THE RIGHT OF THE STATE TO BE
|
AN A TTEMPT TO DETERMINE THE ULT MATE LIUM
PREROGATIVE ON W H LCH GOV.
ERNMENT REST.S.
|
|-
(DOCTOR'S THESIS.)
DY
F. M. TAYLOR, Ph. D., (U. of M.)
Professor of History and Politics in Albion College, Lecturer in Political
Economy, University of Michigan, (1890-91.)
A N N A R BOR, MICHIC A.N.
1891.










A -
º -
THE RIGHT OF THE STATE TO BE
AN ATTEMPT TO DETERMINE THE ULTIMATE HUMAN
PREROGATIVE ON WHICH GOV-
ERNMENT REST.S.
(DOCTOR'S THESIS).
BY
F. M. TAYLOR, Ph. D., (U. of M.)
Professor of History and Politics in Albion College, Lecturer in Political
Economy, University of Michigan, (1890-91).
ANN ARBOR, MICHIGAN.
1891.
PRINTED AND BOUND
AT THE OFFICE or
THE REois TER Puells Hino Company.
the Inlano tºrces.
ANN ARBOR, MICH IGAN.



CONTENTS.
INTRODUCTION. - - - - - -
PART I.
PREPARATION OF THE PROBLEM.
CHAPTER I.-Preliminary Definitions. - -
CHAPTER II.-The Reality of the Problem Maintained.
HAPTER III.-The Problem Defined. - -
PART II.
CRITIQUE OF PREVIOUS SOLUTIONS.
CoNSPECrus of Theories - - - -
CHAPTER I-Subjectice Prerogative Group.
CHAPTER II.-Objectice Prerogative Group. Pricate or
Egoistic Prerogatire Sub-Group. -
CHAPTER III.-Altruistic Prerogative Sub-Group. Par-
ticular Altruistic Prerogatire Class. - -
CHAPTER IV.-General Altruistic Prerogatire Class.
Special Dicine Commission. - - -
CHAPTER V.-Natural Human Commission. Conſectice
Human Prerogatire. - - - -
PART III.
THE PROPOSED SOLUTION.
CHAPTER I.-The Theory Stated and Earplained.
CHAPTER II.-The Direct Argument for the Theory.
CHAPTER III–Indirect Confirmation of the Theory from
Its Fitness to Eaplain the Facts and Problems of
Political History. - - - -
54
58–51
62–65
85–95
96–105


INTRODUCTION.
“By what right does the State exist? By what right does
any human organization coercively control the will of indi-
viduals? What is the ultimate basal prerogative on which
governmentis built?” This problem has, until recent times, occu-
pied a very conspicuous place in modern political philosophy.
It has not, indeed, attracted great attention for its own sake
purely. Attempts to solve it have been made chiefly as an
indispensable preliminary to the solution of several closely
related and thoroughly practical problems. “Which of two
claimants for supreme authority, e. g., the pope and the
emperor, has the truly valid title?” “Is there any right to
overthrow an existing but unsatisfactory political order? and,
if so, who possesses that right?” “Has some particular class
heretofore excluded from active participation in government
a valid claim to be admitted to such participation?” It has
been as an incident to the answering of questions like these
that men have attempted to find the ultimate political pre-
rogative, rather than as an effort to meet the direct anarchic
demand for the quo warranto of the state. Thus, the doctrine
of direct divine commission was given prominence by the
medieval church as a necessary step in her struggle against
emperors and kings for temporal ascendency. So, also, the
doctrine that all political prerogative rests on an original com-
pact, the violation of which justifies the pulling-down of kings,
came to the front in a later epoch as one of the church's chief
weapons against heretic rulers. Similarly, the efforts of new

2 INTRODUCTION.
classes of citizens to gain a share in government kept the
question alive during the seventeenth and eighteenth centuries,
and also determined the character of the generally accepted
doctrine, securing that place for the contract theory.
This problem, which has thus been of chief interest because
of its relation to other problems, has once and only once,
brought out extended discussion for its own sake; once, and
only once, has its solution been undertaken with direct refer-
ence to the defense of the state against anarchic tendencies.
This was in the period immediately subsequent to the French
Revolution, when the empirical excesses of those who con-
trolled the practical application of Rousseau's theories, as well
as the really anarchic character of the doctrine which makes
all just government rest on the consent of the governed,
rendered imperative an effort to rebuild the theory of the
state on more secure foundations. In consequence, the next
thirty years was extraordinarily prolific in theories as to the
ethical genesis of the state, some of them new, most of them
old, all of them reactionary, tending toward the exaltation of
the state and the belittling of the individual.
But, while the problem here considered has in the past
received ample attention either for its own sake or because of
its bearing on related problems of supreme importance, in our
own day the interest in the subject seems to have passed away.
This fact, doubtless, has a variety of causes; but it is chiefly
due to this, that the practical occasions for insisting On a
solution are fewer and less pressing than in former epochs.
We have, indeed, more theoretical anarchism, a more explicit
denial of the rightfulness of authority, than ever before. Still,
this movement is too weak both in numbers and influence to
threaten seriously the foundations of the state. Further, the

INTRODUCTION. 3
related problems which have hitherto called for a justification
of the state as a part of the process of their solution, absorb
much less attention in our day than formerly. Revolution, as
a method of improving matters, has largely given place to
reform. So, also, among the Western nations there are no
longer any considerable conflicts between rival claimants for
authority; and there is no general interest in the various
efforts to extend political power to new classes of citizens.
But, if the question no longer commands general attention, it
has not yet lost its purely scientific interest. This could be
true only if there were general concurrence in some particular
solution. But such is far from being the case. On one thing,
indeed, there is quite universal agreement. Almost everyone
fitted to judge rejects the contract theory of the eighteenth
century. But, beyond this, there is still chaos. The doctrine
of divine right still has a large following. The theory that
“might makes right.” satisfies a large class. The right of
self-preservation is accepted by many as the basal prerogative.
Very common in America is the theory that the ultimate pre-
rogative belongs to the people or the nation. And still others
might be mentioned. It is evident, therefore, that the problem
has still academic interest, for it is still unsettled. In this
paper the task of finding the satisfactory solution is again
undertaken. With what success the reader must judge.
In form, the essay divides into three parts. In the First,
after a chapter of definitions, the reality of the problem will be
maintained, and its exact nature defined. In Part Second,
previous theories will be reviewed and their defects pointed
out. In Part Third, the writer's own theory will be explained
and defended.


TE_4_TECT T_
PREPARATION OF THE PROBLEM.


CHAPTER I.
PRELIMINARY DEFINITIONS.
1. THE PERson.—The central conception with which all
ethical, political, and social philosophy is concerned is the
person. Every good which forms the particular end of any
special human association, the larger good which forms the
end of the state, the absolute good, with reference to which
the total moral order of the world is determined, all these
have no significance save as the good of persons. To be a
person, then, is, for one thing, to be a definite and permanent
center of possible satisfactions. Especially is it to be a subject
of one highest sort of satisfaction, viz., satisfaction in the con
templation of moral excellence in others and in the realization
of moral excellence in one’s self. Again, a person is a definite
and permanent center of spontaneity, a fountain of absolute
origination. Further, this fountain of spontaneity is free and
rational, i. e., is self-determined and self-determined with ref-
erence to ideas, mere mental conceptions of the possible con-
sequences of action. Most significant of all, this definite and
permanent center of spontaneity is capable of such rational
self-determination with reference to one special kind of ideas,
viz., moral ideas, and recognizes such ideas as addressing to
itself an indisputable imperative. Of course all this is in
definition of the concrete individual person. Other true per-
son there is none. Combinations of persons may attain to a
-

8 PREPARATION OF THE PROBLEM. [PART I.
kind of personality, a kind of will, reason, judgment, etc.;
but such combinations offer only analogies to the true person.
Each is only a “sort of person.”
2. THE CoMMUNITY-But person is not a purely singular
concept, it is a class name. There exist persons. These per-
sons live in groups. Such a group we call a community.
While in lesser groups such as the club, the literary associa.
tion, the church, men seek to attain some single specific object
as social pleasure, or literary culture, or religious good; in the
community they simply live. The word community, therefore
is properly used to designate the general class to which the
family, the village, the tribe, the people (German Nation) be-
long. Communities may be largely accidental in their nat.
ure, or mainly artificial; or, as most usual, historical, i. e.,
having a common past, and, so, usually community of origin,
language, literature, social and moral ideas, etc.
3. Society.—The general totality of relations embodied
in any community is the conception which in this essay will be
designated by the word society. In this sense society is the
abstract correlate of community, i.e., the abstraction which is
actualized or incarnated in a community. Society in this general
sense is not a free product. It comes into being with the mere
juxtaposition of men in time and space. Let two men, who
speak different languages and come from opposite quarters of
the globe, meet on an otherwise uninhabited island, and
at once society comes into existence; for at once necessary
relations, necessary rights and obligations, necessary duties,
etc., come into existence.
4. Rights.-The simplest reflection on the fact of men
living in communities, makes it evident that there is no possi-
bility of realizing personal freedom, and the destiny which is

CHAP. I.] PRELIMINARY DEFINITIONS. 9
conditioned by this freedom, except through the recognition by
persons in general of the possession by each of valid claims to
have regulated with reference to himself the conduct of other
persons. The necessity of such recognition grows out of the
fact that only so is it made “possible for a man to be freely
determined by the idea of a possible satisfaction to himself,
instead of being driven this way and that by external forces,”
and so made possible to “give reality to the capacity called
will.” (Green Phil. Works, Vol. II., p. 338.) Such a claim
belonging to one person, to have regulated with reference to
himself, the conduct of other persons in some one or more
particulars is a right.
Throughout this paper the word right, when used without
any qualifying term, means simply a moral right, i. e., a right
which needs neither formal nor informal recognition by men
to give it rational validity. These rights are claims of the in-
dividual upon his fellows which ought to be enforced, even if
they are not. If I propose to call special attention to the
antithesis of such rights to those rights which have the sanc-
tion of the state, I shall call them natural rights, signifying
that they derive their validity not from human enactment but
from the very nature of men and circumstances.
In defining a right as a valid claim inhering in one person
to have regulated with reference to himself the conduct of
other persons in general, we already imply the existence of a
correlative obligation. The obligation is the moral (or legal)
imperative resting on the “other persons in general,” thus to
regulate their conduct with reference to the person in whom
the right inheres.
5. PRERogatives.—Closely allied to the right, even in
some aspects merely a particular sort of right, is the concept

10 PREPARATION OF THE PROBLEM. [PART I.
prerogative. A prerogative is a valid claim belonging to one
person to be the agent who regulates the conduct of other
persons. It is, therefore, distinguished from a right in that
the latter is merely a claim to have the conduct of other per-
sons regulated in the given case. These two may be further
distinguished as to their ends. A right is a claim, having self
as its object; since it is a valid claim belonging to one person
to have the conduct of other persons regulated with reference
to the interest of the first person. Rights, strictly speaking,
must be personal, private. Of prerogatives, on the other hand,
this may or may not be true. Some prerogatives have self as
their end, e. g., the right of redress. Others aim to secure the
good of the person on whom the authority is exercised, e.g.,
the parental prerogative. Others still have as their end agen-
eral, social good. Prerogatives, therefore, need to be distingu-
ished as to their nature. We would divide them into at least
two classes; viz., the Private, Personal, or Egoistic Prerogatives
and the General, or Altruistic Prerogatives,
To every perfect prerogative, as to every perfect right,
there is, abstractly considered, an exactly corresponding obli-
gation. If one possesses a valid claim to regulate the conduct
of other persons, those other persons are in duty bound to sub-
mit to such regulation, and persons in general are bound not
to interfere.
In this essay the word prerogative, like the word right, when
standing without an attributive, will mean a rational, or moral,
or natural prerogative. Further, in accord with common
usage, right will frequently be used as its synonym. Thus it
will sometimes be better to say “the parent has a right to con-
trol his children,” than “the parent has a prerogative to control
his children,” though the latter would be more strictly accurate.

CHAP. I.] PRELIMINARY DEFINITIONS. 11
There seems to be a disposition in some quarters to object
to both right and duty insuch cases as the last, to declare that the
exercise of parental control should be called, not a right, but a
duty. Some even go so far as to argue that we ought to elim-
inate the word right from the moral realm, and substitute
the word duty. As a mere practical suggestion, i. e., as a
means of making men less selfish, more altruistic, more dis-
posed to live in accord with the precepts of Christianity, this
suggestion may have value. But it will not answer for phil-
osophy, since philosophy can never afford to relinquish a term
when this stands for a really existent idea. As a matter of fact
the conceptions of a duty and a right are clearly distinguish-
able, though never separable. If one has a duty, i. e., is
morally bound to pursue a certain course, he must on that very
account have a right to pursue that course; that is, he must
have a claim on a moral universe not to hinder him in the per-
formance of that duty: for only on that condition is such per-
formance possible. To say that it is the duty of the parent to
control his children, is therefore, to say that he has a right, a
prerogative, to control his children.
6. The Absolute Jural ORDER. Jus Naturae. —In
this discussion we have already had frequent occasion to
allude, by implication at least, to a system or order of right
which embraces and harmonizes all particular rights. That
order we must now consider. And we remark in the first place,
that this order is called absolute, not as being relative to noth-
ing, but as not being relative to the opinion or will of anythink-
ing subject. It is “the absolute order supposed to be inde-
pendent of the human will” which “has, ever since the earliest
days of philosophizing, been denominated the law of nature”
(Pulszky, Theory of Law and Civil Society, p. 78). It is that

12 PREPARATION OF THE PROBLEM. [PART I.
system of principles which, taking into account everyone of the
numberless facts that condition a given epoch, ought to be
enforced, though it never is. It is therefore a right which can
be known perfectly only to an absolute intelligence. It is of
course a pure abstraction, yet none the less real and of supreme
importance. It is metaphysically, as well as to the thought of
men in general, the immediate basis of all positive jus. Posi-
tive jus as expressed in the enactments of the state has real, i.e.,
moral, rational validity, because, and in sofar as, it embodies the
absolute.jus. -
There has developed in our day a very general dis-
position to deny the existence of the absolute jural order, the
jus naturae. In this direction one might multiply citations to
an indefinite extent. Here are two or three. “There is no
other law than positive.” (Stahl, Philosophie des Rechts, Vol.
II, Part I. p. 221). “If natural law is not positive, then it is not
law.” (Bluntschli. Staatswoerterbuch Art. Rechtsphiloso.
phie). “There is no law [Recht] from nature; law exists only
through institution.” (Lasson, Rechtsphilosophie, p. 27).
But it is impossible to suppose that this is anything more than
a quarrel about words. “No one could seriously maintain
that the system of rights and obligations, as it is anywhere
enforced by law- the jus or Recht of any nation—is all that
it ought to be.” “There is a system of rights and obligations
which should be maintained by law, whether it is so or not, and
which may properly be called natural” (Green Phil. Works
Vol II, p. 339).
In the case of the writers quoted above as denying the exis.
tence of jus naturae, only a little effort is necessary to show
that their opposition is really directed against the name rather
than the thing. Thus Stahl goes on to say, “What lies at the

CHAP. I.] PRELIMINARY DEFINITIONS. 13
bottom of this concept natural law” are the thoughts and pre-
cepts of God’s world-order—the ideals of right; but these, as
we have seen, have neither the empirical determinateness nor
the binding force of law. They are fundamental principles
determinative of the proper construction of a social order not
already valid laws of that social order.” So Bluntschli says in
a note to Book IV, chap. 9, of the Theory of the State, “Cer-
tainly the free will of man is able to affect and alter in many
ways what is right and just, but the greatest part of this has
been fixed from everlasting by the order of the world and the
nature of men and circumstances, and is altogether independ-
ent of the will of man. Most right is not invented but dis-
covered, found not formed.” In like manner Lasson brings
back under the name of the just [Das Gerechtel what he rejects
as natural law [Naturrecht]. “Set over against Recht is the
Just, which is deduced directly from universal nature, from
the pure expression of reason, and from the historical process.
The Just forms the ideal standard for Recht, a standard to
which it never fully attains,” p. 231.
* Neither Bluntschli nor Lasson are perfectly consistent in
using Recht as meaning exclusively positive Recht. Thus the
former, when speaking of the revolution, says, “In many cases the
higher suppressed Recht of the nation through the revolution
attains to its existence and to its development, and rends
asunder the unworthy, artificial bands with which the form-
ulated, historical, legal Recht has chained the life of the peo-
ple.” (Politik, p. 207). Similarly, from Lasson, “Positive Recht
is a high good, but not the highest. Over against its formal
determinateness, and possessed of higher material Recht, stands
another, viz., the requirements of equity.” (Rechtsphilosophie,
p. 304). But, of course, if there is no other Recht but positive,
then it is improper to talk about a “higher, suppressed Recht.”
or a “higher material Recht.” Plainly this antithesis of “legal”
and “suppressed,” of “positive” and “material” Recht, is the same
old antithesis of positive and natural Recht in another dress.

14 PREPARATION OF THE PROBLEM. [PART I.
Some writers as Bluntschli who have affirmed the existence
of this absolute right have denied that it has reality in direct
contradiction to the eighteenth century doctrine that it is the
only real right. Evidently the controversy again is wholly
about words. If reality is so defined as to be equivalent to
“enforced by the state,” then of course the absolute order of
right is not real; and of course the revolutionary writers never
called it real in any such sense. But, if we mean by real that "
which exists of absolute necessity, which exists independently
of the consent of any will, which cannot even be conceived as
non-existing, we surely need not hesitate to declare that the
absolute jural order possesses in the highest degree the marks
of reality.
But possibly this controversy as to which has truest real-
ity, absolute jus or positive jus, means rather which is most
truly binding in any given time and place. To this question,
again, the answer must be determined according to our under-
standing of the question. Is the absolute right binding on the
judge as a judge? Of course not. As a judge he is the organ
of a definite organization, the state, and the system of right he
must as a judge apply, is the will of the state as expressed in
positive law. Is natural law binding on the legislator as such?
Of course not. He too is an organ of the state; and, although
he moves more freely than the judge, his freedom is within
definite limits fixed by the will of the state as embodied in the
fundamental positive law. Is natural law binding on the state
as such? Certainly it is; for it is the very office of the state to
be the organ of the absolute jural order—only as performing
this function, can its existence by any possibility be justified.
Finally, is natural jus binding on man as man? Again we
must answer, yes. Each person is indeed a subject of a con-

CHAP. I.] PRELIMINARY DEFINITIONS. 15
crete state, and so naturally bound to obey its law; but he is in
a still higher sense a subject of the kingdom of right or the king-
dom of God, and must recognize allegiance to the latter
as supremely authoritative, which is simply saying that he
must obey conscience and God rather than man. “But” it
is objected, “does not this make the actual jural order a
prey to the attacks of every half-crazed fanatic, as in the
French Revolution, or in our own struggles against slavery
and kindred evils?” Yes and no. Yes, just as does every
theory of morals in that it asserts the supremacy of right.
But no, if it is meant that there is something peculiar to the
concept natural jus which leads in an especial sense to anarch-
ism. The trouble with the revolutionary fanatic is not that he
asserts the supremacy of the absolute order, but that he fails
to apprehend the nature of that order. In the first place, he
thinks of it as a mere aggregate of unrelated and hence un-
limited rights. To him the affirmation that he has a natural
right to anything means that his claim is not relative to, or
limited by, any other claim in the universe. But as we have
seen jus naturae is in truth a great, rational, organic whole.
Each right or principle is relative to every other and subordin-
ate to the whole. In that order or system of rights, no one is
more vital than the right to have maintained a positive object-
ive order through which the absolute order may be at least
partially actualized. Particular rights of lesser degree must
be so interpreted as to consist with the realization of this em-
pirically most indispensable right. To it, they must in case of
necessity give place. Thus it is conceivable that the right to
pursue happiness, the right to personal freedom, the right to
freedom of faith, even the right to life itself, might justly have
to yield to some higher right or to the general right. But
this is not in spite of jus naturae, but through jus naturae;

16 PREPARATION OF THE PROBLEM. [PART I.
i.e., this very exception to the usual order must be justifiable in
so far as, and because itself a part of the absolute jural order.
In the second place the revolutionary fanatic errs in prac-
tically treating the natural jural order as absolute not only in
the sense of being independent of mere will, but also in the
sense of being independent of all conditioning circumstances,
or at least of present conditioning circumstances. But this is
wholly contrary even to the best eighteenth-century definitions
of jus naturae. For it is the very essence of jus naturae to be
that right which is “determined by the nature of men and cir-
cumstances.” On that theory the right of to-day is not deter-
mined by that of yesterday, nor by that of to-morrow. But at
each moment, under the conditions constituted by that one set
of circumstances, there is a single definite order which is abso-
lutely and from eternity the right for that moment. The
absolute jural order, thus understood, gives no handle to
fanaticism; is, on the contrary, the very best antidote for that
form of madness.
After what has already been remarked, it goes without say-
ing that the absolute jural order is the place where we must
look to discover the basal prerogative on which the state rests.
Lasson’s assertion that “In order to create Recht men must
have gained the authority therefor through Recht,” is a mean-
ingless paradox, unless we suppose the author to be wavering
between his own definition of Recht, as the law enforced by the
courts, and the not uncommon use of the term as equivalent to
Naturrecht. The true statement of the case must be that “from
natural jus, man obtained the authority to create positive jus,
from the absolute order the authority to create a positive
-- 1
order.
1. So Bluntschli, justifying the people or the ruler in certain
cases of a violent overturning of the established order, says “Both
appeal to the law of nature and reason which furnishes the found-
ation and limits of historical, formulated law.” (Politik p. 31.)

CHAP. I.] PRELIMINARY DEFINITIONS. 17
7. Jural, IDEALs.-In the preceding discussion we have
ignored the possibility of controversy as to the true absolute
jural order. We have ignored, indeed, all question as to the
knowableness of that order. We have defined that order, not
as something written on the heart of man, or given in reason,
or deducible from the nature of things, or revealed in the
mutual adjustments of the world, but simply as that right
which is determined by the very nature and mutual relations
of things. But of course the jural order in which we are in-
terested, the jural order which has significance for actual
society, must be some particular version or ideal of the abso-
lute order. Here is forced upon us the fact of varying ideals.
Even here, however, it is not necessary to consider the origin
of these ideals. The endless controversies as to how men gain
the ideas they have as to what is right and what wrong need
not delay us. The plain fact is that they have ideals—from
what source matters not—the supremacy of which they are
constrained to recognize, unless they deny the reality of the
moral imperative. Among these ideals we distinguish three
of more or less importance to our purpose; (a) the absolute
jural ideal; (b) the individual jural ideal, and (c) the common
or prevailing jural ideal. By the absolute jural ideal is
meant that conception of the absolute jural order which would
exactly correspond to the thing itself—the conception sup-
posed to be present in the mind of the Absolute. As here the
conception and the reality, - the jural ideal and the jural
order, must be supposed to have perfect correspondence, we
shall in future use the phrases interchangeably.
What is meant by individual and common ideals is suf-
ficiently evident without definition. We are chiefly interested
in the consideration of their relative authority. First, as far
2

18 PREPARATION OF THE PROBLEM. [PART I.
as the individual is concerned, it goes without saying that his
own version ought to have final authority in all cases where it
imposes upon him an obligation not imposed or even denied
by the common ideal. This is merely affirming the supremacy
of conscience. Doubtless one of the highest obligations con-
tained in the purely individualistic ideal is that the individual
should in most things submit to the prevailing ideal. But, if
in any particular case the common ideal is not a part of the
individual’s ideal,—if theindividual believes himself called upon
to violate the common ideal,—then, of course, he has no choice
in the matter. He cannot morally act otherwise. To deny
this is to deny the reality of the ethical imperative, to destroy
all morality.
This inevitable discrepancy among ideals compels us to
reconsider the account of rights given above (p. 10 ). There
it was assumed that a right must be of such a nature as to
have an exactly correlated obligation. This is doubtless true in
the absolute jural order or ideal. But in actual society all the
natural rights in which we can have any considerable interest,
are nothing more than alleged or supposed natural rights.
Sometimes, doubtless, there exist behind these, real or absolute
natural rights; and each to himself can morally justify his sup-
posed rights only by believing them to be identical with the
real, absolute rights. The concept of absolute rights is, there-
fore, metaphysically indispensable. But these absolute natural
rights are not the natural rights which we can hope to actual-
ize. In practice we can deal only with conceptions of rights,
supposed rights, ideal rights. Among these, plainly, there
can be no exact correlation of rights and obligations. On the
contrary, conflict of rights is not only possible but also inevit:
able. For, of course, it is the duty, and so the right of each

CHAP. I.] PRELIMINARY DEFINITIONS. 19
to do that which is to him duty, however it may appear to
others. But it is also the duty and right of those others to do
what appears to them duty, even if that involves compelling the
first person to do what he looks on as wrong. “But,” perhaps
the objector will say, “have we in such a case any question
of rights?” Certainly we have, and especially is involved that
class of rights which were earlier designated as prerogatives.
Men will persist in saying that, in the case just supposed, the
first person had a right to do his duty, and that the other
persons had the prerogative of compelling him to do something
else. In making such a declaration, we evidently do not mean
to attribute to either party a right in the same sense that abso-
lute rights exist, i. e., a right with an exactly correlated obliga-
tion; nor on the other hand, are we merely tautologically
affirming the existence of a duty. Even under the conditions
of conflicting subjective ideals, asserting that the community
has a certain duty, is a different thing from asserting that it
has a certain prerogative. The former is an answer to the
question, “Why should that certain thing be done?” The
second is an answer to the question, “By what warrant can it be
done?” This, I conceive, is the true key to the proper descrip-
tion of a prerogative under the actual condition of conflicting
jural ideals, i. e., under those conditions, a rational or natural
prerogative is a claim to control the action of others having so
much of foundation, – how much that is we need not here
discuss—that the person exercising it can plead it as adequate
warrant for his action before the bar of reason, before the bar
of the Absolute Judge. Yet the one or many who oppose his
claim may have an equally valid prerogative; may also be able
to stand and answer the ethical quo warranto; and out of the
mutual conflict may come the true absolute right which it

20 PREPARATION OF THE PROBLEM. [PART I.
is the will of the Master of All shall in the end prevail.
In the foregoing discussion we have asserted the supremacy
for the individual of his own ideal. The case for the com.
munity is not materially different. The community—the
dominating elements in the community—are, of course, ethic-
ally bound to enforce their own ideal. If the official, the
particular person acting as the organ of the community, can
not conscientiously do so, he must give place to those who can.
S. THE GENERAL WILL-From the conception of an ideal
which receives general acceptance in a community, we easily
pass to that of a General Will. By some writers these two
concepts are scarcely distinguished. The general will is defined
as the common ideal, public opinion, that version of the jural
order which most members of the community think ought to
prevail. Some go a step further, and add to the concept
another element—desire. The general will, according to this
putting of the case, “is a common desire for certain ends to
which the observance of law or established usage contributes,”
“a sense of possessing common interests, a desire for common
objects on the part of the people.” (Green Phil. Works, vol.
II, p. 402.) This is better material for a general will than
mere opinion, but it is still too weak. As I understand it, the
general will is that version of the absolute ideal to realize which
is the more or less definite, conscious purpose of the mass of
persons who make up a community. This purpose is com-
monly latent. It usually realizes itself only when called out
by some flagrant violation of the common ideal. Even then,
it may be defeated by the accidents of circumstance; or it may
be overridden by the physical force of an unscrupulous
soldiery. But, in the long run, it must prevail; for, in the
long run, the common purpose will have at its command the
overwhelming physical force of the community.

CHAP. I. PRELIMINARY DEFINITIONS. 21
If some err in making the general will mere public opinion,
others fall into the opposite and much more serious fault of
treating the general will as if it were a literal will, a faculty
of willing, a capacity of being determined in accord with an
idea of self-satisfaction. But, of course, a general will, in any
such sense, can no more exist than a general stomach. The
general will is nothing more than that purpose which is prac-
tically universal among the individual human persons who
make up a given community.
9. THE STATE.-We have now passed in review the chief
concepts which are fundamental in political philosophy. We
have remarked on the central position of the person, and on
the nature and importance of personal rights. We have
asserted the reality of an absolute, imperative, jural order.
We have seen that this order can present itself to society only
in the form of a particular ideal of right. We have seen, also,
that the version of the ideal which most interests us, as alone
being capable of realization, is, in the long run, that version
which manifests itself as the general will,—a something which
it is the common purpose of the community to enforce. We
must now consider that instrumentality through which this
actualization of the general will is made possible, viz.: The
State. By a state we mean a community within the limits
of which a particular version of the jural order is coercively
maintained through the instrumentality of persons more or
less determinately set apart for that end." Commenting on
1 The occupation of a definite portion of the earth's surface
has been purposely omitted from the definition of the state. For
this fact about the ordinary state is a mere accident of a civilization
which has passed the nomadic stage. A wandering horde is for
the purposes of this essay a state. It, of course, may be a very im-

22 PREPARATION OF THE PROBLEM. [PART I.
this, we note that there is always a particular version of the
jural order which is made binding. There is always a positive
jus, the Recht of recent German writers, a jus impregnated
with will, a jus marked with the special stamp of the state.
This jus need not exist in the form of positive enactments,
though it usually does. It may be mere customary law. But
it can not be mere custom; for it is not positive law save in so
far as men understand that some more or less definite set of
persons purpose to secure obedience to it, even, when necessary,
through physical coercion. So Lasson, “Under Recht we
understand the conception of those prescriptions concerning
the conduct of men which, in an extensive human community,
are universally recognized and valid, and in this sense that,
first, in case of doubt there is a place from which proceeds an
at-all-times binding decision as to what is valid as Recht, and
that, secondly, over against the resisting will there is a certainly
effective power to compel obedience to the prescription.”
Again, the above definition affirms the necessity of certain
persons being more or less definitely appointed to the task of
enforcing the recognized jus. “If there is to be a state, there
must also be a magistracy” (Lasson). But from this it is
not to be understood that we deny the name state to a com-
munity wherein there are no persons continually and exclu-
sively devoted to the magisterial task. It is conceivable that
in some very primitive community there may be no magis-
tracy other than a purely extemporaneous one; that, when a
perfectly developed state; but, so long as some particular version
of the jural order is set up as binding on all, and some particular
persons habitually enforce that version on the community at large,
we have a state that needs to be justified quite as truly as one in
the highest stage of evolution.

CHAP. I.] PRELIMINARY DEFINITIONS. 23
violation of the customary or established law of the com-
munity occurs, the community in general rise up to punish the
offender. But this must be distinguished from the case of
mere spontaneous justice. In order that the community in
general should constitute a magistracy, this procedure of rising
to put down offenders on occasion must be habitual, and hence
anticipated. Doubtless, also, in the case supposed the
habitually extemporized magistracy would have a considerable
degree of customary organization. The elders of the com-
munity would commonly take the lead, and among them some
few persons would be most prominent. But, if the state of
things is such that no public authority exists, that the social
order is maintained only through the effort of each one to
maintain his own right, if fist-right only prevails, then we can
not by the utmost stretch of language be said to have any
state. -
But, again, it should be emphasized that, beside a special
version of the jural ideal which has received the stamp of the
state, beside the magistracy to determine, proclaim, and en-
force this authorized version, there is implied in all this a
fundamental political order in accord with which the empirical
magistracy exists. This governmental frame-work is not
merely constitutional law as defined in written documents, or
even constitutional law under the definition of Dicey as some-
thing enforced by the courts. Often its most important con-
stituents are mere matters of usage, indelibly written in the
habits, traditions, and instincts of a people. But, whether
written, or embedded in judicial decisions, or merely customary,
a constitution must always be present. Without a constitution
there is no state. It is in this fundamental structure of the
state that we approach most nearly to the very thing itself.

24 PREPARATION OF THE PROBLEM. [PART I.
This is the state's scheme of organization, its skeleton, its
ground-plan, its body. Yet even this is not the state. For
the state is not the plan of organization, but the community
organized in accord with that plan. In like manner the state
is not the magistracy, though without a magistracy there is no
state; and the state is not positive law, though without positive
law there is no state. But the state is the community, per-
manently organized in accord with a definite, partly free and
partly natural, order, and which in accord with that plan of
organization possesses agents to determine, proclaim, and
enforce the communally valid, authorized version of the jural
ideal.

CHAPTER II.
THE REALITY OF THE PROBLEM.
“By what right does the state exist and exercise restraint
over the individual will?” That this question is a legitimate
one, that it calls attention to a real difficulty created by the
very existence of the state, this at first sight seems too evi-
dent to need argument. But when this question is brought
into relation with much of current political philosophy, it
seems to be so entirely alien to the tone of that philosophy, it
so evidently implies, with reference to the nature and relations
of the individual and the state, doctrines which are seemingly
rejected in that philosophy, that it becomes necessary to jus-
tify the very asking of the question, to show that the implica-
tions contained therein, when properly understood, are al-
together undeniable. To do this will be our task in the pres-
ent chapter. What then are the doctrines necessarily implied
in the asking of the above question, “By what right does the
state exercise restraint over the individual will?” and have
the doctrines, thus necessarily implied, become untenable? A
consideration of the above question will bring out two princi-
pal implications. First, the continued existence of the state
depends on the free and so responsible action of human beings,
and, therefore, for the existence of the state men may properly
be called to account. Secondly, under the absolute jural order,
the right of the individual to free self-determination is so evi-
dently original, primordial, essential, that every act limiting
that right demands special justification.

26 PREPARTION OF THE PROBLEM. [PART I.
1. These propositions we will consider in order. First,
then, the existence of the state depends on the free and respon-
sible action of men, and, therefore, for its existence they may
properly be called to account. This proposition, it is scarcely
necessary to remark, is entirely out of harmony with much that
is said in current political philosophy, provided the latter be
understood literally. Thus we read, “As soon as man lived,
he lived as a human being, he lived in communities, and there.
fore politically [i. e. in the political state].” “The state is
older than man. The state first begets individuals, without it
they would not be.” “The state in its general nature is the
organization of a human community developing itself in accord
with natural necessity [Naturnothwendigkeit] etc.” “The
state does not come into existence through the will of men, nor
does it continue to eacist through the will of men.” These
passages are all taken from Lasson's Rechtsphilosophie, but
they are fairly representative of a method of expression increas.
ingly common in political philosophy.
Now, plainly, if such statements are literally true, there is
no room for our question, “By what right does the state exist.”
Men can not be called to account for the origination, the con-
tinuance, or the conduct of the state, if they are not responsi-
ble for any of these. But, without doubt, such a literal inter-
pretation of passages like those quoted above would be an
injustice to the author mentioned as well as to other contem-
poraneous writers. The fact is, we are dealing with the meta-
phorical and, to say the least, hyperbolic expression of the
natural reaction against the tendency of eighteenth-century
political philosophy to exaggerate the artificial element in
social arrangements and, in general, the freedom and ration-
ality of human beings, to the neglect of those constituents of

CHAP. II.] THE REALITY OF THE PROBLEM. 27
every social order which have developed through the uncon-
scious working out of the unfree elements in man's nature, i.
his instincts and appetencies. It would not, perhaps, be diffi-
cult to make a plausible case for the thesis that our own age
has gone to an opposite and no less false extreme, has prac-
tically eliminated human freedom, and made the evolution of
the state substantially the same as that of a plant, the whole
future of which is implicitly contained in the seed germ and
needs only the proper external conditions to secure its realiza-
tion. But it would doubtless be juster to treat the exaggera-
tion as principally rhetorical. As far as Lasson is concerned,
a single further quotation would perhaps be adequate to prove
the correctness of this method of interpreting the expression
cited above. Thus he says (p. 297), “Although the state is
from nature—still it would be the greatest error to represent
the human state as analogous to the so-called animal states.
The latter exist altogether independently of a free will and
determination; but the human state, although according to its
being given in nature, is yet established through those wills
whose inner nature it mirrors, and is erected as the free object
of their activity.”
But to put the matter beyond question, let us examine the
various concepts under which the state seems to be set up as
an entity independent of man. Three of these are more or
less clearly distinguishable in current thinking. First, it
appears to be taught by some that political organization is a
logically inseparable function of human communities, that
the state is a metaphysically necessary social entity, a com-
plex of co-ordinated and sub-ordinated relations brought into
being by the mere fact of the mutual relations of men in society
and in no sense dependent on their free activity. Secondly,

28 PREPARATION OF THE PROBTEM. [PART I.
it may be asserted that the state is a natural organism,
and so of course neither free nor responsible. Thirdly, some
seem to teach that the state is a true person, having a real
personality other than, and independent of, that of the individ-
uals composing it.
(a) Let us consider the first. The state is a social
entity necessarily brought into being when men are found in
communities. According to this theory, if a dozen men from
as many different communities were simultaneously wrecked
on a hitherto uninhabited island outside any existing political
jurisdiction, the moment they came into relation with one
another a state would exist without any need of action on their
part. If one of them, coming to think of the matter, should
say, “Let us form a state,” he would be talking nonsense;
for already a state was in existence, and he could not help its
existing if he desired to do so. Now, it seems hardly necessary
to say with reference to all such statements as these, that any
person making them must have in mind some especial defini-
tion of the state which practically identifies it with society in
general. (Cf. Janet, Art. Polit. Sci. Lalor's Cycl.) For surely
the above statement can not be admitted as true of the real
state, of the state according to any accepted definition. Un-
doubtedly the mere juxtaposition of men in time and space
does bring into existence a complex of reciprocal functions and
relations, of rights and obligations, and that by the strictest
metaphysical necessity. Men can no more hinder this by their
free choice than they can make two and two equal five by an
act of will. Further, it is undoubtedly true that one of the
rights thus brought into existence is the prerogative of govern-
ment, otherwise we should have to deny the existence of that
prerogative; since, as has often been shown, political preroga-

CHAP. II.] THE REALITY OF THE PROBLEM. 29
tive can never come into existence by the free choice of men.
But, that the totality thus brought into existence by the mere
juxtaposition of men is not a true state, is sufficiently evident
from the characterization of the state universally prevalent
even among those writers whose opinions, or at least whose
expressions, are here criticized. Thus Lasson, “A human com-
munity which possesses an organized highest authority as the
supreme source of all compulsion is called a state.” (Rechts-
philosophie, p. 383). “Wherever there is a state, there is also
a. magistracy, a man or several men who in the last resort
exercise authority, but always in the name of the state.” (Ibid.,
p. 302). But of course the mere juxtaposition of men in time
and space does not bring into existence a magistracy; it there-
fore does not bring into existence a state.
(b) We have thus disposed of that method of lifting the
state above human freedom, of relieving men of responsibility
for its existence and maintenance, which represents it as an
abstract entity brought into existence by strict metaphysical
necessity when men find themselves in the merest space rela-
tions to each other. What now shall be said for that method
of reaching the same result which declares the state to be a
natural organism, and so neither itself free or responsible, nor
admitting the freedom or responsibility of men. Here, again,
we are dealing merely with excess in the use of figures which
properly employed are of great value. Organism is an almost
indispensable concept in social philosophy; yet it is frequently
used in such fashion as to be simply ridiculous, and that, too,
in spite of vigorous protests from some who are most fully
identified with the modern school of thinkers." Such an
1 (See Roscher's Political Economy, Introduct. Ch. I, Sect. 13
Note.)

30 PREPARATION OF THE PROBLEM. [PART I.
extreme and unwarranted use of the word organism is that
which applies it to the state in such a sense as to place the
state outside human freedom.
But to settle the question thoroughly let us try to realize
just what an organism is. This is best done by putting this
concept in contrast with two other closely related concepts, viz.:
the mechanism and the organization. In the first place, these
three all belong to one genus. They all are functional wholes,
i. e., they consist of different parts performing different func-
tions, all of which parts are co-ordinated and sub-ordinated to
the accomplishment of a common corporate end. Such is
their common element; their differences are not far to seek.
A mechanism is a functional totality, the construction, regula-
tion, and energizing of which is from without. In both the
organism and the organization, on the other hand, the original
co-ordination and sub-ordination of parts, their subsequent
maintenance and regulation, the energy that conditions their
activity, all these are from within. But, while they have in
common this element which we may call self-determination, the
two are sharply contrasted in that the organism is self-deter-
mined in accord with the law of its being which it blindly and
of necessity obeys, while the organization is self-determined,
freely and consciously, with reference to ends rationally con-
templated and pursued. In brief, the mechanism is a func.
tional totality rationally but objectively determined; the organ-
ism is a functional totality rationally, but unconsciously and
of necessity self-determined; the organization is a functional
totality which is rationally, consciously, and freely self-deter-
mined.
Now, in the light of these definitions, is there any propriety
in applying the term organism to the state? Yes; though this

CHAP. II.] THE REALITY OF THE PROBLEM. 31
is true chiefly because the state is usually conterminous with a
true historic community, and not because it is a state. Such a
community has, as its normal law of expansion, organic growth
rather than accretion. Further, such a community, in that the
natural reciprocal functionalities of men largely work them-
seves out without free conscious choice on the part of the indi-
vidual, takes on the character of an organism. So, of course,
any state which is an organization of such a natural historic
community partakes of the same qualities. Further in its own
right the state has something of the organic character; for the
particular functionalities which are necessary to its existence,—
acting in concert, leading or following, deliberating, judging,
enforcing, these all have a natural basis. Men half instinct-
ively find their places and proceed to fill those places.
But, after all, while there is some basis for the designation
of the state as an organism, the metaphor is not fitted to go
on all-fours. The state is a moral, not a physieal organism.
It increases by a sort of growth, but not the growth of a plant,
which is according to strict natural necessity. It is within the
choice of human parents to restrict their offspring. Persons,
by birth or free choice present in the community, are not mem-
bers thereof as the hands or the feet are members of the body.
The individual may be very uncomfortable when separated
from the community; but he can survive that separation. The
hand, cut from the body, perishes. So the natural reciprocal
functionalities of human beings, even that of the opposite
sexes, does not necessitate the actualization of that relation.
Marriage is still subject to man's free determination. Still less
necessary is the actualization of the political tendencies inherent
in man. Still more are they subject to his free will. The very
essence of a state is to be a community which is formally, con-

32 PREPARATION OF THE PROBLEM. [PART I.
sciously, freely organized, - which, therefore, has passed be.
yond the stage of a mere organism into that of an organization;
that is, it has become a free, conscious, rational working-
together of men for a common end. Nor is this to insist that
communities could exist or have existed in a non-political
state. If we admit the current doctrine that government came
into existence at the very beginning of human society, still it
is indisputable that the process of its becoming was a free and
not an organic process, that society came to be political, not
as the branch put forth the bud, but as the individual freely,
though in answer to powerful instincts, takes to himself a
friend or wife. This whole case is well expressed by Blunt-
schli, though he himself has been justly criticised for an exag-
geration of the organic element. “The state is not a product
of nature and therefore it is not a natural organism. The
tendency to political life is to be found in human nature, and
so far the state has a natural basis; but the realization of this
political tendency has been left to human labor and to human
arrangement.” (Theory of the State, p. 19)
(c). We have thus seen that the state is not relieved of
accountability as being an abstract entity brought into exist-
ence by metaphysical necessity through the simple juxtaposi-
1. It is very common for writers who incline to make the state
a mere natural product to refer to Aristotle as their forerunner,
because he calls man a political animal. But, as a matter of fact,
Aristotle never held to the doctrine of the naturalness of the
state in such fashion as to remove it from the domain of human
freedom, or to represent the becoming of the state as like the
germination and growth of a plant. On the contray, he held to
the practically universal view of his times that all society was
once in a non-political state and that government was the inven-
tion of the great man whom he characterizes “a great benefactor
of human kind.” (Politics, p. 7, Weldon).

CHAP. II.] THE REALITY OF THE PROBLEM. 33
tion of men in time and space, and, again, that it is not freed
from accountability as being a natural organism and, so, unfree
and irresponsible. It remains to remark that it is not an inde-
pendent person in any such literal sense as to relieve human
beings as such of responsibility for its establishment and
maintenance. Now, the reader could not be blamed for feeling
some impatience at any attempt to prove a proposition so evi-
dent as this; yet the methods of expression, characteristic of
our time, almost compel it. We hear much about “group
psychology,” “the group will,” etc. The state is declared to
be a real person, a true end for itself and not a mere means.
We are told that “The state has an independent origin and an
independent will”; that neither the people, nor the aristocracy,
nor the king is sovereign, neither one man nor all men, but
only the state; that the magistracy receive their commission
neither from themselves nor from any other man, or set of men,
but only from the state.
Very extraordinary expressions these from the Anglo-Saxon
stand-point! Very extraordinary, surely, if one is expected to
interpret them literally. But here, again, we are doubtless
dealing with figures of speech. And, certainly, there are facts
about the state which make the figure of personality quite
indispensable. Indeed, it is already evident from the preced-
ing discussion that, as applied to the state, person is a far
juster metaphor than organism. For, in so far as a com-
munity by a process of conscious, free, rational organization
lifts itself out of the organic condition of a community and
becomes a self-conscious state, it approximates the true life of
a person; every organization being from the nature of the
case a corporate person. Still we need to remind ourselves
that the most perfect organization,-that which acts the most
3

34 PREPARATION OF THE PROBLEM. [PART I.
freely and with the most perfect rationality,+is only a sort of
person. It has no true concrete consciousness, or understand-
ing, or reason, or will. The actual will which we call the will
of the state is, after all, only the concurrent will of many indi-
vidual persons.
Of course the purely individualistic character of the
momenta which make up the so-called national will is more
or less obscured by their vast number, their hidden working,
their individual insignificance. The public official seems often
constrained to a better and wiser course, or a worse and more
foolish course, than he would himself have followed, by a will
which he carries out in spite of himself, and which, further,
can not be distinctly traced to any one man, or set of men,
The infinite complexity of the momenta which thus deter-
mine political action leads us to lump them off as the
will of the state. We easily and naturally fall to talking
about the group will, the group judgment, the group psy-
chology. All of which is well enough, if only we do not forget
that these are metaphors. For, of course, this seeming obe-
dience of the magistrate to an extra-human will is only seem-
ing. The whole case can and must be explained by the oper-
ation of forces, such as the influence of public opinion, pre-
judice, obstinacy, tradition, etc., which belong to the psychol-
ogy of individuals. The official is only a man among men.
He cannot help being influenced by the outcry of a thousand
disappointed office-seekers, or by the righteous indignation of
a great number of his fellow-citizens whose eyes have been
opened to some abuse and who are not afraid to protest.
Exactly speaking, then, there is no such thing as a group
psychology, but only the psychology of the individual as deter-
mined by his relations to the group. If a man lives the life of
-

CHAP. II.] THE REALITY OF THE PROBLEM. 35
a hermit, his conduct is determined by one set of motives. If
he lives in a community, but unmarried, he is influenced by a
much larger class of considerations. If he becomes a husband
and father, a new world of interests is opened up to him. If
he is given a responsible position in some important corpora-
tion, yet another class of motives is added to his whole sum of
will determinants. If, now, he becomes the chief magistrate
of a great nation, a vastly greater expansion takes place in the
forces which go to determine his conduct. But all this is as
old as thinking. It was perhaps too much neglected in the
revolutionary epoch. Man was thought of too much as an
isolated, self centered being, capable of acting with perfect
rationality in every conceivable circumstance. But this too san-
guine view of human nature, which exaggerated at once man's
freedom, knowledge, and rationality, is surely no more unscien-
tific than that political mysticism which has grown out of the
reaction,--a mysticism which enthrones in awful dignity far
above the will of the individual a mysterious, inaccessible,
supreme personality—the state.
The simple fact is that, setting aside the conception of deity,
there is known to men no other personality, no other reason,
no other understanding, no other will, than that of the indi-
vidual human being. It is, therefore, impossible for him to
escape responsibility for the existence of government, for
the exercise of restraint over the individual will, by declaring
that such restraining is not his act but that of the state, a
person other than, and independent of the individuals compos-
ing it. Of course no particular person can justly be burdened
with the whole responsibility for the action of the state; since
he is only one of many momenta which together determine
that action. Further, all can not be burdened with the whole

36 PREPARATION OF THE PROBLEM. [PART I.
responsibility; since in the state, as everywhere else, such ele-
ments as tradition, prejudice, etc., come in to diminish the
total of free momenta in the whole number of forces, and so to
diminish the total of responsibility resting on any or all.
While, however, men are less responsible for much of political
action, because, from the nature of the case, less free than in
other relations, still this reasoning can never go so far as to
eliminate the fundamental responsibility for the existence of
the state as such. For the state could never have come into
existence, nor could it continue in existence a single hour, but
for the free, conscious, and, therefore, responsible action of in-
dividual human beings.
II. We have thus seen that one of the two implications
which furnish grounds for objecting to the propriety of the
question, “by what right does the state exist and restrain the
liberty of the individual,” is a proposition altogether incontro-
vertible. What now of the second postulate? What of the
assertion, also implied in our question, that to the individual
belongs an original, primordial right to free self-determination
such that every restraint on that freedom requires special jus-
tification? Here we seem to strike still more serious objec-
tions. For nothing is more common nowadays than the asser-
tion that there is no such thing as a natural, individual, per-
sonal right, and so, of course, no particular right to free self-
determination. “The first step must be to rid our minds of
the idea that there are any such things in social matters as
abstract rights, etc.” (Jevons' State in Relation to Labor,
p. 6). “In ethics or theology no place can be found for
natural rights inhering in the individual.” (J. L. Davies,
Lond. Spect., Oct. 12, 1889). “There is no universal human
right to personal freedom, outer or inner freedom, freedom of

CHAP. II.] THE REALITY OF THE PROBLEM. 37
conscience or of faith, etc.” (Lasson, Rechtsphilosophie, p.
258).
Here, again, one scarcely need remark, that, if this sort of
thing is true literally, if men have no rights which exist prior
to, and independently of, human enactment, then there is no
more sense in asking by what right does the state exist and
restrain the liberty of the individual, than to ask by what right
does man use the stream to turn his mill, or the crooked stick
to plow the earth, or water to satisfy his thirst. If the meas-
ure of man’s claim on his fellow men is the will of men, then
of course, he is a mere thing, not a person, not an end to hia-
self. His subjection to control has no moral significance what-
ever. But here, again, it is of course impossible to suppose
that the expressions commonly employed are to be understood
literally. In some cases the context will sufficiently explain
the real meaning. In others we must assume that the full
significance of the words is not realized. For, consider the
monstrous consequences of such denial that men have natural
rights. Suppose two sailors simultaneously wrecked on a
hitherto uninhabited island outside any political jurisdiction.
Now, if men have no natural rights, i.e. rights not depending
for their existence on the enactment of the state, then there is
absolutely no moral obstacle to hinder one of them from show-
ing his fellow over the cliff and into the sea, as if he were but
a fragment of the rock on which they stand. But, of course,
none of the above-mentioned writers hold any such extraord-
inary doctrine. They all doubtless believe that each of these
men in our hypothetical case would be under morally valid
obligations to the other, and each would have morally valid
claims on the other. But such claims which are morally valid
even in the absence of express enactment by political superior,

38 PREPARATION OF THE PROBLEM [PART I.
—these are exactly what men mean by natural, inborn rights.
Surely, we must say with T. H. Green, that “the state presup-
poses rights and the rights of individuals,” (Philos. Works,
Vol. II, p. 450), or with Mulford, “In law there is only the
formal recognition, the deposition of rights, it is not creative
of them.” (The Nation, p. 77).
But, if there could be any doubt that individual rights in
general are presupposed in political philosophy, there is abso-
lutely no room for question as to the existence of the partic-
ular right of self-determination; for this conception is the nec-
essary postulate of any system of ethics whatever, indeed of the
very conception of the moral. Right, duty, obligation, the
moral,—these terms can have no significance save with reference
to the free self-determination of persons. The most elementary
proposition of an ethical sort, that which asserts it to be the
duty of a given subject to do thus and so—such a proposition,
by necessary implication, affirms also the right of that subject
to liberty; for only through liberty is the performance of duty
possible.
But, of course, this is nothing new; nor is it to be sup-
posed that the writers above quoted need to be taught it.
Probably the current denial of natural rights is only a denial
of some particular doctrine or theory of natural rights, a
denial that there is any such thing as an unlimited, non-
forfeitable, never-to-be-trespassed-upon right even to liberty.
If this be what is meant, it is of course quite true, though it
has been said in rather extraordinary fashion, and with too
much of an inclination to speak as if it were a new discovery.
As a matter of fact, by most writers in every age it has been
taught not merely that there are limits to the individual’s right
of self-determination, but also that such limits are necessarily

CHAP. II.] THE REALITY OF THE PROBLEM. 39
contained in the very idea of a right. A right as such is self-
limiting; for its affirmation implicitly contains the further
affirmation that every person as a person possesses the same
right, i. e., it of necessity correlates itself with an obligation.
Further, the right of free self-determination is limited by the
rational ends for which it exists. To be free is not the end,
but the means, of being a person. It is a necessary condition,
not the goal, of the moral. To be a person is not to be a mere
center of spontaneity, a fountain of self-determination, it is to
be a fountain of rational self-determination, of spontaneity
consciously regulated with reference to a rational good con-
templated as its end. Still, again, that rational good cannot
be conceived as a particular good. It rather forms one part
in a great, articulated, organic whole of good, a whole which
includes and harmonizes all lesser, particular goods. Thus
every right, and of course the individual’s right of self-deter-
mination subsists in, and is limited by, the organic system or
order of right which is fixed by the totality of circumstances
that condition the individual's relation to the absolute good in
any given time and place.
But, though thus limited by the organic order of right in
which it subsists, the individual’s right of self-determination is
the essential, primordial concept of that order. It is the
basis, the condition, the necessary implication of all moral or
jural ideas or systems. Every objective, empirical limitation
of it is, therefore, presumably wrong, and needs special justi-
fication; needs to prove itself a limitation determined by, and
necessary to, the rational, absolute order of right. That in any
given case the individual has a right to free self-determination
goes without saying. The burden of proof to the contrary
rests on him who would limit that liberty. We therefore con-
-

40 PREPARATION OF THE PROBLEM. [PART I.
clude that the implications as to the nature and origin of the
state, and the nature and claims of the individual contained in
the question “by what right does the state exist,” are liable to
no sound philosophic objection. The problem therefore pre-
sented by this question is a real one. The more particular
definition of this problem will be undertaken in the next
chapter.

CHAPTER III.
THE PROBLEMI DEFINED.
In the preceding chapter we have maintained that the
question “By what right does the state exist?” presents to
the student of political philosophy a real problem. In doing
this we have taken for granted a sufficiently clear understand-
ing as to the nature of that problem. But, before proceeding
further, before undertaking a critique of the solutions which
have been offered, it will be necessary to have the problem
more exactly defined. For the course of speculation on the
matter shows very plainly that different writers have not kept
one and the same problem steadily before them, that, on the
contrary, it has received a great variety of interpretations.
Let us first, then, make clear just what is the question to be
answered. To begin with, we can shut out one or two inter-
pretations of that question which are quite common but very
plainly erroneous.
In the first place, though our problem is often spoken of as
being the explanation of the origin of the state, it is in no
sense concerned with the empirical process through which any
government, or governments in general, have come into exist-
ence. Such an investigation belongs to history or anthro-
pology and could throw no light on our difficulties. Those
critics of the contract theory who meet it by denying the his-
torical reality of any such original compact, miss the point of
the discussion entirely. The question with the men of the revo-
lutionary epoch was not, how did actual governments come into

42 PREPARATION OF THE PROBLEM. [PART I.
existence, but how could a government justly come into eacist-
ence. “No one can well doubt that the family was prior, in time,
to the clan or tribe . . . ; but the matter of fact revealed by
history has not been the point of chief interest; the speculations
run back to the right of the state to eacist and hold power; to a
question of ethics and politics, not of history.” (Woolsey,
Polit. Science, Vol. I, p. 189.)
Again, it ought not to be necessary to remark that the
question is not as to the psychological origin of states, that is,
as to the instincts, appetences, passions, the unfree elements
generally, which make for the formation of a political order.
Such elements doubtless exist and are important. As we have
seen already the actual state offers many interesting analogies
to the true natural organism. In the very structure of human
nature there are correlated functionalities which point toward
and tend toward the institution of the state. But, in so far as
this is true, our problem has no existence. In so far as the
state is a mere natural product of human instincts, it has no
need of justification. It is only because and in so far as “the
realization of this political tendency has been left to human
labor,” that is, because and in so far as the state is not an
unfree but a free product of human activity, that we are called
on to show by what warrant it exists. This seems too plain to
need remark. Yet the very writer from whom the above ex-
pression is quoted, Bluntschli, after an effective critique of the
solutions hitherto offered, especially of the Contract Origin,
Divine Origin, and Force Origin theories, offers, as his own
solution, the theory that the state originates in the “natural
sociability of man.” Such an attempt at a solution, of course,
entirely misses the point of the problem. The writers whose
theories Bluntschli condemned, were seeking to discover, not

CHAP. III.] THE PROBLEM DEFINED. 43
what tendencies in man’s nature move him toward the forma-
tion of states, but what commission justifies him in obeying
these tendencies. -
But it is time for some more positive definition of our
problem. Once clearly stated it will be easier to eliminate the
mistaken interpretations often given it. To secure this clearer
understanding it will first be necessary to remind ourselves of
the fundamental character of political society, to realize more
fully the exact nature of the phenomenon or fact about the
state which gives rise to the problem. In its briefest state-
ment this fact is that in political society some men or set of
men, professing to act in the name of the state, imposes, by
force when necessary, a particular objective law, purporting to
be the will of the state, on individual men in general. In this
proposition several particulars need further remark. Begin-
ning at the end, we note that the objects upon which political
authority is exercised are men, persons,—beings, therefore,
whose highest good forms the end of every jural or moral
order, and whose free self-determination is the very basis of
all ethical ideas and systems. Wanton, or simply unjustified,
violation of that freedom is attacking the absolute moral order
in its most vital spot. In the second place, we should realize
quite distinctly what is the nature of this political function
thus exercised upon free human persons. From the stand-
point of the subject, government primarily presents itself as
law. In its first aspect this law purports to be a law of right,
a principle of that absolute order which actualjus imperfectly
realizes. If it were simply such a principle, it would arouse
little controversy. The assertion of the most elementary
ethical belief is the admission that there is an imperative
obligation of obedience to the absolute order. But positive

44 PREPARATION OF THE PROBLEM. [PART I.
law, the law which the individual meets in political society, is
quite different from this. The absolute order has merely
rational, abstract universality. When it comes to have
some measure of concreteness, as manifested in the reason
and will of individual human beings, it seems to have lost its
universality, to have become merely subjective and particular.
It has all authority for the individual himself, none for others.
Positive law, on the other hand, has objective validity, concrete
universality. It is the same for me and for my neighbor.
But how does it attain to this objective validity? Plainly
there is but one way. The purely rational principle must be-
come a command, must be impregnated, so to speak, with will.
Some person’s particular ideal of the true rational principle
must be announced as that version of the jural order which is the
will of the state, and then the proper organs of the state must
enforce this will upon the individual by all means, even, in the
last resort, by physical coercion. It is thus the specific function
of government to impose upon the individual, in apparent
violation of his claim to free self-determination, an alien will,
an alien law. There is no use trying to disguise this disa-
greeable fact by such euphemistic expressions as that “the
submission of the citizen is not to government, but to himself,
to his better, his superior self.” The evident fact is that the
state calls on the individual man to submit to some other per-
son’s “superior self.” Preachers and teachers try to instruct
us as to what course our own highest reason approves and to
persuade us to follow that course. When they have failed,
government steps in and says: “Such and such are the true
principles of justice. I command you to obey them. If you
do not, I will punish you.”
We have thus seen that the subjects upon whom political
authority is exercised are beings called to a destiny infinitely
higher than that of states, and to a destiny the realization of

CHAP. III.] THE PROBLEM DEFINED. 45
which rests upon their possession of the right of free self-
determination. We have also seen that the authority thus
exercised involves the imposition on these persons, in the last
resort by physical coercion, of some other person’s version of
the absolute law of right. Who, now, are the beings who exer-
cise such high prerogatives? We have but one answer. It is
not God, it is not some superior being as a demi-god, it is
simply men who perform this exalted function. Here, again,
there is no use trying to disguise the fact by mystical talk
about the state, its will, and its personality. The state is
nothing but man, acting, in so far as he is able, impersonally,
i. e., rationally, but still man.
This puts us in a position to realize what most of all is
meant by the question, “by what right does the state exist;”
to understand what is the real occasion for this demand for a
justification of political authority. For it at once suggests
itself that the fact about the state which imperatively demands
justification is not so much the coercive imposition of an alien
law on the free person, but rather the assumption of this high
function by mere human beings. That a being, in whom
reason and will in perfect harmony embody the absolute ideal,
might justly assume to enforce that ideal on beings who, like
ourselves, are confessedly unable either to know the right per-
fectly or to perform it so far as known, this would probably
be admitted without serious argument; but, when such exalted
claim is set up for human beings, it is inevitable that the need
of some justification should be felt. It is about this point that
the great historic controversies have raged. It is this point
which we shall look on as the core of the problem. Where is
the ultimate human prerogative on which the state is built?
At the beginning of this chapter we threw out some meth-

46 PREPARATION OF THE PROBLEM. [PART I.
ods of treating the general problem of the right of the state to
be, as not concerning themselves with the really essential ques-
tion at issue. We are now prepared to carry this process still
further, and it may be desirable to do so in order to make our
problem evident beyond a doubt. In the first place, from the
emphasis laid on the word prerogative it is evident that, as the
problem is here interpreted, it can not be solved by any pro-
cess of showing the importance or necessity of the end which
the state serves. Of course it is conceivable that the general
demand for a justification of the state might mean a demand
for proof that its function is a legitimate and proper one. But
the simple fact is that the question has not meant this to those
writers that have furnished the great historic solutions. So,
when Mr. Morley tosses off Rousseau's problem by declaring
that the state finds its justification “in considerations of proved
expediency with reference to the special case.” (Rousseau,
Vol. I, p. 156), it can not be supposed that the author of the
Contract Social would have admitted that this solution touches
his real difficulty. Rousseau doubtless had as little question
as Mr. Morley concerning the practical value of a really good
government. But he had a very exalted idea of the sacredness
of personality, and he found it difficult to reconcile with that
idea the fact that in the state the individual is called on to
submit to an alien will. He averred that no such high prero-
gative belongs to any man or set of men save in so far as the
individual has granted it. In this he doubtless erred; but it
surely would not help him to repeat time-worn truisms about
the greatness and value of the state. “You have a good
thing,” he would have said, “but whence your authority to
impose it upon me?” “No one has doubted that state organ-
izations are a necessary part of the system which provides for

CHAP. III.] THE PROBLEM DEFINED. 47
the order, progress, and elevation of mankind; . . . but the
question is still asked by what right came they to start into
being, and who gave them their powers?” (Woolsey, Polit.
Science, Vol. I., p. 189). Doubtless Rousseau's solution which
traces the political prerogative to the right of a man to govern
himself and his power to transfer this authority by consent to
others is quite untenable, but it had the great merit of know-
ing just what is the mark to be hit and shooting straight at that
mark. And the true doctrine can be found only by setting
before us just the same object, i. e., the finding of the ultimate
human prerogative on which the authority of the state rests.
This same objection applies to any other theory which
attempts to justify the state by justifying its mission. Prof.
Green's assertion that the state is justified “from the function
which it serves in maintaining those conditions of freedom
which are the conditions of moral life” is a truth of great sig-
nificance and value, but it cannot with propriety be placed, as
he placed it, alongside the contract theory, force theory, and
divine right theory, as a solution of the same problem which
they are supposed to solve. For it does not, as do they, present
any prerogative as the ultimate prerogative on which the state
is built.
Again, the same emphasis laid on the word prerogative
shows us that the real difficulty is lost sight of by one who
thinks to settle the question by saying that the right to rule is
derived from the eternal order of things or from the divinely
ordained order or from justice. Of course it is. Probably
nobody ever denies it, when he understands the statement.
Every man who sets up a theory which attempts to indicate the
ultimate basis of political prerogative, tacitly asserts that the
foundation of the state is the ultimate jural order. For,

48 PREPARATION OF THE PROBLEM. [PART I.
plainly, an attempt to justify the state is simply an attempt to
show where the state roots itself down in that ultimate order.
The proposition, therefore, that the state derives its authority
from the absolute order, or from the moral order, or from
abstract justice is a formula sufficiently broad to cover the con-
tract theory, the force theory, the divine right theory, the
popular sovereignty theory, or any other theory conceivable.
Similarly it may be desirable to emphasize the word human,
for it is most decidedly the human prerogative that we are in
quest of. The mere general declaration, therefore, that the
state rests on the will of God is no solution of the question
which has absorbed so much interest in political philosophy.
To a theist this is a mere truism, a mere explicative proposi-
tion. Of course, the state ultimately rests on the will of
God, at least in the sense that he is the author of the empir-
ical universe in which is actualized that order of right which,
as determined by the rational nature of things, is eternal
like himself. The advocate of the contract theory, of the force
theory, of any theory, if he be a theist, declares that the state
rests on the will of God. If he teaches the doctrine that the
individual’s relinquishment of his right over himself furnishes
the commission of the magistrate, then he would assert that
such a right to transfer one's authority over self exists as the
will of God. So Von Haller would say that it is the will of
God that the strongest should rule. And so with the rest.
Such vague generalities as these can do nothing toward the
solution of the problem. If God is the ultimate author of the
right of rule, is it as the one who confers directly the commis-
sion, or as the one who has ordained a natural order in which
that commission is already by general law conferred? If we
conclude that it is the latter, where in the natural order of

CHAP. III.] THE PROBLEM DEFINED. 49
things is that prerogative located? Is it in the individual
over himself, to become a public prerogative only by transfer?
Is it the right of redress which by some mysterious transforma-
tion becomes the public right of maintaining justice? etc.? etc.?
We have emphasized prerogative, we have emphasized
human prerogative, we perhaps ought to emphasize ultimate
human prerogative; to insist that we are not concerned with
the prerogative of the mere magistrate. Doubtless all would
agree that in some sense or other the magistrates derive their
authority from the state. Further, most would agree with the
assertion, as to Germany for example, that the state thus
commissioning the magistrate is not to be conceived as consti-
tuted by the people merely, or by the aristocracy merely, or by
the king merely, but as being the “politically organized whole,
in which the head occupies the highest position, and every
member has its suitable place.” (Bluntschli, Theory of the
State, p. 471). But the question still remains: Whence the
commission by virtue of which this complex “politically or-
ganized whole” has come into existence 2 It did not grow,
else it could not be called an “organized whole.” But if it is
the product of human freedom, where is the basal prerogative
which brought it into existence? What right belonging to the
absolute, non-human order of right is the foundation of this
positive, humanly-enacted right?
In close connection with the above, it needs to be remarked
that the problem, though intimately connected with, is not the
same as the question: “Where is the sovereignty of the state
located.” This last is a problem not of political philosophy
but merely of constitutional law. To solve it one has only to
examine the structure of the actual political order. But the
problem here considered goes deeper. It asks, not what is the
4.

50 PREPARATION OF THE PROBLEM. [PART I.
chief prerogative within the state, but rather what is the pre-
rogative on which the state itself rests.
In one, and only one, connection do many recent writers
seem to show any apprehension of the real problem, and in
that connection they are content to stop short of an adequate
solution. That one connection is the treatment of a revolu-
tionary condition of things. Thus Lasson: “But in the
course of human history it happens that the regular conferring
of power is broken into by means of power, that the
magistracy with the physical force actually at its disposal
proves to be weaker than the hostile forces pressing upon it,
whether this be the might of a different state and of the
magistracy representing it, or a power which has formed and
organized itself within the state. . . . Every other break
in the legal order finds its remedy in the securely established
system of rights and its regularly working powers; but this
interruption of the legal order, which concerns the highest
power itself, sets in question the whole system of right, carries
with it a menace to all the relations regulated through the legal
order, and denies even the power, which hitherto was appointed,
to set up again the legal order out of the ruins.” In this
passage it is evident that we are very close to the real difficulty.
Yet, after all, it seems impossible to gather from the context
any answer to the question here implicitly contained. In fact
the following discussion instead of so answering the question
seems to amount to a denial that it can be answered, For,
on the next page, we find this statement: “The original form
of constructing a legal order through custom again enters
after a certain sort in order to create a new legal order in place
of that which has been overthrown. . . . . The merely
actual magistracy then gains little by little also formal legiti-

CHAP. III.] THE PROBLEM DEFINED. 51
macy through continuance and the exercise of power.” But
surely custom is not a person; it cannot commission any one.
Continuance has no power, no authority, no divine right that
it can confer legitimacy. The only way to give this doctrine
any significance is to suppose behind it some such theory as
that the original prerogative is with the people and that the
continuance of any government is the proof that the people
have tacitly indorsed and so legitimized it, or that God’s com-
mission is the ultimate basis of the prerogative and the con-
tinuance of a government in similar fashion proves his indorse-
ment, etc. In a word, this theory furnishes no answer to the
question here considered, but merely argues that a government
may in its initiation be without adequate ethical foundation
and yet come to have such ethical foundation through its
acceptance by the authority which possesses the original pre-
rogative. What is that authority? Where is the original
constitutive prerogative? This question is not really touched
in any such discussion.
We will now assume that the real nature of the problem
before us is made clear, and in Part II, which follows, we will
pass in review the solutions which have been proposed.


TE_4_TECT TI-
CRITIQUE OF PREVIOUS SOLUTIONS

CONSPECTUS OF THEORIES
As to the ULTIMATE PRERogative on WHICH THE
STATE Rests.
I. SUBJECTIVE PREROGATIVE GROUP.
(Authority of Self over Self.)
(1.) Contract Theory.
II. OBJECTIVE PREROGATIVE GROUP.
(Authority of One over Others.)
A. PRIvate or Egoistic PRERogative SUB-Group.
(1) Right of Redress.
(2.) Right of Self-Preservation.
B. ALTRUistic PRERogative SUB-Group.
a. Particular Prerogative Class.
(One person over other persons specially related to him.)
(1.) Patrons over Dependants.
(2) The Strong over the Weak.
b. General Prerogative Class.
(One person over other persons in general.)
a” Special Divine Commission.
(1) Immediate Divine Commission.
(2) Transmitted Divine Commission.
(3) Providential Commission.
b% Natural Commission.
(i. e., divine only through the divinely
ordained natural order.)
a^* Collectivist Human Prerogative.
(1.) A Prerogative of Society.
(2) A Prerogative of The People.
(3) A Prerogative of The Community.
(4.) A Prerogative of The State.
b” Individualistic Human Prerogative.
(1) A Prerogative of Man as Man.
(The doctrine of this thesis.)

CHAPTER I.
I. SUBJECTIVE PREROGATIVE GROUP.
Contract Theory.
In attempting a systematic critique of the different solu-
tions which have been proposed for any problem, in this or
any other department of study, there is one special fault which
no writer can wholly avoid, for which, therefore, the reader
should make allowance. This fault consists in unduly empha-
sizing the peculiar characteristics of different theories in one's
efforts to make sharp, clean-cut distinctions among them. A
thoughtful reader is always likely to raise the question whether
the writer “has not somewhat exaggerated the difference
between his own position and that of his predecessors; whether
the sharp contrasts which he finds between the doctrines of
different schools really existed, and whether these doctrines
were generally as fragmentary and one-sided as he thinks.”
(Marshall, Principles of Economics, on Boehm-Bawerk's
Capital and Interest.) Of course, the present writer has tried
to avoid this pitfall, but can have no great confidence that he
has succeeded.
As we have seen in the preceding chapter, the real heart
of the problem suggested by the mere existence of the state is
this question, “What is the ultimate human prerogative on
which the state is built?” In considering actual and possible
answers to this question, we will first divide them into two

56 CRITIQUE OF PREVIOUs solutions. [PART II.
general classes, according as they start with a prerogative
which is purely subjective, i. e., of the individual over himself,
or objective, i. e., of some person or persons over other persons.
(The full scheme of classification is exhibited in the table on
page 54.)
The first division—the Subjective Prerogative Group—
is constituted by the various forms of the Contract theory. I
call these subjective because they all start with the assumption
that among men, as being substantially equal, only self-
government is morally justifiable, that any objective interfer-
ence with the free self-determination of the individual by one
of his fellows is per se unjust. From this premise, evidently,
government can be brought into existence, if at all, only by
some process of consent on the part of the governed.
The untenableness of this theory, whatever be the par-
ticular form it takes, has been so often demonstrated that
there is no need of detailed treatment here. A single objec-
tion is absolutely decisive. The consenting act, if ever so real,
could never bring into being a true political authority. For,
since it is possible that the original constitutive compact, like
any other contract, should be broken, therefore the right of
the state to enforce law must, in the last analysis, mean the
right to enforce the original compact. But, since the right to
enforce the original compact can not itself be created by that
compact, therefore that right must exist prior to the compact.
To make this theory effective, therefore, it would be necessary
to assume that at least one objective right, one right of
external control over the free will of the individual, exists
prior to his consent. But this, of course, is to deny the funda-
mental postulate on which the theory is built, viz., that all
interference with individual freedom, unless consented to, is

CHAP. I.] SUBJECTIVE PREROGATIVE GROUP. 57
unjust, immoral. There is, therefore, no prerogative in the
exercise of which the original compact can be enforced; and so,
after all our trouble, we are left without any state.

CHAPTER II.
II. OBJECTIVE PREROGATIVE GROUP.
A. Private or Egoistic PRERogative Sub-Group.
(1) Right of Redress. (2) Right of Self-Preservation
On the contract theory, as we have seen, political authority
could never come into existence, because that theory starts
with an authority which is purely subjective, i. e., of self over
self, while political authority is nothing if not objective, i. e.,
of one over others; and between the absolutely subjective and
the absolutely objective, there is an impassable gulf. All
other theories avoid this difficulty by taking for their starting-
point some prerogative which is already objective, i. e., a right
belonging to some person or persons to interfere with the
liberty of some other person or persons. These theories are
divided into two sub-groups, viz., the Egoistic Prerogative and
the Altruistic Prerogative. To the first belong those theories
which assert that the prerogative of the state originates in
some prerogative of a private or personal character—some right
belonging to one person actively to regulate the conduct of
other persons with reference to some end of his own.
(1) Right of REDREss.-The first theory of this class
which we consider, asserts that the ultimate right out of which
political prerogative grows, is the right of redress belonging
to the injured party as such. This right being transferred to

CHAP. II.] PRIVATE PREROGATIVE. 59
the community at large, full political authority is thereby
brought in existence. This theory seemed implied in God-
win's criticism of the contract theory current in his day:
“There is, therefore, no delegation necessary on the part of
the offender; but the community in the censure it exercises
over him stands in the place of the injured party.” (Godwin,
Polit. Justice, Vol. I, p. 161.) This theory is not usually
recognized in the formal discussions of our subject; but it has,
I believe, a very considerable following among intelligent men.
It seems to be implied in this sentence from the New York
Nation of March 1, 1888: “The pardoning power does not
rest with me; I have transferred it to the society in which I
live.” Yet, however common this view may be, it will not
bear careful examination. For, first, the right exercised by
the community is not one of redress. The injured party and
all connected with him may have been long dead; but the
state no less remorselessly hunts to the death his slayer. The
state punishes, but punishes that rights may be secured, not
that their violation may be redressed. In the second place,
the right of redress, if there be such a right, is essentially a
private, non-transferable right. If I have wronged you, you
can forgive me, but no one else can, either originally or by
delegation from you. Finally, political authority can never
depend for its title on any process of delegation. For the
state is a compulsory organization. The government assumes
to redress the wrongs of a private citizen, not because that
citizen has favored or consented to this arrangement, but
because the state believes that justice will best be secured by
such action. And, if Virginia, Mississippi, and other Southern
states, alluded to in the Nation’s article, ever set about the
task of abolishing the appeal to knife or pistol so common in

60 CRITIQUE OF PREVIOUS SOLUTIONS. [PART II.
those states, it will be, not because men have agreed to
relinquish the sweets of revenge, but because those in the
community who believe such course the only just one, have
become strong enough to enforce their will on the rest.
(2) Right of Self-Preservation.—A second theory which
attempts to establish the state on the basis of a private, par-
ticular right finds the ultimate prerogative in the right of self-
preservation. Men everywhere have a primordial right to
take the necessary steps to secure their own preservation, even
if this involves restraining the personal liberty of others.
Now, since crime threatens the welfare of all the members of
the community, therefore the community, in the exercise of the
original right of self-preservation, may justly restrain crime by
whatever means may be necessary. To this theory one objec-
tion seems decisive. The right exercised by the state can not
be the right of self-preservation. To prove this we simply
need to reflect that the intensity of the right of self-preserva-
tion in any particular person varies directly as the proximity of
that person to the danger; while, with the political prerogative,
the case is exactly reversed. Those persons whose interests
are most immediately threatened by a possible repetition of
the criminal act are, as all agree, just the persons to whom the
political prerogative does not belong. Rather does it belong
to those who are least interested and, therefore, most nearly
impartial. This fact makes it clear that the political preroga-
tive is a right, not to protect or preserve one's self, but to
enforce justice as such. Of course this is not to assert that
self-preservation has no part in justifying the human exercise
of coercive authority. On the contrary, it is probably quite
indispensable to the accomplishment of that task. But the
mere right of self-preservation can not be the ultimate basis of

CHAP. II.] PRIVATE PREROGATIVE. 61
the state's prerogative; for that prerogative is a far higher
one, viz., the prerogative of maintaining justice, of seeing
that right triumph though the heavens fall.

CHAPTER III.
II-B, ALTRuistic PRERogative Sue-Group. a. PARTICU–
LAR ALTRUISTIC PREROGATIVE.
(1) Prerogative of Patrons. (2) Prerogative of the
Strong.
In reference to all possible theories of the class considered
in the preceding chapter, viz.: the Private Prerogative Sub-
Group, it might have been seen from their very definition
that they could not be accepted; since, as we have seen, the
political prerogative, having as its end the maintenance of
universal justice, must be in its very nature impersonal, non-
private, non-egoistic. Every private right, so far from making
a possible basis for political authority, tends just by its par-
ticularistic character to neutralize whatever truly judicial or
political prerogative man does possess. We must, therefore,
seek a prerogative which does not point toward self. This
gives us the ALTRUIstic PRERogative SUB—Group. Preroga-
tives of this class again subdivide into a. The Particular Al-
truistic Prerogatives—i. e. prerogatives of one over others
specially related to himself, and b, the General Altruistic Pre-
rogatives—i. e. prerogatives of one over others in general.
We here consider class a.
(1) The theory of this class most sharply distinguished is
that which attributes the ultimate basal prerogative to Patrons
over Dependents, as the father over his family, or the medieval

CHAP. III.] PARTICULAR ALTRUISTIC PRERogative. 63
lord over those looking to him for protection. It is not easy
to determine with certainty the exact core of this doctrine. It
may have any one of three different meanings. 1. It may
mean that the right to exercise authority in the name of justice
is merely an evolution out of a purely private claim which the
father or patron might be supposed to have, a claim to control
the conduct of those dependent upon him, simply because he has
performed for them a service, and so placed them under obliga-
tions to himself. In this case the theory plainly belongs under
the preceding head as a mere Private Prerogative theory, and
is shown to be inadequate by the reasoning employed in the
preceding chapter. 2. The doctrine may mean that poli-
tical authority is an evolution from the right of wardship
naturally belonging to the father or patron. 3. Finally, the
doctrine might mean that, though the political prerogatives is
naturally independent of the prerogative of wardship, yet the
two are necessarily connected in the same person.
As the theory according to the first interpretation is dis-
posed of in the same way as other private prerogative theories,
we need not consider it further. The second form of the doc-
trine—that political prerogative is a mere evolution of the pre-
rogative of wardship—would seem to be sufficiently refuted
by a comparison of the two prerogatives. The right of ward-
ship is a right to control the action of a particular person in
order to attain some good of that person. The political pre-
rogative, on the other hand, is a right to control some persons
in order that the good or right of persons in general shall be
secured. The two prerogatives are therefore always clearly
distinguishable, even when they are both involved in the same
act. Thus, in so far as a particular punishment is inflicted,
that the child or ward may be profited, it is the prerogative

64 CRITIQUE OF PREVIOUS SOLUTIONS. [PART II.
of wardship which is exercised; while, in so far as the purpose
of the infliction is to insure just action on the part of the per-
son punished toward other persons in general, it is the politi-
cal prerogative which is exercised. It is also possible that the
duties growing out of the two prerogatives may be in conflict.
The duty of a man as a father or patron may conflict with his
duty as a ruler. It is therefore plainly impossible that the
political prerogative should be an evolution from the wardship
prerogative.
But we still need to reckon with the third interpretation of
this doctrine. Perhaps it means that, while the wardship pre-
rogative and the political prerogative are logically separable,
yet the two are necessarily associated—the patron per se must
also be the ruler. Now, as a mere empirical rule of frequent
application in the course of history, most persons would be
disposed to admit that this proposition has some force. It
will quite probably turn out, when we have found the true
ultimate prerogative, that it will prove to be one which, at
certain stages of social development, belongs in its highest
form to the patron. But, of course, the theory here conside
ered, in order to furnish a solution to our problem, must
assert, not the mere occassional connection of the prerogatives
of wardship and of rule, but rather the permanent and meta-
physically necessary connection of the two. If patronage per
se is the ethical basis of political prerogative, then only the
patron could ever have a rationally valid claim to exercise
authority. The theory, therefore, would necessarily fail to pro-
vide any state among men substantially equal, or where the
relations of patronage and dependence did not exist. This
objection, plainly, is equally decisive against every form of
the doctrine.

CHAP. III.] PARTICULAR ALTRUISTIC PRERogative. 65
(2) Closely allied to the last theory, often identified
with it, is that which attributes the ultimate, constitutive pre-
rogative to the strong as such. This, again, is open to differ-
ent interpretations. 1. It may mean that, other things being
equal, the strongest has the supreme claim to rule. In this
sense the proposition is not likely to arouse much controversy.
But it would also have no significance as a solution of the
problem before us. Some of the “other things” might easily
be that real ethical basis of political authority which we are
seeking. 2. But, again, the theory might mean, is commonly
understood to mean, that might makes right—that strength
per se is the warrant which justifies a man in imposing his
version of the jural order on his fellows. Thus understood,
the theory is definite and tangible, but it simply has no pos-
sibility of acceptance. Undifferentiated might as such can
not be the basis of right as such. There is plainly no rational,
causal nexus between them, and experience has shown too
clearly that might is often devoted to arbitrary, capricious,
unregulated will.

CHAPTER IV.
II. B.-b. GENERAL ALTRUistic PRERogative, as SPECIAL
DIVINE COMMISSION.
(1) I mmediate. (2) Transmitted. (3) Providential.
We have now considered the theory which starts with a
purely subjective prerogative, i. e., of self over self, and
attempts to bring into being political authority by the process
of relinquishing this prerogative to a common sovereign. We
have seen that any such attempt is doomed to failure; that the
purely subjective would necessarily remain such; that, conse-
quently, the state must take its start from an objective prero-
gative. Further, we have considered those theories which try
to meet this necessity by building upon a prerogative which is
objective, indeed, but private, personal, egoistic. We have
found that such theories also fail to furnish an adequate basis
for political authority; that, in fact, such private, personal
rights only tend to neutralize the true political prerogative,
whatever that be. It was thus made evident that the adequate
basal prerogative must be an altruistic prerogative. But,
again, we saw that not all altruistic prerogatives will answer.
Particular altruistic prerogatives, i. e., such as exist because
of some special relations between ruler and ruled, such as
patronage, or support, or physical superiority, will not answer
to furnish the universal basis of the state, for then there could
be no political authority among persons who did not realize

CHAP. IV.] SPECIAL DIVINE COMMISSION. 67
any of these relations,—that is, there could be no state among
equals. It is, therefore, plain that we must set out with a
prerogative which is in its very nature general, universal,
public, a right to restrain persons in general in the interests
of justice; a prerogative of some objective person or persons
to punish the wrong-doer, because he is a wrong-doer, and not
because of some peculiarrelation between himself and the exec-
utor of the punishment. The theories remaining to be con.
sidered all attempt to meet this requirement by starting with
a General Altruistic Prerogative. These theories subdivide
into two classes according as the prerogative with which they
start comes as a special commission from God, or is naturally
in the hands of man. The first class are no longer of great
importance, but will be briefly considered in this chapter for
the sake of completeness.
a”. Special Divine Commission.-The general basis of these
theories is the supposed principle that neither the rational
nature of things, nor God, in and through nature, has given
man any commission to rule his fellows, that, therefore, if
there is to be any warranted political authority, it must exist
by special commission from God. Historically the theory has
appeared in three chief forms.
(1) According to the first,-Immediate Divine Commis-
sion,-no one could justly rule except as Gideon or Samuel are
represented to have ruled, i.e., by a specific call from God to
that function. Of course this theory does not call for discus-
sion as it has no following in our day.
(2) The second form of the theory, which taught that the
divine commission might be transmitted from the original
recipient down a continuous line of posterity, and even over
some very astonishing leaps, was the doctrine of Filmer's Pat-

68 CRITIQUE OF PREVIOUS SOLUTIONS. [PART II.
riarcha. Leslie Stephens justly remarks that it does not
deserve serious refutation.
(3) Providential Commission.—This form of the theory
is somewhat more important. It has without doubt a consid:
erable following in monarchial countries. It seems to be
almost a family doctrine among recent Hohenzollerns. Some
passages from Stahl seem to indicate that this is the true
interpretation of his theocratic doctrine. But, however re-
spectable, it must be rejected as inadequate. Of course this is
not to say that we must deny the theistic doctrine of an
immanent Providence controlling the affairs of men, and even
determining the person who shall exercise supreme authority.
But, if the theory here considered is to furnish a solution for
our problem, it must mean more than a mere assent to the
doctrine of divine providence; it must mean that endorsement
or acceptance by Providence is the sole basis of legitimacy;
because to find this sole basis of legitimacy is exactly our pro-
blem. According to the theory, then, all free acts of human
persons leading toward the establishment of government are
unjustifiable, illegitimate, and become legitimized only when
they have been endorsed by Providence. This is to say, that
God has so constituted this world that a most important and
essential function in human society can be accomplished only
through a series of rationally illegitimate actions on the part
of individual men;–a proposition, certainly, which must shake
one's faith in the soundness of a premise from which it neces-
sarily follows. But a second and decisive objection is this,
that the appeal to Providence can never have any value in this
or any other case where the question is one of ethical justifi-
cation. By God’s providence, active or permissive, exist all
the facts of human society, alike the evil and the good. Pro-

CHAP. IV.] SPECIAL DIVINE COMMISSION. 69
vidence, therefore, can never be an adequate authority as to
the validity of a title or the legitimacy of an act. It seems to
justify everything; it, therefore, justifies nothing.

CHAPTER V.
II. B. b. b. * NATURAL HUMAN Commission. a.” COL-
LECTIVIST HUMAN PREROGATIVE.
(1) Society. (2) The People. (3) The Community
(Nation). (4) The State.
At the beginning of the last chapter we summarized the
results of the preceding critique, and found ourselves brought
to the necessity of setting out with a prerogative which is in
its very nature just such as the prerogative of the state, viz.: a
prerogative exercised in the interest of justice over men
in general. We then proceeded to consider the theories
which, if true, certainly would meet this requirement, viz.:
the theories which set out with a commission given by
God himself to some special person to act as his vicegerent in
the exercise of authority to maintain justice in human society.
Since, however, we found those theories, for other reasons, un-
tenable, we must pass on to the theories of the remaining
group, theories which all agree in asserting that somewhere
among men there is to be found a NATURAL prerogative to exer-
cise restraint upon men in general in the interest of justice.
In asserting the naturalness of this prerogative it is not in-
tended to decide the controversy as to whether the right is
determined ultimately by the nature of things or by the will
of God; but only that, even if the latter be the case, that will
is embedded in the nature of men and circumstances, and no
special commission other than that revealed in such nature is
needed by man.

CHAP. W.] COLLECTIVIST HUMAN PREROGATIVE. 71
But the Natural Prerogative theories soon break sharply
apart. On the one side,-and this is the drift of current dis-
cussion, – we find the ultimate constitutive prerogative
attributed to some collective manifestation of humanity, as
society or the people. On the other, there is a possibility of
starting with the individual and asserting that in so far as we
attribute prerogative to society it must be thought as a dis-
tributive rather than a collective conception. To the first
group, for want of a better name, I have applied the term
Collectivist, using the word, of course, in a sense quite differ-
ent from that common in socialistic discussion. This group
we will now proceed to consider, distinguishing four particular
theories as more or less clearly taught by various writers.
(1) Society.—The first of these theories attributes to Society
the primordial right to restrain the liberty of persons in the
interests of justice. “Society does not wait for the individual’s
consent; for society has a natural, original right to control the
individual. Without delegation from any authority whatso-
ever, society is sovereign.” This method of deriving political
authority is apparently quite common among American and
English writers. As we are accustomed to use the term
society, it is a fairly plausible view. Bluntschli’s characteriza-
tion of society as “only the sum of individual men” will
hardly answer among us. We think of society as implying
relations and ordered relations and even a system of ordered
relations. Society is no mere homogeneous mass, no mere
pile of uniform atoms. Even in the least important uses of
the term, even when it means the shifting associations of per-
sons devoted to getting pleasure in intercourse with one
another, even then there is present the idea of a rational whole,
a thought totality constituted by these persons. When people

72 CRITIQUE OF PREVIOUS SOLUTIONS. [PART II.
say “Society requires such and such a course,” they do not
mean that Mrs. Jones and Mrs. Smith and Mrs. Green require
it; but, rather, that the maintenance of a certain system or
order or set of relations, which all find in the long run advan-
tageous, requires such conduct. So, when we use society in
the largest sense, we mean not the mere mass of human beings
present in any community, but rather the totality of ordered
relations which we find embodied in each community. To
affirm the sovereignty of this great entity is by no means so
unreasonable as it is sometimes painted. Still it will not
answer. Society is only an abstract or thought totality. It
has no reason, no will, no personality, not even the figurative
personality of the state. Society, therefore, cannot be the
subject of rights or prerogatives; for these can inhere only in
a concrete person. Thus the ultimate prerogative on which
the state rests cannot be a prerogative of society as such.
(2) The People.—A second form of collectivism sets up
the people as possessing the ultimate prerogative. This doc-
trine is capable of at least two different interpretations accord-
ing as we mean by the people, the historic community, or, on
the other hand, the mere mass of undifferentiated citizens. In
the former sense the doctrine is considered in the next para-
graph. Here, we will understand by “the people” the mass
of citizens in general. Thus understood, the doctrine is liable
to an objection similar to that which shuts out society as the
possessor of the ultimate political prerogative. The people is,
indeed, a more concrete conception than society. It is made
up of persons rather than relations. But it has no unity. It
is not a person. It has no will, no judgment, no reason. It
cannot, therefore, be the subject or the source of rights.

CHAP. V.] COLLECTIVIST HUMAN PREROGATIVE. 73
(3). The Community. (The People. German Nation.)
The third Collectivist theory professes to find the ultimate
constructive prerogative on which the state is built in the
community, i. e., the people thought of as a totality bound
together by common origin, language, literature, moral ideals,
etc., etc. This is doubtless a better candidate than any
of its predecessors. But it will not answer, after all.
Real and natural as is the unity of such a community, it does
not attain to the status of a person. In truth, the very
purpose of organization into a state is to lift the com-
munity up to the condition of a political person; and, even
then, it is only “a sort of person.” It is indeed not uncom-
mon in our day to talk about the general will as if the com-
munity possessed a literal concrete will. But of course this is
a mere figure of speech. The general will means merely the
more or less definite purpose, common to a great mass of in-
dividuals dwelling in a community, to have realized a particu-
lar ideal of the absolute right. That general will is in no
sense a real will, that is, a capacity to determine one's self
to action with reference to a contemplated end. To the
community, therefore, as the claimant of the basal preroga-
tive, applies the same objection as to society and to the people
understood as the mere undifferentiated mass of individuals.
It is not a real person; it cannot, strictly speaking, be the pos-
sessor of any prerogative whatever.
(4). The State. The writer has felt considerable hesita-
tion in attributing to any one the theory that the original con-
stitutive political prerogative belongs to the state as such; but
something sounding much like this seems to be quite generally
advocated by recent German writers. On its face it seems a
meaningless paradox. To use a graphic metaphor, it seems

74 CRITIQUE OF PREVIOUS SOLUTIONS. [PART II.
to attribute to the state the power to lift itself by its boot
straps. Evidently the very thing to be explained is the exist-
ence of the state; and to say that the ultimate political prerog-
ative belongs to the state, is to say that the state possesses the
prerogative of bringing itself into existence. The only
method of making this suppositious doctrine mean anything
is to understand it in something like this form. If we sup-
pose the established order overthrown by violence, and a
purely artificial regime of force established in its stead, then
we must look upon that regime as having no rational justifica-
tion, until, through the gradual inter-working of the manifold
forces involved, such as divine providence, general acquies-
cence, the formation of new habitudes adapted to the new
order, etc., a new, settled, smoothly-working order has been
evolved; at which time the true state may be said once more
to have come to life, to have risen, like the phenix, from its
own ashes. Then, and then only, when the new powers have
become the duly accredited organs of this revived state, can they
be said to have any warrant. It must not be imagined, how-
ever, that this new legitimacy has been gained through the
acquiescence of providence, or of the people, or of the commun-
ity; since the writers in question distinctly reject all these doc-
trines. The active participants in such alegitimated government
have gained their commission simply from the state considered
as a totality. Every act they performed, before a state from
which they could get such commission had come into existence,
was a rationally unwarranted act, a rationally illegitimate act.
Such a theory would seem to need no further refutation than,
its own clear statement. The action of certain persons is
necessary to bring into being a state, and yet, only from the
commission of the state thus being constructed can any true

CHAP. W.] COLLECTIVIST HUMAN PREROGATIVE. 75
legitimacy come. We are thus brought to the insoluble con-
tradiction that only illegitimate action can bring forth legiti-
macy; only thistles can produce figs.
With reference to this whole class of theories it is to be
remarked that there is a fundamental absurdity in the very
idea of a collectivist ethical basis for political authority. All
collective activity of man is made possible not by the coales-
cence but by the concurrence of individual, personal wills, i.e.,
persons, acting individually, freely join their forces for the
attainment of a common end. But, if these persons act indi-
vidually, they must be responsible as individuals, and, if
responsible as individuals, then of course, as individuals they
must be possessed of the prerogative in the collective exercise
of which they concur. We are therefore forced to the con-
clusion that, if a natural political prerogative is to be found
anywhere, it is in the individual man. This is in general
terms the thesis which will be stated and defended in Part III.


TE_º_TECT TIT_
THE PROPOSED SOLUTION.


CHAPTER ..
THE THEORY STATED AND EXPLAIN.E.D.
By the preceding critique we have been brought to the
conclusion that, if there is any ultimate prerogative on which
the state can be built, it belongs to man as man. Part Third
is given to the exposition and defense of this doctrine. In
this chapter we will limit ourselves to the statement and ex-
planation of the theory.
A. STATEMENT of THE THEory.
The form in which the theory will be maintained is to be
found in the following four-fold thesis.
1. To every person as such belongs the prerogative of
rule, i.e., the prerogative of coercively interfering with the
liberty of other persons in order to maintain the first person's
version of the jural ideal; and
2. Among any number of persons, while each possesses
the general prerogative of rule, sovereignty, or the prerogative
of eacercising final authority, belongs of right to the person or
persons who show themselves fittest to exercise such authority;
and
3. Since persons acting collectively, i. e., in association
with one another, are manifestly better fitted to exercise
authority than when acting individually, therefore, it is the
duty of each person to exercise his prerogative of rule col-
lectively, and, so, it is within the prerogative of other persons

80 THE PROPOSED SOLUTION. [PART III.
to compel him so to act, if compulsion be necessary; that is,
the prerogative of associated man is higher than that of man
acting in isolation; and, finally,
4. Since the whole community, i. e., man in general, is
evidently better fitted for this task than any other association
of men, therefore the prerogative of men acting in com-
munities is the highest of all possible human prerogatives.
The community therefore is justified in assuming and exercis-
ing final authority in the name of justice.
B. CoMMENTs on the THEory.
Let us now proceed to interpret this thesis in detail, and,
in so interpreting it, to anticipate some of the most immediate
objections. In the first place, it should be noted that this
theory, if in a sense a kind of individualism, is such in a
totally different sense from that in which the term is applied
to the subjective doctrine of consent or to the theories which
start with purely private rights like redress, or self-preserva-
tion. The doctrine here presented builds on the individual,
indeed, but on the individual as a person, a being possessed of
a rational will, capable of self-determination in accord with
moral ideals. The exact difference can best be brought to
light by contrasting two or three different hypotheses. Let us
conceive the individual person with all stress on individual;
the person as a center of mere arbitrary will, a mere fountain
of unregulated spontaneity. To attribute prerogative to such
an one would be to enthrone wanton caprice. At the
opposite pole, let us conceive the absolute jural order, the ulti-
mate basal ideal on which all rests. To attribute prerogative
to this is to enthrone a mere abstraction. The first is suffi-
ciently concrete but has no universality. The second is univer-

CHAP. I.] THE THEORY STATED AND ExPLAIN.E.D. 81
sal but has no concreteness. Where is the middle term to be
found? The theory here advanced answers;–The true middle
term is the actual man, at once concrete and universal, having
a concrete will wedded to universal reason; man, who is a
real, though imperfect, incarnation of the absolute and eternal
order of right. It is therefore, not because man can will, that
he rightly exercises authority, but because, and in so far as,
he can will rationally, impersonally, impartially.
In the second place, it should be noted that, though the
theory gets around to the sovereignty of the community, this
is in a quite different sense from the Collectivist form of that
doctrine. In fact the antithesis between them is almost com-
plete. Collectivism, so far as it recognizes any prerogative in
the individual, attributes this to him as a member of the con-
crete organism, from which he holds a sort of commission.
The theory here advanced reverses the case and asserts that
if the community, conceived as a corporate whole, possesses
any political prerogative, it is because, and in so far as,
that community, through its being constituted of and by indi-
vidual persons, itself attains to the status of a free and
rational person. It is because the state is man “writ large,”
that it possesses any claim to authority. But, in fact, the differ-
ence is still deeper than this. The doctrine of the thesis treats
the community distributively not collectively. It is not the
community as a corporate whole that can be thought of as the
possessor of the basal prerogative; for, thus conceived, it is
not a person nor the subject of rights. In reality it is the
prerogative of men acting in and through communities upon
which we build the state.
But this suggests still another comment. This theory does
not teach that the prerogative of the state is created out of
6

82 THE PROPOSED SOLUTION. [PART III.
that of the individual by any process of delegation. The basal
prerogative is universal; but all prerogatives are not of equal
rank. On the contrary they are of every degree of elevation.
Under normal conditions the prerogative of men acting in and
through the state is the highest and, so, the superseding pre-
rogative. But the individual’s prerogative acting in other re-
lations or even singly is only suspended; it is not destroyed,
any more than the stars have ceased to shine because the full
light of the sun has made them invisible.
Again, it may be desirable to guard against the impression
that this thesis involves of necessity the assertion of popular
sovereignty. On the contrary, the theory largely grew out of
a desire to find a doctrine to justify the current latitudiarianism
which holds that any and every form of government is legiti-
mate in its own time and place. The theory here advocated
seems to meet this case; for, while it asserts the universality of
the prerogative of rule, it limits the possession of the sovereign
prerogative to the fittest. In one age that may mean a very
small minority which has come to full political consciousness;
in another age, a much larger number; in a still different time
and place, the whole people.
Still, again, it may occur to the reader familiar with politi-
cal speculation that this theory is a mere reappearance of the
Socratic doctrine of the sovereignty of the fittest." In rejoinder
to this at least two things are to be said. In the first place, if
we suppose Socrates to have consciously addressed to himself
the question propounded in this paper “On what ultimate
prerogative does the state rest,” he certainly nowhere syste-
matically treats it or develops the doctrine of the fittest from
See Sidgwick's Methods of Ethics, p. 270.

CHAP. I.] THE THEORY STATED AND ExPLAIN.E.D. 83
the bottom up. The very foundation principle of the theory,
the assertion of the universality of the governing prerogative,
which latter does not originate in the fittest but merely takes
on its highest or sovereign manifestation in him, this, so far
as I know, is nowhere even hinted at. But, in the second
place, it is, to say the least, very questionable whether the doc-
trine of Socrates was even by implication an answer to our
question, very doubtful whether he ever consciously presented
to himself the question. His problem seems to have been
rather the purely empirical, practical one, “Given the state,
who has the best claim to be its mouth-piece, to voice its will.”
Of course his answer is “The fittest.”
But, again, it may be said that this assertion of the
sovereign prerogative for the fittest is getting around to the
position of those who, like Carlyle, attribute the right to rule to
the strong as such. But this is not true. There is no doubt a
close affiliation of the doctrines; but there is also a decided
difference. Whatever such writers intend to imply, they at
least seem to assert that strength is the only basis or requisite
of authority, that undifferentiated might as such make right.
Perhaps it would not be far out of the way to affirm that at
bottom they are only emphasizing one side somewhat unduly,
that they do not mean to omit from the necessary conditions
of prerogative the possession of reason, moral ideals, a just
understanding, etc. But in passing judgment on any theory
we have to consider not what men possibly may mean, else we
would probably all be of one mind, but rather what they say.
They alone are responsible for the emphasis. They have
elected to stand or fall by their own statement of the case.
The writers referred to, substantially assert that might makes
right. In contrast with their theory the doctrine here ad-

84 "THE PRoposed solution. [PART III.
vanced builds on the universal rationality of man. It makes
its central foundation stone, not strength, but reason. It is
primarily because man is at once a particular and a universal,
because he is a living incarnation of absolute reason, of the
eternal order of right, that he is fitted to be the middle term
between that absolute order and a concrete order of right.
But this theory does not deny the necessity of might to the
true sovereign. It merely tries to put this particular element
into its proper place as one of the essential factors which go
to make up fitness, but by no means the only one, nor that one
which is the primary basis of man’s prerogative to rule.
This is also the place to remark on the element of truth in
the theory of Patrons and Dependents. As we have seen, the
relation of patronage cannot be the real ethical basis of the
political authority; since, in that case, no political authority
could rightly be exercised where such relation does not exist.
But, if we assert that political prerogative is universal, be-
longing to man as man, and that the highest prerogative
belongs to the fittest man, then we can admit that, practicall, y
under certain empirical conditions, sovereignty, or supreme
political authority, does belong to the patron as being just this
fittest man. For, surely, his fellows, who by hypothesis are so
inferior as to be obliged to live in a state of dependence, are
presumably fit only for the place of subject never for that of
ruler. But, of course, in saying this, it is assumed that the
inferiority in question is natural, i. e., is the result of natural
endowment or of history, and is not caused by any intentional
adaptation of the social order to produce such inequality.
Purposely to keep men shackled by ignorance and dependence,
in order that they may be unfit for the task of government, is
palpably immoral.

CHAPTER II.
THE DIRECT ARGUMENT FOR THE THEORY.
A THE FIRST CLAUSE of THE THEsrs MAINTAINEp.
Let us now take up the defense of the thesis clause by
clause. “To every person as such belongs the prerogative of
rule, i. e., the prerogative of coercively interfering with the
liberty of other persons in order to maintain the first person's
version of the jural ideal.” This proposition is evidently the
foundation of the whole theory, and it is probably the only
portion which would arouse serious controversy. Some of the
surface objections, e. g., that it enthrones the abstract indi-
vidual will, or that it excludes all forms of government other
than popular sovereignty, etc., have already been met by the
mere exposition of the thesis presented in the preceding chap-
ter. I shall therefore, now undertake the positive argument
for the proposition, starting from the Anarchist's stand-point,
questioning the propriety or justifiableness of any authority
whatever. In doing this let us break up the proposition into
two questions. (1). Can we justify coercive restraint of the
the individual, where no question arises as to the correctness
of the jural ideal which it is sought to impose on him, i. e., on
the hypothesis that the opinions of all men are alike as to the
requirements of justice; so that the person restrained has him-
self assented to the truth of the particular version of the ideal
in accord with which he is restrained? (2). Can we justify
such coercive restraint, where the coercing individual must

86 THE PROPOSED SOLUTION. [PART III.
impose his version of the absolute order, an ideal not neces-
sarily common to himself and the person coerced, an ideal
possibly rejected by that person?
(1) The first question need not delay us long. As we
saw earlier in this discussion (p. 39), the right of free self-
determination, though a very real and central right, is after
all only a member in an order of right, and, through that order
of right in turn, is a part of the all-denominating, all-harmon-
izing moral order. Thus existing, it has no claim to recogni-
tion except through that order. A person, therefore, who,
by violating a right which forms a part of the general jural
order, thus makes war upon that order, cannot rationally claim
the benefit of its provisions. He has cut out the ground from
under his own feet. I would by no means go the length of
Hegel in representing punishment as a process which with
metaphysical, almost mathematical, exactness restores the
broken order. The case is simply that the act of criminal
violence has introduced into the totality of circumstances
which condition and determine the jural order, a new and dis-
turbing element. This fact brings into existence a different
right, a right determined by the new conditions. One constit-
uent of that new right is this, that the person acting against
right, at war with right, has forfeited his claim to be con-
sidered primarily as a person, as a center of rights. I say
primarily, for I do not conceive that the forfeiture is absolute.
He is still a person; but he has made himself liable to be
treated primarily as a means, not an end. He has made it
legitimate to sacrifice him to the system, instead of considering
him as an end for which that system exists. Or still more
exactly, he has forfeited his right to be considered as one of
the ends of that system. It is still to be administered as a

CHAP II.] THE DIRECT ARGUMENT For THE THEoRy. 87
means, but as a means to the ends of persons in general,
excluding himself. And this shows the true place of the theory
of the social good as the basis of the punitive right. This
latter doctrine does not furnish the primary ground of just
punishment, for, as Hegel says, it does not go deep enough.
Merely to secure its advantage, the community has no more
right to violate the sanctity of personality than the criminal
had. The primary justification of punishment we must find in
the moral relations of the criminal himself. This we have done
by asserting what might be called the theory of forfeiture.
But this is merely a negative justification. The doctrine of the
social good furnishes its positive correlate. That is, since the
order which has been violated exists for the good of persons,
and since, consequently, the criminal act brings injury to per-
sons, and so results in material, as well as formal evil, there-
fore, if suffering brought on the doer of wrong can in any
degree mitigate or diminish the evil flowing from his act, such
suffering may be justly inflicted. In a word, the criminal is
justly punished, not because he is guilty, merely, nor because
the welfare of society demands it, merely; but because both of
these concur. -
But, now, if it be conceded that the criminal has, by violat-
ing an order of right which he with all others looks upon as
binding, forfeited his right to be considered primarily as one
of the absolute ends for which that order exists; if his claims
to free self-determination may justly be sacrificed to the good
of other persons who have not forfeited their claim to be true
ends in themselves, it scarcely needs to be argued that he can-
not protest against the person of the particular executor who
brings upon him the natural and necessary consequences of his
wrong. He is outlawed from the absolute jural and moral

88 THE PROPOSED SOLUTION. [PART III.
order to which by hypothesis he has himself assented. He
can have nothing to say against the claim of any and every
one to take up the rod and ax. In his self-adjudged guilt, his
self-imposed sentence, he must say, “Every man's hand will
be against me.” We do not, therefore, hesitate to affirm that
the first question is certainly answered in the affirmative; that,
on the supposition of a universally accepted ideal, an ideal
unquestioned even by those who violate it, adequate preroga-
tive coercively to maintain that ideal belongs to every person.
(2) But we have still to establish the adequacy of the
prerogative belonging to every person as such coercively to
interfere with the liberty of his fellow in order to maintain, not
a universally accepted ideal, but the ideal of the person eacer-
cising the coercion. This proposition presents much more seri-
ous difficulties, and it has undoubtedly been the fundamental
ground of the anarchic objection to the authority of the state.
It may help in the matter to consider exactly where the diffi-
culty lies. It is not in the fact that the version of the jural
ideal enforced is that of the person enforcing it. For, of
course, his own version is the only one which he could under
any circumstances justly maintain. Thus, let us suppose more
than one version, even contradictory versions. Let us suppose,
again, that A has violated the order of right as he understands
it, but not as B understands it. Can B justly proceed to
punish A under A's own sentence? Surely not. He cannot
but look on A as a mad man, as one who is unable to discrimi-
nate the right and wrong. He could no more inflict on A the
punishment to which A considered himself justly liable than
he could justifiably hang an insane person who confidently but
erroneously represented himself as a murderer. The real dif-
ficulty in the new hypothesis is deeper. It grows out of the

CHAP II.] THE DIRECT ARGUMENT For THE THEory. 89
fact that, since there is controversy as to the true ideal, the
one enforced may be a mistaken one. The question, then,
resolves itself into this: has every person as such adequate
prerogative to enforce upon others an ideal which his judg-
ment approves but which may be a mistaken ideal?
In maintaining the affirmative of this question we need to
remind ourselves as to exactly what is meant by an adequate
prerogative under the actual conditions of human society. As
we saw in the very first chapter of this essay (pp. 18–19), under
actual conditions, a prerogative does not necessarily have an
exactly correlated obligation. A’s prerogative to rule B has
no exactly corresponding obligation in B to obey; for no one
can ever be under obligations to obey anything but his own
ideal of right. The early church recognized the prerogative of
Nero to rule but at the same time insisted on the obligation of
the Christian to obey God rather than man. In maintaining
the proposition that the individual has the right coercively to
restrain his fellow in order to maintain his own ideal of jus-
tice, we shall mean, then, that the claim of the individual thus
to act is so stamped in the nature and relations of things, that
he can plead it as adequate warrant before the bar of reason,
before the bar of the Absolute Judge. Is the proposition,
when thus interpreted, true?
Let us get before us the data of the problem. To begin
with, here is the irreducible fact of human society, of beings
living together in such fashion that the maintenance of rights
is absolutely essential to the realization of personality, while
the maintenance of these rights, as all history shows, is not pos-
sible without interference with the free self-determination of
individuals. For, of course, men do not universally, or even
usually, freely chooseto act in accord with the law of right. Even

90 THE PROPOSED SOLUTION. [PART III.
with strong governments to effect their suppression, crimes are
frequent; and history shows that, where authority is weak or
in abeyance, disorder and violence make human life scarcely
tolerable. It is indeed argued by some enthusiasts among us
that the removal of social and industrial inequalities would
remove the motives of crime, hence would remove crime, and,
so, the need of machinery to guard against it. But, while
such changes in the external condition of men would probably
do much to diminish crime, the sober thinker would scarcely
admit that its utter suppression is possible without a radi-
cal change in human nature rather than in its conditions. It
is a common-place of history, remarked so long ago as Aris-
totle's time, that often the most henious violations of rights
are committed by those who are apparently enjoying the satis-
faction of every want. Indeed, were there no danger of any
other crime, it is certain that society, even in the utopian era,
would find itself obliged to punish at least the crime of striv-
ing to lift one's self out of the tedious equality which is to be
the great desideratum of that epoch. In any case it is evi-
dent that governments have been and are now indispensable.
But, in the second place, while government is thus indis-
pensable, while there can be no doubt that the maintenance of
a jural order requires and will require interference with the
free self-determination of individuals, it is also evident that
the version of the jural order which, through the agency of
government, is thus imposed on men in general cannot be the
particular version to which every individual has assented.
This would mean, in minor particulars at least, as many ver-
sions as there are persons. It is evident that the governing
process, the process of maintaining the jural ideal, must involve
the process of issuing an authoritative verson of that ideal.

CHAP. II.] THE DIRECT ARGUMENT FOR THE THEORY. 91
Further, this authoritative version plainly must be that of the
person undertaking its maintenance; since it would certainly
be immoral for him to enforce an ideal in which he did not
believe.
Combining these various considerations, it follows of
necessity that to the existence of society, to the maintenance
of the jural order, it is absolutely indispensable that the poli-
tical prerogative, i. e., the prerogative of coercively interfering
with the free self-determination of individuals in order to
impose upon those individuals a version of the jural ideal
emanating from the executor, should somewhere exist.
This is one side of the shield. What now have we on the
other? Where could that empirically necessary political pre-
rogative be found? In the first place we are certain that it
must be somewhere among men. For, plainly, so far as
government is concerned, man is left to his own devices.
There exists on earth no being of a superior order to whom,
because of his superiority, men are naturally bound to render
obedience." But, further, not only are we constrained to look
for this political prerogative among men, we also must find it,
if anywhere, in the individual man; for, as we have already
seen, no conception of humanity taken collectively offers the
necessary concrete personality to which the primordial preroga-
tive can be attributed.
Being thus shut up to the one candidate—the individual
man—we now ask, What marks of fitness, what qualifications,
what warrant can this only possible candidate show for himself?
In the first place, he is a person; he is possessed of a rational,
were there is such an one, it is admitted that the assumption
of authority by man himself would be without justification? (cf.
Aristotle's Politics, Bk. III, Chap. 13).

92 - THE PROPOSED SOLUTION. [PART III.
moral will; he is a real, though imperfect, incarnation of the
absolute reason; in spite of many slips and many aberrations,
he yet tends in the long run to will in accord with the rational
ideal. Thus endowed, thus constituted, man is fitted for the
first part of the task laid upon him, viz., to determine, approxi-
mately at least, the truely binding version of the jural ideal. In
the second place, man, thus fitted by the possession of a
rational nature to act as the legislator, has, in his understand-
ing, the endowment which enables him to perform the func-
tions of the judge. It may, indeed, be objected that the
elements of rationality in man furnish inadequate warrant
because adulterated with elements of particularity, i. e., with
personal interest, or prejudice, or passion. This does
undoubtedly furnish a very serious objection to the attribution
of prerogative to the person or persons immediately concerned
in any particular violation of rights. It is, further, a decisive
objection to basing political authority on the alleged right of
redress or the right of self-preservation. For, in truth, in so
far as the community are deeply interested in the maintenance
of a particular principle, and are unable to lift themselves
above that particular interest to consider the case imperson-
ally, to just that extent are they unfitted for, and, so, unwar-
ranted in, playing the part of the judge. But all experience
shows that men are able to act with reference to crimes which
affect themselves only through the danger to the general social
order in substantially impersonal fashion. Indeed, it is
usually difficult to secure anything like a due amount of interest
in that which concerns all only as each is injured by the wrong
to the whole. We must therefore affirm that man's fitness to
act as the judge, though imperfect, is under the actual condi-
tions substantially adequate. But, finally, while it is thus

CHAP. II.] THE DIRECT ARGUMENT For THE THEORY. 93
evident that man possesses natural fitness for the offices of
legislator and judge, it is further evident that he is made com-
petent to the task of executor through the possession of a
physical organism which enables him to bring his will to bear
on the will of his fellows."
We have thus found in human society a demand of the
most imperative sort for a person possessed of the preogative
rule. We have found, also, that all candidates but one must
certainly fail to meet that demand. Finally, we have found
that this sole candidate possesses in a high degree the qualities
which fit him for the indispensable and as yet unprovided-for
function. Can we question longer the correctness of the pro-
position that to this sole candidate, the individual man,-
belongs the prerogative of rule? On utilitarian principles
the proof is surely adequate. By the transcendentalist, assert-
ing the infallibility and ascendency of reason, the propo-
sition must certainly be accepted from its inherent ration-
ality. Finally, this argument ought to satisfy that much larger
class who start with the assumption that the order of things in
which man finds himself is a rationally ordained order, that,
consequently, its relations and adjustments are decisive proofs
of the intentions of its Author, and that, as he is the embodi-
ment of absolute reason and justice, the justice and legitimacy
of his dispositions is not to be questioned. By every such
theist it surely must be admitted that, in the conjunction of
these three things; viz., society’s evident and imperative need
of a ruler, the absence of any other possible candidate than
1 This argument from man's fitness is strengthened by the fact that,
however iniquitous the conduct of particular states, and of almost every
state at sometime, human government has not been on the whole a failure.
The condition of most men has evidently been much better with the rule
they have had, than it conceivably could have been without any.

94 THE PROPOSED SOLUTION. [PART III.
man taken individually, and the high degree of fitness which
he can bring to the office, we have a posteriori proof of the
strongest sort that, in the intent of the Author of the existing
order, such authority was committed to the individual man.
Thus the possession of such fitness, and especially its exclusive
possession, is his adequate warrant. His capacity to rule is his
commission to rule. He needs no other.
B. Second Clause of THE THesis MAINTAINED.
If, now, it be admitted that we have established the first
clause in the thesis, the second is little more than a corollary.
Every man can formally claim to judge and punish any and
every infraction of natural law, but the carrying out of such
claim would inevitably develop conflicts among so many would-
be executors. Whose claim is best? Clearly his who possesses
in the highest perfection those qualities upon which the original
prerogative is based; viz., reason, understanding, and strength
of body. All persons are thus arranged in a sort of hierarchy,
like the officers of an army; that is, any one is fully sovereign,
until regularly superseded by one holding higher rank.
C. Third CLAuse of the Thesis MAINTAINED.
In like manner, the superior fitness and, consequently, the
superior prerogative of men acting in groups, as contrasted
with the isolated individual, scarcely needs comment. Nota-
bly, association leads to differentiation of functions, thus
setting apart for the varied tasks of government those who are
by nature best fitted to serve in each particular capacity.
Again, it is only by acting collectively that men can furnish
the requisite physical force for the punishment of wrong-doers
who are possessed of exceptional physical strength.

CHAP. II.] THE DIRECT ARGUMENT For THE THEORY. 95
D. Fourth CLAUSE of THE THESIs MAINTAINED.
We have now but one more step to take. Just as the
fitness of men acting in association is greater and, therefore,
their prerogative is higher than that of isolated individuals; so
it is easy to show that the fitness of the community, and, con-
sequently, the prerogative of the community, that association
which embodies the totality of social relations,—is greater
than the fitness and the prerogative of any lesser association.
This proposition is too evident to require detailed defense.
One need only reflect that the community is an association so
extensive as to furnish an authority more nearly free from
personal elements than any other association; that the sense
of responsibility to a real public opinion makes the most reck-
less more thoughtful, lifts them out of their natural particular.
ity, and enables them to realize in some degree the rationality
which alone justifies their possession of authority; and, finally,
that the community is an association which brings to the ser:
vice of justice a physical force so overwhelming that the
supremacy of justice is commonly assured without even a resort
to that force. From these considerations the conclusion seems
inevitable that, while the prerogative of men acting separately
is high, and that of men acting in private association is higher,
that of men acting through the community is highest of all.

CHAPTER III.
INDIRECT CONFIRMATION OF THE THEORY FROM
ITS FITNESS TO EXPLAIN THE FACTS AND
PROBLEMS OF POLITICAL HISTORY.
In the preceding chapter, I have tried to defend the thesis
by setting forth the more immediate proofs of its truth. I will
conclude with another sort of evidence, indirect but not, in
my judgment, less valuable. It is that the doctrine here taught
is the only one which is capable of justifying certain common
facts of political history and of solving certain politico-ethical
problems which continually present themselves in the life of
states. -
(1) First, consider the phenomenon of private justice,
which has again and again appeared all along the course of
history. In different parts of our own country it has mani-
fested itself in the judicial processes of bands called regula-
tors, or in even more spontaneous forms under the name of
lynch law. In medieval times it prevailed far more extensively,
—knight-errantry being its choicest fruit. Now, all admit that
this sort of extemporaneous justice is decidedly inferior to the
more guarded and impartial processes of an efficient and pure
magistracy, of an executor acting in the name of the organized
community, and, so, of course it is never justifiable where the
latter mode of procedure is possible. But scarcely anyone will
deny that under some conditions the resort to spontaneous
judicial processes is necessary and justifiable. Yet, while this
is commonly admitted with more or less frankness, it is not

CHAP. III.] INDIRECT confirmation of THE THEoRy. 97
common to offer any rational basis for the justification affirmed.
To say that “necessity knows no law” is only to cut not to
untie the knot. Nor is a rational justification of spontaneous
private justice furnished by any of the theories above reviewed
except that which attributes the ultimate prerogative to the
strong as such. For, certainly, it could not be affirmed that
such administration of justice depends on a direct commission
from God. So, also, no theory which attributes the ultimate
prerogative to a corporate entity such as society or the com-
munity or the state, and makes the particular prerogative of
the concrete executor absolutely dependent on authorization
by that corporate entity, would explain this case of private jus-
tice; for these self-constituted magistrates evidently have no
such authorization. Exactly the same remark applies to every
theory which involves any process of delegation.
But, while most theories as to the ethical basis of the state
fail altogether to justify spontaneous judicial processes, the
theory here advanced fits the case perfectly. It declares that
the prerogative of restraining individual liberty in the interest
of justice is absolutely universal. The measure of rationality
and physical force which belong to each man are the creden-
tials which empower him to make his utmost effort to secure
the triumph of justice. This prerogative he is in duty bound
to use in the way best fitted to accomplish the end. Usually,
therefore, it is his duty to act with the community; since this
is ordinarily the most efficient method. But, if this condition
is not fulfilled, if for any cause the constituted means for
enforcing justice prove powerless and society is almost in
anarchy, it is now just as certainly his duty to disregard the
claims of existing authorities and to do his utmost to secure
the ends of the state by other means. If, under all the cir-
7

98 THE PROPOSED SOLUTION. [PART III
cumstances of the case, it seems evident that he can accomplish.
most by acting with some private association or even independ-
ently, it is his duty so to act. He should weigh well the con-
sequences, should consider carefully the balance of good and
evil; but that is all. Once convinced, he need not hesitate to
try for lack of commission; for, ethically, he has all the com-
mission that anyone has.
(2) Closely analogous to private spontaneous justice is
the case of the hero, the despotic chaos-destroyer, the autocratic
system builder. The importance of this function has been rec-
ognized alike by poets and historians, by statesmen and phil-
osophers; but, unless one asserts that the hero is divinely called
to his mission like Gideon or Deborah, or unless one accepts,
the doctrine that might makes right, modern political philoso-
phy can say no more for him than that God makes the wrath
of man to praise him. All theories which derive the authority
of the state from some collective prerogative must affirm that
while the assumption of authority by the founders of systems
is unjustifiable at the beginning, it becomes rationally, ethically
legitimate in time, that such men have a right to rule, but
not a right to begin to rule, that the processes through which
alone they can acquire legitimate authority are after all illegit-
imate. Thistles bring forth figs. We scarcely need add that
the theory here propounded has no such difficulty. The
despotic system-builder, as a man possessed of reason, moral
sentiments, understanding, and physical force, has, like other
men, the prerogative of using all his powers over men in
general to advance the cause of justice. But, as his capacities
are equal to the task of building systems, it is not only his
right, it is as well his duty, to use those capacities to accom-

CHAP. III.] INDIRECT confirm ATION of THE THEory. 99
plish such results. His superior fitness thus creates his pre-
rogative, constitutes his commission. He needs no other.
(3) A third fact or problem of highest significance in
political history is the revolution. Now, it is hardly necessary
to remark that most current political theories, which exalt so
highly the prerogatives of the community and disparage so
greatly the rights of the individual, which look on all political
prerogatives as necessarily derived from the state, or the com-
munity, or society, or some other abstract entity,+such theories
make sad work with the problem of the revolution. It is,
indeed, evident from the nature of the case that this must be
so, that only some form of individualism can furnish the solu-
tion. For, consider what is involved in the phenomenon of a
revolution. Here stands a political order with its concrete
organs in the official class recognized by all as something
public, impersonal, the incarnation of rational justice. Sud-
denly it is attacked by individual men acting, in form at least,
only as private persons, with no warrant from any recognized
authority. These new forces, apparently private, personal,
individual, capricious, succeed in overthrowing the old order.
They now set up a new public order, which they claim
possesses the same impersonal, rational character as the old
order which they have cast aside. Not only do they claim
that it should be thus considered, as a matter of fact, it is, all
in good time, so considered. That is, by some mysterious
process the leopard has changed his spots; the Ethiopian his
skin; out of the evil tree has come forth good fruit.
Here surely is a problem worth studying. How has it
been solved? The contract theory, if it were on other grounds
tenable, would meet this difficulty perfectly. By the consent
of the men who make it, the state exists; when their consent

100 THE PROPOSED SOLUTION. LPART III.
is withdrawn, it falls. Brought into being by powers which
are essentially private and personal, it can never be anything
more. As a real state it never exists, for it can never rise
higher than its source. Thus, while the contract theory would
have no difficulty justifying an attempt to overthrow a govern-
ment, this would be due to the fact that it could never create
any government to be overthrown. Again, the various theories
which start with some purely private right such as that of
redress or of self-preservation, if otherwise tenable, might
easily explain the fact of revolution; for, according to these
theories, the individual makes the state out of his own per-
sonal right, and so, of course, can unmake it. But with these
doctrines we do not have to reckon, both because, starting with
a purely private right, they never can attain to a true public
authority, and because neither of them have any standing in
political philosophy.
But, while certain generally rejected theories with refer.
ence to the basal political prerogative might be able to justify
the revolution, there is no chance for the representative doc-
trines of current political philosophy. These doctrines, striv-
ing as they do to purge out all traces of individualism, insist
on starting with a prerogative belonging to some mysterious
non-individualistic entity, like society, or the people, or the
state. This method of procedure has, of course, the great
advantage of exalting the state in serene majesty above the
caprice of the individual. It is the method of procedure
natural to timid people who are too enlightened for the theo-
logico-political mysticism of de Maistre or von Haller, and yet
are appalled at the anarchic movings of the revolutionary
spirit. But the very fact about these theories which makes
them attractive to timid orthodoxy is just that which shows

Chap. III.] INDIRECT confirm ATION of THE THEory. 101
their unfitness to solve the problem of the revolution. For it
is plain that, logically interpreted, they leave absolutely no
room for the revolution. It matters not what practical con-
cessions any particular writer makes. If he really believes
that the political prerogative belongs in no sense to individual
men, but is always derived from some entity above and inde-
pendent of individual men, then he must logically conclude
that no individual man can, under any conditions whatever, be
justified in assailing that prerogative. Nor is the case made
any better by the simple declaration that “necessity knows no
law.” From the stand-point of philosophy this worn-out
formula is simply a confession of failure. Such a taking-
refuge in the asylum of the broken-down thinker may increase
our respect for a man's common sense; but it is decisive
against his claims to have discovered a self-consistent theory
as to the genesis of the state. For, plainly, the crucial test of
such a theory is just this case of the revolution. The revolu-
tion is just the period when the primordial political preroga-
tive is evidently in demand. In ordinary times, all action
seems to be within the state, from the state, by the state. But,
in such epochs as we are now considering, eactra-legal, extra-
constitutional, eactra-state forces must come in. The old order
has been found wanting. It must be broken down. Here is
an occasion demanding the exercise of the ultimate prerogative.
Further, the work can be done only by individuals; for the
verything to be assailed is the recognized organ of society, or
the community, or the general will. But, since, according to
collectivist theories, the ultimate prerogative exists only in
society, or the community, or the state, such empirically neces-
sary action of individuals is ethically without justification. In
a word, if the state of the contract theory is too weak, that of

102 THE PROPOSED SOLUTION. [PART III.
thorough-going collectivism is as much too strong. Once set
up, it can never justifiably be assailed.
But, while one set of theories builds too strong and the
other too weak, the theory here offered avoids both these diffi-
culties. It begins, indeed, like the first set of theories, with a
prerogative of the individual, but with one which is already a
general, universal prerogative belonging to man, not person-
ally, privately, individually considered, but to man as a real,
though imperfect, incarnation of the universal reason. Such a
prerogative needs no transformation to become the political
prerogative; it is the political prerogative already. This
theory, therefore, has no difficulty in bringing into existence a
perfect, complete, fully-equipped state. On the other hand,
this doctrine escapes the opposite difficulty of building a state
which, when once in existence, is too strong to be pulled down.
It affirms that to each belongs the right, may more, the duty, to
exert all his powers to secure the establishment and mainten-
ance of that political order which, under all the circumstances
of any particular case is, the best possible. If, therefore, the
existing order needs amendment, it is his right, it is his duty
to do what he can toward bringing about that amendment. If
he judge that the only possible amendment is through the
awful path of a general overturn, and if he believes that such-
an overturn is at this time possible, he must do his utmost to
bring about such an event. He needs no commission from
society or the community, from any man or set of men, for, as
a rational being, a true concrete universal, he has ample com-
mission in himself. The attitude of other men, or of society,
or of the state concerns him only so far as it determines,
whether, in view of that attitude, a proposed course of action
on his part will, or will not, tend to serve the interests of jus-

Chap. III. INDIRECT confirmation of the theory. 103
tice. If, by resisting the state, he will only increase the sum
of wrong, he is bound to obey it. But, when he believes that
his resistance will help to secure the triumph of right, he
should treat the state like any other obstacle in the way of that
glorious consummation. Our theory, therefore, justifies at
once the honest rebel and the honest government which
destroys him. Yet this does not open wide the door to revo-
lution. It merely insists on setting up only rational barriers
against revolution. Man is endowed with understanding. It
is a part of his duty to count the cost, to weigh well the
chances of failure, to consider carefully the ratio between the
probable good and the probable evil consequent on the proposed
course of action, to realize that under the conditions of modern
life, especially where the masses of men have some voice in
government, it is almost certain that peaceful agitation will
more surely and promptly secure the reign of justice. A peo-
ple who are thus trained to use their common sense, to act with
conscious reference to their rights, to their responsibilities, and
to the probable consequences of their conduct, will in the long
run be more likely to develop a law-abiding spirit, a capacity
for self-government, a fitness to constitute the bulwarks of a
really worthy political order, than a people who are kept in
restraint by a sort of political priest-craft which sets up as the
object of their worship, “Society” or the “Nation” or the
* State.”
(4) In the fourth place, I consider it to be one of the
facts most strongly confirmatory of the truth of this theory
that it is able to rationalize the prominent part which force has
This explains the entirely different sentiments which people of
every age entertain toward political criminals, on the one hand, and
common offenders, on the other.

104 THE PROPOSED SOLUTION. [PART III.
ever played in the history of mankind. In international dis-
putes, this has always been and must ever be the final arbiter.
In the internal politics of states, it has ever been a court of
final appeal for the discontented and the oppressed. Either
in the form of revolution or conquest, it has presided “at the
birth of governments, at the birth of societies.” Is this all
anomalous? Is the major part of the record of the past with-
out rational justification? Our theory returns an emphatic
negative. Fitness comprises the decisive mark of ethically
legitimate authority. But, the possession of adequate force is
one most essential sort of fitness. Consequently, the possession
of adequate force is one decisive mark of legitimate authority.
When, therefore, the advocates of conflicting claims, unable
otherwise to adjust their differences, appeal to force as the
final arbiter, they are really deciding, in the only possible way
perhaps, the very important question—which of the two opinions
possesses this mark of a valid title, viz., superior strength?
Nor does any serious practical difficulty arise from the fact
that force might be in alliance with caprice pure and simple.
As a matter of fact, such an alliance never does, never can
continue for any length of time. Political force is necessarily
collective, i. e., it can result only from a concurrence of inde-
pendent wills. But, as long as man is a rational being, such
concurrence can never be permanent under the leadership of a
will wholly devoid of rationality. Doubtless the worse of two
causes at times secures temporary ascendency, but experience
and reason alike teach us that the cause which is on the whole
worthiest, does and must in the long run triumph.
(5) Fifthly and finally, it is to be remarked in confirma-
tion of our theory that it justifies the great diversity in form
which has prevailed and does prevail among the governments

CHAP. III.] INDIRECT confirm ATION of THE THEory. 105
of the world. Monarchy, democracy, aristocracy, feudal pat-
romage, all have dominated at different times, and in different
places at the same time. Not only so, but also their rule has
been beneficent; and it seems the extremest fanaticism to deny
that in their time and place they have all possessed true legiti-
macy. It is needless to say, however, that several theories as
to the basis of political authority are involved in just that sort
of fanaticism. But this is not true of the doctrine here main-
tained. The ultimate basis of political prerogative being the
possession of rational personality, all rational persons are legit-
imate candidates for sovereign power, and the true sovereign is
the fittest of these candidates. Thus, therefore, it will be, at
one time and unde one set of circumstances, the one who should
rule; at another time and under another set of circumstances,
the few who should rule; and so on to the end of the list.


LITERATURE OF THIS THESIS."
ETHICS.
Aristotle.—Nicomachian Ethics.
BAIN, ALExANDER.-Moral Science.
BENTHAM.–Principles of Morals and Legislation.
BLACKIE, J. S.–Four Phases of Morals.
CALDERwood, H-Handbook of Moral Philosophy.
Courtney, W. L.-Constructive Ethics.
DoRNER. I. A.—Christian Ethics.
GREEN, T. H.-Prolegomena to Ethics.
HoPKINS, MARK.—Lectures on Moral Philosophy.
–Law of Love and Love as Law.
MARTINEAU, JAMEs.--Types of Ethical Theory.
MILL, J. S.–Utilitarianism.
Port ER, Noah —Elements of Moral Science.
–Ethics of Kant.
SIDGwick, H-History of Ethics.
–Methods of Ethics.
PHILOSOPHY OF THE STATE AND OF LAW.
ADAMs, H. C.–Relation of the State to Industrial Action.
AMos, SHELDoN.—Science of Law.
–Science of Politics.
Aristotle.—Politics.
AustiN, J.-Lectures on Jurisprudence.
BLUNTschii, J. K.—The Theory of the State.
–Politik.
—Geschichte der Neueren Staatswissenschaft.
–Staatswoerterbuch.
BURGEss, J. W.-Political Science and Constitutional Law.
* Required by the University.

108 LITERATURE OF THIS THESIS.
BURLAMAQUI, J. J.-Principles of Natural and Political Law.
CICERo.—De Republica.
–De Legibus.
CRANE, W. W.-Politics.
DEWEY, J.-Ethics of Democracy.
FILMER, SIR. R.—Patriarcha.
FRANK.—Die Wolffische Strafrechtsphilosophie.
GREEN, T. H.-Philosophical Works, Vol. II.
GoDw1N, W.-Political Justice.
HEGEL-Philosophy of the State and of History. Morris.
Hobbes.—Leviathan.
Holland, T. E.-Jurisprudence.
HUMBoldt, K. W. vos.-The Sphere and Duties of Government.
HURLBUT, E. P.-Essays on Natural Rights.
JELLINEK.—Staatenverbindungen.
JEvoNs, W. S.–The State in Relation to Labor.
KANT.-Philosophy of Law.
LALor-Cyclopedia of Political Science.
LAsson, A.—Rechtsphilosophie.
LEvi, L.-International Law.
LEwis, G. C.—Remarks on the Use and Abuse of Political Terms.
LIEBER, F.—Civil Liberty and Self-Government.
–Political Science.
–Political Ethics.
LIGHTwood.-The Nature of Positive Law.
Locke-Two Treatises on Government.
MAINE, SIR. H.-Ancient Law.
MILL, J. S.–Liberty.
MoRE, T-Utopia.
MoREY.-Outlines of Roman Law.
Moses.—(See Crane).
MULFoRD, E.-The Nation.
PAINE, T-Political Works.
PHILLIMORE, R. J.-Principles and Maxims of Jurisprudence.
PLATO.-Republic.
Pollock, F.—History of Political Science.

LITERATURE OF THIS THESIS. 109.
PUFFENDoRF.—The Law of Nature and of Nations.
Rousse.AU, J. J.-Contrat Social.
PULszky.—Theory of Law and Civil Society.
SPENCER, H.-Man vs. the State.
STAHL, F. J. —Philosophie des Rechts.
SUMNER, W. J.-What Social Classes Owe Each Other.
TRENDELENBURG.-Naturrecht.
WHEATON.—Elements of International Law.
WILson, WooD Row.—The State.
Woolsey, T. W.-Political Science.
—International Law.
UNCLASSIFIED.
CARLYLE, T.-French Revolution.
Davies, J. L.-Social Questions.
Dwight, T.-Article on Harrington in Political Science Qu., 1887.
GUIzot.—General History of Civilization.
–History of Representative Government.
HookER.—Ecclesiastical Polity.
HUME.-Philosophical Works, Vol. II.
Huxley.-Article on Natural Rights in the Nineteenth Century,
Feb., 1890.
LESLIE, T. E. C.–Essays in Political and Moral Science.
MADIsox, J.-Federalist, No. XIV.
MoRLEY, J.-Rousseau.
—Miscellanies.
NEw York NATION.—March 1, 1881.
RITCHIE, D. G.-Article on Sovereignty in The Annals of The Am.
Acad., Jan., 1891.
Rolleston-Epictetus.
Roscher.—Political Economy.
Schwegler.—History of Philosophy.
SETH...-Kant to Hegel.
ZELLER.—Pre-Socratic Philosophy.
-