THEORETICAL ADAPTATION OF THE NOTION ‘THE STATE’- FROM SCRATCH TO SHINE

Updated: Oct 7

Authored By:

Arun Kumar(Associate Editor, Legit)


INTRODUCTION:

Every element or concept in this universe is prone to dynamicity or adaptation, but at a different rate in relation to its surrounding environment. Every part of a society has its own changing rate and a number of societies uniting together to form the so-called state is no exception to such unstableness. So the concept ‘State’ has undergone reformation, gradually since the age-old times across the Globe and now, it had reached a stable point giving a universally applicable and acceptable interpretation. It is a well-known fact that the evolution of State began with the existence of family and kinship, which is a group of people with blood or matrimonial relation. This lead to the tribal-state, followed by city-state in Greece, then the Roman state in 1 B.C., later to a more regularized form of Feudal state that prevailed for a considerable extent in the history and was finally replaced by the concept of Nation-state. After a bundle of revolutions in the 19th century and wars in the 20th century this nation-state structure was further modified resulting in, what we witness today, the Modern state.

The paper does not deal with these practical evolutions, rather tries to focus only on the theoretical development or up-gradation of the concept, from the time it first originated until now. By theoretical changes, the author means the philosophical approach towards the state. This doesn’t mean that this article completely ignores the practical footsteps of the state. It is pertinent to note that, especially in the study of political science and sociology, the writings, books, theories or the defining factor follows only if such a scenario had actually occurred and not the vice-versa. In other words, definitions do not bring about change, but only the change influence the experts to propose a definition. To be more precise, definitions follow the events but the latter never follows the former. So it can be concluded that the theories and definition on paper are just a direct reflection of the changes in reality. Therefore this article deals with only the changing definitions and ideologies towards the state at different timelines, in different parts of the world by a variety of experts, philosophers, sociologist and others. This article is the outcome of doctrinal research after a deep analysis into the works of renowned experts that are mentioned under the reference section.


BEGINNERS - ABSOLUTISTS:

It had taken considerably a prolonged period to propose a conclusive definition for the state, though the study of political science came into light much earlier and also many civilizations emerged. The reason is, any moral or political term that had become so deeply enmeshed in so many ideological disputes over a long period of time had resisted efforts to frame a definition. For the first time, there were discussions on State and statehood due to the influence of scholastic debates on summa potestas, French treatises on sovereignty and Italian manuals on ‘politics’ and reason of state[1]. Earlier the term was used to be considered as a universitas (whole or total, hereinafter referred to as university) or a community of people living subject to the sovereign authority of recognized monarch or ruling group. This was interchangeably used with other terms such as realm, nation and the body politic. Additionally, a distinction was also made between the two that the latter were incapable of acting in the absence of sovereign head to which they owe direction and obedience.

Machiavelli, a chief expounder of the Absolutist theory, emphasized on the importance of being able to mantenere lo stato[2], i.e., how rulers should maintain their life and status over their territory. He stated that that ruler ought not to do any evil for the maintenance of the state. French treatises Jacques Hurault discussed the states, standing the king and also about the best means for a prince for maintenance of his state[3]. He criticized Emperor Augustus for acting with excessive ruthlessness towards his subjects for the maintenance of his state. These two experts were only concerned with the obligation owed by the ruler to, and how to, maintain the state but failed to cover the need to do so. On analyzing both their works one can find a lot of similar ideologies. These include the welfare of corpus politicum, maintaining their subjects in good health and security only would lead to the proper maintenance of their state, and default in doing so would lead to coup d etal. They consider corpus politicum as the State; its ruler has the ultimate sovereign power over others and his subjects have no locus standi to question the unlimited powers or discretion of their ruler.

Another jurist, Jean Bodin in his “The six books of the Common-wealth[4] in 1606 stated that the walls or persons do not constitute the city or state, it is the Union or community of the people under the same sovereign results in state[5]. These powers emerge with the people themselves and he relies more on the monarch form of government, where all the people swear faithfully allegiance to one sovereign head, in this case, the ruler is the head of the monarch. The basic aim, he states, is that the sovereign has the duty to care for the health and welfare of its subjects as well as the state and not to cause inconvenience[6].


DIVINE TOUCH:

Many experts refused to accept the absolutist theory and transferred the burden on some other elements, which criticizes the previous theory. Theists consider such elements as a god, atheists recognize it as a supernatural or superior power and meanwhile, scientific persons acknowledge it as an element outside the scope of human capacity. But all three tries to point the same thing, for this article let’s consider it as god. Sir Robert Filmer of England in 17th century states, “mankind is naturally endowed and born with freedom from all subjects and is at liberty to choose what form of government it pleases”, and goes on to add that the ruler receives authority not from people but directly from the ‘ordination of God himself’[7]. Kings were considered as Lord’s anointed and vice-gerents of god on earth; thereby enjoy supreme and unquestionable power over the body of commonwealth state.

Once King James I in 1605 while addressing both the houses of parliament quoted, “Kings are in the words of GOD itself called god as being his Lieutenants and vice-gerents and are endowed by God with absolute authority over their states”[8]. To him, a mass of people subject to sovereign power is the body of the whole state. What a king wants are the wants of the state. The strengthening of kings’ status lies in the preservation and safeguarding of their state. Hayward, who was the first to describe a relation between church and state, expressed, “all authority not come from the people but from God so that even heathen rulers’ count as the Lord’s anointed”. He further says that the body politic is not the original possessor of sovereign and it amounts to heedless and headless multitude without direction or government. His idea is that one state should be commanded by one person as head of the state. This theory supporter used to vindicate the claim that temporal rulers have a right of absolute control over the ecclesiastical no less than civil affairs.

Bodin, as an Absolutist, opines that the right of sovereignty or of majesty consists of absolute and perpetual powers, to exercise the highest action and affairs in some states’[9]. He declares that the prime duty of the sovereignty is to take care of religion and it’s the only means to knit and conserve men in mutual society. So it is indispensable to commit the religious matter to sovereign power or state.

A MARCH TOWARDS THE FREE-STATE:

The populist theory is contrary to both the above theories, it expresses that the state is a civil union or a body of people under the government and it refuses to view societies and universities as a mere headless torso in the need of monarch to guide and control it. According to this theory, the state is not a passive and obedient community living under a sovereign head but a body who are the owners of sovereignty themselves. Among populist, there are political anatomists who compare different forms of government found in various parts of the world. They observed the model in Europe which was not ruled by the king but they govern themselves by legislative assemblies that had persons based on their ranks and estates. This was the first time in genealogy the experts came up with the works, on the existence of the definite infrastructure for the state, instead of outlining it as a body of people.

Here too J. Bodin never fails to contribute, he explains, “every citizen is in a manner partaker of the majesty of the state”[10], thereby distinguishing the state from a monarch. He adds that nothing can be greater than the whole body of people for all people swear allegiance to a single head of the state[11]. To live in monarch state is to subject yourself to prerogative rights of the king, thus to live to some degree in dependence upon his will and to live in free-state is to live in a self-governing republic. To the question - how best we can retain our natural freedom while submitting to the government? Their response was that to preserve one’s freedom, firstly political order must be instituted in which no prerogative or discretionary powers are allowed and secondly, the law must rule, people must give consent to law and they must be free from dependence on the will of rulers. As the decades passed the world was gradually turning towards the Free State or the consular state such as the Romans who repudiated the sole sovereignty of their king and established a republic. It is an easy thing to guess, whereupon it is that people take such affection to their liberty: because we see by experience, that cities have never been much amplified neither in dominion nor riches unless only during their liberty.[12] Another expert Huguenot Publicists opine that when people submit themselves to government, a legal act of alienating their political rights occurs. No independent community can even abdicate, so people would remain in possession of original sovereignty[13].

Dilution of populist view: As a broader approach, in any form of government, the sovereign must be with the university of the people or the body of the state, till that happens people tend to live in dependence of goodwill of sovereign. This was propounded by Hendry Parker in The case of ship money 1640, the first English political theorist to do so. This was done to show protest against King Charles I who without the consent of the parliament approved the fiscal needs on the people. Parker said that the sovereign power can’t lie with the king, it is but secondary and derivative in prince. King may be maior singulis, greater than the individual members of body politic but he is minor universes, lesser than the university of the people’s assembly and also a servant to them. The true bearer of sovereignty must be the whole university of the state[14]. He also added that the state can never act on its own behalf; powers need to be exercised by others in its name. He quotes a scenario of England, where the king has the sovereign power, and it’s the duty of the parliament to check the arbitrariness of the king and ensure whether the interest of the people is satisfied. If the king defaults the parliament should retain its rights to act alone in the name of preserving the state. This contradicts with his beginning statement that the sovereign power is with the people or state. The rationale he endorsed was that the parliament is a proportionally elected and entrusted body by the people directly and it is not one or few persons.

Critics: William Ball criticizes populist theory that the political powers are not inherent in people but derived immediately from God as he is the author of all powers.[15] John Bramhall agrees with Parker till the people submit their power to a ruler. But opposes the view that states have an interest in preserving itself and adds that the ruler is always absolute.[16]


SOLITUDE – MULTITUDE – UNIFICATION:

Thomas Hobbes, Locke and Rousseau are the founders of social contract theory. Hobbes stated, “The sovereign power must originally have been possessed by the body of people and people as a united body has no sense”. He strongly opposed the argument of the body of people and there were no grounds for saying kings are lesser than it. To him, nature has placed us is one in which we live entirely dissociate from everyone else, substituting as a mere multitude in a state of solitude in which every man is enemy to every man.[17] He was unhappy with the absolutist that the relationship between people and ruler can only be of passive and obedient to a sovereign head of state. He endorses the parliamentary belief. He adds that every person must consent to give his authority from himself to the holder of sovereign power after that, members would still remain as authors. By this, he contradicted with the absolutists and further said that the status of an absolute monarch can never be higher than that of an authorized representative.

He also gives definitions for the representative person[18], authorizing a representative[19] and others. The act of authorization, according to him, transforms people from multitude to unified group by common agreement, to live with a single determining will subject to the law. This is the so-called social contract theory where “multitude of men is made one person by covenant when they are represented by one person”[20]. This brought out two persons; one is the artificial person to whom the authority is given, named as Sovereign and the other is a fiction person brought when people acquire a single and voice by authoritative man or assembly, named as the state or commonwealth[21]. He also defines a state as-“One person, of whose acts a great multitude, by mutual covenants one with another, have made themselves everyone the author”. He tried to distinguish the state from the sovereign. He adds that the latter comes and goes, and no state is immortal but the persons who institute a new state will have the fundamental aim to make it ever-last with the system of perpetual security. A state without sovereign power is a mere word without substance and can’t survive. He concludes by saying that the state is fiction and it never performs. The real performer is the sovereign person that personates the state. This is also regarded as fiction theory.


SEASONING IN & OUT THE FICTION THEORY:

This representation of a state as persona ficta attracted many other experts to recognize corporate also as a fictional person thereby expanding its application worldwide. Samuel Pufendorf, Emer de Vattel and Blackstone backed the views of Hobbes and spread it across the globe. Blackstone attached his own views to that of Hobbes by introducing the concept of Political union of the multitude. Hobbes states, “Everyone must agree to submit their private will to the will of a single man or to an assembly of men to whom the supreme authority is entrusted. Thereby enabling them to act as a single person with a uniform will”. To this Blackstone adds, “For a state is a collective body composed of a multitude of individuals united for their safety and convenience and intending to act as one man”. He concludes by saying that the supreme power is always the power of making laws and this power is always with the state.

In the 18th century, the term persona ficta became popular in English, continental theories of public and international law. During the American Revolution, Tom Paine and Richard Price proposed that the only type of civil association where it is possible to live freely as a citizen is a self-governing community. The lawful state is referred to as the sovereign power of the collective body of people. Will of the state is derived from the will of the community. So, American colonies that once lived in slavish dependence of British Crown were later liberated as Free-State.[22]

Sooner the theory started to sense a downfall by the rise of classical utilitarianism by the Jeremy Bentham during the closing decades of 18th century. For him, the state is a body of persons in charge of some identifiable apparatus of government. He continued to say that particular persons are invested with powers to be exercised for the benefit of rest. If no such person is with such powers, then no state exists.[23] He gives significance only to natural persons and to their powers but not to the state as a whole, unlike Hobbes.

Reintroduction: Efforts were made to reintroduce the state as a distinct person into the English legal and political theory. Firstly it was made by F. W. Maitland; he viewed to treat state as a part of a more general theory of corporation and added that persona ficta of the state is triumphant fiction of all[24]. Secondly, Bernard Bosanquet was of the view that “it is a legal fiction to describe the state as having a will and being able to act. Person of the state is far from being an empty fiction. States have their own substantial will. Content and rationality of the state are similar to that of ours”.[25]


CONCLUSION:

With the rise of International Legal Organization such as League of Nation’s PCJ in 1922, Hague conference in 1899, 1907 the scope of state has been much reduced than ever. On the other side, MNCs flourished, coercing the individual state to meet their demands, though fulfilling those demands might conflict with the states’ socio-economic priority. The powers of individual states are in terminal decline, the concept of state is shrinking, ‘fading into the shadows’. Frank Ankersmit commented that the concept of states started its way out and lost significance in political philosophy and the theory of international relation. Quentin Skinner in his work “A genealogy of the modern state” refers this as a reductionist view of the state whereby the state is exiting gradually from its track.[26]

The author of this article prefers to recognize this, not as fading out, but as an entry to the newest dimension. It is true that the scope of the state has undergone a drastic downfall over the years. And it is also true that none escapes the change except the change itself. So the state is not an exception to it. Though its purview had been reduced, it is pertinent to note that it has reached its consistency level in recent decades than ever. This depicts that it got stabilized in this approach universally and for a considerable period of time. Whether it has attained the saturation point is a question of concern that can only be riddled out by experts and time. Till then the existing concept of state must be accepted by all nation-state without any contradiction and promote harmony and humanity among others.


REFERENCE:

1. Quentin Skinner, “A Genealogy of the Modern State”, British Academy Lecture, 2008.

2. Arshid Iqbal Dar, “The Evolution of State Sovereignty: A Historical Overview”, International Journal of Humanities and Social Science Invention (IJHSSI) 6.8 (2017): 08-12.

3. Leonid Grinin, “Macrohistory and Globalization”, Ch. 3. The Evolution of Statehood, pp. 83-135.

4. F. G. Wilson, “Elements of Modern Politics”, McGraw Hill Book Co., New York, 1936.

5. A. C. Kapoor, “Principles of Political Science”, S. Chand and Co. Ltd., New Delhi, 1979.

6. Amal Ray & Mohit Bhattacharya, “Political Theory”, The World Press Pvt. Ltd., Calcutta, 1979.

7. Hendrik Spruyt, “The Origin, Development and Possible Decline of the Modern State”, The Annual Review of Political Science, Vol. 5, 2002, pp. 127-150.

8. Erik Ringmar, “The Evolution of the Nation-State”, E-International Relation, ISSN: 2053-8626, 2018.

[1] Mattei 1979; Borelli 1993; for France see Thuau 2000; for England Baldwin 2004; Malcolm 2007, pp. 30-73. [2] Hexter, “The Vision of Politics on the Eve of the Reformation: More, Machiavelli, and Seyssel”, (New York, 1973), pp. 150-172. [3]Jacques Hurault, “Politike, Moral and Martial Discources”, Trans. Arthur Golding, (London,1595), p.89. [4] An English translation of “Six Livres de la Republique” in 1606. [5] Jean Bodin, “The Six Books of a Commonwealth”, ed. Kenneth D. McRae, (Cambridge, MA, 1962), p.10. [6]Bodin, 1962, 6, 4, p. 714. [7]Sir Robert Filmer, “Patriarcha and other writings”, ed. Johann Sommerville, (Cambridge, 1991), p. 7. [8] King James VI and I 1994, pp. 143, 145. [9]John Hayward, “A Report of Discource Concerning Supreme Power in Affaires of Religion”, (London, 1607), p. 6. [10] Bodin 1962, 1. 6, p. 60. [11] Bodin 1962, 1. 8, p. 99. [12]Niccolo Machiavelli, “Nicholas Machiavel’s Prince”, trans. Edward Dacres, (London, 1640), 2. 2, p. 260. [13] Almain 1706, col. 978: ‘Nulla Communitas perfecta hanc potestatem a se abdicare potest’, pp. 138-145. [14]Henry Parker, “Ius Populi”, (London 1644), p. 25. [15]William Ball, “A Caveat for Subjects, Moderating the Observator”, (London, 1642), pp. 6 and 8. [16]John Bramhall, “The Serpent Salve”, 1643, pp. 6, 14. [17]Thomas Hobbes, “Leviathan”, ed. Richard Tuck, Revised Student edition, (Cambridge 2008), ch. 13, pp. 89-90. [18] Hobbes 2008, ch. 16, p. 111. [19] Hobbes 2008, ch. 16, p. 112. [20] Hobbes 2008, ch. 17, p. 120. [21] Hobbes 2008, Introduction, p. 9 and ch. 17, p. 120. [22]Richard Price, “Political Writing”, ed. D. O. Thomas, (Cambridge, 1991), p. 76. [23]Jeremy Bentham, “An Introduction to Principles of Morals and Legislation”, (Oxford, 1996), p. 292. [24] Maitland, “State, Trust and Corporation”, ed. David Runciman, (Cambridge, 2003), p. 71. [25]Bernard Bosanquet, “The Philosophical Theory of the State”, 2nd Edition, (London, 1910), p. 154. [26] Quentin Skinner, “A Genealogy of the Modern State”, British Academy Lecture, 2009, p. 361.

Legit Originals, Volume 1, Issue 1 (September 2020)

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