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time has passed forever. Henceforth no intelli-
gent people will ever be led into the shambles of
aggressive warfare without being consulted.
That is the first mark of difference that will
distinguish the new Europe from the old. And,
being consulted, will they not ask with increas-
ing earnestness why nations cannot conduct their
business as the state generally requires private
business to be conducted, in accordance with
reasonable rules of procedure? Many negative
answers will, no doubt, be given, for governments
are tenacious of their traditions ; but, nevertheless,
there will be a general revision of the inherited
conception of the nature of the state, and a percep-
tion that world dominion is not the prerogative of
any single nation. States, like individual men,
must admit their responsibilities to one another,
accept the obligation to obey just and equal laws
and take their respective places in the society of
states in a spirit of loyalty to civilization as a
human and not an exclusively national ideal.


DESPITE the heritage of evil in the absolute
conception of the state and the relations be-
tween states ; and, in truth, on account of it, men
of reflective habits of mind have devoted much at-
tention to the ideas that ought to prevail when,
either in the course of progressive evolution or at
some critical period of readjustment, the oppor-
tunity for amelioration may exist.

At the very outset, however, we are confronted
with the question how far the thought and pur-
pose of man can affect such vast issues as social,
political, and international organization. Judg-
ing by the past, we should, perhaps, be led to con-
clude, that mere theories have, on the whole, very
little to do with the mass action of mankind, and
that such action is almost universally determined
by the blind instincts and irresistible appetites of
men rather than by reason; with the result that
it is useless to expect that anything of national



magnitude will happen simply because it is rea-
sonable or that international affairs will ever cease
to be more unreasonable than they have been in
the past.

If there were no important change in the human
units that make up the populations of what we
call the civilized nations of the world, this hope-
less prospect might be justified; but, in fact, a
very radical change has occurred in these later
decades. It consists in an ever-widening com-
mon consciousness regarding national and inter-
national affairs. Great world events, portrayed
in terms generally intelligible, and brought home
to the masses of mankind everywhere, have awak-
ened the intelligence of the common man as it has
never been aroused before. In the humblest
walks of life men are now discussing difficult
questions of jurisprudence and diplomacy in the
light of stirring events of world-wide significance,
and they are asking one another, What is to be-
come of civilization? Will it perish in the con-
flict of national interests, or will it enter upon a
new era of development?

Justice, peace, cooperation, culture all these
seem to be imperiled by national antagonisms;


and yet they are aspirations that all nations pro-
fess to entertain. How may they be realized?
By intelligent organization, no doubt ; but it must
be of a more thorough kind and on a larger scale
than has ever before been attempted. It cannot
stop at the national boundaries; it must include
the whole family of man.

The tragic character of the present world-con-
flict has greatly stimulated thought in this direc-
tion, but no plan of international organization has
thus far been proposed which has met with uni-
versal approbation as likely to prove practicable.
It is an easy task to outline an international con-
stitution based upon the principle of federation;
but all schemes of this kind when applied to prac-
tice are confronted with the pretensions of abso-
lute sovereignty, and the indisposition on the part
of governments to surrender any of their prerog-
atives. '

Before great progress can be made in harmon-
izing national interests it will be necessary to re-
consider, in the light of modern knowledge and
experience, the true nature of the state and by a
readjustment of opinions upon that subject pre-


pare the way for a change in the attitude of na-
tions toward one another.

The present is an unusually auspicious moment
for reflection upon this subject, for in the sanguin-
ary drama now enacting we are witnessing the
demonstration of the utter impracticability of real-
izing any of the international ideals if nations,
having become economic corporations, are to con-
tend with one another for the possession of the
earth upon the assumption that superior military
power is the source of rightful authority.

In so far as that idea is merely a historical in-
heritance coming down to us through the tacit ac-
ceptance of unfounded pretentions, we may very
readily abandon it, as marking a stage of social
evolution which we have left behind us. But
the case is not so simple. We find that all in-
ternational ideals are openly challenged and re-
pudiated. We are told that, rightly conceived,
the state is incapable of compromise ; that it is a
vehicle of authority and of culture that cannot,
even if it would, refuse to execute its lofty mission
of expansion and transformation.

The truth is that the battle between opposing
theories of the state has not yet been fought out.


What is the purpose of the state? Does it exist
for the individual person, as democracy contends,
or does the individual person exist for the state,
as absolutism asserts ?

Deep down beneath all the superficial drift of
international questions is a problem in philoso-
phy, upon the solution of which there is so far no

As a question of philosophy the opposing types
of conception regarding the nature of the state
may, perhaps, be best illustrated by comparing the
theories of Kant and Hegel, the one emphasizing
the freedom, development, and responsibility of
the individual man, the other the power, the glory,
and the divinity of the state.

At the end of the eighteenth century the idea
of dynastic proprietorship was already vanishing,
and the revolutionary movement, begun in Amer-
ica and continued in France and throughout Eu-
rope, demanded a reconstruction of the idea of
government. At that time the pretensions of royal
absolutism were challenged as they had never
been before. Then followed an effort at recon-
struction, and, more than any other of that gen-
eration, Immanuel Kant attempted to show that


there is a truly philosophic foundation for the ex-
istence and authority of the state as a human in-

It is Kant who best marks the transition to
distinctively modern thought not only on account
of his having lived in the period of revolt against
absolutism, but on account of the place he assigns
to man as a factor in history. To his mind the
great necessity for man is freedom. All the forces
of humanity are locked up in the possibilities of
the individual being. The great problem of so-
ciety is to release the free activity of human fac-
ulties. No one had ever so fully realized the in-
herent dignity of personality, or urged so strongly
its extrication from the mechanism of dynamic
process. The authority that should govern per-
sons, he thinks, should not come from without,
either from nature on the one hand or the state
on the other. The reason for the state is to be
found in the nature of man as a self -determining,
rational, and responsible being. Personality is
not a means to an end; it is an end in itself, and
therefore should not be treated as a mere thing,
or made the creature, the instrument, or the vic-
tim of arbitrary force.


Government, then, should be organized for hu-
man service and not merely for the service of a
class to the detriment of another class, but for
society as a whole. It must, no doubt, be terri-
torial, and therefore circumscribed in its jurisdic-
tion; that is, there may be, and in fact must be,
many governments but they should all have the
same purpose. The state in its proper sense is a
structure of moral order, the creation of self-
conscious reason, aiming at the establishment of
an external support of human rights by an out-
ward defense of an inner principle. It is to be
sharply distinguished from society, which is a nat-
ural product. In its perfection it would be the
external harmony of the activities resulting from
personal freedom. The business of government,
therefore, is to remove the hindrances to freedom,
which are found in the love of power, of glory,
and of gain, motives engendered by the natural
instincts which man shares with the lower

Such a conception appears at first sight to be
not only cosmopolitan, but anti-national. Cos-
mopolitan it undoubtedly is, and therein lies the
possibility of ultimately realizing the idea of a


true society of states; but it is not anti-national
in the sense of denying the value and necessity
of the nation. What it aims at is the extension
of local order until it becomes general order, by
so conceiving the state as to allow of its coopera-
tion with other states, either by federation, or
some other correlation, with the purpose of insur-
ing universal harmony and, therefore, permanent

But in order to reach this result Kant holds that
the "holy and inviolable law of reason" must tri-
umph over the impulses of the natural man not
by military force, for freedom and violence are
incompatible, but by the gradual evolution of
mankind through the action of rational intelli-

Here is presented, no doubt, a conception of
the state which renders internationalism possible
without the destruction of nationalism. But we
find in Kant only the beginning of a complete po-
litical philosophy, for the reason that he had not
seen his own idea of personality as the basis of
political organization anywhere effectively worked
out. He had not witnessed the development of
constitutionalism, which was only just asserting


itself, and his conservative spirit in matters prac-
tical was rudely shocked by the enormities of the
French Revolution. Yet he perceived that it was
upon the inherent rights of the individual man
that the state must be founded if despotism was
to be abolished. But he also apprehended the
deeper truth that rights without duties cannot be
sustained, and he therefore laid the principal
stress upon duty duty to the state and duty to
all mankind.

While Kant's conception of the state was mak-
ing practical progress in other parts of the world,
his Fatherland was harried by invasion, subju-
gated by conquest, and in the Napoleonic domina-
tion a new imperialism was holding all conti-
nental Europe in its grasp. Fichte applied the
Kantian conception of duty to the fallen fortunes
of the Prussian state, for a strong doctrine of
nationalism became the necessity of the hour.
But it was Hegel, after liberation had been
achieved, who, determined to philosophize every-
thing, made the state the shrine of the indwelling
absolute, and for the cosmopolitanism of Kant
was substituted a theory of the state which pro-
claimed it an organ of divine action, identified


patriotism with religion, and rendered the separ-
ate nationalities as unapproachable for purposes
of rational understanding as the planets in the
solar system.

For Hegel the individual man is nothing in
himself. Whatever he has of moral personality
is the creation of the state. It is true that in his
writings Hegel begins with personal conscious-
ness as a fundamental fact in the manner of
Kant ; but in his fully developed philosophy, after
he has assumed the task of glorifying the state,
he makes of it the only vehicle through which
the absolute reaches humanity, and he always
means by it the Prussian state, the Prussian
state, as Haym has said, as it existed in 1821,
when Hegel wrote.

But this was a necessary corollary of Hegel's
conception of history as immanent reason. It was
idle, he thought, to speak of what a state "ought
to be." Being an incarnation of the absolute,
it is what it is, and cannot be other than it is. It
is right in all it does. All changes are divine
acts. The individual man must take his orders
from the state, because it alone has the right to
command. The state being an embodiment of


the absolute, it is foolish to try to make constitu-
tions, as if we had any right of choice. Parlia-
ments are only mediating bodies, which should
take their directions from the permanent ruler
in order to enlighten the masses as to how they
are to execute these orders. The state is an or-
ganism in which every constituent part is sub-
ject to the will of the whole. But as this unity
is not found in society as a whole, it must be
sought in the will of a dominant person, the mon-
arch, through whom the absolute speaks. And
thus the philosopher sinks at last into the syco-
phant, crowning his system with the dogma of
divine right, and ending with the adulation of a
notoriously weak and reactionary king.

Evidently, if all states are like this, and this is
intended as a theory of the state in the abstract,
there can be no restraint upon the purpose of the
monarch. He is absolute, and all states are
absolute. There being no law but their own will,
there can be no such thing as international law;
and, as the state's omnipotence includes the un-
limited right of making war at the will of the
sovereign, there cannot be a permanent peace.
Such a condition is an "empty dream. " It is


through war that the absolute carries forward the
work of history.

Almost with unanimity, after being for a time
under the spell of Hegel's speculations, some
decades ago philosophers abandoned absolutism,
and raised the cry, "Back to Kant!" In the
philosophy of the state, however, Hegel still ex-
erts an influence. The picture of it as a self-
subsisting and dominant power serves well the de-
signs of imperial ambition. Religion, war, and
further domination all seem to be reconciled by
the assertion that the individual man exists for
the state, and that the state is not founded on the
rights of the individual man.

Hence there is to-day a contest between these
opposing conceptions a contest upon the decision
of which the future of international relations
throughout the world will depend. If, as Kant's
theory assumes, law is the formulation of justice
and equity, resulting from a consensus of social
needs interpreted in the light of reason, of which
the state is an expression, then there is law for
states as well as for individual men. If, on the
contrary, law is a sovereign decree emanating
from a dominant will regardless of limitations,


there can be no law for states until such a supe-
rior will is established over them.

Both ideas have been worked out in the devel-
opment of modern states. Some have followed
the absolutist theory even in their internal or-
ganization; and in these authority without re-
striction emanates from a superior, an individual
ruler or a governing class. In others authority
proceeds from the constituents of the state under
definite forms of limitation, in which checks upon
the pretensions of absolute sovereignty are embod-
ied in the very structure of government. None
but states of the latter kind are truly constitu-
tional. They are by their very nature creations
of law. They recognize the fact that whatever
rightful authority there is in the world is derived
from claims to justice antecedent to all legislation
and inherent in personality. When all the re-
sources of sophistry have been exhausted in try-
ing to derive rights from power, that is, to prove
that might is right, we shall be obliged to go
back to Kant and admit that human personality
as such is a source of claims to justice and equity,
or we must confess that right and wrong are


merely imaginary distinctions, and jurisprudence
a system of purely mechanical ideas.

It has been said that all men may have "inter-
ests," but no one has any "rights" until govern-
ment has accorded them by an act of legislation.
In some technical sense this may be true, but in a
broad human sense it is not true. If it were true,
it would be absurd to fight for another man's
rights. But all the progress the world has ever
made, all that distinguishes civilization from bar-
barism, springs from someone's sense of duty,
which means simply the recognition of another
man's right, and this is as real when it is denied
as when it is conceded.

Certainly these inherent rights do not belong to
human beings in an isolated and non-social state,
for men never existed in a non-social state. All
men are members of a series and members of a
group, and it is in these relations that they recog-
nize their claims to justice and to equity, which
remain the same whether they are granted or not.

Thus the idea of law is a part of the mental
furniture of every being capable of an act of re-
flection. To say with Hegel or with Austin, or
with any legal positivist that there is and can


be no international law, because there is no in-
ternational sovereign to decree it, is to define law
by a mere accident and not by its essential nature,
that is, by the fact that laws have sometimes, but
certainly not generally, been issued as sovereign

It is singular how this notion lingers. A
modern disciple of Hegel, for example, argues

The whole of international law rests on the principle
that treaties are to be observed. But behind all this there
is the sheer fact of the separate individual Powers, each
absolute in its limited area; so that, at bottom, the whole
fabric of international rules and customs is just an agree-
ment of separate wills, and not an expression of a single
general will.

And he sees in this a reason why leagues and
federations cannot have the quality of law, forget-
ful of the fact that in all modern constitutional
states every law of every legislative body is a re-
sult arrived at by an agreement of separate wills
expressed in the votes of the legislators. But if
the separate wills of a congress or a parliament
may formulate a law, why may not separate and
independent states formulate a law for the gov-


eminent of their own conduct? And having
pledged themselves to it, being law in the most
perfect sense, are they not bound by it?

There is, it must be admitted, an ineffaceable
distinction between the nature of a state, even a
constitutional state, and a human being. The
state is the guardian of private rights and inter-
ests. It acts for its constituents in a fiduciary
capacity. It is, indeed, an "ark of safety" to
which communities of men have committed the
keeping of their lives and treasures on the troubled
waters of an uncharted world. "It is the vehicle
which carries the whole value of life." Further-
more, it exists in a world of hostile forces.
"In the world, right can only prevail through
might." Therefore the state must be strong,
and to be strong it must be armed, as the indi-
vidual man under the protection of the state
need not be. How otherwise can it fulfil its
sacred trust?

All this is true and of the first importance ; but,
while it justifies the possession of force by the
state, it makes it very plain that the strength
of the state is not an end in itself, but merely a
means an instrument for the protection of rights


and interests intrusted to its care. The end of the
state is, therefore, not aggression, or profit, or
power, but justice. The primary reason for the
existence of a government is that each citizen shall
be protected in his rights.

It is this that distinguishes the state from other
forms of human association. Its function is
primarily protective. Upon this foundation rest
all its special and peculiar prerogatives. Here is
the reason for its authority, but this is limited
by the reason for its existence. Society has mani-
fold functions, but they may be normally left to in-
dividual and corporate enterprise within the
state, which may be a complete and perfect "body
politic' ' without them. On the other hand, these
functions may be in part, and even to a great
extent, taken over and performed by the state,
but they are not necessary to its existence. They
do, however, modify its character. When the
state, in addition to its protective function, as-
sumes those of industry, transportation, and com-
merce, as the modern state sometimes does, it un-
dergoes a radical transformation. It itself then
becomes a business corporation, a rival, and a
competitor in the world of trade.


Now what is most important to consider is that,
while this expansion of its functions profoundly
changes the character of the state, it does not con-
fer upon it any new authority. It does multiply
and extend its interests, but it does not in any
respect render the state absolute or endow it with
unlimited right of command. Mere business can-
not be regarded as a source of absolute sover-

For constitutional states, therefore, that is,
for governments based upon the protection of
human rights, and not upon some superhuman
claim to authority, like that of the divine right of
the monarch, there is no logical ground for
claiming sovereign rights in the absolutist sense.
Such states are free and independent, but they
do not represent the will to power. They repre-
sent and embody the will to justice ; and the prin-
ciples of justice are, ipso facto, their law of action.
Everything violative of justice is for them usur-
pation. They may commit acts of injustice, they
may explain them, they may excuse them; but
they cannot logically justify them. As an organ
of justice the state exceeds its prerogatives when
it is unjust.


Undoubtedly this implies that international law
is self-subsistent. For constitutional states it ex-
ists regardless of customs and conventions, and
would be their law if no customs or conventions
had ever existed, for its principles enter into their
very purpose and structure. For them to deny
these principles in their conduct would be to de-
nature themselves.

Written or unwritten, international law is ac-
cepted by all constitutional states as binding upon
them. By some, as in the United States, it is ex-
pressly declared to be a part of the law of the land.
Acceptance of it should be the condition of the
recognition of a government; for in so far as a
community of men does not admit its existence, it
is not a state in any defensible sense. An aggre-
gation of de facto forces it may be, but in so far
as it is merely an embodiment of the will to power
and not the will to justice, it falls below statehood
and is merely a predatory band, an outlaw that
deserves to be proscribed and refused a place in
the society of states.

In practice the specific rules of international
law are established by a general consensus. They
are sometimes inferred from custom and some-


times defined in conventions; but these rules are
admitted to be merely partial and tentative ef-
forts to express in definite formulae what justice
and equity demand. In this respect international
law is comparable with science. As the man of
science is engaged in a continuous effort to dis-
cover and state truth, so the jurist and the states-
man, in so far as they are really such, persistently
seek to formulate the requirements of justice. In
both cases the formulae arrived at may be plainly
incomplete; but justice, like truth, is not a
mere creation of the mind. It is an object of
research and discovery; and as far as it is dis-
covered and agreed upon it is obligatory, al-
though our knowledge of it may still be incom-

It is, therefore, a solecism to speak of interna-
tional law as "destroyed" or "non-existent, " be-
cause it is sometimes violated. It can never be
destroyed. It will continue to reassert itself; and,
as public order and state authority appear more
necessary after a period of domestic anarchy than

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Online LibraryDavid Jayne HillThe rebuilding of Europe : a survey of forces and conditions → online text (page 3 of 15)