NEGOTIORUM GESTIO
This pamphlet is not intended for lawyers. I can therefore touch only cursorily, as on so many other things, upon my theory of the legal basis of a State.
I must, nevertheless, lay some stress on my new theory, which could be maintained, I believe, even in discussion with men well versed in jurisprudence.
According to Rousseau's now antiquated view, a State is formed by a social contract. Rousseau held that: "The conditions of this contract are so precisely defined by the nature of the agreement that the slightest alteration would make them null and void. The consequence is that, even where they are not expressly stated, they are everywhere identical, and everywhere tacitly accepted and recognized," etc.
A logical and historic refutation of Rousseau's theory was never, nor is now, difficult, however terrible and far-reaching its effects may have been. The question whether a social contract with "conditions not expressly stated, yet unalterable," existed before the framing of a constitution, is of no practical interest to States under modern forms of government. The legal relationship between government and citizen is in any case clearly established now.
But previous to the framing of a constitution, and during the creation of a new State, these principles assume great practical importance. We know and see for ourselves that States still continue to be created. Colonies secede from the mother country. Vassals fall away from their suzerain; newly opened territories are immediately formed into free States. It is true that the Jewish State is conceived as a peculiarly modern structure on unspecified territory. But a State is formed, not by pieces of land, but rather by a number of men united under sovereign rule.
The people is the subjective, land the objective foundation of a State, and the subjective basis is the more important of the two. One sovereignty, for example, which has no objective basis at all, is perhaps the most respected one in the world. I refer to the sovereignty of the Pope.
The theory of rationality is the one at present accepted in political science. This theory suffices to justify the creation of a State, and cannot be historically refuted in the same way as the theory of a contract. Insofar as I am concerned only with the creation of a Jewish State, I am well within the limits of the theory of rationality. But when I touch upon the legal basis of the State, I have exceeded them. The theories of a divine institution, or of superior power, or of a contract, and the patriarchal and patrimonial theories do not accord with modern views. The legal basis of a State is sought either too much within men (patriarchal theory, and theories of superior force and contract), or too far above them (divine institution), or too far below them (objective patrimonial theory). The theory of rationality leaves this question conveniently and carefully unanswered. But a question which has seriously occupied doctors of jurisprudence in every age cannot be an absolutely idle one. As a matter of fact, a mixture of human and superhuman goes to the making of a State. Some legal basis is indispensable to explain the somewhat oppressive relationship in which subjects occasionally stand to rulers. I believe it is to be found in the negotiorum gestio, wherein the body of citizens represents the dominus negotiorum, and the government represents the gestor.
The Romans, with their marvellous sense of justice, produced that noble masterpiece, the negotiorum gestio. When the property of an oppressed person is in danger, any man may step forward to save it. This man is the gestor, the director of affairs not strictly his own. He has received no warrant—that is, no human warrant; higher obligations authorize him to act. The higher obligations may be formulated in different ways for the State, and so as to respond to individual degrees of culture attained by a growing general power of comprehension. The gestio is intended to work for the good of the dominus—the people, to whom the gestor himself belongs.
The gestor administers property of which he is joint-owner. His joint proprietorship teaches him what urgency would warrant his intervention, and would demand his leadership in peace or war; but under no circumstances is his authority valid qua joint proprietorship. The consent of the numerous joint-owners is even under most favorable conditions a matter of conjecture.