [01, a, R()m~eau put~ It, 'by one of thosp a,tolllshmg propertles, . by '" Inch It IS able to umte operatIons wlmh seem to be contradlc tory' J' H executes Its own law IJar une conversIOn subzu de Souverameti en Drmocratu-that I, to i>ay, by 'Imply mstltutmg une nouvelle relatlOII de leUJ c.l tous [m whIch, for the nonce, the c ltizcllS bc corne magistrate;], a; ",hen the English Home of Commoni> tUln, Itself mto a committee of the whole Hou,e (III, c:' 17) 75 ContT soc llI, cc 11-14, 18, d supra, n 209 to S16 76 Ibid Ill, c q. a ['znstant que Le PeujJLe est Le~tt17nement a\femt't en Corpl On the SOUl'eram, toute )urzsdzctlOn du Gouvernemel.t CtHe, La IlUzssance extfcutl1'e est fuslJmdue provlS!onal et La persolme du dernzer Cltoyen est a/J..1Sl sacree U ZIl,~olable que celie du premzer A4agzscharacter trat, parce qu'ou se troutle Le Represente, !l TI'y a plus du Representant Cf al~o III, of the c. 18 every constitutIOn IS only provisional, and all office; are revocable ccmstltutzon regular asspmbhes alc reqUIred, each of which mu,t 0ptn 'Alth the puttmg of two questIOns (I) s'IL plait au SOUl'eram de consert'er la /lTesentc forme du GOIlvernemene (2) s'd plait au PeupLe d'l'1l lamer t'ad"l,'nlslratlOn d ceu>. IJICt fIl sorlt actuellement charges I 77 ContT fOC I, ('c 6-7, II, cc 2, 4 7 H Ibid Ill, cc 1-6, 16-17; supra, ~m 213 and ~ 14 to 16 ROlli>~cau, of The duahsm course, IS not blmd to the contr.ldictlOll between lu, own theory dnd the Im/lilat In a( tual fads of contemporary ulIlstitutlOnal law, but he treats all t'XlStmg Rousseau's theory condItIOns as Illegal, and Without any bmdmg force Accordmg to hI; theory the momcnt at ",hit.h tlus second moral person [that of the (,ou1>\.rnemenIJ assume~ the mdependent ruling authonty WlllC h It IS capable at exerCl~mg, and tends to exerCIse, markl. the vlOlatlOU of the tTarte SOCial, the dIssolutIOn of Ie grand Btat, and the COllStltutlOn of a new State, compo;ed of the governor~ anI), and excludmg the utlzens, who thus revert to the liberty of the ;tate of nature, and arc not obliged, though they may perhap, be cornpell~d, to render obedience (III, c. 10) 79. In the theory of Sleyes, for example, the person 01 the State IS i>lmply Sleyes' the commuruty of aSSOCIated mdlvldual; (tf n 117 to ~ 16), and thl, wmmodificatIOn oj Rousseau's mUlllty, m virtue of Its malienable and Illimitable sovereIgnty, cannot bc bound eHher by a fundamental comtltutlOn or by law on the (ontrary, It VIews can aboh~h all posltne law whenever It WI;ht~, 1Il the 'trength of the commUlllty-wIU whKh IS the fmal source and supreme controllt-r of such law, and It can create new law by the Simple expressIOn of~uch Will (I, pp 131-, 143, 2(J:l~qq). But tll1, ommpotence at the collcdlve soverelgu only appear~ III action when the natIOn uses Its supreme nght m a controver,y about the basIC con~tltut!On, and proceeds to form a comtltuent asst..mbly by appomtmg extraordmary and plempotentlary representatives (I, pp. 13842). On the other hand, even m ordmary times, when there IS no such assembly III seSSIon, the law wluch the natIOn Itself has enacted <;,ontrols the corps constltuis, mcludrng the legIslatIve no less than the executive, as a umversally bmdmg cOllStitutional norm (I, pp. 127-37,"I1, pp. 363sqq., cf abo nn. liB and 119 to 16, supra) Cf also hlanglcll, I, (,L I, II, VII, L 53.
Notes to 17
35 1
Flchte an the rule Q/ law
80. Flchte lays eonsldl'rable emphasl~ on the rule of law. In order to secure It, hejlo~tulates a government whIch, though It IS responsible to the sovereign people, ha~ ItS own independent basIs, and he rejects as 'Illegal' forms both democracy proper, m \,\,h,ch thL commuruty IS Judge and plamtIff at the same tIme, and despotl~ms In whIch the government IS irresponsIble (WorkJ, Ill, pp 12sqq, '5c,,</q) 81. Works, IH, pp. '50sQq , 160-'J, 2Cl6sqq. 82. Ibid. III, pp. '5 .. qq, 163, 16bsqq 83. IbId Ill, P 169 So long as the appomted rulmg authOrIty lasts, it~ wIll IS the common WIll, and any other wdlls a prIvate WIll. S4 IbId. III, P 170. S.5 IlJld III, pp T7 Tsqq 86 Ibid. III, P 173 FI('htc I~ not thmkmg here of a ~Ifigle large popular assembly, .but of a%cmbhes In diiTnent place~, which must, howevPr, b(' 'really great ma.. ~e~' Such 'great me.s~es' ale neces~ary, In order that the forcl" of the people may be unquf"..tlOnably superIor to that of executIve officer~ (p T77) 87 IbId 111, pp 182 sqq Tht people IS ncvC! a rebe-!, for what" greater than thL peopk? Only God The ledder~ of popular movement-. are presumptIvdy rebe\", but the presumptIOn IS cdncelled as ,oon a~ the people follow~ them, and thm declitre~ them to be' 1II agreement with the ledl general wdl S('e, to the same etreet, F,(h[("s SlUen/ehre (of 1798), m Works, IV, pp 238sqq HI'! Flchte speaks ell.pff....ly of a 'contract of d('volut!on', algumg that m the makmg of that (ontract the nfag"trates negotiate WIth the people as a 'party' to It, .lnd are excluded flOm membprshlp of the people III perpLtUlty by acceptIng It~ term.... Once they have accepted the~e terms, and made t~emselvcs Ilspomlble, they (an n"lthcr resIgn their office, nor be d(,pflved of It, ('X( ept by the common comt nt of both partJc~, and t!wy must be given a Irt'e ~phere of actIOn In promotmg the general good (WorA.s, III, pp J6:l-5, 175 7) 89. WorA.s, IJl, p 176 90 Once the assembled peopk Ie -niters upon Its sovereIgnty, ~ 'th(' Commumty', the magl~trates becorr~ merely a party' thc cphors ap~ear as accuscr~, and the exccutlve officer' uS defendants condemnatIOn Illvolve~ the pt'llalt,es 01 !Ilgh trea~on and perpetudl bam.. hment, but acqUIttal r('stores the per~on or pef'>on~ acqUldo'<J' .he posmon of 'magIstrate' (Works, III, pp I 74sqq ) 9} In hl~ lecture. on Die Grund::;uge des gegenwartlgen Zellalters (1804-5), FlChte detaches the State flOm ItS mdlvldual members (cf n. 66 to 16). It IS now deSCrIbed as 'a notIOn inVISIble m ItS ess('nce' . It IS 'not mdlvlduals, but their contmuous relatIOn tow.~rd.. on(' another-a r(']atlOn of whlLh the bvm~ and movUlg author t~ the actIvIty of mdlvlduals, as they eXist 111 space' . dgaIn It l~ 'the result' whKh emerge~ from the umon of the leadcI~!IlP ofthc governors WIth the strength of the governed when they follow that leadershIp (Works, VII, pp 146-8). In h,s Rechtslehre also [1812] he adopts throughout an Impersonal VIew of the State, ascrIbmg sovereIgnty to 'the emerge'lt wtll for law and rIght' whICh IS mamfested m the Ruler (Posthumous Works, II, p. 62!!, cf Works, VIIl, p T57). A SImIlar vIew appears In the Staatslehre LI8T3], where supreme authOrIty IS vmdKated 'for the hIghest human reason of a given age and natIOn' (WorA.s, IV, pp. 444SQQ y.
Flchte an meetmgs (!f the cammuruty On popu/ar resistallle
On the contract of devolutIOn
On the magistrates and the community FIChte's later phIlosojlhy
35 2
ml
Clerke's Notes
!l2. Erjmt des loIS, XI, c- 6 legI,latIve power mherently belongs to Ze PeupZe wrps ... eomme dans un Etat Zzbre tout homme qlll est elms! aVOlr uTlt,pme lzbre dozt
AlontesqUleu avozds the problem of

sOI'erezgn~v
Fredenck the Great and tile People
}usti on Ilopular nghts
DlUllzsm
of People
and Ruler 11l hzs theory
tere gouverni par luz-mime !l3. In dealing wIth the theory of separatIOn ofpow( rs (XI, c 6), MontesqUIeu aVOid, entirely any treatmtnt of the problem of ,overelgnty In dealmg WIth the clasSIficatIOn of State,. he spcak~ of the souverame !JulJlanee of the PeupZe elZ eorftJ III democracIes (II, c. 2); but so far as other forms of ~tate an concerned he only ~peaks of' govel nment' by a mmonty 01 a smgle per,on (II, ee 3-5)-though he occasiOnally descnbes a kmg a~ Souveram (e g VI, c. 5). He never makes any relel ence whatevtf to the personahty of the E-tatr-. the Issue to \v1ueh Ins attentIOn I~ always dIrected IS whether the three sorlel de POUI'Olr should be untted m a .lllgk man or body of men, or dIVIded bet",cen sev('ral !let. Fn dench. the Great mdubItably comes very m.d.!' to a theol etlcal recogllllion of the soverclgnty of the peO?le Not only doe~ he J( kr the ongll1 of all ruhng authonty to a wnllactual act of devolutIon by the people he also IdelltIfie;, 'People' and ~tdlt " III contradl'otlllctlOn to the Rult'l appomted 111 virtue of that contractual att, and 1m famous ,aymg that tilt Prmce IS ie !nemzeJ serLlteur de l'Etat abo reappear, In Ius wutmg-, In the fonn that he IS Ie premzer domesttque deJ peu/J!eJ qUI JOIl! JOUS Ja dammu/101l (Anlzmach c I, DeuvTeJ, I, p 123, VIII, pp. 2."lsqq. IX, PP }.9G-7) lGleike naturally sCLks to Cite the grLat authonty 01 1 n:dem k the (;zeat But It I;' not deal that Fredenck wa;, domg anythmg except to rcpedt, m a hterary o .. crt 1'0(', the current ma>..lms of the Age of Lnlxghtenment, nor I~ It L('rt,un \\ihethcr, 111 Idenltfymg People and State, he mednt (1) that the ~tate h only the People, or (2) that the Pc-ople l' only the ~Iate-two sctIIlmgly IdentICal propo,ltlOns wluch are none the Ie,s vely diflercnt ] The It ader IS also reit'rred 10 tht explL;,slOIlS of the con:,tltutlOnah,lthcory 1I1 Voltaue, de Mably, Bla"k'otom, de Lolme, etc, d the author's wOlk on .\lthu;'lu" p J!37 n 186 \)5. Justl regards the ~tate as a ~l1lgle mOlal body, \\illb a lomt force and a smgle WIll (Natur und Wesm, S28) In thl> body, It 1;' 'the oa,1(' authonty of the people' whIch IS the source of all other authonty and IS (on,tantly appearmg 1Il actIon Itself---dt'lermlllmg the fundament.l1 law;, of the :-'tate, and llIllltmg and bmdmg the lulmg authonty willch It confels (S46) Onlv the 'use' of the c-ommon posse~slOns and powtr. I, devolved upon the Rukr tile dormmum e71lITltnJ (Oberelgentum) m respect of theIIl aJJ rcruall1.~ wIth' the I'eople', or the ",hole E-tate', of whIch the Ruler I~ the' Rtple,ent<1tlVe' (~49). The bearer of rullllg duthonty call1lot, thert.fOlt., me ill, dutllOfily for purposes repugnant to Its fmal cau,e, or damage Its ,ubstaIHe (S50). and If he attempts to do so, the people may nvoke the comrIll;,lOn wIueh It gave (47) ]f the Ruler (annot fulnl hIS commISSIOn, or II he vlOlate~ the fundamental contralt, IllS nghts dlsappt.ar (SS 141-2, 146, 161). He mu,t always' have 1Il view the umtt'd Will of the people' ( 149-50). the basIC authonty of the people allolds a presumptIOn III favour 01' a IUlllted rulmg authonty' (57), but cven where the Ruler IS unlllIllted till> baolc authonty of the people stxll remaIn. 1Il force (S67, 74). Sec also lUSh's Grundrw:., g, II, 15, 17, 23,qq, 2gsqq. 96 The 'supleme active aut!Jonty', once lt has bwn appomtcLt, l~ Illdependent, and not subject to the JudICIal cogmsallu' of the people, becau.e the people IS pfUzscens [I.C. a party to a contract III whIch It ha; ,txpulated certam condllions 1II itS own favour] and cannot be Judge m itS own case
Notes to 17
353
(NatuT und Wesen, (7). WhIle the supreme authonty obsclves the lImIts of
the fundamintallaws, It has the use of the whole power of the body polttic, and thereby also of the powers and po~seolOns of tts mdIVidual member~ (45, 4 8 ) the Ruler and the Pwple are the two mam parts of thIS body, connectcd together by the clmest of tIes, whICh can only be broken by a defimtl' hreach of contract ( 128, 130-4") 97. NatuT und Wesrn, 93,>qq, 130-4:l. US. The people I'> the source of all authoT/ty, and moreover, m the ratIOnal and only lawful and ddimtIvc State (which Kant call~ the Republz"), It IS aho the' Sovcrelgn', ma,>rnUlh as true sovereIgnty or rulmg authorlly belongs to the leqI,>latlve, and the agrccd WIll of the people should be the legI~ldtIve (War"" VI, I'P 227,qQ, Vlt', pp I,j! sqq, S&45-b) The assoCIated people Il'elf thu,> eIIlerge,>, by VIrtue uJ the POhtlC.il contract by whIch It I' comlltute~, .l'> 'the uIllv,roalllLad' (Vll, p 133. S47). The Rer;ent (rex or Immejil), a, bemq the IIlOTal or phr.-'>Ical perwn entLUstcd With executIve authonty, I~ to be ngarded a~ the' agent' uf the people, or 'the organ of the Ruin' [I (' 01 the true Rul~-th(' peopl, ItodfJ lIe I' 'subject to the rule of law, and bound thcreby, and t!If'rt'Jon' he I'> bound by anothel than hlmsdf, that IS to say, by the ~overeIgn', who can' take away hIS authollty, depose lum, or rdorm 1m admmlstratlOn' (VIl, pp 134-5, 49, P 137, VI, pp. 332, 336). ~ml1l<llly lhe fWo!!I, I' the founlam of jU'>t1c,-lhough It ha, to exercI,c thc light of judiual deo,lUll llldlrcctly, through repre,entatlve, chosen from and by H,t It (the Jury), * and, furthe1, to leav<, executIOn to the courts ofjUstIce (VII, p 13::i) Ht'lTIg 'the mO'>t personal of all forms of RIght', the ,>oV('f{ lIl"nty o! til( People IS m!lwnable any (ontrae t, by willch the people ph dge, 11'>( If to return the SOVl rt l~nty It has once attamed [by conc1udmg the ollglllal POhtH al contract, whIch IJ/sojaclo con,tItutcd the polItIcal body s~ (reat, d ~ovenIgn uyel rtsdfJ, IS 'mherently null and vOId', and If any mall t.xercl~es the power of wvercIgnty as a legl~lator, 'he can only have control over the people tillough tht' common WIll of the people, but he (annot have control 0; er the common", ,II It'>, Ii' (VIl, P 1'i9, S54) HI) C1 U'orks, VI, pp 32~30 'an Id,a of the fl"ason-thal l ' to say, an Idea ouch a~ to oblIge every ruler, llJ ,.~actmg law, to en4cI It as though It eould have procecdt'll hom the WIll of the whole people, and, agall1, to (:Jl>hgt. every ,ubJect, so Jar f01lh as he wI,ht., 0 bl' a real CItIzen, to It gard the law as though he had concurled m the WIll enactmg It 1Il the manner afore'>,lld thI> IS the touch~tone of the nghtfu III all pubhe law' . ef abo VlI, p 158. [We may almost ~ay that Kant', phIlosophy IS a phllo,ophy of the as though (als vb), 111 thl' seme that when a lhmg I, done' as though' It were anolher thmg (e g when law IS enaued by ~omebody other than the people 'as though' It were enacted by the people), It becomes that other thmg The real dIfficulty Whllh Kant IS JaelTl~ whether a law for the general good can be enacted otherWIse than by the general WIll He answer, that It can be* Kallt', VI' w appe<lTS to go beyond Engh,h pra, hee, when' the Jury find,> the laet' on whIch the JUdICial dec"lOll l' boi,ed H" d"tlll( hUll bclw( ell the Rechtsprechung oj the Jury and the AU5juhrung by the &fTU hlshof ron e>ponds to old Teulomc Idea> oiud pralllcl', III willch thL people assernbkd III a folk-moot Judge, and a JUdIClat.uflltt'r (,nch a, th" ,>hudl) t'xecuk' Ihe Judgment, but It doe, lIot correspond to the rclatlOllj bdweell Judge and JUry If\ Eugl.ind, wh, r" the Jury IS III no way analogom to a lolk-moot, btll " deflv"d from oi royal prerogallval method of mqUl~ltlon' mto the laLl" through' ,woru' repre!>Cntatlve'> of local knowledge and opullon pIcked by royal utIiClab, Ieadmg to a dCCl,JOn gIVen by a roya~udge.
J '
Kant's tJuOTY qf popular Tights
Aimt's
theory qf the as
though
1,
llTSil
23
354
Clerke's Notes
!tant not a democrat 11l practzce
'Mixed'
and
, limited' States
provided that the enactor enacts' as though' he were the general WIll. We might reJoIn that no man or body of men other than the gen<;"ral wIll can act as the general Will acts-I.e can have gone through the dlalcc,llcal proces~ ofsoClal dlScmslOn, and taken the hroad general soual VIew, whKh a whole SOCIety can go through and take 1 100. The people cannot' ratIOCInate effectIVely' about the ongm of the supreme authority to whICh It IS subject, and It must 'obey tht" de facto kglslatlve authonty, be It~ ongm what It may' It 'cannot, and mu.t not, Judgt oth('rwlsc than a. the Htad of the State for the tIme bemg (summlLl lmJ)erans) may WIll' The Head of the ~tate alone l~ exempt from all coerCIve law he 1. 'lIot a member, but the author and ~u,tailler 01 the c,ommonwealth', the one and only 'gra( IOUS sovereIgn Lord' III the' State, and although there arc norms or standard, wInch tht> Rule'r should observe III enacting laws, any and every law I~ bmdmg on hI> subJect~ It fo,lIows that the people' can never enJoy a rIght of r"~I,tIng the powers that be (It cannot even plead that nght m case of n(.('{ '~Ity), or po~~e" any authOrIty to eoe-rce01 pumsh the- Head of the ~tate. nOI tan allY tumlitutlUnal plovmon be conct'lVed, or admItted, by whnh a 'pub!Jcly constituted OppoSItion' can be Illvoked to protect the rIght, of the people agaInst tlw Head of the St.lle m the event of hIS VIOlatIOn of the comtltutIOn, ~mcc any such autholltv would Itself be the Head of the State or would pmtulatr the CXL,lt Jl( e of a third Head of the ~tate [to Judge between It and thr summus lmperOnl]. True, there are 'mdt>;tru(hble nghts ofthr people a; a~atfl\t the Head of tilt' ~lat(', but the only protcctIOn of such nght; c> ' hLerty of the pen, thc ant" palladlUtn of popular fights' See Worh.s, VI, pp 323,326 and 33(>-7, 44<)-50, VlI. pp 13641, 158~qq On thIS ba~ls Kant also rejects the po~slblhtJ of any alteratIOn of the constitution by the people, and eonll'nts hllll.elJ by appealmg to . the .powers that be' to oo,crve the law of Rea~on. \\ hlcIl requIre, that they ~hould rl'ahsc .1 constitutIOnal sy.tem of go\ernmt"nt and thm crcate thl' only nghttul and abldmg COI'lStltutlOn. Works, \ II, pp 157 .qq 101. It I. true thai Kant bdIC\ e, that the' as,oClated people', In a COIIstilutronal ~tate of thI> pattern, ,hould not only repn>;tnt the Soverugn tIll the ~~nse of repre;,entmg the fmal and ,ovLlClgn la\A; of Rta.on], but ~houlJ actually be sovereIgn Itsell~ HI the scme 01 exen 1~U1g kgI,latr\ e ..1Uthollty through the deputie~ whom It elects, but .m( c It (.l11ll0t, III Its (apauly oj legIslative, enJoy any executIve powel', or pronounce any JudiCIal deCISIOn, the people I> left (ompIetdy Imrotl I1t a~ agalTlst the other powers, Works, VI, PP 416-20, VIl, pp I3[-6,I59-bo 102. cr. Works, V1I, pp 151l-9, 52. 'thIs IS the only permancnt constItutIon 01 the. State, m whu h la"" l~ sdl-govellllng aIld depelld. on no speCial person'. Cf abo pp. 156 and 173 103 Cf nn 4Iand47toI.l 104 Thus Hom argues that there cannot be a mzxta RespubllCa, bl..causc majestas I, no more dIVISible or communicable than lTltellectus PetTi cam commumcan poust Any dIVISIOn of the rIghts of supreme authonty means a complete confUSIOn and destruc tlon of mOJes/as even 111 Poland (as was also the tase m Scotland at an earher datt) the Kmg IS sull the Sowrelgn, although hl!> modus habendi malfstatem IS lImlta/us by the &pact which obhges him to con,ult the proceres. De cw Ill, c un. 3, and II, c 2, 8, c,. 10, S5, cf. Becmann, c. 24, S6.
Notes to 17
355
105. Cf. Ml<:raehus, I, c 13, 3sQQ there I~ aforma mIXta, but It only eXists m t~ sense of a forma temperata, and this desIgnation is prererable Similarly Kmcht'n, after glvmg an exhaustive account of the pOSItion of the controven.y, arIlves at the view that It is best to aVOId the conceptIOn of a forma mlxta, because the questIOn IS really one of llmltata (rather than of mIXta) summapotfstas (Opw./Jol. I, c 8, th H, pp 318-22) Fenelon abo, whIle he reJccts equally despotlsme des Souveralns et de la Populace, regard~ a forma mlXta as Imprac tlcable, becau~e It IIlvolves partage de la Souverazneti (c XII), and he drsrnbe;, WIth an obvlom prepo;,c;;lOn m It> favour, a ~ystem of m01larchle modirie par ['arlStocratle, m which the Kmg needs the consent of an an,tocratK c,lamber li:n Iegl,I.ltlOn, and that of the people It~dj (or the ImpO;ltlon 01 new taxes (c. xv). 106. If tim Ime was taken [I.e. If It was argued that hmlted sovereIgnty was lTlcoT:clvable, and that States With constitutIOnal hmltatlOns upon the nght~ of the Rult'r "ere only 'uuxut', dnd not pUle, fOlms], the re;ult, on the ba~ls adopted by Bodm and Hobbes and other advocates of absolutism, Wd; SImply to demonsttate the non-exIStence of such State~, for on theIr "lew the real \overelgn must always be either one man, or a ;mglc an\toeratH' lounul, or the people Ibell a; a smgle umt, and no coru.tttutlOnal lamb ",ele legally bmdmg upon that sow'relgn Armsaeus, on the othe. hand, though he regards any ImutatlOn of sover< I"nty a, lTlwneelvable, adnut; the po:.;lblllty of Its dlvl'lon (cJ n 47 to I J:). Spmoza too ;ketehel> the Ideal of a hnllted monarchy, although he COI1>ldus absolute monarchy alone. to be real monarchy (cf Tract pol u 6-7, and;upra, n lOto~I7) 107 PuJendod, Jus 1Iat. et gent VII, CC. 4, 5, ~ 12-15, c. 6, 13, De off. hom. 1'1 CIV ( , 7, H, 12 10l'leThoma;lUs, f1lJtlt.JUr dw III, c fl, 32-3, 38-56, 59-61,156-60. 109. J H.lloehmer,Jus/Jubl UlllV I,C 3,25-6 themLXtusstatus,when It occurs, many Cd,e a monstrum Relpubllcae, bccaw.e It depencb on a d,vI;lOn of power" and ;uch diVISIOn dz;turb; U1ll0 110. Hert, Elem. I, II, 8. 111. SchmIer, Jus publ. unlV I, C :, nos 30-55' a genume forma ~IXta, when It occur;, IS neces;anly IIljor". " because I1llJJestas IS lIldlvlsrble [and to dIVide It therefore destIOYs the fo7t~; ~(elpubllcae and makes It lTifOrmls] All that 1; compatIble WIth the c;;cnce of tIlt> State IS (I) 'InllitatlOll' of majesty 1Il legard to Its modus habendi _ J , ) the partICIpatIOn of others m Its admllllJlratlO ll:t. Gundlmg, Jus nal. c. 37, 21-36, DISC. c. 36 Any respublzca IS GU1ldlmg 'Irregular', when the' SubJect' of majesty IS ;everal dIfferent persons, and 011 the mIXed not una perso1la physlca vel morallS, and when majesty IS therefore dIVided, and State the State IS WIthout ulUty auJ a ,_ul or ;pUlt There IS nothmg, thereforf', 1Il a respublzw mzxta, and Sidney's view 1; a mere chimaera, but people may all the same hve happrly 1Il ;uch a State, per acadens, as they do 1Il England, Germany and Poland Cf Jus nat c 38, r9-23, where Gundlmg argues that the people may draw ti't' sword III a 'limIted and Irregular form of State', m whICh tuetur. U1lWqUlJque JUS suum ex pachs quaesitum, but It IS otherw'se, he adds, 1Il a regular form of State. 113. HemecelUs~ Elemeuta, JI, 138 114. Hemeke, Syst. I, c 3, 24-5 (note the sharp dlStmcti~n, m 26, between the mlXed constltutIOn and thejorma temperata).
1,
23-2
(;ierke's J\(otes
115 We find Hert, for example (Ioc. CIt), already devf'!opmg [m hIS Elementa of 1689] a formal scheme of respubllcae lTTegulaTes which tucJudes five subdlvlslOns-"De~potlsms, PatnmonI.ll State~, Va%al State~, .ind Uniom or ConfederatIOns, m addItion to MIxed States. Schmler (1, c 4, ss. 1-3 of hi" ]Uf publ UTIli'. of 172'2) dlstmgUlshes three kmds of Irregular clVltates-f\ difectufinzs, ex defectufoTmae, e>; difectll ne'!:lts. Cf al~o Gundlmg [m 17/4], n. 112 of this section. 116 Otto"s Comment<J.Tlfs on Puft'ndorf, 12 on De oJ! hom et Cll' II, C 8 117. TItlU~, Spec.}UT publ VII, c. 7, ~31-'3 and 53-63 In tht' cWltar laxa, ""e have to a~nlbe TTUlJestas jilliTlbus slmphcI saltem oblrgatlOne COnllf'!:!S dwmm l'e!l1ldll'lSlm; but t'ven in such a case the State IS om', and the 'Subject' of pohtlLal authonty I~ unum, Jed non SahS'lltlltum Thrones of 118. Sf'e Besold, Din de statu Relp. m!xto, Co I (whtre the phr.i~t' commUtllpartnership cata maJestatlca potestas oce urs) , cf also tht' author', work on /dthu~1U~, In sovereignty pp. 169 n. 138, 181 n. 17,355 nn. n.and 78. In USlllg the argum('nt that the Emperor and tht' Estates of Germany ',\,erc only tOnlundlm [and 110t severally or ~eparatd)] the' Subject' of a "mgle and mdlvl~lble ~ovcrelgl1(v, thmkers WLre c,peClally concerned 10 rC'but the attac h of Hlppolilhm .l Laplde and Pufendorf on the pn:vaknt theory, and to vIlldlCale th.. e 011stltutIon of the EmpII e from any tamt of Irregulanty 119. Huber, DeJlITeCll'. I, 3, c. I, S21-3, e 5, ~24"qq" 79'QQ ,I, B, r & ~uc h commumtlls [m wlurh ,ovcreu~nty I~ ~hart'dJ may afl~C Ul CO!1S(quencl' of the fights of majesty !J( mg C'ltht"r ahenatcd 01 pastnptlvd} acqUIred by one of th(' three partIes roncCIned-pnnLe, nobles and people, 1, 3, c 89 While there IS no posslbllitv of applymg legal Loeruon to a ~ovelt'lgn, the apphratIon of such t oernon to the ImJieran\ J', a con( eIvablc thmg ""hen the people zn .Joczetatem ImpeTll, saltrm pro jJarte, recfjJtus est, J, t), (, 5, 49 120 For attempts to defend the nuxed form of Statc by the uortnnt> of partnerslup m :>overelgntv see e g Gdlanus, c 9, 35 (conJunctzm JUmptl) , Kestner, c 7, S5 and 8 (m solzdum), Alberti, c 14, ~ I I , If de COCCt~j1, Prodromus (a dlfIerent vIew apprars 1Il S ell' Core ejl, ~b~4), HemetoU\, II, ~ 126, and" espee lally Scheldemantel (I, pp 15lJ--U'2) ~cheldemantel-al5rcell1g WIth Pufcndorf, Real, Menler and Rousse"au, a~ agalmt GrotIUs, Arm,<1eu" Plccartus, MOUi{'qUIeu, Mably and Ju,tl-attacb any dIVISIOn 01 the rIghts of IDajesty as an offence agalmt thc UnIty of the State, de'Lnbmg the appearance of such diVISion as 'a dISease', but he adnllt, the pOS:>lblhty of a partnenhlp III IDajesty, I t' a partiCipatIOn of scveral 'SubJecb' m the exerCIse of Its nghts 121 '1 Illnker~, as a rule, were shy of treatmg many eI('tall thl, problem of the nature of the share~ [posses,ed by the dlflerent '~ubJects' of rnaJl~~tyJ, contentmg themsclve, With such phrases .is were SUItable for descflbmg the legal pO,ltIon 01 owner~ll1p by gesamte Hand m German law [cf: wpra, p. IllS, n *]. There were some who assumed, 1Il resperl of syslems of Jomt majesty, a condomlmum plUYIUm m solzdum analogous to the cOndOmlTllUm of private-law group~, d Kestner, loc ut, and e,peClally Vltnanu, (I, 7, ~~4-6), who speaks of a smgle Right With 'Subjects' who are 'dlver~e and mIXed', parallel to the obhgatlOn of correl debendl [whel e there are multIple debton, but a smgle 'ObJcxt' owed by them JII, d. supra, p 123, n 11<]. There were other, who spoke of 'Ideal' shares, cf Besold, 10L Cit, and FrantLken, Dm de statu Rezp. mlxtae (m Arumaeus, IU, no. 27).
'Irregular' States
Notes to 17
357
The (shares' in the
partnership
122 Thus we find Hulderic ab Eyben argumg-m hIs De sede MaJcstatu Romano-Gerilamcae (Sen/Ita, III, no ')), c I, 3Ii>qq.-that m a mIxed form of State several' Subjects' together form tlw wmmon Subject' (mlscetur non majestas, sed subjectum), but he proceeds to add that the ewrczse of supreme authonty ric the actual usc of majesty, a~ dl~tmet from majesty' m Itself' when regarded as an ab,uaet power] may be eIther (I) dIVIded among several users, or (2) managed on ajOilll ;ystem In some respects, but divIded mothers (37)-the latter b(Jng the ea~e m Germany, m so far as the authonty of the terntunal pnnees IS really a case of the dt;tnbutlOn of Impenal J>Over(Jgnty among dItkrent pcr;om for separate use (c 3) [I e. m Germany impenal soverClgnty IS In wrne respects managed on ajomt 'y;tern, m winch the Emperor and the Estate, are assot:lated, but m other respects It IS dIVIded among tern tonal pnnces] 12:3 f.( henwall, II, S 186-7 124. Like Arnisaeus, GrotlUs, Lynnaeus, and other thmkers of prevIous eentunc~, we find Clasen (n, c 9), Fdwmger (Dlss de Rep. mlxta, pp. 417~qq ), and Boeder (n, Co 2, III, ec. 1,8), stIll mamtallung the conceptIOn ofajorma mlxta With a real dWlslO maJestatls 125. Thus Tr('uer, 111 eommt'ntmg on Pufendorf, De off hom et Ctv II, c 7, 9, contends that majestatis dl1llSIO IS generally pOSSible and advantageous, and doc~ not produce.a monstrum, because re5publzca perpetuum majestatis subJcctum manet 126 Lelbni.l (Spec demonstr pollt. prop. 16, p 537) argues that m deahng WIth the Jus majestatis, as m deahng WIth any JUS, we haw' to draw a dlshne Uon bt'twt'en Ipsa ms et potestas lind exercltzum On tlu~ ba~ls we can explam mlxturae jormarum Poldnd IS a democrae y If we look at tht' ms, but a mondrchy If we look at the e>..eTrztzum summae potestatlS. 127.. On the begmnmgs of the theory that the three 'power~' should IlLLu,allly be dlvlded-a theory wInch may already be traced III Buchanan and Hooker and SIdney-see the author's work on AlthusIU5, pp 157 n 102, J(J3 n I Ig, '155 n 79. ~idney ngarcb a 'mIxed or popular government', combmmg all the three form5 of State, as the best (c 11, ~s 8-29), but he docs not defimtely bnng the Idea of dlvb".t\ of powers mto connectIOn With thiS doetrme. Lockl' also docs not eX"ffJ.llle the relation of the system of clavI'lOn of powers, whIch he postulates 111 11, _c 12-14 and If), to the mIxture of the dlfferentj01T/l.l ofwhlCh he- spe-ak, tTl II, C 10, 132. lGlerke I~ here readmg too much into Locke The p,,al" ~Ited (II, cc 12-14 and 19) do not warrant thf vIew that Locke postulates a system of diVISIOn of power;-at any rate so far a; their eXerCl5l' IS concernl'd He SImply seeks to dI~tlllgUlsh, zn thought, between the dIfferent functIOns of polItIcal authonty. He I. dealmg With the logICal analySIS of functIOns, rather than With the practIcal questIOn of separatIOn (or Ullltn) of the organs wlueh exercise functions. DI;tmgUlslung three funehoIlS, he only remark~ (I) that m practice 'the legislatIve and executIve powers Lome often to be sl'parated', because the former IS not always 111 seSSIOn, while the latter IS always m actIOn, and (2) that the executIve and federatIve powers are' really dISt1l1ct m themselves' (the one dealmg WIth mternal admllll;tratlOn, and the other WIth treatymak+ng and foreign polIcy), but' are almost always umted' m exercise (II, c. 12, g 144, I 4i~ ThiS ImplIes a distmctlon between a legISlatIve organ which IS not alway; m seSSIOn, and a jomt executIve-federah\ e organ whIch IS always in actIOn, but it is a dIStInction merely based on contlflulty or dis-
Leibnzz on the mixed State DWlSion oj powers
[Locke's theory oj the three powers]
Gierke's Notes
continuity of operation, and Locke's theory of the 'supreme power' of the legtSlatlve (subject always to the over-sovereIgnty of the community It~elf) is a thf'ory whIch does not square wIth the idea of a ~eparatlon Sf powers as necessary to lIberty On the whok, Locke beheves m a umted or smgle ~ovrrelglltv, whIch I~ Immcdlatf'ly vf'Stl"d m tht' leglslahvl", and uLtlmately in the commullIty-though he admits that where' the exccutlve IS vested In a slllgle person who has also a share III the legislalive, thpre that smgle perwn, in a very tolerable ~ense, may aho be called ~uprcme' But thl~ IS a guarded phrase, extorted bv Enghsh condItIOns, and Imme'dlately quahfit'd and modlfi('d (II, c 13, 151); and Locke aha ha~tens to add that 'the executive power placed anywh('rc but 111 a person that h~ al~o a share in the legl"latlve l~ VISlbiv ~ubordm;ltt. and ;l<xountablc to It' (~152) ] 1 28. Es/JTIt des lOIS, XI, cc. 2, 4, 6, \'1, c(' 5-(j 129. Ibid. XI, cc 4, 6 But MontesqUlcu IS III favour of a~ much dIVISIOn of powers a~ pOSSIble t'ven m slmpll" form~ of State, and he dealJ WIth the ,~ay In which it rna) be achIeve d und('; different comlitutJOns, XI, cc 7-30. 130. :MontesqUleu goes to the length of dt elanng th.lt a comtltutlfJn, In which Ie peuple en corps can drav, all the power" mtu Its own halld~, I~ the great('~t menace to hhcrty XI. cc 'j,6 In a proper St.lte nol onlv the JudJual, but aha the executive power l~ lI1dependent of the popular a~sembly or the as~embly of popular npresl'ntatl\ 1'5 If POI/VOlT arretf If /'ouvOlr, and the three powen can Impn!e onl" another m movlI1g, rnat'( comme /Jar Ie mOUl'fmmt necessmre des chases elles seronl contraznlfl d'aller, elle( seronl fOTeen d'aller de concert, XI, CC. 4, 6 131 Contr soc III, c 2 132 Ib,d nI, LC 4, 7 It dept ncls on circumstances whether the gouvernemmt mute IS to be preferred to the gouvemement simple ~tnctly ~peakmg, there I:' hardly SUI h a thmg as a gouvernmunt szmple 183. Illld, II, c 2 Whether we look at the' Subject' owmng, or the' ObJect' owned, SoverClgnty IS lI1dlVISlble pohtICal theonsts behave hke Japanesejuggler~, who L ut a chIld mto pleCf'S, thtow the plCces up mto the aIr, and make a hvmg chIld lome down. leis Jonl t!: peu pTh Ie tours de gobefet de nos POlztIqueS, apres alOlT dimembrl Ie corps SOCIal, jlaT un jJrestlge dzgne de la fozTe tls ,.assem~/ent les pIeces on Tie sml comment. 134 IbId III, c. I Just as all voluntary action ha; two <-d.USt'S whl( h mu~t both be operative, /'Olonti and !JUlsSalUC, so, 111 the body politIC, t!ll'le must necessanly be a dl~t1l1ctlOn between volanti and fOTce, or 111 ot!ll'r words between pmssance l~glSlatwf and pUISsance e>:icutwe, and ",hlle the former of these must belong to the ~overeJgn body, It need not ne(es~anly possess the latter. 135. See n 74 to thl~ sectIOn, ef also Contr soc n, c 6 and III, c I, where the argument I~ pressed that legislatIOn, bell1g the only po,,,ble expreSSIOn of the general WI)) on general obJect~, IS the only pO~~lble activIty of the Sovereign when actll1g a~ such, wIllie pohtl<-al actIVIty of any other kmd, bemg actIOn partlcuhere, IS melely an actIOn de maglstratuTe, even when the Sovereign Itself undertake~ that actIVIty [Sl"e n 74 supIa, on the soverEIgn <-ornmumty turnmg Itself mto a democracy, and the CItizens makmg themselves magistrates, for purpose~ of executIVe actIOn.] '. 130. Cf supra, n. 78 to thiS sectIOn. t' 137. Such an approach to the pnnClple of diVISIon of powers appears m Siey~, I, PP 2B3sqq., 445sqq , II, pp. 363sqq.) 37 I sqq. and 376sqq. Here
MontesqUleu on dIVlSzon of powen
Rousreau's attItude to mIxed constItutzons
Suyes on dWlSwn of poweTS
Notes to 17
359
dIVisIOn of power~ IS justIfil'd by the argument that though there is only one polItIcal authonty-that of the social body It~l'lf-there are different organs of that authonty, based on different CO~lffil~SlOns given by the sOCIety. Sleyes also attempts to argue for a system of concours of powers, Instead of a balance or eqUllIbnum See also Flchte's Naturrecht, I, pp 193sqq (Works, III, pp. I6ISqQ) :FIChtt>, however, sub~equenl!y reycted the Idea of dlvl~lOn of powers In hIs Rechlslehre (Posthumous Works, II, p 632) 13 R This com bmatIon of the mlxt>d con,trlutIOn and divIsIOn of powers appc dr~ In B1aclslone, Commmianes (1765), r, c. 2 sqq ; III de Lolme, The COWlllul101I if England (1775, first publI,hed In French III 1771), III the Abbe de Mably, Doutes proposer au:. phdosot.Jle; iconomzsles sur l'ordre naturel el essentzel des soclilis pollilque; (176B), Lettre x, and De la 1~f!,~flat!Un ou des PrznClpef del loIS (1776), Ill, c 3, and III other WlllelS [Among other wnters who combme the ~llx(d constItutIOn and dlvl,lon of powers may be mentIOned Paley, who III hiS PrinCIple; of Alora! alld I'olztlcal PIlllosophy (1785), Book VI, c. 7, argues (I) that the Bntl,h comtrlutlOn l~ [mmed by 'a combmatlOn oflhe three regular speclcs of government " and (2) that th(' ~t'cunty of the comtItuHon d('pend~ on a 'balanct' of the comtltutron', or 'polrHcal eqmlrbnum', set'unng each part of the lcglslallve-Kmg, Lords and Cummons-'from the ('DC roaehments of thc' other part, m the eX{'ICI~(' of th(' powers assigned to It'. The balanre, Paley argl!e." I' double It IS both a baldnee o[ power, and a balance' of llltert'~t Paley dIffe] s [rom the genel al eontmental usage m speakmg of d balance or eqmllbnum, not of the thr("e powers (legl,latlVe, judl(atUle and e'XC( utIve), but of t1c thr('e' part, of thc legIslative Thl~ wa~ natural HI England, where tilt' l("gl~latIve', or Klllg m l'drllamcnt, wa~ regarded as ("vnytlnng, MJ that any parts or dlvl,lOm must n('et'ssanly be parts of It It IS tim POlUt of vIew wluch enables Paley to Identify the mixed constrtutIon With dlvl.,lOn or balance of powers, [or If Kmg, Lord., <lnd Commons are the powers dl\ Ided or balanced, the n-SIIlCC they repre,ent re,pectlvely monarchy, arh,tocracy and democracy~-theconstItutIOn 1;' a mIxed (onstItutlOn umlIllg all the~e three forms It nldY he added that Paley's VI('W the general Engh,h Vle'W of hI~ time' 1. "expounded by Burke III the- Thoughtf on the Cawe if the Presenl Dwontenl; \ '~orAs, III Bohn's edlllOU, I, p 33~, and aho m the- RlltfdlOllS, where the con,t tutlOnlS d~cnbcd a, 'the engagcillcnt and pact of sOCIety' by .... Iuch 'the comtltuent parts of a Statc arc olJhgcd to hold then publIc [alth With eac', "cr' (Work;, II, p 294.) ThiS gene-ral Idea IS cntlCl,ed by l'amc, both III hl~ common Sense of 1770 (where he assumes that 'the (omponent pal t!. of the Engh~h eonStltutlOn' al e 'the base remams of two an(Jent tyranme;,', mondrchy and anstocracy, 'compounded With some new repubhcdn matenal> III the presence of the commons', and then argue-;, that' to say that the' onst,lutlOn of Englalld IS a umon of three powers, reuprocally checkmg each other, IS farCIcal '), and m th". RIghi; if Man of 1791-2 (where 1Il Part I, ConclUSIOn, he entlClses 'mIxed government, or, as It IS sometimes ludlcromly stlled, a government of thIS Ihat and i'other', as a cause of corruption (becau,(' the hereditary part trw, to buy up the dectlve) and of mesponsl1nhty (becduse e'ach part tncs to shuffie off blame on the OtlH~S) . It seems cunous, by the way, that the EnglISh thought of the eighteenth centurf does not regard the JudICature a~ a 'part' o[ the ConstItutIOn, In any way parallel to the other' pal ts' o[ whIch we hdve spoken. But the reason IS SImple. ConcentratIOn on the Kmg m ParlIameret elImmates
DW!Slon rif powers and the mIXed constItutIOn
[Paley, Burke and Pazne]
I,
Gierke's Notes
The theor.y of the mixed corn tztutlOn zn GermallY
Kant on
the the
log~c
of
m~xed
const~tutlon
thf' judges, who are not, as a body, a ' part' of that orgam~ahon At the same time we must notice that Palev, wht'n he comes to the admmIstratlOn of , J UStlCf' (VI, c 8), IS qUIte df'ar that It IS 'the first maxIm of a f!l'e State' that 'the legl~latIve and judloal chal acters be kf'pt separatf", and that thf'f(' should be a 'dIVISIOll of the 1t'g-l~latlve and judICIal functIOns' SImIlarly Burke, though he regard~ the KlIlg and the- two Houses as the- (onstItuent parts of the State, and as JOIntly sovcleign, aho says 10 hl~ RrfiectlO/l.l (Works, II, 476) that 'whatever IS ~upreme 10 a Statr ought to have a~ much a~ possIble Its JudIcIal authonty 50 ronstItuted, as not only not to depend upon It, but in somt' sort to balanct' II' On the gcneral theory of the parts of the constItutIon and srpal atlOn of powers se-e- the Report of the Commllt('eon Mmister'>' Power~ (emd {oon), pp' B tfl l:W See, e g, Wolff, Instlt ~993, 1004, Dane-s, S767 (but he- argues, m 786-7, that lImIted monarchy IS not aforma mlxta); Nettclbladt, s 1142, 1155-7, 1197 (who suggests, In de-alm~ VoIlth the mIXrd cunstltuhon, that sovereignty can be-long to several' Subjects' at the same Umt' many ont' of three ways-( I) m partes dWlsae, or (2) zndwlsa, on a baSIS of JOInt ownershIp, or (3) partly dIvIded and partly JOInt-and that none of the~(' ways IS absurd); and Ickstatt, OpliSC II,OP I, C I, 18-21 (who take-~ the same 1m e) Hoffbauer (Naturrecht, pp 307-14) treats mIxed constltutlom WIth specIal fullness He dIVIdes them mto three kmd~-' hmhed', 'the mIxed In the proper seme- of the word', and' partly lHrIlted and partlv mixed' H,> IS the only wnter who atte-ffipts, aftf'r dlStmguL~hlll~ the dIfferent 'Suuycts' of sovereIgnty 1Ovolvcd, to r('-urute them a~alll III a moral pt r,on 111 the wldel sense' (pp 206, 292) , but he does ,0 byextendmg the conccptlon of the moral person to a pomt at whIch It crases even to Implv tht' eXistence of a partne-rShIp among the dIfferent juxtaposed 'Subjcrls' (p H}O, rf. n ,I()O to 16) 140. Fredenck the Great IUl11sclf (Ant/mach C 19) had already declared that the EnglIsh ConStItutIOn was mOle worthy to be adopted a, a model than the J're-nch 1-1.1. Justi ranks a~ the be~t constItutIon the form wluch IS a 'mIxture' ot the th"e-e Simple forms, WIth a 'dIvIsIon' and' eqUlhbnum' of the dilTelent 'powers' , and thl~ I~ the baSI' of hIS sketch of an Ideally good conslltutlOn for all tImes and places (Grundns,:, s 135-69, Natur und Wesrn, 5I--6I, 93-7, 14 2 ) 142 A. L. von Schlu;,er holds that all Prznczper Ilmpltces are a menace-, and only a Prznrep, comjloHlus IS cndurable We mmt therdore mIx lomIs of State, as a phYSIcian nllxes hIS drug~; and a mIXtUI e of the three form~, With a dIVISIOn of sovereIgnty, IS 'the best .attempt of poor humamty, whIch anyhow must have- a State', Thl~ Ide.al form has been atlame-d m England, 'but It has not b~n dlscove-red by Plulosophy, or Romulus, or the Earl of LeIcester 'I< It IS due to aCCIdent, gUIded by bon Sens, and favoured by clrcumstances' , pp. 144-55, S 23~l, P I 15, 3 143. Kant achieve, dna re-mlt by hIS famous comp.anson of the legt~latIve, exerutlve and JudICIal powers to the three terIns (major premL~e, mmor premise, and conclUSIOn) m a practIcal syllogIsm, Works, VI, pp. 4IU-20, VII, pp. 131-6, 159-60. The three powel s are co-ordmateo WIth one another as 'mdependent moral persons', but at the same tIme, masmuch as none ot i)\IDon de Montfort?
Notes to 17
the three can usurp any of the functIOns of the other two, each IS also subordmated to the others, Ibid VII, P 134. Cf aho p 1 ~3 ~upra. 144 See -ruft"ndorf, J n et g VIII, C 12, ~~ 1-4 (It follows, he argues, that responsIbIlIty for past debts contmuc~, ranks and orders stIli remam the same, etl.), AlbertI, (. 15, ~& 5-9. SchmIer, IT, e 4, ~ 2, ~I, Locke, II, e 19, 2I nqq , HertlUs, Opusc I, I, P 296, IJ-I2, II, 3, p. 54, 7-8, Gundlmg, c 38, 1I sqq , Scheldemantcl, III, pp 401) ~qq 145. Pufendorf~ lac. CIt. S-G, argucs that when a State IS diVIded mto a number of States, It~ debts mmt also be diVIded pro rata An mdependent colony IS not, howeveI, responSible for the debt~ of the mother-country, smce thI" IS a ca~e not of alteratIOn but of procreatllln Whcn several States Ulllte to form an entirely new State:-, Ilqht~.and hablhtIe" are transferrl'd to thiS new State, and when a prevIOu~ly mdepe:-ndent State I" made a prOYlllee, the State anne~lIlg It must ~Imllarly take (wer It" habIlIw's, along WIth Its nghts, as In IPSO corpore haerentza. Cf aha ScpmIer, 101: CIt, who hold~ that dlUHlO or unzo docs not m"an the destructIOn of the:- eXI~tmg polItIcal authOrIty, but partItIon of It or partICIpatIOn mIt, HertlU" (Opusc I, 1, pp 21)3Sqq, ~g-IO), who dlstlllgUlshe~ the four cases of merger, annl"XatlOn, SImple adheSIOn, and personal umon, Gundllllq, c 38, Scheldemantel, III, pp 408- 2G On complete- dlMntegr'iltoIl of the State, eIthcr thiOUgh the total dISappearance of It~ phY~1( al baSI~ or the total dIssolutIOn of It~ nexm, cf Pufendorf, lac CIt ~8, SchmIer, V, I 4, ~ 2, ~3, Alberti, I' 15, 10, Hert, 101' CIt P 295, &10, LOl'kl', II, I' 19, 211 , Rou~seau, III, I I I 14(; Cf nn 12(,,129,147,161, 170. Ifl6, 213-14, and 238 to ~16, and also n 7 to &17 The most det.IIled treatment of the qUL'.. tIOn [I ('the questIOn of the nature of the 'upr~on of the State' wllPn the R uler I~ a l'OllectIve body of persons] IS to bl' found III kbtatt, OpUfC II, op. I, de Jure maJorum zn wnc!usls Cll'ztatls commU/lIbusformandls He starts from thl' prlflC Ipk that a dec lSlon of the State I~ a voluntas totzus mpublzcae determznata de ;>.{'(Izo quodam salutl publzcae effectum dandz, that tIll" determmatIOIl of the", ill belong' to the' detive Sub)ect' of supreme power', and that It IS theruu,e achIeved by the WIll of a ~lllg1e moral pcr"oIl' III a monarchy, ane! ~)y the deCISIOn of a 'comp0'>Ite rrtlxal per,on', based on prevIOus dehber;;t.on and argument, 111 'polyarchlcal' form~ of State He proceeds, on the baSIS of tim pnnClple, to deal WIth maJonty-decmom both undt'r JI" j)I1' ,.lm u/ll/lersale (I' I) and under the publIc law of Germany (c 2) SeC' also HI mcl.e, I, c 3, ~ 16-23 ] 47. Tins was regarded as one of the case~ III wlueh unw homo plures personas swtmet, (f nn 119, 159 and 173 to ~Ib Sec also Huber, I, 3, 24-38, and Nettclbladt, I 194 148 TitIUS refuses to dlotmgwoh pubhc and pnvate law by the dIfferent purposes to which they arc dIn"( ted, 'as I~ generally done', he prefers to dlStlllgUl~h them by the dIfferent' Suby( ts' of nghts to wluch they relate Public law relate~ to Subdltl constltuendz, and to Im/lerantes constltuendz et conStlfutl qua tales, pnvate law rdates to Subdltz constltutl, and to Imperantes Juxta condltlOnem przvatam Accordlllgly, WhIle Subdltl COnstltlltI III a formed and o~ratIve State [as contrasted WIth Subdltl who have ~tIl1 'to be constItuted' when the "State IS III process of formatIOn] no longer possess a persona publzca, and have only a pnvate personalIty, the Ruler alway~ possesses a persona dUjJ/ex, and we must always dl~tIllguish hIS pubttc and hiS
ContinuIty of publzc TIghts and dutzes
Its,
Rules for the actum of a collectIVe Ruler
PublIC and prlUate law
(;ierke's j\(otes
pnvate personahty. There are, however, mixed situations (such as that presf'nted by the pnvate law pecuhar to prmcely famihes),* and the 'pnvate person' of the Pnnceps I' not necesSaI Ily subdlta (Spec Jur. publ I, ~ I, 43-52). 149. Cf e.g Huber, I, 9, c 5, 72, Hert, Comment et Op I, 3, p. 52, 4-5; Wolff, Instlt IOI2 (where a dlstmctlOn IS drawn between actus regll et pnvatt) . 150 MevlU~, for f'xampk (Prodromul, v, 2g), and Hert (Ioc. nt. p 53, T/'l Ruler and his 6) argut' that the Ruler, and therefor{. the:- State It~r1f, acts when the officials mmlJtn summae potestatlS act, proVided that the latter are dcttn~ wlthm the hmlts of their office ~ehmler, on the other hand, argm., altogether m terms ofpnvate law (lIT, c 5, nos 48-64, de obltgatlOnc summae potestatlS exfaclo et non facto officlahum) SIT also Stryck. VltS IV, no IS, de obhgatlOlle PTlncI/JlS ex facto mtnHtn The 151 Huber, I, 9, L 5, ~ 53-72 obllgallOncl, quae pro/iter rempubllcam Imtae lIlherllance sunt, tment omnmo successorem. lLOll ut .haeredem, sed ut calJUt ClVztJClS, Immo ut if obltgallOns Ipsam Ctmtatem where ~uch obligatIOns are (oncerned, there I~ no qu{"st IOn by a Ruler of probabtlts ratIO, verstot and the like, thc only questIOn I~ whether the Im/,ermlS, qUI personam Cl"ltatu COIIStlllilt, has acted v-Itllm 'the IIml1~ of Ius power'. Pufcndorf, J 11 el g VIII, e 10, 8. tilla Cll'ltas oMlt.:ata, butlt~ obligation eXists only when then l ' IJTobabdH ratlll, and do(~ not extend m tnfimtum Schmler, II, c 4, ~ I, ~ 3 thf' que,tlOn IS whtthu the COT/lIH UIlll'CTSltatls IS bound, and thl~ IS the ca~e when ~ contract has been made, nomme /)(Jpult et ad salutem communnn, v-lthm the sphere of the Rull'r'~ office All these three ,ulters, It should be added, seek to apply the u,ual rule~ of Simple ml1l'ntanee m dealmg ""Ith" palnmomal' ~tat<'~, It I' onh when they are deahng WIth regna vvluntarw 01 usufructuana that they dl,tll1~UlSh bctv-cen mhentance of prl\'ate property and ,UCCCSSlOn to the Crown TltlUs (IV, I." 5) opposes tIm pomt of "lev- He argue~ that when a Ruler has duly acted III the name oftht' Relfmbllca. and thus the Rfl/JUbhca'. peT caJJUt Sllum volUlt', IllS ~ucce~sor lneUI, I e'ponsl blli ty III all (<Ise~ ahke [v- hether the monarchy bc patnmollial or non-patnmomalj tor onl' and the selfsame reason-VIL that 'reJfJUblua I'elut /Jenana lmmortalzs ad/lUe durat et nunc etwm adhuc vult'. It h true thaI III non-pdtnmomal monarcllles the< ~uccessor docs not take OV( r Ius legal pmlllOn from the defunctus, but he takes over hiS pOSItIOn, none the lcs~, from the Cll'tlas Ipsa The analogy of the lumted responsibility of a tl'nant succeedmg to a fief does not hold good [m regard to a non-patnmomal monarchy]: the new tenant of the hef succeeds to d homo sIT/gulam, whIle the nl'W holder of the Crown succeeds to the eaput corpoTlS Ltbert et adhuc durant IS , In the one case It IS the factum difunctz whIch j; m questIOn, whIle m the othcr It IS thl' factum personae VlVentlJ. The same rule, therefOIe, applies to elLe Live [or non-patnmomal) monarchlcs as to other forms, and exceptIOns [flOm tillS general rule of th!' suce essor's respomlblll I y] can only be ret ogm,!'d wht'n there has been an act of the predecl'%or contravemng thf' fundamcntallaws-for then It can be said that Tespub/tca non egtl-or when there ha~ heen d case of tnconsulta prodlgalttas or some other ~peClal circum,tance, [Roughly expressed,
* The Hausrecht or dyna~tle rules regulatlllg e g marnage t Vema = z,erSIO In rem = an applicatIOn of money or ~ther proceeds by the
prevIOus ruler to the res to which the new ruler succeeds: so that the new ruler benefits by such apphcatlOn, and may therefore be held to lIl(.ur a correlative obligation Cf n. 89 to 14
Notes to 17
the difference between Tltius and hIs three predece~sors IS that they were ready to all<tw that the hereditary kmg of a patrImomal monarchy mhented all the rights and obhgations of lus predeces~or In title, but held that a non-hereditary king was In a dlffercnt pOSItion, TltlUS, on the contrary, contends that there IS no difference between tIle two, because In eIther case the nghts and obligations arC" really those of the Immortal State, and theIr LontInmty i~ not affected In any way by the hereditary or elective character of the Rukr Perhaps we ~hall under~tand the theory of the predecessors ofTltlUS better If we a~sume that m theIr view a 'patnmomal' monar<hy I~ not sImply an hercdltaly monarchy it IS a monarchy in which, as Loyseau ~ay~, 'the kmg by tltlt' of prt'ScriptJon po~ses.,es or owns sovereIgnty', and therefore (If ~overelgnty be legarded tas the e%ence of the State) owns, or ZJ, the State- (l'Etat c'est mol). On tIns baSIS the king in such a monarchy of cour,t' takes over everythmg ahke from hiS prt'decessor-pubhc rIght., equally with prIvate, and pubhc obb~atJ()m t'quallv With pn"ate-bceause there I., no dl,lmctlOn between public and prIvate, all publIc status havllll; become the po.,~esslon or property of the J..mg When we g<'t to non-patrImomal monarclut'S, we ~hall have to dlstmgUl~h 'prl\ ate' and 'public', hut If we hold the view of patnmoma] mon.HcllIe~ Just deSCrIbed, It wlll only be ".,Jlcn we get to rnonalCl1les other than patnmoma] that we shall begin to make thl~ dlstmc~lOn TltIUs, we may add. IS Ically chaJkngm~ the Idea at the bottom of the 'patnmomal theory', at any rate by ImplIcatIOn] J P von LudeWIg (Op I, I, op 8, PP 519-646, De obl1gatlOne succrssorzs In prmnpat!J.J) put..' the conce ptlon 01 patlmolllal monarclues eample tely aSIde, and thus reJC( ts the u~ual dlstmctlOn., drav. n by other v. nter, T:k U'><" as the thread to gmde lum through the labyrInth, the dictum of Baldus, that the Su(cfS~or I' r('~ponslble If, and to the extent that, then' ha~ bc en actIOn nomine et audontate Rflpublzrae mter tot mortes jJrZTlflpUm sllorum zmmortalzs (c I, 8) He accordmgly deme~ that the ,ucces,or l, bound III anv (d.~e where tIle 'hmll~ of the office and dlgm ty' have b, en 0\ entepp' d bv 1m predeces,or, and he therefore deCIdes the questIOn of the extent of the sun e~sOJ', responMlJlhty, In any parttcu]al case, by the formula Impem lwInch fixes' the bma., of the office and dIgnity']. c 4 But even LudeWIg, In the Issue,talls back mto a pnvate-Iaw pomt of VH'W) I I 5-7 [I e he lets drop the thread of the publIc-law nghts and dutIes of the Immortal Rerpublzca, and goes balk to terms of the pnvate-Iaw nghts ::md L 'HIes of the personal ruler]. 152. J H.Boehmer(P rpec 1,C.3,35,Il,C 3,16)goe,lothelcngthof makmg all responsl blhty [me umbent upon a successor J depend slmply and solely upon heredItary successIOn to the llTlWersltas JUriS, and he aceordmg]y conslders successores titulo nngulan (e g ruIn s by ngh t of electIon or by vIrtue of contract) as not intrm~l(ally obhgcd, because they rule e>: nom plane Jure But he adds that It ll> proper for such rulers to recognise any act of a predecessor winch has been done zntuztu c!fJiCli or has brought ad\antage to the State. 153 See the author's work on AlthUSIU~, pp 305-6. The only dISpute turned on the question, what was necessary to comtltute legltImatlOll lof an ureguhlr ruler] At first, thmkers were gcnelally content to amwer, 'The express or taCIt aS1/t;nt of the people'. Later, we find the advocates of popular sovereIgnty ]llslstIng exdu"lvely on the necessIty of an absolutely free assent of the people (e.g SIdney, Ill, s. 31, and Lock~ II, c. 16,
When the usurper becomes le,f?ltzmate
364
Gierke's Notes
Dzfferent
VieWS 0/
the
usurper';, positIOn
The Ruler relation to State properly

In
175-96, c. 17, J()7-8), whIle thr advocates of the soverel~nty of the Ruler reqUIre, m additIon, an act of renunnatlOn hy the legltlmatt' ruler (e g. Kestner, c. 7, S20-1; H Coccep, De re/.:lmlne llSurpatzoms rege e.;ecto, Frankfort, 175. Schllllt'r, II, c 2, S 2, I, nos 82-fJ8; Nettelbladt, ~ 1267-8, and Ac henwall, II, ~98) Often, however, thr m",re fact of pm~e~slon was allowed to confer a prescnptIvc title to rulll1g' authority From an 0ppo~lte pomt of view [I e. from a pomt of view which docs not seek to safegu31d the nghts of the legitimate ruler J we find Hobbe~ (LeVIathan, c 21), Connnl!: and J H. Bo",hmer (P ;,pec III, c 12, S17) declanng that the people IS qUIt of all r",sponsl!lllIty to th", legitimate ruler a~ soon as he IS no longer ITI a pOSitIOn to protect them; wlule Horn (II, c 9, 4, 21), though reJectmg pre~enptlon a~ a tale to rull, allow~ maJI:'~ty to be extmgUI~hl:'d by the de/acto acqumtlon of majesty by a new ruler The theory of the'jalt accompli then galll~ ground gradually, even among thl:' dlsnplc~ of Natur."l Law 154. The stncter ~chool oftlunkerr contmut'd to mamtam the old theory -that any repre~entatlOn of the Stolte by a u~urpc'r was Impos~lble, that all hl~ acts of government werr VOid, and Ilnpo~ed 110 oblIgatIOn, that refusal of obedlence to him was the nght and duty of every mdlVldual, and even that pnvate pcrsom were free to attack hIm a~ a pubhc cnemy and put lum to dt'ath We find tlus view not only HI AlthmlUs and the other monarchomada, in Suare..: and the rest of thl:' CatholIc wI;'ters on Natural Law, and III Bod III , Arlllsacu~ and theu ~uccessors, but also m Hubl:'r (I, fl, C I, C 5, 51). ScllIIuer (loc Cit), Fenelon (who hnkh, (. VIII. that le ROl de Fait and le ROI de DrOIt must be dlstmgUlshed, "';ld that the theory of obedlt'nce bemg due even to the de facto kmg, a~ Roz de Providence, IS erroneou~), H eOCCeJI (Ioc Cit), Nettelbladt (~1267) and othcr~ 011 the other hand, we find GrotlUs--on the ground that wme SOit of governmt'nt IS necessary-already contendmg that the pcoplt I~ ohhged to obey the actual holder of pohtlcal authonty, m thmg~ necessary, even belore there has been any legitimation by longum temjlw or by jlac/um (I, c 4, q 15), and he therefore lImits the nght 01 resl~tance to any actual ruler (IbId ~ 16-20), Just as hc abo holds (11, ( 14, 14) that contracts made by a ruler dunng an mterregnum IIlvohe the people and the subsequent legitimate ruler, at the very lea~t, 111 rcspomllnlIty de In rem verso [I e for expenditure lIlcurred, a~ \\,e might say, "Ill connection with fhe ("..late', d n I 'jl supra]. Pufendorf has a dlffercnt theory the usurper genullldy reprcscnt~ the State III I~ external relatIOns, and he thm bllld~ It III that re~p('ct by hiS donatJon~ t'tc , but mternal1y Ins acb-Ius laws as well a .. the donations or alIenatIOns he makes--ean be resc mded by the legitimate authonty. J n et g. VIII, e 12, S4 On the theory of the fait accompli, the usurper reprcsent~ the authonty of the State at all pomts, even m regard to hIS ~ubjec~ [I e mternally no lcs~ than externally J, a~ soon as thc expulsiOn of the nghtful owner of polItIcal authonty has been achieved Cf Boehmer, lac CIt., and abo Kant, Works, VII, p 139 155. Horn, refusmg to recogmse any pnsonahty of the State, naturally ascnbes the owner~hlp of all publIc property to the PTlnceps alone; De ClV. II, c. '3, 5-9 156 cr. e~pecIaIly MevIus (ProdromllS, v, 32); Huber (who speaks of pubhc property as bemg In jJatnmonzo CIVitatiS, smee the ClVltas has)UJ personae, n, 4, c- I, ~24sqq.), Pufcndorf (who regards publIc property as owned by the ClVila.! qua taliS, and considers the kmg as haVIng only the fIghts of a
Notes to 17
oJ
tutor therem, so that he has no nght to alwnate 1t apm t from the people, n.etg vn~c5,8,Den.ffhom etclV.H,C 15,S5),TItiw,(m,c 7,2sqq.), Wolff (who cllstmgUi,hcs bona regIs regia et puhllca from bona prIVata .leu proprw, InstIl ~ 1012), Danes (bona publIca sunt ITt dOmlTllO tOtlUS clVltatlS, bona prIVata zn domlmo cwzum, the latter partly belongmg to the Pnnc e and partly to hi' subJect~, SS 68 7 sqq ), Nettelblaclt (~ 1347sqq ); Achenwall (n, 12 3), Scheldemantd (who speaks of 'the property at the whole natIon', assigm 'Jt~ supn-me adnllnistratlOn' 10 thc soverclgn, but assume, a TIght of the whole nation to consent to It~ alwnatIon, pp 32o'qq, 333,qq ) 157 Theon~t, began by dl'lmgulshmg res publIcae fTOm patnmolllum relpuhlzcae. accordmg a~ publw property wa, de~tmcd tor common use by all mdlvlduah (ad wu\ szngulorum) or foro the lmmedlate purpose~ of the State Itself (ad usUJ unIVersorum) cf. Huber, n, 4, c 4, S2sqq , Tltms, lIT, c 7, S5sqq., Dane~, 687, ~d1('ldcmantel, pp 330sqQ In rega~ to the hr~t of these categoJles (res puhhcoe) Ilwre was a difference of OpinIOn "'ere res nullIUS to he' mdudcd without further quc~tlUn m the cat, gory of State>-prope>rty (thl' \\a, the vI<w of Horn, lo( (It S95-9, and '1ITiUs. loc. Cit ~S II ,qq ), or at any rate (II that were not allowed) could they be blOught mto till' category by a uuJaratlOn made by the State, m virtue of It, nght of majesty (the \'Iew of Gundlmg, c 36, 217-20, and of ~c1H>ldullalltd, loc CIt.) '>.01 did reI nulllUJ {orne to be thc PT<JP( rty of the State only m virtue of Ib actually cxeT< Ismg a Tight of occupation, ~ueh as It was mtnn.'II{ ally free to t.xerCl~(, though the Tight might be to ,omf" extent Iimlt( d by other nghts of exdu>IvC 'WpropndtIOn \\hrch had their basl~ III POSitive law (thiS IS the> \ ww of HuU'el, II, 4, ( I, ~S30sqq , (. 2, S 12-25, and of Nettcfbladt, SS 1345-b),J ~tate-pIOperty m the ,tn( t SUhC (I e patnmomum rellJUbllcae) \\as generally dlvlded.mto property bclonglllg to tht. aerarlUm and property bclongmg to thefireus Pufendorf, loc ut., Gundllllg, c 36, S211-2, WaHl, SS 1038-9), but Gundlmg lemail\.~ that there I~ fundamcntally no d,fTercnce bctween the t\\O [Some remark" may be added III eluCidatIOn. (I) The conceptIOn of res nulllUJ l~ fully dlscu~sed by Pound, IntroductIOn to the Philosophy rif Lal1.', pp 197sqq. (2) On occupatiOn as a baSIS of ~tate-pIOpclty, and on the po~slble lumtatIOn of the ~tatt'\ nght of occupatIOn by PO~ltlve-ldw r~hb, ct Momm~en. HIstory <!fRome (Eng. tr'1ns ), III, p. 96, where (Ill conuectIOn with the legl~ldtIOn of the Graedn) the problem l~ dISem~cd how far the i:>tate's nght to Ih occupied domJ.lns', mId be modified by pnvatf" nghb, baM'd on posltlve-law tJtlc~ of long pre,cnptlOn 01 lnent acqUl~ltlOn (3) Fmally, as regard~ the dlstmctron between aeraTlum and fiscUJ, we may note that thl~ really belongs to the sy5tem of dyarchy Illstltutcd by Augustu~, under whICh the senate and the pnmeps seemed to rule wnJollltly, and willIe the former had the aeraTllA.m, the latter had the fiscUJ a~ a ~eparate treamry-both, be It noted, bemg pubhc and offinal treasunes J 158. Huber dlstmgUi~hes four spCCle5 of property 1Il a monarchy-res prIVatae jmnClpzs, res domlmeae, res fiscaler and res aerartl- but he admIts that the ~econd and the tlurd arc often difficult to dlstillguish (n, 4, ( 4, SS3,)-:i o ) Gundlmg (1oc Cit. S213-16) and Wolff (9104) both rank demcsne as a third !!penes of pubhc propt'rty, by the slde of that of the aeranum and that of thejzscus, and th~y hold that the punce possuses a hmlted nght of ownerShlp m the dememe, bemg unable to aIrenate It freely on account of It~ connection With tern tonal ~overelgnty.
ClassificatIOn of State proper!J)
The Ruler's demesne
Gierke's Notes
159. ThIs IS the vIew of Danes, 6g1-4 He SImply dlstmguishes bona fiscI and bona arram, mcludwg wIder the former what is intended immedIately for the personal support of the terrItOrIal pnnce [this, of course, dIffers from the old Roman use of the term], and under the latter all that is dm.ctly desIgned for the mamtenance of the State Itself, and, on this basIS, he allows the pnnce admlnlstratlO only 01 the latter, but gIVes him both admlnlstratio and JUS utendi of the former'" A SImIlar hne is taken by Achenwall (II, 124), and mure espeCially by Nettelbladt ( 1347--9), who dlstmgUlshes from the demesne [",Ill(h IS the propelty of the Statel not only the patrimonium jmnClpls, but al~o the borwjamltrat !!Jus qUljmncpps est (Haus- and Stammguter). 160. Cf Wolff, Instlt II25, Nettelbladt, II44-5J. Only as regards Ownership of the State's patnmomal States was the comeptwn of 'property', amountmg to a full nght of ownelshlp, e,,-tended to mclude the whole country. but many thmkers terT/tory rejected the whole Idea as untenable lor that very rea~on LI.c. tlJry rejected the whole Idea of the patnmomal ::"atl', because It Involved as a comequence the KIng's OWneThhip of hIS terntory as hIS own property]. Cf p I44. ~upra. 161. Horn (II, c 4) IS the strongest advocate of the view that dommzum DommlUm emlne1lS IS not only Imperium, but a uerum dominium, a real legal property which emmens In Horn and the ~tate has reserved for Itself m dl5tllbutmg pnvate propcrty, and wluch other wT/lers blgnlhcs the whole body of the 11Il1lts to v.hlch P'"Ivate property 15 subject. But see al...o Huber (I, 3, C. 6, 30-.<j3), Pufcndorf (E/em 1, def 5, 5), J. H Boehmer (1, c 4, S25-7), Stryck (DIsj XIV, no. 7) and Wolll (Instlt 1065). f 162 TltlUS, for example, dlstmgulShes <,harply between dominium publzOther Views In ref!,ard cum, wmch only dIffers from dominium prIVatum 111 that the' SubJect' or owner to tIllS Ib dIfferent, and dominium emlnens, WlllCh IS really pars ~mperlt, and only nOIlllllquestIOn ally 'propt'rty' or dominium (111, c 5, 5I, C 7, 2). Gundhng arg;uc~ that the basIS of expropnatlon I~ not domlTlzum ermnens, whIch only belongs to the prInce In a CIVItas heT1l~s [I e. m a patnmomal State], but Impenum emzncnl (c 36, SS226-g) Danes also rejects the conceptIOn of dominium emmen.r as a baslb for the nghts of taxatIOn and of cxpropnatlon 01 bona prIVata (695-70I) Cf a~o Achenwall, who wntc~ of aJus emIT/ens whKh takes the two "forms of dominIUm emlTlens over dungs and potestas emIT/em over per<,on,> (u, i45-7), and ~cheldemantel, who holds that the nghts of 'maJesty' 1Il regard to pnvate possesslOTIS are not denved from any property ve~tcd 1Il It, but from Its supenor authonty, though many v.nters call thIS' a superIOr property' or emment domam (pp 360-4)
Demesne znduded In State property
The translator, 1Il thiS claust', has Inverted the 'tatouent In Glerke\ tcxt, willch apparently makcb Dane~ abslgn to the prmCe only admmZJtratzo of bona [!.SCI, but both admlmstratzo andJus utendi of bona aerarn
Notes to 18
18~ THE NATURAL-LAW THEORY OF CORPORA TIONS
1. Cf e.g Cellanu~, Pol cc 2-8, Johannes a Felde, Elem I, c I, Boeder, The pOHtlon cc. 2-6, Cla~en, I, rc 2-6, Mullerus, Instlt I, CC. 2-7, Horn, De CIV I, of the rc. 1-4, AlbertI, tC. 10- 1 4 See also Puf<.'ndorf (J n. et g VI-VII and De off FamIly hom et CIV II, cc 2-5), who, however, refuses to admIt the FamIly as a separatc and llldependent stage In the development of assoClatIOn~ (whIch would set It on the sam(" level a~ th(" three jJersonae moraler composltae constItuted by the dome~tlc gloup~ of hmhand and wife, parent and child, and mastrr and servant), and acc.ordmglv designates' the most perfect sOLiety' of the Stale as soctas quarta Thoma>Ius takes the S4me Ime [I e he recogm~es only the thr<.'(" dome~tlc group, and the ~tate a~ sOCIeties] In Instlt Jur dw m, CL. 1-7 (cf aho c. I, 13-14, where he argues that the Farmly, regarded as a union of the three soczetates SImplIces, ha, no ,peClfic purpose of Its own), and so does SchmH"r (1, c 2, ~s 1-4) Cf 41so PrasehlUs, 996-1 I, Plac<:lu" Bk r. RadJelJus. I, tltt 15-:F Even Wolff, although he begms With a detaIled theory' of authorrty and ~o(Jety (Herrscluift und Gesc"schaft) in g(>nn41' (Instlt 8:::l3-S2), JS Irke othet tlJJnker, Ll e. III OIlJIttlIlg fdlow"hlp~ and local commumtJesj, he only adIllJts a~ natural-law groups (a) the 'O( leIIt's constituted under the famIly-~y,tem (though he allows four ofth('~e--the';mantal',the 'parental', the 'maglStenal' and the }'amJl~-854---97I),and (b) the State (~97..!sqq). Achen""all takes exactlv the same Ime (Proleg. ~9' ~qq and Pall II, S~ I sqq , where he treats of SOlletas In genae, of the four socIetates domestlCae, and of the Slate) _ :! ThomaslUs (loc ot ( I, SS 15-3..1) cxphotly Just1fic~ a direct transitIOn TllOmaS1.Uf from the Family to the State, Without any cOillideratlOn of mtervemng on local glOup~. on the glOund, (I) that a local commumty has no speCllic purp()~e, commumtles and (2) that a State nught po~"bly be (")mpo~ed only of a smgle lernlonal as only communlty, whiLh proves that VIC! et j,roVillclae non tam a cWltate dlJferunt Jtau 'parts' ac fimbus, quam ut partes a suo toto, S30 I e loc.al commUnitIes differ from a State, not as bemg a dIfferent speCIe, WIth their own "peClfic purpo,c, but only m the way m whlc.h parb dJffe:- f~ .. m the whole whIch they Jomtly con~tllute--that IS to ~a). II1 the way of quantIty ThomaslUs Imphcltly assumes that a 'part' IS the same, 111 kmd and purpose, as the 'whole' to whIch It belongs] Sc.hmler takes the same line, I, c. 2, S 4, no 127. 3 Thomaslu~, Instlt JUT dw I, C I, g8 4. Cf Schmler, v, C I, who spl.'aks of subdltl conJunctlm aut co/legzahter spectatl. See aho Pufendorf, J. n et g VII, e 2, S 21-2, Hertlus, Elem n, 2, 4r ,J H Boehmer, P sjJec II, CC. 4-5, Schcldemantel, lll, pp 24:4~qq 5 See [as examples of a theory WhICh admits a vanety of SOClctles, over Theorzes and above the FamIly and the St4te] Mevlus, who enumerates In hIS Irst favourable SOClCtas domestlCa, WIth ItS three speCIes, the corpus, pagl, urbes, terrae seu regna, to rnterfoedeTa ~Prodromus, V, 19), Mlcraehus, whoreckom roaetas domestlca (I, Cc. 2-6), vemng groujJS the VICUS andpagus (c. 7, S 1-2-1-), the tnbus, collegIum, corpus et unzveTSltas (IbId 25-3 2 ), opplda, reglOnes and CIVitas (c. 8), Kmchen, who mdudt's the four domestIC SOCIetIes', collegza, ternlorza, 4nd the CIVItas (I, CC. 4-6), and Bt.cmann, who makes two \,hvlslons-the one mdudmg the Faffill~, corpora,
I,
Gierke's Notes
Lelbniz on groups collegia, systemata and the res/Jublzca, the other embracing ViCI, pagl and urbes, whIch, however, are only parIes zntegrantes relpublzcae (Med. cc ;-1 I). 6 Lelbmz, Deutsche Schnften, I, pp 414-20 Lelbmz ~tarts, It IS true, by enuml'ratmg only SIX sorts of 'natural ~oclt'ty'-thl' four .,ocletleS of tht' famIiy-~ystem (those of husband and Wife, parent and child, and master and servant, WIth the addition of the homehold composed of these three and mtended to prOVide for temporal ne(-d~), the CIVIC commumty (the town or rural area, mtellded to promote temporal well-bemg), and thl' Church of Gou (for the purpose of etl'rnal febClty) But when he lames to the' (lasslficallOn of SOUl'tles', he dl~tlllgUl~hLS equal and unl'qual, bmlted and unlmutt'd, and sunpk dnd compound, and he add~ that 'bmlted' ~OClelIC" reqUire f"deratlOn, as they Cdnnot all uttam th('u purpme of promotmg wellbemg by thl'mselves The final result IS thus a sy~tem of many SOCIetIes, mdudmg households, SOCIal groups (gUlld~ or ea"tes), villag('~, 1J-l0nast('ne~, orden, towm, rural arl'dS, and fmalty tht' whole human sprcH'~, whICh I~ 'also a eommumt" ' when rr~arded as the Church 01 (~od 7. S. Coec('JI, for example, ll1 his Novum rystema, after glvmg an account of the Family (Ill, L. 4) and the State (c ')), expressly dnlale" thaI 'tbe hkt" (par ratzo) IS true of all corpora el WllVeTJltates :.wS) , and lat( r on, when he I~ dealmg With the (onceptlOn 01 the corpus art!fzetalt', he treats the ~late a., only a . compI( uou~ example' of that typ" dlong Wlt~ the eulirglUm, the juJulum and the fannlza (IV, 9S2B~1). WoW, t!t-mceClu'>, Achcnwall and other v,ntef> also lrt>at corporatIOns as the produC't., oj a hke prott~s to that which has brought tht> ~tate 111to eXIst,nce. 8 Set' the ~ectlOn onjunsprudentza r:aturahs generaliS socwlzs m Nl"ttclbladt'" 5yslema naturale (9~326-414), and the sectIOn onjunlprudentza posl/wa generaliS soczalzs millS SyltemajurzsJiT pos. (~84b-912). lJ. Cf e g Danl"s, Instzl. jUrllpr Will', Pars spec , ~eel 3-'j, Hell1~ke, Prol. t I, 4-6, HotI bauer, Naturrecht. pp 186~qq 10. Cf PerezlUs, JUI publ pp 318-19, .M. :-'ChOOkIUS, De sedztzoTllbw, Gronll1gen, 1Gb4, llJ, l B, pp B35~qq, Felwmger, DISS de coli et sodal. pp 308 ..qq., S~ 18sqq , ~ld"tnho, De magzslralzbus, Vewce, Ibb7, lIl, t. 4, S+P, Betmann, Mid t 10, SB, Kmthcn, OjJUI jJo! I. l 5, th 4 1~ Cf. Horn. De CI.' Il, C. 2, q14 maJestas only t.In a."emblc people together In comIlia, canCIlla et coTwentus, quz stTle su!JeTWrlS prae~cltu aut jUJ IU multltudznem congregare fu.ent aUSlLf, JUS majestatzs praeClpuum nefane wvwlat Sec also SehooklUs, loc ("]t pp. 832~qq ,837, 839, Fdwll1~cr, loc Cit 51-3, Ma~tnho, loc. Cit 444-6. 12, Cf SchooklUs, loe CIt pp 83'i~qq (there can be no electIOns and no ~sembly of any kmd WIthout g-eJVernmcntal mpervlslOn and co-operatlon) , Felwmger, 44-7, Mastnbo, III, t 3, S47sqq and c. 4, S444-6 (the Pnnceps mu"t confirm vendltzones, lmpo.lltwnes, allenatlOnes, expenslOnes, electzones qfJlczalzum et alta acta unwersztalum the utmost that IS pO~~lble WIthout the assent of the pnnee IS the raISing of a kvy ll1 an emergency, wht'n there IS danger III delay), Kmchen, Y, c 5, tho 8-g, Becmann, C. 10, 8; Andler, Jumpr. pp 102sqq (all statuta of (orporatlOns reqUlrf' confirmatIOn) Myler ab Ehrenbaeh contends (c 5, PP Ig8sqq) that terutonal towns [I e. towns 111 one of the terntonal pnne Jpdhues 01 Germany] and aU other terntonal corporatlOru. can never appOint luaglstrates l'ropno Jure, but must always appomt them auctontate prlncipis terntonallS such maglstratl"s, therefore, are ~ubJett to confumatIOn and supervISIOn by the prmte, and denve
The State and other groups regarded aI alzke
(s
TheMus of , COnCe!~lOn'
State control oj meetmgs State control of group-life
Notes to 18
all their jUrIsdIction from the ocean' of hL~ plenitude of power Within Ius terrItory, t~ terntorial prince retams a co-ordmate JUrL~dlctlOn, his delegatus has precedence, and his personal appearance causes the lapse of all corporate authonty. Von Seckendorf, too, has nothmg to say about local commuOItles or corporations as exerclsmg nghts of their own m a pi mClpahty he only mentIOns them as the objects of the prince's care and !>upervllllOn (II, c. 8, g, c 14, lll, c. 2, 5, and c 3 to c 6, ~7). 13. Schookms, p. 838, Felwmger, 54sQQ , Knichen, I, c 5, th 15 (a corporation may be aboh;hed not only for dehct or misuse of Its powers, but also utllltatls publIcae causa), von Seckendorf, add 42 to II, C 8, g (where hE' argue!> for freedom of trade and the abolItIOn of gUIld;) 14. Spm07a would abohsh all collegIa or gUilds in an anstocracy, when an anstocrati~ State- I~ composf'd of a smgle CIty (TT(ut. pol c 8, 5), but 111 an anstocratlc State (omposed of a number of (,llles he would allow the !>everal cIties comlderable mdependcnce, e";ell though they ought to constitute unum Impenum and not a mere confederatIOn (c. 9). In a monarchy he suggf'sts mecharucal SUbdIVISIOns, which he calls famIliae, as the baSIS of the royal counCIl (cCo 6-7). Hume, m sketchmg the constItutIOn of an Ideal ~tate (m whICh he refuse~ to follow the fantaSies of Plato and More, but allows some ment to Harnngt()n'~ Oceana), dIvIdes thecountry mto 100 countIes, and each county lllto 100 panshes. Each pansh chooses one repIesentative, and the 100 representatIves of each county choose IO county-magIstrates and a senator The 100 senators of the whole country cxerci~e executIve power the county representatIve!>, meetIng In their partIcular countH:s, . po;sess the whole legJl,. latlve power of the commonwealth-the greatt'r number of countIes dt'cldl11g the qU.,tlOns, and where they are equal, let the senate have the castl11g vote'''' In thIS way the advantages of a large and tho!>e of a small commonwealth may be combmed (Essays, Part 1I, E!>say XVI, Idea r.if a Perfect Commonwealth). 15 In the artlcle FondatlOn, in voL VII, p 75, 6 of the Eruycloptdze, Turgot vmdicates for tht' State the nght of rcformmg or completely supprcssmg all foundatIons The publIc good IS the supreme law, and the .tate must not be deterred from pursum, It eIther by a superstItiOUS regard for the mtentIOns of the founder or by fcar of the pretended nght; of cerlaw bodies. m par la CTamte de Messer lc. drlJ', pretendus de certams corp5, comme SIlu corps !Iartlculzers aVOlent quelques drozts ViS-a-VIS l'itat, les cltoyellS ont des drOlts, et des drozts sacres pour le corps mime de la socleti, lis eXistent mdipendamment d'elle, lis en sont les elimrns nicessalres et zls n'y entrent que pour se mettre avec tous leurs drOlts sous la protection de us mhrzej lOIS, a!l.\quelles lis sacrrfient leur ltberU, mats les corps partlullers n'extstent pomt par eux-mimes, TIl POUT eux, lis ont itf formls pour la socletl et Ils dOlVent cesser d'etre au moment qu'lis aSJent d'etrc utlles. 16. Contr. Soc. II, c. 3 Quand Il se jalt des bngues, des assocwtlOns partwlles aux dipens de 10 grande, la volonti de chacune de CPS aSSOCiations devlent generate par rapport d ses membres et partlculzere par rapport d tEtat; on peut dIre alors qu'll n'y a plus autont de 1I0tans que d'hommes, mals seulement autant que d'assoczatzons us dif/beffces deVlennent molllS nombreuses et donnent UII reJultat mol1lS geniral If ... The translalOr has CIted Humc'~ own words IDstcad of GIerke's paraphrase,
whIch IS nol quite accurate
BTS 11 24
AttItude of Spmo::a and Hume to groups
Turgot on 'particular bodieS'
Rousseau's dlslzke of asSOCiatIOns
37
Gierke's Notes
Churches and church property
VieWS on the ownership of churchproperty mlhe Assembly
one of these aSSociatIOns gains preponderance, thele is no volontl generale at all. 17 Ibid: Illmporte done, pour al'Olr bien l'h1onee de La volonti geJerale, qu'd ny att pas de socziti partzelle dans tEtat. If there are such sOCieties, they must be made as numerous and as equal a~ possible' ef IV, C. I. 18 The most Important of the OpinIOns expressed In the Assembly, with regard to the theoretIcal legal basIS of secularlSatlOn, art" collected in Hubler's work on Der Eigentumer des Kmhenguts (LeIpzIg 1868) and In P. ]anet\ article on La proprzeti pendant la RevolutIOn Franfazse (Revue des deux Mondes, XXIIl (1877), pp. 334-49). [See E de Prcsst"nse, L'Eghse et ta Revolutwn Franyazse, 18go.J Thest" opmions, as a rule, start from a general view of the relation of all corporatIOns to the State, since there was almost UnIversal agreement about the nature of church-property as corporatIonproperty [Burke has a stnkmg pas~agr In the Reflections (Works, Bohn's edttIon, II, 378) on the revolutIonary view of church-property 'as corporatIon-property. 'They say', he wnte~, 'that ecdesIastlcs are fIctitIous persons, creatures of the State, whom at pleasure tht"y may destroy, and of course lImit and modify In every parhcular: that the goods they po~~ess are not properly theirs, but belong to the Statr which created the fictIOn.' He does not seek to refute thIS conceptIon of the personaji~ta, he SImply dismIsses It as a 'mISerable destruction of persons' , and he contents hlrmeli with arguInR that church-property IS 'Identified with the mass of prIvate property, and that Its owners have the same title of accumulated prescrIptIon as other ownt.rs'. MackIntosh, in hiS reply to Burke (Vznd Gall. sect. I, ad finem), makes a dIstinctIon between the Churcll and other <-orporatIon~ Other corporations are' voluntary asSOCiatIOns of men for theIr own henefit', and their property IS part of the m~~ of prIvate plOperty, ~o that' corporate property IS here as sacred as indiVidual'. But the Church I> a peculIar <-orporahon'the pnesthood is a corporation endowed by the lOuntry, and destmed for the benefit of other men', so that It may properly be limlled or modified If lis possesslOllS and powers are not used I'm that benefi.t 1 19. The Abbe Maury, for cxample, argued, on Odober '3, '789, that <-hurch-property was the property of the cIencal corporatIOn, and the propert:, of a corps was as truly property as that of Indwzdus. It was sophistry to dlStmgwsh between the legal basIS of the one sort of property and that of the other. In both cases the nght of property was not pnor to the law, but was created by the law, and ditruzre UTI corps est un homICide, because It IS to take away ItS VIe morale The Abbe de MontesqUleu argued to the same effect on October 31. We also find Isolated attempts to defend the theory of the propertY-rJght~of InstItutIOns II e to argue that even foundatiOns or Stiftungen, as dlStlIlct from the corps or corporatIOn, may acqUIre property ngh~l: thiS was the hne taken by Montlosler on October 13 Another speaker, the Abbe GregOIre, m a SPCCl h of October 23. ascrIbes church-property to founders and their faml!zc8, or to parlShe~ and proVlllCes. [The debate about the question, 'Who owns church-property', l~ as old as the mvestlture-contest m the time of Gregory VII-when one ~Ide, representing the lay tradition of the Ezgentumrkzrche (01 'propnetary churdl '), answered, 'The laity (kmgs and magnates) who bUilt the church and own the latid on which it stands', and the other, representIng the Ideas of-canon law, rephed, 'The samt to whom the church IS dedicated, and, by extensIOn, the institution wroeh repIl~ents the samt'. 1 he old lSme may be saId to be repeated 111 the
Notes to 18
37 1
French Revolution, with the nation adoptin~ the lay traditIOn of the Elgentumsklrche, and challenging the canonical Idea of church-property as Anstaltsgut.] 20. This is the vIew whIch underlies the speechcs of the radical orators Mtrabeau who argued that church-property was sImply the property of the State. on churchMIrabeau in particular, m his speeches of October 31 and November2, arrIves property at the conclUSIOn that the real ownershIp is vested m the natIOn, although --or rather, because--ehur(.h-property IS ownrd by corporate bodns. For corporatIOns do not eXISt, as mdlviduals do, before the creatIOn of CIVIl sOCiety, and they are not, as mdlvlduals are, lUmens de l'ordre soctal. they owe their eXistence entIrely to the State, and they are only ItS shadows (aggregattons qUI ne sont que son ombre). It h the'"State whIch, at Its discretIOn, grants or denIes them the capacity of oWnIng property, and It can also abohsh them and takl' ~eir property for Itself. But If th(" possessIOns of a corporation are thus 'only uncertam, momentary and conditIOnal', and even ItS m("re contmuance IS altogether precanou~, we must supposer pour ces biens un maitre plus del, plus durable et plus absolu. We hnd ~uch a 'master' m the nation celul seul, qUt dOlt ,omr des btens du corps lorsque ce corps est detrUlt, est cellse en Ire Ie maitre ab\olu et Incommutable, meme dans le temps que le corps et15le. Barnave, Malouct, Dupont and Le Chapeher argued m the same seme Garat, \peakmg on October 21" added an h"tollcal corroboratIOn of dus View, Trcllhard and Chasset \'.-ere even more radical, denymg altogether the ("xlstence of Lorporate bodies 21. It was III t~ St'flSe that ThCllret sought, on October 23 and 30, to The develop the Ideas of Turgot Les mdwtdus el les corp, dzffth'ent par leurs drotts, . argument les zndwuius eXlSl8nt avant la lOt, tls ont des drolls qu'!ls t!ennent de la nature, des of Thouret dro!ts tmprescnpttbles. tel est le droIt de proprzett! tout corps, au conlram, n'ex!ste que par la IUl, et leurs drotts dependent de la 101 The State can thus modlfv or abolISh corporatIOns at will It can wIthdra\'.- thelr capacity for holdmg property, Just as It gave It. La destruL:tzon d'un corJiS n'est pas un hom!clde mdeed, Its destrucllon 1; a duty, what SOCIety needs IS real ownel>, and we cannot conSider as real owners these proprutam Ifactlces qUI, toujours mmeurs, m JlOut/ent toucher qu'd l'usuftuzt us corps n'exlStent pus par eux, malS par la lO/; et la lOI dOlt mesurer l'etendue dans laquelle elle leur dOT/f'lera la wmmUlZlcatlOn def dro!ts Jes tndlVldus. " taus les corps ne sont que des Instruments jabnquis par la lOI pour jazre le plus grand bien possIble, que falt l'ouvner, :' ,que son Instrument 1le lUi convtmt plus ~ Ille brlSe ou le modifie. Dupont argued m a SimIlar seflSe on October 24, and PetlOn on October 31' Talleyrand had already done so, on the propo~al for seculan~atlOn, on October 10. The terms of the decree of November 2 corresponded to thl~ lme of argument: It did not dIrectly a5.>Ign church-property to the State It declared, Tous les buns eccUswsflques sont Ii la dispOSitIOn de la NatIOn [whIch could then usc them to endow tho~e 'real owners' (the IlldIvIdual peasant or bourgeoIS) who, on Thouret's argument, are what ;OClely needs'J. 22. In his pamphlet on the TIers Etat, SlCyes argues that all corporations Sleyls on destroy the UnIty of the nauon, WhICh IIlclude~ only llldlviduais. and only CorporatIons what equal and common m allmdlvlduals. If pubhc offiCIals let themselves be compelled to form corps, they must lose clt-ctoral rIghts durmg the term of theIr office"whtle as for ordmary Clt1zell~, It IS a reqUirement of SOCIal order that they should not UnIte 1ll corporatIOns. It IS the very acme of perversity If the legISlator ;hould himself create l.orporatlOflS, or should 24-2
Js
37 2
Gierke's Notes
acknowledge and confirm them when they create themselves, or should declare the most pTlvl1eged and greatest of corporatIons, th~ Estates, to be parts of the NatIonal Assembly. cf. PoZztlcal Wntzngs, I, pp. 167-72. [Cf. also Mackmtosh, Vmd. Gall. sect I:' Laws cannot Inspll'e unmDl:ed patriotIsm. But ought they for that reason to foment that corporatzon spmt which is its most fatal enemy?'] H,s defence 23. In hIS Observations sommalTCS sur les bl8rls eccUsiastlques (1789), Sieyes gIV("S VIgorous expresSIon to the idea that, whIle the eXIStence of every corps Q/ corporate moral (clergy, town, hospItal, colkge, and the like) depends on the natIonal property will, and while the abohtion of a corporatIOn must carry WIth It the confiscation of its property, It IS none the less true that a moral body, so long as It remaIns such, has nght~ of property {Vhlch are no less sacred, and no les~ InVIOlable, than those of IndiVIduals, or Indeed of the natIon Itself-for the nation, after all, IS only a moral body. The State, therefore, mi'V kill corporations, and It may belome theIr h&lr by doing so, but It cannot legally declare that their property belongs to Itself [dunng such tune as they rcmam corporations], Pol Wntmgs, I, PP 461-84 In hiS pamphkt on TIthes (1789), and m his PlOposal for a provlSlonal decree relative to the clergy (1790), Sieye!> argues in the same way; Ibid. I, pp 485-98, II, pp 29-70. 24. Pol Wntzngs, I, pp. 292Sqq (esp. p. 295), 380sqq , 509sqq ,561 sqq. HIS attitude 25. Thus he says (m hiS pamphlet On the means, etc., I, p 208) that the to local divIlllon fito dipartements IS not hke that mto ("States, fratlrmtics and gUIlds' commUnltus It IS as different as day IS from mght But he defends hllllSelf from the accusation of wishmg to turn France If to a federatIOn (preface to part I, p. xu), and from that of haVIng dwolved It lUto an aggregate of petty republIcs (II, pp. 225sqq., 235sqq.). He always InsiSts that the dipartements and communes contmue to remam parts of one whole, even though they arc recognISed as separate wholes for affairs withm theIr own sphere (I, pp. 382-5, 561 ) 26. He mentIons only the Church as a corporative element, and he depicts It m terms of unreheved 'terntonahsm', Natur und WeJen, 99197, 213-220. [On 'terntoriahsm', cf n. '" to p. 89.] 27. Cf. I, P 253. 'We should above all thmg!> dIrect our attentIOn', Schtldemantel on assoCIatIOns Scheidemantel wntes, 'to the societies m our terlltonal prmcipalItle~, for any group m tht" State, which has been formed by specIfic agreement, or by mere chance, for the pursuit of a defimte object, has an influence on the government, even If it be only m an mdirect way. A prudent constItution WIll allow no secf(,t assembhes, and It Will recognISe no SOCIeties as legal save those WhICh have receIved the express or taut assent of maJesty.' If thiS IS not done, there Will be partIes and cabals. Every group should be dIssolved and purushed. LIberty m England IS the mother of ffilSchief, and the Roman laws were wISe. No subject can or should institute SOCIeties of his own motion (m, pp. 29ISqq.) Cf. also 1, pp 295sqq., Ill, pp. 244,246. [Even 1Il England we find Paley, who was not tlhberal, followmg a lme of argwnent [The VIews whIch is not dissImilar (Moral and Political Philosophy, VI, c. III ad fmem). All Ignorance of UlllOn, and want of commumcauon, appear amongst the of Paley] pnnclpal preservatives of CIVil authonty, It behoves every State to keep Its subjects In this want and ignorance, not only by VIgilance in guetrdmg against actual confederations and combmalIoJlS, but b"y a timely care to prevent great coIlectlOJIS of men ... from bemg assembled in the same VICllllty... ~Leagues thus formed and strengthened may ovelawe or overset
Notes to 18
373
the power of any State.' But Paley, writing In 1785, was probably think10g of the Gor~n nots of 1780 and of 'combinations' of workers, and he would have been the last to deprecate the existence of the Tory or, for that matter, of the Whig party.] 28 Cf I, p. 255: even permitted societies should be kept under careful supervISIon; they must be made to produce their rules and regulatIOns from time to tune, to render accounts, and to submit to VISitation ThiS should particularly be the case With professedly religious societies; but It should also hold good of 'free societies', such as th!" East IndIa Companies, which are never free In any but a relattv!" sense, and must always be subject to a presumptlOn against their bemg left md!"pendent. Cf Ill, pp 245-6 29 A capacity for nghts and dUtlt"S is only allowed to a corporatIOn as a means to the pubhc benefit, and It IS a conditIOn of the exercise of that capanty t~at a corporation should act in that sense (III, pp 29 2 -4) :JO. Ct. Ill, pp 293-4, where Schqdemantel requll e5 confirmatIOn of the by-laws of SOCieties, regulation of the subscnptions of their members, the due render10g of accounts, and confirmation of their appomtments of officers of their ownj cf .i1~o II, pp 204sqq, on the necessary limitations and the proper pohce supervl510n of guilds, and III, p. 248, on the constitutIOn, structure and government of local commurutle~ (which are Instituted 'by command of the Soverelin', and mmt exernse their nghts oflegal coeruon 1ll hiS name) Scheldemantel totally rejects any Idea of autonomy [a~ belongmg to societies] law IS the declared Will of majesty the rules of a pnvIleged society are merely a matter of contract betJcen Its members, and they only acqUire Civil oblIgatIOn' ",hen majesty anns them With obligatIOn' (I, pp 164--6). Customary law, he thmks, 15 often really a matter of Wilful disobedience It generally an~es through' culpable heedlessness or mahce' , m any case It has no validity If It contravenes reason, or the purpose of the State, or law (I, p 225). 31. 'No good prmce, however, WIll take It for himself except 10 case of necessity' (III, p 293). 32 Thus Scheldemantel mcludes together, under the head of public societies, not only' collegcs ' [ofmagl5trates] which have bcen instituted i:>r the purpose of exerclsmg powers of go\'ornment, but also churche~, acadcmlcs, privtleged trad10g compames and local r(llnmumtIe~ which the government has recogrused as public, and m tl".. Sa.He way he lumps together, under thc head of pflvate societies, the pnvlleged as well as the unpriVileged, and the SImple (I.e. the relations of husband and wife, parent and child, and master and servant) as well as the compound (households, fratermtles, gUilds), III, pp. 244-50 Elsewhere he treats school~ and umversibes (n, pp. 183sqQ ), acaderrues and lealllcd societies (Ibid. pp 194sqq.), and gUIlds (Ibid. pp. 204sQQ ), purely from the pomt of view of thclr bemg poh~e' institUtIOIL~ of the State [1 e. InStItutIOns which enable the State to supervise the behaVIOur of Its members]. He even makes' domestic souehes' subject to the general rights of majesty under whICh all societies have to hve and move, Ill, pp. 249, 294-7. . 8l1. In his Staatslehle (Works, IV, p. 403) Flcht!" remarks that the low view of the State Whld! IS commonly held may be seen, mter aha, 'm the zeal for hberty, I.e. 10 lawlessness of acquISItIOn, 10 the contentlOn that churches, schools, trade-gUIlds and fratermtles-mdeed, dlmo~t everythm&-that cannot
He lTIsists on State control
Scheidemantel treats
asSOCiatIOns as State inStitutIOns
Flchle's
SImilar
vtew
374
Gierke's Notes
Kant on joundattonJ
Kant's
dlJlzke
of
voluntary assaaattons
be expressly referred to civil legislation-are not State-institutions, but institutions proceeding from private persons', with which the ~tate is only concerned in connection with its duty of protection. Fichte IS especially concernC'd to make the guild a definite State-institution (with a fixed membership detennined by the Government, and WIth tests of skill imposed by it, etc.), cf hIS Naturrecht, n, P 58 (Works, IU, p. 233), and his &chtslehre, n, P 555. 34 Thus we find Kant-f'Speciallyin the appendix to the second editIon of hiS Rechtslehre, I, no. 8 (Works, VII, pp 120-3),' on the nghts of the State m the way of inspecting pt'rpetual foundations on behalf of ItS subjects '-placmg a definition of the Stiflung m the forefront of Ius argument. It is 'a voluntary beneficent institution, confinned by the State, wInch has been erected for the benefit of certam of Its members who succeed to one another's nghts until the tIme of ItS final extinctIOn'. But [though he thus admits their contmuous hfe,] he proceeds to explaiIl, that these 'corporatlOns'~inspite of rights of succesSIOn, and m spite of the constitutIOn which they enjoy as corpora mystlca, may be abolIShed at any time Without any vlOlatlOn of nght. When he comes to details, he applIe-s thiS theory to benevolent l[U,htutlOns for the poor, invalids and the SIck, to the Church as a 'sptrItual State'; to schools. to the nobIlity as a 'temporary guild-fellowship authOrised by the State'; to orders, and to foundatIOns based on prFogemture [I e. to what ",e should call entaih or family settlemen~J. In another passage of the Rechtslehre (u, note B, loc. Cit p. 142) he starts from the Idea that' there cannot be any corporatIOn in the State, 01 Estate, or order, which can transmit land as ov."Iler, accordmg to certam rules, for the exclUSive use of succeeding generatIons, ad l1lfillltum'. He proceeds to give as examples the 'order ofkmghts' and the 'order of clergy, called the Church', but he also adds, as another and parallel example, 'plOm {oundatIons'. 85 Loc. cit. pp. 120-3, 142-3 86. It IS the secularlSation of 'commandcries' [the relIcs of the old Teutomc Order in East PruSSia? J, and of eccleSIastIcal endowments, which Kant more partIcularly justifies-and mdeed not only Justifies, but demands. Thouyh he supports hIS demand by an appeal to the change m 'pubhc opimon' which has been produced by popular enlIghtenment', It IS slgmficant that he dunks it a sufficient warrant for seculansatIOn If the support previously given to endowments by 'popular opmion' ha~ been Withdrawn 'merely by the leaders who are entitled to speak on Its behalf' (Ioc Cit. pp. 121-2, 142-3) But Kant deSires equally to ehminate the system of Estates, and more espeCially the heredItary Estate of the nobihty, lac. cit. p. 123. He even denounces any separate mstitutlOn or pIOUS foundatIon for chanty or poorrehef, argumg that the only proper system IS one of State-provlSlon, by means of regular contnbutions made by each generation for itself, in the [ann of legal and compulsory payments, lac. CIt. pp. 120-1, 144. [Kant's argument -that each generation should meet its own problems, WIthout the aid of the pIOUS benefactIOns of the past-IS characterIStic of an age whIch was shaking off the yoke of a past which it supposed to be outworn, and proclaimil1'6' the right and duty of each generatlonfare da se, cr. Pame's r"'peated phrase that 'each generatIOn is competent for Its own purposes', and compare also hi! scheme for tile complete transference of all poor-relief to the State (RIghts of
Notes to 18
375
Law, !24-~5, speaks of the fortultousncss of alms-givmg and charItable Institutions, and praises, in comparison, a system of obhgatory general regulations and orders. He IS partlcularly cntlcal of the boundless chantable foundations 10 England] 37. J. 71. et g. VlJ, c. 2, 21-3 Mter dealing with these 'pecuhar subordmate bodies', Pufendorf proceeds to treat of appomtments to pubhc offict"s [thus connecting assocutions with the workmg of the State1. 88. Pufendorf makes an exceptIOn in favour of 'colleges' which probarz debenl, such as the Chri~tian commUnIties in anCient Rome. Apart from this exception, he treats as corpora Illegilima not only bodies w}m:h are formed for inadmis~ible objects, but also those \vhich have ansen absque consensu summorum imperantlum Like H<j>bes, he divides all corjJOra (mcludmg both the It'gllimate and the illegitimate) into the two species of; regular' and 'Irregular', accordmg as there I~ a proper umo volunl<ltum, or some other bond of union (e g. coTlJp!ratlQ produced by qJJectus, spes, Ira or the hke) 89. Accordmgly, III a State which has grown from the union of a number of bodif's, thelle bodlcs must surrender to It whatever IS necessary for It a Statc wmch allows bodies to enJoy mdepcndent rlghb m pubhc mallers is a State which renoultCt'S part of it~ lmpenum and becomes lrregularzs el biceps. 40. While the State IS enllrely and ab~olutely represented by Its Sovereign, It 15 otherwise with 'b(){!les'. here act~ done by the rector (or coetus) who 15 entrusted With the regimen corpoTls can be deemed to be the actIO totll~ corPOriS only when they fall \\ Ithm the corporate sphere, as duly delImIted in ac.cOldance ""ah the eOmtltutlOll and th"" laws OutSide that sphere, the agents arc personallY hable Pufendorf also regards a 'protestation' agamst the deCiSIOns of an a..,~embly [I e tl,e defiance ofa 'body' by some of Its members] as permlSSlbk. and he holds that m a dispute between a corporation and Its members non corpus Judex eTit. sed clVltas, CUI corpus subest 41. J n et g VI, e. I, I ' QyemadmuJum corpus humanum ex dweTSls membTis compomtur, quae et IjJla, IT! u conslderata, corjJorum Instar prae se ferrmt"'!'lta et CIVitates ex mznonbus cwllatIbus corlStlJ1,l. 42. ThornaslUs, however, confine" +J.-" Idea of SOCietas maequabs to the c.om mUDlon between God and man', and 11e dlvld("~ me rely human societies mto I mzxtat and aequales. He does not, then-fore, us!' the dlstmctJon of 'equal and' unequal' SOCIeties m deternunmg the relatIOns between the COl poratlOn and the State; cf Instlt. Jur dw J, (.. I, ~ 93 -I 13. In a Similar way we find Mullerus (Insht. I, c. J) I'raschms (6--1 I) and other wnters, !'mploymg tlus distmctlOn only m order to pomt out dlfferenC'es of tnternal ~tructure III the two sorts of society [and not In order to explam theIr exterTIal relatIOns to the State]. 48. cr. n. /56 to 16, supra: see also Pufendorf, Elem IJ, 6, 20 (where he applIes the argument agamst gUilds) 44. lntrod lnJus pub[. umv, P. !>pec. II, c. 4 4~. Loc. Cit 7 n. p. If the Ruler tolerates collegw lnjusta et lmproba, these bodies have d/ectu1 ClVlles, but If he dISapproves of them, even the Jusle.st of such 'colleges' (e.g. the eally Christlan commumU("8) are mstantly destitute of all nghts.
Man, Part II, c. 5) with Kant's simllar proposal. Hegel, in hlS Phzlosophy of
Prifendorfon assoclctlorlS
J. H
Boehme, on corporate bodIes
Gierke's Notes
46. Loc. Cit. 9 n. r. More especially, these 'publlc colleges' must render accounts to the sovereIgn; and they cannot dIspose of their property without hIS consent. ThiS is the case with bona civltatum, commumtatum, academlarum, Immo et eccleslarum--quld emm alzud sunt quam coelus publiCI? 47. Cf 11, c. 3, 16-2B and c. 4, 12. Boehmer ascnbes legislatIVe Tlmr power of legISlatIOn activIty exclUSively to the Sovcr("Ign; and he explains the kgal vahdlty of customary law, of foreign law [10 cases of private mt("rnahonallaw?] and of 'statutes' [I e by-laws of corporahons], by Ius havmg gIVen them hIS approbation. He r~ards mUnicipal self-government 111 general not as a right belonging to mumcipalIties (stadtlSches Recht), but as a form of legislative authority delegated to maglStratus lriferwres. The by-laws of collegza et corpora [I e. corporate- bodle~ othl'r than ImJluC1pahtIt'b]. 111 regard to theIr own affaIrs, are 111 hIS vIew merdy pacta among the members, requirmg, as sUl-h, subsequent confirmatIOn by the sovereIgn. But the soverel&p may go further' he may make even these by,la~ [though they arc only internal pacta] dependent on hiS previous sanCtion; and he IS actmg nghtly If he docs so In any case, he has the two nghts of mspectlO and dzrectto he can cancel by-laWb which are an abus(" , and he can, m general, prescnbe the procedUIe to be followed 111 anv respect. Thm power 48. Cf II, c. 3, 926, c 4, 12 n. u; c. 7, 24, c 8, 13. ]urzsdlctlO and the ofJurISdictIOn power of pumshment belong only to the Soverelgli or hIS delegates' collegia and soczetates aequales have no lurlSd/cllO or JII.! punzendz They may .ipp0111t arbltrl for themselves, but they can never appoll1tJudzce\ Without bemg guilty of majestas laesa They may det("rmmefby pact that there shall be certain 'conventiOnal' pumshments, but they must leave to the Superwr the carrymg of th("m mto effect. 49. Boehmer argues (II, C g) that, wlul(" all 'soUChes and colleges' need Their power a 'common chest', an admInistrator [or treasurer], and subscnptlo1i's from oflmposzng dlUS on their th("lr members, there IS a dIfference 111 thIS respect betwe("n the equal and the un("qual society In aequalz soC/etate oblzgantur membra ex pacta, In znaequall members ex Imperio. The SovereIgn alone has a nght of taxatlOn Any person other than the SovereIgn who Imposes a contnbutlOn must act either ex zmperanllS mdultu expresso vel faalo, or ex consensu subdllorum' he can never act suo Jure In ca1e of necessity, however, the consent of a rnaJonty I~ suffiCient [I.e. It counts as the COnsensUf subdltorum]; and Boehmer ("ven allows that, tempore extremae necessllalis, a commuruty [which would otherWise need the permISSIOn of the ~overeign] may act on its own authonty-though he adds that thIS should rather be explamed as proceedmg ex praesumta voluntale ImperalltlS. See n 46 supra. 50. Accordmg to n, c. 6, there can be no pubhc office nISI ab Imperante. Thezr In order, therefore, to appomt 'magIStrates' for themselves [I e. to appomt officers the offic("rs of any SOCIety to whIch they belong], subjects require the permIssion of theIr Ruler. If they choo~e consules, for example, they are actmg non suo, sed ImperantlS nomllze. th('y are therefore responSible to hIm; and he may deprive th("m of theu right of appomting, and make hIS own nommahon, if they abuse their nght of chOIce. Indeed, the SovereIgn cannot allow a nght of free electIon Without dlsturbmg hIS '~esty', and for that reason he generally requires that his sanctlOn shall be necessary for all elec'bons ( 6 n. m). We may notice espeCIally how Boehmer, in dellmg with the duty of mumcipal magl~trates to render accounts-a duty which, he holds, cannot be ~ffeetlvely abohshed by any prescnptton or priVIlege to the
Tlmr property
Notes to 18
377
contrary-bases it upon the fact that the munICIpal ma~lStrates really conduct thGJr administration as public officIals, nomme ImperantlS ( 7-8 nn. nand 0). He also holds that an officer of a corporatIOn can n("ver be legally prevented from appeahng to the Sovere-Ign (c 6, 9) S1. Cf n, c. 3, S6sqq., and esp. &64 n b Privileges WhICh run counter Their to the pubilc good--5uch as a prwzleglum renatw datum de non reddendLS ratlombus pnvileges de bonis cWdatum, or agam a monopoly-arc absolutely VOId. Pnvlleges whIch may become prejudicIal in altered CIrcumstances, as so many of th~ pTlVllegla collegwrum readily may, are subject to recall 52. Cf. n. 46 supra, and sre also II, c 10 (("~P 7 and 17-18) on th(" JUS ImperantlS CIrca <lSlt:T7TOTa [i e 10 regard to res nullzuf]. But he def('nds hImself against the reproach that he IS depaving tOWllS of the ownershIp of theIr property by hi~ arguments (( 6, 8 n 0, JIJ, C 3, 5 n c) S8. Introd lnJus publ. unw. c. 2. ~9-IO. In thf' followmg sectIOn (II) he Boehmtr argues acu1e1y that on thIS baSIS mte~natlOnallaw IS nut her JUs publzcum nor on /iubltc JUS prIVatum, inasmuch as actIOnes ~mtlUm fall mto neither or the two categones and przJate [I e. that of' publIc' and that of' prIvate' actlOW>1whlCh are reqUired by the law conceptiOn ofthe State, but are Simply lIberae [On Bo("hmer's argument the actIons of States wh('n regarded a~ power> or gentes In the lIltt"rnahonal system (or want of system) are neither prIvate actlom, dont" by prIvate CItIzens or prIvatf' bodlCi or thf' prmce mIlls prn'ate capacity, nor pubhc actIOns, dont" by CItIzens In theIr pubhc capaCIty or the prmce In hI, capaCIty ofa pubhc person. They are lzberae,or lOdetermmate ~o Boehmer seems to argue, but It IS dIfficult tOJee why the actIO of a gens, If the act IS really that of the ,~ens (and not, for examplc, that of a cd~ual pIrate In the West Indle~, ofEngh~h natlonaht), who happens to plunder a French ship), should not be regarded a~ an act of the Pnna/Jf qua talt!, or of CItIzen> qua tne"ibra Hezpubllcae. We can hardly say that the gens IS not the State But the usc of the separate word l:enf m mternatlOnallaw (lJke the me of th(' word power ') has led to a divorce betwe('n the theO! v of lOt("rnallonal and that of lIlternalleiatlOos, whIch IS only ~lowly beinll' abollShed] 51 He deab (n, c<- 4 and 5) WIth (I) theJuI zmpermltllim CIrca collfgla et On 'publIC unwerSltates and (2) their JUS Llrca faCTa In deahng With the former &ubJt"ct, college I, he refuses to allow that I publiC colleges' have anythmg more thafl the status of 'pnvate colleges' when I_f\'lfded In thelf nature as unwersltates and compared WIth the So\'ereign ((" rr they have not Jura rezpubllcac. as he has, but only Jura colleglOrum U1l"y ;l..lve not aJus fiscl, as he has; and so forth). They arc only suo modo publzca pubhc-in .1 way of tht'lr own '] 10 virtue of the Ruler havmg gre-ater nghts over them and theIr property than he has over mdlvlduals and their property [In other word~, tlwy are public in the s('nse of bemg undef publtc control, but not 10 the st'me of havmg a pubilc positIOn] cr. Ill, c. 3, 5 n, c 55. Jus publicum, as Tlt!US uses the term, mcludes only the relatIOns of the lmperans, as such, to hIS subject~. 56. Cf. e.g. Danes, 661-3. 57. In the second book of his De ,ure cIVltatlS, which IS devoted to the rights Huber's of the subject, Huber proceeds-after dealing first wzth persons m general classificatIon (s. l,~. I), then WIth the famlly (s. I, cc 2-6), and then WIth cltlzens (Burger) ofumverand the dIfferences'among them (s. ~)-to trf'at, in sect 3, De Jure unwerslta- sItates tum. Under thIS head he dlScusses the unll'erSltar In genere (c I) j gUIlds and tradmg companies (c. 2), umversities (c. 3), rehglous socIeties +C. 4); local
r'
Gierke's Notes
communities (c. 5); the responslbdity of smguli exjactb umversitatlS (c. 6); and the luerarchy o the Roman Cathohc church (c. 7). He oliofs a sImilar order in Instlt. Relp. sect. 11. 58. DeJure CIV II, 3, c. I, 3 and 19. He remarks, however, that the name of SOCIetas 19 often gIven to bodies quae maxime sunt unlverntates, and he cites the East India Companies In Holland as examples. 59. De .lure CWo 11, 3. c. I, 10-14. 24 Huber's full definitlOll of the unIVerSlf4S IS: coeius swe corpus subdltorum allcuJus CWltatls, sub &frto reg!mIne, perrmssu summae potertatlS, ad uutztatem communem soclatus. The regimen of a unlverntas may be conceded (as it IS zn the State Itself) to one or more persons, or to the majorlty of the members (20), but the concessIOn mU!>t always be hmlted [as regard~ 'ulllverslllC~' o.:her than the State] to the narrowest scope of acl10n that necessIty WIll pernut, in order that the power of!h(" State may be weakened as little as pOSSIble (34) Unzversltates prohlbltae, even when they are actually tolerated, exlS! only de facto, and not dlJure; but a penod of toleratIOn has the effect of tacIt approbatIOn ( 26-30) Associations whIch are not for the real benefit of the som or the State are to be suppress<.'d (31-3). 60. Huber, DeJure CIV. II, 3, r. 6, 999 and 19-20 potestas rutorum unwersltatum pendet a tenore mandatl quod habent a summa potestate, a qua Jus suum habet UniversItas. The rectors do not' represenl' the unwfTSttas they have no praefeC/ura other than ""hat IS denved from the Sovereign. quod agunt, non ad mandatum populz, sed PTlnClplS, eXIgmdum est He us("s ~Imdar language zn Prael. DlJ. III, 4, no. 4. unzvemtates reipublicae subordmatae cannot appomt permanent representatIve~, because they are unable modum et jinem potestatlS concedere SUlS rectoTlbus; sed . qUldqUld habent JUrzs zd acClplUnf ab eo proes quem est rumma potestas; promde qUI Id genus unwersltatlS praesunt, non repraesentant populum unIVersllatls, sed potestatem sumgzam CUI parent Corporallons may therefore glVe an aulhorlsatlon m a partIcular matter oflegal actIOn, whIch has a bmdmg effcct on lhose who consent, but they cannot vest theIr officers With a general power of bmdmg the whole corporation (whIch explams, mler atza, the lex' GIVltaJ '), cf De Jure CIV. II, 3, c. 6, 3sqq and Prael. 1lI, 4, no. 4. Nor can corporations devolve on theIr officers aJus contrzbuendl (De Jure ClV. n, 3, c b, 18), or aJurlSd!ctw (Ilnd. 21); for any JUrIsdiction that they have IS denved from the State (IbId. m, 1, C. 6, B). Finally, they can only make by-laws If they are authOrIsed to that effect, and subject to the !>overelgn's nght of glYlllg hIS sanctIon (ibid. 1, 3, c. 6, 59sqq., 11, 3, c 2, 25sQQ ,III, 1, C. 2, 14- 17). 01. Schmier, Jump. publ. unzv. v, Co I, nos. 87-114, where, after an account of the UniversItas ll1 gcneral, there IS a dlScusslun of local commumtIes, universities, gUIlds and tradmg comparues. Schmier expressly bases the requirement of State-concession on the ground that regImen, ImperIum seu jurzsdlctlQ ad unzversltatem cO'fljlltuendam necessaria nequtt ex alzo jante qUlJm summae potestatls largltate in InJmores derwarz (no. 92). When he comes to detaUs, he makes a grant by the State the source of the corporatIOn's nght of choosmg officers, admuustenng propcrty, Imposmg taxes, exerclSmg JUrIsdIction, and generally enjoying autonomy and self-government, cf. v, c 2, nos. 53-64, and also c. 3, nos. 6~79. ' 62. IbId. Ul, c. 3, no. 20. 03. Cf. e.g. Krelttmayr, Grundrzsz, 19. Subjects may IOrm 'particular societies'; Kut such societies enjoyJura communltatlS only in virtue ofthe aBSent
Their dejimtlon and their powers
Their autlumty derIVed jrom the State
Schmzer's theory oj corporatIOns
Similar theorieS
Notes to 18
379
on the part ~f the terntonaI prince. We may also note that even Pufendorf's ideas, and still more those of Hert, are parually In agreement with this trend in the natural-law theory of society. 64. See n. 6, supra. 65. Instlt 838-g Wolff adds, In 849. that It IS only socit'ties whose oQiects are madmlSsible which givl' rise to no nghts and duttes. 66. Instlt. 846 The laws of a society are pr.. ~criptlOns relatmg to matters 'which must always be dont" m onl' way, and that only, Ifth!" purpose of the society 18 to be secUl ed' 'All societIes, tht"refore, must have law~, and enjoy the nght to make laws' they have also the nght of threatenmg pUlllShment and of actually punlsll1ll~ offenders Each new member prOID1<;es, expressly or tacitly, that he will observe the laws; but since the laws of a society retam their authonty by virtue of the consent of its members, tfJe society has the pown pf abrogatmg or amendIng ItS laws, or of makIng new laws. Cf ~853. 67. Wolff finds a JusuficatlOn for reqwnng the Ruler's a~scnt to thl' alienahon of the property of a local commumty In the fal t that It IS meum bent upon hIm to Sf'e to the common mterest, and, agam, that he ha.1> a domlmum emmens over such property-as mdeed he has over all kmds of propl'rty (InsM. 1I2g). 68 S. Coccejl, Nov syst IV, 2Bo constlturtur tale corpUSCOrlfCnsu cf 205, on the pnnnple of par ratIO as betwl'l'n all corpora et unIVerSItates and th(' Stare [I.e. what IS tJ ue of the State IS equilly truf', or no less hkely to hI' tIue, of corporatlOns] 69. HemeeclUs, Elem Jur nat II, 13-25 The baslt> of thl' State\ authonty over eorporatlOllS It> thl' natural-law pnnclple that, whlk m ev('ry socIety 'the well-bemg of the sOCIety IS the supreme law of Its members', the 'Uhltty' of the 'greater socIety' must tuke precedence, In a 'compound socIety', over that of the 'Jest>er SOCIetIes' cantamed In It. 70 Danes, Imtll Jumpr U1llV. Praec ~ 17-23, P spec ~ 550-6, G74-8. He denves the eXI~tence of aSSOCIatIOns fr()m the contract [by wInch they are formed], but he bases the authonty [at lhe State] over corporatIOns on the pnnciple that In a 'compound sOCld, , the relatIOn of the sllbordl1lata ftJ the subordrnan.r rocletas L'l lIke that of the SXIUS to the SOCIetas, and therefore the interest of the' greater sOCIety' tal.e'! nrrredence m the event of a clash of interests (554t>qq) He thereful\ u.L.udes among th(' Jura rllaJestalu the JUS 1fllendz ne socIetates partzoles jim utllztatzque rl1'1tatzs sml ImJled,menlo, and (consequent upon that nght) the further nght of legltmnslllg at> 'Just' such 80Clches as are (.ompahblc WIth the purpot>e of the State, and of abohshmg others as 'unjust' (674sqq.) 71. Syst nat. 327-47. A sllndar view reappears m the JurlSpr POf 899; but III 853 a dlstmctlOn IS drawn between (I) Jura UniVerSItatis, whether orrglnarra or contracta, and (2) rights which belong to mat;lstratU.l constzlutz rn unzversztate ex concesszone Supmorrs, and are therefore cxerosed by them III the name of the State, and not III vIrtue of theu rcprcsrntmg the llmverSltas 72" In his Syst. nat. Nettelbladt first clasSifies sOCIeties by theIr purposes (34 8), and then I'roeeeds to arrange them, by a vanety of eutena, Illto naturales et non naturales (349), SImplICes et com/losztac (35Q-1), perpetuae et lemporaTlae ( 352), 1!C1tae et IIlICZtac ( 353), and aeqllaleset maequales ~ 354-61)
of the State, and they are thus subject to a JUS supremtle rnspectlonis et drrectionrs
Wolff on the Inherent

rzghts
of soczetles
Slmrlar VIews Z1I other German wn/elS
]\letMb/adl'j theory oj assoClatlOTW
Therr classificatlOTl
380
'Equal socutlts' possessing authority
Gierke's Notes
The Inheren/ TIghts of assonatlOns
The compound sonety
PublIC socle/us in the large sense Colleges of magutrates Publtc societlts in the strict sense Local commumtles
78. To the category of societates which are aequales and also (If only In cases of doubt) cum poiestate, there belong both (I) collegltl, or iocu/aies SImplices pluT/um quam duorum membrorum, and (2) corpora, or societates COmpOSlIae, the members of whIch are themselves' colleges' ( 354). In these collegia and corpora there are present certain pecu!Jantles-wluch do not, however, prevent their bemg included in the category of societas aequallS-such as a dlrecloTlum socU'tatls (357), a pecwlare collegium repraesentatwum (358), and deputatlones collegn for particular Issues ( 359). 74. Syst. nat. 361. 75. The JUTa sOCIolla socletatlS wlueh appear in Nettelbladt's theory are the adffilSsion and exclUSIOn of members (364sqq. and 407); the appomtmmt of Imperantes, dlrectores and o.JiCtales ( 367) ; the power of dlSpositlOn III regard to theIr own as&cts (407), the fight of mcetmg and making deCiSlOns (374sqq.); autonomy (~398-9); a potestasJudu:andl m regard to the affairs of the society (413), self-govrrnmcnt, mcludmg the rfght of selftaxatlOn (~407); and finally the nght of dlsposmg of the property of the sOCIety-though the property Itself IS [not an inherent nght, a& the fight of dISposmg of it I~, but] aJus societatIs con/rac/um ( 396). Only a~ regards equal SOCIC"tl('S posses~lIlg potestar does Nettelbladt a~sign all these Jura soczalla sOCle/allS to the society Itself In the case of equal SOCIeties Without potes/as, they belong to a thud party m the case ofunequ~l SOCIeties, they belong to the Imperans or superlOT. On the other hand, he regards the ownerlohip of the property of the society as belongmg m case of doubt--;:vcn m the two latter sorts of SOCIety [the equal soclflY WIthout power, and the unequal SOCIetyJ-to the commuruty Itself, and not to the person who Wields authonty ( 396). 76 In an earher passage of tus Systema naturale, where he IS seekmg to determme the nature of the somlas campoSlla, Nettelbladt deab wltl\ the melusion of' moral persons' m a higher unity as ItS' members' , but he draws attentIOn to the facts (I) that It IS not all the sOCIeties withm a souety whIch are members of It, and (2) that not every SOCiety whose membrrs belong to other socletles is a compound SOCICty' (350-1). He proceeds, m the same context, to dlStmgulSh betwccn (I) the posItion uf a corpus c.omposed of colle!f,a which have SOCial objects of their own, and (2) the pOSitIOn of a collegium dIVided mto mere 'deputatlOns' or ~ectlOns (~359). In a later passage, where he is deahng WIth the theory of membra C!Vlta/H, he treats 10 some detail of the posItion of 'moral persons' as members of the State ( 1588 and 1226-50) 77. Sys/. nat. 1227-30, where he includes among the' pubhc societies whIch are emmently such' collegia seu corpora ordmum and collegia optlmalum, but no/ the collegia senalorltl in a democracy. 78. Ibid 1231-4. On the other hand, these 'societies which are magIstraCIes' [I.e admmIStratlve or JudiCIal Board~] may possess the JUS maglstTalus Itself [not as of fIght defIved from the sovereIgn, but] either JUTe prOprIO or Jure admlnlstratoTlo; and they may in addItIon acquire special pnvJl<>ges. 79. Ibid. I 235-7. In thIS case [I.e. as regards 'pubhc societies strictly so called'] the place of the JUS maglStra/us 18 taken by a JUS ad certas funltlOMs, regImen Telpubllcae concernentes, obeundas absque comgendl pofestale. 80. IbId. 1238-40. These UnlveTSltales personarum [such as terntorIal commumties] may be either ordlnatae or inordmatae: they may, or may not,
Notes to 18
381
have magistrates of their own; and they may be governed either by a collegwm or i persona. Czrculz [the German Krelse, roughly analogous to our English counties] belong to thIS category, but' nrcles' whIch are the member-States of a federation are themselves sysumata Rerumpublzcarum 81. Ibid.1241-2, 1247, 1250 Inanycaseofdoubt,wecanonlyregard the. sonety Itself as the 'Subject' or ownc-r of thIS authonty, but an Indlvldual, or a part of the souety, may also be such a 'SubJrct' (9 12 45). 82. Ibid. 1243, 1247, 1249-50 Nettclbladt does not go mto any further details aboul the extent of ~tate-coIltrol over corporations when he IS dealmg WIth Natural Law It i~ from pOSItive law, and from such law only, that he seeks e.g to derive the llmIts upon the nghts of local commurutIes, churches and famIlIes to alIenate pr0I-crty, JUTlspr. pos g03. 88. Hnd 1243-4. 84. Ibl~; 1245, 1248. It goes Without saymg that thIS argument refer~ pnmanly to the posItion of the evaniclIcal church III Germany 85. AchenwalJ, Jus Nat, Proleg 8z, 91-7, and II, &zsqq. On thIS baMs A( henwdll too makt's every contract between more than two persons for the formation of a society produce a)us soczale umverSOTUrn In smgulos (II, 8), and he rrgards a soczetas aequalzs as one In which thl~JUS, or ~o(Jal authonty, remains With tht> whole eommumty, and nothmg more than a praerogatwa, or a praenpua obllgatw (III dil Y case nothmg 1II the nature of an ImperiUm), IS vested In a smgh: pClson or body of persons (n, 22-31). 86. Hoffbauel, Naturrecht, pp. Igosqq, where a dJ8tmction 15 drawn between 'essential' (lmmanentla) agd 'mcldental' (transeuntza) nghts 01 ~ocll'tles) and where 'souallaws' and 'soual authOrIty' (m Lts three spenes of directonal, executive and Impectonal) are treated as bemg essentIally Involved In any contract for the formatIOn of a SOCIety. HoJTbauer also speaks 'Ilf sOCieties as havmg offiCials of theu own-hut not, he adds, mdependently of the Ruler, and he dIfferentiates' equal societies' m which all the memberb mu~t con('ur from 'unequal sOCIeties' III which there IS not such general concurrentf'. 87'. Ibid. p 288 But Holfbauer add~ (h'll thcse 'pnvate SOCieties' cannot employ any coerCIve authonty to "lll':hcate theIr nghts agalllst their member~. 88. A L von Schlozer, AUg. Stac."'ltcht, p. 70, 19, Vlll. Schlozer cites as examples' mUSical clubs' and' the f'h':rch' I 8D. W. von Humboldt, Idem, pp. 4,1 ~y'q., 83, Il3sqq, 115 DO. It lb ~uffiClent to refn to the way III whIch Mevlus (Prodromus, v, 19) euloglst's'subordlllatc SOCIeties' as the foundatIOn and malllstay of the State The most Important ta~k of polltics, he urges, IS concerned With bona jamillarum and with corporum, colle/(loruTll, urblum jormo.t10, the prospenty of CIVIl SOCIety and that of ItS contallled groups are mutually dependent Oil one another; and there must be a happy mean between the independence of corporate bodies and their subjugatIOn to the polItical Whole On the basl~ of these Ideas h~ WIll not reflISe lIberty ofmcetmg and assoclatlOll flmJJ[,czlrr, but only when there are causat flublleae, cUTae lmperanflum concredltae (v, 26) We may also remember the VIews of Lelbmz lcf supra, note 6]. 91~ MontesqUleu, It IS true, regards the monarch as (he source of all authonty, but he diso belIeH's that ronstltutlonal government, and therefore true monarchy, 15 ImpOSSIble unless authorIty IS dIJTused through canaux moyens, and thus made, as It were, to flow mto a Delta ofpou/lolrs IhtermidlQlres
PrIVate soczetles State-control ofcorporatIOns
Ackenwall on the soczal authonty of aSSOClQtlOnr
The VieWS of Hoffbauer
In
"'femur prazse of group~
Gierke's Notes
Montesquieu on the need of Intervemng subordormis et dipendants There is therefore need for the prerogatives des Seigneurs, du CL"Ce, de La Noblesse et dIS Villes, as well as for political bodies (I.e. parlernents) to declare and pres("rve the laws (depl1t des loix). Any destruction of these mterv("nmg powers must produce, If not a Republic, at any rate a despotism, as was show11, for example, in the case of Law's operations m France [1716-20] and m the conduct of Ferdmand of Arragon See the EsJmtdes LOIS, II, c. 4.cf. also Ill, C 7, v, rc 9-11 (where RlCheheu IS cfltlClsed), VI, c I and V11l, c. 6, and cr. the argument, III v, cc. 14-16, that despotism, as dlStmgUIsht"d from monarchy, is based on umfonruty, equality, centrahsahon and the lack of all qualifymg and moderating elements. 92. We need only refer to the account which Moser gives m his Patnotische Phanlaslen of the struggle of towns and gUIlds and leagues for hberty (I, nos. 43, 53, 54), and to hIS glonficatIOn of the Hansa (I, no. 45, Ill, no. 49). In the course of thIS glonftcatIon h(" hazards the remark that It:.' the towns and gUllds and leagues' had won th~ day III the-Ir struggle With the tcrntonal pnncipahty. there would be slttmg to-day at Ratlsbon, 'side by SidewIth an mSlgmficant Upper House .. a UnIted body of associated towns and commumhes for dealing WIth the laws' wluch theIr forefathers annImposed on all the world, and then 'It would not be Lord Chve, but a counsellor of Hamburg, who would be Issumg hIS commands on the Ganges' (T, no 43). ,. We may also note Moser's historIcal accounts of the glory and the dechne of fratermtles and guilds (I, nos. 2, 4, 7, 32, 48, 49; TI, nos 32-5), and, more espeCially, hIS dlsapprO\al of the auacr made upon them by the Recess of the ImperIal DIet of 1731 (particularly m regard to the oblzgatJons of honour Iffiposed by craft-guilds, I, no. 49). We may equally note hiS general derIVatIOn of the consl1tutIOn of the [German] terntory, or Land, from a umon of the' llellowshlp' type between free propnetors of estates, followed by an analogous process of Fellowshlp-formatlOn among' manumitted serb and freemen who were not propnetors. (In thl~ last connectIon there are several passages m Moser whIch deserve notlc-e, e.g In 111, no. 54, he refers to the ITIStitullOn, by lords of manors, of 'a mutual protectiOn ,>oclety and arUcles of fraternIty' among the peasantry. who then institute 'articles a~ betvken themselves' for their own domestic concerns. t Agam, 111 TIl, no 66, he treats of 'the OrIgin and advantage of what ale called Hyen, Edam and Hoden' among free men who have not a plot of land of their own' cf p. 353, where he remarks that' such a Hode was soml'lhlng In the nature of a gUild chartered by the State, whtch could freely pass a rule about itself, and by such means maintam the nghts of free men' , cr. also IV, nos. 63-4.) Fmally, we may also refer to M6ser's account of the orIgm of territorIal Estates from leagues and confederatIOns, and of theIr development into a body wtuch repn.-sented the whole territory as a Landschafl [or local Diet], IV, no. 51. 93. Ibid. u, no. 2 and III, no. 20: 'every CIvil souety, great or small', should' properly be a legISlature for Itself', and should not form itself on a
The German IS Hantiwerks.hre. The gUIlds imposed standards of decent work. Hegel III hIS Phlwsophy of Law (249-54) speaks of socIety as assuffilIlg a moral character ill corporatIons, and of tht" mmvidual as havmg ,';11S 'honour' m and through hIS corporatIOn. t This m~1 remmd us of the' fnth-guIlds' and the later' frank-pledge' m our own country.
powers
between the State and Its subjects
Mos"'s
eulo![)l of the old Germanic Groups
Moser on Liberty of associatIOn
.Notes to 18
HoI'
38 3
general plan or on phIlosoplucal theorIes Cf also IV, no 41 (' each GtJu and [or, ~we mIght say, each hundred and manor] had of old 'Its own autonomy'), and JII, nos. 51,66 94. For Moser's VIews In regard to towns, cf I, nos 41, '53, III, no 20 (every small town ought to have Its o\\,n partIcular polItICal constitutIOn) and I, no. 39 (where he opposes the exemptIOn of tht' servants of country: landowners from Civic taxes) For his VIt'W' about ~ull<b, cf I, nos. 2, -h 4 8 -g, n, nos. 32-5, and as regards rural LommumlIe'>, cf II, no. 1 (on the sovereign nght of each peasant commumty to exclude strangers and sojourners) and II, no. 41, Ill, nos 43,52-3 95. Cf. e.g. the proposals for th" founding of a company for world-trade by the unitro town~ of Germany (r,ono 43), the foundmg of a separate college of advocates [ilke our Inns of Courtl with an exclUSive corporate constitutIOn (r, no 50), the foundmg of a 'orcle-assonatlon' for puttmg a stop to dlSul\mg III the event of a shorJal!;e In corn (I, no 6}); the ~tartmg of a company for conducting trade in corn on the Weser (I. no 52), etc 96. Loc. cit. JIl, no. 20, p. 7 I . 07. J n. et g VII, C. 2, 21-2, d nn '37-40, supra 08 Pufendorf deals with corporate property m Elem jUTlspr unw. 1, def. 5, ~'i--6 PropT!a .wnt non solum quae ad personar szngulares pertznent, sed et quae ad personas rrwrales cOIWJnLtas seu socIetates qua tales Neith,'r thIrd parties, nor the members tht'rnselves when they are not 'concel~erl as the whok souety' ,own any nght 10 such common property But In addItIOn to common property of tillS desCrIptIOn, which l;rn the plenum dominIUm of the SOCIety, a sonety may also possess propt'rty of anothrr deslnptloIl, where the 'usc' belongs to 'individual mernbt>rs' (slnl;'uh)-and mdced (Pufendorf adds) there are many C<lSt'S of such property where tIll' me IS op"n also to extranez Pufe~orfalso deals (Elrm. 11, def 12, 28,.7 n et g V11, C. 2, 22 and vm, c 6, 13) with oblIgatIons Illcurrcd by a corpus III consequt>nc(' of the legal transactIOns of Its rector or coetus He assume<-, like Hobbes. that m such ca;es the corporate property IS hable for the satl~factlOn of the dalm~ of It, members, but wlwre the claims oftlurd p lrtE~ arc loncelned, he hold, th.!t the mdivldual members arc r< sponslbk, <,at h of them pro rata-though If there be refusal to discharge a chum, e,1rh can be made re~pomlble fo" thl' whole amount FmalJy, he deals with delzcta Ul/weTSltc"'- :J. n tt g VIJI, C. 3, 2B-g, De off hom. et CIV. ", c. 13, Sr 9) He cxpounu; the usual theory, but he suggest,> that mnocent mdlVlduals should nol be mcluded m any pUnishment, and that all pUnishment should cease WIth the <hsappcaran( e of the person; who were concerned 1fi any given dehct Ht' Justifies the latter suggestIOn 011 the ground that, though there are certam attnbutes, such as possesslOllS 01 lIghts, whICh belong to the Ulllverszlas per se, there are othen, such as learrung or moderation or courage which Cdnnot be ascnbed to a unwersztas, lllS1 n derwallone a smguits. To b~ deservmg of pUnIshment IS an attnbute of the second lund; for a UniVerSItas, 'as such', ha~ no ammus merens poenam [' no intention deservmg of pUll1Shmr-nt '] [ef Grollll', ,UpI a, n 52 to 15 ] 99. ThIS IS the view we find III ThomaslUs, Treuer and Tltlus, cf n. 13 1 to l~ 100. Cf. pp 12 Jt-3 supra Gundlmg'~ dzssertatlO de umvfwtate delmquente (cited by lum m lus Jus nat. L 36, 23 and 26, 10 order to prove the Impropriety of the pumshment ll1lhctcd by Poland on the City of Thot\:i) belongs
On lowns, gutlds and rural groups
Proposals for new arsOClatlOns
Pufl'TlJorf on the rzghts and Jutle\ oj cor/IOY atlonl
Gierke's Notes
Gundlmg's corifwion oj corporattOn and partnershIP
to the hterature of cruninal law, and can only be discussed In connection with it. 101. Cf nn. 160 and 163 to 16. Gundlmg, in dealing with the contractus sOCietatIS, or, as he calls it, 'mascopey', and m treatmg of commumo mCldens [I.e. 'quasI-soCIety', as Wolff terms It. n. 163 mfra], uses Roman law as the basis of hIS argument (Jus nat. c 23, ~61-3) But (I) he treats a mClety as being a smgle 'SubJect' or owner of fights, and (2) he regards as contrary to Natural Law the positive-law rules v.luLh make It Jll1pmper for a ~onety to agree to exclude SUlts for the dIVISion of Its common property, or whIch treat the death of Its members as producmg Its dISsolutIOn (c. 25, 23)' 102. Cf nn ')8 and 59 to thIS section cf also Huber's Prod. Instlt. 11, 1, no 7 (OVlllS homl1lum socutas, quae nec jt'mllza SIt nec llbera Respublzea), and DIg. III, 4, no. I. ] OS. DIg 111, 4, no I, XV11, 2, no. 2, De Jure CII' 11, 3, c 2, ~ 2 104 Thus a umverslty IS a UnlV~sltas, but gymnasIa andelemcntary schools are not, because they have no regImen certum, De Jure ClV. II, 3, c 3, Dig. m, 4, no 2. In dealmg WIth groups of the type of the local commumty (unzversltalesjamlllarum), Huber treats VICI ""Inch have no magt~trates ofthelf own a!t not being umversltales, even though they have common propert'1 , and he takes the same view of provmces, when they have no separate constItutIon, with provmClal E~tates of their own, but are fhrectly admlm~tLred by a prefect (DeJure CIV. II, 3, c. 5, nos. 4, 18-22, Dig. III, 4, no 2). ] 05 CollegIa maglStratuum arc not Un/l'ersltatu, for t)wy do not possess a scopus et usus a summa republIca dIVerSUl,et coeulltlbus jleculwTls (De Jure CIV. 11, 3, c 5, 23) 106. Thl~ Idea of a purely 'Lolledlve' (or 'bracket') Group-perwnahty appears in Huocr's theory of the res umversltatls (Prae!. Instlt II, I, nos. 4,8), and of other forms of corporate property (De Jure CIV II, 3, c I, 35) It also appears m hiS theory of the legal trallSactions of corporatIOns, a~d more especially in hIS vIew of the obhgallons whIch a umversltas can mcur. Here, m the usual manner of hiS time, he refuses to recogmse that a umversltas can be bound by contract, except when omnes et smgull have gIven a fonnal assent, or when Its representatIves have been actIng wlthm the terms of a speCific mandate otherwlSc, he confine~ the hablhty ofa unIVerSItas to cases where It has profited by some transactIOn [I e where there has been a lucrum emergens], and he takes the general vIew that an oblIgatIO UniVerSitatiS entaIls a proportionate or 'hmlted' hablhty of all Its membc~ (as bemg the partes ex qUlbus totum compomtur)---cf De JUTe CIV II, 3, c b, 1-18, D,g. Ill, 4, no 4 We find the same Idea of a merely' collective' Group-personality m Huber's theory of the dehcts of a unwersltas (De Jure cwo II, 3, C. I, 39-43, C. 6, '3; Dig. III, 4, no. 5), and of its capacIty for bemg represented m a SUit at law (Dig. Ill, 4, nos. 4, 6). A Similar trend appears III hiS tn:-atment of the validIty of majonty-declSlOm. While he denves It from the 'SOCIal' or partnershIp element m a UniVerSItas, on the ground that the pnm,lple may have been agreed upon beforehand [by each Il1dlvldual partneJ] m the society, he also hmits Its apphcatlon stnctly, and that on the very same ground-e.g he holds that It IS only the [mdlvldual] consentlenles and theIr heIrs who't>ught to mcur hablhty m virtue of an obhgation [arismg from II maJonty-declslOn] (De Jure CIV II, 3, c. 6, 23-4). Huber lmphaslSes, agam and agam, the Identification of the 'collective
HI/ber's use oj the tmn UniversItas
H,s CollectIVe vIew oj corporatIons
Notes to 18
38 5
pf"r.son' With the sum of the members Ipsa UniversItas est persona (ibid c. I, , 36 ); IPSurne corpus soczatorum est UnlVeTSltas, non forma cOl7JunctlOnlS, ut allquz argutantur (instIt n, I, no. 7) 107. See n. 60 to this sectIOn. Huber acrO! dmgly refu~es to recognIse any real autonomy of a society (lnstlt I, 2, 5, J 2) It IS not, of course, inconSIStent With this that he should regald It as possible for a U711versrla.r (hke any individual subject of a State) to possess not only dominium, but also ImperIum, outside the State. He concludes, however, that [though this IS possible] It I~ not really the {"asc with the Societas lndua [the Duteh East India Company], for the Company only exerCises an Im/JenUm belongmg to the Umted Provmces' De Jure CIV lI, 3, c 2, & 14-21, cf also 29 108. The only dlstmctlOn will( h .Huber dlaws between soc,etates and collegw-bodH's will< h hI' regards as m other respects very SimIlar to one another-IS that the maJonty-pnnClple IS th" rule m the latter, and the exceptlon m ~e fOlmer If, therdUle,.the rule of the majonty I, mtrodueed mto it by an a~lt~ement amone; It, member., to that ("!feet, a SOCletar IS thereby transformed mto a corporatIon It IS thus that societates arc often raIsed to the pO~ltion of Universitates (Jure UnlversltatlS danantur) thiS IS what happened to the Roman compamcs oftax-eollectors, as It has also happened to modern colomal and tradmg compame~, quar, quum p71mo juerznt Soczetates, deInceps zn formam ColleglOrum reducw.sunt, nei alzter admllllStraTi possunt (De Jure CIV. II, 3, c 2, 2-13, Dig XVlI, 2, no. 2). 109. Vide supra, n 60 to thIS sntlOlI 110. A view lIke that of Huber aiPcars III Schmler see n. 61 supra, and compare what he has to say about the Jura unwemtatls (]urlSpr publ. unw. v, c 2, nos 52-64) and the delicta unzveTSItatum (Ibid Ill, (' 2, nos 95-1 (4) WIth Ius argument about the nghts and dutlt ~ of a unzversltas 111 regard to Its members (Ibid. v. c- 3, nos 69-86) In dcahng With tim last tOpIC, he speaks of the meIl1ber~ ~ bemg III a pusltlOn oi dependence whKh obhge~ them to lender ob<.."<ilence and loyalty, but as havmg a correspondmg claIm on the society to promote their prospenty and to plOtert them, and he explams both the posItion and the claim by the fact that 'hf authontles of the corporatIOn summam Potestatem repraesentant, atque In Ill.us vlTtute et partlclpatlOne mandata et Judlcw Imponunt We may also note the fUSlOll of a HalUral-law theory of socletaJ With a Roman-law theory of corporatIOns 111 M'" " 'lUS (I, c 7), Felwinger (PP 9 0824), Klllchen (Opus pol. I, c 5, tho I-JS), and Krelttmayr (Grundrzsz, S II, 19) 111. ThlS result IS already to be Sf'en plalllly 111 Huber He expressly say; thatJus quo unwersltates utuntuT est Idem quod habent pnvatl (Dig. 1Il, 4, no. 3), and he uses very pJam langua~" III enunClatmg the Hew that the lllhclcnt nghts whIch a UniversItas can claun tor IlseH are ltmltt'd to matters connected With Its pos~t's~lOns (causae patnmonzales) (ei DeJure ClV. II, 3, c. I, S313) When he deals with the pubhc-law nght~ of a cOlporate body, he makes thun belong not to the Universitas Itself, but to Its ofli<..crs as reprc~entlllg the pubhc authonty. 112 J. H Bochmcr, for e"ample, use~ Ihe conceptIOn of the societas aequalts III order to JU',tlfy the ~tatus of the collegIUm seu umveTSltas a, una persona morallS, and Po prove the IdentIty of thiS collective person through all the changes III Its membe~lllp, He goes on to make tillS conceptIOn the basiS of hlS theory of the possessiollS, the debts, and the legal transattlons and
Bl S II
HIS vzew of the authorzty oj corporate bodies
H,s View of the reiatzon of partnersh,ps and corporatzons
Schmzer on the umver. sltas and IL' members
The results of Huber's VIews
Boehmer baJes the corporatIOn on the societas aequalis
386
Gierke's Notes
dehcts of the umvemtas: indeed he makes It the basis of a general dlstmction between omnes conJunctlm Sumptl and smguli, wh)('h he u~es agam ~d again III connectIOn wIth all these POlllt~ (Introd. lnJUS publ. umv., P. spec. II, c. 4, I n I, 3 n.l, c. 10, 5 n. PP) 113. See pp. 171-3, supra. 114. See, as representmg thIS whole Ime of thought, Nettelbladt, Syst. nat. 1238-40 and Hoffbauer, p 288 115 MontesqUIeu, on the other hand, wiule he takes an mstltutlOnal' VIew of corporatIOns, champIOns tht'Ir cause, cf. n. 91 to thIS sectIOn. 116. ThIS is the case WIth Turgot (n. 15 to thIS sectIOn); and the same TM failure to dIStmgUIsh between corporatIOns and foundations appears m the corporatIOn debates of the National Assembly (see.nn. 20-3 to thiS sectIOn). We may also corifused trace an UnCOl18ClOUS transItion from the Idea of a society as bemg an as,oclaWith the tlon to the Idea of it as bemg a State-institutIOn or foundatiOn in the theory Joundatlon of Scheldemantel-and thIS notwlthstandmg the fact that he Ihterprets all groups as 'asSOCiations' (WIthout seekmg to dl,tmgu~h between societas and corporation), and that ht' bases all the rIghts and duties of groups on a contract between theIr members cr. IU, pp. 244sqq. 117. See above, pp. 168-9. lIB. ThIS IS partu:.ularly the case With W von Humboldt, Idem, p 129 119. See n. 128 to 16. In particular, \\ie finQ. Huber e\.pre~~Jy argumg Huber that mcz Without magistrates of theIr own cannot be unIVerSitates, even when reco/(ntses they have res communes, et earum nomine agere el convemre possunt ul jJersonae; for hodus whu:h are not these nghts, he contends, may be exrrclsed wherever there IS ,unple coumversltates ownership [I e. the co-owners may act and meet m r~pect of what they own], whl'"ther or no there IS also a soculas (De Jure CIV II, 3, c. 5, 4) [Just as he as moral allows some rights of actmg and meetmg to a Village which IS not a umverslpersonr tas, so] Huber would also allow merdy tolerated sOCieties (e.g AnabaptISt, and Armmlans) to enJoy the rights winch are necessary for tllclr contmued CXlStence, although they are not UnIversitates. e g. they should have the right of entermg mto contracts, though not that of recelvlllg legaC1l:"~ (Ibid III, cc. 8-g, Dig. lll, 4, no. 3). 120. See nn. 154, 162 and 165 to 16. l~l. See nn. 155, 166 and 167 to IG 122. On the extensIon of the conception of the 'collective person' III F.xtenswn of Hert and Cundling, see nn 160 and 163 to 16. It is also lllstructive to the connotIce the hne taken by Huber, when he IS seelung to find the differentia of notation oj SOCietas, as contrasted with umversllas. (ThIS IS a task which he essays m the the moral course of an exposItIon of the contractur sOCietatIS-an eXpOSitIOn which IS person made to mclude a theory of the partner~hlp m property between husband and Wlfe, under the name of SOClltas conJugans) He entirely avoids the pit-fall of makmg the dIfferentIa COnsist 10 the absence of moral per~onahty. See D~g. 17, 2, nos 2-13, and see also nn. 108 and 119 to 16. Boehmer, too, [makes no sharp dIStinctIon between umveTS/las and SOCIetas; he] distingUIShes a umvemtas from a soczetas negotlalona only by the fact that It IS not instituted ad commune lucrum et quaestum; cf. P spec. II, c. 4, I n. I. Scheidemantel, m much the same way, applIes the conceptIOn of the 'comPOSlte' person to familIes and partnershIps also [as well as to corpoiations proper]; In, pp. 244sqq. 123. The fundamental Ideas [of tlus Fellowship theory] were expressed m EnglanJ by Locke, n. c. 8, S95-g.
Notes to r8
124. The fact that he even manages to establish a relation of this order between' tatural' and' positive' feudal law shows how far Nettelbladt could go in thIs dIrectIon 125. Cf supra, pp. 124-6sqq., and nn. 17osqq. to 16. Nettelbladt DIStInctIon accordmgly makes the dlstmctlOn between the status tntemus of a society and if the Its status externus ( 334) the fundamental basIS of hIS theory of corporations. tnternal Achenwall goes even further in drawmg a hard and fast dlstmctlOn and the between the tnternumJus of a society (II, 6-13) and Its e>.ternumJus (IbId. external 14-22)' m the one case [I.e. as regards Internum Jus], he only employs posItIon of the Idea of a nexus JUTldlcUS SOClalls' m the other, he uses that of a persona groups moraits 1 ~ 6 See nn. 65-70 to tht~ sec hOi!, and also nn. 75, 81 and 85-6 127 Wolff,Instlt 841, 846, HemecClus, 14; CocceJI, 280, Danes, 762, Net);~lbladt, ~ 336sqq , Achenwall, ", ~24~qq , C von SchloLer, De Jure sujf. 3, Hoffbauer, pp 187, (92. 128. Cf. nn 175,178,181 to 16 129. Wolff, Illstlt. 979sqq, Nette1bladt, 338-g, Achenwall, II, 32-9, Hoffbauer, pp 192-3 and 205sqQ 130. The argument of Achenwall deserves speCial notIce m thIS connectIOn Aclltnwall (11, 24-8) All the members ofa SOCzetlU aequalls have IdentIcally the same on the basIS Jus ac oblzgatlo therefore the' common coru.ent of the member~' must deter- of rnaJontymme the means which are necessary for achlevmg the end of this socIety, and dectSlons where thiS Lommon consent has not been gIven and declared m the ongmaJ pact Itself, It has to be expres,ed m~onclusa formulated subsequently to the pact. Inasmuch, however, as all the members Lannot always a;,emblc and gIve thclr consent to these later conclusa. an agreement (lex roczetatzs pactltla) IS made at the time of the mltIal mstltutlOn of the sOLlety, determmmg the proper.procedure to be followed III the future the modus consentlendz valldus thus comes to be fixed m advance, the rules of precedenLe whIch may have to bc followed, and the method of countmg a maJonty of vote" are agreed upon, etL A Mmllar argument appears III Wolfl, Instlt 841'QQ (on the method, of 'common consent'" i~ettelbladt, 374sQQ , Hoffbaucr, pp. 199 sqq. 131. Nettelbladt, 363-6. The receptIOn of new members IS an aet Tk whereby the SOCIetas, m vIrtue of tneJus socutatzs soczale, declares that an ex- receptIOn of traneus who deSires to be a mcmhe. 'henceforth to count as such It IS new an act wInch alters status [I e. the eXIstIng sy,tem ofrc1atlOllS III thc souety], members mto and therefore modifies llghts and duties [for all the old member~], to an a SOCiety extent determmed by the purpose of the society [e g the higher the purpose, the greater Will be the change whIch an mcrease of the number of members makes m the eXlstmg system of rdations and the eXlstmg rIghts and duties of members] No particular rules can be laid down III regard to the qualIty and quantity proper to the members of a society, all that is needed IS voluntas reClpJendJ and voluntas socutatIS reClplentIS, the contract [by WhiCh a new member IS receIved] IS a valid contract even when, as I, the ca~e among the freemasons, the candidate does not know the exact object of the SOCiety, but knows that It IS a perffilSslble object. Cf. Wolff, Instlt. 836-7 and 846, and cf al~ the views of S. CocceJl (m, 105) on the status collegn [the system of relations eXlstmg in-an assoClatlOn] whtch regulates participatIOn III corporate rIghts, and on the actJO praeJudI.Clahs which members have glve~ them for the proteLtlOn of such rights
388
ExpulSlon or restgnatlon from a SOClery
Gierke's Notes
Anab'sis of )Vettelbladt's method of dealmg with aJSOClatums
132. Logically enough, Nettelbladt refuses to recognise either a right of the member to qUit a sOCletyfreely, or a right ofthe society to exp~ a member by Its own exclusIve actIOn, and he wIll only allow exceptIons to be made In eIther respect VI juns necesSltatls ob colllSlonem ojJiclOrum [' under duresse of the law of necessIty, In cases where there IS a conflIct of duties' J, cf. 368-70 and JUrISpr. pos 855' Hoffbauer take~ the same lme, pp. Ig8-g. Wolff, on the other hand, IS WIllIng to allow a member to qUIt a socIety If there IS no agreement to the contrary, provIded that It I~ not to the detrIment of the ~oClety, mdeed, he IS even WIllmg to allow it-provIded that an Idonew IS substItuted-m cases where there IS an expres~ agreement that a member shall not qUIt a socIety WIthout Its assent. Conversely. he holds that a socIety has always the rIght to expel a negligent or hostIle member (852 -3). Hemecclus holds that any soczetas lasts only as long as there IS consensus, and a member IS therefore always free to qUit (II, 14). Accordmg to,.,Achenwali (II, 12-13). a Universitas has the rIght and duty to coerce or expel a member who offends agamst the agreement on whIch It IS ba~cd, and, conversely, members have a rIght of coercIOn or reSIgnatIOn as agam~t a Universitas whIch adver~ely affects theIr rIght~. 133. Nettelbladt, 362, 367, 371. See also hIS Juns/Jr. pos. (8'j6-g and 876) on the rIghts and dutIes of the offinals of an assouatlOn In posItive law, on the responSIbIlIty whICh offiCIals mcur m cOruHquence of theIr admlnlstratlO, and, more partlcularly, on the positIon of the SyndlCUS of an aSSOCIatIOn 134. Nettelbladt, ~83 and 372, and JUrISpr pos. 8.16 and 865 HemecCIUS takes the same VIew, II, 2D-I, al(p so does Achenwall (Proleg 93)with a reservatIon, however, m favour of those exceptIOns to the general rule [that corporatIOns have the same rIghts as IndIVIduals] whICh arI~e hom the dwersa hommzs mdWldul et socletatzs natura 135 Under the head ofjurzsprudentUl naturalzs generalzs soclalzs, Nettdbladt treats first of the generalzsslma de soczetatlbus prmclpla-ofthe general conceptIon of aSSoClatlOm, and thClr OrIgm, end, status, authonty, kmds and members (9 326-71). He then deals wnh the applIcatIon to societates of the rules of Natural Law whIch relate to szngulz, dlscussmg such applIcatIon m detail WIth reference to actIOnes, res, leges, negotza, jura, oblzgatzones, pOSJesslO vel qUOSI, and remedlaJuns (372-414). Under the head of JurzsprudentUl posltwa generalIS (Junspr. pos Book II), he begIns by remarkmg (846) that the rules whIch have been preVIOusly stated WIth rt'gard to stngull (Book I, ~5-845) are also applIcable to socIetates personarum. He then proceeds to treat of unwersltates personarum In general (sect. I)--dealmg WIth theIr dIfferent speCIes (tIt 1), WIth theIr potestas, dlrectonum and officla, and, more espeCIally, theIr munera (tIt 2), and WIth theIr membershIp (tIt. 3). Next, he treats (m a somewhat dIfferent order from that followed In hIS treatIse on Natural Law) of the applIcatIon to Universitates of the pOSItIve-law rules relatmg to Szngull. Here he deals fir~t (sect 2) WIth the theory of persons (tIt. 1), thmgs (tIt 2) and actIons (tIt. 3), he then deals (sect. 3) WIth leges et actus jundtcl, he proceeds (sect 4) to oblzgatlo (tit. I), Jura (tIt. 2) and possessIO (tIt 3), and he finally deals (m sect. 5) WIth remedlajUrzs. Achenwall (n, 16-21) also draws a parallel between Natural Law in regard to 'socIetIes' and Natural Law relatmg to mdIViduals, dIStingUlShmg, m both cases, between three sorts of rIghts and dutIes-the abbolute, the hypothetIcal, and those WhICh arise from laesw.
Notes to 18
186. Syst. nat. 373; Jurispr. pas. 866. A similar argument appears in Achenwalle(lI, 24) and Hoffbauer, pp Ig2sqq. 137. Syst nat. 374--g2. Nettelbladt di~cusses under this head (I) meetings, which may be either' stated' or speCially summoned, and either direct or representative; (2) Jura dlrectorzallo (e.g. the summonIng of meetIngs, the makmg of proposals, the collectmg of votes and the formulatmg of resolutlOns) , (3) votes and their different spt'C1e~ (e.g. votml'\" by heads and voung by curzae) , (4) the rIght of votmg, whlrh belongs to all equally III any case of doubt, but lapses for the time being when a member abstains from votmg or IS ab~ent m spite of havmg been duly summoned, and does not eXist at all when the Issue in questIOn affects a member per~onally, (s) the order of votmg, and the rIght to altei' a vote glve-n before a deCISion i, finally taken, (6) the counting or welghmg of votes, (7) the method of countmg, (8) the formulatIOn of deCISIons, (g) unammlty of votes, majorIty of votes, and equahty of votes (in the last eve\j.t, he remarks, mhll conclusum est, but the use of the lot eventually deCide, the I~sue); (10) the majorIty-prInCIple (which IS satisfied by a relatIve majorIty), and the exceptIons to that prlllClpIe, (I I) It to znpartes [or the takmg ofa diVISIOn], and, more espeCially, the decI~lon of the questIOn whe-ther an Issue IS really present which IS SUitable for settlement by that method, and (12) the cancellmg of a deCISIOn. He expres,ly remarks that ill the rules suggested ale equally valid for the deCISIOns of a reprcsf'ntauve body or for those of a collegiate body of offiCials. las. ]urlJpr /)os. 869 Nettelbladt also mentIOns the reqUirement that all should be summoned, and at .east two-thirds should be present, the greater weight whICh IS sometimes recogmscd as due to samorztas [I e. to the samar, a, dlstmct flOm the major, pars], the calculus Mznervae, 867 [what we should call the' castmg vote' J, the continuance of the nght to vote in spite of non Jlsus, and the vahdlty of a votf' m onc's own favour (a pnnople to be assumed m Germany on the analogy of canon law), 868 He also treats III detail ot corporate seaw. (~870) and the proper proof~ of voluntas et consensus (87 1). 130. Cf. Wolff (84I-S), who evt"n deduces from Natural Law the pnnuple thal where the contnbutions or benefits of the members are unequal, their votmg power should be une'-!,lal, and proportIonate to what th~ give or receive ~ee abo Danes, 7"~, along "'Ith 7So-62, Achenwall, 11, 26-8 (where, however, the reader IS referred to leges conuentae [i e. posItIve law1for most of the particular q~LSt. ,.IS raised), and Hoffbauer, pp 199-24 Chnshan von Schlozer (De yure sujJr. ~8-23) abo seeks to derIve the rules of corporate actIon from Natural Law, but he holds that Natural Law does not warrant either the pnnClple ofmajollty-deelslOn, or the bmdmg of tho,e who are absent by the vote of those who are present He thmks that, If the Idea of the sOCIetas aequalzs I~ to be preserved, an agreement must be attamed by means of pacta adyecta [I e posItIve rules super-added to Natural Law] before there can be any vahdlty attached to the act of a majonty, whether the majorIty be the ordmary form of majorIty (which m any case of doubt mu,t be absolute, and not relative) or some speCIally quahfied form The same IS true In regard to castIng votes, m regard to the obhgatlon Incurred by !bsent members (here there should also be furtht"r rules both about the competence- ofth&e present to take a deCI,lOn and about the glvmg of votes by letter or by proxy), m regard to volmg, for reasons of eqUity, by CuTtaC or classes, and, finally, in regard to JUS eUlldz in partes and unlO sufraglorum slbl Nettelbladt's account of the deliberatIOns and deClSlOrts of corporate bodzes
HIS account of the rules of pOSItIVe law In these matters
Other wrzters on the rules ofvotzng
39
Clerke's Notes
irwicem adversantlum [i.e. the right of claiming a division, and the general methods of getting some sort of unity out of a number of confl4l::ting vIews on an issue] 140. Cf. n. 184 to 16, and the following notes. 141. See Nettelbladt, 38B--9 (where It IS argued that there can be no The nghts maJonty-vote In cauns jura Stngulorum concernentlbus), and 392 (where it IS and limIts contended that decisions from wInch Jura quaeslla have subsequently arISen ofa cannot be abrogated). SImIlarly Hoffbauer holds (p. 204) that a majority fflaJonfy bas no power to touch the nghts whIch a member enjoys m the souety (and therefore no power to touch the constitutIon), or even to touch any rights of a member derived from any other source. C. von Schlozer contencL. that where pure natural law IS followed-alid where, accordmgly, there is neIther any majonty-vote nor any oblIgatIOn of the absent by the vote of those present-no questIon anses of [the majonty modIfymg] theJura smgulorum or the leges fundamentales (loc. cit. 13) ; ~nd even where the vaHtlIty of the majonty-prmclplt' has been agreed upon by addItIonal contracts [supplementary to the ong-mal contract constItutmg the SOCIety], the pacta fundamentaZza and the lura smgulorum are exempt from the operatIon of these contracts, and can only be altered by a novum pactum [111 ~u!JstltutlOn for the original contract constltutmg the sOCIety]. 142. Syst. nat 393-6, cf. Wolff, I97 and l'oll8-9 (where It IS furth('r suggested, in re-gard to the pos~eSSlOns of a eommumty, that they belong to 'the descendants' also), and Achen\\'all, 11, Il) 143. ]uTlSpr.!ios. 872-7 (where he ~eals specially wIth the legal questIons of salaTlum, the' year of graee' [I e. a year's revenue granted to the famIly of an offiCIal at hIs death], famIly-property, and the admlmstrallo bOllorum). 144 Syst nat. 398 The same lIne IS taken by Wolff, 846 (see n 66 to The by-laws thiS sectIOn), and by Achenwall. The latter argues m II, 29-30, tha\ all the ofaTl leges of the 'equal society' are leges convenllOnales, to whICh ncw members associatIOn taCItly submIt; but it IS only ut smguZz that the memhers are bound by these laws, and ul unwerSl the} are supra leges, and can alter the-m at pleasure In the same way he also argues (loc. CIt. 34) that m the' unequal society' the Imperans promulgates laws by which he IS not lumself bound, and wiudl he can a'ter at WIll But even in the' unequal society' the leges fundamentales [as distmct from ordmary laws] are always to be regarded as pacta [and are therefore unalterable except by the coment of both partle~ to the pact]; cr. Nettelbladt, 399, and Aehenwall, 35 145 ]uTlSpr. S884-g1 (where he also treats of conflict of by-laws, their relatIOn to common law, and their mterpretatIon and applicatIOn). 146 Syst. nal. 40<r-2. He pays partIcular attentIon to the contracts mto whIch the SuperIOr can legItImately enter sOCietatIS nomme, ltmltes suae potestatlS non transgredundo, but he holds that m 'equal socIeties' whIch possess potestas it IS only a decision of the socIety itself which can authOrIse such contracts. The 147. Syst. nat. 404-5, where Nettelbladt argues that the 'obligatIOns of oblIgatIons of indIVIduals' are the duty of obedience and the duty of acceptmg office In assoclallons the society, and that' obhgahons of the SOCIety' [as dlstmct from those of indIviduals] an.~e from undertakmgs given by representahves, from Versto In rem IPSIUS socutatlS, t from the acts of a mandatanus legltlmus actmg wlthil1 the
I e Wolff recogmses not only (I) the present socIety ~nd (2) the present smgula membra, but also (3) 'the descendants', as havmg TIghts III the possessions of a commu1tlty. t See n. lSI to I 7 supra
Notes to 18
391
li~ts of his powers, and from actiO societatis. A similar argument appears in hIS Junspr.pos. 893-4. In 8g8 he also deals with the non-admlSslbllIty [as regards societIes] (a) of the prmclplt> of compt>nsatIon as between stationesfisci [the different 'accounts' m the common fund?] and (b) of the pnnclple of restitutiO In Integrum [the resc1Od1Og of an act by an offiCial, in ordt>r to prevent the legal consequenct>s which ordmanly attend such an act from tak10g effect]. '" 148 JurlSpr pos 8g5-7. He adds that a member IS never responsible for another member; nor IS a successor In UnIlIersltate, unless he has an obligatIon as heir 149. IbJd. 877. He also remarks, 10 the preceding section, that a UnIl'ersltas, as a 'moral person', cannot ,ildmullstt'r ItS own property Itst'lf. 150. Achenwall (n, 21) holds that a societas, as such, IS capable of all obhgatlOns-both the 'absolute' and the:- 'hypothetical', and both the hypothetical an~mg from permlS~lb1& and the hypothetIcal ansmg from nonpermlsslblt' actIOns. Scheldemantel only rcmalks (I, p. 220) that 'penalties attached to whole commumtIe:-s should ani) affect the benefits which aTlSe from the particular ncxus of the gl ven ~oC1ety'. 151 S}'St nat 99406-7 He enumerate~ as Jura socutatlS (m contradl~tmctlOn to Jura smgulorum) the followmg' (I) the adml%lOn of members, (2) the expublOn of meilbe'r> , (3) the dl~pOSItlOn of the res soaetatls, (4) the makmg of prOVISIOn fOl the negotw socutatls, (5) tht, Imposmg of contnbutlons fm the attamment of the W(Icty'~ objects, mcIudll1g contnbutlOns flom the les et facta smgulorum. (6) dlSPOS1~O de IPSlS JurlS socletatlbus [IPSlS )uTlbus SOCietatiS?], evcn If such chSpo~ltlOn be to the advantage or disadvantage of mdIVldual members and even If It takes the form of self-limitatIOn or renunCiatIOn (e g that of renouncmg a JUS prohlbmdl) 152 Jumpr POI q899-go3 :-'uch pecuhantlt"S m the nghts and duties of soc!etle~ mclude pnvlkges or chartel ~, acqUisItion by po/hcltatiO, the loss [of property] after the.laps.. of 100 yearh, or by destlUctlOn, and hmltatlOns on the power of alienatIOn 153 Syst nat q408-9, and also ~~ 2Q3sqq. 154 Jumpr. pos go4 and 906 ('-' hleh treat of mterdlcts [or, as we might say, 'JnJunehoru,'] and the pecuh.ulhe~ offi~callaw m rf'gard to 'socI@hes'). 155. Loc Cit 9905. A~ regadJ)ura affirmatwa, possessIOn of such nghts I~ acqUired lby othe! partles, as agam~t a unwersltas] through toleratIOn by the Universitas Itself, and not throu!sH tll.C ratIOn by mdlvldual member~, whIle, conversely, the acqUisitIOn of possessIOn by a Universitas las agamst othel partle~J can only be defeated by a stoppage of the ploceedlDg~ of the UTllveTSltas Ipsa As Iegards Jura negatwa, posses~lOn of such nghts IS acquired [agam by other parties, as agamst a unwemtas] through prohtbltlon addressed to the unlllersitas and Lilt" arqUlesct"nce of the Universitas Ipsa, while, conversely, the acqUIsitIon of possessIOn by a UTllVerSltas can only be defeated, once more, by a stoppage of the proLeedmgs of the tota unlllerSltas and the acqUle~cence of all Its membcrs therclD 156. Syst. nat 4ID-12 ,j,nd Junspr. pos. goB-9 (reprISals, Nettelbladt argues, are not only pernllsslble between States' they are also permISSible, m <! peculIar way, between Churches, but other unIVerSItates have no more right in thiS resp~t than belongs to mdlVldual subjects) . ... The argwnent appears to be that ordmary SOCIeties do not enJoy the benefit of these prmelples, while the' great society' of Ihe State dOel>
Netlelbladt on Jura sOCIetatIS
On possesSion bysocletles
On legal remedus of socaetres
392
Gierke's Notes
Nette/bladt treats arlStocratu: Houses as corporations
157. Syst. nat. 4 I3: the jurISdlctron of a society is no proper junsdiction, such as that wInch universally appertains to States' It IS rather a ~nventlOnalls potestas ]UdICandl. 158. Syst. nat 414 (which deals With the processes of actIO, exceptIO and provocattO). In hiS Jumpr pos 878-82, Nettelbladt deals more fully wIth the modes of legal action opcn to univen Itates He- draws a dlstrnctlOn between rases In which the causa ulllversitatlS qua tallS IS 'dIvIsible', and those m which It is 'mdIVlSlhle'. In cases of the first sort, the members (sl1lgult) are In a posItion to make an effective dISclaimer, though they are open to doubt as Witnesses; but m cases of the second sort abo they ale not altogether free from suspicIon as WItnesses, and the distmctlOn IS thus really sl1ght... A ulllversltas .hould take an oath by means of three "r four of ItS membcls Nettelbladt also discusses the documentary eVIdence proper in such processes, and the proper proofs of descent In family-disputes. In 9 I I he deals With the pnor nghts 'ilf a unIVerSitas m case~ of ctlfuursus [I e of a ronfllct of clauns] , and m 9 12 he treats of the conflIct of claims ansmg when a unweTSltas Itself IS Involved m debt In the latter case he holds that, ma~much as the substance of the property IS inalIenable, there can only be a concursus anomalus, wlth a sequestratIOn and dlvl~IOn among the claimants of the Income ansmg from the property. 150. JurlSpr. pos. 846, cf also Achenwall, II, !L 1<10 Cf espeC1aH~ \Vour. 977, and Achcnwall, Proleg 94 and II, 41-84 (WIth nn 175 and 182 to 16 above) .ee aho COCCCJI, :.!81 , Danes, 606sqq , and Nettcibladt, S.yrl nat 66bsqq (wherc he daSSlhes SIX sorts of family 'soclety'--jJaterna, adoptwa, tute!ans, henlzs, domus, conJugahs), along With JUTlspr. pos 8SI. On the other hand Hoffbauer. who treats marnag<.> a~ an equal sonety which can be freely dls~olved (pp. 209sqq ), cOIlSldels that the relatIOn of parents to duldren and servants IS not a 'soCIety' (pp 214sqq), an~ that the faIIllly IS not a 'compound sOCIety' (p 221) 161. In Ius Posllll'e Junsprudenre Nettdbladt recJ..ons a~ unIVerSitates the German Empire, thf' Cathohc and Evangchcal Churdle., local commumtle~, corpora et collegIa, and famIlies (mdudmg gens,jamtlla and domus), 848-SI. He trl!!'ats the dlV1510m of the family a. membra unwersltatis, arguIng that It IS only specral rules m regard to the acquisition or loss of members whIch distingUIsh such diVISIOns from one another (~8G0-62) He brmgs famllyproperty (or bona stemmatu:a) wmch IS UI domlnzo vel quasi doml1llO jamtllae under the general head of res u/llvemtatlS (S87S), and he applies to Its alIenatIon (apart from a requirement that all thc mc:.mbers of the famrly should give theIr consent) the gencral rules of Roman law ill I 3 C. de vend reb. cwo (9903). He speaks of falmhes as partIes m CIVIl SUIts (882), and he refers to statuta jamllrarum [family by-laws or 'rules of the house '], whiLh may be clther pacta, or dlspojltlOnes cajJltlsjamtlU1, or normae SupenoTiS (886). In his Syst. nat. he draws a dlStillctlon between (I) the rights of rulmg famlhes to the property of the' House' or 'Ime', (2) the property-nghts of the FISC, and (3) the patrimonIum PrlllclplS ( 1349); and he also speaks of the autonorma jamllzarum IllustrlUm ( 1510). 162 See espeCially Nettelbladt, Syst. nat. 35~, on ~e apphcatIon of the general rules relatmg to 'societIes' to any perullare collegium repraesentatwum and to deputalJnes collegll; see also hIS Posltwe JurISprudence, g850, on the diVISion
Notes to 18
393
of corpora et collegia into (I) separata and (2) those which are only pars altenus umversltatis. 1 68. See, more especially, Wolff He dIstinguIshes, In hIS theory ofcommon il-fere systems property, between three form~ of commumo' (I) the commumo negatlVa of the if co-ownerstate of nature; (2) communlo flosltlVa, WIth such and such shares for each shIp regarded partICIpant, and (3) communzo mlxta, m which the property itself belongs to as' moral a unIVersitas, and the mdlvldual has only a nght of common user (Instlt. persons' 191-7). He mterprets, however, the second of these forms-that of positIve co-ownersillp--as being 'like ownership by a smgle person', and all that he assigns to the mdlvldual partICipant, other than the rIght of dISpOSltlon m Icg-ard to tns ~hare, I~ a nght of annullmg the ullity of ownershIp 'If the common rIght be not enjoyed coofurmably to the conditIon that It must remam common' (lg6 and ~33(}-1) We may compare With thiS hiS reo marks on colle-ctive credits and debts (424), on common cItizenship of towns (S73') , on societas mgotzatona (~639-48, and espeCially 642, 'on the ~hare of each member III the property of the sOClt'ty'); on commumo Incwens or 'qUasi-SOCiety' (692), and, fmally, on the 'mmmg contract' m rt'gard to shares III mmes ( 683), which he surprIsmgl)' brmgs under the head of lottery-contracts (Glucksver/rage). Nettelbladt not only assumes the eXistence of a smgle personahty of many mdlvlduals when such iJidlvldual~ play the part of a 'mardI person' conJunc/lm he also assumes Its eXI~tenee when they dlfJunctlm unam pfTsonam sustment, e.g. where it IS a rase of correl [I c persons severally responsIble for the same debt], or of rl"presentatlves~llldthe persall> they represent (JUTlspr pos S 17-18). In hIS theory of commumo posltlVa (Syst nat. 203-4), of condomlrll1lm (~~222-S), and, more espeeJally, of general and particular commUlllty of property (~~226-7), the lTeutomc] Idea of 'the Jomt hand' makes its appearanre--partlrularly in tht' fact that, whlll' he aSCrIbes the common property to <til the members of a group takl'n as a whole, he also asCrIbes to each mdlvldual a quowu-pnvate property In hl~ share In thiS last connectIOn It I~ to be noted that he cOllfine~ damlmum proper to res corporales, but he regards a quasl-dom'JIIUTIl m res Incorporales as co-exlstmg With damlmum proper (2IS) [Hence the share of an mdn,idual, bemg an 'Ideal' or meorporeal thmg, Cdn only be the object of qua~l-pr?vate property, but thiS quasl-pnvate property COexiStS WIth the dOmlrllUm proper of the whole group] 164. It has already been remarked tnat the parallel between the dlvlSlon of one mdlvldualmto several' persons' and the unUll1 of several mdlvJduals m one' persoll' helped to tum mto an abstraction the Idea of a person compo~ed of a number of mdlvlduals, cf n 173 to 1; 1 b supra. 165. Thus, for example, the whole of the theory regardmg the authonty The group of a commumty over its members IS mapphcable to a sOCIety composed of as merely two per~ons only, though such a society IS none the less expressly recogni~cd so many aq a 'moral person'; and the consequence IS that the gleater part of the zndlVlduals general theory of SOCieties IS mapphcable m such a case Cf. Achenwall, II, 8 (who remarks that, proVided there are more than two members, the sum of the reciprocal rIgh~ and duties thus mvolved gives rIse to a JUS soclalfumversorum In smgulos slngullque cUJuslzbet In umversos)' cf. also HemeeclUs, II, 14-, and Nettell;ladt, Syst. nat. 84 and 333 SimIlarly we find thlIl~ers compelled [by thIS general pomt of view wInch led them to make concessIOns to the rIghts of mdlVlduals] to accept as causC8 of the dissolutIOn of a SOCietas
394
Gierke's Notes
the fact of the death of its members, or the disappearance of a member, or resIgnation, etc.: Nettelbladt, 333. 166. We may notice especially, for the light which it throws on this ret It tendency, the way in which Nettelbladt (loc cit. 86) seeks to justify hIS eXISts assumption that the 'moral personality' of a sOCtetas can persist in a ,ingle apart from member, or even without any member, If there be ground for expecting ItS indiVIduals reconstructIOn: essentla enlm personae moralts COnslStlt In rndrVlduorum consoclQtr01U', et SI adhuc superest unum Indlvuiuum, Id repraesmtat reliqua; SI vero nul/um actu ariest, quae In spe sunt rndlVrdua pluralltatem rndlVidUOTUTTI constrtuunt We may also note the interpretation of communIty-property in Wolff, cf n 142 to thil. section. 167 Cf nn. 114 and 130 to thIS section, and also nn. 176 and IBI to 16. 168. Cf. supra, pp. 179-180. 169. Cf. espeCially the Views of A L. and C. von Schlozer, and of Hoffbauer, as stated in nn 186--g2 to 16 170. Humboldt's Idem, pp 121, I~3sqq, 125, 129 'The ~ss a man IS enabled to act otherwIse than as hiS WIll desires or hiS force allows him, the more favourable IS his poSItIOn m the Statl' , 171. IbId. pp I29-g2. Demalof 172. Cf. Pufendorf, Elem. 24-6 and J n. et g. II, Co g, 23, Gundhng, any znterc. I, 54; Hertius, n, g, pp 21 sqq., Hubrr, I, I, C. 5, J. H. Boehml'r, Jus pub natIOnal unlV, P. gen c 2, g-7, P spec. I, e g, 22 n l. J~h also argues (222-g) that mternatIOnal law does not depend on the eXIstence of a SOCIal umon of sOClery States or a Joint federal State It IS rathl'r that a state of nature eXists between different natIOns, and that they hvl' III that state, hke mdlvlduals, by theIr own Will, WIthout any assOCIatIOn', m perfect hberty and equahty. But they live on the same globe, they are therefort" subject to the fundamental rult" that they must do as they would be done by, and there thus eXISt among thl'm dutIes of good-fellowshlp--though there IS no SOCIety Cf also Spmoza, Tract pol c. g, 11-18, and Hom, De ClV. C 2, 4-9. 173 MevlUs, Prodromus, 5-9 and 18-20. the sf1-etas communu mter omnes AdmuslOn populos is the source of mternatlonal law, and the authonty of that law deof such a pends, not on any agrel'ment, but on the ratIOnal order which holds good for SOClery thIS soczalu populorum conJunctlO. Cf also Johannes a Feldl', I, C I, p. 5; PraslhlUs, g; Placcius, Bk Ill, LClbmz, Jntroduc lIOn to Cod Gent dlpl I, Ig, Fragment on Natural Law, p. 420, and Caesar.-Furst cc. gl-2, Bossuet, I, art. 5. 174. Thornasius, Instlt JUT. dlV. I, C. 2, 101-4, III, c. I, g8-S6. He Thomaslus censures the An.tote1ians for neglectmg the SOCietas gentIum. he proves Its on the existence (quIa unwersum genus humanum natura est unltum ad certumfinem), and socIetas he descnbes It as a soczetas maxlme naturalu, which produces aJurzs communzo. gentIUm But international law proper is m his view only a part of the lex dlVma naturalzs discoverable by human reason, It IS not a JUS humanum, or system of posItive law. For (I) thcre IS no Superzor; (2) contracts only obhge men lege rntercedente, just as custom only binds them by VIrtue of a tacrta approbatlo pnnczPls; and (g) the assumption of an express or taCIt pactum unlVersale 18 a mere fiction 175. Wolff, Instrt. 1090-2; Danes, 544 (where the soczetas unlversalls The VieWS of omnium homlnum 18 treated as a socutas necessarza), Nettelbladt, SySf. nat. Wolff and hu successors I42osqq. (there IS a societas natura constltuta 'for the~preservatlOn of the human race'); Achenwall, Proleg. 82-90, I, 4g-4, n, 210-88 (on the socretas unitersalrs). In all these wnters there IS a general recogmtion that
Notes to 18
395
there is also such a thing as posItive internatIonal law: Wolff, for example, speaks of 3eJus genllum voluntanum, plUlltlum, and, to some extent, consuetudlnarzum, and Nettelbladt admIts leges [gentium] socwles seu systematzeae as well as leges gentium stncIe naturales 176. Thomasius argues that the soczetas gentium IS not a respublzca unzversalu, but a soczetas aequalu wIth no Imperium, and that, fdr from perfecting the State, it is ImpeifectlOT clVltate (Insllt Jur. dlV m, c I, 52-3; Fund. IIJ, c. 6, s) The same lme of thought appears In] a Felde, 1, c. I, p. 5, and Nettelbladt also remarks ( 1420) that the sOCIety of peoples IS a systema gentium rather than a CiVItas maxIma 177. Wolff, lOgO. Achenwall also us,,"s thIS term (Pro/eg. 82Sqq ), cf VlC.-O (p. 156), omnes orblS terrarum flispubllcae una CIVItas magna cUJus Deus hommesque habent communlonem Kant finds the Ideal goal of human progress In a World-State (Volkerstaat or 'World-~epubhc')WIth a defimte.cosmopohtan con.\tItutlOn and a smgle Head, but he holds that the only goal whIch lan be attamed under present conditIOns IS the mstItutIon of a' League' (' FederatIOn' or 'FellowshIp') for the prevention of war (Works, Vl, pp. 340-6, 415-20, VH, pp. 162 and I 68sqq ). Flchte, who dIffers from all other wnters on Natural Law m derivmg mternatIOnal law not flOm thf relatlOn.~ of States to one another, but from those of the mdlVidual cltucns of dIfferent ~tates, deSIres a volun tary 'League', which IS not to be a Volkerstaat, but is to pos~ess judiCIal and executIve authOrIty for producmg a state of peace (NatuTTecht, IJ, pp. 261Sqq., WorkJ, IIJ, pp 379sqq , POlthumous Works, lJ, pf, 644~qq) 178 Pufendorf, De systemallbusclVltalum.8.].nelgvlJ.C5.16.De off hom el ClV. H, C. 8, 13, Horn, De ClV. lJ, C 2, 14, Becmann, Med c. 22, Huber, De ClV. 1, 2, C. 2, 20 and 28, I, 3, c 3, Thoma!>lUs, Instil Jur. dlV. lIl, Co ~ 57-8, Schmler, I, c. 4, no. 67, HertlUs, Elem. I, s 12, 7-8 and ll, s. 18, Gundhng, C 3. (36), 37-47, TltlUs, Spec.Jur publ VlJ, c. 7, 37, J. H. Boehmer, P. flJec. I, c. 3, 27-g, Danes, 808-1 I, Achenwall, 11, ~ 18g-go, Hemeke, I, e. 3, 27-31; A 1 von Sehlozer, p. 117,96. 179 Pufendorf,]. n et g VIII, e. 9, De off. hom. et CIV lJ, Co 17, Huber, III, 4, c 3, Gundhng, C 12 (11), 34-4:.l and also c. 24 (23), 9 16-1g on "M.ascopeyen ' [or' contracts of ~oL1ety'] ....;nong natlOn~, and on JOczetates bellicae and common governments; Danes, S~R"'~-5, Achenwall, II, 9240---2 ThornaslUs (Instlt. Jur. dIU. III, <. 1, ~S35-7 and c. 8, 1-27) adopts a pecuhar hne of argument He regards any federal aSSOCIatIOn between a number of States, when It represents only a SOCIal form of unlO voluntatum and IS l-onstItuted for a hmltcd penod, ill> bemg a societas peifecllOT clUllate, on the ground that It supplements m certam dIrectIOns the power of a smgle State whlC'h I~ madequatc by ItseH ::iuch an asSOCIatIOn, he thmks, IS mdeed an 'arbItrary' l-ommunlty, but It marks an approach to sOCIetas naturallS. He draws, however, a sharp dlStmctlOn between a soczetas znter plures respublzcas confoederatas and a systema Clvltatum: the former he regards as comtltuted only for a defirnte obJcct (certae UUlttatlS gralla), but the latter as a perpetua unto . .. znde}imlae gralrae causa. 18'0. Pufendorf, De syst. g-15 and]. n. et g. VII, C. 5, 17; Huber, I, 2, C. 2, 24-7, Danca, 806-7 181. Hert, for example, wrItmg m 168g (Elem. I, 12, 5 and ll, 17, 1-5), alreadv notes that unions under a smgle kmg are pOSSIble not ~nly where
Kant and Flchte on a league of natIons
ThomaslUs on federatIOns
Czerke's Notes
there IS no other bond of connection, but also when there is a considerable amount of community between the countnes so United. Tltlu," wntmg In 1703, In his commentary on Pufendorf's De ciff. hom. et Cl!! II, c. 5, 14, draws a sharp dIstinction between a mere personal umon, sub uno capite, and a real Union, In which there IS al~o a common exercise Ilonnullarum Imperil partlum; and he holds that a systema CXISts III the latter case only, and not In the former. Treuci takes thc same lIne, III hlS commentary on the same passage; cf also Schmler, I, c. 4, nos 68-76 The same VICW also appears in Hcmecdus (1737), Elem. II, I 19 (but he was not, as Juraschek assumes (p. 13), the fir~t to take thl~ VIew) See also Nettelbladt, I 172, who adds the Idea of [the union of] a predommant State WIth subSidiary States Apart from these wntl'f'l, we generally find the Idea of 'tniO per Incorporatwnem expounded. The theory 182 Pufendorf, De syst 16sqq., ] n. et g. VII, C. 5, 18sqq., De off hom. of the corpus et CIV II, C. 8, ~ 13sqq there IS unum corpus, but no cWltas, for smgulae CWltates confoedera- summum m sese Impenum retment, and ~ey have only bound the1b~clves contorum tractually circa exercendum communi consensu unam aut alteram partem summl ImperII. we cannot, therefore, ascnbe to thlS category [of corpora corifoederatorumJ a State composed ex plunbus corpOTlbur subordmatls, or, agam, a State whiC'h leaves some degree of Illdependence to conquered provInces. Cf. Huber, I, 2, C. 2, 2D-3. the federal assembly non est omnium caput, sed plUTa capIta repraerentat. non vere Im/ierat, sed Imperata smg/llorum communzter exequltur, the sovcrelgnty of the members of the federatIOn remaIn~ mtacl (I, 3, c 3). See abo ThomaslUs, 1mtlt Jur. dlV 1II, C 6, ~ 57-8, where, however, the tenn composltae rerpublzcae IS used, HertlUs, Elem. I, s. 12, 7-8 and II, sIB, and Gundlmg, e 37 (36), 37sqq Sdnmer remarks that IllS only an appearance of una resp/lbllca that IS ever present: revera sunt et manent mter se dlstmctae et dwersae, ut/JOte voluntates res bonaque sua seorSlm et separatlm habentes (I, C. 4, nos 77-88) TItIUS (DISS. ~76 and Jus pub!. VII, t. 7, :H-S) speaks of corpus cl1lzle ex plunbus cIVltatlbus Ita composltum, ut unaquaeque clVltar summum ac /ilerumque etzam plenum zmpenum habeat, sed zta lzmltatflm, ut quaedam eJus /iartes conJunctlm ab omnibus smt exercendae. See abo J. H. Boehmer, P spec I, c 3, 27-9, Danes, 80~1 [; Achenwall, 1I, [go; Hl'Ineke, I, c. 3, 9927-31 (a systema Clvltatum, he holds, IS a corpus morale which wears the appearance of a smgle Stale owing to the common exercise of th(" nghts of sovereignty, It is a societas Juns naturalzs), Krelttmayr, &4, A. L von ~chlozcr, pp. 1'1-18 (what IS III qu('~tlon, he thlllks, IS a 'CIVil sOCiety' or 'communlly' of States, but not a Slatl). Such a body 183. Pufendorf, De syst. S 17-2 I and J. n et g. VII, c. 5, IQ-21. It IS cannot act by necessary that thcre ~hould be some meetmgs, and It IS po~slble that there should be a permanent federal councIl, but the deputies attendmg the majonryformer contmue to be mlnlstn SOClorum, while the latter (the conClllUm dedecISIOn putatorum) has only a 'delegated power', and ItS VIS et auetoTltas provenlt a SOCIIS: the majoTity-prmclple IS mapphcable, smce It means the pre~ence of an Imperium, and here every member has the Tight of secessIOn. Horn takes a slmllar View, holdmg that everythmg has to be done ratIOne Pactl et sOClorum hbemmo consensu (n, c. 2, 14); and A. L von Schlozer also consldeTh that the use of a maJonty-vote IS not pOSSIble m a federal Diet, and that, for thlS v("ry reason, such a pohtlcal system has no final judge and IS devOld''Of reSponsibIlity (pp. II8-lg). Vxews to the 1/:14. Huber allows a certam amount ofvahdIty to majOnty-declSlOllS (I, contrary 3, c. 3): tho: same View IS taken by Hert, in his notes to Pufendorf's J. n. et g.
The theory of a 'real unlon'rif States
Notes to 18
397
VII, c. 5, 20, and by Schmier, 1oc. CIt no. 88 J. H. Boehmer (I, c. 2, 4), Achenwall ~II, IgO), and Krelttmayr (4) regard the rules of socUitales alquales as apphcable to federations. Danes takes the same VH'W (808-11); but he consIders that a dlreclonum, wIth a JUTlSdlctlO conventlOnallS between the members of the federatIOn, IS also po~slble. 185. Pufendorf, De rep. Irreg., ]. n. et g VII, C. 5, 12-1 5 and 20, De off. hom. et {lV. II, C. 8, 12: he regards any federal body In whKh the vahdlty of the maJoflty-prmClple IS agreed upon as bemg a corpus Irregulare Gundlmg (loc. Cit.) clmgs to thc VICW that any such pohtlcal system should be termed a monstTum. ] H Boehmer (I, c. 3, 2g), whIle he mtroduces the Idea of the two possIble onglns of a federal ~ystem (It may be due to the negatIve fact of dlSmtegratIon or devolution, as wdl a~ to the pOSltlve fact of foedus or integratIon), descnbcs the' Irregular system' as pItIable. 186. Cf Otto's commentary on Pufendorf's De off hom et CIV II, C 8, 12: HerlIus, I, s. 12, 6--g and II, s 19, where formations mtennedlate between a f('deratlOn and ,l State WIth provmces, sm h as the German EmpIre, are merely treated as being respublit:ae Irregulares, IUJUSt the same way as ordmary umons and federatIOns; Schmler, I, c 4, s 3, S 1-3, and 'fltlUs, VII, c 7, 36-54. TalUS, we may also note, apphes to federal forms of the State the general dlst1OctlOn whKh he draws betwcen State~ winch are adstTictae and those whIch are laxae (d n 167 to !1l7 above, and p. 155); and he accordmgJy mcJudes tilt' '~ystcms' (or wuatu OmpOSltae) w)m,h have been consl1tuted by afofdus adstTlctum under the head of adstrzctae, a.nd those whIch are due to the dlSlntegratlOn of a un'tary State under that of laxae. See also Huber (I, 3, c 3, SI7-20), who admIts that there are deVIatIOns from the general norm In the German EmpIre, and see abo Krelttmayl (4), who tnes to meet the dIfficulty by suggestmg that SIde by !>Ide WIth the sy~tema clllltatum foederatarum aequalI', such as IS to be found m Switzerland and Holland, there may also exu,t an unequal system of federated States, hke the polItical structure of Gt...many. A L. von Schlozer also holds (p I J 8) that scattered m a number of fragments, the ::\00 members of the gl,lnt body of Germany' only constitute a mere soclcty [and not ,l State). 187 Caesarmus-Furstenenus, c II, ann Demonstr.pol prop. 57. LelbmL, It IS true, does not base hlffiSelf upon Natural Law 10 defendlOg the cauSe of federahsm. On the one hand, cc--;.~parmg the dlffelence between a confoederatlO and a unto with that between ~ SOCUItas and a collegIum or corpus, he WIll only adnut the emergence v; a l.\..v persona CIVIlIs when there is a corporate group [and thcrefore he WIll not admIt that there IS such a persona III a confoederatlO, whIch IS only a SOLletas, and not a corporate group J, on the other hand, he abandons the Idea of sovereIgnty, holdmg th~t a real polItical authonty of the Group-person, exerCl~ed over the member.persons, I~ compatible With the llbertas et ~upreTIwtus of these mcmber-pen,ons. [It follows that Lelbniz (I) from the fir~t pomt of VIew, cannot apply the natural-law idea of the 'moral' or 'cIvIl' personahty of Groups to federauons, and (2) from the second point of view, cannot apply the natural-law Idea of the sovereIgnty of the State to federatIOns, or mdeed to any other form of State, smce he has abandoned that Idea In toto, ef ~upra, n 48 to S17, and cf ,llso n 253 to ~ 16. In dealmg With federations, Lubmz IS thus o\Jt~lde the ground of Natural Law, Oecause ht, IS unable to use eIther Its Idea of GrouppersonalIty or Its idea of State-sovcrelgnty.] 188. EsprIt des Lo/,$, IX, cc. 1-3 In treatmg of the rt!publl'fUC fMeratwe,
Irregular or monstrous formJ of federatIOn
The problem of the Holy Roman EmpIre
LeLbmz on federalIsm
398
Gierke's Notes to 18
MontesqUieu whIch he sometunes descrIbes as etat plus grand and sometimes as a soclett des on federatIons soclitts, MontesqUleu makes no defimte dIstinction between ihe dIfferent forms whIch It may assume (cf. BrIe, Der Bundesstaat, I, p. 31); but at any rate he leaves room, under this heading, for a real federal State. He regards the German EmpIre (whIch he descrIbes m another passage-Bk x, c. 6-as a ripubllque fidiratlVe mute, WIth a Head who 15 en qwlque fa;on Ie Maglstrat de l'umon et en quelquefafon le Manarque) as bemg a more Imperfect form than the federatIOns m SWItzerland and Holland, on the ground that monarchy IS not so SUItable for a federal constltutlOn. 189. Syst. nat 1160, 1172-7,1183,1221-5, 1406-g. Hoffbauer is m agreement with hIm, pp. 314-15. Nettelbladt 190. Syst nat. II bo, II 72, II 74, 1408. A respublica composlta 15 present when dlVersae respublicae unam rempubllCam, CUJUS potestatl ClVlll subJectae sunt, on the COl/stltUunt; but the member-States are not sovereIgn, and therefore they are respublIca not, m external relatIOns (though tht:y are In relatIone ad Rempubllcam macompOSlta Jorem), mdependent gentes (I e. 'persons' m mternatlOnallaw). 1 {) 1. A composIte State may be a monan;hyor a republIc. so may also Its respublIcae mlnores ( 1175). In such a State there is a duplex potestas CIVz!lSthe summa and the subordlnata; and the latter of these powers may, m turn, be exerCISed doubly-both by the member-States to the exclUSIon of the summa potestas [I.t". the federal authOrIty] and by. the member-States concurrently thereWIth ( 1176) Sunzlarly there IS a duplex subJectlo ( 1177) Such a State may come mto eXIstence eIther by IntegratIOn of States or by way of dlsmtegratlOn ( 1183). Agam, m ~uch a State, we have a new dlstmLtlon between different bnds of member~ added to the other dlstmctlons which we generally find m States-the dlStmctlOn between membra lmmedlata and membra medlata ( II 22-3). If we regard the membra rerumpubllcarum mll/orum, we find that the Heads of these lesser or contamed States are superlores on what we may call a 'downward' View, but subdlta on an 'upward' View, while the other members of such S.ates [1 e. the members other than the Head] are In dupllCl subJectlone, with the lower supenoT takmg precedence m case of conflIct; 1224-5. [GIerke adds that he mtended to treat the theory of the federal State, as It appear~ m the lIterature of pOSItIve German pubhc law, m a subsequent sectIon; but thIS sectlon was never publIShed.] 192. A later section (20) was to have been devoted to this theme; but the sectIon has not been wntten.
LIST OF AUTHORS CITED

A. 15f:lo to 1650
1650 to 1800
A. LIST OF AUTHORS CITED: 150-165

ALBEROATI, F , a native of Bologna, who pubhshed at Bologna, in 1599, a work entItled Ii Cardrnale, and at Rome, m 1583, a Trattato del modo dz rzdurre a pace i' zmmlcltle prwate. GIerke refers to his Ducorn polItUI as an attack upon Bodm which IS based on An~totle (Rome, 1602). ALSTED, J. H A, J588-1638, profe,sor of philosophy at Herborn (m Nassau), and teacher both of phIirnophy and theology; an encyclopaedic WrIter on both of these and on a number of other subjects. Gierke refers to hIs De Statu Rerumpubluarum, Herborn,.1612. ALTHUSIUS, J, 15'j7-1638, professor of law at Herborn, 1590, and syndic of the town ot Emdl"n, 1601. Gierke first drew the attf'ntlOn of scholars to his WrItlrlk, by the monograph WhiCh he devoted to them In 1880. The two of hl~ WrItIngs which he repeatedly quotes m thiS sectIOn are. Polztlca methodzce dzgl'sta, 1St edition, H("rborn, 1603. 3rd, 1614 (the 3rd edItIOn has lately bee-n re-prmted, WIt/{ some few omiSSIOns, and edited With an IntroductIOn, by C ] Fnednch, Harvard UmversIty Press, 1932), Dzcaeologla, Herborn, 1617, .a work 1D two books, totum et unwersum JUS quo utlmur comprectentes. ARNISAEUS, H, a student and teacher of medIcme, philosophy and polItiCS, who, after first professmg ethics at Frankfort on the Oder, and then medicIne at Helmstedt, became ih~IClan to the Klllg of Denmark, and died at Copenhagen In 1636 In filS polItIcal doctnnes he was an opponent of AlthuslUS He pubhshed two volume~ of 'coneeted polttlcal wrItmgs' (LeIpZig, 163'3. later ('ditlOn, Strassburg, 1648). Gierke refers to five of his polItical WritIngs' Doc/rlna poll/zea In .t:enuznam methodum qutU est Arzstotelzs redUfta, first pubhshed In 1606, and suggestmg by ItS very title an attack on Althru.lUS' Polttua mefhodtce dlgesta of 163, De Jure maJestatzs izbn Ires, first pubhshl:'d In 1610; De aue/on/ate prl1lapum In populum semper znvlOlabzlt, first pubhshed m 161 I , De Republtca, Stu rtjkctzoms potttlcae [zbn duo, first publIshed In 1615, De subJectlOnr et executIOne clrTlwrum, pubhshed m 1612. ]. Maxwell, sometime bIShop of Ross, published Lex, Rex the Law and the Pr1tce, m 1644, with a confutatIon of the rUInOUS grounds of H. Arrusaeus' (and of Wl1ham Barclay, q v). ARuMAEus, D., 1579-1673. a Juri>t, professor of law at lena. and ~ald to be founder of the study ofpubhc law In Germany HI:' pubhshed III 1617-23 five volumes of DlScursus academzn de Jure pubhco, wntten by himself and by other scholars. '" Gwrke refers to vanous contnbutIons which appear m thIS collectIOn AYALA, B, born at Antwerp about I 'j48, a Jurisconsult, who held at one time a finanCial post In the army of PhilIp II ofSpam, and wrote a work DeJure et olfiuls beihcls et dlsczpima mllztarz, pubhshed at Doual, 1582, and republIShed at Antwerp III 1597. BARCLAY, W, 1543-165, a Scot~man from Aberdeen. who studied law at Bourges under CUJas, and hlffise-If became professor of C'lvillaw at Angers. In'" addition to commentaries on Roman law, he- wrote De Regno et regalt '" Such dwcursus are often dl~putatlOns hdd b<'fore-or. a~
theses superVlsed by-the profe:.wr who edIts th(" collectIOn
BTS II
Wf"
&hould nowadays say,
402
List of Authors Cited: I50o-I650
potestate, adlJersus Budumanum, Brutum [1 e. the author of the Vlnd. contra Tyrannos], Bouchenum et reIJquos Monarchomadzos, Pans, 16oa. (GIerke cites. the Hanover editIOn of 1612). Locke refers to this work at the end of the Second Treatise. Barclay also wrote a work on the Papacy, whIch was pubhshed posthumously, 10 169, under the tItle of De Potestate papae, an quatlJTlUS m pnnapes saerulares JUS et tmpertum habeat, representing the Galhcan pomt of vIew. BEKINSAV (Becconsall), W., 1496-1559, fellow of New College, Oxford, and author of DesujJremo et absoluto RegIS tmlJerlO, a work dedICated to Henry VIII, and publIshed m 1546 (GIerke cites the repnnt m Goldast's MOna7ChIQ Sacri Romam Impem of 1611). BE LLARMINE , R, 1542-1621, cardmal,archbishop of Capua, member of the Jesuit order, and one of the chIef wrIters of the Counter-Refo1matlOn. GIerke refers to hIS De potestate summt pontzJuls m rebus temporallbus adverJus BarclalUm (first publIshed In 16IO~ but cIted accordmg td the Cologne edItion of 161 I). Trus work, as bemg Ultramontane, and a~ attackmg the more GallIcan attitude of Barclay's work on the Papacy, was at once condemned by the Parlement of Pans m the\year of Its pubhcatIOn. GIerke also refers to other wntmgs of Bellarmme, more partIcularly his De Lauls, m the Cologne edItIOn of hIS Opera omma, 1620 BENECKENDORF . Author of Repetl/tO el expllcatlO.,fe regultJJuns, Frankfort on the Oder, 1593. BERCKRINGER, D, sometime tutor to the children of the Elector Palatine; became professor at Utrecht m 1640, and dIed In 1667 GIerke refers to hIS InstltutlOnes polltzeat: swe de Repubtzca, publIshed at Utrecht m 1662. He IS also saId to have wntten, m answer to Hobbes, an Examen elementorum phllosophlcorum de bono cwe, which Wall never publIshed BESOLD, C. B., 1577-1638, a JurISt, who became profe~sor of law at Tubmgen m 16 I 0; but cro~smg over to the CatholIc SIde dunng the Tlurty Year~' War (m 1630), he b('came professor of CIVIl and J:YlblIc law at lngolstadt, in Bavana, m 1635. He was a volummous wrIter, both on legal and (after !us conversIOn) on ecclesIastIcal subjects. GIerke refers to hiS Opus polltuum (or, as It was called In an earlIer form, whIch first appeared 10 1618, Ptlztuorum llbn duo), and Cites It accordmg to the Strassburg editIOn of 1626. It IS a collectIOn of' DIScourses', wInch are sometImes Cited separately by GIerke (e g Discursus III de Democratza. and the 'DIScourse:.' De slatu Relpuhluae mixtat: and DeJure Unwersztatum). BEZA, T, 1519-1605, the great CalVInISt teacher In the age succeedmg Calvin hlfnself To hIm we may ascnbe, for reasons gIVen by A. Elkan, Dte Publl.l;Isten der Bartholomausnacht, the authorshIp of the anonymously pnnted DeJure maglStraluum In mbdltos el officIO subdztorum erga maglstralus, whIch professes to have been pnnted at Magdeburg m 1578. The work deals WIth the problem of resIStance, as It had been raIsed 10 the mmw of the French CalvinISts after the massacre of 1572, and seeks to re-define the CalV10utlC attItude to that problem. There IS a French verSIOn (of 1574), entitled Du drOIt des MaglStrats, whIch was prmted before the Latin ongmal. BIERMANN . Author of DIssertatlO de Jure Pnnclpatus. BLONDEL, D., 1591-1655, Huguenot preacher and wnter: successor to VOSSlUS in the chaIr of hIstory at Amsterdam in 1650' De 'Jure plebts In regumnt: eccleSlashco, Pans, 1648 BODIN, J., 150<>--96, French JUrIst and man of affalI"8. SJ" IIVres de la RJpublJque,
Lzst of Authors Cited: I5DO-I650

1577 In Latin, under the title of De &publzca, IS84. Cited by Gierke in the se~nd Latm editIon, Frankfort, dated IS91. A full account of Bodm IS gIVen In J. W. Allen's Polztical Tlwught Z7l the Sixteenth Century. BOLOGNETUS, I S39-85, ecclesIastical wrIter on jurisprudence. De lege, Jure et aequitate. BORNIl1US, J., a German junst of the first half of the seventeenth century Four works, mcluding one on sovereignty (De 1TlllJestate polltzea, LeIpZIg, 1610), are cIted by Gierke m note 16 to 14. The dates range from 1607 to 1625. BORTIUS, M. De natura Junum maJe,tatlS et regallum, prmted m Arumaeus (q.v.), I, no 2 (1616). BOUCHER, J , 1550?-1644, Catholic teacher at Reuns and afterwards at Paris, where he was a champIOn of tIl(' ,J..eaguc; afterward~ canon 01 Tournai He wrote Dejusta Hennci III abdlcatwne e Francorum regno, Pans, IS89 Barclay (q v ) attac.ks him a~ a Cathohc monarchomachus, along With the Protestants BuchaAan and Languet. BoxHoRN, M. Z , 1602 (or I6E!)-53, profe~~or m the Umverslty of Leyden, claSSical scholar, hl~tonan and wnter on pohtlcs. GIerke cites Instztutzonum polltlcorum lzbrz duo, 2nd editIOn, LeipZig, [66SBRUTUS, STEPHANUS JUNIUS, probably the pseudonym of Hubert Languet, ISI8-8[, see Cambndge Hzstorzeal Journat, [931. Vzndlcwe contra Tyrannos, Edmburgh (really ijpsle), IS79 (Walker's translatIOn, of the seventeenth centuzy, has been repnnted With an IOtroductlOn by H J Laski) BUCHANAN, G., 1506-82, c1ass[cal scholar, hlstonan and tutor of James VI of Sc.otland. De Jure regm apud icotos, 1579 (CIted 10 the 2nd editIOn of IS80). BUSIU~. P, ;>-16[7, profe~~or of law 10 the UmversIty of Franeker, 10 the Umted PrOVInces De Repubhca hbn III, Franeker, 1613. The Bntish Museum Catalogue al~o mentIOns a Trartatus de VI et potestate legum humanarum UI 'res partes dlssectus, Doual, 1608 CARNUf, CLAUDIUS DE. eA1alleus tT/partltus, -\ntwerp, 1620. CARPZOV, B. C, 1595-[666, JurISt. Commentanus In Legem Regzam Germanorum, save capltulatlOnem ImperatoTlam, [6:" a .JurISprudentIa eccleslastlca jeu conslstorallS, 1649 The fir~t of these works, dealmg WIth the condItIOns to whIch the Emperor agreed at Ius electIOn, I::> a treatise on the pubhc law of (!ermany at tht" tune the second deals With Protestant Church law In Germany. C\SM~NUS, 0, ?-1607, theolol!1:t1t .d philosopher, who taught at Stade (10 Hanover). He pubhshed a work on Prychologza anthropologlca 10 1594 Gierke refers to hIS Doctrmae et vitae potltzeae metlwdlcum et breve systema, F[ ankfort, [603 CLAPMARUS, A. C., 1574-1604, pUbltCISt. De arcanzs rerumpubtzcarum lzbn VI, first published posthumouslY. !60S. COLLIBU~, HIPPOLYTUS A, [561-16[2, a Junst, of Itahan anglO, born 10 ZUTlch, who served the Elector Palatme from 1593 onwards He wrote works on the Nobzlzs (IS88), the Pnnceps (1593), the Palatmus swe Aullcus ([600) and the ConslhaT/us (IS96). The thIrd of these appeared 1Il the Speculum aulzcarum atque Potltlcarum observatlonum printed at Stra~sburg 10 1600, along wah a reprmt of the fourth CO~ANUS (Connan, F. de), I508-SI, a French Junst COmmeTltanlJurlS CIvIliS, Pans, 1538 (cued 10 the Basle editIOn of 1557) CONRING, H., I6o~I, professor at Helmstedt, fir3t of mediCIne and afterwards also of law: one of the great polymaths ot Ius day, -.vho wrote on 26-2
List
of Authors Cited:
I5OQ-I6 50
theology as well as on medicIne, law and pohtICS. Gierke refers to the DlSsertatlones (e g. de Republica and de 7ItIceSSaTIIS partlbus etlntotlS, In vol. III of hIS Opera, as publIshed at BrunswIck In 1730. CoNTZEN, A., 1573-1635, JesUIt confessor and controversiahst. PolltlC01U1TI llbn X, MaUlL, 1621. CORASIUS, J. (Jean de Coras), 1513-72, French teacher of law at Toulouse, a Huguenot, who perIShed In the massacre of St Bartholomew GIerke refcrs to hIs Commentanz on some titles of the DIgest, and hIs Ena"atlones on certam responsa, pubhshed at Lyons, 1560. COTHMANN, E, 1557-1624, JUrIst and professor of law at Rostock. GIerke refers to hIS Commentary on JUStIDlan'S Institutes and Code, 1614, 1616. COVARRUVIAS y LEYVA, DIEGO (Dldacus~, 1512-77, professor of canon law at OVIedO, and bIShop of ClUdad RodrIgo and SegovIa, presIdent of the Council of CastIlle, on(" of the chief Jur1l>ts of hIs tIme. GIerke refers to rus Practtcae Quae.ltwnes (Ill the Opera ommta, pnnted at Frankfort, 1~83) CRUGER, J , Collegium PollttCum, Glessen, 1609. CUJACIUS (Cujas), J , 152o-g0, professor at Bourges, the greatest JUflst of hIS time. GIerke refers to hIS Paratttia to the Dlge.st and the Code, and Ius notes on the Instttutes DANAEUS (Daneau), L, 1530--96, French Calvlmst miDlster PolztlCe.l Chrzstzanae ltbn VII, 1596 (CIted 111 the Pans echtlOn of 1606). DOMINIS, M. A DE, 156&-1624, a DalmatIan, who, after bemg profe~sor at Padua and BrescIa, becdme ArchbIShop of Spalatro. He wrote a work De Republtca EccleSlastzca, and beIng anxlOUS to publI~h It, he took counsel WIth SIr Henry Wotton at Vr-Dlce, aJd proceeded to England, where he receIved preferment, and publIshed 111 1617 the first part of hIS ~ork. Another part was printed In England 111 1620, and a third part In Germany m the same year. The whole work mcludes tcn books and fills thrl"(, folIo volumes ERENBERGK, W. DE, Eberhard von WeyLe-, a Gelmal~Junst and statt'sman, 1553-1633 aTczter, who USl:"d the Latm pseudonym Waremundus de Erenbergk m some of hIS wntmgs. HIS Aulzeus polzttcus (Hanovl:"r. 1596), to whIch GIerke refers 111 note 6 to 14, was printed under the pseudonym of Durus de f'ascolo. (It IS mcluded In the Speculum, etc, nlentLOned above under CollIbus, H. a.) He used the other pseudonym, however, for a treatl1>e de regnl subszdlZs (Frankfort, 1606), whIch GIerke also quotes. FELDE, J. A, see Blbhography B. FELWINGER, see BIblIography B. FRANTZKE, G., 1594- I 659, German JUrIst and admiDlstrator. He wrote Commentanes on tht" Institutes (Strassburg, 1(58), as well as on the Dzgest (Strassburg, 1(44). FRANTZKEN . Gierke cites under thIS name a dIsquiSItIon de statu retpublleae mzxtae (or muto), prInted in Arumaeus (q.v.), and another de pote.ltate prznelpzs. (Should they properly be CIted under the name of F'rantzke: FRIDENREICH, Z. Polztzeorum lzber, Strassburg, 1609 GENTILIS, A, 1551-1611, professor of clVlllaw at Oxford, 1587-161 I. GIerke refers to hiS DeJure bellz ([588--9), whIch preceded by many years the work of Grotlus. 'GNEINZIUS, C, Exercztatzones polztzcae, WIttenberg, 1617-18. GRAS7WINKEL, DIRK, 1600--66, a Dutchjunst, who worked WIth GrotlUs and was associated tWith John de WItt. He wrote on behalf of the Venehan State, as
List of Authors Cited:
I50Q-I650
well as against Selden's Mare clausum. Gierke refers to his De Jure majestatis, the Hague, 1642. GREGORIUS, P, I 540 ?-g6 ?, teacher of law first at Toulouse (hence called Tholosanus) and afterwards at Pont-a-Mousson. De &publua Mn XXVI, I ')86, cited ill the Frankfort (? Lyons) edition of 1609. GREGORtUS DE V ALENTlA-See Valenu.l. GROTIUS, HUGO, 1585- 1645. DeJure bellt etp(J(;u, Pans, 1625, cited in the Amsterdam edltlon of 1702. De Impeno SUTnmarum potestatum etrca s(J(;ra, Pans, 1646, CIted ill the 4th ("ditIon, the Hague, 1661. GRYPHIANDER De CWIlz Soczeto.te (m Arumaeus, q.v ) HEIDER, W , 1558-1626, professor of ethiCS and pohtiCS at lena, and a follower of Aristotle. Systema phdosophzae.j)()lzllcae, 1610 (cIted ill the Jena edItion of 1628). HEMMING, N, 1513-1600, professor at Copenhagen, a follower of Melanchthon ,. De lege naturae apodelctlitl methodus, 1577, Cited In the Wittenbeig ('dltlon of 1652 HOBBE~, T., 1588- J 679, E/epJenJo phtlosoph1De de ewe, ongmaJJy pubhshed at Pans III 1642 with the tItle de ewe publIShed under the fuller title III the Amsterdam editlOn of 1647, which Gierke has used. Lemathan, 1651. a Latm ver~LOn was made by Hobbes for the Amsterdam editIon of hIS works m 1668, and Cler_ has used tIus versIOn. HOENONlU~, PH, 1576-1640, teacher of law at Herbom; 111 the SCI'Vlce of vailOUS German prInces. Dlsputatzonum Polztlcarum lzber, 3rd edition, Herborn, 1615 (a work of the nat:.lre ofa system of pubhe law). HOTOMAN, F, I 524-g0, French JUrIsconsult and Huguenot hved, after the Iuassacre of St Bartholomew, 1Il Geneva and BasIc. Francogallla, Geneva, 1573, CIted 111 the Franktort edItIOn of 1665 (Tramlated mto English In I:J I I by Viscount Molesworth, With a famous preface on the nature of \"hlg pnnciple,) Gierke also refers to his QyaestlOnes zllustres KECK~RMANN, B., 15~-I6Q(), professol at Heidelberg, and a follow("r of AriStotle Systema dzsclplznae polztuae, ] {anover, 1607. KIRCHNER, l-I , publIshed a numbe, "I works at Marburg, mdudmg one entitled Legatus (th~ nghts, dlf"mty and office of the Amba~sador, 1614). Gierke CItes hIS Respubllca, Marburg, 1608 Coryat's Crudztzes mtludes hIS oratIOn' In proiI~e of the travell of Germany m partIcular' KLING, MELCHIOR, 1504-71, JPf"',t' ..1 lecturer at WIttenberg EnarratlOnes zn Itbros IV Instttutwnum, 1542 KNICHEN, A , see BiblIography B KNIPSCHILDT, P , 1596-16')7; publICist and syndiC at Esslmgen, an impenal Free Town. Tractatus polltlco-.Jundlcus de Junbus et prwdegll r clVltatum lmperlallum, Ulm, 1657 KONIG ACles dzrputatlOllum polztzcarum, J ena, I G19 Theatrum polztzcum (n.d ). LAMPADIUS, J , 1593-1649, Junst and millister in the duchy of BrunswICk. De ]UnSdlctlOne zmpeTll Romano-Germanlcz 1620 Clretter. Conrmg (q.lJ), and later Kulpls (see Bibliography B), were concerned m the later editions of the work, publl!.hed under the tItle of De republzca Romano-Germamca L':PIDE, HIPPOLYTUS A (the pseudonym of B. Chemmtz), wnter and publiCISt, 1605-78, De-ratlOne status zn ImperIO nostro Romano-Germamco, 1640. (RatIO status here IS not rlUson d'ltat, but 'general prmclples of government'.) LAUTERBACH, W. A., 1618-78, JurISt and professor at Tubln~n. DtssertatlOnes
List of Authors Cited: 1500-165

aeademu:ae, 1694-. ComjJendJlPlI juns, 1679. Both of these works appeared posthumously. _ LESSIUS, L., 1554-1623, Jesuit, professor of philosophy at Douai, and afterwards of theology at Louvam. DeJustztta etJure, 1606 (cIted in the editIon publIshed at Antwerp in 1612). LIEBENTHAL, C., 1586-1647, professor of 'practIcal philosophy and rhetoric' at Glessen. Collegwm!Jolltteum, 1619, crted m the Marburg edItIOn of 1644. LIMNAEUS, J. L, 1592-1665, JUrIst, chancellor 10 the duchy of BrunsWIck. Gierke refers to Jus publt~um Impenl Rom -Germ. 1629-45. He aho wrote a commentary on the WahlJ..apltulatumm (CajJttulatlOTles zmperatOTUm), from Charles V onwalds, pubhshed ill 1651 at Stlassburg. LIPSllJS, J., 1547-1606, professor at Leyd{;,ll (WIth Scahger), and afterwalds at Louvam. PolItzcOTum llbn VI, Antwerp, 1589 (cited 10 the edition of 1604). (LlpSlUS advocated a system of one exclUSIve rehgIOn, and hiS pohcy for dIssidents was ure et seca ) . " LUGo, J DE, 1583-1660, SpanISh JesUIt. professor of theology m Rome, made cardmal ill 1643 (Qumme, first dl~tributcq 10 hl~ palate by the ]esUlt~, who had receIved it from South Amenca, was called poudre de Lugo.) De Justttta etJure, Cited. m the Lyons ('dltlon of 1670 MACHIAVELLI, N, 1469-1527. Il Pnnclpe, pubh~hed po~thumomly, 1';32 MARCA, P DE, 1594-1662, Frenrh canOnIst and b1Sh~ De concordza sacerdotu et ImpeTtZ, stu de ltbertatlbus eccleslae Gallu:anae, 1641 fint part, 1663 as a whole. MARIANA,]., 1537-1624, SpamshJesUlt, who from 1574 to hIs death hved and wrote at the house of hIs order In Toledo. De rege et regts mstttutlOTle, Toledo, 1599, CIted In the Frankfort edItIOn ot161 r. MATTHIAS, C. (member of a Brandenburg famIly;. CollegIUm poll tuum, Glessen, 161 I. Systema poizttcum, Glessen, 1618 MEISSNER, B, 1587-1626, professor of theology at WIttenberg. De !eglbus, Wittenberg, r616. MENOCHIUS,]. S, 1576-1655, teacher 10 the ]CSUlt Cotlege at Milan. rHzeroPolItzca, CIted 10 the 2nd editIon, Cologne, 1626 MILTON, JOHN, 16~74 Tfu! tenure of kmgs and magIstrates, 1648-g Euonoclastes (an answer to Ezkon BaszlIke), 1649 DifenslO pro populo Anglzcano (an answer to ~e Difenslo regza of Salmasius, q.v.), 1650-r Gierke utes the~e In the 1848 edItIon (London) of Milton's Prose Works. MOLINA, L, 1535-1601, a Spamsh Jesuit, who taught for many years at the Portuguese Univer~Ity of Evora De JustItIa et Jure, cIted 10 the Mainz edltlOn of 1614 MOLlNAEUS (Dumoulm), C., 1500-66, a famous French teacher oflaw and legal WrIter, who was for some tIme a refugee m Germany, at Tubmgen Commentart! ad Codzut1l (Tubmgen lectures), prmted 1604OBRECHT, G., 1547-1612, professor of law at Strassburg. De Justztla et Jure, no. 1 in SelecllSslmae dlSputatwnes, Strassburg, 1599. Secreta polttua, 1617. Cited in the Strassburg edition of 1644OLDENDORP, J., 1480-1561, a jUrIst who was for some time SyndiC at Lubeck and then professor at Cologne; afterwards settled at Marburg. JurIS naturalzs, gentzum et cwzlu uagoge, Cologne, 1539. GIerke also mentions a work in German, 'Counsels how one may mamtam good policy and or'der In towns and terrItories', Rostock, 1579. Oldendorp wa~ syndic at Rostock before he went to Lubeck, and th18 treatise on practIcal pohtlCS, published at Rostock,unay have been wntten origmally before he left Rostock in 1534.
List of Authors Cited: I500--I65 0
407
OLIZAROVIUS, A. A De Pohtlca hommum socletate, Danzig, 1651. The name suggestsea PolIsh ongm (OhzarowskI). OMPHALUS (OmphalIus). J., 150-67, German Junst. De cwIlI politla llbn Ill, Cologne, 1565. o SSE, M VON, 1506?-57. jUrist and admmlstrator m the Saxon electorate. Testamentum (treatmg of the dutIes 01 a sovereign), addres~ed to the Saxon Elector Parts were pnnted m 1607 and 1622, but the first complete editIOn was that of ThomaslUs. 1717 The' testament' was a regular genre In the sixteenth and seventeenth centunes. OTTO, D, 1600;>-00;>, German Junst DIHcrtatlO (m Arumaeus, g.D) an mutus dellLr relpublzcae status Tractatus polltlCUS de maJestate ImpeTlI et lmperantrs (Strassburg, 1623; De Jure publ;.co Romam ImpeTll, Jena, 1616 (the fint compendiUm of German publIc la",,) PAURMEISTER (Baurmelster), T VON, 1555-1616, Jurist and admmistrator, and a cntl(' , of Bodm. Commentanus .erum pohtlcarum et Jundlcarum De )url:>dlctlOne Imp Rom. hbn II, 16 I 6 REINKING, D., 1590-1664, lunst and admlru~trator Tractatus de reglmme saecular: et Fccleslastlco, Glessen, 1619 ROSSAEUS (Rose, GUIllaume), 1542;>-1602, preachl"r and almoller to Henn III, bishop of SenlIs, a VIOlent partIsan of the League and opponent ofHenn IV. Llber de Justa retpubhcqj chrzstwnae In reges ImplOs et haeretzcos auctorltate, Pans, 1590. Rossaeus, lIke Boucher (q v), IS a CatholIc monarcJlOmacJlus. SALAMON IUS, J. MARnJs De PnnClpatu hhTl VII, Rome, 1544, Cited m the Pans edItIon of 1578 Tins IS a work winch, m the profundIty of Its thought, de~erv('"s to b('" counted among ttfe claSSICS of the sixteenth century Glcrkl'" also nt("s hiS COmml"'nlaIy on the DlgeJt, Basil", 1530 SALMASIUS (Claude de ~aumalse), 1588-1653, French clasSIcal scholar, at one tIme professor at Leyden InVIted by Pnnce Charles 10 wnte a defence of lll~ tather Charks I DifenslO regta pro Carolo I, Nove-mber, 1549, Cited In the.Pan~ edltlOn r 1651. Milton, on the InstructIOn of the CounCIl of State, replIed In 111' Defenszo pro pojJU!n Anglzcano. SCHONBORNER, G, 1579-1637, Germ .:. JUrIst, and admimstrator m Sllesia. Polltlcorum lzhrl VII, 1614, Cited 10 the 4th edItIon, pnnted at Frankfort, lfu8 SELDEN, JOHN, 1584-1654. De)UTe naturah et .~entlum,)uxta dlsclplmam Ehraeorum, London, 1640. Mare Clausum Lu., :11, 1635. SOTO, D, 1494-1560, Dommlcan, teacher at the Umvenity of Salamanca. DeJustltla et)ure, [556 (CIted 111 the Vemce editIon of 1602). STRYK, S , see BIblIography B SUAREZ, F., 1548-[617, Je~UIt, professor of phIlosophy 111 Spam, one of the greatest thmkers of hIS order Tractatus de leglhuJ ac Deo leglJlatore, 16 I I (CIted III the Antwerp edItIon of 1613) TULDEN, T. VON, obut 1645, profe~~or at BOI' Ie Due. De Regzmzne CWdl, CIted 10 the Louvam ec:!ItIOn of hiS works, 1702 VALENTIA, GREGORIU~ DF, 1551-1603, SpamshJesUlt, professor of theology at Ingolstadt Commentam the%glCl, Ingolstadt, 159 2 V ASQ.UEZ, F., 1509-66, eccleslastIc-al wnter on natural law. C:ontroverSlarum Itlustnum alzarumque frllquentlUm lzhrz III, Frankfort, 157 2 VICTORIA, F., obut 1~46, Domlmcan. RelectlOnes tredeclm, Ingolstadt, 1580. An earher editIOn, Relectzones undeclm (de PoteJtate Eccleszae, etc.) had appeared in 1565.
List of Authors Cited: 1500-1650

VOETIUS, G., ]593-1680, Dutch mlillster, and afterwards professor at Utrecht. Polltica ecc!eslastlCa, Amsterdam, 1663-76, vols. I-IV. VULTEJUS, H , 1565-1634, jurist and classIcal scholar, professor ofJurisprudence at Marburg. Juruprudentlae ROTna1llle a ]usttnlano composl~ llbn II, Marburg, 1590. Gierke also refers to his Commentaries on the Institutes. WERDENHAOEN,J A, 1581-1652, a Gennan scholar, theologIan and professor, from Helrnstedt, who lived at Leyden about 1627-33, and wrote there some of hIS mam works; occupied afterwards in affaIrs at Bremen and Magdeburg, and in the duchy of BrunsWick. PolltlCa generaliS, seu Introductio UrlzversalH In umnes Respubllcas, Amsterdam, 1632. WINKLER, B, 1579-1648, taught at LCIpzig and Basle; afterwards syndIC at Lubeck, one of the early writers oq natural law. PnnapwruTnJUTlS llbn V, LeIpzig, 1615. . W1NTONENSIS, STEPHANUS (Stephen Gardmer), 14837-1555, Master of Trinity Hall, Cambndge, 1525--4-9, and a~am m 1553. bishop of Wmehe!>ter, 1531, doctor of CIVIL and of canon law. Oratw de vera oboeduntla, London, 1535 (cited by Gierke from Goldast's Monarchla of 161I, I. pp. 716-33). WURMSER . E:Jl.erclta/lOnes '. ZEPPER, W. Z., 1551>-1607, the first systemauc wntcr on the problerns of the constitutIOn of the Protestant churches, professor at Herborn, at the same time as AlthuslUs. De polltla ecclcszastlca, Herbor~, 1595 ZWINGLl, U. Z., 1484-1531 Glelke refers to hl~ ",,"arks, as t"dlt("'d by Schuler and Schulthess. See A Farner's monograph on Du Lehre von Klrche und Staat bel Zwmgll, 1930.
B. LIST OF AUTHORS CITED
16 50-1800
ACHENWALL, G A. (1719-72) [profesqor of law In the University of Gottingen, and a student of contemporary comparative polttll.S, who travelled in England and Holland, and was honoured by George III He pubhshed, III 1 74Q, an outlIne of contt>mporary polItlcs 1ll the greater European monarclues and repubhcs GIerke refers to one of hIs legal works], Jus Naturae, as printed m 1781, when the 7th oo!tlon appeared Thl~ contams (a) Prolegomena, 5th edition (first prued m 1758), (b) Pars prwr, 7th edItIOn (first prmted In 1750), and (c) Pars posterIOr, 8th edItIOn (first pnnted m 1750) ALBERTI, V. (163')-97) [Lutheran theologian, and profeqsor at Leipzig], Coml~mbumJuTlsnaturae orthodl'Xoe the%gzae coriformatum, Lt>lPZlg, 1678 [The work has been d~cnbed as 'an attempt to mterpret natural law as the orde'T pre'valhn~ In the' ,onglnal smless condItIon of man' ] ANDLER, F F. VON (161711703) [le('ture'r In law at WurzbUlg], ]unsprudentla qua jmbllca, qua /Jnvata, etc. 1670 BECCAR.IA, C B (I 738-q4) [an Itahan pubhclst, of noble famIly, who became a profe~~or of lav..and economIcs III Mllanl, De! dehUl e delle pene, Monaco, 17 6 4 BECKER, 0 H [~ometlme ReglCTungsrath m the prlllclpahty of Waldeck], Jus mundl uu vmdlrzae JurIS natur~ cllt>d III the' 2nd ed1tlOn, 16g8 (first pnnlt>d 1Il 1690) BECMANN, J C (1641-1717) [professor at Frankfort on the Oder, who wrote a HlftOTla orbls terrarum geographlca et cWlhs, and also hl~toncal works about the pnnupaltty of Anhalt Tht> works to whIch Glerke refers are his] 'MedllatlOnes pohtlcae, Frankfort, 1679, and hIS Conspectus doctrmae pohtlcae, 'Frdukfort, IGg]lt BLAClKSTONF, Slr W (1723-80), CommerztaTles on the Laws of England. 1765-69 BOnCLER, J H B (161 [-72) [Pf(),,~~or of hl~torv at Strassburg, an elegant Latmlst, and a da~sleal schohr a~ well a~ an hl~tonan and WI Iter on pohtlc!>. The work to ",,111ch GIerke n:crs IS h151 /nstltutlOnes pohllcae, ~tra~sburg, 16 74. BmuMER,J. H, 1674-1749 [pr')l," .. III the Ulllver~ity of HaIle, and onf' of the foremost s( holan and JUrists of 11I~ day, e~peC1ally In Clvii and ec( leslast!cal law HIS works on Jus eccleSiastIcum jJrotestantzrlZlm and on Jus jJarochuzle exercls("d a gredt IIlfluence Glf'rke C1te~ hIs] /ntroductlO zn JUS publicum umvenale, In the Prague edition of 1743 (first pnntcd III 1709). [The newly founded Umverslty of H"llc had a flounshmg school of law III the fir~t half of the f'1l:{hteenth century: see Gundlmg, Hemeccius, NettdbLadt, Thomasius and Wolff Infra ] BOSSUF,T, J. B , 1627-1704 [bishop of Meaux]. Polztlque tm!e des propres paroles de l'ecnture Samte, Pans, 1709 (CIted from hIS (Euvres completes, Tome XVII, Pans, 1826) CELLARIUS, B. [I b 14-89, preacher and professor of theology at Heimstcdt. BC&ldes a theological work, on the conlrovenlcs between the churches of the Augsbu'g ConfesSIOn and the- Roman, he wrote Tabulae ethlcae pOlltlCae et phYJlCae The work to whIch Gierke refers IS] Pohtlca succlncta, lena, 16')8 (CIted in the I I th edItiOn, of [7 [ I).
List of Authors Cited: I65D-I8oo

CLASEN, D., Pohtu:ae compendium SucclTutum, Helmstedt, 1675. [Clasen also wrote a work De rehglOne polltica, Magdeburg, 1655. He also wrola on the 'theology' and 'oracles' of the 'Gcntiles'-I e. of the anCIent world.] COCCEJI, H DE, 16-17IC) [a JUrist who succeeded to Pufendorf's chair at lIeldelbf'rg, but Jeft HeIdf'1bel gIn 1688, and became professor at Frankfort on the Oder In J690 He exercised an Influence on the study both of natural law and ofpubhc law. Gierke refers to hi,] ProdromusJuTls gentwm, Frankfort, 1719, and Hypomnemata JUTIS ad serum lnstltutlonum Justin, Frankfort, 16g8. COCCEJI, S. DE, I G79--1755 [third son of H de CocceJI, at first, hke his father, a proff'ssor at FrankfOI t on the Odf'r, but afterwards busIly occuJ)led in JudiCial activitIes and reforms m Prussia under Frt"denck Wilham I and Fredenck II Gierke refers to thrce of.hls wrItmgs] DlsputatlO de jlnnClplO Jurts naturalzs umco, vero et adaequato, Frankfort, 1699 La 'dIsputatIOn' for the doctorate, m whIch he expoundl"d his father's Ideas on natural law, al> based on the Wlll of God As hi.!. father had n~ver pubhshed hIS VIews, (except m lectures, thl~ DlSputatlO fir,t gave them prommenc("], Tractatus Juns gentium, Frankfort, J 72, NOlJUm systema ]IHflttae natura/IS et Romanae, 1740. [The 1740 editlon IS actually calkd Elementa Ju.ltlilae, etc. the tItle Novum systema IS first used ill a la ter reprmt of 1744] , CUMBERLAND, R., 1632-17oq [really 16'~I -1718 Cumberland wa~ a member of Pepys' college, Ma~dalene, and a fl lend of Pep)i~ he became bl.!.hop of Peterborough m 1691. lit' pubh,hed lJl 1672 his De leglbus naturae dlSquzSlflO philosophlca, dedlcatt"d to another of IllS MaKdalene fr]("nds, one of the great lawyers of the reign of Charles II, Sir Orlando Bndgeman. Thework IS an answer to Hobbes. on UIIhtlnan hnes. Gierke ote.!. It a,J De legzhus naturae, 2nd editIon, pnnted at Lubeck and Frankfort, 1683 [The book was translated from the Latm by Barbeyrac (for whom see under Pufendorf, znfra), Wlth not{'S, 1774] DARIES,.J G, 1714-91. [He became professor of moral and pohtlcal phllo~bphy at Jena in 1744 From Jena he moved to Frankfort <m the Oder In '763, where he held the chair of law tIll hiS death He was a volummous wnler, who publIshed works on metaphyMcs and ethiCS as well as on law and pohtlcs. Gierke refers to hiS] lnstltutzones JUllsprudentlae unweTsalzs, Cited In the 7if1 editIOn, J ena, 1776 (first publIshed III 1746) EHRENBACH,J. N. MYLER AB, 16[0-77 [a man of affairs, as well as a student of polItlcs, who plaYf"d a considerable part in hl~ 11me. He was deeply versed in the public law of the Empire. In 1656 he had publIshed an Outlzne rif the mazn ".ffhts rifthe Pnnces and States qftlze Empl1e, whKh attained great vogue Later, he planned a larger work, in a number of parts, under the tItle of Opus de Jure publiCO Impelll Romano-GermantCl. The work to which Gierke refers IS the 7th part of thIS opus, deaLmg Wlth offiCials, magistrates and their assistants, under the tltle of] HyparcilOlogta, Stuttgart, 1678 FELDE, JOHANNES A [a CrItIc of Grotius, and also the wnter of a tractatus de peste], Elementa Jurzs umverSI et In speczeJUTls publzcl Justzmanez, Frankfort and Leipzig, 1664. FELWINOER, J. P. [? professor at Altdorf c. 1650-75. acted as praeses at dISputations on pohtics, in the fashIOn of the day], DlSsertatlOTleS politzcae, Altdorf, 1666. F~NE.LON, F. DE SAUGNAC DE LAMOTTE, 1651-1715 [tutor to ~ Dauphin under Lows XIV, and afterwards archbIshop of Cambra!. Gierke refers to an] Essaz SUT le /puvernement CIVil, selon les prlncipes de Fbzelrm, srd edltlon, by
List of Authors Czted:
1650-1800
4I
A. M. Ramsay, London, 1723. [Fenelon's own wrItmgs are the Telimaque 0 1699, and the Dzalogues des morts, composes pour l'idw:atzon d'un prmce, first publIshed m 1712, and republI~hed in an enlarged edlhon by Ramsay In 17 18.] FERGUSON, ADAM, 1723-1816 [professor, first of natural pllliosophy, and afterwards of moral phIlosophy, at Edmburgh]: Essqy on CWII SOCiety, 1766 ; PrincIples of Moral and PoZztlcal Scunce, [' bemg chiefly a retrospect of lecturl"s dehvered m the College of Edmburgh '], 179 2 . FICHTE, J G, 17G2-IB14 [professor of philosophy al lena, 1794-1799, dismissed for hIS Vle-WS, after Its foundatlOll In 1810, Rector 1Il 181 I- 12 of the UllIversity of BerlIn] Gierke refers to I. Flchte's Collected Works, In th~ Berlm editIon of 1845~, and therem to the followmg work~' (a) ContnbutlOns to the JustificatIOn if the optnwn if the Pubhc on the French ... .RevolutIon, 1793 (W01k., VI, pp 103 sqq.), (b) Foundatwns qf Natural Law accordml5 to the pnnclples if Scientific Theory, pubhshed m 1796-7, at Jena and LeipZIg (Works, III, pp. I sq.); (c) A System of Ethuaf Theory accordzng to the Pnnnples if Sczentific Theory, 1798 (Works, IV, pp I sqq ) ; (d) The Self-contamed CommeTClal State [Der gesddossme Handelrtaat], pubh~hed 4n 1800 at Tubmgen (Works, 1II, pp 387 sqq ), (e) The FoundatIOns of the Present A.E:e, lectures delIveIed III 184-5, pubhbhed at Berlm m 1808 (WorAs, VII, pp 257 sqq ), (f) Tile Theory of the Statl', or the lUlatlOll of the Pnmltwe State to the Law of Reason, lecture~ dettvered m IHI3, fIrst publIshed at Berlm m 1820 (Works, VII, pp. 367 sqq ) II. Posthumous Works, publI~hcd III Berlin, 1834; espeCially the work entitled A System if JUTlsprudence, lecturl"~ delIvered III 1812 (m II, pp 493 sqq) FlLAN<JoIERI, G, I 762-a6 [an ItalIan publIcI~t, of noble NeapolItan famIly, who contmued the work of the s(.hool oflegal and polItical philosophy at Naples mspired by VICO]. La SCUTlZW del ~ !cglSla;;;zone, Naples, 1780 FILMER, Sir R. [clre. 1588-16')3, a Kentlsh Royal:u;t who published m 1648 The Anarchy if a LImIted or MIxed Honarehy, attackmg the theory 6f Plnhp Hunton's Treatzst' of Monarchy of 1643, along WIth thl" wntmgs of Grotrus, Hobbes and MIlton It is cun", m thiS connectIOn, to notIce (I) that Locke seems to owe some of hiS theory to Hunton, and (2) that Locke, very naturally, seeks to prepare the way for hl~ own theory, III the Second TreatIse, by attackmg Filmer m the FIrst. GIerke refl"rs to the work by whIch Filmer IS best known], Patnarclla, publIshed posthumously m 1680. FREDERICK II [King of Pruss] ii], I:' I ';/-86 [Gierke refers to three of hIS writmgs ] (a) ConsuUratlons sur l'etat present du corps poMlque de l'Europe, 1738 (Euvres VIII, pp. I sqq.); (b) AntlmachzaudlL, 1739, edited by Voltaire 1740 (Ibid VIII, pp. 59 sqq), (c) Essal sur les formes du gouvemement et sur les devOIrs des Souveralns, 1777 (IbId IX, pp. 195 sqq ). GUNDLINO, N. H, 1671-1729 [the son ofa clergyman, tramed for the Church, .who turned to law under the influence of ThomasIUs, and became Ultimately profess.r of natural and internatIonal law at Halle. He wrote a great number of dissertations and compendia-partly, It IS said, to escape from the dIStractIOns of an unhappy marrIage. GIerke refers to].
412
(a)
Ltst
of Authors Clted..
I65D-I800
as printed In the 2nd edItion (Halle and Magdeburg, 1728' the 1St editlOn had appeared In 1714); (h) A DlSCUTSUS on natural and international law [pubhshed posthumously, as many of lus- DlSCUTSUS were1, Frankfort, 1734; (c) Exercltatwnes academlcae, more espeCIally' (I) Exerc. lV, pp. 155 sqq. (entitled. Status naturalls Hohhesil In corpore JUTtS CZVIllS difensus et difendmdus, and belongmg to the year 1706) ; (2) Exerc XVI, pp 829 sqq. (De unlVersltate deltnquente l!Jusque poems, 17 2 4). REINCKE, F.J., SyrtemaJuns publtci unlversalzs, 1765. [ThiS IS the only mformatlOn whICh Gierke gives. The Allgemeine Deutsche BlOgraphle gIVes an account of F.]. HeInke (1726-183), a SIlesian who studied at Prague, where he became dIrector and PreSident of the Law Faculty--eventually enteung the service of the ~overnment m Vienna m 1767 But the BlOgraphle does not mentlOn any SystemaJuTls as havu>g been pubhshed by h.m~] HElNECClUS, ]. G, 1681-1741 [professor of Jaw at Halle, and elsewhere, and one of the greatest of the German JUrIsts of t,he elghteC'nth century Gierke refers to three of hIS works]' , ( I) Elementa jUTlS naturae et gentwm, fir!>t pubhshed 111 1737 (prmted m vol 3 of Opera omllla, Geneva, 1741 onwards) ; (2) PTaelectlones academzcae zn Hut;o7lls Grotzz de ,.;ure helll et pacH lzbros, publIshed In 1744 (Opera omma, VllI, I), (3) PraelectlOnes academlCae In S PufendOTfil de offiCIO homz7lls et ClUZS lzbros, 2nd (xhtlOn, 1748 HERDER, ]. G, 1744-1803 LGerman cntic. man of letters, and collector of Volks/zeder GIerke refers to hIS] Ideen ';:UT Geschlchte der Mensch/zezt, 1784-5 (m hIS Collnted Works 171 Phllosoplz.:v and HlJtory, vol~ IV--Vll) HERTIUS,] N., 1652-1710 [one of tbe Jeadmg Junsts of Germany In the seventeenth century, and professor of law at Gles~en Glel ke refers to] . (a) Elementa prudentzat! czvzbs, 1689 (CIted In the 2nd edItlon, Fran1fort on the Mam, 1 702) , (b) Commentatwnum atque ojJusculorum nol.}], as publIshed 10 1737. at Frankfort on the Mam (the Items had been first pubh~hed in 1700 and 1716). HOFFBAVER, J C [1766-1827; professor of phIlosophy at Halle], NaturTeclzt aus.... dem BegT!De der Reclzt\ entwukelt, 1793 (Cited m the 3rd edItIOn, Halle, 1803). HORNIUb, J F., 162D-7o? [not mentIOned In the German or Dutch NatIOnal BlOgrap]ues GIerke refers to two works I: De subJectoJUTlS naturalls, Utret.ht, 1663; PolztzcoTum pars archztectomca, Utrecht, 1664 [reprInted as Archltectomca de Cwztate, With note~ by S. Kuchenbecher, Leyden, 16991 HUBER, U, 1636--g4 [a Dutch JUrIst of emmence, prof("ssor at Franeker In FrIesland1 (I) DeJUTe cWltatls, 1674 (CIted In the Franeker edition of 1713), (2) Pr(1lectwnum JUrzs ClVzlzs tomz III, 1666 (Cited 10 the LeIpZIg edltlon of 1735) ; (3) Instltutzones jurzs publzcz, In Opera m17l0Ta, I, I (the Utrecht editIOn of 1746) HUMBOLDT, W. VON, 1767-1835 [thInker and statesman; Prusslan mmister of education, 189-11 ( z) Ideas for an essay on the llmlts rif the actlVZry rif the Stat.. 1792 Parts pnnted In Thalza [SchIller'S LeIpZIg magazme], 1792, and In the Berlm Monthly, 1792, publIshed complete, BresJau, 1851.
Jus naturae et gentwm,
List
of Authors Clted: I65O-IBoo
HUME, D., 1711-76 [Essqys Moral and Political, 1741-2. Gierke refers to the edltlo~ of the] Polzmal Essqys, translated Into German by C. J. Kra us, Komgsberg, I B13 ICK8TATr, SA., 172-76 [a Junst In the Bavarian serVIce; for some time professor, at Ingolstadt, 01 public and InternatIOnal law and the law of nature, under the style of JUS oeconomlcocamerale] , Opuscula Juruilca vanl argumentl, vol I, Ingolstadt and Augsburg, 1747; vol. II, Mumch and Ingobtadt, 1759 JENA, G VON, 1620-1703 [a Junst In the servIce of the Grt"at Elector and hl~ successor, for some time professor at Frankfort on the OderJ, CollegzumJuTls publICI, Frankfort on the MaIn, 1658 (It also appeared as Fragmenta de ratzone status, 1657) [A st"nes of dissertatIOns J ]USTl, J. H G. VON, 1720-7 r [prof~or at Vienna of' applIed polltlCS', afterwards m the Prusslan servlCt"] . (r) Thr .Foundatwns of a good gOlifTTlment, m five books, Frankfort and LeipZig, 1759; (2) The Nature and Bezng States, Berltn, Stettm and LeipZig, 1760. [The work on apphe-d pohtlcs for which Just! wa~ best known was entItled, The Bases qf the piJwer and Jirofpenty if Stater, or a detazled account if the whole sczence of poluy (Polzzczwzssenschaft), of which vol. 1 appeared m 1760, and vol. 11 In I 7b But thl~ was only one of a con~lderable number of pohtKal wntmgs-among them the two which GIerke clte~. Just! had a vaned and watIdt"rmg C<lleer, whIch led him InCidentally mto the management of mmes, but he- found tIme to WrIte a great number of books, and hl~ fnends called 111m the Buffdb of Germany] KANT, I, r 724~r804 [professor of logl(' at KOIllg~bergJ Collected Works, m chronologlC"al order, edlteod by G Hartenstcm, LeipZIg, and e~peclally
rp
I.
(I) On the ~a.ymg, ' fhat may be n~ht In theory, but It lzaJ no value In practuc', 1793 (Worl.s, VI, pp 30':\ sqq ), (2. Po Jie/ual Peac", 1705 (Ibzd VI, PP 405 sqq ) , (3) Jtfl'ta/>/ZYJlc of Aforaltty (IbId V1I, pp 1 sqq), contammg the 'Meta-
phySIcal Elements of J ull~prudence', and the 'MetaphysIcal Ekments of EthiCS', which appeared separately m 1797 and were put togcther in one volume In 1708 " [In Enghsh, see T K Abbott, Kant's Cntlque if PractIcal Reason, and other
works on the theory
rif Ethlls.l
KESTNER. H. E, 1671-1723 [professor of law at Rmteln, near Mmdcn]' ( I) :Jus naturae et gent! um, ex IPSIS .font!bus ad ductum Grotl! Puftndorfil et COCCC]I de7'lvatum, Rmteln, 175. (2) Compendl1lm)uns umversz, Rmtt'ln, 1707 KLEIN, E F, 1744-1816 [a Jun~l who took a considerable part m the development of PrussIan law towards 1800, and also lectured at thc Umverslty of Halle, r791-180IJ, Short Essays, Hallc, 1797 (the Essay 'On the nature of CivIl Society' IS In n, pp 55 sqq.) KNICHEN, R G [died In 1682, was tht' son of A Kmcht"n, who had been a professor of law, and had defended the cause of the tern tonal pnnces against the towns He- wrote] OpUf polztzcum, Frankfort on the Main, 1682 KdITTMAYR, W X A. VON, 1705-90 [Bavanan State-Chancellor, and codlfier of tht' law of ilavana], Outlwe l!f general and if German publIC law, Mumch, r77 KULPls,j G., I 652-g8 [professor ofpubhc instItutIons and pub~c law at Strass-
Lzst of Authors Cited:
1650-1800
burg, 1683-6; afterwards In government serVIce in Wurtemberg], DisslTlottones tKademuae, StraMIburg, 1705. LEmN1z, G. W., 1646-1716. A. Opera omnia. ed. Dutens, Geneva, 1763-the various essays on law and politIcs, in IV, 3, pp. 159 sqq., mcludmg' (I) Nova methodw dzscendae docendaeqUL JunsprudentUll!, [667; (2) Observatum~s de pnTICJPtojUNS, 1670, (3) Momta quaedam ad S Pufendorfllpnnclpla, (4) De suo codlce gentIum dlplomatuo mamla; (5) Caesanm-FurJleneTll traclatus de jure suprematus tK legatlonum PnnC"Ipum Germanlae, 2nd edItIOn, 1678; (6) Spemnm demonstrattonum polttlc.arU1Tl pro ellgendo Rege Polonorum. B German Wntmgs, edited by Guhrauer, 183B-4o--the 'Fragment on the Law of Nature' m I, pp. 414 sqq LOCKE, JOHN, 1632-174: (I ) Two treatIses on Government, London, 1690; (2) Letter on ToleratIOn [first publIshed In Latm In 1689, and then In an EnglIsh TranslatIOn In the same year, other letter!> added, 1690, 1692 and 1705J. CIted from the Works, as publIshed In London, 1801, vol V, pp 207 sqq. and vol VI. DE LOLME, J. L, 1740-1806 [a Swiss politIcal wr1tler, mamly on English politIcs], La ConstItutIon d'Angle/erre, 1771, translated IOta EnglISh, 1775 . LUDWIG, j P. VON, 1668-1743 [professor of philosophy, and afterwards of hIStory and public law, at Halle], OpU.>cula ml1lOTa, Halle, 1720. MABLY, ABBE DE, 170g-85 [French publIcISt]. (I) Doutes proposes aux phdosophes economlstes sur l'ordre na/urel et essentul des sOC"littJ POhtlQULs, The Hague [a \\-ork dIrected agaInst Meraer de la RIvIere, q v ] , (2) De la Leglslatton, ou des prlTlClpeS de lOI, Amsterdarr, 1776. MEVIUS, D, 1609-70 [jUIlSt, professor at Greifswald, where hIS father and grandfather had both been professors before hIm, some-time syndIC of Stralsund, and also rn the servIce of 5weden and Mecklenburg], Prodr017ULf jurlSprudmtwe gentlum communIS, Stralsund, 167 I. MICRAELIUS, ]., 1597-1658 [professor at StettlO; hIStOrIan of Pomerania], RegIa Polttues Scuntla, Stettm, 1654. [In 1647 there had already been publIShed, at Stettrn, J MICTaeln aphonsml de regta poiltUI Jelen/ttl ] MONTESQUlEU, C. DE SECONDAT, Baron de la Brede et de Montesquleu, 16891755 [president of the court at Bordeaux], Espnt des lOIS, 1748 (CIted m the Amsterdam editIon of 1749). MOSER, F. K VON, 1723~8 [pubhclst and statesman, engaged m government servIce m South Germany, and for some tIme also In AustrIa) Master and Servant [I e the sovereign and hIS mmister], desCTlbed with patrlotu freedom, Frankfort, 1759 (wntten In 1758); On the German natIOnal spmt. 1765, On GOlJe1'nments, Govermng and MlmsterJ. materud [literal1y 'rubbISh '] for ImprovIng the way of the coml1lg century, Frankfort, 1784. MOSER, JUSTUS, 17200-94 [lawyer and statesman m the bIShopnc of Osnabruck, where he was advocatus patriae and secretary to the order of Knrghtlj a popular author, compared by Goethe to BenJamm Fr'"\nkhn]: HIStory of Osnabruclr, Osnabrock, 1768; Patrlohc PJuznta.nes, edIted by Ius daughter, Berlin, I 77ftL86, MIScella1lf!0us Wntl1lgs, edited by NIcolai, Berlin, 1797-8.
List of Authors Gzted: I65G-I8oo

MUELDENER, J C, the elder Poslttonn lnauguraies, 2nd e<htlOn, Halle-Magdeburg. 16g8 (first prmted m 1692). MULLI.-RUS, J. J. [',) Professor UtriUlique Juns at Copenhagen], Instttutwnes Pohtuae, Jena, 1692. NATIONAL AssEMBLY-Proceedmgs of the French N.A. m regard to the confis<..atlOn of ecclesiastical property, October 10 to November 2, 1789; Gcu:.ette Natwnale QU Ie Momteur unwersel (par l'an IV de la Repubhque. pp. 29 1 sqq) Cf Hubler, Der Ezgentumer des Klrchmguts, pp. 46 sqq., 56 sqq Paul Janet, Revue der deux Mondes, Tome 23 (1877), pp. 334-49 [GIerke's reference to the Gazett.e Natwnale IS puzzhng When he adds the reference to l'an IV, IS he thmkmg of an editIOn, ~uch as appeared at MIlan, 1802-5, whIch con tamed m 74 voh the Gazette from May 5, 1789, to the 28th of Nnrlhe, year IV',)]. NETTELBLADT, D., 1719-g1 [profes~or of law at Halle, and one of the greatest tead!&~ of law In later elghr;enth-ccntury Germany]' Systema elementare umverrae JUTlsprudenfwe naturalts, Cited In the 5th editIOn, Halle, 1785 (first pnnted m 1748 the present arrangement was first adopted In the 3rd edlhon of 1776); Systema elementare Jurtsprudenttae posttwae Germanorum generalis, Halle, 1781 .[Nettdbladt was a pupIl of Wolff at Marburg, and followed lum to Halle J PEREZIUS, A , 1583-16,2 a Spamsh Junst, settled m the Netherlands, who was professor at Louvam from 1614 onward~], Jus publzcum, quo arcana et Jura Prmczpts exponuntur, Amsterdam, 1657. PLACCIUS, V P, -1642-99 [a German scholar from Hamburg, who studied m German umversltles and Ita~, and afterwards practISed and taught law In hIS natIve city. He was a man of means, who corresponded WIth varIOUS sdlOlars of IllS day, and wrote on a vanety of subjects], Accessio1les Jurts naturalls, J.'rwatl et publzcl, Hamburg, 1695 PRA~HIUS,J. L., 1637-90 [a CItIzen of Ratlsbon, where he held high office and ,.,as deep In all WVIC affairs phIlologist, wnter of verse, and dramatISt, as well as a writer on laws and polItiCS], DeSIgnatIO JUTtS naturalls ex dtsctpl17Ul Chrlstlanorum, Ratn,bon, 1688. PUFENDORF, S, 1632-g4 [pubhcISL, JUrIst, and histOrIan. taught at the UIlIvcrslty of Heidelberg, 1661--11 professor m Lund, on the lO"hation of Charles XI of Sweden, 1670 onwarru. hlStonographer at Stockholm In 1677, and at BerlIn m 1688 C ,.. '1 the greatest ~cholars of his century, and one of the greatest figures In the history of natural law] . (I) Elementorum]unsprudentzae unzversalts ltbn II, 1660 (cIted m the Frankfort and J ena editIOn of 1680) , (2) E>evermus de MOIlzambano [pseudonym* adopted by Pufendorf to cover his expc)',ltlon and cntIque of the pobtlcal pOSitIOn of Germany], De statu Impern Germamcz, Geneva [really the Hague], 1667 (CIted m the edition pubhshed .1t 'Utopia', 1668). There is a new and Critical editIOn by F Salomon, Weimar, 1910, m Q.uellen und Studun zur Verfassungsgeschzchte der D.utschen Relchs, III, 4, :3) De Jure naturae et gentIUm llbn VIII, 1672 (CIted m the Frankfort and LeIpZig edition of 1744, WIth notes by Hert and Barbeyrac), :4) De offiCIO IlOmmlS et CWlS secundum legem natura/em llbn II, Leyden, 1673 (cIted ill the Leyden edition of 176q, WIth 'obsen atIons' by TItIUS, CarmIchael, Treuer and Barbeyrac-); :5) DlSsertatw1Ies academlcae selectwres, Upsala, 1677. J * cr. Caesarwus-Furstenenus above, under Lelbmz
Lzst of Authors Cited:
1650-1800
[Barbeyrac (1674-1729), a Huguenot who taught in Berlin, Lausanne and Gronmgen, translated into French, and annotated, not only (~ and (4) above, but also GrotlUs DeJUTc bellz etpacu.1 [Pufendorf's De habztu reltgzoms Chnstzanae ad llltam civilem llher smgularu, 1687, may also be mentioned, as dealing with the relatIons of Church and State and the problem of toleration at a hme when the Revocation of the EdIct of Nantes had disturbed men's mInds It IS almost contemporary WIth Locke's Letter on Toleration, which deals With the same problems In the ~ame atmosphere] RACHEUUS, S, 1628-91 [Junst and pohtlcian. professor of natural and InternatlOnallaw at Klel after 1665], InstltutlOnumJurzsprudentzae lzbn IV, Kiel and Frankfort, 1681. DE LA RI"lbRE, P. F. J H. LE MERCIER, 1720-94 [a disciple of Quesnay, and one of the PhyslOcrats1, L'ordre naturel et essentlel des sonetis polztlques, Pans, ROUSSEAU, J. ]., 1712-78 (I) Dlscours sur l'ongme et les fondements de l'migalzti parmi les hommes, Pans, 1753, (2) Du contrat SOCial, ou jJTlnczpes du drOIt polztzque; Amsterdam, 1762, (3) LeUres icntes de la Montagne, Amsterdarn, 1764. (Cf. C. E Vaughan, The Polztual Wntmgs of Rousseau, <::;ambndge, 1915] SCHEIDEMANTEL, H G [173g-88, prokssur of law at Jena and Stuttgart], Publzc Law, treated accordmg to reason and the customs r!f the leadmg natIOns, J ena, 1770-73 SCHLOZER, A. L. VON, 1735-18og [travelled m Sweden and Russia' professor at Guttingen pubhcist, hIStOrian and educatIOnalist, who, znter alia, contmued the work of Achenwall on I:"ontemporary politics and InstitutIOns In hIS Theone der StlltZJtzk of 1804 GIerke refers to hIS] Gerural Puhlu Law and the Theory r!f Constltutzons, Gottmgen, 1793 SCHLOLER, C. VON rI774-1831: eldf'st son of the forego',ng, professor ('f the pohtrcal S<.lences at Moscow, CLrc 1790-1827, lecturer at Bonn, 1828-3IJ, Kleine Schriften, Gottmgen, 1807, especIally. (I) De Jure suffraglz In sQCzctate aequalz, Gottrngen, 1795, pp I I sqq , (2) 'Przmae lmeae scientzarum polztzcarum, pp. 81 sqq [Moscow, Jl:l02.] [His chief Importance perhaps hes m the field of pohtkal economy. He pubhshed at Riga m 1805 and 1807 two volumes on The Pnnclples (if Polztlcal Economy or the Theory of Natwnal Wealth.] SCHMIER., F., 1680-1728 [canonIst. professor and rector of the U nIVecslty of Salzburg prior of Feldklrch]: JurISprudentia publICa umversallS, Salzburg, 1722; Junsprudentw publICa zmpenz Romano-Germamcz, Salzburg, 1731 ScnoENAu, F. A. Pelzhoeffer dc, Baron, Arcanorum status lzbn X, Frankfort, 17 10. SECKENDOR.F, V. L VON, 1626-g2 [hIstOrIan and ducal hbranan III the duchy of Gotha, afterwards chancellor m one of the Saxon duchies, a dISCIple of BOf'cler ('I v) at Strassburg]: The German PnnczjJaltry, 1656 (Cited m the 5th edltlon, 1678), The ChrutUlTl State, 1685, German Addresses, 1686. SIDNEY, ALGERNON, 1622--82, Discourse.! concernzng government [an answer to Filmer's Patnarcha, wntten shortly after Its publicatIOn m 1680; 61"8t pnnted m 16gB], Cited in the EdInburgh edmon of 1750" Su'!.YES, E., Abbe, 1748-1836. [HIS wntmgs, includmg his Qu'est-ce que le Tzers Etat and his, fJbservatlOns sommazres sur les buns iccle.!lastzques of 1789, are Cited
176 7.
List of Authors Cited: r65o-r800
417
by Gierke in a German translation.] Poldual Wntmgs, a complete collection by.#le German translator, 2 volumes, 1796. SPINOZA, B., 1632-77. Tractatus Theologuo-polJtuus, Cited In the Hamburg edItion of 1670; Tratlltus Polztuus, in the Opera Posthuma of 1677, pp. 267 sqq ; Ethua, zhuJ., pp. I sqq. [The best modern edItion lS that of van Vlotea and Land, 1895'] {STRYK, S., 16400-1710, professor at Frankfort on the Oder and afterwards, from 1692.to his death, at Halle, where he was also dean of the Faculty of Law and Rector of the Uruverslty. HIS cruef work was !us UJUS modemu.s Pandectarum. GIerke refers passzm to hlS DlSsertatllmes.] THOMASIUS, C., 1655-1128 [professor at LeipZig and afterwards at Halle: a phliosopher and a man of general culture as well as a famous JurlSt, who advocated the use of German Instead of LatIn, and attacked Anstotle and scholastiCism. H1S name 18 connected With the begmmngs of the Urnversl.ty of HallCf and WIth Its legal fame]: (I) InstztuizonuJunsprudentzae dIVI~ae, written In 1687 (cited In the Frankfort and LeIpZig editIon of 1709), (2) Fundamenta JurIS naturae et gentium ex sensu communi deducta, Halle and LeipZIg, 1705, (3) DlJsertatzones, 4 volumes, Halle, 1723. TITIUS, G G, /661-1714 [lectured at LeIpZIg on law from 1688, but dId not become Professor un'hl I 7 Io. a pupil of Thomasius] . (I) SpeCimen JurIS publzcI Romano-Germanlcl, 1698 (Cited in the 2nd edItIOn, LeIpzIg, -1705); (2) DlSsertatzones Jundlcae, LeIpZ, 1729. TURGOT, A. R. J., baron de l' Aulne, 1727--81. ArtIcle on Fondatzon In the Encyclopedze, vol. VII, 1757, Lettres sur ia toleranee [? 1753], in (Euvres, Pans, 18#, 11, pp. 675 sqq VICO, J, B., 1668-1744 [philosopher, lustorlan and JurIst, professor at Naples, wh~re he mspIre~ school oflegal and pohtlcal prulosophy. Gierke refers to] De unlveT.n Juns uno prlnelpta tit fine WlO, Naples, 1720; PrznczPI dl una sctenza nuova rntorno alla commune MIura delle naZIanz, Naples, 1725 (cIted In the MIlan edItIOn of lllS Opere, ~ 836, vols m-rv) . .vvACHLER, J. G., OrlglTUIs JUrzs natural,-" slVe de JUTe naturae humanae demonf/Tatwnes mathematlcae, Berlm, 1704. WOLFF, c., /679-1754 [phUOSO:'~lU ,HathematlcllUl and Jurist. professor of Mathematics and Natural PhIlosophy at Halle, 1706-23, after troubles there, professor at Marburg, but restored to Halle by the action of FrederIck the Great In 1740 as professor ofJus naturae et gentIum, a friend of Leibniz, and one of the great figures In the hlStory of German phJ1osophy. Gierke refers to his] (I) Jus naturae methodo sczentifia pertrtUtatum, Frankfort and LeipZIg, 1740-50 ; (2) InshtutlO1'l8SJuns naturae etgentlum, Halle, 1750. (In German, under the title of Grwuisiit;;e des Natur- und Voikerrechts, 1754); (3) Rahonal Thoughts on the socIal life of mankmd, and parttcu{arly on the Commonwealth [von dem gememen Wesen], Halle, 1721.
INDEX TO GIERKE'S TEXT AND NOTES

References to the notes are Absolutl.t theory of pohncs (see also Ruler) 41,44,45, 139, 141-8, 166 231 -2, 265-6, 3:]6, 340 Achenwall. 12&, 148, 157, 178.291,320, 32 J , ,,22,316 ,317,381 ,387,388,390, Acts of corporate bodies
ID
Jtalu figures
391
187-8. 271,
Jt/g-go
AlthUSIu~ 37,45,46,48,51,53,64,70-7,
lOb, 164
232, 240, 241, 243, 244,
246, 247-g, 255-6, 25&-7, 277--8,341 Anstocracy 49 311,337,342,346 Anstotle 36, 46, 155, 163' 260-1, 266,
269,30 4 ArlllSaeus 36, 60, 67 2jO, 266, 270, 272, 355 AssOClatlons (natural-law theory of) 629 2 , cf also 162-98' 279,320,331-2, j67If., 372-3, 375, 37!)-8r. See also ClaSSlficatlOn AuctoTttas (Hobbes'~ theory of) . 82
Barclay. 231, 265-6 BeccarIa 106. 2gB BeIlarmme. 87' 281&sold. 37,67,86, 155 Beza (de Jure maglStratuum) 231, 248, 255 Bill of RIghts 143.309 Blackstone. 144 Bodm. :n, 40, 59, 64-7. 231, 250, 251, 265, 26!r71, 272 , 274,275 Boehmer 123,144,155,171-2,173,174, 183, 185 3 18, 338-g, 340, 363, 375-7, 3 85,386,397 BormtlUs 67 265,271-2 Bouuet. 105: 295,2..96,297.336,340 Burke' 10 7: 3#1, 3,5g--60, 370 BUSlUS 68: 72, 274 By-laws (statuta) of assOCIatrOns. 18g: 273, 376,378,379.390
CalVllllSM: 70, 88-g, 9 2, 151: Jl84-s CapItal PunIshment 106: 2,97-/1, !J04 CentralISt theory of assouauons: 62-9, 163-4, 165-9, 180-4 Churches. Boom on, 65: Suarez on, 6B Church and State. 87-92, 198. ~:J 7' Church based on contract, 110: property of Churches, 90, 92, 167.
CIty-State. 63, 76 CIVIlIans 37-8 (see alst> CorporatIOn, Roman-law theory of) CIVItas 53, 56, 60, I I 5, 123 235 Clas'lficatlOn: of States, 2,J6 ofcollegra,270, 277--8. of ~~oClatlOns generally, Jl79, 367 jJ., 377-1), 37f}-8I CocceJI, Hand S de, 144, 175: 296,331 , j68 Collecuve theory of Groun-personalIty 45-7, 49, 56, 6g, 116-'7, liB, 12 0 , 121, 12~, 124, 1:16-7, 128, 130- I, 134-,135-7, 13!:1> 181, 182, 184-, 1934 2~3, 214-5, 2f!r50, 260, 274, 2BI. 1 2-3, 316, 3 1 7, 3 18, 3 26,384-5, 297, 3 393 CollegIahsm: ':l()-2' 287 CollegIate magl~trates' 66-7, 177, 182. 270 ,380 CollegIum 64-7, 72, 171-2, t 77 27~2, - 274, 277, 27.9,375,377,380,385 Commons (Village) 6g. 275-6 Dlmmurno (of property) 103, 192 294,
Commurn/as (Suarc2"s theory of) . 64: 274,
393
276-7 Commumty (GlIl"lel1lde)

2
Flchte on, 151-
(groups (..feated by). 66, 166, 174 3 68,378 Confederations 86, 197' 283, 2 Conquest (nghts of) 261 Conrmg. 36, 92 2.,0,286 ConstitutIOnalISm: 139, 140, J4 1 --8, 15J3: 346-7 (see also LImltedSoverelgnty) Contmwty: of the People 2!J9 of the State, 50, 56, J60, 161. 260-J,
Conce~slOn
351
266,32 5,361
of the ongmal contract, I 10. R!J9 Contract, general theory of 4>, 48, 5 I, 53,56 ,59.60-1,62,63,7,7 1.73-,4-0 75, 76 77, 78 79, go, 9 2 95, 102, 104, 106-7, 107-11. 113, 128-30 , 13 1--2, 134. 135. 145, 148 , 149, 164, 169, 185, 186. Sl43, 247. 257. 1164, 266, 267, 299-jOO. jOl-5, 3 12 , 3 1 4- 15. Contract of government (Herrsdw,ftslJ8ftrag): 48, 50, ',07-8, J22. 145, 15 1 171: 267,304.395,347,35 J Contract ofpropeny: 104' /195
3Il, 3 J9, 3 23, 3 25, 335, 341 ,
3,51,
.184
Jl87, 37~1, '174
Index
Contract of society (Gmllschaftsve7'trag) 4 8 ,60,'7-8,149,166'301.30 4 Corporate bodies. natural-law theory of, 162-g8 367-98, cf al~o 62-92 (and 269-72, !1&r-1) CorporatIon (Roman-law theory of. see" also umversttas) 45, 62, 67, 68, 75, 8'h 135. 162,173,174.182.240.275 Corporaf'ive atltlculation (of the State) 64. 65. 164. 165, 166 (~ee IntermedIate Groups) Corpus' 61--7, 80' 272.277 Corpus cOllfoederatorum 86, 197 283 Customary La~ 68, 18C)' 274,288-9, 37J Danes 121.125,148,175: 291,316,320, q22, 344. 317, 366. 379 Debtq of corporate bodlM 79, 84' !iAo. 282 De/lcts of corporate bodleq 67. 6~. 79. ... 83-4, rr 8, I!h, 18g-9ll 1171, 280--1, 281-Ii, 318, 381 Demesne (of Ruler) 365--6 Democracy, 49. 'i8, 117,.141, 146 237, 2']8.250 ,257. JIl, 135,312, 146,354 Dlvme right (set" also Theocratic)' B7-8 Dorrnrll(.ans 36, 87 Durmmum emtnllTlS. 103, 162 261, 304, ~2, 3 66,379 Double majesty (theory of) 43, 44, 45, 4 8 , 'i4-5, 140 258.ff.J83 Double Subject of sovereignty (GrotlUs's th.ory of) . 55-8, 140 261. 'J34 DualislP (oftheoryofGtloup-personahty). 121 (qee alqo Collective and Reprc sentauve) Dualism (of theory of State-personahl y ) 53, 54-5, 58, 59, 60, 145. 150. I ;,ii-1 . 256-7,352-3 Family (theory of)' 63, 65,71.72.80,83, 105, I I I , 163, 170. ~9. 274, 903. .'J18, 3 19. 321 , 3 67, 3 68, 392 Federahst theory of a~soclatlons' 70-9, 164-5. 16g-80. 184-95 FederatIOns' 71, 86.196---8 !l83.39S-8 FellowshLp' theory of, to Althuslus. 71--6; III Grouus, 78 III Nettelbladt, 184-95 general references, 69. 116, 117, liB, 123, 124-, 135, 163, 164, r65, 1/2, 175, 177, 180, 181, r83 277, 3 82 F{'nf'lon 105 3./'J, 355. 364 Ferguson: 105 297,310 Flchte 101-2, 104, IO~ 131-4. 136, 1512. 164. IG8 292-3,295, 2gB, 900, '11, 302, 310, 327~, '151 , 173-4,395 FictIOn (ficta~rsona) .p, ~6, 69, 1[9.123. 135--6, 137, 19 1 245, 21-7, 250, 275, 3 1 7-18 J20. 332. 370 Filmer 296.33. 1'16 , UO Foundation (Stiftuni{) 134-, 168. 184. 36g--70 , 374,386 France 65,66,1'28,130, l.p, 166, 183 FrederIck the Great 292, goo, 132,352,360 Freedom of Conscience go, I 13 285, Jo8 French RevolutIOn 95. 114. 130. 166-7 370--1 Fundamentallaws 34 1 -2, 313, 344. 345. 346 , .,53 General Will (volontl glnirale). 47.127. 129.131.133,134.166 322-3,324-5, 3 2 7,329 Genuhs !l8g Germany. 65,7,73,86.95,101,124-5. 131, 142, 146 154, ISS. 156 , 159, 164, 167. 179, 185, 194-, 19B !l49, ';47, 355, 356, 357. 360, SiB, 382-3, '397,398 Gesamtf Hand 185, 192, 194' 356,393 Government (Rousseau's theory of) 130, 150. I 58-9 3~. 349-50 Graszwmkel 268--g Gregorms (of Toulouse)' 36, 51, 59,67 !l30, 240, 265, 270, 271, 282 Grotlus 36, 45, 4 6 50, 51, 55~. 77-9. B6, 90-2, 100, 106. 140 229. !l34. 24 1 , 244, 247, 250 , 251-2, !l5:J-4, 260-3, 27!)-80, !l8!l, 283. 285~, 334, 364 Groups natural-law theory of, to 1650,6292 after 1650,95--6,105-37.162-98' r("c~phon and exclUSIOn of members, 3Br~ (see also Associations) Group-authority 81, 105-7, 112. 176-8. 183 273,380 ,381 ,385 Group-personahty 76, 81-2. 84. 11437,139.193 jr2- l 3, 33 1 , 332
EccleSiastical TheorIsts (CathoL_,. 45, 46. 'j I, 59, 67, 69, 87-8. 1 5' 229. 2'33, 234, 24-0, 241-3, 263-4, 270 2723. :il75--6, 283-4 (see also Theocratic) End of the 513t(": 41, II2, 113 305-7,
oJ
Ends of Society and SOCial groups 11114 England 101.128.142.144. 157 347~, 359, 360. 375 Entia moralla (Pufendorf's theory of)' lIB19: 3D2-3
3[0
Ephorate (Idea of): 151-2: 247-9, 328. ~ 35 1 EpIscopal system 88,89 Estate~ (the three) a8, 50,65. 75.88, 1403, 144, 146, LiB, 165, 177 247. 649, 2]1-2.346,356 ,357,374.382
420
Index
Jus gentium: gB-9. iS5: 233. 1134 JustI: 153. 159, 164. 168: 1/9R. 2gB. 307. 309, 33 1 , 35~~f!j60, 394
~ant.
Guuds: 66, 17:2, 180: 374, :Jlb-3 Gundling: 1:21, 1:23, 144, 155, 182' :291, 3 1 7-8.334,338 ,355,363-4 HanseatIc League: 86: jIh Hemcke 144, 155 Hemecclus' 147,155, J75 fl9 1 ,jlg,344, 379,388 Herder. 105' 305, 332-3 Hert 121,12:2-3,147,155,170-1,18:2,185; (of Law and the State). 104, I I I, 223-6 Hobbes 37,41,44,51,60-1, 7g-B4, 97, 101,106,108 II:2, II5, II6, II8, IS6, Ig8, IS9, 141, 14S, 164, 169, 170, 181: JZ32, JZ47, 250, 251, JZ54, 266-9, 281-2, 283, 288, 306, 3!JO, 341 Hoflbauer' 127, 148, 178-9:R91,309,323, 3 2 4.360,381 ,390,392 Holv Roman EmpIre 85,86, 196, 197: 282,397 Horn' 105-6, II I, 115-6, 141, 142' 209, Hotoman 231,254,255 Huber 106, 117, 145-6, 155-6, 173-4, 182-,,\, 184 289,300, soB, 31fr2, 356 , .]62, 'm-8, 384-5, 386 Hugo 86 Humboldt (W. von): 127, 179, 194-5: 3 0 3,30 7 Hume III 305,J07,.]69 Icbtatt 144. 115, '118,321-2,334,.]61 IndIVIdual (and Group)' 68-9, 7B-9, 9615,106,114,129, ISO, IS5-6, 1934' 242, 243, 281 IndIVIdualism (see also CollectIve) 52, 55, t;I, 71, 76-7, 84, 96, 101, 10:2, no, II:2, IIS, 1:20, 1:21, 1:26, 1:29, 13 1, 134, Ig6, 139, 159, 193-7' ~ 7,~~7,310 Institutions (Groups regarded as)' see FoundatIon and State-mstItUtIOns Insurance SocIety (State as): 113, 131'
307--8
295.304,311,333,3~7,340,354,j66
HI~toncal theory
10:2-3, 104, 107. 108-g, log-I0. 134-5, 153,159, 164. 168. 184: Rg3-4, 299, 902, go7--8, gog, 329-go, 331 , 3s:J-
4,.J60,374-5,395
Keckermann. S!65, 279 Kreittmayr: 144 Law: dIVISIOns of, 38-9: 233' law, and state of nature, 96 ff. law, and commumty, 100. law, <ond morahty, 98, 100, lOll, Gierke's concepuon of, :2:23-6: the view of ThomaslUs, :z88-g, soB' ofFlcht(" and KllIIt,r 293 (see also PublIc Law and InternatIOnal Law) Lelbniz, 104, 137, 146, 157, 164, 11!i. Ig6, 197 1196, 3 16, 33 1 - 2 , 343, 357, ,68,397 Liberty df assoCiation' 72. 78, 80. 168. 169,171,172,179, lBo, 194: 279 Liberty and eClJUalIty 101, 103. Il2, 196' 292 (~ee also Natural nghts) Limited sovereIgnty (see also ConstitutIOnalIsm) 43,44,45,48,57, r,9, 14 1._ 8, 154 239,262,264,339,341-3,344, LUluts of tht" State 305-6 (see also End of the State) Local commumtles (Gemelnde): 62-3, 67, 69, 71, 73, 74, 78 , 16 3, 16'. . 175. 177, 180, 11ls- 279,367,368-;9,372, 3&r-l, 382-3, 384 (see MumcIpahtlt"s) Locke 101,103,106,113,128,136,149, 157 292 ,294. 29fr3OO, 3 02 , 3 0 3, 307, 3 24, 348-9, '157-8 Loyseau' 49' 343, 363 LudeWig .]63 Lugo' 276 Lutheramsm. 88: 284 Machme (Group regarded as a) 5:2, 61, 136 : 254, 3.JO, 331 Mackmtosh' 370, 372 ~.. Majestas (see Sovereignty. Double majesty. Real majesty, Personal majesty) Majority decIsIon. 47,69, 7B, B:2, 83, 110. 1l7, 1:20, 127, 1:28, 1:29, 131. 133, 134,186,188,197: Jl47. 1l'J5, R80, 281. 3 11 , !JT5, 318,32Z-2,3Jl3,3Jl4,325,327, 3 28,361 3 84,365, sB7. !J8g-go, ~7 Mandatum: 125, 135. 161 '\ Marriage: 77.92, IllS. 194: 124-1.303.32 7. !J92 , Meeting (nght of)' 80.166.168: Jl71, j68 Merchant comparues: 80: Jl81. Jl8Jl, !J83
315.31~7,3JO,344,356,395-6,397
346 ,347,354-5
IntermedIate groups' 7:2, 163, 164. 166, 167.367-8,381-2 Intemationallaw: 97, 99,133,134. 1956: 319, 3R9, 332 377, 394-5 International sOClety 85-6. 96-7. 1956- R83'-3,394-5 Irregular' States' 356,:397 Jesuits: 36, 87 (see also Molma and Suarez)
Jury:!J5.3
Jus damnum (I.e r~ealed Law): g8
Index
Mercier de la Riviere: 331,,336 Mevius: 196: RgO-l, 1l95, 306, !]1Jl, 331, ,336,.JfJl'394 MIddle Ages 35, 38, 40, 50, 52, 59, 71, 103,154,165,196:,308 Milton' 243, 1/48 Mlrabeau 371 MIXed ConstItutIOn: 41, 42-3, 44, 48, 58, 59, "60, 1~8, 148, 153, 154-9, 197: 236-7,239, 264-5,354-61 Molina: 45, 51, 59, 105, 107 2'J!, 242-3, 263,273,275-6 Afonanhomachl 45,53,106 231,254-5,256
Monarchy(sf'e~oPatnmomalmonarc~y
421
and Ruler) 43,49, 116, 141-8,237, 238 , 3 I8 , 3J6-7, 138,340-2,362-3 Monte~qul~.. 104, 152-3, 157, 159, 1i9, 197 296, 2!}lJ, 309, 352 , 358, 3 81 - 2 , 3 86,397-8 Moral persom (fJersonae morales) 97, 11822, 124-7, 12 9,130--1,133,134,1357, 142, 160, 166, 168, 16g, 175, 181, 184,185, 186, 187, 192-4, 195, 196 288, 312-4, 3I5, 317,.;JI!J-g, 120,321, 3 24, 326, 327, 3 2 9, 345-6, 3 80, 3 86, 391,394 Moser 104, 107, I'79-80, 194 294, 2gB, .. 3 0 9, 332 , .':j82-3 MUnICipahtles (nght~ of) 273,277, 36'8-g, 376, g82, g83 Natural Law. general View, 35-40, 95--6, 9,..-103 23J-4, 235, 28!J-g, 28!)-91, 293 N atur~1 ongm of SOClllt)' . 46, 51, 63, 108,
II I
300
Natural nghts: of Man, 61, 112, liS " 13 8 234-5,290,306, 'JoB-g of Socll:,tles, 176, 17 8 379,380, 39 1 Netherlands 70,86 347,397, 3!}8 Nettelbladt 126, 148, 164, 165, 17,;-8 185-91, 197--8 291,315, 3 2C J1:; , .J6o, 379-81,.J87, 388--93, 394, 395, 3!}8 Obligauon of groups, 130, 189 383, .JfJ4,3g<J-l ofmtemauonallaw,85--6, 196 of Natural Law, 97-100 !1B9,2!:}O of Ruler by acts of predecessors: 161: 251 ,261,266,362-4 Omnes ut sangull and ut umvlJTSI' 47, 49, 79, 245,275, 3 I l , ]29 OrganIC conceptlOn of Society: 50--2, 114, 132-3 OJgamc metaphor (body polItic): 51, 132, 136: 1/52-4, 268, 3 19, 320, 31/4,326, 3gtr-l,332 Organs (of State): 51,13,133,139:332 Otto: 159
Paine: 325,3g1,359,374-5 Paley: go 35g-OO,372-3 Papacy, 87,92'1/82,284 Parhaments: 80, 83, 149,281,347-8 (see also Estate~ and Representation) PartnershIp; see Sonetas partnership In sovereignty, 155--6, !J56-7 the State as a partnership, 17' 2!}lJ PatrImomal monarchy 57, 'i8, 143, 144: 25g-OO, 339,34,362-3,366 People a~ a SOCIetas, 241, 244-5, 266' as a umvernw 240, 244,342,344,345--6 as a personality, 45--8 265-6, sovereignty of, see Popular sovereIgnty' rlgh~ of, see PopuJ,ar rIghts Will of, 245--6,329 people and Church, 8q R87 people and Stat.., 53-4, 61 254-5,2556,329,353 Grotlus's VIf'W, 54--8, Hobbes's View, 60- I 268, AlthuslUs's View, 74; Rou~seau'. VIew, 127-3 pO~ltlOn of, III absolutist theory, before 1650, 58 ff , after 1650, 141 ff Person (persona)' 56, 82, 122 (~ee aho Group-personahty, Moral persons and Penonahty) Personal majesty 54-5 237, 258,259,!J60, 313 Personaht1' mdlvldual, 134-5 of groups (see Group-personahty) of People and Ruler, 44-'jo 265-6 of the State, 50--61, 116-7, 129, 133, 139, 146, 152 256 ,258,.266,268, 'JI9, 332 ,361 PhyslOcrats 113 294,307, 116 Poland' 156 279,340, 354,357, 183 PolItlcs (as dl~tmct from pubhc or constltutlOnallaw) , g6, 137 heatlses on,
22f)-30, 230-1, 232
Popular fights 57, 58, 141 ff, 145, 146, 241-2, 249, 255, 258, 259, 262, 26J-4, 337>339,340,341 - 2 ,344,345, 352 ,35J-4 Popular sovereignty 43, 44, 48, 52, 56, 106, 128-g0, Igl, 134, 140, 147,14953, 158 238 , 245, 24!J-g, 258-9,260, 262, 322, 5]28, 335, 347-9, 350 ,352 , 35J-4 PosItIve Law: III relation to Natural Law, 38, 100, 102, 109. 185 23J-5, 2lJ89,290,293 Potestates: of Church and State, 87 ff : R84 Powers. separation of, 134, 15\1-3, 154--6: 263, 264-5,329,352 ,354,356 ,357-60 PrunaryAssembly 10 Rousseau, 130, 131, 133,150: in Flchte, 133, 151-2 Procuratorlal power: 47 (see also Representation)
4 22
Propery: origm of, 103-4: S19:rS (see also Cc..atract) property of assoetations. 168. 171. 172. I~. 191, 192-:3: 1171 370--2. 376 98:],391 .392 Church-pro~rty. 90. 92. 167" 1l87. 37Q-l,374 State-property, 53, 54, 57. 59, 16[-2: sovereignty of, 43, 48 ,54-8.58--60, 140, 14[--8: 238. 245, 268, 3 2 '- 3 23. 338--9, 34 1 - 2 ,353,354 Ruler and Natural Law, 97-8 Ruler and MIXed ConstItUtiOn, 154 If. Salamolllus: 53, 23 1 , 243, /Il56 Scheldemantel: 126. 148, 168.310, 3JlI, 346, :347, 3,56, 372-3,!J1/6 Schlozer, A. L.. 127, [48. 159, [79: S195. 2gB, 299, 307, 3 2 2-3, 33 1, 334. 347. 300. 3 81 , 3!fi, 'J97 Schlozcr, C, 127. 322, 121, !J8!r9o &.chmler 121, [47. 15:;" 174' 292. 300.
255, 259, :z62. 337-8, 352 364-6

Protestantism' Its theory of the Church,
88-g2' 284-7
Provmces rtghts of. 65.7,7[.72,73,74, 75 277 384 Pubhc Law. 36, 37. 3 8 , 39. 97. [37, [723 333.361-2",177 Pufendorf 109, [06. 107. Il8--2[, 142-4, 146, 147, 154-5, 169-70, 181. 184. 196-7 289, 294, 295, JOI. J02, JOB, 3 IT , 3 1 2-16, 3JO, 337. 143, 361. 362, 364,367,375,383,390;397
Rauon d'etat: 36: 230 Real majesty: 54-5' 237. 244. 258, 259, 333 Reason: as basIS of Natural Law, q8-g 289, S193: as basIS of Contract, 1 9:
JOI-2 Ruhtsstaat 138. Kant's vIew of,.J07-8 Regl1nm' Grottm's theory of, 91 285-6 RepresentatIOn theory of, 47,61 ,79,8[-5, [16, [30, I,P, 133, [34, 150, 160--1' 247-8,325-6,327,328,347-8,35 (see also Estates and Parhaments) Representative theory of Group-personalIty 61,82-4. 116-7. lI8, 120, [21-2. [23. 128, 130, 135-7, [39, 17S, IBI. 184, 1Q4 267.31 2-3.316,
334,335,314,355,]62,378,385
Repubh&' 49. 116' 238, Il49. :lSI. 34, 3 18 ReSIstance: theory of, 70, 72, 75, 152' :l9O, 337. 341 - 2 , 344, 345, 347. 349, 35 1 ,354,364 Respubbca' 53, 50, 65, [[5 235, 254-5, 255-6, 257, 258, JJ66, 334, &spubllca composzta. 198 278, 398 Right (&cht) defimtlon of, 39: Flchte on, ro2 . 1193 Kant on, 293. 30 7-8 RIghts of Man (see Natural nghts) Rousseau: 4[, 48, 54, 97, 101, 104. 106, ro8. Jl2, 128--3[, 133, 136 , 149-50 , 158--9, 164, [66. 16 7: 258 , 292, .294, S197-8, JOI, JO:l, 303, 305, JOfi, 3/1l2-3, 3 2 4-5, 3 26, 327. 330, 333, 34!r50 , 358 ,:Pr70 Ruler' personahty of, 48-50, 123: Il56, 344: two capaclues of, 16[: 251-2, ]61-2
3 1 7,123
SecessIOn, TIght of. 70, 110 J02 STney: 106, 149 2.99, 347A357 Sleyes 107, 13 1, 169' 2!}8,:J07, 309, 326-7, , .3.3 1, .150, .15B--9, 37J -2 Sociability, theory of 100-1' 290,301 SOCIal Natural Law 101, [96: 2go--r _ 'SOCietas, cobceptron of 4,45,46,51,60-=[. 6g,68, 75-7, 77-B, 95,100,107, 115, 118. 123-'ilt 135,137,138,163,169, 173-4,175.180-1,182,183,184,185 24 1 , 244, 274, !l]8, 279, 290, 3 r!r21 , 379, :J8o, 385 'So~tas gentium 85 282-3. 301, 394-~ (see also International socl~ty) '')oClctates cla~slficatron of, by Bodm, 647' 270, by Althuslus, 71-3 277-9, by Nettelbladt, [77-B' 37C)--80. by other wTlters, 367-8 '')oaetates lleqtuJles .and IniUlqtuJles .123-4. 127. [28, 170, [7 1, 172, 173, 174, 115, 116-7, 18 3, 185, 186, [87. ISg. [g6.197 /Il80, jI6, 318, 320, J21, 375. , 3 80 , 3 85--6, 387, 3.90 SocIety' general theory of, 62, 75~. 78 , (see also ASSOCIatIOns and Groups) 3 Soto' 45: 26 SovereIgntY' problem of, 37' 236, natural law theory of, down to 165.40--4.7[.
74'242,249, 263. 267

residence of, 44-61' 258, sovereIgnty and groups, 62, 64 (see State-contr<JfI' of Groups); sovereIgnty and Internatlonallaw, 85 sovereIgnty In federatIOns. 85. 197; sovereIgnty and churches, 87 If.: 285-6; naturallaw theory of. from 1650 to 1800. 137 ff 3 11, 334, 3389. 34R-3, 345, 346, 352 Rousseau's VIew of, [29-3: 3 2 4. 349. 358 (See also LImIted s~verelgnty' Personal majesty, Popular sovereIgnty. Real maJesty, Ruler)
index
Spinoza:97, 106. I08.II~, 117, 142,164: :J06. 3 r 4. 3J6,355, :J69 State of nature' 85, 96-105, 195, Ig6: !lBB, !lgtJ, J/9r-!l, 394 State-control of Groups' 66-7' R70, :J68if, 373 37B-9, 30r State-lIlSututlOIUI (Anstalten). assoCiatIOns regarded as, 66, 67,168,180-4,185, 194' Sl6g--70 , 370--2, 37'1-4, Church regarded As, 9V !lB5, 37o-r .Stryck 144 Suarez. 36,45,46,51,59,64,68,69,105 2!lg, 242, !l43, 264, 27:]-4, 276-7, 282, !l83 # Su~ect (or ow.er) ofnghts the SubJ~t ofSovereIgnty,42 ff , GrotIUs's theory of the double Subject, 55--8, Hobbes on the~l!bject of Sovereignty, 6~1, 139 Rousseau, 129 SWitzerland 65,70,86 347,397, 3gB Systf"ms Hobbes on, 7g-84, federal systems, 86, 196, 197 35)6. TaxatIOn 68, 162 274, :;q6 , TerritorIal theory of the Clmrch 89 ff !l85 TeutoIllc Ideas of FellowshIp (q v ), 135, 191, of kmgsllftp, 135, of the LawState (see Rechtsstaat), 138 TIleocratlc Ideas 40, 87, 14, 105, II I ' 295---f),30j-4 (see also Eccl"slastzcal) ThomaslUs. 98, 100, Il3, 121, 144, ISS, 196. !l0B-9, 2g6, 300" 308, 3 15, 3 r6, 3i-8, 367, 375, 3M> 39~ Tltlus 121, 144, 155, 173.315, 3r6,356. ~1-2, 362-3, 3, 397 Trust Locke's conceptIOn of, 299-3 ' , Unanumty (as opposea to rtlaJorlty dec"lon)'47, 110,127, 133, 186,188, 195. 246-7,322 ,324,328 Umons of States (personal and real): 86, 197, !l83, 39S---f) J Umllcmtas: 45, 56, 61, 64 if, 73, 79, 9 1, lt6, 1I7, 123, 146, 17 1, 173-4, 177. 181, 182-3, 184, 186, 187, 18g. 191, 192 240,271, R72, 274, !lBl, 316,317, 3"8 , 378 , 3 83, 3 84-5, '186,392 Us~r po~ltlon of, 36,]-4 UtoPias 166,369 Vacancy of thrqpe, 33!r40 Vasquez. 253, 263 Vattcl 40 VenIce 156 VIco 105.297 VIctOrIa 263,283 Vtndlctae contra Tyrannos 45, 70: 23 1 , !l4O, 247,248,254,255,257,277, 283 Voetzm 92 Jl87 WIll of All' 129, 13 I 245---f)' 3!l2-3, 326, 328,329 (see General Wlll) Wolff' 113,121,125,147-8,175,185,196 294, 2!fi, y;8, 3 16, 3"9, 344,345, J67, 379, 3 88, 389, 390, 393, 395 World-State 85> ]96 2 83> 395
.,
Zepper !l84-S
Zwmgh 285
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NATURAL LAW AND THE THEORY OF SOCIETY

LONDON Cambnd~e t rl1Ivel'SJ ty Press

l\."CW YORK TORONTO

1l0MDA\"" c:.:ALCt'T1A MADRAS

Maruu'l1 Company Ltd

NATURAL LAW AND THE THEORY OF SOCIETY

Wzth a Lecture on The Ideas of Natural Law and Humanity

PRINTED IN GUAT BRITAIN

The Texts translated Law and political theory

14. The Natural-Law Conception of the State

Contents 15 The Natural-Law Theory of Associations (Die engeren Verhande)

GROUPS WITHIN THE ST.4TE

III. GR01:PS PARALLEL WITH THE STATE

16. The General TheorY of the Group (Verbandstheorie) in Natural Law

The vogue basis

of .Natural Law and its zndzviduo.listr.c

Natural Law and the idea the origzn of Groups

v. The natural-law mew oj the purposes and its various Groups

135 137 137 14 1

17. The Natural-Law Theory of the State

18. The Natural-Law Theory of Corporations

(I) Dwergerue of emtrall-st and federahst VzeWf

WITHIN THE STATE

195 198 198

THE TEXTS TRANSLATED

the period between 1650

LAW AND POLITICAL THEORY

The Jmty of Western CWlltsatlQn (edited by F. S.

Der Zmtralgetianh der realm Gesammtpersonlichkett, preface to vol.

2, 011 'The El::l of Law', e.peClally the conclUSIOn of the

DQJ Wesen dcr menschluhcn Verbaruie, p.

recht, but which a modern scholar has called 'Wardour Street

THE SCHOOL OF HISTORICAL LAW

Lagarde, L'Esprttpollttque de La Riforme, p.

op. at. pp.

an essay containing a study of Maitland

W. Wallace, Lectures and Essays, p. 269.

II. General mew of Soverezgnty

men~ of these noti~ns of the 'Subject' are necessitated by a theory of

III. People and Ruler as separate personalities

CHAPTER I: SECTION V, 15 THE NATURAL-LAW THEORY OF ASSOCIATIONS

(DIE ENGEREN VERBANDE)

THE NATURAL-LAW THEORY OF SOCIETY DURING THE PERIOD OF ITS ASCENDANCY

of Natural Law and zts

II. The przorzty

of contract as explazmng the orzgzn of Groups

the persona moralis

V. The contnbutwns made by the natural-law theory

THE THEORY OF CORPORATIONS IN NATURAL LAW

(1) Dwergence of centralist and ftderalzst mews

(2) The relatzan of the Corpotatwn to the State

(b) The Corporation as a

Internatwnal sonery and fideratwns

THE PERIOD DOWN TO THE MIDDLE OF THE SEVENTEENTH CENTVR Y

CHAPTER I: SECTION V, I4 THE NATURAL-LAW CONCEPTION OF THE STATE

The theones dIScussed, and the wOlks Clted,

and the followmg sub-

Gierke's Text: the Period down to 1650

14 The natural-law conception

Gierke's Text: the Period down

14 The natural-law conception of the State

Gierke's Text: the Period down to z650

II. General view of Soverezgnty m natural-law theory