Lectures on the Principles of Political Obligation / Reprinted from Green's Philosophical Works, vol. II., with Preface by Bernard Bosanquet

by Thomas Hill Green

132. It is the necessity of a supreme coercive power to the existence of a state that gives plausibility to the view that the action of merely selfish passions may lead to the formation of states. They have been motive causes, it would seem, in the processes by which this 'imperium' has been established; as, e.g., the acquisition of military power by a tribal chieftain, the conquest of one tribe by another, the supersession of the independent prerogatives of families by a tyrant which was the antecedent condition of the formation of states in the ancient world, the supersession of feudal prerogatives by the royal authority which served the same purpose in modern Europe. It is not, however, supreme coercive power, simply as such, but supreme coercive power exercised in a certain way and for certain ends, that makes a state; viz. exercised according to law, written or customary, and for the maintenance of rights. The abstract consideration of sovereignty has led to these qualifications being overlooked. Sovereignty = supreme coercive power, indeed, but such power as exercised in and over a state, which means with the qualifications specified; but the mischief of beginning with an inquiry into sovereignty before the idea of a state has been investigated, is that it leads us to adopt this abstract notion of sovereignty, as merely supreme coercive power, and then, when we come to think of the state as distinguished by sovereignty, makes us suppose that supreme coercive power is all that is essential to a state, forgetting that it is rather the state that makes the sovereign, than the sovereign that makes the state. Supposing one man had been master of all the slaves in one of the states of the American Union, there would have been a multitude of men under one supreme coercive power, but the slaves and the master would have formed no state, because there would have been no recognised rights of slave against slave enforced by the master, nor would dealings between master and slaves have been regulated by any law. The fact that sovereign power, as implied in the fact of its supremacy, can alter any laws, is apt to make us overlook the necessity of conformity to law on the part of the sovereign, if he is to be the sovereign of a state. A power that altered laws otherwise than according to law, according to a constitution, written or unwritten, would be incompatible with the existence of a state, which is a body of persons, recognised by each other as having rights, and possessing certain institutions for the maintenance of those rights. The office of the sovereign, as an institution of such a society, is to protect those rights from invasion, either from without, from foreign nations, or from within, from members of the society who cease to behave as such. Its supremacy is the society's independence of such attacks from without or within. It is an agency of the society, or the society itself acting for this end. If the power, existing for this end, is used on the whole otherwise than in conformity either with a formal constitution or with customs which virtually serve the purpose of a constitution, it is no longer an institution for the maintenance of rights and ceases to be the agent of a state. We only count Russia a state by a sort of courtesy on the supposition that the power of the Czar, though subject to no constitutional control, is so far exercised in accordance with a recognised tradition of what the public good requires as to be on the whole a sustainer of rights.

It is true that, just as in a state, all law being derived from the sovereign, there is a sense in which the sovereign is not bound by any law, so there is a sense in which all rights are derived from the sovereign, and no power which the sovereign refuses to allow can be a right; but it is only in the sense that, the sovereign being the state acting in a certain capacity, and the state being an institution for the more complete and harmonious maintenance of the rights of its members, a power, claimed as a right, but which the state or sovereign refuses to allow, cannot be really compatible with the general system of rights. In other words, it is true only on the supposition that a state is made a state by the functions which it fulfils of maintaining the rights of its members as a whole or a system, in such a way that none gains at the expense of another (no one has any power guaranteed to him through another's being deprived of that power). Thus the state, or the sovereign as a characteristic institution of the state, does not create rights, but gives fuller reality to rights already existing. It secures and extends the exercise of powers, which men, influenced in dealing with each other by an idea of common good, had recognised in each other as being capable of direction to that common good, and had already in a certain measure secured to each other in consequence of chat recognition. It is not a state unless it does so.

133. It may be said that this is an arbitrary restriction of the term 'state.' If any other word, indeed, can be found to express the same thing, by all means let it be used instead. But some word is wanted for the purpose, because as a matter of fact societies of men, already possessing rights, and whose dealings with each other have been regulated by customs conformable to those rights, but not existing in the form to which the term 'state' has just been applied (i.e. not having a systematic law in which the rights recognised are harmonised, and which is enforced by a power strong enough at once to protect a society against disturbance within and aggression from without), have come to take on that form. A word is needed to express that form of society, both according to the idea of it which has been operative in the minds of the members of the societies which have undergone the change described (an idea only gradually taking shape as the change proceeded), and according to the more explicit and distinct idea of it which we form in reflecting on the process. The word 'state' is the one naturally used for the purpose. The exact degree to which the process must have been carried before the term 'state' can be applied to the people in which it has gone on, cannot be precisely determined, but as a matter of fact we never apply it except in cases where it has gone some way, and we are justified in speaking of the state according to its idea as the society in which it is completed.

134. It is a mistake then to think of the state as an aggregation of individuals under a sovereign; equally so whether we suppose the individuals as such, or apart from what they derive from society, to possess natural rights, or suppose them to depend on the sovereign for the possession of rights. A state presupposes other forms of community, with the rights that arise out of them, and only exists as sustaining, securing, and completing them. In order to make a state there must have been families of which the members recognised rights in each other (recognised in each other powers capable of direction by reference to a common good); there must further have been intercourse between families, or between tribes that have grown out of families, of which each in the same sense recognised rights in the other. The recognition of a right being very short of its definition, the admission of a right in each other by two parties, whether individuals, families, or tribes, being very different from agreement as to what the right consists in, what it is a right to do or acquire, the rights recognised need definition and reconciliation in a general law. When such a general law has been arrived at, regulating the position of members of a family towards each other and the dealings of families or tribes with each other; when it is voluntarily recognised by a community of families or tribes, and maintained by a power strong enough at once to enforce it within the community and to defend the integrity of the community against attacks from without, then the elementary state has been formed.

135. That, however, is the beginning, not the end, of the state. When once it has come into being, new rights arise in it (1) through the claim for recognition on the part of families and tribes living on the same territory with those which in community form the state, but living at first in some relation of subjection to them. A common humanity, of which language is the expression, necessarily leads to the recognition of some good as common to these families with those which form the state. This is in principle the recognition of rights on their part; and the consequent embodiment of this recognition in the laws of the state is their admission as members of it. (Instances of this process are found in the states of Greece and the early history of Rome.) (2) The same thing may happen in regard to external communities ('external' territorially), whether these have been already formed into states or no. It may happen through the conquest of one by another, through their submission to a common conqueror, as under the Roman empire, or through voluntary combination, as with the Swiss cantons and the United States of America. However the combination may arise, it results in new rights as between the combined communities within the system of a single state. (3) The extended intercourse between individuals, which the formation of the state renders possible, leads to new complications in their dealings with each other, and with it to new forms of right, especially in regard to property; rights as far removed from any obvious foundation on the suum cuique principle as the right of a college to the great tithes of a parish for which it does nothing. (4) The administration of the state gives rise to rights, to the establishment of powers necessary for its administration. (5) New situations of life may arise out of the extended dealings of man with man which the state renders possible (e.g. through the crowding of population in certain localities) which make new modes of protecting the people a matter virtually of right. And, as new rights arise in the state once formed, so further purposes are served. It leads to a development and moralisation of man beyond the stage which they must have reached before it could be possible.

136. On this I shall dwell more in my next course of lectures. What I am now concerned to point out is that, however necessary a factor force may have been in the process by which states have been formed and transformed, it has only been such a factor as co-operating with those ideas without which rights could not exist. I say 'could not exist,' not 'could not be recognised,' because rights are made by recognition. There is no right 'but thinking makes it so'; none that is not derived from some idea that men have about each other. Nothing is more real than a right, yet its existence is purely ideal, if by 'ideal' is meant that which is not dependent on anything material but has its being solely in consciousness. It is to these ideal realities that force is subordinate in the creation and development of states. The force of conquest from without, the force exercised within communities by such agents as the early Greek tyrants or the royal suppressors of feudalism in modern Europe, has only contributed to the formation of states in so far as its effects have taken a character which did not belong to them as effects of force; a character due to their operation in a moral world, in which rights already existed, resting on the recognition by men of each other as determined, or capable of being determined, by the conception of a common good. It is not indeed true that only a state can produce a state, though modern history might seem to favour that notion. As a matter of fact, the formation of modern states through feudalism out of an earlier tribal system has been dependent on ideas derived from the Roman state, if not on institutions actually handed down from it; and the improvement and development of the state-system which has taken place since the French Revolution has been through agencies which all presuppose and are determined by the previous existence of states. But the Greek states, so far as we know, were a first institution of the kind, not a result of propagation from previously existing states. But the action which brought them into being was only effectual for its purpose, because the idea of right, though only in the form of family or tribal right, was already in operation.

H. HAS THE CITIZEN RIGHTS AGAINST THE STATE?

137. I propose to pursue the inquiry, begun in my last course, into the nature and functions of the state. In the last course we were chiefly occupied with criticism. We have seen that no true conception of the rights of individuals against each other or against the state, or of the rights of the state over individuals, can be arrived at, while we look upon the state merely as an aggregation of individuals under a sovereign power that is able to compel their obedience, and consider this power of compelling a general obedience to be the characteristic thing in a state. So long as this view is retained, no satisfactory answer can be given to the question, by what right the sovereign compels the obedience of individuals. It can only be met either by some device for representing the individuals as so consenting to the exercise of sovereign power over them that it is no violation of their individual rights, or by representing the rights of individuals as derived from the sovereign and thus as having no existence against it. But it is obviously very often against the will of individuals that the sovereign power is exercised over them; indeed if it were not so, its characteristic as a power of compulsion would be lost; it would not be a sovereign power; and the fact that the majority of a given multitude may consent to its exercise over an unconsenting minority, is no justification for its exercise over that minority, if its justification is founded on consent; the representation that the minority virtually consent to be bound by the will of the majority being an obvious fiction. On the other hand, the theory that all right is derived from a sovereign, that it is a power of which the sovereign secures the exercise to the individual, and that therefore there can be no right against the sovereign, conflicts with the primary demands of human consciousness. It implies the identification of 'I ought' with 'I am forced to.' Reducing the 'right' of the sovereign simply to a power, it makes it unintelligible that this power should yet represent itself as a right, and claim obedience to itself as such. No such theory indeed admits of consistent statement. To say (with Hobbes) that a law may be inequitable or pernicious, though it cannot be unjust, is to admit a criticism of laws, a distinction between those enactments of the sovereign which are what they should be and those which are not. And this is to recognise the individual's demand for a justification of the laws which he obeys; to admit in effect that there is some rule of right, of which the individual is conscious, and to which law ought to conform.

138. It is equally impossible, then, to hold that the right of the sovereign power in a state over its members is dependent on their consent, and, on the other hand, that these members have no rights except such as are constituted and conferred upon them by the sovereign. The sovereign, and the state itself as distinguished by the existence of a sovereign power, presupposes rights and is an institution for their maintenance. But these rights do not belong to individuals as they might be in a state of nature, or as they might be if each acted irrespectively of the others. They belong to them as members of a society in which each recognises the other as an originator of action in the same sense in which he is conscious of being so himself (as an 'ego,' as himself the object which determines the action), and thus regards the free exercise of his own powers as dependent upon his allowing an equally free exercise of his powers to every other member of the society. There is no harm in saying that they belong to individuals as such, if we understand what we mean by 'individual,' and if we mean by it a self-determining subject, conscious of itself as one among other such subjects, and of its relation to them as making it what it is; for then there is no opposition between the attachment of rights to the individuals as such and their derivation from society. They attach to the individual, but only as a member of a society of free agents, as recognising himself and recognised by others to be such a member, as doing and done by accordingly. A right, then, to act unsocially,—to act otherwise than as belonging to a society of which each member keeps the exercise of his powers within the limits necessary to the like exercise by all the other members,—is a contradiction. No one can say that, unless he has consented to such a limitation of his powers, he has a right to resist it. The fact of his not consenting would be an extinction of all right on his part.

139. The state then presupposes rights, and rights of individuals. It is a form which society takes in order to maintain them. But rights have no being except in a society of men recognising each other as ἴσοι καὶ ὅμοιοι. [1] They are constituted by that mutual recognition. In analysing the nature of any right, we may conveniently look at it on two sides, and consider it as on the one hand a claim of the individual, arising out of his rational nature, to the free exercise of some faculty; on the other, as a concession of that claim by society, a power given by it to the individual of putting the claim in force. But we must be on our guard against supposing that these distinguishable sides have any really separate existence. It is only a man's consciousness of having an object in common with others, a well-being which is consciously his in being theirs and theirs in being his,—only the fact that they are recognised by him and he by them as having this object,—that gives him the claim described. There can be no reciprocal claim on the part of a man and an animal each to exercise his powers unimpeded by the other, because there is no consciousness common to them. But a claim founded on such a common consciousness is already a claim conceded; already a claim to which reality is given by social recognition, and thus implicitly a right.