Category: Political Science Notes

This article provides a short bio of Bernard Bosanquet.

Bernard Bosanquet was born in 1848, the year of publication of the Communist Manifesto, and died in 1923. He was educated at Harrow and at Balliol College, Oxford, where he came under the influence of T. H. Green.

In 1871 he was elected Fellow of the University College, Oxford. In 1881 he went to London to reside there and his purpose was to deliver lectures for adult education movement.

He had also an intention to devote his energy to social work. From 1903 to 1908 Bosanquet was the professor of Moral Philosophy of the St. Andrews University. In 1911 and 1912 he delivered his famous lectures at the University of Edinburgh and the subject was The Principles of Individuality and Value. Bosanquet was connected with many philan­thropic organisations.

He was a versatile thinker and prolific writer. His well-known and best-known work The Philosophical Theory of the State was first published in 1899 and its fourth edition appeared in 1923, the year of his death.

His other works include Logic as the Science of Knowledge, Logic or the Morphology of Knowledge, Companion to Plato’s Republic, Essentials of Logic, The Principle of Individuality and Value.

Different contradictory opinions are expressed about Bernard Bosanquet. A critic has called him the greatest of English idealists.

On the other hand, Copleston, a renowned interpreter of philosophy, says that, like Bradley Bosanquet is rarely mentioned today and this is due to the fact that he has not said anything new which his contemporary thinkers have not said.

His theory of state, relationship between the individual and state, legislation etc. all were elaborated by Hegel, T. H. Green, Rousseau. Naturally he did not say anything new. In spite of this we still remember Bernard Bosanquet and the naive reason is that he was the leading member of Oxford idealism. He forcefully vindicated the central principles of Oxford idealism.

Bernard Bosanquet was indebted to both Green and Rousseau. He adopted many of the principles of Green but he modernised them in the light of new data found out by experience. He also abandoned some of the limitations of Green. These limitations relate to liberalism.

On this point we like to quote Barker:

“He would thus bring Green’s philosophy to a point where it approaches close to, if it does not altogether blend with, the full Hegelian conception of the state”.

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Learn about the differences between the political ideas of Hobbes, Locke and Rousseau.

Comparison # Political Ideas of Hobbes:

1. Nature of State:

It is necessary to make a comparative study of the three contractualists (Hobbes, Locke and Rousseau)  because they differ from each other regarding the important aspects of the social contract.

All the three philosophers held the view that the state or civil society or body politic was the product of contract made by men who lived in the state of nature. There are few similarities among them, but differences are more prominent.

In this comparative survey we first deal with the nature of state as it is revealed in the writings of these three writers. Hobbes conceived of an all powerful state which is also called an autocratic or collectivist state.

Why did he propound the idea of such a state? The chief factor is, in his opinion, the people in the state of nature were quarrelsome, hostile with each other and restless. Moreover, there were no peace and security.

All these led to the non-development of art, literature, trade, commerce and transport. Hobbes believed that a very powerful state with absolute sovereign authority could restore peace and security and bring about general progress.

To Hobbes the state is a machine. He depicted a gloomy picture of state of nature which was analogous to the picture of the British society of his time. In order to change the picture an all-powerful state was required and, in that case, the state will act as a machine. Except state no other organisation had the capacity to fulfill this demand. He reposed his confidence only on the state, to him any other organisation had no importance. People could rely upon the state.

The consequence of Hobbesian logic is a despotic state. To him there was no difference between monarchy and tyranny.

Hobbes thought that only a state with on absolute sovereignty at the top of power could free the society from anarchy. Naturally, individual freedom had no importance to him. The individuals must surrender to the wills and authority of the absolute sovereign power.

After the formation of the civil society the individuals surrendered all their rights to the sovereignty. Even they had no right to resist the state. Hobbes denied sovereign power’s accountability to the people.

We conclude that the Hobbesian state is not democratic, it is absolutist. But Ebenstein observes that Hobbes cannot be called a totalitarian or collectivist thinker because he made special provisions for individuals. He said that none could force a person from taking food or medicine. Individuals have freedom to pursue their own faith.

Hobbes’s is a utilitarian state. It was set up to achieve certain special purposes—especially peace and security. Peace and security are both collective and individual matters. Hence we can say that Hobbes made room for individuals.

Hobbes envisaged of a secular state. In the Leviathan he said that there was no place of a separate government for religion or church. The church was a spiritual organization under the temporal authority and on that ground it was obliged to show loyalty to the king.

Dunning has said that in the opinion of Hobbes there was no room for separate authority of church. This is obvious in his exaltation of political sovereignty. From the analysis of Hobbes it appears to us that he was thinking of a state which would be free from the authority and influence of the church. This is nearer to the idea of a secular state. The concept of a secular state was envisaged by Machiavelli.

2. Sovereignty:

In Leviathan Hobbes declared— “I authorize and give up my right of governing myself to this man or to this assembly of men”.

Another statement runs “Covenants Without sword are but words and of no strength to secure a man at all”.

Interpreters of Hobbes’s philosophy treat these two statements as basic sources of his concept of sovereignty. Hobbes was so much preoccupied with the maintenance of peace and security that he had no time to think of any other thing.

His ideas about the state of nature (though imaginary) and the social economic condition of contempo­rary Britain inspired him to arrive at the conclusion that a sovereign authority with absolute power could be the only remedy to the uncalled-for situation. For this reason Hobbes made the sovereign power absolute.

Not only it is absolute, it is indivisible and inalienable. Since Hobbes, these are being treated as the most important characteristics of sovereignty.

The sovereign power may be vested in the hands of a single person or group of persons. But Hobbes had always a preference for one person because it is quite easy for one person to exercise absolute power.

Even Austin and several other thinkers have supported that sovereign power is to be vested in a single person. When one man is sovereign his will and decision are final.

Hobbes has suggested that the sovereign will rule with the help of law or terms and conditions of the covenant and when these will establish their inefficiency or insufficiency he will not hesitate to use arms or sword.

It is said that he had no weakness or special preference for law. The use of arms or laws fully depends upon the gravity of the situation. Some critics say that Hobbes had special preference for weapons.

3. Obligation and Resistance:

Hobbes has not directly dealt with the concept of obligation in his great work Leviathan. But an in-depth analysis of the various aspects of contract reveals that he had an idea about obligation. The state of nature was infested with war, suspicion against each other, involvement in war or conflicts centering around pretty interests.

The residents of the state of nature were quite eager to find out a way out and finally they decided to set-up a commonwealth which could defend them from the invasion of foreigners and the injuries of one another.

It is now obvious that the inhabitants of the state of nature on their own accord decided to form a political organization.

Explaining Hobbes’s stand on obligation, D. D. Raphael (Problems of Political Philosophy) says “The citizens are obliged to obey the laws both because they have promised to do so and because the alternative to a politically organized society is the state of nature”.

This obligation of Hobbes is of two types—moral and prudential. It is moral because leaving the state of nature they formed common­wealth and framed laws.

Since these were their own creation they had no moral right to withdraw obligation from these conditions and rules. It is also prudential obligation because the only alternative to civil society is the state of nature which is tantamount to disorder and chaos.

Another aspect of Hobbes’s idea of obligation is because of the un-favourable situation the state of nature lacked peace and security, but these were indispensable for peaceful living and progress of society. But they thought that a sovereign with absolute power was the only remedy and thinking in this line people of state of nature thought it prudent to show unconditional obligation.

We believe that Hobbes’s emphasis is more upon prudential obligation than on moral obligation. A state with absolute sovereignty is preferable to anarchical state. This can be viewed as the utilitarian character of obligation. People forming the commonwealth were sure of maximizing benefit from such organization.

Naturally, withdrawal of obligation would lead to the collapse of a commonwealth. There must be unconditional obligation to the state authority. It may be pointed out that Hobbes was conscious of conditional and unconditional obligation and he was in favour of the latter.

< p>Generally speaking Hobbes’s idea of obligation is viewed as unconditional. But he had some feeling for people and that feeling led him to make some concession for the people. In Part II, Chapter 21 he has said “The obligation of subjects to the sovereign is understood to last as long and no longer, than the power lasts, by which he is able to protect themselves. When none else can protect them. The end of obedience is protection; which wheresoever’s a man sees it either in his own or in another”.

Moreover, if the sovereign prevents the subjects from taking medicine or food, in that case they may refuse to show obligation. We thus see that Hobbes’s view on obligation is associated with some sort of give-and-take policy.

The sovereign must do something for the individuals and in exchange of that he can demand obligation.

In this sense it is to some extent conditional. We have already noted that there are few and a sporadic view about individualism in his writings and his idea of conditional obligation strengthens that stand.

4. Democracy:

To support the absolute monarchy in unequivocal language and the surrender of all rights to the sovereign authority, it is said; provide the powerful weapons for collectivist administration.

The collectivism advocated by Hobbes has kept no room for democracy and for that reason Hobbes has never been regarded as a worship­per of democracy.

Perhaps he did not intend to be so. If we study his Leviathan from top to bottom we shall not find him to be very much sympathetic with individual freedoms and rights.

A king with absolute power was a model to him. But one-sided evaluation must not be allowed to preoccupy our mind.

It is not final that he was the staunchest advocate of collectivism. In his analysis we witness certain passages which display his sympathy for democracy. In other words it may be said that he had sympathy for democracy. Harmon, Sabine and Ebenstein are of opinion that he was not an out-and-out collectivist thinker.

In the words of Harmon “Despite Hobbes’s proposal to vest enormous powers to the hands of the sovereign, he did not advocate a totalitarian state”.

Ebenstein writes “yet to call Hobbes one of the spiritual fathers of totalitarian fascism or communism is more untenable than would appear from a cursory glance at several key phrases in Leviathan”.

There is reason behind this comment. Hobbes makes certain comments which are contradictory or convey different meaning at the same time. In spite of this, the fact remains that he had sufficient weakness for absolutism because he thought that this could save a turmoil society. At the same time he had soft corner for individuals’ life-saving needs. So both absolutism and democracy co-exist in his political philosophy.

Oakshot is of opinion that the source of modern individualism is nominalism. Its central idea is reality which is to be judged by the individual, society and social events. The central theme of Hobbesian thought system was individual and his interests.

He categorically said that without peace and security development of arts, literature, trade and commerce was not possible. Needless to say that all these were related with the overall progress of individuals as important units of society. He thought for development not for any other purpose. If so, how can we jump upon the conclusion that he directed his arrow against the welfare and interests of individuals?

By emphasizing upon the development of the environment of society and individuality Hobbes had strengthened the foundation of democracy.

Modern democracy thinks about both individual and society. It is observed that both Plato and Aristotle neglected the individuals and idolized the state. But a deeper analysis will reveal that a proper ideal state—also properly administered—was capable of meeting the requirement of men.

Hobbes focused on absolute sovereignty and he thought that if law, order and proper administration were restored, life and living of all individuals would be normal and the purpose of democracy—to some extent—is this.

Hobbes’s sovereignty is very powerful, but his covenant is more powerful. Modern interpreters of Hobbesian thought are of opinion that by making the covenant powerful Hobbes has acted as the forerunner of the sovereignty of constitution. It is known to all that in democracy (if it is proper) the constitution is always supreme.

In democracy, individual’s rights are always in prior position and Hobbes gave priority to right. Let us quote Ebenstein again: “Hobbes recognizes the inalienable right of the individual to resist when life is at stake”. If so, on what logic should we say that he was against democracy? He gave recognition to individual.

Comparison # Political Ideas of Locke:

1. Nature of State:

Commenting upon the difference in approaches of Hobbes and Locke towards the state Prof. Harold Laski has said “Hobbes’s immense edifice is built, in the last analysis, upon the dual foundation of a belief that human nature is evil and that only an irritable sovereign can maintain order against its inherent tendency to evil. Locke starts with a belief in the goodness of human nature and the danger of any government which can act without regard to the wishes of its subjects”. Here lies the basic difference between Hobbes and Locke so far as the state is concerned.

According to Hobbes the state of nature lacked peace and security and, for that purpose, people of the state of nature entered into a contract for laying down the foundation of the state. But Locke has observed that the people of the state of nature were happy, but they were confronted with certain inconveniences which they could not remove.

Important inconvenience, according Locke, was absence of man-made laws. This resulted in partial anarchy and loss of life, liberty and property. The chief objective of the state would be to protect these. The chief function of the state would be to provide security to life, liberty and property.

Pointing out the characteristic of Lockean state C. L. Wayper has said the state exists for the welfare of the people and not the opposite. Locke has said that the end of the government is the good of the community. The failure of the state to attain this goal will not justify its existence. It is an indication of the fact that Locke’s state envisaged a welfare state which was absent in Hobbes’s philosophy.

Locke’s state was a machine. This is the opinion of C. L. Wayper. Locke said that the state was created by people to fulfill certain specific purposes. People of the state of nature somehow came to the conclusion that only through the machinery of the state could they protect their natural rights—that is, right to life, liberty and property.

The human factor is the most important element of a state. Locke ruled out divinity from the arena of state. In this way state was converted into a machine.

So far as the formation and day-to-day functioning of the state are concerned Locke has introduced the ideas of consent and majority decision. The latter indicates how much a practical man Locke was.

Day to day administration would be impossibility if it were allowed to persist. For that reason Locke recommended majority opinion. This is a practical suggestion. Hobbes ruled out people’s partici­pation in the administration.

Sovereign authority’s will was final. People were deprived of contradicting that will. We can say that while Hobbes’s state was autocratic, Locke’s was democratic.

From Locke’s contract theory we can draw the conclusion that his is the constitutional state because the government must follow the rules and principles laid down in the contract. This is called constitutionalism.

The relationship between the governor and governed would be determined
by the rule of law and not by arbitrary orders.

The basis of the government and governance would be law. In Hobbes’s state there was a place of law, but the law was nothing but the dictate or will of the sovereign authority. Hobbes had no intention to allow people’s partici­pation in the law-making process.

The theory of state envisaged by the contract is also a limited state. Some political scientists also call it a state like the night watchman. It means that the state will perform the duties prescribed by the contract. This concept influenced Bentham, Mill and many others.

On the other hand, Hobbes’s state is not limited, but an unlimited one. Hobbes did not think of limiting the power of the state.

Locke’s state is negative because it does not intend to improve the character of the people. Wayper has said that it is a transformer state, because it seeks to transform the self-interest into public good. Locke’s state is active and ebullient.

Locke did not recognize that the state should play definite and positive role in religious affairs. He was also against the interference of the church in the political affairs of the state.

Since Hobbes’s state was absolute he advised people to show unconditional allegiance to the state. While in the case of Locke the obligation to the state is conditional. So long as the state will be able to fulfill the terms of contract people will not hesitate to show obligation to the state. But the failure of the state will definitely invite resistance against the state.

While analysing the various aspects of state both Hobbes and Locke were considerably guided by bourgeois philosophy. Hobbes’s concept of the maintenance of peace and security and Locke’s theory—the attainment of natural rights—right to life, liberty and property—constitute the core of bourgeois philosophy. Both Hobbes and Locke did not think about the problems of common people.

The state was a machine to both—but it was a machine for the attainment of privileges of well-to-do people. Common, people deprived of basic necessities, cannot think of peace and security or life, liberty and property. This is the opinion of C. B. Macpherson.

2. Sovereignty:

Commenting upon Locke’s theory of sovereignty, Barker has said “Locke has no clear view of the nature or residence of sovereignty. He speaks at one time of the supreme power of the people or in other words the community; he speaks of another supreme power of the legislature”.

This indicates that Locke had no clear concept about sovereignty. On the question of sovereignty Hobbes’s stand is transparent though highly debatable. In regard to sovereignty Hobbes is to some extant nearer to Bodin and Locke is nearer to Rousseau. Both Hobbes and Bodin are the joint “proprietors” of the modern theory of sovereignty.

J. W. Gough (John Locke’s Political Philosophy) has said that Locke in his earlier writings was influenced by Hobbesian concept of absolute sovereignty but for unknown (or known reason unknown to us) reason he changed the “phraseology”. This opinion of Gough is controversial. To what extent and why Locke was influenced by Hobbes in respect of sovereignty is not known to us. His different writings prove that he was not in favour of an absolute sovereignty.

Hobbes was the staunch supporter of absolute sovereignty and we think that it is fully consistent with the main currents of his political philosophy. His chief purpose was to banish disorder and anarchy from society and thereby set-up peace and security.

Only an absolute power could achieve that objective. He had no sympathy or weakness for democratic government. This apathy to democracy led him to formulate the theory of absolute sovereignty.

On the contrary, Locke, on the other hand, was an ardent supporter of democracy and constitutionalism and all these are not consistent with the absoluteness of power in the hands of a single man. That is why he vested powers in the hands of persons or their representatives.

In Section 135 Locke has said that the legislative power may be placed at the hands of one or more persons, but it is always supreme power in the common­wealth. Therefore, all other powers or bodies are subordinate to the legislative authority.

In Section 149 he has said the same thing. The commonwealth may be constituted according to its own nature, but there shall be provision of supremacy of legislature.

Hobbes has always used the word sovereignty, but Locke is evasive. He some­times says sovereign power and sometimes supreme power. Of course, in general terms, both carry almost the same idea. However, we may draw an inference from this. Hobbes had a determination about the meaning and use of the term which Locke has not. This makes a clear difference between the two architects of social contract.

From Hobbesian theory of sovereignty we cannot deduce any idea of popular or parliamentary sovereignty. But it is possible from Lockean philosophy. He attributed sovereign power to the legislature.

That means parliament will exercise supreme power. The term parliamentary sovereignty is quite known to the students of political science and perhaps it would not be unreasonable to attribute the status of father of parliamentary sovereignty to Locke.

He did not directly use the term, but we believe that most probably he had the idea or an idea nearer to the concept.

It is also possible to draw another inference from this. Parliament is constituted by the representatives elected by the people. Hence popular will is reflected in parliament. Thus parliamentary sovereignty may be called popular sovereignty. He, of course, does not use the term.

Hobbes’s sovereignty had unlimited power over all persons and society. On the other hand, Locke had no intention to grant unlimited power to sovereign authority. He has said in “it is not, nor can possibly be absolutely arbitrary over the lives and fortunes of the people”.

The reason he cited was—legislative, being only fiduciary power to act for certain ends, these remain still in the people supreme power. It means that the legislature—though supreme authority was nothing but a fiduciary trust.

It was entrusted by the people to function in accordance with the terms and conditions of the contract.

We have already noted that while Hobbes is consistent in the analysis of sovereignty Locke is not. The latter has shifted his stand frequently. According to Hobbes supreme power would be vested in one person or group of persons.

This much Locke has said that the same may be vested in:

(a) Legislature

(b) The people

(c) The community

The last word (I. e., community) is available in Section 49. We, therefore, conclude that it is very difficult to arrive at a definite conclusion so far as sovereignty is concerned.

Though Locke is full of inconsistencies, we are of opinion that we always prefer Locke to Hobbes. This is due to the reason that absolute sovereignty is another name of autocracy and we do not like it at all.

The logical consistency of Hobbes has been the source of dislike and the logical inconsistency has led us to like Locke. Since political science is a normative science we cannot neglect this liking and disliking.

3. Obligation and Resistance:

John Locke is quite explicit about his approach to obligation and resistance. But if we analyse the various stages or the process of contract which brought about civil society we shall find that he had an idea about the two concepts.

Like Hobbes he did not depict gloomy picture of the state of nature. People left the state of nature and entered into a contract to build up a body-politic chiefly on the ground that the state of nature suffered from certain inconveniences which they could not remove.

In the state of nature individuals could not fully get life, liberty and
property and pursuit of happiness was affected and this was due to clear positive law’s absence. Moreover, there was no impartial authority.

People finalizing the contract imposed responsibility upon the government to achieve these things. The idea of obligation emanates from this view of Locke. People will judge whether their life, liberty and property are adequately protected and pursuit of happiness is enhanced.

The non-fulfillment of these requirements would lead them to withdraw their obligation to the government. The support to the government which they formed was conditional.

In this respect Locke stands on the opposite pole held by Hobbes. Hobbes made no provision for withdrawing obligation in the situation of non-fulfillment of peace and security.

In a sense Locke’s view about obligation is prudential in the sense that it would be the primary duty of the authority of civil society to ensure the removal of drawbacks of the state of nature and in that field the success of authority will invite obligation.

Any failure will be followed by the withdrawal of obligation. It is in this sense prudential.

In Section 97, Locke hints at “original” compact which is an indication of the fact that there was non-original contract.

Interpreters of Lockean thought system have argued that there was another contract between people and the government. The central theme of any contract is either party shall have the freedom to withdraw in the case of failure of fulfilment of terms.

Scholars are of opinion that, as per the second contract, people reserve the right to withdraw their support when the government fails to translate the conditions of the contract into reality.

According to Locke the state is a type of fiduciary trust which means that it is always accountable to the people. The failure to follow the terms of the contract will be followed by the withdrawal of obligation.

The judgment of the people whether the state is doing according to the terms of contract is final.

Hence people may express its no-confidence against the authority. But before that they must be sure that the authority has failed. This conditional type of obligation is really unique in all constitutional systems of government.

Raphael has drawn our attention to another aspect of Locke’s theory of obligation. He says that our obligation to state laws depends upon their ability to meet or achieve justice. If the laws fail the individuals are not obliged to obey laws that are to show obligation to the authority.

Raphael has further observed that justice can be attained through the realisation of natural rights. These natural rights, according to Locke, are life, liberty, property and the opportunity to pursue happiness.

He was of opinion that the people of the state of nature were deprived of justice because of the non-fulfilment of these natural rights which were also “absolute moral rights”. Raphael concludes “Locke’s view was that the state is designed to guarantee and protect natural rights.

We may expand his doctrine and say that the state is designed and guarantee justice i.e., established rights plus fairness” Raphael has viewed Lockean idea of obligation in greater and deeper perspective.

Justice is achieved through natural rights and their protection or realization is the duty of state. Any failure in this regard will affect justice and people will think whether they will continue to display the obligation.

Locke’s theory of resistance is closely associated with his theory of obligation. In general there is a subtle difference between the two. However, Locke was of opinion that if any foreign power by means of military strength could conquer a territory the individuals might rise against the authority. The individuals would have every right to resist any sort of foreign aggression.

The right to resist enunciated by Locke is the product of his conception of contract and establishment of civil society. People coming from the state of nature unanimously decided to set­up body-politic and also formed the rules for its management.

If any external power proceeds to destroy their creation they cannot accept the power. In Sections 185 to 190 of The Second Treatise of Government Locke has elaborated resistance.

In Sections 220-223 he has also explained the resistance. If the legislature or prince violates the trust reposed upon it people would not hesitate to resist that. “Governments are dissolved… When the legislative or prince act contrary to their trust” .

Locke has also stated other situations which are the reasons of resistances. These are if the authority forcibly deprived people of their legal property, if it is involved in corrupt practices, forfeits the power of the people and tries to satisfy the high ambition.

A section of critics holds that an important drawback of Locke’s theory of obligation is it is conditional. But we do not agree with this view. The constitutional structure of a civil society was alive in his mind and in such a system people cannot act whimsically.

In one fine morning they cannot withdraw their support to the government and cannot create anarchical situation. For every small mistake people cannot withdraw support. The relation between the ruler and the ruled must be cordial and this is a reason why the obligation is conditional.

Only in the case of major and far-reaching consequences resulting from the governmental act people may think of withdrawing support.

4. Democracy:

Hobbes vis-a vis democracy is controversial. Locke’s case is different. He is regarded as the symbol of democracy and constitutionalism. Starting from the foundation of civil society right up to the day-to-day administration Locke has adopted a liberal attitude which makes the way for the arrival and functioning of democracy. His love for democracy is undiluted and receives accolade from all corners of society.

In Section 96 Locke has observed that the residents of the state of nature built up community taking the consent of all persons. The repetition of the same thing is to be found in Section 97.

Since behind the establishment of the community there was the consent of each and every individual, each is bound to obey the law of the community,

Locke was a clever man and he had experience of administration. Though unanimity was the factor of foundation of body politic, it could not be treated as an important factor of day-to-day administration.

He, for this reason, introduced majority opinion—which constitutes the main part of parliamentary rule.

Locke’s main preoccupation was with the preservation of natural rights which people in the state of nature possessed. He regarded these as embodiment of justice and for the sake of justice he thought that these rights must be protected.

To him these rights were also moral rights. However, the attainment and preservation of rights is the core of democracy. Locke said that the government must take measures for the attainment of life, liberty, property and pursuit of happiness.

It would be no business of the government to neglect the individual by neglecting the natural rights. Locke’s contemporary society became the victim of absolute monarchy. Absolut­ism is the greatest enemy of individual freedom and democracy. We, therefore, see Locke to throw his unqualified support for constitutional government.

He accom­panied William and Mary from Holland to England and during their reign British Parliament passed the Bill of Rights which is a landmark event in the history of democracy in Britain.

As to the holder of supreme power the opinion of Locke is confusing. In a number of places he has said that the supreme authority of the civil society is vested in the legislature. It is all right.

Elsewhere we find him saying the entire community is the holder of supreme power. The readers are in dilemma. Wherein exactly lays the
supreme authority. Some critics are of the view that Locke had strong preference for parliamentary sovereignty.

If we go through the entire book Second Treatise we shall find that he had great sympathy and lot of feelings for individuals and this makes him an individualist. On this issue his position is direct opposite to Hobbes’s stand.

His heartfelt sympathy for common men is beyond question. At least Gough, the noted interpreter of Lockean philosophy, thinks so. This estimate, we believe, is an oversimplification. He was a democrat.

Comparison # Political Ideas of Rousseau:

1. Nature of State:

The natures of state as well as the other aspects of state as found in Rousseau are different from those of Hobbes and Locke. Rousseau’s state was created not to ensure peace and security or to protect life, liberty and property its purpose is more sublime that is ethical and ideological.

Rousseau was influenced by Plato. Rousseau’s state is a moral body or organization and its duty is to make its citizens moral and ideal. Only through the membership of state can individuals become moral persons and exercise moral principles and objectives.

Rousseau believed that the morality and idealism of a state are not different from those of the individuals. This is the idealist version of a state. About 2,000 years after Plato, Rousseau revived idealism or idealist theory of state.

It is very difficult or, so to say, impossible, to separate state from the g.w.(General Will) Rousseau’s state acts or discharges its function through the g.w. Again this g.w. is the product of the people assembled in an open assembly. The general administra­tion of the state, under no circumstances can violate the principles of the g.w.

If necessity arises to change anything about the g.w. the people assembled together will do it, the state administration has no jurisdiction in this regard.

This relationship between state and general will lead us to conclude that Rousseau’s state is not only democratic but also republic. The general will is arrived at by the people’s direct participation in open assembly. In his state there is not only democracy, but his democracy is of direct type. We may say Rousseau thought of a state in the line of the Greek city-state. In both places there was direct democracy.

Behind the formation of general will there is a social process. It implies that Rousseau’s state is always active and never in hibernation. Harold Laski observes “Rousseau sought a formula of state which, in its operations, would secure an equal interest for all citizens in the result of the social process”.

Rousseau’s state stands for the full realization of freedom. In Chapter I of Social Contract Rousseau made the following remark: “Man is born free; but everywhere he is in chains”. Outside the state, man cannot achieve freedom.

In an oblique way we can say that Rousseau treated state as a kind of machine—a machine for achieving freedom. So far as this aspect is concerned he is not very much different from Hobbes and Locke.

Hobbes and Locke thought of establishing a state through the contract and this state was simply a political organization. But Rousseau’s state is a moral organization and public person. It is not simply a political organization.

Rousseau had no intention to give a political colour to state. His state will fulfill political and other objectives as well. Rousseau said “The problem is to find a form of association which will defend and protect with the whole common force the person and goods of each associate”.

According to Rousseau, absolute power will be vested in the state. This resembles Hobbes’s view about state. But Rousseau thought that the power must come from the people through the means of general will. Hobbes—in the furthest sense could not imagine of a general will. This means that the administrators had no power to go against the general will. Locke made the state a fiduciary trust. People could not dislodge a government from power so long it honestly obeyed the terms and conditions of the contract.

The state envisaged by Rousseau is of organic character. All the individuals are integral parts of the state. They will lose their significance when separated from the main body of the state. In other words, their significance lies in the fact that they are members of the body politic. Rousseau’s state is a “moral and collective body”.

2. Sovereignty:

Four Chapters (1 to 4) of Book II of Social Contract have been devoted to analysis of sovereignty. Rousseau has dealt with the subject sporadically in other parts of his book. According to Rousseau the general will is sovereign.

Let us quote him “…the general will alone can direct the state according to the object for which it was instituted, i.e., common good”.

In other words, the sovereign power is vested in the general will. And the purpose of the general will is to translate common good into reality. So every one of the body politic will be governed by the common good.

It would be the sole basis of the governance of society. He has further said “Sovereignty being nothing less than the exercise of the general will can never be alienated.” We thus see that Rousseau’s sovereignty is inalienable.

In Chapter II he has noted that it is also indivisible. Rousseau’s sovereignty is, further, absolute, as well as infallible. The general will being arrived at in an open assembly participated by all (or almost all) can never do any wrong. From the analysis Rousseau made in the above-noted Chapters in regard to sovereignty, three salient features can be deduced—sovereignty is inalienable, indivisible and absolute.

So far as the concept of sovereignty is concerned Rousseau stands very close to Hobbes. In fact there is very striking similarity between the two. But this similarity is a misnomer.

There are more differences than similarity between the two and the differences have made Rousseau popular to his readers.

Rousseau’s general will is sovereign and it is again the embodiment of common good which aims at the general well being of the body politic. In fact, this is the central idea of his theory of sovereignty.

In Hobbes’s opinion the will of the sovereignty is absolute and all other wills are subordinate to it. But he is silent on the wishes or wills of all individuals are reflected on the will of the sovereignty. Whereas, in Rousseau’s judgment, general will is the embodiment of all wills of the society. It is never the particular will of a particular person. Therefore, in Rousseau’s concept, there is no scope of the prevalence of any individual will.

In this connection it may further be observed that both Hobbes and Rousseau strengthened the foundation of nation-state through their formulations of sover­eignty. In the Middle Ages the sovereignty was divided.

Power was exercised simultaneously by the church, the king and the feudal lords. But the division of sovereignty practically leads to nothing about it.

Hobbes, Bodin and Rousseau made remarkable contribution to the concept of sovereignty. But the point is to be noted that Rousseau’s sovereignty is both absolute and popular.

If Rousseau is closer in certain respects to Hobbes he is also closer to Locke in other respects. In fact, Rousseau, in his formulation of sovereignty, combined both Hobbes and Locke.

Dunning’s comment is worth quoting:

“Rousseau, with his characteristic boldness, proceeded to reconcile the absolutist with the liberal doctrine. He defined sovereignty with the fullness and precision of Hobbes and gave it an abode and an operation that satisfied the feeling of Locke”.

Locke’s theory of
sovereignty was not a full-fledged popular sovereignty, but it was not at all the absolute sovereignty envisaged by Hobbes. However, in Locke’s theory of sovereignty, there was a place of popular will.

Rousseau made his sovereignty popular by introducing the concept that the general will is the determiner of everything. Assembling at an open place, people from the general will. We can, therefore, say that Rousseau has removed all doubts about the fact that general will or, so to say, the common good, is the sovereign power.

Locke has said, “The community perpetually retains a supreme power of saving themselves from the attempts and designs of anybody”.

The implication is, if the existence of community is not threatened the community will go on exercising its power. But if any other organ of the government proceeds to threaten the unity or existence of the community it will withdraw its support to it.

From Locke’s idea it appears that the constitution is sovereign. He does not directly refer to this but we can form such an idea from his analysis. But if the authority obeys the constitution or law none can dislodge the authority from power.

In the case of Rousseau the g.w. is absolute and its decision is final. Even if the g.w. commits mistake or violates rule none can remove it from power. This difference between Locke and Rousseau is vital and interesting.

Finally it may be pointed out that though Rousseau’s sovereign power is absolute it has no authority to infringe the right and liberty of the people.

He has in clear language stated that people formed the association to combine the power of all members so that the joint force could protect the liberty of all. But this condition does not weaken the idea that sovereign is absolute.

3. Obligation:

Rousseau has not directly and elaborately analysed the concept of obligation. But the theory of general will contains practically all the major aspects of obligation. Let us start with the contention that there is a very small similarity between Hobbes and Rousseau so far as obligation is concerned. Both Hobbes and Rousseau were in favour of unconditional obligation.

Hobbes advised his people to show uncon­ditional obligation to the sovereign authority without which there could not be peace and security.

Rousseau also advised his people to obey the general will because herein lies the welfare of all men and it cannot do any wrong. Naturally the obligation to such a will should never be conditional. Again, if anybody refuses to show obligation he will be forced to show obligation.

The chief difference between the two philosophers is that obligation of Hobbes’s people was to a single person whereas obligation of Rousseau’s people was towards the general will and people themselves were the architects of that will. So by showing obligation to general will Rousseau’s men practically showed obligation to themselves.

In order to make a comprehensive analysis of obligation conceived by Rousseau we want to quote a lengthy passage from his A Discourse on Political Economy.

“The body politic is a moral being possessed of a will; and this general will, which tends always to the preservation and welfare of the whole and of every part and is the source of the laws, constitutes for all the members of the state, in their relation to one another and to it, the rule of what is just or unjust”.

It emphasizes the following aspects:

(a) To him the general will was a moral being.

(b) The general will always aims at the welfare of the whole society. Its purpose is also the preservation of the body politic.

(c) General will is the source of all laws.

(d) There is a close relation between general will and members of the body politic.

This nature of the general will force the people to be obliged to it uncondition­ally. An alternative course of action will lead the body politic to destruction. But people will refrain from adopting that extreme and dangerous path.

It was beyond the imagination of Rousseau that his individuals (i.e., the individuals of the body- politic) would take that action. This is the very foundation of Rousseau’s theory of obligation. Moreover, laws are enacted to realize the welfare and preservation of the body-politic.

Behind the enactment of law there was the active participation of people to disobey such meant to disobey themselves. The general will, again, is the manifestation of morality and, naturally, non-obligation cannot arise.

We have noted elsewhere that Rousseau imagined a state resembling human body. “The body-politic, taken individually, may be considered as an organized, living body, resembling that of man. The sovereign power represents the head, the laws and customs are the brain.”

As individuals are the parts of the body politic, there is hardly any scope for any particular individual to non-cooperate with the body politic. This observation of Rousseau regarding the organic character of state is similar to Plato’s theory of state.

Different parts of state are interdependent. Since Rousseau’s body politic possesses the features of living body the obligation to such an organization appears to be unconditional. All the parts of the organization are closely related with each other and in such a case obligation is bound to be unconditional.

Rousseau apprehended that a conditional obligation may lead the state to collapse. G. D. H. Cole in his Introduction to Social Contract has interpreted Rousseau’s idea of obligation in the following way.

Since his general will is rational and infallible and men are also rational they are supposed to show unqualified obligation to the general will. Any aberration will expose the irrationality of the people and this is in opposition to Rousseau’s main contention. So in the vortex of arguments Rousseau’s concept of obligation has come to be an unqualified one.

It would be quite wrong to treat Rousseau’s view of obligation as a mere conjecture or wishful thought. It is far more than that. It embodies a very high ideal. Through the instrumentality of general will he wanted to state that the members of the body politic would keep themselves above narrow and personal interests.

He was of firm belief that the deviation of people from showing obligation to general will would threaten the very foundation of the body politic. His rational people would not resort to that technique.

He did not consider the obligation simply as a relation between the governors and governed. It is far more sublime and full of ideals and morality. The main pillar of Rousseau’s political thought is general will and the core of the general will is obligation. He has viewed it from a comprehensive perspective. It is back grounded by Plato’s idealism.

It constituted the central theme of direct democracy. It reveals people’s rationality and pursuit of happiness. Rousseau adopted a sublime and universal outlook. So we can say that Rousseau kept himself above narrowness of personal interest.

Mere attainment of certain rights was not important to him. Neither Hobbes nor Locke thought of morality or idealism. Nor did they treat obligation as a weapon for the advancement of welfare and preservation of the state. While considering obligation of the three philosophers we should keep this in mind.

It may further he added that through the general will and civil society Rousseau made a modest attempt to revive Plato’s idealism to which he was attracted. Plato made all the citizens as integral parts of the ideal state and he kept no scope of difference between citizens and ruler.

Plato’s ruler is not an ordinary person—he is a philosopher-king. There is hardly any scope of raising allegation against such a ruler. General will is the manifestation of morality, idealism and the best wishes of all men. Naturally, there is no question of withdrawing obligation.

4. Dem
ocracy:

From the past study we may frame the following conclusion. Hobbes was not a hundred percent autocrat, nor was he a perfect democrat. He was less a democrat and more an autocrat. To Locke both the legislature and the community were the holders of supreme power. But Locke is an inconsistent thinker.

The legislature and community both cannot be holders of supreme power at the same time. But the stand of Rousseau in clear. The g.w. is the supreme authority and people assembling periodically decide the next course of action as well as policies. This is perfect democracy.

It is believed that his analysis of general will contains the idea of democracy.

In Book II, Chapter IV Rousseau makes the following remarkable observation:

“The general will, to be really such, must be general in its object, as well as its essence, that it must both come from all and apply to all; and that it loses its natural rectitude when it is directed to some particular and determinate object…what makes the will general is less the number of voters than the common interest uniting them”.

The central theme of democracy is that particular interest will never get any priority and Rousseau talked about that. In a democratic state the general welfare of the society will be placed above the personal interest and in the above passage Rousseau emphasized that. David Thomson in his essay “Rousseau and the General Will” has said “It is this that makes Rousseau a great democratic theorist” Rousseau did not judge democracy by number.

In a society majority may be guided by personal interests while the minority may consider the general welfare and in that case minority’s stand will be given approval. Even J. S. Mill (1806-1873) did not recognize majority rule as the criterion of successful democracy.

Rousseau frowned upon British parliamentary democracy and said the British people are free only at the time of election.

It has been observed by many critics that while penning Social Contract, the memory of Greek city states was highly active in Rousseau’s mind. But such a picture is quite irrelevant in our time.

Naturally his conception about democracy cannot be accepted. But it is to be remembered that he thought of Greek city states or of his native Geneva to facilitate the personal involvement of all citizens in the law-making and decision making process of the state and Rousseau considered this personal involvement as the vital aspect to democracy. So suspicion cannot be raised against Rousseau’s view about democracy.

Rousseau thought that balkanization of body politic is against the interest of society and he makes this point quite clear in Book II Chapter III where he said – “It is therefore essential if the general will is to be able to express itself, that there should be no partial society within the state.”

The implication is the division of society into small parts is against the proper functioning of g.w. and again if the g.w. does not function properly people’s democratic right and its realisation will be adversely affected.

In support of his contention Rousseau quotes Machiavelli. Machiavelli once said – “In fact there are some divisions that are harmful to a Republic”. His apprehension was that if the g.w. cannot get scope to work properly, then people’s democratic right turns into a fiasco.

Rousseau’s love for democracy is revealed from his view expressed in Book IV, Chapter II where he has said that behind every law there shall be consent of all citizens. That is he wanted to make the law of the state unanimous. In the same chapter he has said that it is the duty of citizen to give consent to a law.

The citizen shall have the right to express their opinion about any law but once it is accepted observing the norms of the general interest the dissenters must give their consent. We may say that by advancing this argument Rousseau had made the laws of the state really broad-based.

His intention was to bring the minority into the fold of majority, and to stop the division of society into majority and minority sections. In any case minority will have to consider whether the law consented by majority is in conformity with the objectives and principles of general will.

In A Discourse on the Origin of Inequality Rousseau has maintained that in the state of nature there was hardly any inequality. This has been created and developed by the human faculties.

Human nature and mind have made it legitimate and permanent. What Rousseau has not explicitly stated is that inequality is the creation of man for the gratification of parochial interests.

This inequality is responsible for the deterioration of democracy. The state of nature was free from this sort of harmful inequality and he wanted to banish this by general will. Even today we treat inequality in status and wealth as the great enemy of democracy.

We are surprised at the farsightedness of Rousseau who eloquently talked about inequality more than two hundred years ago. Rousseau was not a statesman or a powerful leader of any mass party.

With a deep insight he viewed the nature and working of government of his time. After this he came to the conclusion that the social evils are due to the social inequality.

The greatest worshippers of today’s world say the same thing. There is no doubt that Rousseau was extremely anxious on seeing the condition of democracy. His anxiety is reflected on the last few lines in a Discourse on the Origin of Inequality – “Since it is plainly contrary to the law of nature, however defined, that children should command old men, fools wise men and that the privileged few should gorge themselves with superfluities, while the starving multitude are in want of the bare necessities of life”.

This view also reveals Rousseau’s love for democracy. Democ­racy cannot thrive in a society divided into rich and poor because the former will dominate the latter. This is against democracy. His idea was that a real democracy should be preceded by economic equality.

We have briefly stated Rousseau’s view on democracy. Whatever may be his love for democracy he was quite apprehensive of its practical side. He thought that real democracy could never be seen in actual life.

In Book III, Chapter IV he said “It is unimaginable that the people should remain continually assembled to devote their time to public affairs”.

This means that he was quite conscious of the limitations of people. That is why he thought that democracy could not be achieved in real life.

The last two lines of this chapter are worth quoting:

“Were there a people of gods, their government would be democratic; so perfect a government is not for men.”

A question may arise why did he devote so much space to the analysis of general will and democracy? The most probable answer is he was very much influenced by the political idealism of Plato’s Republic and he ignored the practical aspects of his thought.

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After reading this article you will learn about the impact of renaissance and reformation on political theory.

Both Renaissance and Reformation turned the academic, intellectual and even the political worlds of whole Europe upside down. The superstition, religious conservativeness and narrowness of mind and outlook underwent drastic changes.

It has been observed by a critic that Renaissance and Reformation Movement penetrated at every level of superstitious beliefs. People of all walks of life changed their belief and outlook.

They did not, it is true, throw away their beliefs about God and religion but the obstinacy in attitude was considerably relaxed and this was due to Renaissance and Reformation. The scientists and social reformers challenged the time-old views and ideas.

People began to view everything with inquisitiveness and scientific mind. Unscientific views and concepts were faced with unprecedented challenge. There was also a change in the political world. People were conscious of their right and obligation. They demanded more and more rights and privileges from the authority.

Religious beliefs and faiths were replaced by materialistic outlook and in this field Thomas Hobbes is really a harbinger. According to several scholars of Western political thought he was the first man who introduced materialism or materialist outlook in political science.

Chris Harman says:

“The conservative political theorist Thomas Hobbes published a thoroughly materialist book Leviathan which combined attacks on the notion of religious miracles”.

Severe attacks against super­stition, conservativeness, unscientific views and concepts began to pour and all these combined built up a solid foundation for new world of thought, faith and belief.

Renaissance and Reformation ruthlessly removed superstition and enlight­ened the faith, belief and outlook. New thought and outlook were not confined in any particular field, it spread almost too all the sections of society and some people call it catch-all effects.

That is, not a single sector or part of society remained out of the catch-all effects or category. Natural scientists, philosophers, historians, economists and political scientists and theorists all made sincere and serious efforts to make contribution to their respective fields.

Their contributions were radical in nature. People of all walks of life began to think and feel that their society was defective and it must be changed. This feeling was almost universal and serious people came under its influence.

Voltaire’s Candide caricatured brilliantly the existing situation, beliefs and faiths. Philosophers Descartes in France, Spinoza in Holland, and Leibniz in Germany were all convinced that reason would prevail everywhere and guide all activities and thoughts. This inflicted a serious attack upon the prevailing thought system. This is called rationalism or rationalist philosophy.

Many thinkers declared that every conclusion must be based on empirical observation. That is, every decision must be supported by facts or physical incidents. Voltaire and Montesquieu of France supported empiricism.

In the period of Enlightenment, Voltaire once said; encrasezl’ infame—crush the infamy. These words he uttered against the superstition of religion.

Gibbon in England wrote a pioneering work the Decline and fall of the Roman Empire which was a scathing attack on the influence of the Christian church.

All these thinkers were unanimous at least in one respect and that was everything was changing and therefore society must be changed to cope with the new situation.

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This article provides a short bio of John of Salisbury who was one of the medieval thinkers.

The presentation of the supremacy of the church is to be found in the writing of John of Salisbury who is considered by many as the most typical Medieval writer. His famous political book is Policraticus.

John had gathered wide experience about politics and in this respect he can be compared with Locke, Burke and John Stuart Mill. He came in close contact with politics and government which enabled him to acquire first-hand knowledge about the affairs of the state.

In fact, this became his intellectual asset. Being a church-man he earned the reputation of a political writer. But it is to be noted here that John was not the innovator or originator of any political doctrine. His political ideas are mixture of politics and religion and this is due to the fact that he could not keep himself above the influence of the church and religion.

He viewed and analysed everything in the background of religious outlook. Again, he did not make any relaxation about the supremacy of the church and in this respect we do not find any difference between St. Bernard and John of Salisbury.

John was the champion of the supremacy of the ecclesiastical authority. The struggle between the church and the state started in the ninth century and in the 12th century, when John started his writing, it had not ceased. In order to find out a solution to this he suggested the supremacy of the church over the secular power.

He wanted to destroy the equal status of the state and the church. He was the supporter of the doctrine of two swords but he said that both the swords belonged to the church. The prince would take the sword of flesh from the church and use it under the guidance of the church.

He denied any autonomy to the emperor. Let us put the matter in John’s own words – This sword the prince receives from the hand of the church, although she herself has no sword of blood.

Nevertheless she has this sword, but she uses it by the hands of the prince, upon whom she confers the power of bodily coercion, retaining to herself authority over spiritual things in the person of the pontiffs.

Since the church was the original and real owner of sword, it had the full authority to dismiss the king if he were found violating the law of God.

In Policraticus we find a repetition of the organic theory of the state. Here he has compared the state with the human body. According to John the farmers and the workers of the state are like the feet of the human body. Because, as without feet human beings cannot move at all, so, without farmers and workers, a state cannot exist.

The financial officers of the state correspond to the stomach and intestine. The officials and soldiers are like the hands.

The senate can be compared with the heart. The prince can duly be compared with the head. Finally, the church of the state is the soul of the body. As the soul is the most vital organ of the body so also the church is the most important part of the state.

John’s another contribution to political thought consists in drawing a difference between a tyrant and a prince.

A tyrant is one who oppresses the people by ruler ship based upon force. When a man rules the nation in accordance with law, he deserves to be called a prince. Law is the gift of God, the model of equity, a standard of justice, a likeness of the divine will, the guardian of wellbeing, a bond of union and solidarity among people.

The prince defines the duties and creates hindrances on the spread of violence and wrong-doings. The prince fights for the liberty and laws of the people. A tyrant is exactly opposite to the prince.

John further observes that tyranny originates from inequity and poisonous root. It is a tree which grows and sprouts into a baleful pestilent growth and to which axe must by all means be laid. John’s estimate of tyranny is highly provocative. In this respect he is indebted to Aristotle. His analysis of tyranny holds good even today.

John has ruthlessly attacked the vices and abuses of the ecclesiastical authority and, because of this; it is being underestimated by the public. It is not befitting on the part of the church to be engaged in the struggle for power.

The prestige of the church is much higher. But it has deliberately degraded its own position and prestige. His criticism of the church influenced contemporary thought.

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After reading this article you will learn about the antithesis between collectivism and individualism.

If by individualism we mean a belief in the rights of individual persons, and by collectivism we mean a belief in the collective service owed and rendered to such rights by government, we shall see no opposition, but rather a necessary connexion.

It is possible, indeed, to draw a distinction, as some thinkers have done, between a period of individualism, dominated by the influence of Bentham and his followers and marked by the idea of liberation, which lasted into the third quarter of the nineteenth century, and a period of collectivism, marked by the extension of the idea of protection, which succeeded the period of individualism from 1870 onwards. But the distinction is a distinction of the study; and it may even be said to show a class or professional bias.

Some classes or professions might mourn a loss of individual rights after 1870: others, and those were numerous, began to enjoy an increase. Generally the whole of the nineteenth century, far from being divided into two different parts, was a century of a single and homogeneous process; a process of the extension of personal rights, which may be called individualism, but a process entailing, at the same time, an extension of the service of government on behalf of those rights, an extension which may be called by the name of collectivism, but is really and in fact the consequence and the other side of the extension of personal rights which is called by the name of individualism.

Individualism is a word which is easily used in different and even conflicting senses. It can be used, and is often used, to denote a doctrine that the State leaves the individual alone, ‘letting him do and letting him go’ (laissez faire et laissez passer) as he himself thinks best. The phrase is a phrase of the French Free Trade economists of the eighteenth century: it originally belonged only to economics, and only to one part of that—the part con­cerned with commerce.

It was a good enough phrase in its day, and it has its value still, in its own restricted field. But it cannot be properly applied to economics generally, or made to include the field of industry as well as the field of commerce: still less can it be applied to the whole broad field of politics.

Individualism of the laissez-faire order in that field, individualism which meant that the State should leave each individual alone in the general business and whole conduct of life, would not only mean derelic­tion of its duty by the State; it would also mean the destruction of the individual’s power to do anything freely or to go anywhere freely.

A true individualism, in the field of politics, involves a recognition of the State’s liberating power, coupled with a recognition of its duty to use that power according to its nature, and therefore for liberation and the removal of obstacles.

Individualism so conceived starts, indeed, from individual personality, and from the inherent title of each individual person to enjoy the conditions necessary to the development of his capacities. But just because it starts from that basis, it cannot end in any conclusion of laissez faire, or issue in any doctrine that it is the duty of the State to leave individuals alone.

The condi­tions necessary for the development of each individual person are not to be had for the whistling, and they do not come of themselves in obedience to each person’s call. They have to be assembled by a collective effort which is only possible to an organized State. They are assembled for the sake of the individual; but he cannot assemble them himself, or be left alone to shift for himself by his own unaided devices.

On the contrary, he must be surrounded with service; a collective service which, in union with others, he himself helps to provide for others as well as himself: a service which becomes all the greater, the more fully the conditions necessary for his development are recognized and the more his rights are thereby extended.

The State which is based on regard and respect for the worth of individual persons is not a ‘let-alone’ State: it is a State which follows and attends, ‘with unperturbed pace’, and with a constant office of service. To argue for individuality is not to argue for the un-served and unattended individual.

It is rather the opposite: it is to argue for the general legal framework, and the whole system of collective service, which individuality needs for its development: it is to argue for the rights it requires, for the system of Right which is the other side of these rights, and for the service of the State in declaring and enforcing the common conviction about that system.

The argument seems to result in a paradox: ‘the greater the liberty of the individual, the greater the interposition of govern­ment: the more rights, the more law, and therefore the more the activity of the State in declaring and enforcing law. The statement of the paradox suggests a reflection. There is always a price to be paid for rights.

That price, is partly financial, or a matter of payment in money; partly spiritual, or a matter of payment in the acceptance of control. We need not pause to discuss the nature and the implications of the financial price. That is a matter of economics: of national finance and the balancing of national income and national expenditure.

It is the spiritual price which matters most; and the crucial balance to be struck is the balance between the spiritual profit gained in the increased enjoyment of rights and the spiritual loss incurred or involved in the increased acceptance of control. When we seek to strike this balance, we have two calculations to make.

The first is a calculation of the gain and loss in the private account of each individual: it is a matter, as it were, of the private bank-book of each; it is a business of reckoning individual gain of liberty against indi­vidual loss. The second is a calculation of the gain and loss in what may be called the common account of the whole com­munity: it is a matter of reckoning between classes or sections of the community; it is a business of computing the gain of one class or section, in liberty and personal rights, against the loss of another.

The necessity of reckoning spiritual gain and spiritual loss in the private account of each individual is a necessity which may easily be forgotten; but it still remains a necessity. Men readily accept new rights and the enlargement which they immediately bring: they are less ready to remember the price and the restric­tions which may be entailed.

The rights comprised in a system of social security are precious; but they are necessarily accom­panied by administrative control and regulation, and they necessarily involve the performance of prescribed and com­pulsory acts in the channels of regular routine. There is at once an increase of liberty and an increase of automatism; and the question is whether the increase of liberty is more than enough to offset the increase of automatism.

To enjoy the rights of social security is to be liberated from fears and dangers; to be more of a freeman, and to have more freedom for the develop­ment of personal capacity. If the freedom is grasped and used, and if the development is actually achieved, the game is well worth the candle, and the commodity is worth far more than the price. On the other hand there is a price.

To be liberated from a set of risks is also to be liberated from the responsibility of facing those risks: indeed it is even more, under a system of collective insurance; it is also to be subjected to the control in­volved in the system. Only if the liberty gained is actively grasped and used; only if it is something more than a passive acceptance of benefits; only then will there be a net gain on the whole of the transaction.

The man who is formally made more free by a system of social security mus
t actively use his freedom to make some­thing more of himself if he is to be really and actually more free.

The necessity of reckoning gain and loss between different classes or sections is a still more obvious necessity, daily forced upon our attention by the process of class-debate. The extension of rights for one class may mean the limitation of rights for another; and it is possible that the one class may lose even more than the other gains. But that, in itself, does not necessarily mean that the bargain is bad.

The previous distribution of rights between classes may have been unfair and inequitable: one class may have been entrenched in the possession of a superfluity, and the other depressed below the level of bare necessity. If the greatest number are to enjoy the greatest possible development of the capacities of personality, correction is inevitable, and it may be as just (in terms of the sovereign justice which assigns rights equally to each and all) as it is inevitable.

The distribu­tion of rights among classes is not a thing fixed forever. It is a matter for constant adjustment and readjustment, as social thought about justice grows and as the interpretation of the principles of liberty and equality broadens with its growth. But there is still a limit to the process of adjustment and readjust­ment.

It may be fair to ask one class, particularly when in numbers it is a small and limited class, to surrender old rights and responsibilities for the sake of another and larger class, and in order that the members of that class may enjoy new rights and responsibilities. But it will only be really fair if two conditions are satisfied.

The first of these conditions is that the rights and responsi­bilities surrendered should be used by those who receive them for their own higher development, and not merely accepted as prizes or trophies. Otherwise there may be no gain, and there may even be loss, in terms of that development of personality which is the final criterion.

The other condition is that the class surrendering rights (such as the right to ownership of capital resources and the management of those resources on the basis of personal responsibility) should not be made to surrender so much that it becomes impotent to contribute any energy of initiative or originality of experiment to the develop­ment of the national economy and the general national culture or type of civilization.

Under any system of organization a national community will always need an initiatory and experi­mental class which can generate and distribute the electricity of ideas. The recruiting of that class should be broad and generous; and every talent should have an open way into its ranks.

But however recruited, and however broad, this class will always require the conditions necessary for the discharge of its electric work; and there will always remain a modicum of rights and responsibility which it must necessarily retain if it is to be itself and to contribute its own gifts to the cause of general develop­ment.

The days of hereditary aristocracy are gone; but there is no numbering of the days of what may be called the profes­sional aristocracy, in the widest sense of the word ‘professional’. The more a national community moves towards the greatest possible development of the capacities of personality in the greatest possible number of persons, the more it needs the stimulus which professional skill and managing capacity can give to the whole development of the whole community.

It has been argued that there is no antithesis between indi­vidualism, in the sense of a belief in the development of indi­vidual personality, and collectivism in the sense of a belief in the collective service necessary for individual development. On the other hand, it has also been argued that though there is no antithesis there is or may be tension—a tension between the ‘pull’ of individual development and the ‘pull’ of a collective service which must always be in some measure also a collective control.

The two may be complements to one another; but they are complements which need a nice and delicate adjustment. There is a principle of polarity in the political nature of man, as there is in human nature generally: a ‘quality of exhibiting opposite or contrasted properties’, a ‘tendency to develop in two opposite directions’.

In his general nature man has the con­trasted properties of privacy and sociability; and though he is one being, and though he needs them both, he is also divided between them, and he also feels the tension between their different pulls.

Similarly in his political nature he has the con­trasted and yet complementary properties of the individualist who would fain be himself and the collectivism who would merge himself in a fellowship of service; and though he is one being and needs both these properties, he is also divided between them and feels in himself the tension of a ‘tendency to develop in two opposite directions’.

Individualism and collectivism are not the banners of two separate armies, composed of two separate bodies of men. All of us fly them both, and we all serve under both. There is a polarity in each of us, as well as in the whole com­munity to which we all belong. We need not dread the resultant tension. That would simply be to dread life; for life is tension, as tension is life.

We have to accept it as it exists, both within our­selves and within the community; and we have constantly to find, in each new conjuncture, the new adjustment which the new conjuncture demands, surrendering neither individual development nor collective service, but endeavouring to find an adjustment which preserves them both and may even make them both mutually serviceable to one another.

There is another polarity, and another tension, besides the tension within the State between the call of individual develop­ment and the call of collective service.

This is the polarity or tension between the State and Society; between the community permanently organized in a single legal association, for the one legal purpose of declaring and enforcing universal and uniform rules, and the community organized, or rather constantly organizing itself, in a number of voluntary associations for a variety of purposes (religious, cultural, recreational, charitable, economic, and whatever else may be comprehended under the general designation of ‘social’), which adorn and supplement, and may even stimulate or anticipate, the activity proper to the purpose of the legal organization.

The question which thus emerges, and the tension thus presented, bring us back at the end to the theme from which the argument originally started. What is the province of the State, and what is the province of Society? Is there any definite boundary, or how shall we con­ceive their relations?

In attempting to answer this question we may begin by asking ourselves whether the goal which is set before us—the securing of the greatest amount of rights for the greatest number of persons; the providing of the conditions for the highest possible development of the capacities of personality over the widest possible range—is a goal which can be simultaneously attained by two parallel lines of action, or a goal to be attained by one and only one.

Can the extension and spread of rights ‘in widest commonalty’ be partly secured by voluntary action in the social area, or must it be altogether secured by uniform and compulsory action in the legal area, with a large consequential growth of State-action and a large increase of the functions of government in the necessary service of rights? There is a good case to be made in favour of the first of these alternatives.

Voluntary action in the social area is needed as well as, and no less than, the uniform and compulsory action of the organized State in its own legal area. Both are necessary, but the first comes first; and the prior thing, in the order of time (though not necessarily in order of importance) is
the voluntary action of Society.

We do our best if we do what we can for ourselves, by voluntary social co-operation, before we invoke the action of the State—which indeed is also ourselves, wherever it is democratically organized, but is ourselves engaged in the making and enforcing of com­pulsory rules. There is a time for voluntary and varied experi­ment as well as for the uniform obligatory rule.

Indeed the distinction between social action and the legal action of the State is perhaps rather a distinction of time than a distinction of space or area. It is not always the case that one sort of action is concerned with one area or set of subjects, and the other with another area or set: on the contrary, both sorts of action may well be concerned with the same areas or sets of subjects.

Rather it is often the case that the one sort of action belongs to one time or conjuncture, the time of the laboratory’ and the experiment, and the other to another time or conjuncture—let us say, in a metaphor, that of mass-production, when a result of the labora­tory is being put on the market as a standardized uniform commodity.

If we follow this line of thought, we shall be led to believe that a reorganization of the economic process, such as will introduce the principles of liberty and equality into this process, and will therefore secure to all who are concerned in it the rights involved by these principles, may well begin, and may even sometimes remain, as the level of voluntary agreement between voluntary associations (those of the workers and those of the employers), an agreement based on voluntary consultation and issuing in voluntary co-operation.

But often the matter will not end there, and there will come a time and conjuncture for acting in a different way and by a different mode. Voluntary social effort, feeling its way, making its experiments, proceeding by trial and error, may discover a best which is so obviously best that it deserves to be made the general rule.

In that case the State, which is not the enemy of Society, but rather stands to it in something of the relation in which a solicitor may stand to a family, will register and endorse this best as a rule for general application and enforcement. But just as it is wise to avoid going to a solicitor unless or until you have a case to submit, so it may also be wise to avoid recourse to the State (to which we are perhaps too prone to carry our problems instantly) until social thought and experiment have done their preparatory work.

The issue between Society and the State, if we can speak at all of an issue, is riot an issue between opposites. How indeed can it be so, when the State is just Society writ legally—Society organized in the form and for the purposes of a legal association? It is either an issue between two alternatives, either of which may serve, but one of which, at a given moment, may serve better than the other, or an issue between two complements, both of which are needed, but one of which is needed as the forerunner of the other.

The conclusion to which we are thus led is not a conclusion in favour of the individualism which means leaving individuals alone, to shift for themselves by their own devices: nor again, on the other hand, is it a conclusion in favour of the form of collectivism under which the State serves individuals so much that they have little or nothing to do for themselves, and thus lose much of their liberty in the very act of their own liberation.

It is rather a conclusion in favour of the maximum of voluntary self-help by groups of individuals, voluntarily acting for them­selves in the social area; thinking out for themselves, in their own sphere of interest, the requirements and conditions of their own development; and, when they have thought them out for themselves, going on to achieve them by themselves, and by their own efforts, so far as in their own sphere they can.

In one sense this may be called individualism; for it involves a belief in the value of the spontaneous activity of individuals, freely associated for the purpose of shifting for themselves, by their own devices, in a scheme of voluntary self-help.

In another sense, however, it may also be called collectivism; for it involves a belief in the value of the concerted activity of collective groups, each knit together by a common interest of all the members in a common object, and each seeking to achieve its object by means of common effort.

But on a broad view the method of voluntary self-help by the concerted effort of a voluntary association is neither individualism nor collectivism, in the ordinary sense of those terms; it is a happy bridge between them. The essence of the method is a spirit of ‘voluntary community’, which marries voluntas to communitas; and the essence in turn of that spirit is the power not of force but of persuasion.

The power of persuasion, issuing in the spirit of voluntary community, has studded the world in which we live with a profusion of social institutions. Professor Whitehead, in one of the most suggestive of his essays, has spoken of the trans­formation wrought in the problem of liberty by ‘a profusion of corporations originated by explicit thought’.

In his view the development of these autonomous institutions, limited to special purposes, places the problem of liberty at a new angle: and he holds accordingly that the novelty of our days, and the modern method of solving the problem of liberty, ‘consists in the deliberate formation of institutions, embodying purposes of special groups, and unconcerned with the general purposes of any political state’.

His authority and his persuasive power reinforce the argument here advanced. The future will largely lie with the development and the activity of a variety of social institutions. What such institutions can do, and what they may ultimately achieve, in the economic field, is a matter already touched upon in the previous course of the argument. But there are other fields besides the economic in which the development of social institu­tions may contribute greatly to the solution of the ancient problem of liberty.

There is, for example, the field of education, which is not, and never can be, a monopoly of the State. Educa­tional associations—of parents, of teachers, of workers, and of members of religious confessions—are all concerned in the development of educational experiments, and in offering that liberty of choice among types of school and forms of instruction which is essential to the growth of personal and individual capacity.

Indeed on a general view, and looking beyond parti­cular fields to the general field of the way of life and the type of civilization common to the whole community, we cannot but notice that social institutions are active in all its range and over all its extent. ‘Our lives are passed from the first not in a monistic, homogeneous circle, but in a number of circles. … we live in various social complexes which are in the last resort concentric and each of which has its own intellectual content.’

These circles and social complexes, each with its intellectual content, and all with their moral aim of mutual aid and common service, are essentially personal unions, enlisting personal interest and eliciting fully the initiative of their leading personalities. The greater the part which they play, on that basis and in that form, the greater their contribution to the development of the capacities of individual personality in the community at large, and thereby to the growth of a better way of life and a higher type of civilization.

But they must be true to their personal basis, and retain their personal form, if they are to contribute effec­tively. Social institutions can easily become ossified, no less than political: they can become official organizations, in lieu of personal associations – they can dictate to their members, instead of responding to the lift and surge of their minds.

They must constantly be r
enewed and reviewed – sometimes, when they have served and outlived their purpose, they may even have to be destroyed, in order that something new and better may be able to take their place. It might be a motto for a community – ‘Never rest content with your institutions, whether social or political—but least of all with the social: there is a virtue in continuity, but there is no less virtue in change.’

All in all, the question before us is not a question of ‘the man versus the State’, or of individualism versus collectivism. There is no point in the question: there is no such antithesis; there is, at the most, a tension, which is as healthy as it is necessary. Nor is the question before us a question of ‘Society versus the State’, or of the voluntary principle versus the principle of legal control and regulation.

There may be more point in that question; but again there is no antithesis, for both of the things thus opposed are needed, and both may be needed equally. Here, however, the tension is greater; and here, there is a reasonable ground for debating, not so much what the State should do and what Society should do (both handle equally a number of matters, and few matters can be said to belong exclusively either to the one or to the other), as when and in what conjuncture Society should be the agent, and when and in what conjuncture the agent should be the State.

Each mind has a drawing bias, which makes it naturally run in some particular direction. The bias of the writer has always inclined his thought—the more, the older he grows—towards a belief in the value of the social mode of action. With all its imperfections and its possible inefficiencies, it is none the less a mode of action which permits and even demands the free energy of the mind.

The movement of the State is the regular revolution of steady and unfailing machinery. The movement of social institutions is a varied and irregular movement, like the movement of trees and plants as they spring from the seed in the ground: here one group, and there another, thrusts up its fresh particular idea into the varied field of social life and experiment.

The humming automatism of the State is about us and all our doings, engaged in constant service and constantly intending our good. The varied field is untidy, irregular, un­regulated: it has many gaps: it has even more redundancies. But may the time never come when all our life spins round on the revolving wheels of legal regulation.

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After reading this article you will learn about the relation between the state and law.

The State, on the conception here adopted, is a legal associa­tion: a ‘juridically organized nation, or a nation organized for action under legal rules’. It exists for law: it exists in and through law: we may even say that it exists as law, if by law we mean not only a sum of legal rules, but also, and in addition, an operative system of effective rules which are actually valid and regularly enforced. The essence of the State is a living body of effective rules; and in that sense the State is law.

The English word ‘State’ comes from the Latin status, which has had a curious and chequered history during the centuries of its development. (Words too have their growth and their evolution; and they too may go through curious mutations.)

In classical Latin, the word status meant generally the ‘standing’—that is to say, the position—of a person or body of persons: but by Cicero’s time it had come to be specially applied to the ‘standing’ or position of the whole community, and Cicero accordingly speaks of the status civitatis, or the status reipublicae, in the general sense of the constitution and institutions by which, and in which, the civitas or respublica stands.

Travelling through late Latin (in which, like many other words beginning with similar double consonants, it acquired an initial i and became i-status), and then through the Romance languages, the Latin status gave us even­tually three English words—

(1) ‘Estate’, in the sense of a stand­ing or position in regard to some form of property (a ‘real estate’ in land, or a ‘personal estate’ in movables);

(2) ‘Estate’, as when we speak of the three Estates of the realm, using the word in the primary sense of a grade or rank in the system of social standing or position, and thence in the derivative sense of the body of persons belonging to such grade or rank; and, finally,

(3) ‘State’.

This last derivative, it is important to notice, was not originally used in the Ciceronian sense of status civitatis or status reipublicae; nor did it mean, as those phrases had meant, the general standing, position, or ‘polity’ of the whole community and all its members. It had another and different connotation, which long persisted and may still be traced in modern usage.

The word ‘State’, when it came into use in England during the sixteenth century, brought with it from Italy the idea of a high ‘State’ or stateliness (state) vested in some one person or someone body of persons.

It meant primarily a peculiar standing, of a kind which was political, and of a degree in that kind which was superior or supreme; and thence, by an easy extension, it came to be used derivatively of the person or body of persons invested with such standing.

This was the usage down to 1789, and even later: the ‘State’ meant primarily the position of being the superior or supreme political authority, and thence it came to be applied derivatively to the person or body enjoying that position.

It was thus a term very similar to, and practically identical with, the terms ‘sovereignty’ and ‘sovereign’, similarly derived from the Latin (in the late Latin form superanus) and similarly transmitted to England through Romance derivatives from the Latin (and especially through the Italian sovrano).

Bacon, in the beginning of the seventeenth century, uses ‘State’ as a term synonymous with or parallel to ‘King’, as when he speaks of ‘Kings and States’ consulting judges. Louis XIV, in the middle of the seventeenth century, must have thought that he was stating a truism, and not attempting a paradox, when he exclaimed L’Etat, c’est moi! Was he not in his own view, as in that of his subjects, the person who enjoyed the ‘state’ and position of being the supreme political authority, and was he not therefore ‘the State’?

So far, and so long as these views prevailed, the notion of authority, of a position or ‘standing’ of supreme authority, and of the person or body placed in that position and having that ‘standing’—this was what formed the connotation of the word ‘State’.

Such a connotation belongs to a graded and hierarchical society, in which there are different states or ‘Estates’ (or sorts and conditions of men) arranged in ascending degrees, and one of these states or ‘Estates’ is the State par excellence.

But this con­notation begins to disappear—or rather to be overlaid—when a graded and hierarchical society yields to a society of equals. After the end of the eighteenth century it may be said, L’Etat, c’est nous! The State is now the whole community: the whole legal association; the whole of the juridical organization.

This is democracy, or a result of democracy: we must henceforth think of the State as ourselves (or as the juridical organization which we have given to ourselves, or the legal association into which we have formed ourselves); and we must henceforth give the name of ‘Government’ to the authority—before called ‘State’—which is now seen as exercising on our behalf the powers which it had hitherto claimed as its own.

But language is slow in adapting itself to changes of thought; and words may long continue to carry the associations of a vanished past. We still use the term ‘State’ with the connotation—only overlaid, and not yet erased—of earlier centuries.

We regard the State still as some sort of being, somehow distinct from ourselves, which still interferes with us (thus we speak of ‘State-interference’), and against which we still must defend the cause of individualism in the war (as Spencer called it) of ‘The Man versus the State’. It is a sad complication of thinking that we so often think with obsolete words, or rather with words whose connotation, in the sense in which we still use them, is obsolete or obsolescent.

From the etymology and history of the term ‘State’ we may now turn to those of the term ‘law’. The term appears to have been borrowed by the English, about the year 1000, from their Scandinavian invaders: it came to them not from the Latin (the Latin terms lex and legalis are not cognate in origin or connota­tion), but from a Teutonic root meaning to ‘lay’, to place, or to set.

Law is thus etymologically something positum, or, as we should say, ‘imposed’: it is something laid down or set, as one sets a task or lays down a rule; and it is accordingly defined in the Oxford English Dictionary as ‘a rule of conduct imposed by authority’.

If this definition be accepted, we are carried back to the notion of the State as being, in its nature, a superior or supreme authority: we are led to regard law as a rule, or a body of rules, imposed by that authority; and we are driven in the issue to conclude that the command of the State, regarded as a supreme authority, is ipso facto the law for its members, regarded as the ‘subjects’ of that authority. This indeed is a view which long prevailed. It may be called the Austinian view of law.

It is expressed by Austin in the propositions that ‘law is a command which obliges a person or persons’; that ‘the term “superiority” … is implied by the term “command”, and that accordingly ‘every law simply and strictly so called is set by a sovereign person or . . . body of persons to a member or members of the independent political society wherein that person or body is superior or supreme’.

Upon this view, then, the State is regarded as being in its nature authority—the superior or supreme authority—and law as being a body of commands set by that authority to all the persons who are its subjects.

The view has some historical justi­fication, or at any rate explanation; but it does not square with the facts and ideas of contemporary life. The word ‘State’ no longer suggests to our minds the i
dea of authority, or presents them with a picture of the high ‘state’ and the sovereign status of a person or body of persons enjoying and exercising a right of command over subjects.

It rather suggests to our minds the idea of association; it presents them with the image of an associated group, as wide and as multitudinous as the whole of a nation, which lives together by virtue of a con­stitution which it has made, and lives by the rules of law made for it and on its behalf by a law-making agency which acts as its organ under that constitution.

The State is now—though that was not the sense of the word when it was adopted into our language—the status reipublicae, the standing or condition of the whole of the legally organized community. It is, in its primary and abstract sense, the status or position, common to us all, of being the members of a legal association: it is, in its derivative and concrete sense, the members themselves—the whole of the members—when regarded as holding, and holding in common, such status or position.

Upon this conception of the State there follows a correlative conception of law. Law ceases to be the product of the authority of a person or body of persons con­ceived as being superior or supreme in the political society in which they act. It becomes the product of the whole of the association, primarily in the form of the constitutive memo­randum of association (or, as it is generally termed, the ‘con­stitution’) made, or at any rate ratified, in the general usage of modern States, by the action of the members themselves, and secondarily in the form of a current system of legal rules made by a body, or bodies (for, as we shall see, there may be more than one body concerned), representative of the members and acting on their behalf under the constitution and in virtue of the authority conferred by the constitution.

That is the line we may follow if we think in terms of the present. But even if we go back to the past, and consider the source and the growth of law in terms of the past, we may find that we are driven to the conclusion that law has always been something more than the simple command of a single person or body of persons possessing authority over all others. That con­clusion emerges when we ask and endeavour to answer two questions.

The first concerns the way in which the general body of law has been imposed and made binding on a political society. Has it been the way of command, or the way of some­thing other than command? The second question concerns the origin of the various branches of law which go to form the general body. Have they all proceeded from a single source; or have some come from one source and some from another, and are there thus several sources of law?

The development of Roman law will help us to answer these questions. The Latin word for the general body of law is jus, which is something broader and more comprehensive than lex, though lex is one of its elements. How is this jus imposed? Before we return an answer, we shall do well to study the etymology of the word. Jus is not connected with the verb jubeo: it does not mean what is commanded by authority, or quod jussum est.

That may be true of lex, which has some connotation of command, and which is defined by the Roman jurists as ‘quod populus jubet et constituit’. But jus has a different connotation, and is associated with different ideas. It seems to be connected with the Latin word jungere: it means primarily a joining or fitting, a bond or tie; and it readily glides into the sense of binding or obliging.

We may define jus, in its original form, as ‘what is fitting’ and therefore also ‘binding’; or in more detail, we may say that ‘it conveys . . . the idea of valid custom [i.e. the deposited common tradition of the ‘fitting’], to which any citizen can appeal, and which is recognized and can be enforced by a human authority’.We may then go on to think of jus, in its developed form, as a body of binding or obliging rules which—however they have been made, whether by the growth of valid custom or by legisla­tive enactment or otherwise—the courts recognize as binding, and not only recognize but also enforce.

We must notice here the importance of the courts. The Romans—at any rate in the period of the Republic—thought-less of State-authority, making law by command, than they did of the authority of the courts, giving effect to law (however made) by recognition and enforce­ment of its rules and remedies. It is significant that the same word jus is used to denote both the body of law and the courts which enforce that body.

We may therefore say that what im­posed the whole body of law and made it binding on the members of the Roman community, was not the command of a law-giver: it was rather the recognition given, and the enforcement applied, by a law-court.

It is the law-court, and not the law-giver, which is summoned to the mind by the notion of jus; and we may say of the Roman people, what a modern writer has said of the English-speaking peoples, that ‘to them, whether lawyers or not, law means a body of rules enforced by the courts’.

That, for the Romans, was the criterion of law, and that is an answer which may be given to the question, ‘How and in what way has the general body of law been imposed and made binding on a political society?’ We now come to the other question, ‘What is the origin of the various elements or branches of law which go to form the general body?’

Here we have to inquire into the various sources of jus, and to consider how its different elements emerged and acquired definition. Custom, or un­written law, or the jus consensu receptum, was one of the sources, and it is still mentioned as such in the Institutes of Justinian after a thousand years of legal development. (The Digest of Justinian has even preserved a passage of the jurist Julianus, approved and translated by Blackstone in the Introduction to his Commentaries, which puts custom on a level with, and bases it on the same foundation as, the declared rules of the written law. ‘For since the written law binds us for no other reason but because it is approved by the judgment of the people, therefore those laws which the people have approved without writing ought also to bind everybody. For where is the difference whether the people declare their assent to a law by suffrage, or by a uniform course of acting accordingly?’)

Apart from custom, the two main sources of jus (the two sources which formed the jus scriptum) were legislative declaration and legal formulation. Legislative declaration itself in turn flowed from a number of different springs: one spring, the original, was the Roman people, from which proceeded leges; another spring, of a later date, was the Roman Senate, from which proceeded ‘senatusconsults’—or senatorial decrees and ordinances hardly to be distinguished from leges; still a third, of a still later date, was the Roman princeps or emperor, from whom proceeded ‘constitutions’, in a variety of forms (decrees, rescripts, and the like), all possessing legis vigorem.

If legislative declaration was thus triple, legal formulation was double: it consisted partly of the edicts of the magistrates who sat in the courts (edicts at first issued annually, as each new magistrate took office, but becoming in process of time continuous and traditional), and partly of the ‘responses’ of private persons ‘skilled in the laws’ (jurisconsulti or jurisprudentes) who gave their opinion as it were ‘in chambers’ when they were consulted, and to some extent represented the view of the legal profession.

The whole of this process of legal formulation was a great source of Roman law. The judges, and the legal pro­fession behind them, played no small part in the making of jus. We may thus conclude that the sources of Roman law were multiple, and not single.

We may also conclude that the judges not only imposed the whole body of law, in the sense that gave it le
gal effect by recognizing its validity. They, and the juris­consults behind them, were also the makers, or at any rate the original declarers, of much of the law they imposed.

Two results emerge from this summary review of the develop­ment of Roman law. In the first place, the ‘imposing’ of law by the State is seen to be, in effect, the recognizing and enforcing of it by the courts. In the second place, the source of the law thus recognized and enforced is seen to be at least twofold, even apart from custom, and to consist not only of legislative de­claration, but also of legal formulation by the double agency of the courts and the jurisconsults.

The same, or very similar, results emerge from a consideration of the development of English law. In England, too, as well as in Rome, law is the general body of rules recognized and enforced, and in that sense imposed, by the courts.

In England, too, as well as in Rome, the sources of law are twofold: in part the judges, with the members of the legal profession behind them, who have made, and con­tinue to make, the ‘common law’; in part the legislature, which enacts statutes and is thus the maker of statute law, and which, being the immediate sovereign and sitting in constant session, can at any time alter or annul the rules of the ‘common law’ in virtue of such sovereignty.

From England, therefore, as well as Rome, we may learn the lessons (1) that the action of making law may proceed from more than one agent, and may involve a number of forces or sources, and (2) that over and above the action of making, and at least as important as that action, there is also the action of imposing the whole of the system of law (however its different parts may be made) by a continuous process of recognition and enforcement applied in and by the courts.

But when once it is made, by whatever bodies, and when in addition it is steadily imposed by the recognition and en­forcement of the courts, law possesses the attribute of validity and produces the effect of obligation. Valet—its injunction avails and prevails: obligat—it binds men to an engagement of per­forming what is enjoined.

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