CHAPTER XIV.

LAW, AS BETWEEN THE MEMBERS OF A STATE.

IT has been stated that law, in the natural and ordinary sense of the word, has, with one Aryan race, long maintained an independent existence, among very small associations of families, though these have become subordinate to despotic princes: and that it may confidently be inferred to have existed in the early associations of families of Aryan race generally, under forms no nearer to sovereignty than that of declaratory judicial authority. Whether any of such associations would, at this stage, be called, in the same natural and ordinary sense, a state is, I think, questionable.

What constitutes a state? Of the two practical characteristics of a commonwealth insisted upon by Hobbes in the passage quoted above', the first pertains directly to the enquiry what amount of members constitutes a state? This is, as I understand him, with Hobbes, little else than a matter of simple numerical proportion to neighbouring tribes and it is possible to conceive-perhaps still possible to find-an early or barbarous condition of men for which his view is correct. But in far the majority of instances, both past and present, it is well pointed out by Austin2 that the mere proportion of intrinsic strength is not so much the criterion of a state's existence as its enjoyment of a considerable amount of independence-hardly any independence is absolute-in fact and practice.

1 Chap. 13, p. 143.

2 Austin 6, p. 241.

Such an independence, then, by whatever causes produced, if of a fairly established and permanent character, may, I think, be properly taken as the measure of power— which is, rather than any calculation of numbers, the real test essential to such an association as we should consider a state. This independence appears to be indicated in the self-sufficiency for life of Aristotle which he however, I think, like Hobbes makes to depend on number. The negative side of the same idea, i. e. non-subservience to others, is implied, in the Greek historians and politicians, under the name of avтovoμía and the like*.

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Now, for any durable existence of such an independence as I speak of, whether resulting from intrinsic power or from the policy of others, it would seem that Hobbes' second characteristic of a commonwealth is practically necessary, viz. that there be a general direction of the whole body by some common and permanent authority. Without such an authority there may be assemblies, there may be judicial declarations, there may be expeditions of the whole or part of the association: but any lasting relations or any definite existence of such an association, as a whole, in regard to other individuals or associations, are impossible. It is the condition of Israel under the occasional leadership of the judges: the elements of a state are there, but not the state.

Sovereignty of all impossible. Hobbes proceeds, in treating of the several kinds of commonwealth, with one of those exhaustive enumerations, so common in older philosophy, which are rather formally faultless than practically

* Politic. 3. 1. 12. πλῆθος ἱκανὸν πρὸς αὐτάρκειαν ζωῆς, i. e. simply τοῦ ζῆν EVEREV. See 1. 2. 8. and Göttling's note (p. 280).

4 Thucydides, 5. 18. αὐτονόμους εἶναι καὶ αὐτοτελεῖς καὶ αὐτοδίκους καὶ AUTŵν KaÌ TŶS YŶs Tŷs ÉαUTŵv. Translated by Grotius (De Jure 1. 3. 6), "Suis utentes legibus judiciis magistratibus." For the reason of his transposition of αὐτόδικος and αὐτοτελής, see Poppo's note on Thuc. 1. c. For a different, and, I think, wrong rendering of auródikos, Arnold on Thuc. 1. c.

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useful, to describe the sovereign power as residing in one, or more, or all3. The extreme improbability, or rather the practical impossibility, of an independent political society governed by itself, i. e. by a sovereign body consisting of the whole community, is pointed out by Austin on internal grounds. One unavoidable and universal reason is the physical or natural incapacity of some members, whether we consider this as accounting for the almost invariable disfranchisement of the female sex or not. The existence of a subject class or race, very common in early histories, though not of course essential to a state, is also incompatible with a sovereignty of all.

Even in Greek states such as the Athenian, where independence ab extra, pointedly unconnected with any common, or at least single, head is so much insisted upon, the case is really one of a very large sovereign number. The name of true citizen is only given to those who have a share in deliberative or judicial authority, who are evidently implied to be less than the whole body. The same implication lies also in the assumption of a kúpiov or authoritative part9 as necessarily entering into every form of state.

Almost all these points of superiority enjoyed by part of an association over the remainder are probably to be discerned more or less in the constituents of those original assemblies of which I spoke above as a necessary element in every nascent state. Such assemblies do not, however, appear to be historically continuous or identical with the popular assembly of a state proper. The democratic form, for instance,

5 Leviathan Pt. 2, ch. 19, p. 94.

6 Austin 6, pp. 243, 4.

7 Compare Euripides' Supplices, 404-8, with the speeches of the King and Chorus in Aeschylus' Supplices, 365-375. 8 Aristotle Politic. 3. 1. 12.

9 Ib. 3. 10. 1. Tò Kúpov. Jelf translates "ruling element," Stahr "höchste Staatsgewalt," &c. In 2. 2. 2, the difference insisted upon between the constituents of a state appears to be rather in specific function than in power. Cf. 7, c. 9.

of government upon which Athens plumed herself had been preceded by a close aristocracy, and that again by a monarchy, of whose historic character there is no reason to doubt.

None, in fact, of the privileges or exclusions connected with the original assembly amount to general power exercised by a member or members of the superior class over the rest of that class itself as well as over the subordinates. Such a power, however, has in practice been almost invariably exercised in any body which we should call a state, and its genesis-the genesis of sovereignty—must be sought, as I have already intimated, not in internal, but in external needs. Order and law may subsist among the elements of a state: foreign relations, peaceful or hostile, require some centralised authority.

Sovereign not necessarily sole. The power of controlling the common action—that general authority of which I have spoken as necessarily implied in the conception of a state-has been attained to a different degree in different states and even at different periods of the same state. But it has become in so many cases, at some time or other—I believe from the exigencies of war-really or apparently centralised in an individual, that the term sovereign is popularly taken to mean an individual ruler or monarch". That, however, the term sovereign properly applies to a body as well as to an individual is clearly pointed out both by Hobbes and Austin 12.

Sovereignty not primary or original. A more impor

10 As an illustration I may remark that even in Athens the foreign relations of the democracy continued to be under the permanent control of a body elective, it is true, but very small. See Grote's History of Greece, vol. 3, ch. 31, p. 116, on the σтparnyol.

11 Derivationally sovereign (old French soverain) is simply the one over the others. Sovran appears to have come to our poets independently, through the Italian sovrano. The common original of all is the late-Latin superanus. 12 Leviathan ch. 17, pp. 87, 88. Austin 6, p. 249, note p.

tant error than this, which is one of mere nomenclature, arises from the following fact. The general authority now under consideration, though almost certainly later than the judicative power, has in most cases become developed and centralised so early that it has been treated as original, and what was possibly its origin has been considered merely one of its later subdivisions.

Such a view, though false, as I believe, in history, has been doubtless, in a considerable degree, strengthened and confirmed by the powerful genius of Hobbes, who makes out his one judgment or common general authority to have been necessitated from the first, not merely by those minor occasions of mutual internal contact to which I have adverted above (p. 151), but by downright war, within and without, requiring such a power to impose law as command, not to administer it as custom, as well as to head the community against its external enemies.

Analysts' definition good, for a fully formed state. This fundamental condition of war, at least between the primary elements which go to form a state, cannot be accepted as historically true. But for a clear view as to the salient characteristics of a state when fully formed, and for a terse expression of that view, Hobbes and his followers stand preeminent. Saving, therefore, the historical fact that law comes certainly before the sovereign, and the judge almost certainly before the king, I willingly accept, as true of all associations arrived at the condition of states, Bentham's definition of a state or political society13, with Austin's qualification, which will both be noticed shortly. As to the origin of states, some record of that centralisation of power to which I have adverted is perhaps preserved in the traditions of founders, whether real or fictitious persons, collecting scattered individuals and small associations, from indigenous races, like 13 Fragment on Government, ch. 1. § 10. Cited by Austin 6. p. 240.

C. J.

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