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D'ENTREVES, Alexander Passerin - The Notion of the State

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THE NOTION OF THE STAT EAn Introduction to Political TheoryAlexander Passerin d'Entreves

Oxford University Press, Ely House, London W.iGLASGOW NEW YORK TORONTO MELBOURNE WELLINGTON IBADAN NAIROBI LUSAKA ADDIS ABABA CAPE TOWN SALISBURY

BOMBAY CALCUTTA MADRAS KARACHI LAHORE DACCA KUALA LUMPUR SINGAPORE HONG KONG TOKYO

THE N O T I O N OF THE STATEAN INTRODUCTION TO POLITICAL THEORYBY

ALEXANDER PASSERIN D'ENTREVESPROFESSOR OF POLITICAL THEORY IN THE U N I V E R S I T Y OF T U R I N

OXFORD AT THE CLARENDON PRESS

Oxford University Press 1967FIRST PUBLISHED REPRINTED I967 I 9 6 9.

(WITH CORRECTIONS)

P R I N T E D

IN

GREAT

BRITAIN

'Am Ende hngen wir doch ab Von Kreaturen, die wir machten.'GOETHE, Faust

PREFACEbook was first published in Italian in 1 9 6 2 . I have been planning to rewrite it ever since, with a view to publishing an English edition which might be definitive. Here, at long last, is the fruit of my labours. Miss Margaret Carlyle greatly eased my task by providing me with a literal translation of the original text and by revising my English. It gives me particular pleasure that her name should once again be associated with one of my books. The Notion of the State would probably never have been written had its author not had the good fortune of sitting at her father's feet forty years ago in those unforgettable tutorials at 29 Holywell. Nor would it have been written but for the stimulus of teaching my own subject again after resigning the chair of Italian Studies at Oxford. I therefore wish to record a special debt of gratitude to my old Faculty in Turin for welcoming me back after a long absence, as well as to the Department of Philosophy and to the Law School at Yale for entrusting me year after year with a course on political and legal philosophy which proved to be one of the most enjoyable experiences of my career as a teacher. I should find it hard to say which of these three different settingsBritish, Italian, Americanhas had most influence on the views set forth in these pages. There is so much that is personal in them, and what little scholarship there is is of secondary importance. If there is one point which I am particularly anxious to emphasize, it is that The Notion of the State is not a treatise of political science, nor a history of political thought, nor an exercise in linguistic analysis. The only purpose of this book is to defend a certain type of approach to political theory. I am well aware that, only a few years ago, such an approach would have seemed out of fashion, at any rate in Oxford. But the wheel seems to have come full circle since the 'heyday of Weldonism'. 'Rolling the classics round the tongue like old brandy' may be sneered at by the young. But the questions which old-time political philosophers used to ask are no longer brushed aside as pointless or meaningless. Indeed, as Sir Isaiah Berlin has remarked,THIS827161 " B

viii

PREFACE

political theory will not perish from the earth 'so long as rational curiosity existsa desire for justification and explanation in terms of motives and reasons'. Needless to say, I fully share this conviction. A. P. d ' E N T R E V E STurin,

November 1966

NOTE TO THE CORRECTED IMPRESSION IN revising these pages for their first reprint I have not been able to make more than a few corrections and additions. Most of these have been suggested by readers and reviewers. I have done my best to meet their criticism where I felt it to be justified. Not all my critics, however, seem to have been equally attentive to what was my declared purpose in writing this book. I am quite willing to accept the description which has been given of it, as a re-statement of the 'classical view' about politics. But I refuse to be taken to task for not having done what I did not intend to do, viz. for not having tackled the problem of the State from the viewpoints of sociology, economics, or political science. To some readers, at any rate, my own humble contribution to the old discussion about political obligation has seemed helpful and topical. This, to be sure, is the best that an author can wish for in our troubled and hurried times. A. P. d'E. Turin, September 1968

CONTENTSINTRODUCTION P A R T I. M I G H T page I

1. The Argument of Thrasymachus 2. Realism and Pessimism 3. The Statea Neologism 4. The 'New Principality' and the Method of 'Effectual Truth' 5. 'Reason of State' and Machtstaat 6. 'Class Struggle' and 'Governing lites' 7. The Disruption of the Notion of the State in Modern Political ScienceP A R T I I . POWER

15 21 28 37 44 50 59 69 75 82 89 96 104 114 124 1 32 141

1. Government by Men and Government by Laws 2. State and Law: the Basic Notions 3. The Rule of Law 4. In Search of Sovereignty 5. The Birth of the Modern State 6. Leviathan Unfettered 7. The 'Mixed State' and the 'Division of Power' 8. The Plurality of Legal Systems 9. Church and State 1 0 . Legality and LegitimacyPART I I I . A U T H O R I T Y

1. Law and Order 2. Nature and Convention 3. Country and Nation 4. Divine Right 5. Force and Consent 6. Negative Liberty 7. Positive Liberty 8. The Common GoodINDEX

153 161 170 182 191 201 211 222 231

INTRODUCTION1. From the hour of birth to the hour of death our life is beset with innumerable forces which obstruct or protect its course and often determine its fate. Some of these forces are wholly outside our controlcertain natural forces, for example. Others, on the contrary, are the result of circumstances created by ourselves or by others, sometimes intentionally, sometimes not. The most numerous of these circumstancescircumstances which at any time may require our doing certain things or prevent us from doing others the most stringent, the most frequently experienced, are those which are commonly associated with the notion of a mysterious but omnipresent entity, of an indefinite but at the same time imperious and irresistible power: the notion of the State. Suppose we put a question to the first man we meet in the street, and ask him if States 'exist*. He will look at us with surprise, wondering if we want to make a fool of him. But if we ask him to tell us what States 'are', unless he has been brought up on books and studies which provide him with a ready-made definition, he will find it difficult to explain briefly and clearly the meaning of the word, which is certainly one fairly familiar to him, and which he may come across or use every day, in talking, in business, in every kind of activity in which he may be engaged, both as a man and as a citizen. 2. Let us try to examine the meaning of the word as used in common parlance and known to us at first hand. A moment's thought will suggest the following outstanding points: (a) The word 'State' is generally associated with the notion of a force outside the individual will, superior to it, and able not only to issue commands but to enforce them. . (6) The fact that the notion of the State is associated with that of an imperative and superior force, which is attached to its commands and not to others, does not imply that this force is inscrutable and arbitrary. On the contrary, the notion of the State is closely associated with that of a power exercised in accordance with definite procedure, with rules that are known, or at any rate knowable.

2

INTRODUCTION

(c) The recognition of this power as exercised according to definite rules implies the recognition of an obligation to submit to these rules. The word 'State' in this sense provides a term of reference for these obligations. It refers not merely to a force which exists in actual fact, or to a power which makes itself felt in accordance with certain rules, but to an authority which is recognized as warranted and justified in practice. 3. These three points correspond to three different possible ways of approaching the problem of the State, and all three views have been put forward and upheld during the long process of reflecting upon the problem. When we consider the existence of the State as a purely factual question, it is the importance of force that first attracts our exclusive attention. The State 'exists' in as far as a force exists which bears its name. The relations of the State with individuals as well as those between States are relations of force. The existence of the State is commonly and naively represented in the shape of the policeman and the tax-collector, who watch over and ensure the peaceful living together of men. It is also represented in the shape of big armies, of powerful guns, and fortresses, set up to protect and defend that coexistence against external dangers arising from the potential threat of the 'force' of other States. 4. On the other hand, when we consider the manner in which this force, which is taken to be essential to the State, is displayed; when we observe the peculiar and significant fact that this force, in order to be attributed to the State, can never, or ought never, to be arbitrary force; then the State tends to appear as a collection of rules and regulations which not only control the coexistence of individuals, but are the very condition of the existence of the State itself. Force is no longer mere force: it is a 'qualified' force, a force displayed in a regular and uniform manner. It is exercised 'in the name of certain rules and regulations, of those very rules laid down by the State which constitute its special responsibility. ^Thus the notion of law appears to be closely associated with that of the State; but the word 'law' is here used in a quite different sense from that in which it is used when we speak of physical laws, of the so-called 'laws of nature'. It is not a question of purely factual uniformities and regularities, independent of man's will. These 'laws' are made by

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