Updated: May 4
Bluntschli, J.K. In The Theory of the State, 294–97. London: Oxford at the Clarendon Press, 1875.
Especially since the time of Rousseau, the doctrine that the State is a free work of contract, of convention between its citizens, has enjoyed great and widespread popularity. It flattered men’s self-complacency; for every one might fancy himself a founder of the State: and it appeared to suit the wishes of all; for every one might interpret the terms of the contract as he chose. This theory obtained a fatal authority at the time of the French Revolution. By the help of it the old political forms were torn down, and manifold but unsuccessful attempts were made to erect on the ruins a new edifice which should please everybody. But, although this theory found especial acceptance as the justification of revolution, it had served before to defend the legitimacy of absolute rule.
What was said of the theory of force applies conversely in this case. The theory of force, as a rule, favours despotism, but may, exceptionally, excuse the results of revolution. The theory of contract is especially favourable to anarchy, but exceptionally defends the oppression of minorities by arbitrary majorities, or the tyranny of a conqueror over those who have surrendered to him.
This theory claims universal validity. It makes the rise, and in a certain sense also the continuance, of all States depend on contract. But history does not afford a single instance in which a State has really been brought about by contract between individuals. There are indeed particular cases of contracts between two or more States which have produced a new State: there are also some cases in which princes and chiefs have, by a contract with particular classes or estates of the people, produced new constitutions: but there is no instance in which a State has been formed like a trading or an insurance company by its ‘equal’ citizens. The opinion that the continuance of States depends upon a perpetual renewal of contract between individuals, receives as little support from history. Rather do we find that the individual is born as a member of the State, and is begotten, born and educated with the particular characteristics of his nation and his country before his in a position to have and to express a will of his own.
The evidence of history is thus absolutely opposed to this theory. Even at the time when the doctrine of social contract was most widely accepted and exercised most influence, it was contradicted by manifest facts. The people was broken up into ‘free and equal citizens,’ but even in the primary assemblies the minorities did not contract with the majorities, who carried out their will as if it had a superiority and validity of its own. The Constituent Assembly was indeed regarded as a selection and a representation of all the citizens, and had as its appointed task to agree upon a constitution; but even here the form of procedure was that of a decision of one united body, rather than of a contract between a number of individuals. People adopted a fiction of contract, and deceived themselves and others by speaking of the consent of individuals, where the majority, as organ of the whole, was exercising an authority which was often an intolerable tyranny.
This theory may be disproved not only by history but by logical criticism. It assumes the freedom and the equality of the individuals who conclude the contract; but political freedom, which is here presupposed, is only conceivable in the State, and not outside it. Man has indeed the aptitude for this freedom, just as he has the impulse to, and the need for, the State, but this freedom can never be realized, except in the organic freedom of the State. Further, if individuals were only equal, a State could never come into being, for it implies as necessary condition political inequality, without which there is neither ruler nor ruled.
The main error lies in representing individuals as contracting. If individuals make contracts, private rights are created, but not public rights. What belongs to the individual as such, is his private property, his individual possessions. With that he can deal, one like another can make contracts about it. But contracts cannot have a political character unless there is already a community above the individuals; for a contract, if political, does not deal with the private good of individuals, but with the public good of the community.
Thus, neither a nation nor a State can arise out of contract between individuals. A sum of individual wills does not produce a common will. The renunciation of any number of private rights does not produce any public right.
For practical politics this doctrine is in the highest degree dangerous, since it makes the State and its institutions the product of individual caprice, and declares it to be changeable according to the will of the individuals then living. It destroys the conception of public law, instigates the citizens to unconstitutional movements, and exposes the State to the uttermost insecurity and confusion. It is to be considered, therefore, a theory of anarchy rather than a political doctrine.
Nevertheless, it contains an element of truth. In opposition to the theory which sees in the State a mere product of nature, it accentuates the truth that the human will can determine and influence the formation of the State; and in contradiction to a thoughtless empiricism, it vindicates the rights of human freedom and the rationality of the State.