The Philosophical Theory of the State

by Bernard Bosanquet

An answer may be indicated as follows. We are dealing, in society and in the State, with an ideal fact. As a fact, a form of life, society has always been a many-sided creature, meeting the varied needs of human nature by functions no less varied. As an ideal fact, however, its advance has partaken of the nature of theoretical progress. In the continuous attempt to deal satisfactorily {257} with the needs of intelligent beings, the mind, the intelligent will, has thrown itself with predominant interest now into one of its functions and now into another. And this has not been a chance order of march. Obviously, what it has emphasised and modified in the second place has depended both positively and negatively on what it had emphasised and modified in the first place. Positively, because when one step is thoroughly secured the next may be definitely attempted. Negatively, because the definite attainment of one step exposes the limitations of what has been achieved, and the need for another. At every stage the will is dissatisfied with the expression of itself which it has created. Till some public order has been established, morality can hardly find expression; but when a legal system is thoroughly in force it becomes apparent how far the letter may fall short of the spirit. We see the same action of intelligence in pure theory. Every conquest of science leads to a new departure. It suggests it by its success, and demands it by its failure.

Now, in science it may or may not be the case that the connection which has led to a discovery enters permanently as a discernible factor into the structure of knowledge. The re-organisation of experience may sweep away the steps which led to it. But in the living fact of society this is not so. Its many sides are actual and persist, and the emphasis laid from time to time on the principle of each—e.g. on positive law, on family ties, on economic bonds—merely serves to accent an element which has its permanent place in the whole. Thus, there must always be family ties and economic bonds. But at one time everything tends to be construed {258} in terms of kinship, at another time in terms of exchange. And the tendency means a difference of actual balance between the functions as well as a different theory. The positive and negative connection of elements like these, the true place and limit of each, is permanently rooted in human nature, but may be elucidated by the explicit logic of their attempt and failure to give the tone to the whole social fabric. It follows that the social whole grows, like a great theory, in adequacy to the needs which are its facts; and the dissatisfaction of the will with its own expression, in other words, the contradictions which practical intelligence is continually attempting to remove, becomes more like suggestion than flat contradiction—or change, as we say, becomes less revolutionary. It may seem to be a difference between the social whole and a scientific theory that the former, as it grows, creates new difficulties, by creating new and freshly contradictory matter, as in the social problems of civilisation; while the latter, as we imagine, deals with an unchanging experience. But this distinction is less true than it appears, and the comparison with the growth of a theory will always throw light on the true nature of the will and its continuous effort to satisfy itself.

2. Right or Law may be taken in the widest sense as including the whole manifestation of Will in an actual world—“the actual body of all the conditions of freedom,” [1] “the realm of realised freedom, the world of mind produced out of itself, as a second nature.” [2] It is a merit of the German {259} term “Recht” [3] that it maintains the connection between the law and the spirit of law, [4] and almost of itself prohibits the separation between positive law, and will, custom or sentiment, which underlies such a theory as Austin’s.

[1] Hegel, Philos. of Mind (E. Tr.), p. 104. Cf. defs. quoted from Green, p. 203 above.

[2] Rechtsphil., sect. 4.

[3] Cf. the Greek’s idea of “nomos.”

[4] See ch. ii. above on Montesquieu and Rousseau.

This whole sphere of Right or Law, the mind as actualised in Society and the State, naturally divides itself on the principle which has just been explained, into three connected groups of ideal facts or points of view. The first, or simplest and most inevitable, of these, may be called the “letter of the law” as we come upon it most especially in the law of property—Shylock’s law—the sheer fact, as it seems, that the world is appropriated by legal “persons.”

The second, obviously conditioned by the first both positively and negatively, may be described as the morality of conscience; the revolt of the will against the letter of the law, though this was its own direct expression of itself (e.g. in taking things as property); and its demand to recognise as right nothing but what springs from itself as the good will.

And thirdly, there is the reality or concrete experience in which the two former sets of facts, or ideas, find their true place and justification—the completed theory, so to speak, which adjusts and explains the narrower views founded on one-sided contact with life. This is indicated to consist in “social observance,” or “ethical use and wont”; the system of working mind where the true will appears as incarnate in a way of living. This, {260} like the others, it must be remembered, is a fact, though akin to a theory. Not only does it explain and justify the other factors, but its existence has enabled them to exist, as theirs has also been essential to it. And yet each of the three, as one aspect of society which under certain influences may catch the eye, has at times claimed—is, indeed, constantly claiming—predominance, and has thus brought into relief its own defects and the need of the complementary ideas. We will speak of these moods of mind or kinds of experience in their order, expecting a further sub-division when we come to treat of the third.