Laski: Law and the State

LAW AND THE STATE

Harold J. Laski

Studies in Law and Politics

Yale University Press, 1932

chapt. XI, p. 237

[**197] Every state in the modern world is a territorial community in the name of which some agent or agents exercise sovereignty. By sovereignty is meant the legal competence to issue orders without a need to refer to a higher authority. The orders so issued constitute law, and are binding upon all who come within their jurisdiction.

In some such way as this the modem analytical jurist defines die nature of the state for the purposes of his science. Any explanation of its character is, most usefully, of two kinds. It can be, on the one hand, historical. It is possible to trace the way in which the Respublica Christiana [Christian Commonwealth] of the Middle Ages was slowly transformed into the complex of states we know in the modem world, and to show how the demands of unity and order gradually and painfully resulted in the attribution to them of the quality we call sovereignty. Such an explanation has the value of enabling us to see that the modem state is not, either in its form or substance, anything permanent or eternal: it is simply a moment of historical time, obviously born of special needs, and, equally obviously, destined to transformation either when it has ceased to satisfy those needs or when the needs themselves have passed away. The historical study of the state has the great merit of showing us the essentially pragmatic character of all theories about its nature. They are born of the need to satisfy a particular environment, and they die when they cease to render that satisfaction.

Alternatively, the jurist’s explanation of the state may dwell in [**198] the realm of formal logic. Making entire abstraction of the facts of any given state, it may seek the quintessential form of which all states are more or less imperfect expressions. It may then say that where there is an authority which fixes the norms of all law, and beyond which, in the search for the origin of such norms, we cannot go, there we have a sovereign state. The content of the norms, or of the orders begotten legally of them, is here irrelevant. Neither political nor moral considerations have any bearing upon this aspect of statehood. We have not to consider the goodness or badness, the wisdom or unwisdom, of the norms; no problem arises for the jurist save whether the authority which has fixed them is or is not competent formally to do so, whether it is possible to go beyond that authority to one upon which it depends for its existence. If there is formal competence, if, further, that authority is ultimate in what may be termed the hierarchy of powers, it constitutes a sovereign state.

From a formal point of view, it is clear that the juristic theory of the state explains why commands which are issued in the name of the state are binding upon all who come within its jurisdiction. For it makes the ultimate source of reference from which all legal power to command is derived. But it is important to remember what the theory does not do. It explains how a complex of personalities, both corporate and individual, is geared into unity by subordinating them to a single point in the community. It does not explain whether the method by which this result is attained is good or whether its consequences are beneficial. It defines law as he will of the state without regard to the content of law. It makes that will binding upon the subjects of the state without regard either to what it does or to its power to get itself applied. It does not explain why the state has acted in a particular way, or whether it should have acted in a particular way. It is merely a descriptive technique of competence, independent of the actual world that competence will have to encounter. It is entirely fair, from this angle, to speak of the will of the state as absolute, indivisible, and inalienable. For were it none of these things, it would, in terms of its definitions, cease to be sovereign. Any formal juristic theory of the state conceived in this way must necessarily dwell in a pure world of categories. It is independent of the day-to-day stresses and strains which states have to encounter. The ideal state of formal jurisprudence need not consider public opinion, the wills of other [**199] states, the impact upon itself of internal and competing powers, ethical right, or political wisdom. Within the structure of the community of which it is the supreme expression, life is lived in terms of categories which it alone can make or alter. It determines the life of all other wills because it alone makes the principles of behaviour to which they must conform. For their law is conceived in terms of its law, since rules of conduct hostile to its law are illegal in the precise degree in which they depart from it. We are, indeed, entitled to think of them as valid only by reason of state permission, since the possibility that the state may deny them renders their right to be an exercise always in the conditional mood. The state giveth, and the state taketh away; whether we shall add the wonted blessing depends very largely upon our political philosophy.

In terms of its axioms, formal jurisprudence is completely justified in the whole of its procedure; in terms of its axioms, neither its method nor its results can be denied. By its own inherent logic, all that it makes law is necessarily legal, all in conflict with it is necessarily illegal; for it could not continue its sovereignty on any other terms. But a philosophy of the state can never rest satisfied with the axioms of formal jurisprudence. It must ask why they have been assumed, and what they do as a consequence of their adoption. It must seek a bridge between the purely logical world of ideal concepts, in which alone the juristic theory of the state dwells, and the actual world about us, in which the states that we know have to perform their function. It needs to know,

accordingly, what that function is, and, independently of the juristic theory, to devise an institutional pattern which seems most likely to enable it to be performed to the maximum possible advantage. When the juristic theory is analysed from this angle, its nature and validity begin to assume a much more questionable form.

Let us begin by remembering two things. Every state, from the legal angle, is divisible into a body of persons issuing orders, and a body of persons receiving them and, presumably, acting upon them. The latter encounter the state always through its agents. It cannot act upon them except through its agents. For them, the [**200] state itself is an abstraction in the name of which those agents are entitled to speak. They make its will for the subjects of the state, in whom, of course, where the state is a Rechtsstaat, they are themselves included. Save through them, the state has no means of declaring its will. It is simply a category of description, a method of attributing formal competence of a specially majestic kind to certain persons and not to other persons. There is nothing about the state, in this context, which enables us to assume that it has special virtues or special wisdom, or an inherent right (apart from a formal legal right) to be obeyed. Its sovereignty is a method of conferring formal power upon men to whom functions of a special kind have been entrusted.

The way in which this kind of power developed is well known. When the western world split up, at the Reformation, into a series of communities no longer recognizing either a single religious head, as in the Pope, or a vague and tenuous overlordship, as in the Emperor, religious conflict made necessary the unification of power within the state if it was to survive the consequences of that conflict. Sometimes the solution took the form of assuming that the decisions for making unity, and, therefore, order, should rest with the prince who became, as with Henry VIII and Elizabeth I, the supreme head of the church; sometimes the unity was made by recognizing papal power as invested with a right to command Roman Catholics, but, also, investing another authority with the right to determine, as in France under the Bourbons, the limits within which that power should be exercised. The Reformation, in fact, transferred to a person, whether individual or institutional, in each of the communities into which Europe was broken up the power to determine the rights of groups and persons in the interests of peace and order. Continuous warfare made men feel that peace was the supreme good; uncertainty whether the claim of a group or person was valid or not seemed to involve the risk of further conflict. To set the monarch, or, as in England, the King in Parliament, above all other persons in the community was a simple way of resolving what rights those persons should possess. None of them, legally, could appeal to a will beyond that of the King, or his analogue. They had, therefore, in the legal realm no alternative but obedience to his decision. The supremacy of the state was, internally, the necessary consequence of the breakdown of religious unity. Its right to determine the boundaries of power in [**201] any association or person within the community over which it presided followed directly from that supremacy. Once there was no appeal to Rome, there was no power which could compete with the authority of the state. But it must be remembered, once more, that in all these relationships, the state acted always through agents: it was, for its subjects, Philip in Spain, Louis in France, Cromwell and his major-generals, or William and his Parliaments in England. Their right to issue orders was the expression of a relational context between them and other persons so placed as to be unable, by legal means, to go beyond them. What is termed the personality of the state was, in point of fact, always the personality of the government of the state. The distinction between state and government was nothing more than the means of obtaining a sanction for the norms imposed by the government upon the community.

The international situation greatly helped this development. The growth of commerce meant that, internally, the interests of peace were paramount; and the government of the state, as the authority charged with the preservation of order, enormously increased its authority as a consequence. Once commerce passed, in fact, from the local to the national sphere, the government was able, in the name of the state, to make regulations which, in the interest of the whole community, could be regarded as superseding merely local advantage. And where war was deemed necessary for commercial advantage, obviously it was to the economic benefit of the interests affected to strengthen the authority of the state, therefore, also, of government, for their own sake. By the middle of the seventeenth century, government and state had become so identified that even dynastic wars contributed to the interest of the state’s authority. Its power grew by leaps and bounds simply because the purposes it represented were attained by its increasing assumption of authority.

That this is the history of its development is brought out clearly by the history of political philosophy since the Reformation. The classical theory of the state, as it passes from Luther to Bodin, thence to Hobbes and Rousseau, and ultimately to Hegel and his disciples, is essentially the history of an axiom and its justification. Luther vindicated the right of the secular power to be, independently of ecclesiastical trammels. Bodin and Hobbes, writing, each of them, in an age when the power of the [**202] government to speak in the name of the state was challenged, insisted that anything less than a sovereign state meant anarchy, because there was then no final source of certain reference for the norms by which men’s behaviour is regulated. Both Bodin and Hobbes wrote in an age when the monarchical principle seemed to most thinkers by all odds the most satisfactory. It was a principle Rousseau could not accept. But the real upshot of his work was, by making the state the repository of the general will, to give to its agents a moral sanction they could hardly have otherwise claimed. For his denial that representative government is valid was omitted from the synthesis built in his name; and once it could be stated that the people could act only through its elected representatives, a penumbra of prestige was added to their activity which could in no other manner have been obtained. The inference, in fact, was drawn by Hegel who made the state, and, inferentially, the agents who act in its name, not only the culmination of the social process, but the embodiment of the highest purpose humanity could know. Thenceforward, to challenge the state was not merely to challenge the source of peace and order, but to challenge, also, that in which the highest end of man was incarnate; and since the state could be challenged effectively only by a challenge to its government- since the latter only disposed of the state’s sovereignty — the moral beatification of government seemed to follow from the function it performed as the supreme agent of the state purpose.

III

The problem of the juristic philosopher, in short, is the difficult one of validating his purely formal analysis of categories for the actual world about us. Institutions justify themselves, not by their position in a logical hierarchy, and the claims that position formally entities them to make, but by their power to satisfy effective demand. Once they fail in this, new institutions become necessary, and a new hierarchy is developed to make the logical hierarchy more adequate to our needs. And this, in fact, is what is happening today. Social changes, on the one hand, and scientific development, on the other, have operated to revolutionize the position of government both in the national state and in the international community. An adequate legal philosophy, that is to say, must not only explain the legal right of a government to [**203] obedience, but its ethical right as well. It must not only do this. It must explain, also, how the sovereignty of the state can be reconciled with a world in which the hinterland between states is organized, must show, therefore, how a state which is the subject of a vast range of determinate obligations can remain subject to no will save its own, and yet remain under compulsion to fulfil its obligations. Increasingly, the inadequacy of the classical theory of the state to express the needs of our time is evident to the new generation. Duguit in France, Kelsen in Vienna, Krabbe in Holland are only the most eminent of those who, in various ways, have admitted its bankruptcy by seeking to built it anew on different foundations. None of the new answers maybe adequate; but all of them represent a recognition that a purely formal jurisprudence which seeks to explain the state as justified to its members simply as the highest unity-making factor we know is without meaning for the problems of our time.

This can, I think, be demonstrated by an examination of the axioms on which formal jurisprudence has been constructed. Those axioms arose out of a supreme need for order which had to be established in a way which satisfied a set of given social conditions. The supremacy of the state was achieved because it enabled those who actually held power, those, also, whose tenure of power was accepted, to exert authority in a formal way. Their exercise of authority satisfied their subjects at any rate to the degree that, broadly speaking, was necessary to secure obedience. But power can only be retained upon the saving condition that its exercise continues to satisfy its subjects. Men who are conscious of wants ask themselves whether attention is paid to their wants. They scrutinize the forms of the state in order to see whether those forms are such as to offer them the maximum possible certainty that their wants will be satisfied by them. And, in the long run, the forms are judged by the opinion built out of their actual operation.

Law apart, every community is a congeries of men and associations seeking the satisfaction of wants. Not all of them are attainable; some, at least, are incompatible with each other. Some, by their nature, demand the imposition of uniform rules of behaviour either upon all members of the community or upon all members who fall within a particular category. The desire, for instance, for security of the person means the imposition upon all members of the community of the rule that murder is forbidden [**204] and will be punished. A group within the community is charged with the application of that rule. Men generally obey the orders issued for the prevention of murder because they are satisfied by the consequences of that prevention. It is clear that if the group entrusted with the application of the rule were unable to secure its observance, other men would be entrusted with the task so long a men continued to regard security of the person as a desirable object of attainment.

It is in these terms that we must approach the position of the state in society. It is entrusted with power in order that it may satisfy, or organize the satisfaction of, the wants of men on the largest possible scale. It acts through a body of agents, the government, to that end and no other end. It does not possess power for the sake of power; it does not even possess power for the order which power enables it to enforce, since order is not the highest good, but merely a means to the attainment of goods regarded as higher than itself. For, clearly, a savage despot might establish a régime in which order prevailed, but from which freedom and justice and honourable dealings between men were all absent. Order, in that event, would be akin to the annihilation of personality and could hardly be regarded as an end. Power, there- fore, is not good in itself; a government which exercises power is not, either, good in itself. Its goodness, or badness, is a function of what it does. Its nature is dependent upon the results it secures by its operations.

Results for whom? I see no answer to this question capable, at least, of ethical justification, except the answer that it must be results for every member of the community. For the community is a body of individuals, and goodness for the community must mean goodness for those individuals or it means nothing; since, if those individuals are abstracted, no community is left And since the humanity of men is dependent upon their recognition as ends in themselves, goodness for the community must mean goodness for me as well as for another; for, otherwise, I cease to be an end in myself and become merely a means to the ends of others, which, being the definition of slavery, is a denial of my humanity and a refusal to recognize my status as a member of the community. The state, therefore, as it operates, must treat my claim to good as equal to that of another unless it shows that differentiation in its treatment of me involves some good in which my good is involved. [**205]

The norms of law, therefore, that are established by the state - that is, established or maintained by the government which is exercising sovereignty in its name — are norms the substance of which is of the first importance for the validation of its claim to my obedience. For its demand that I should obey any given norm clearly depends, at least in part, on my recognition that my good is involved in that obedience. Mostly, without doubt, I shall obey its demand whatever its substance, since the comparison between its power and my own leaves me little alternative. But the norms it establishes may arouse dissent not only in me but also, it may be, in a considerable number of persons like-minded with myself. I may dissent, for instance, as a member of the Roman Catholic Church in the Kulturkampf; or I may dissent as a member of the South Wales Miners’ Federation in the munitions strike of 1915; or I may dissent as a citizen who, in Russia during 1917, accepts the principles of Revolutionary Communism. In these cases the formal capacity of government to make law is challenged by a refusal to accept the law it seeks to make. In crucial instances, that formal capacity remains purely formal; an attempt by the government to validate it in the event is met by a resistance which changes the government of the state. The unity of the state, of, that is, the legal system summarized in its power, may remain; but it remains on the condition that it is used for different purposes.

From this I draw two inferences. In the first place I infer that the validation of law is not a matter of the source from which it emanates, but of the acceptance which it secures; and, in the second place, I infer that it is the part of wisdom so to organize the ultimate law-making body of the state — that is, the government - that a maximum consent to its operations is assured before it embarks upon them. Consent to law is not merely a function of the source of law. It is doubtless true that innumerable men obey the state simply because the government which issues an order is entitled in law to speak in its name. But analysis would, I think, show that most of such obedience is the product of habit or inertia, and that it is never creative. The obedience that counts is the obedience of an actively consenting mind; and such a mind is concerned less with the source of law than with what the law proposes to do. This is always evident when the will of government is opposed by some powerful will which dissents from its conclusions. Governments, at the margin, are rarely able to get [**206] their way if a considerable body of persons announce their refusal to accept their proposals. They can then only exercise their sovereignty at the risk of losing it. The fact is that no government represents the whole community in a way that ensures automatic acceptance of its will. What it represents is an outlook which, because it temporarily possesses effective power, is legally entitled to use the machinery of the state for purposes it deems good. If that outlook conflicts with the outlook of other members of the community, an attempt at its application may meet an attitude which varies from secret evasion, thought passive resistance, to active rebellion. Law is made effective, that is to say, through the fact of consent in those to whom it applies. There are limits to effective legal action. This is another way of saying that the unity the state is legally entitled to make, it cannot practically make except upon conditions. There is thus a serious disparity between the requirements of formal law and the necessities which actual law encounters.

It is easy to see why this is the case. Every community has groups of citizens to whom certain things are fundamental. They will fight for the preservation of those things, and any attempt to invade them by the sovereign power will result in a challenge to the sovereign power. There are English men, I think, who would resist an attempt to abolish the enfranchisement of the working class, or the right to industrial combination, or the re-establishment of limitations upon freedom of religious belief. Legally, the King in Parliament could do any of these things; politically, by doing so, it would probably cease to be the King in Parliament. Legally, I think, the King in Parliament has the formal right to resume an active control of the affairs of the Dominions; politically it must, as in the Declaration of 1926, treat them as equal and independent states individually entitled to make up their own minds about their own problems, capable, of course, of being especially influenced by the opinion of the British government, but never subject to its legal control. Citizens, in a word, expect from government certain standards of conduct; and it lives by its ability to satisfy those standards. Its legal capacity is always set in the perspective of the limitations those standards impose. They determine its will since, when they are set at nought, it ceases to have a will because it 15 driven to dissolution by refusal of allegiance.

Formal law makes this allegiance single; the facts make it [**207] multiple. Allegiance goes, not with the legal claim of the state, but with the conduct of the organization which demands it. A man may be with his church and against the state, with his trade union, or his party, if the facts seem to him to warrant that answer to the call. He does not recognize an a priori hierarchy of claims, which receive their ultimate expression in the state. Law as form is psychologically neutral to him; what gives it the validity of right is its content upon a particular occasion where conflict has arisen.

He does not assume in actual life that the state is entitled to his loyalty because, as the state, it is acting in his interest. He examines what is done in its name and makes a judgement upon the moral quality of the order he is asked to obey. He knows, that is, that legal power, as such, is at every instant subject to perversion. No government is, for him, entitled to permanent credit merely because it is a government. It is liable to error, to perversion, to deliberate misuse of power. It may, consciously or unconsciously, identify the interest of a class or a group or a party with the interest of the community, and legislate upon the basis of that supposed identity. It may do this in good faith; it may do this, also, in bad faith. No government can be known from the simple fact that it is a government It can be known only from the character of its acts. Nothing is more clear historically than the fact that men judge that character as the acts impinge upon them, as they respond or fail to respond, to the expectations they have formed. Allegiance as a psychological and historic fact is always contingent. It becomes actual and effective in terms of the quality of law rather than of its source.

It is because of this that men have sought in every age institutional means of limiting the power of their governors. They have wished to define what law shall be used for, to what purposes alone its coercive authority shall be devoted. Constitutions, Bills of Rights, and the rest, are, after all, nothing more than ways of declaring that the ends of law make law valid, and not the mere source from which it emanates. It is because of this, also, that every age has seen a revival of the idea of natural law. That revival is nothing so much as an effort on the part of thinkers to recall the state to the purposes by which alone the exercise of authority can be justified. It is an announcement that positive law must run in the leading-strings of principle, that it is the thing it is seeking to establish which makes it binding upon those whose behaviour it is [**208] to control. Men struggle, in fact, against being imprisoned in the categories of formal law because they realize that unfettered authority as such cannot give rise to an obligation which, a priori, is entitled to claim allegiance. The very ideal of a Rechtsstaat is an effort to make the legal sovereign the subject of purposes outside itself. It is a denial that it can will what it pleases. It is an insistence that it is justified in willing only what satisfies the demands of those over whom it rules.

At this point, those who defend the classic theory of sovereignty, even in one or other of its contemporary attenuated forms, fall back upon a new line of defence.[1] They admit that the supreme power of the state is merely a description of capacity within the realm of formal law. They agree that such a view of sovereignty as formal law demands is politically inadequate and sociologically unsatisfactory. But they argue that its retention as a concept is necessary because society needs an organ formally entitled to resolve conflict between individuals and groups within itself. Unless there is to be anarchy in society, they say, there must be a highest power somewhere to which reference can be made where disagreement arises. ‘A political system’, said Madison in the Philadelphia Convention,[2] ‘which does not contain an effective provision for the peaceable solution of all controversies arising within itself, would be a Government in name only’. There must, therefore, be some body within the community which, when controversy comes, can say the last word. Or there may even be more than one body, each of which, as in a federal system, is final in the particular sphere in which it presides. Only so can we safeguard ourselves against the danger of particularism.

I am unable to see that the argument is a valid one, and I do not believe that is exponents have adequately examined the presuppositions upon which it rests. In so far as it is an insistence that the state must necessarily perform the chief part in co-ordinating social activities, and that it cannot accept dictation from any other authority in performing that function, it merely repeats the argument of formal jurisprudence; and, as I have here sought to show, so long as it remains within that sphere, it is impossible to [**209] controvert the position it assumes from the very nature of the axioms upon which it is founded.

But its exponents go further than this: they claim that its solutions have a validity other than purely formal because, somehow, the state is a safeguard against particularistic interests. It is acting in the name of the whole community. It makes peace possible. It is free from the partial views which permeate — inevitably — the attitude of groups and individuals lesser than itself. The whole of this argument seems to me fallacious in so far as it seeks to make these qualities necessary and a priori attributes of the state. It omits certain relevant facts of the highest importance from the view it seeks to establish. It forgets, first, that the state of which it speaks is an abstraction; that what we have to examine are the acts of the government which speaks in its name. We cannot a priori say that the decision of this government, in any given instance, is in the interest of the whole community until we know what the content of the decision is. That judgement, obviously, must be pronounced by those who are to be affected by it. To say that they must accept it because its rejection imperils peace is to argue that order is, and always must be, the highest good. I do not see that it is possible to take this view on any scrutiny of historical facts. I do not find it possible to blame, for example, those who resisted Charles I in 1642, or the men who revolted in France in 1789, or in Russia in March of 1917. No government acts in the name of the community save in a formal sense until the opinion of the community upon its action is known. Governments have exercised the sovereign power for particularistic ends in the past, and they will, doubtless, do so again in the future. When Louis XIV revoked the Edict of Nantes his action was dictated by the view that the interest of France demanded a single pattern of religious outlook; his action, we need not doubt, was both sincere and built upon high motives. But I do not see why the Huguenots were not, equally sincerely and from high motives, entitled to resist his decision. The order he sought to establish was, for them, the abrogation of all they held most dear; and their judgement, as with [the Calvinist theologian] Jurieu, that this was a case where acquiescence in the will of the state merely because it was the will of the state was impossible, seems to me a justified one.

I entirely agree with the view that the cases where men or [**210] associations oppose the will of the state should always be cases of last instance; I do not need to be convinced that peace is almost always better than conflict But it is not so always. Because it is not so always legal claims are merely legal, and, as such, have no necessary connection with justice. Every sovereign act of the state is always, equally with the judgement of every other element in society, someone’s act, whether of individual or group. It may be made with good will; it may be made with bad will. It has no inherent virtue as a sovereign act It draws its quality from its consequences. Both morally and politically, it is neutral save in the context of those consequences. Any theory of sovereignty which would make it more than this suffers from the fallacy which identifies a maintenance of the power of the state with the preservation of general social well-being. There is no way of knowing whether that correspondence is justified until we know what the state actually does.

Now the state, as I have pointed out, exists to satisfy the largest possible volume of demand in the community. It co-ordinates the bewildering mass of activities there to secure the greatest measure of common satisfaction. That is the justification of its legal authority, the sole ground upon which coercive powers are entrusted to it, and to no other group of persons within the community. The question of whether it fulfils its function adequately is obviously incapable of an a priori answer. Some of those who have sought to give the juristic theory of sovereignty a place beyond its formal sphere have seen this. They have therefore ,wished to transfer the argument to the way in which the sovereign power is organized. Obviously, if it is to fulfil its task adequately, it must be organized to that end. Let us so organize it, and it can then claim an authority to which, otherwise, it could not pretend.

The argument is an important one, and it must be developed in some little detail if we are properly to appreciate its significance. Every community is so complex in its nature that, except for the formal purposes of law, it cannot be reduced to the unity of a single common good. There are interests in it which are permanently antithetic, those, for instance, of a Roman Catholic to whom the propositions of the Syllabus of 1864 are ultimate truth, and those of a Martian Communist who discovers ultimate truth in the pronouncements of the Third International. 1f there is never a unity of common good, no organ in the society can do [**211] more than partially express the common goods upon which men agree. We make unities; we can never make unity itself. What we attain, at best, is never total satisfaction of demands, but partial satisfaction, sufficient, at best, to preserve a working compromise which men accept as less inadequate than any other to which they can lay their hand. Now the state which has power to co-ordinate the demands that are made needs, if it is to be successful, the fullest possible knowledge of those demands. It must not, so to say, either ignore them or legislate for them. It must legislate through them. The organ which exercises its sovereignty must be so constituted as to represent not some part, or aspect, of the demands to be satisfied, but the largest possible area of those demands. Society, if I may so phrase it, is federal in its nature; and the authority, accordingly, that is to co-ordinate its activities, must correspond in structure to that federal nature.

We have, therefore, to take steps to see that the decisions made by the state take full account of the interests that will be affected by those decisions. Whether the interest affected is individual, association, or territorial unit, it must be adequately and effectively represented in the making of the sovereign will. Wherever there is a real interest in the community, means must be found for eliciting the will of that interest before it is presented with a decision about itself by which the contours of its life will be changed. The organization of the sovereign power, that is to say, must, if it is to be adequate, be immensely more complex than in the past It cannot legislate about trade unions or churches being compelled so to consult trade unions or churches that their will is fully known to it before it makes its solution of the problem before it. The sovereign power must be compelled, a priori, to make a comprehensive effort to embody the wills of those over whom it rules in its will before it is entitled to act upon them. Anything less than this is not truly a &ch1sstaat for anything less than this has not truly sought that amplitude of knowledge without which, in any real way, demand cannot be satisfied at its maximum. Anything less than this means a failure to take into account the conditions of that successful co-ordination by which alone the authority of the state can hope for justification. Only in the degree that this is attempted can the state be called true to the law of its being.

I have elsewhere attempted to describe the kind of institutional pattern to which such a sovereign power must conform.[3] Here I [**212] can only say that, as a pattern, it seeks to build into the form of the state that reality outside by which the success of law-making is determined. Those who seek to retain the classic theory of sovereignty in new form are ready, it appears, to accept the view that the organization of its instruments stands in need of thoroughgoing revision.[4] They realize that a legal claim cannot hope for the validation of fact except by genuinely meeting the needs it encounters. They see that the historic formulae of representative government — whether in its parliamentary or congressional form — are no longer adequate to the kind of society in which we live. But they make, I think, the mistake of assuming that the problem is solved when a reconstruction of the pattern has taken place, however adequate that reconstruction may be. They believe that there is some mechanism for making sovereignty an expression of what Rousseau termed the general will of the community.

That belief, I suggest, is profoundly mistaken for the simple reason that there is no general will in the community at all. We never encounter any will that can be denominated good by definition. We do not, indeed, ever encounter in the community a will the unity of which is effectively comparable to the unity of will in a human being. A number of minds does not become one mind any more than a wood is a tree or a hive a bee. The will of the state is the will of certain persons exercising certain powers. This will cannot be termed ‘general’ in the sense that Rousseau gave it, until we know what it is seeking to do and the motives which underlie its effort. Its value becomes attached to it as we meet its nature and declare its character: it is not simply a priori there. The will of the state may be made to approach ‘generality’ the better it is organized for that end. But organization as such can never assure it of generality until we know the purpose to which it proposes to devote its powers. It is not even decisive that a state should announce its will in full conformity with the terms of the constitution. For before we could declare that it was entitled to obedience, we should need to know both the character of the constitution, on the one hand, and the purpose to which, on the particular occasion, it was being devoted upon the other.

No theory, in fact, which seeks to make the transference from state to government can fail to admit the possible perversion of power. And no theory which scrutinizes the historical process to [**213] discover the conditions under which power is usually perverted can be satisfied to declare the inherent primacy of the state will in any other than a formal sense until steps have been taken to erect safeguards against those condition of perversion. If, as I have argued, for instance, each member of the state has an equal claim with others to well-being, conditions which are historically incompatible with the realization of that equal claim must be removed simply because their presence alters the evidence of state action to the advantage of some special section of the community. The state becomes an instrument of that section. It has been, in the past, the instrument of the aristocracy, whether of race or birth, of a particular religion, of a special class. When the state undertakes to enforce its interpretation of social need, the validity of that interpretation depends very largely upon the influences to which those who make it are interpreted. In a state, for example, divided; like the modern capitalist state, into a small number of rich and a large number of poor, that unequal distribution of wealth inevitably introduces bias into the character of state action. Mutatis mutandis, the same is true of a community like Russia. There, the demands the state proposes to satisfy are the demands which the Bolshevik Party believe it is desirable to satisfy. That Party has identified its conception of good with the total well-being of the community. Its interpretation may be made from the highest motives; but it is a biased interpretation, which ignores the factor of consent and assumes that power as such creates right. I cannot accept that view. I should agree that when a constitution is built upon the wants of men and operates so as continuously to satisfy those wants, it is entitled to obedience. But this raises the questions: (a) What is a good constitution? (b) who decides whether it is good? (c) and who decides whether it is good in operation? My own view is clear that these questions can only be answered in terms of the judgement of individual citizens. They are the persons who feel the results of state action in their lives; they, therefore, are the only persons who are entitled to pronounce upon its quality. They make the law valid by consenting to it They consent to it as it satisfies their desires. A good law, therefore, is a law which has, as its result, the maximum possible satisfaction of desire; and no law save a good law is, except in a formal sense, entitled to obedience as such. This view, of course, involves an [**214] empirico-historical theory of politics. It means that a constitution is not likely to be good unless men equally co-operate in making it, and working it, for the simple reason that, historically, classes and persons excluded from a share in power are always excluded from a share in benefit Because, therefore, each citizen is an end in himself, each citizen must know that his desires are so counted that, equally with other persons, he has a chance of self- realization. He is entitled to the conditions which assure him that his desires will be counted; and these conditions must be inherent in the fabric of any state which seeks to present itself as worthy of obedience. Where, alternatively, those conditions are absent, those for whom they are absent are en tided to deny that the state is the guardian of their interests; and that denial carries with it a tide to disobey.

I have termed this view the pluralistic theory of the state because it is rooted in a denial that any association of men in the community is inherently entitled to primacy over any other association. Neither legal authority nor width of declared purpose can give that primacy; tide to it depends always upon performance, and of that performance individuals are always the judge, because it is in the quality of their lives only that it is in fact measurable. It is objected that this is a doctrine of contingent anarchy, that no state worthy of the name can be satisfied with a view which leaves open the possibility of dissent from its will. Such a state, it is said, will be, in Madison’s phrase, ‘a Government in name only’. But the objection, after all, is purely formal. Ever since Hume showed that even the most despotic of governments is ultimately dependent upon public opinion, theories have been illegitimate which sought to confuse legal unity with moral unity. Pluralism is simply an explicit protest against that confusion. It is an attempt to recover the individual conscience as the only true source of a law which claims obedience from its subjects. It is a recognition that no jurisprudence can hope for adequacy which separates the idea of law from the idea of justice. It seeks the content of the latter conception in terms of the initial postulate that man is an end in himself and, therefore, entitled to the conditions which enable him to realize himself as an end; those conditions, where equally maintained for all, it equates with the idea of justice. It does not deny the need in society either for rules or for organizations to maintain those rules; but it does deny that such a need involves the [**215] concept of a sovereign state, or the attribution to that state of an inherent supremacy which enables it to dominate all other associations in the community. It insists that the right to make rules is always conditioned by the quality of the rules that are made.

To the critic who points out that someone must define the limits of authority in the individual and the group, that the sovereign state is merely a convenient hieroglyphic for this purpose, the pluralist has, L conceive, at least two answers. He can argue, first, that as a matter of history the function of definition is never wisely performed unless certain conditions are fulfilled, and, second, that once sovereignty is possessed by a state, those who exercise it in the name of the state always effect the transition from legal formality to moral right Every government claims that it is wrong to break the law. To the pluralist that judgement can only be made when it is known what law is broken and under what circum- stances. There are realms of conduct, both individual and collective, into which, under circumstances, he would deny that the state has a right to enter. He would not merely question the wisdom of its entry; he would go even farther and argue that the organization of the power under which government operates ought formally to deny the existence of such a right Seeking, also, the realization of the individual as an end, he would postulate the conditions upon which that realization depends as principles which the ultimate authority, however organized, must respect, which, also, under all circumstances it must be powerless to change. The state, for him, is an organization, like any other, charged with the performance of certain functions. He cannot see that the character of those functions entails the right to sovereignty. For realism compels him to admit that this is the entrustment of unlimited authority to ordinary and fallible men. There are no guarantees possible that such authority will be justly used. The need, consequently, is paramount to deny tide to its possession.

A right to sovereignty, moreover, does not exist for the sake of sovereignty; it exists for the ends sovereignty is to serve. A right to sovereignty must be correlative with the duty of fulfilling those ends. These, as I have said, are in their sum the maximum possible fulfilment of desires. The logical inference, therefore, from a right to sovereignty would be a duty so to organize and exercise the [**216] sovereign power as to secure the ends for which it exists. To argue .that the theory of auto-limitation [by the sovereign] fulfils this condition is to miss the point that a will bound only by itself cannot be conceived as objectively bound; for an obligation of a form of conduct which the body obliged can alter at will, and yet never chooses to alter, either suggests a power outside that body and controlling it (in which case it ceases to be sovereign), or suggests the subordination of the body to principles inherent in human personality of which the state will is then the subject.

These dialectical tangles are unsatisfactory. It is better to say quite simply that the idea of a sovereign state is at variance with the idea of law once that idea is conceived as related to a moral end. For any other conception of law makes it unconnected with reason or good except by its own choice; and would leave unexplained why that choice should be made. The action of a sovereign state binds as such without regard to whether that action fulfils the obligation to which the state is bound by its inherent character. The character of such a state proclaims not only in its inability to discriminate between right and wrong, but even a positive indifference between them. The sovereign state makes positive law; it does not make a law in which there is any inherent relation to justice. Such a positive law is merely an expression of power; power is morally neutral until its substance is examined. Since no state automatically wills that by which men ought to be bound, it is neither necessary nor desirable to accept is sovereign character. The state must derive its law from principles beyond itself, if the character of its policy is to have a morally valid claim upon the allegiance of men. In any other context, law is empty of all tide to consent save the naked assertion of its power to enforce obedience.

Nor must we omit the international aspect of the problem. The doctrine of the sovereign state becomes a theory of international law in two ways. On the one hand, by the rigorous logic of its primary assumptions, since law is the will of the state, it is compelled to insist that no rules of international relations have the force of law save as the state consents to them; on the other, most largely through the influence of Hegel, by its argument that the [**217] state is the ultimate embodiment of moral values, it assumes that international rules are valid only in so far as the state chooses to accept them for its purposes. Since the state is the ultimate and highest form that allegiance can take, it either denies altogether the existence of an international community which is above, or beyond, states; or it argues that while the mutual life of states may make such a community, its rules cannot be binding upon them since the interests each state protects in that international community are the highest it can know. To bind the will of the state, therefore, to an objective international law outside its own will is both mischievous and undesirable.

It is difficult to put in moderate terms the degree to which either aspect of this doctrine is undesirable. By making the self- preservation of the state the highest duty it can know, it insists that the state is bound by no rules which it does not regard as serviceable to that end. International law merely becomes a body of convenient doctrines which a state is free to reject or accept as it pleases. It is not bound by any agreements or treaties; it is not responsible for any wrong; there are no moral obligations governing its relations with other states. As an eminent exponent of this view has pointed out,[5] its logic demands that right and wrong be the outcome of the exercise of successful force, and victory in war is made the true judge of international controversy. I reject this view of the state claim in the international field upon exactly the same grounds as in the municipal. The sovereign state in international relations is a body of persons making decisions. They have the legal right to make those decisions; but nothing is, or can be, a priori known of the moral quality of the decisions made until we know their content. That a state refuses to fulfil a treaty it has signed makes it no more valid that it should refuse to accept its obligation than that a merchant should refuse to fulfil a contract he has freely made. That a state should make war without provocation no more makes that war just than that a man should commit an unprovoked murder. A treaty forced upon a defeated state against its will is no more right than a contract forced upon one of the parties to it under consent. The goodness or badness of law is independent of the parties to it, or of their power. It is a function of the substance of law, a judgement upon what some decision actually proposes to do. It is no more logical to allow a state both to make its own law and then judge its validity than it is [**218] to allow the private citizen to be judge of his own actions. Law must be objective to the state in the international, as it is objective to the individual in the municipal, field. Adequate international relationships are impossible if, on conflict, law is merely to mean the rule of the stronger. For that is exactly the divorce of law from justice which defeats the whole purpose law is intended to serve.

Nor is it true to say that international law finds its sanction in the sovereign will of states.[6] The recognition of a new state is not followed by an announcement from that state that it accepts the rules of international law; nor is it possible for the new state to pick and choose between them. To argue, as Oppenheim does, that a demand for recognition, by Communist Russia, for instance, is to be taken as an implicit acceptance of the binding force of international law is to introduce fiction of a peculiarly unedifying kind. The facts have to be explained very differently. What we are presented with is a system of states equal in the sense that each has an identical right to the protection of the law. That is a position inherent in the notion of states as sovereign; for, logically, once sovereignty is in question there can be no discussion of superior and inferior. But this right to equal protection of the law is obviously incompatible with the idea of law as merely a subjective state right which each state imposes on others if it will or can. Law here must mean an objective body of principles above all states, laying obligations upon them they have no legal alternative but to accept The very fact, indeed, of a need for recognition means that states cannot, in the international sphere, make or unmake law as they please. But the power to make or unmake law is what the formal theory of jurisprudence means by sovereignty, and if this power be absent in states it cannot be claimed that they are sovereign.

Or let us take a doctrine like the famous maxim pacta sunt servanda. The classic theory of sovereignty says that this rule is binding because states will to observe it, and they are equally free to refuse to will its observance if they so please. If we ask why states so will it as law we are told that it is because of the difficulties to which any other attitude would give rise. But that is an explanation which formal jurisprudence is not entitled to adopt. It can only say that the rule is binding independently of the will which accepts it, or the causes which make for acceptance. The will is in fact binding from its inherent nature. It is an objective norm of a legal order [**219] which must be postulated as underlying all states and providing them with the principles by which their life is lived. To say that states break the rule no more deprives it of its validity than the law against murder is rendered invalid because a man commits murder. Any other hypothesis, as Bluntschli saw long ago, would make international law not merely an inferior kind of contract, but one in which no agreement was ever binding when a state changed its mind, and in which, as he said, a change in the state’s will produced a change in the law. Such an outlook results in impossible contradictions. Jurisprudence must be subject, not less than other sciences, to the maxim that no more causes are to be predicted than are necessary to explain the phenomena. To make international law the creature of the sovereign state’s will is to pile the Pelion of fiction upon the Ossa of undemonstrable assumption to a degree that is intolerable.

The difficulties of the lawyer who insists that international law is merely the will of the state in the external field are by no means over even at this point The whole history of the practice of international arbitration is the history of the adoption by tribunals of rules of international law the source of which cannot, even by the wildest use of fiction, be found in the will of the state. Phrases that desire a decision to be made in accordance with ‘principles of justice’, or ‘considerations of equity’, or, again, ‘on the basis of respect for law’, all clearly indicate that the idea of law is, for international purposes, outside and not inside the state’s will. Nor, moreover, can one read the Statute of the Permanent Court of International Justice without seeing that its underlying assumption is the notion that the absence of a fixed rule must not mean a refusal to judge. The business of the Court is not to pronounce itself without jurisdiction, where the will of states is undiscoverable, but to make a suitable rule in terms of alternative sources which can only be explained as valid on the hypothesis of objective norms sanctioning inferences of the widest character in terms of the needs of an international legal order above individual states.[7]

Nor need we accept the view that only states can be the subjects of international law. The post-war world is littered with organizations which are certainly not subject states, but, equally certainly, are the subjects of international law. This is an antiquated view which flows from the assumptions of formal [**220] jurisprudence and not from the facts of international life. International law has to concern itself with the rights and duties of the League of Nations, of international unions, of the members of the British Commonwealth of Nations, of pirates, of rebels who are recognized as belligerents, none of whom possess the formal indicia of statehood. It is by no means inconceivable that, in the future, we shall see individuals recognized as possessing an international status, able, for instance, to sue a state that has done them wrong in an international court. International law is theoretically capable of laying rights and duties upon men as well as upon states; the present conception arises only from the way in which its foundations have been formulated and not from its inherent nature. For it is equally as valid to postulate the existence of an international community the character of whose law requires that every person who acts internationally shall be a subject of the law of that community as to postulate a society of states in which no persons save states shall be recognized as the subjects of rights and duties. The present system is a deposit of historic categories invented to explain a given body of facts. It is no more valid for all the facts we encounter, or all the needs we have to meet, than Euclidean geometry is valid for the total universe of geometry.

At this point, indeed, we can go farther. International law has been built upon the idea of the state as a legal personality the will of which embodies a will compounded from the separate wills of all its subjects. Now this view of the state is metaphorical only, since the state itself can act only through persons. When we take a community politically organized into a state the will of that state is the will of the person or persons entitled to act in its name. There is not a single will in any other sense than that of a legal capacity attaching to some persons and not to other persons. From the angle of an international community concerned to maintain law as the inherent expression of its ultimate nature the will of the state must be a will for that law; a will against it cannot be legal in any sense which is valid. For that would mean a right in the state to will the absence of law, to overthrow the system of jural relations in which it is necessarily involved by the fact of being a state. From this angle it must follow that legal supremacy belongs to the body of rules which make up international law, and that the rules of any other society are of lesser significance than these. The state, that is to say, is bound in the rules it makes by the superior rules of the [**221] international community to which it belongs. It cannot make and unmake them any more than the individual can make or unmake the law of the state of which he is a subject The personality of the state is, so to say, an inference from the fact that it is a part of the international community. It is a way of conferring legal capacity upon certain persons within a juridical community to enable them to formulate rules which have no validity if they conflict with the fundamental rules of the society in and through which its capacity arises. A state, therefore, cannot legally will what it pleases; it can only will what is consistent with the superior will of the international community. Its personality is a capacity in its rulers to act for that end, but for no other end.

From this, I infer the supremacy of international law over the law of any given individual state. I assume that a jurisprudence which seeks to be scientific has no alternative but to regard the community of states as what has been termed a civitas maxima, the law of which is primary over all other law.[8] States, in this conception, appear to me as provinces of this civitas maxima whose authority is derived from the rules discovered to be necessary for the maintenance of the common international life. Apart from this conception, J see no way of arriving at a body of axioms capable of explaining the relationship between states assumed to be equal in international intercourse. No state can have a legal right to enforce its will upon another state if both are sovereign; force in the international sphere can only be valid upon the assumption that there is a body of legal rules over and above both to which each equally conforms. A state is then entitled to force in order that the legal rules may be maintained. Any other view must assume ultimately that force makes law; that what is alone valid in the international sphere is the rule of the strongest which is in fact law. I have already rejected this view as incompatible with the facts, especially with the doctrine of recognition, in international relations. International law cannot be, as Hegel argued, merely an external municipal law, since it would then be changeable, as it is not, at the will of each individual state. It is not merely, as Austin suggested, a ‘positive morality’, since it is the rules of a society which, even if more loosely and feebly organized than the state, is, in Westlake’s phrase, ‘as necessary to human existence as the state itself’.[9] Right and wrong are notions relevant to the relationship between states, and such notions predicate the existence of a [**222] society of which those states are a part. But a society without law is inconceivable. The norms, therefore, of that society are the necessary rules of its intercourse for the realization of right and the avoidance of wrong. The universality of this international society presupposes the primacy of its norms over those of its parts. The state, therefore, is a subject of law which presides over its being and limits the nature of the objects it can seek to attain.

In the light of this conception let us return to the formal theory of law on its internal side. Law, it is maintained, is the will of the sovereign state; and the will of the sovereign state is law because it knows no superior. For jurisprudence, therefore, the content of law, the nature of the norms made by the state, is irrelevant. What it is concerned with is capacity to act, not what that capacity actually does. Any attempt to go beyond this view belongs not to the field of jurisprudence, but to politics, or morals, or psychology. No questions in these realms can, it is held, affect the validity of the formal conceptions of law. It is, indeed, even claimed that this methodology will have the desirable result of removing confusion from political theory.

I suggest that this is an entirely mistaken point of view. Were the categories of formal law axiomatic in the sense of being inescapably necessary to the structure of a scientific jurisprudence the problems they involve might assume a different character. But, in fact, they have an origin which is meaningless apart from a system of special historic conditions in Western Europe, and they only partially summarize those conditions. They make the construction of a philosophy of law impossible because they refuse to consider the relation of law to the totality of circumstances under which it must operate; they omit from their equations all the problems to answer which it is in fact necessary to construct a science of law. They refuse to consider the problems of conflict and valuation. They see no meaning in the grave issues which arise from the choice of a point of departure, and the application to life of its results. The validity of their results, therefore, holds only of a static world in which there are no stresses and strains with consequences which exist and alter life. If ethical conceptions have altered the law, if economic change has meant its adjustment, law [**223] cannot neglect either ethics or economic change. It is the static character of the formal theory of sovereignty which explains its helplessness before the phenomena of international law; these it can only resume by the invocation of fictions utterly unconnected with reality. The formal theory, indeed, is like the relation between the ceremonial and the operative parts of the British Constitution. The King may ride in the carriage, but it is the Prime Minister on the pavement who effectively makes the decision. A theory of the state which emphasizes formality at the expense of substance is not likely to possess final value. It abstracts the legal system from the context in which alone its meaning can be found.

Formal jurisprudence, therefore, is an answer to the problems of power existing at any given time; and even to that it is only a partial answer. The categories it employs are those which enabled effective demand to be satisfied roughly since the Reformation; but there is no sort of certainty that they will continue to provide that satisfaction. The new facts of a world order both in the legal and in the economic sphere are making our political conceptions rapidly obsolete for the purposes they have to fulfil; and formal jurisprudence has been built by its makers in terms of those conceptions. Men live to satisfy demands, and they recognize as valid only the institutions capable of their effective satisfaction. Our system was constructed, by men like Bodin and Hobbes, and Hegel, at a period when the hinterland between states was not only not organized but was not unnaturally deemed incapable of organization. Our whole theory of the state has accordingly been conceived upon the assumption that it was the final form of institutional pattern, and even a body like the League of Nations was constructed by men faithful, in the main, to that ideal.

The facts, I suggest, have outgrown this view, and the developments require the construction of a new juristic edifice. The institutional pattern we need for an adequate theory of politics must take regard to the demands which require satisfaction and the way in which that satisfaction is to be attained. Here, surely, the unity we have to consider can only be properly understood in terms of the universe of facts to which it is relevant. If miners in England demand an adequate wage, it is the international coal problem and not the national that we must seek to compass. Stable financial conditions in London are a function of Chicago and Calcutta, of Berlin and Tokyo. These interrelations [**224] have to be organized in order that we may render satisfaction to those who live by their results; and the inference that must be drawn here from is the need for a political philosophy, not in terms of the nation-state as the final source of unity but of a cosmopolitan order in which the nation state is being rapidly reduced by the facts to the position of an uneasy and unsatisfactory province. The solutions made by the law-making body in any given state will only work in even the national sphere if they fit the facts of this cosmopolitan order. They have no assurance of adequacy save as they are built upon the working consent of at least its major part.

The inference from this is, I think, of supreme importance for a working theory of law. The epoch of Grotius, so to say, is drawing to a close. Instead of building up the conceptions of international law from the relation of states one to another, we shall, in the future, have to built up national law as a system of inferences from the rules of an international law far wider in its incidence than national law can claim to be. It is not likely, in this new world, that any state will have, even formally, ultimate powers: it will be much more akin to the province of a federation, having authority over a defined sphere, but finding that its powers beyond that sphere are strictly limited. England, for instance, may well discover that while it may prescribe the penalties for murder, it cannot control the hours of work for miners; that while it may make its own traffic regulations, it cannot settle the scale of its tariffs. The process of government, in a word, has escaped from the categories in which the nation-state sought to imprison it. Some part of its functions, at least, is obviously destined to transference to a new authority by whose commands the nation-state will be bound. It will lack, from the very nature of the cosmopolitan order, the power to make final decisions in any sphere save that allotted to it by the needs of that order. It will fail to correspond to the formulae of classical jurisprudence, and new formulae will be developed more adequate to the needs jurisprudence must meet.

This indicates, I venture to think, that the approach to law cannot usefully be made in any terms which postulate the state as its ultimate source. Law is the operative satisfaction of effective demand, and its sources are as varied as life itself. The state is the organ through which the government registers the fact that some given demand has secured a factual title to satisfaction: it is an announcement that behind this given demand there lies, [**225] prospectively, the coercive power of society. But, clearly, the state is no more than the form such registration now assumes. There is no a priori necessity that it should assume this particular form and no other form. That depends upon the character of social organization at the time when some effective demand searches for satisfaction. And the value of approaching the problem from this angle is that we are not compelled by our definition to put the orders of the government into a category different from the orders of other organizations. We learn to see them, as we ought to see them, as species of a wider genus. Any association which issues orders to its members makes law for them which differs in degree rather than kind from the laws made in the name of the state. The power, also, of other associations is a power it is difficult to differentiate, again except in degree, from that of the state. It may be granted that the authority of the state is utilized to make its orders binding upon all within its jurisdiction: it seeks, within that jurisdiction, universality. But we must be careful not to mistake the character of that universality. It is a universality simply of formal reference. It makes unity upon the ground that unity in some given realm of conduct is held by those who operate the machinery of state to be desirable. It does not tell us why it is so held; it does not tell us whether its recipients will so regard it and it does not, finally, tell us whether it ought so to be regarded. Yet a true philosophy of law ought to explain all these things if it is to satisfy those over whom its sanctions operate.

A theory of law, in fact, which does not start by postulating an end for law, can never explain why law ought to be obeyed; and there is, surely, no point in making rules except upon the assumption that they are entitled to obedience. If we assume that law is made in order to satisfy human demands at that maximum which is socially possible we have at least a criterion by which to create an effective system of values. Therefrom we can infer a pattern of institutions which, at any given moment of historic time, enables us to explain the character of their operation. Such a theory of law has the merit of escaping subordination to the state. It attaches values to the institutions which satisfy its purpose, and to no other institutions. It explains why associations live and die, for it shows that their life is set by their ability to satisfy effective demand. It does not perish in the formalism of that categorical hierarchy which makes the state ultimate either on legal or on [**226] moral grounds. It makes the state ultimate only when its activity enables maximum demand to be satisfied. But it insists, as the facts insist, that maximum demand may be satisfied only by refusing obedience to the state, or, conceivably, by going beyond it to a cosmopolitan order which must make the rules if demand is to hope for satisfaction. This is, of course, a pluralistic theory of law. It is so because the facts before us are anarchical. We reduce them ourselves to order by being able to convince men that some unity we make means added richness to their lives. We encounter everywhere not allegiance, but allegiances in men. We are not warranted in seeking their reduction to a Procrustes-like unity which is formal only in character. An institution cannot seriously expect to be obeyed merely because it is an ultimate point in a series where that series itself is a merely logical construction. Institutions can only secure obedience in terms of the values that obedience creates; and if the values are denied by those in whose lives they are to be effective in the long run, obedience will be denied also. From this angle, in short, we can make the necessary bridge between the formal demands of law, and those other contexts, ethical, economic, political, psychological, which give the abstract legal claim its validation in the event. Above all, such a view as this puts the source of law where it most truly belongs, in the individual consenting mind. For we each of us judge the commands we receive by their relation to our experience of life; and the success of the institutions which formulate commands is a function of their ability to convince us that their response to that experience is continuously and deliberately creative.