Delphi Complete Works of Stephen Leacock, page 430
As already said, Spencer does not completely identify the social organism with the living plant or animal. The chief difference is found in the fact that while the parts of an animal form a concrete whole, society is “discrete;” in other words, “while the living units composing the one are bound together in close contact, the living units composing the other are free and not in contact, and are more or less widely dispersed.” Hence the political or social body is sensitive only in its units, whereas the animal organism has a “sensorium” in which its sentient existence is centred. Even this distinction Spencer is unwilling to unduly emphasize. The units of society, though not in physical contact, affect one another through the influence of language spoken or written; there is thus a psychological continuity where physical coherence is lacking.
A still more complete presentation of the social organism is offered by the late Albert Schäffle, the distinguished Austrian statesman and economist, in his “Structure and Life of the Social Body.” Here the comparison of social with animal forms is carried to an extreme point, stopping little short of complete identification, though the author professes to be mindful of the differences existing between the two, and avoids the explicit use of the term organic. Schäffle speaks of the “morphology” and the “physiology” of society, the “social limbs of technique,” etc. If the whole of his vast work is to be viewed as an analogy, it reaches the point where such elaborate comparison ceases to be either of interest or profit. Others of the modern Continental writers — for instance, Gumplowitz, the Polish publicist, in his “Sociological Idea of the State” (1892) — flatly and absolutely hold that the organic nature of the state is to be considered not as an illustration but as a literal fact. Of a still more extreme character is the contention of several of the German theorists that the state is a person. The claim that the state, or, if one will, the government, is a person in a purely legal sense of the term is what no one will deny. The government being an owner of property, a collector of taxes, a borrower of money, etc., can undoubtedly be clothed with an abstract personality. But the writers in question — Gierke, for example, in his “Fundamental Concepts of Public Law” — go beyond this. With them the personality of the state is not abstract but actual; out of the “social side” of each individual composing the state is compounded a new person, a totality of purpose which is the true constituent element of personality. Bluntschli even determines the sex, maintaining that the state is male and the church female.
6. Criticism. This extreme theory of the personality of the state it is hardly necessary to criticise. It belongs to that class of abstractions which may mean much to the nation that originates them, but which seem to dissolve in passing through the prism of Anglo-Saxon literalism. The general organic theory merits, however, a special treatment. Interesting as is the parallel between the collective aspect of humanity and the life of a single organic unit, the differences between the two appear on impartial examination so great that the analogy cannot be looked on as a true guide to social policy, or a true expression of man’s relations to his environment. The difference that Spencer masks under the cognate terms “concrete” and “discrete,” is in reality of a fundamental character. In neither the physical nor the metaphysical sense of the terms is it true that the individual is literally a part of society. The existence of each human being is a fact apart. The “existence” of society is only an abstraction. Society has no single brain, no “social sensorium;” it has no single physical life. This distinction is therefore more than a mere divergence of special qualities. It is essential and absolute, — it is the difference between “black” and “white,” and between “yes” and “no.” Even if we accept the analogy as only an analogy, it does not follow that it is always a proper guide for our social conduct. Too great an amalgamation of the individual and the state is as dangerous an ideal as a too great emancipation of the individual will. Individual variation, individual “unlikeness,” and, in a sense, individual isolation of effort is as necessary for the welfare of mankind as collective activity and mutual support. The organic theory of society, deprived of its ingenious biological setting, presents only one phase of the truth, erring in one direction as much as extreme individualism has erred in the other.
READINGS SUGGESTED
Seeley, Sir J. R., Introduction to Political Science (1896), Lectures V, VI.
M’Kechnie, W. S., The State and the Individual (1896), chap. xxii.
Giddings, F. H., Principles of Sociology (1899), bk. i, chap. iv.
FURTHER AUTHORITIES
Ritchie, D. G., Natural Rights (1895).
Lieber, F., Civil Liberty (1852).
Mill, J. S., Liberty (1859).
Burgess, J. W., Political Science and Constitutional Law (1898), vol. i.
Mackenzie, J. S., Introduction to Social Philosophy (2d edition, 1895).
Spencer, H., Principles of Sociology, vol. i, part ii (3d edition, 1893).
Schäffle, A., Bau und Leben des Sozialen Körpers (2d edition, 1896).
Jellinek, G., Das Recht des Modernen Staates (1900).
Fichte, J. G., Science of Rights (translation, 1889).
Woolsey, T., Political Science, vol. i (1878).
CHAPTER VI. RELATION OF STATES TO ONE ANOTHER
1. EXTERNAL ASPECT of the State; Regulation of its Conduct towards other States. 2. Evolution of International Relations: First, Second, and Third Periods. 3. Scope and Content of International Law. 4. Propriety of the Term. 5. International Arbitration.
1. External Aspect of the State; Regulation of its Conduct towards Other States. Viewed in a purely theoretical light, every state is an absolutely independent unit. Its sovereignty is unlimited, and it renders political obedience to no outside authority; it has no organized coercive relation with any other political body. Such theoretical isolation is the prime condition of its existence as a state, and its political independence is one of its essential attributes. This is what Hobbes meant in saying that, in regard to one another, separate states are to be viewed as in a “state of nature.” Yet while this is true in a purely formal and legal sense, it is nevertheless the case that in actual fact different states stand in close contact with one another in a variety of ways. The mutual intercourse and communication of their citizens, trade, commerce, and various common interests, bring separate states into permanent relations demanding some sort of regulation. The fact that in the civilized world the citizens of one country very largely share in the thought, the art, and the literature of neighboring communities, runs counter to the idea of political exclusiveness. The political as well as the social and cultural institutions of any modern state are largely affected by its contact with other states. Especially is this the case where the citizens of countries politically separate speak a common language, and where a kindred descent enables them to look back to the same history and traditions in the past.
It is, therefore, easily understood that in the evolution of their dealings with one another in relation to diplomacy and civic intercourse the action of modern states shows an increasing tendency to conform to a generally recognized usage. Even the conduct of war is adapting itself to a code of regulations, designed to mitigate as far as may be the suffering it involves, and to reduce to a minimum the injury it occasions to the commerce of the world. These rules and usages which regulate the peaceful intercourse of independent nations, and indicate a recognized method of warfare adopted by general consent, are not to be regarded as fixed and permanent. They are rather in a formative and imperfect stage of development. But the study of modern political institutions is not complete without an analysis of the nature of the bond thus created between different states, the extent of its obligation, and its especial significance for the future. Political science must take account not only of the internal organization of the state, but of its external relations in so far as they assume a regular and definite character.
Imperfect as they are, the “rules which determine the conduct of the general body of civilized states in their dealings with one another are termed International Law.” The question at once arises whether the existence of such regulations can be harmonized with the sovereignty of the individual state. As we have understood it, the term “law” is properly to be restricted to the command, express or tacit, of a supreme legal authority; we have seen that it is probably inexpedient to use it in reference to customary observances not deliberately controllable by a political superior. In other words law has been restricted to mean the command of the state, the two terms being correlative to one another. Such being the case, it is now to be asked whether the term international law is properly applied, and whether the sanction or compelling force behind its rules and regulations is sufficient to entitle it to be considered as really law. To undertake this inquiry it will be necessary first to pass very briefly in review the evolution of international relations, and the interpretation put upon them in political theory, and in the second place to indicate the scope and extent of the rules of international law as now existing. By doing this, its true character, both as it is and as it may become, will be set in a clearer light.
2. Evolution of International Relations: First, Second, and Third Periods. The evolution of international relations may be divided into three great stages. The first embraces the period from the origins of European civilization till the fall of the Roman Empire, the second extends from that date until the peace of Westphalia (1648), and the third period from the peace of Westphalia until the present day. During the first period we find no recognition of international obligations as such. The claims and duties associated with kinship were recognized as a bond between communities of a common descent and tongue. But between tribes and nations alien to one another there was no recognized system of peaceful intercourse or acknowledged principles of legitimate warfare. The tribes of the Israelites observed in the dealings with one another the bond of common birth; they viewed themselves as forming a political system, each member of which had certain indefinite obligations towards the others, while all of them were disconnected from the outer world of Gentiles. In the same way the city states of ancient Greece, though jealously guarding their political autonomy, felt themselves bound by the ties of race to their fellow Greeks, a relation which found its expression in the Amphiktyonic Council, the federations of cities, and the observance of a rudimentary code of warfare. But towards the outside world — the barbarians, as the Greeks call them — no such obligations existed. In so far as the Greeks recognized a system of interstate relations, it was applicable only to the Hellenic people. The Romans, also, previous to their imperial aspirations of universal dominion, occupied the same theoretically isolated position. Rome, it is true, during the republican period of her history, entered into treaties with the Samnites and other Italian tribes. They had also certain systematic observances which bear some resemblance to a code of international conduct. But the Jus Feciale was merely a system of ceremonial acts which constituted the formalities thought necessary for a declaration of war, the conclusion of a treaty, etc. The Jus Gentium offers in its name a confusing analogy with international law. Its precise nature is a matter of some controversy, but it is safe to say that it was a code of regulations which applied not to the dealings of one nation with another, but to the dealings of citizens belonging to different nations. It took its name most probably from the fact that its rules were presumed to consist of principles of conduct common to the laws of all nations. But in none of these cases do we get a standing theory of international relations. Conduct towards outside nations might of course be influenced by motives of religion, of friendship, or of expediency, but we find nothing approaching to a systematized view of the relative position occupied by political societies, each possessing towards the rest a definite status with standing rights and standing duties.
In viewing the second period, that following the establishment of the world empire of Rome, we find the outlook entirely changed. The Romans had made themselves masters of the known world and from the pride of their exalted position originated a new theory of political relations. The universal sovereignty of a single power became the dominant idea, the theoretical ground plan of political institutions. The idea of a common superior holding the supremacy over all the political subdivisions of the world appealed at once by its grandeur and its logical consistency. It endured in theory long after it had vanished in fact. Even as a fact, universal sovereignty, in territorial extent, if not in intensity, seemed at the time of Trajan (A. D. 98-117) to reach its realization. The “appeal to Cæsar” represented everywhere the recourse to a final authority. The actuality thus lent to the conception was strengthened by the universality of the Christian religion, which became after the conversion of Constantine (A. D. 312) the state religion of the imperial system. Even after the decline of the imperial power under the disruptive force of the barbarian invasions, the idea of universal dominion as a necessary basis of political life still survived. The restoration of the Roman Empire by Charlemagne (A. D. 800) served to give expression to this ideal. But in the succeeding centuries the conception of the nature of the political constitution of the universe underwent a vital change. The church presented itself not as a complementary, but as a rival power. It became necessary in theory to divide universal dominion between the secular and the spiritual sovereigns, whose conflicting pretensions helped to break down the conception of a single final authority. The feudal tenure of land gradually brought into prominence the notion of territorial sovereignty (political power operative not as over a people but over a certain definite territory), on the basis of which arose the modern theory of territorially independent states. Finally the religious schism of the Reformation destroyed the idea of the spiritual unity of mankind. The peace of Westphalia (A. D. 1648), which closed the thirty years’ war in central Europe between the forces of Catholicism and Protestantism, may be taken as indicating the close of the era and the final disappearance of the theory of universal sovereignty.
During the third period — from 1648 until the present day — the theory of international relations has been reconstructed on a new basis of political independence and territorial sovereignty. Modern international law is essentially the product of this period. At the opening of this era the destruction of the earlier system and the ideas which accompanied it seemed to have removed the basis of international dealings and to reduce the monarchies of Europe to the anarchy of the state of nature. The savagery of the European wars of the sixteenth and seventeenth centuries threw into a strong light the need for a reconstruction of the theory of the interrelation of political communities, now that the idea of a single common superior, either temporal or spiritual, was no longer tenable. It was this situation which called forth the writings of the great Dutch jurist Hugo Grotius, in which were laid the foundations of modern international law. Grotius and his followers found the basis for their doctrine of international obligations in the reconstruction of the idea of a law of nature long ago assumed by the Stoic philosophers in reference to the relations of individual men. According to this doctrine there was supposed to exist in the very nature of things a code of moral obligations of man to man, which did not depend for its validity upon human enactment. It existed antecedent to any system of government and law and could be discovered by the natural light of reason. “The principles of natural law,” says Grotius, “if you attend to them rightly, are in themselves patent and evident almost in the same way as things which are perceived by the external senses.” Such a theory of natural law is essentially fallacious, and, as has been already seen, it disintegrates upon a closer analysis. Nevertheless it served a useful purpose in offering a possible starting-point for constructing a system of mutual rights and duties existing between states without a common superior. This theoretical assumption of a determinable and universally binding law of nature, though it affords, historically speaking, the starting-point of international law, is by no means its only source and basis as it now exists. The major part of it rests upon the successive treaties and conventions by which the great states of the world have adopted certain more or less defined principles to regulate their intercourse with one another in peace and war. At the beginning of the era stands the treaty of Westphalia, to which all the Continental sovereigns of Europe (except the Pope and the Sultan) were parties, and in which “the representatives of civilized Europe united to formally proclaim the erection upon the ruins of world-sovereignty of an international system of states, unequal indeed in power, but claiming each to be independent and each to exercise an exclusive jurisdiction within definite territorial limits.” Of the later treaties some are mainly concerned with the allotment of territory. Of this character is the treaty of Utrecht (1713), which closed the long war against Louis XIV, and the treaty of Paris (1763) at the end of the Seven Years’ War. In others a fundamental point is the recognition of sovereignty, as in the treaty of Versailles (1783), recognizing the independence of the United States, and in the treaty of Paris (1856), in which the independence and integrity of the Ottoman Empire is guaranteed and whereby it is admitted “into the public law and system of Europe.” In other treaties principles of conduct are adopted for future guidance. Thus at the Peace of Utrecht four of the signatory powers accepted the principle that real property confiscated from the subjects of an enemy should be returned at the close of the war. The treaty of 1841 in regard to the navigation of the Dardanelles and the Bosphorus asserts the territorial jurisdiction of a state over adjacent waters. The international law in respect to neutral commerce and maritime capture has been the subject of a long series of treaty clauses. The principle that “free ships make free goods,” adopted (from older precedents) by the United States in the French treaties of 1778 and 1800, gradually gained a general assent and was recognized in 1856 in the Declaration of Paris, which accompanied the treaty already mentioned. An equally important instance of principles of international conduct consolidated by treaty is seen in the treaty of Washington (1871), between the United States and Great Britain; here the duty of neutral powers to use a proper diligence in preventing their territory from being used as a basis of operation and equipment by a belligerent is accepted as a binding rule.
