The Philosophical Theory of the State

by Bernard Bosanquet

iv. A completely new vista reveals itself to the student of social theory when he turns from biological analogies and economic conditions to consider the wealth of experience and of ideas which is furnished to him by Jurisprudence and the Science of Right. He knows, indeed, by this time, that the obvious aspect of a province of fact will not be the only one, and that a unity will certainly be traceable between all the facets of social existence. But none the less, he will be able to restrain the itch to explain things away, and he will fairly and candidly give weight to the significance and suggestiveness of the mass of history and of reflection which is now brought before him.

a. For here, as the plainest and most unmistakable data of experience, we are confronted with ideal facts. The vast mass of documents which form the basis of the Science of Right—a more complete and comprehensive set of records, perhaps, than any other branch of social science can boast—bears witness in every case to one social phenomenon at least, to a formal act of mind and will, aimed at maintaining some relative right or {35} hindering some relative wrong, and stamped with what in some sense and in some degree amounts to a social recognition. Theorists have said too hastily, though with a sound meaning, that right is independent of fact. It would be as true to say that reason is independent of civilisation, or the soul independent of culture. Right is not exhausted in the facts of past history; but it is at every moment embodied in facts; and to comprehend that the social phenomena which are among the most solid and unyielding of our experiences, are nevertheless ideal in their nature, and consist of conscious recognitions, by intelligent beings, of the relations in which they stand, is to make a great step towards grasping the essential task of science in dealing with society. From the beginning of social theory the facts of law have been set in opposition to the idea of a natural growth. It has been observed that, as a definite institution maintained by formal acts of will, society is artificial, conventional, contractual. We all know to-day that there is much more than this to be said about the nature and principles of social growth. Nevertheless, it remains true that the social whole has an artificial aspect, an aspect of will and of design, of the agreement and mutual recognition of free conscious beings. And in so far as the history of law has resulted in the conception of natural right, this in no way derogates from the artificial or ideal character of society as above understood. For “natural” right belongs to a “nature” which includes and does not exclude that action of intelligence in virtue of which society may be termed artificial; and is {36} merely the revelation of the principle towards which the social will is working, and which in some degree it has always embodied.

Therefore the facts of Jurisprudence and the Science of Right, or of “Natural Right,” as the issue and outcome of Jurisprudence, necessarily counterbalance the extreme ideas of continuous growth and natural causation which social science derives from other analogies. We are reminded that, after all, we are dealing with a self-conscious purposive organism, which is aware of a better and a worse, and has members bound together by conscious intelligence, though, it may be, not by conscious intelligence alone. At one time the ideas of Jurisprudence, such as Sovereignty or Contract, were considered sufficient by themselves to equip a social theory. And if they are now seen to need completion from both sides,—from the side of lower nature, and from the side of the national spirit and culture,—this should not make us neglectful of the important truths which the facts of law and recognised obligation, more than any others, establish on solid ground.

b. It is of course the case that Law has been treated from the standpoint of economic history in the same way as the other phenomena of civilised life. It may be taken simply as the form into which substantive relations crystallise, under the influence of economic conditions or of other elementary social forces. And obviously such a view has its truth. The social will, like the will of any one of us from day to day, is formed not in vacuo, but as the focus of all the influences which penetrate our being. It is a fair object of {37} research to ascertain the economic or other social meaning of the statutes which we find on the statute book; and it is because they have so much meaning that they are excellent object-lessons in the play of the social consciousness and sense of right. But this focussing of social influences makes the laws not less acts of social will, but more. To suppose the contrary would be like supposing that nothing is a true act of will which embodies an individual’s distinctive purposes in life.

I will explain by an illustration the relative value of sociological analysis in dealing with the facts of positive law. I am indebted for it to M. Durkheim, whose writings appear to me among the most original and suggestive works of modern sociology. I regret that my immediate purpose does not justify me in stating and appreciating the whole very interesting theory of repressive and contractual law from which the point in question is selected.

An act is a crime, [1] we are told, for the pure sociologist, when it offends the strong and definite collective sentiments of society. This is the strictly causal view of the matter. The act is a crime because it offends; it does not offend because it is a crime. And the corollaries are valuable. It is idle to distinguish, on such a basis, between the reformatory, the retributive, and the deterrent views of the reaction which is punishment. [2] An offensive act is in itself at once an exhibition of character, an injury, and a menace. If a man {38} assaults me in the street, and I knock him down; how futile to ask if my action is meant to cure him of his insolence, to punish him for having hit me, or to prevent him from hitting me again! The real fact is that I am offended, and I react by way of injury and negation against that which offends me. Now, this view, I think, illuminates the subject. By going back to the simple operative cause, as it may be supposed to exist especially in the mind of a tribe in an early stage of development (M. Durkheim is chiefly referring to religious offences), we have got a plain type of mental reaction, easy to imagine and to understand. In this type we see at once the unity of aspects which the forms of law, and legal or philosophical theory, tend later to dissociate in a fictitious degree. And moreover we are reminded that a law must have something behind it; some positive sentiment or conviction, without which it would be unaccountable and unmeaning.

[1] Durkheim, Op. cit., livre I., ch. ii.

[2] See ch. viii. below.

But when all this is said, it must not be supposed that penal law has been reduced to the level of a strong and definite collective sentiment, or a crime to the level of an annoyance. The simplest penal law of a self-existent social group is different from the anger of a crowd or mob. There is in it some sense of permanence, and permanence means responsibility and generality—a distinction of right and wrong. The fact of formally constituting a crime, i.e. of announcing a law, implies that mere distaste is no ground of punishment. The law means that there is something worth maintaining, and that this is recognised, and that to violate this recognition is not merely to be unpopular, but to {39} sin against the common good, and to break an obligation. With less than this there is no true crime.

Thus, if I am right, the relation of pure “sociological” causation to juristic facts is the well-known relation of the more abstract to the more concrete sciences, usually illustrated in logic by the relation of the physical and the musical account of musical sound. For the pure physicist, a harmony and a discord are only two different combinations of shakings. For the musician they are not only opposite effects, but are causes of divergent consequences. So with the relation between a strong collective sentiment and a true law. A strong sentiment, as such, is a mere fact, a mere force; and as such the sociologist regards it. A law involves the pretension to will what is just, and is therefore a sentiment and something more, viz., the point of view of social good. It aims at a right and implies a wrong, and demands to be apprehended and judged on this ground. A mere force cannot by its reaction constitute a crime; for that a law is necessary. The ideal aspect of law as recognition of right is no less actual, no less solid and verifiable, than the facts of sentiment or necessity which may have suggested and sustained it. In this way the relation of sociological causation to the facts of Jurisprudence is typical of the whole relation of Sociology conceived as a natural science, to the larger facts with which social theory has to deal.