Theories on Origin of State

Theories on Origin of State Theory of Divine Origin This is the oldest theory concerned in the origin of state. According to this theory, state is established and governed by God himself by agent or vicegerent or vicar of God. The chief exponent of this theory in early times were the Jews and supporters were the early church father. This theory was used especially in medieval period to establish the supremacy of the church over the state. The divine origin theory took the form of the theory of the divine right of the king. James I, the first stuart King who said that “Kings are he breathing images of God upon the earth,” and Sir Robert Filmer good examples. Bousset in France elaborated this theory supporting the despotism of Luis XIV, who proudly declared, “I am the state having full authority directly given by God.” People have no right to rebel against the King, if so it is against the God himself. Some of the basic tenets of this theory are: 1.Monarchy is divinely ordained. 2.Hereditary right is indefeasible that means cannot be taken away. 3.Kings are accountable to God alone 4.Resistance to a lawful king is sin. According to this doctrine, king began to become despot and tyrant. With the growing political consciousness and rise of democratic ideas, this theory was rejected as unsound in theory and dangerous in practice. It got death blow at the hands of Grotius, Hobbes and Locke. Some moral values can be extracted from this theory. FORCE THEORY According to this theory, state is the result of the superior physical force and subjugation of the weaker section by the stronger. Physical strength was able to overcome fellow men and to exercise authority over them. Some superior tribes and clans also did so. Then state came into being through physical coercion and compulsion, according to this theory. As per this theory, war begets the state and Oppenheim, Jenks and many other supports this view. This theory only emphasizes force and accepts that state is the product of coercion and force only. But force must have been an important factor in the evolution of state but to think it as an only one factor is a mistake. Several other factors, such as, voluntary amalgamation as by force and conquest, as a result of conciliation and agreement, by one another’s cooperation and other peaceful agencies and efforts, etc. Force is an important element for both internal and external security of the state but it is not only the cause for the origination of the state. Might only cannot go ahead permanently. It should follow its path with a positive weapon of right. Force is a physical power while right is a mental power, both should go together in the origination of the state, of course there was strong arms but only with the support of other elements according t MacIver. In the words of MacIver, “Force along never holds a group together.” So force is one of the component for the state origination but not whole sole cause. Social Contract Theory According to this theory, state is the result of a deliberate and voluntary contract of primitive man emerging from a state of nature. Hobbes, Locke and Rousseau are the main supporters of this theory. State of nature was even pre-social. According to Hobbes, it was solitary, nasty and brutish. State came into being by the social contract with the surrender of power to absolute monarchy. According to Locke, “State of nature was pre-political and everything was regulated by natural law, but to execute that law state was originated from the social contract and people chose the constitutional government and limited monarchy. According to Rousseau, “State of nature was peaceful, carefree life, happiness, but after the advent of economic need, social strife began and society became pre-social. The state was originated through social contract with the agreement to govern the state under “general will” on the basis of popular sovereignty. Thus contract was both social contract and governmental or political contract. The objectives of the contract were to secure the life and property of the people. Contract was with one another and with all. All contractualists justify the conceptions that governmental authority if it is to be legitimate must rest ultimately on the consent of the government. This theory emphasizes upon the fact that state is man-made by the contract especially to provide protection to the people, it is an artificial creation not natural. And government authority is restrained upon by man’s natural freedom. This theory has been criticized on three bases: a. Historical: It seems only historical fiction not historical truth. There is no trace in any history about such contract. b. Legal: Contract has no legal binding force. State of nature cannot create legal bindingness of contract. c. Philosophical: Voluntary relations of individual and state seems unreasonable. Evolutionary Theory/Historical Theory According to this theory, the state is a historical growth and result of a gradual evolution. It is a continuous development, cannot be referred to any single moment of time, circumstance and any event, etc. According to Burgess, “It is a gradual realization of the universal principles of human nature. There is no single case, place and any trace of deliberate creation of men in the origination of the state, but political consciousness has played its role from early period to modernity in the origination of state.” State was originated on the basis of various causes and varying condition. They are: a. Kinship b. Religion c. Political Consciousness Kinship: Kinship is fact knit together different clans and tribes and gives them unity and cohesion since the early period. Kin-relationship is one of the factor to develop common consciousness, common interest, and common purpose which ultimately helped to establish intensive social relationship. According to MacIver, “Kinship creates society and society at length creates the states.” In the process of development of kinship patriarchal and matriarchal both societies were experienced and such societies contributed in the origin of the state theory through their authority, military and political and religious privileges and powers, legality and sense of morality, tendency to leadership and subordination and custom which translated into law later. MacIver says that “custom is at work turning example into precedents and precedents into institutions. Patriarchal society was followed by feudalism in later period, the idea of this society remained for long period and even after the development of complete society. Religion Religion played an important role in creation of social consciousness and social solidarity in the emergence of state. Sense of common worship and cult of deceased ancestral worship and other kinds of religious ceremony of different tribes developed as sense of social unity and cohesion in the process of origin of the state. Kinship and religion were so closely intertwined that the patriarch who later became the tribal chief was also the high priest, the guardian of religion, interpreter of customs and often the magic man and even medical man. He was naturally looked upon with reverence in the society. He ruled over vast mass with the powerful weapon that is religion. Political Consciousness Men in a vast mass of society felt need of the state for the protection of themselves. After their wandering habits and hunting nature, men entered into the pastoral and agricultural life and faced several changes as increase in population, vast religious groups, tribal development, contacts with neighboring people, a sense of harmony, accumulation of wealth in individual and group capacity and advance of economic life, etc. With those development some sort of organization were formed and they ensured internal order and protection of life and property of the people … it is thus beginning of the origin of the state. Gradually organizations received mass support and came into intensive form and became an authoritative body to maintain social relationship and defense of private property and private life. Different forms of authoritative body appeared in different times under the leadership of tribal chief, nobles, religious chief, leaders and kings etc. Thus, such authority helped ultimately to form the state institutions. State emerged with the emergence of law and government, in the process of kinship, religion and political consciousness and state developed as nation state in the process of political evolution. The Organic Theory: The nature of the state is to be gleaned from the organic theory which compares the state to a biological organism. The state is likened with a living being. The relation between the state and the individuals is one of the biological organism and its different cells. The state is not a composition of its people but an organism having parts and organs which are related to one another as the different organs of an animal arc related to one another. The earliest political thinker who propounded the theory compared the state to “A” and the individuals to “a” and he called the state as an individual magnified. According to Plato, the rulers stood for wisdom, warriors represented courage, and the working class symbolised appetite. The other Greek philosopher who believed in this organic theory was Aristotle who drew an analogy between the state and the human body. Among the Roman thinkers was Cicero who shared the view of organism as a nature of the state. He found a parallelism between the head of the state and the spirit that rules the body. The English thinker Thomas Hobbes compared the state to a huge monster called the Leviathan. This artificial being was of great strength and stature. Hobbes went to the extent of asserting that like human beings suffering from plague, fever and injury, the Leviathanis also subject to similar ailments. The French philosopher Rousseau drew a comparison between the body-politic and human body. As the state has got legislative power, the human body has “will”. The German thinker J. K. Bluntschli considered the state as a live mechanism. The state has both life and spirit. The state is not a mere building to have only bricks and mortars. It is something more. Similarly, the state has its own identity which is independent of the individuals comprising it. Value of the Organic Theory: Even the darkest cloud has its silver lining. So we find some utility of the organic theory. It underlines the importance of the unity of the state and at the same time insists on the interdependence of its individuals. Again, it emphasises the evolutionary nature of the state by stressing upon the growth and changes in the state. According to R. G. Gettell, the summum bonum of this theory is that it is the antidote to the eighteenth century social contract theory which considers the state as an artificial creation of man. The Idealist Theory: The Idealist Theory came into prominence through the writings of the German philosophers Friedrich Hegel and Immanuel Kant. The English philosophers like Thomas Hill Green and Bernard Bosanquet developed this theory which is also known as the Absolute Theory, Philosophical Theory, Metaphysical Theory and Mystical Theory. But the most common nomenclature of this theory is the Idealist Theory because its central theme is to idealize and glorify the state. It is called the absolute theory since it encourages an omnipotent or totalitarian state where the individual has no voice. The philosophical nature of the theory is responsible to call it the philosophical theory. The naming metaphysical and mystical theory is due to the profusion of abstract and unrealistic approach. Genesis of the Idealist Theory: The idealist theory proceeds with the assumption that the state is a moral institution or an ethical organism which has a will and personality of its own. The state is the embodiment of God on earth and the state progresses from strength to strength as if it is the march of God in history. Since the laws emanate from the state, these should be taken as moral perfection of the state. So the laws are to be considered as “true moral consciousness”. Obedience to the state will be the obedience of the best self of man. The moral personality of man will grow in external actions by unqualified support to the state. Man’s right and liberty can exist only if there is the state. In a word, for the fullest expression of the personality of the individual the most indispensable thing is the state. The state alone can provide his “station” and “duty” in the state. Value of the Idealist Theory: The following are some of the cardinal plus points of the idealist theory: In the first place, the theory is a happy blending of politics and ethics. The institution of the state stands on moral legs. It corrects the defects inherent in the Machiavellian conception of the state, according to which the state has nothing to do with morality and it must be as clever as the fox. It is common knowledge that Machiavellianism is a discarded theory. On the other hand, there is a greater advantage in making the state based on or at least consistent with morality. The idealistic theory goes to support Mahatma Gandhi’s saying- “Politics divorced from ethics is a farce.” Marxician Theory: The Marxists give us a quite different picture about the nature of the state. The Marxists think that the state has been created to protect the interest of the most dominant class that controls over the means of production. It has not been created for maintaining law and order in the society as it is the common belief about the nature of the state. It is created with the class’ struggle and it will vanish away with the class struggle. The second nature of the state is that it is not natural but a creation of man, i.e., a human institution. The third nature of the state is that force is the basis of the state. The fourth character of the state is that it is a part of the superstructure that grows upon the productive forces. The fifth habit of the state is that the laws of the state are the wills of the dominant class in the society to protect their own interest against the oppressed ones. Last but not the least, the institutions of the state function like a machine to crush and repress the exploited lot. In his book The Marxist Theory of the Slate, H. M. Chang considers the following as the basic elements in the nature of the state: (i) The state makes a division of its members by way of territories; (ii) Force is the essence of the state; (iii) The state has a right of imposing taxes and sign contracts for public debt; (iv) The officialdom of the state consists of an elite privileged class. The Communist Manifesto give, out the following as the nature of the state: (i) The state is the executive of the bourgeois class; (ii) The state is the instrument of oppression and exploitation by the dominant class over the other class, the dominant class being one which controls the means of production; (iv) The state is a superstructure created by the possessing class; (v) The state is transitory. It is born with the class and it will die with the class. Criticism of the Marxician Theory of the Nature of State: It is not possible to accept the theory that state represents the oppression of the most dominant class that holds control of the means of production. As a matter of fact, the state is a symbol of the welfare of the entire people. It is a harsh proposal that the state is concerned with the protection of the interest of the dominant class, far less that it will die with the death of the dominant class. The state is permanent, the context between the classes, if any, must be very temporary. Thus the Marxists have painted a narrow and shallow image of the state. This view is unreasonable and so unacceptable. Juristic Theory The Juristic Theory of the State embodies the jurists’ point of view who seek to explain the nature of the State in terms of legal concepts. They endow the State with a fictitious legal personality, as they look upon the State as a legal “person” possessing, like a natural physical person, an individuality, self-consciousness, and a will of its own. They view the State as an organ for the creation, interpretation, and enforcement of the law and the protection of all legal rights. Not all jurists agree amongst themselves. Some regard the State as the sole and exclusive creator of law, while others reject this opinion and maintain that a large body of law in the past was never enacted or created by the State. It essentially, the latter claim, consisted of customs and usages which no legal sovereign could afford to ignore. A jurist like Duguit Would go to the length of asserting that law may exist anterior to the State’s creation, and therefore is independent of its will and that the State is bound by this law and has no right to override or disregard its prescriptions. But German jurists, like F. J. Stahl, Lorenz Von Stein, Otto Gierke, and H.G Trietschke, vest the State with a real, as opposed to a fictitious, personality having a legal will of its own distinct from the sum of the wills of the individuals composing the State, and a capacity for expressing its will in words and acts, and as the creator and possessor of rights. Thus jurists themselves look differently at the nature of the State. As long as the State’s conception is a person means nothing more than that it is a sovereign corporation, that is, an artificial person, as the law regards all corporations. As such possesses a collective will, a legal Capacity, and power of collective action, apart from the Will, the capacity and the power of action of the numerous individuals who compose it, just as a private corporation has a continued existence and possesses rights and obligations which are distinct from those of the shareholders, the juristic analysis is good and useful and may be accepted. But the conception of the State’s real personality, as asserted by some eminent German jurists, is pregnant with pernicious results. Que may accept the proposition that the State, like other corporations, has a legal personality and can sue and be sued. It may own property, and States do, direct and undertake economic enterprises, and perform other functions as the custodian of the present and future generations’ interests. Citizens of the State suffer from telescopic defects. They discount the future and put a premium on the present. Moreover, individual interests change and shift. The State is a permanent legal entity, and it suffers from no telescopic defects. It endures and represents the collective will and collective interests of the rally, the citizens gather than individual interests represented by individual Will to say that the State has a real personality apart from that of the citizens is to vest that entity with absolute powers which may prove antagonistic to the interests Of a citizen and may dwarf his individuality, if not altogether suppress it. The Juristic Theory of the State is, therefore, to be accepted only to the extent of attributing to the State a fictitious legal personality for certain specified purposes. For example, International Law characteristic the State as a “person,” and it is nothing more than the nation’s juridical personification. Functions of the State As with all social institutions, the state is organized around a set of social functions. It is an important agency of social control which performs this function through laws. The main functions are maintaining law, order and stability, resolving various kinds of disputes through the legal system, providing common defence, and looking out for the welfare of the population in ways that are beyond the means of the individual, such as implementing public health measures, providing mass education and underwriting expensive medical research. From a conflict perspective, the state operates in the interests of various dominant groups, such as economic classes and racial and ethnic groups. Lean Mayher (1971) stated the following basic functions of the state: 1. Limiting internal power struggles to maintain internal peace. 2. Bringing power to bear on other societies in defence of national interest or in expanding and building empire. 3. Controlling the members of society so as to bind them to the pursuit of collective goals. 4. Recognizing and implementing the interests and demands of various groups.