KAY274 THEORIES OF STATE AND BUREAUCRACY - 3

Prof. Dr. Doğan Nadi Leblebici

Prof. Dr. Mete Yıldız

Barrowed from J.K. Bluntschili «Theory of State»

1

The Theory of Contract

ESPECIALLY since the time of Rousseau, the doctrine that the State is a free work of contract, of convention between its citizens, has enjoyed great and wide-spread popularity. It flattered men's self-satisfaction; for every one might fancy himself a founder of the State: and it appeared to suit the wishes of all ; for every one might interpret the terms of the contract as he chose. This theory obtained a fatal authority at the time of the French Revolution. By the help of it the old political forms were torn down, and manifold but unsuccessful attempts were made to erect on the ruins a new edifice which should please everybody. But, although this theory found especial acceptance as the justification of revolution, it had served before to defend the legitimacy of absolute rule.

2

What was said of the theory of force applies conversely in this case. The theory of force, as a rule, favours despotism, but may, exceptionally, excuse the results of revolution. The theory of contract is especially favourable to anarchy, but exceptionally defends the oppression of minorities by arbitrary majorities, or the tyranny of a conqueror over those who have surrendered to him.

3

This theory claims universal validity. It makes the rise, and in a certain sense also the continuance, of all States un depend on contract. But history does not afford a single instance in which a State has really been brought about by contract between individuals. There are indeed particular cases of contracts between two or more States which have produced a new State: there are also some cases in which princes and chiefs have, by a contract with particular classes or estates of the people, produced new constitutions: but there is no instance in which a State has been formed like a trading or an insurance company by its ' equal ' citizens. The opinion that the continuance of States depends upon a perpetual renewal of contract between individuals, receives as little support from history. Rather do we find that the individual is born as a member of the State, and is begotten, born and educated with the particular characteristics of his nation and his country before he is in a position to have and to express a will of his own.

4

The evidence of history is thus absolutely opposed to this theory. Even at the time when the doctrine of social contract was most widely accepted and exercised most influence, it was contradicted by manifest facts. The people was broken up into ‘free and equal citizens,' but even in the primary assemblies the minorities did not contract with the majorities, who carried out their will as if it had a superiority and validity of its own. The Constituent Assembly was indeed regarded as a selection and a representation of all the citizens, and had as its appointed task to agree upon a constitution; but even here the form of procedure was that of a decision of one united body, rather than of a contract between a number of individuals. People adopted a fiction of contract, and deceived themselves and others by speaking of the consent of individuals, where the majority, as organ of the whole, was exercising an authority which was often an intolerable tyranny.

5

This theory may be disproved not only by history but by logical criticism. It assumes the freedom and the equality of the individuals who conclude the contract; but political freedom, which is here presupposed, is only conceivable in the State, and not outside it. Man has indeed the aptitude for this freedom, just as he has the impulse to, and the need for, the State, but this freedom can never be realized, except in the organic freedom of the State. Further, if individuals were only equal, a State could never come into being, for it implies as a necessary condition political inequality, without which there is neither ruler nor ruled.

6

The main error lies in representing individuals as contracting. If individuals make contracts, private rights are created, but not public rights. What belongs to the individual as such, is his private property, his individual possessions. With that he can deal, one like another can make contracts about it. But contracts cannot have a political character unless there is already a community above the individuals; for a contract, if political, does not deal with the private good of individuals, but with the public good of the community.

7

Thus, neither a nation nor a State can arise out of contract between individuals. A sum of individual wills does not produce a common will. The renunciation of any number of private rights does not produce any public right. For practical politics this doctrine is in the highest degree dangerous, since it makes the State and its institutions the produce of individual caprice, and declares it to be changeable according to the will of the individuals then living. It destroys the conception of public law, encourages the citizens to unconstitutional movements, and exposes the State to the extreme insecurity and confusion. It is to be considered, therefore, a theory of anarchy rather than a political doctrine.

8

Nevertheless, it contains an element of truth. In opposition to the theory which sees in the State a mere product of nature, it accentuates the truth that the human will can determine and influence the formation of the State; and in contradiction to a thoughtless empiricism, it vindicates the rights of human freedom and the rationality of the State.

9

THE NATURAL SOCIABILITY AND POLITICAL CONSCIOUSNESS OF MAN

IT is not enough to refute the current speculative theories. We have still to discover the one common cause of the rise of States, as distinct from the manifold forms in which they appear. This we find in human nature, which besides its individual diversity has in it the tendencies of community and unity. These tendencies are developed, and peoples feel themselves to be nations, and seek a corresponding outward form. Thus the inward impulse to Society produces external organization of common life in the form of manly self-government, that is, in the form of the State.

10

This social tendency works at first instinctively and unconsciously. The many look up, half with trust and half with fear, to a leader by whose courage and genius they are impressed, and whom they honor as the supreme expression of their community. They arrange themselves under him, and obey his commands. Gradually, however, with advancing civilization and experience, the hidden impulse reveals itself, and there is formed a consciousness and a will of the State, first of all, as is natural, in the leaders and chiefs of the people: in them it becomes an active consciousness and an ordering and effective will of the State, while the mass of the governed does not as yet advance beyond a passiveconsciousness of the State. Gradually this consciousness extends itself among the higher, and at last also among the lower classes and orders of Society, and becomes even among them active and effective.

11

This assumption of a political tendency in human nature at first unconscious, but afterwards conscious, does not contradict the historical origin of States, but explains them.

Among the powerful it rises to the passion of domination, among the weak it becomes servile submission, but among the free it is enlightened by understanding and filled by that moral self-consciousness which is in harmony with the moral common consciousness. Only the free State is a true State, for only in it is there a common political spirit permeating all classes of the people.

12

This view, which had already been expressed by the ancients contains all that is true in the false speculative theories, without the accompanying errors. The State is indirectly divine, since God has implanted the social impulse in human nature, and has, in this way, willed the realization of the State. Sound religious feeling is thus not injured by our declaring the State to be, in the first place, the appointed work of man. Again, our view recognizes the significance of the real force which is indispensable for the formation of the State; for the essential power depends upon the common impulses of human nature. Finally, the element of free will has its rights accorded to it; but instead of scattered individual wills, we recognize the common will of the nation or the State.

13

This general will exists in germ among a people as naturally as the tendency to union and organization, which we call the political tendency. This common will, in manifesting itself, becomes the will of the State, whereas mere individual will remains individual even if two individuals make a contract between them. Thus the proper expression of the common will is not a Contract, but a Law in the case of permanent regulations, an Order in the case of administrative police, a Judgment in the administration of justice. The State has in itself organs which enable the common will to become conscious of itself, to resolve, and to carry out its resolutions.

14

The State is thus not an arrangement only for the purpose of taming evil passions. It is not a necessary evil, but a necessary good. Only by the realization of the State can peoples and humanity, taken collectively, manifest their real inward unity and attain to a free corporate existence. The State is the fulfilment of common order, and the organization for the perfection of common life in all public matters.

15

Thus understood, the State is in the first place a human and terrestrial formation; but nothing prevents us from placing alongside of the religious ideal of an invisible Church, which is a community of spirits united by religion, the political ideal of an invisible State which is a community of spirits united politically. Theologians speak of a more perfect Church in heaven, and so the statesman may consider the earthly State as only a preparation for the heavenly. But the actual State is that in which we live and work. Political science has to do with it alone, and such a State is to be completely explained and understood from a consideration of human nature.

16