Delphi complete works of.., p.432
Delphi Complete Works of Stephen Leacock, page 432
READINGS SUGGESTED
Lawrence, T. J., Principles of International Law (1898), part i, chaps, i-v.
Reinsch, P. S., World Politics (1900), chap. i.
Machiavelli, N., The Prince (1513).
FURTHER AUTHORITIES
Walker, T. A., History of the Law of Nations, vol. i (1899).
Halleck, H. W., International Law (1861).
Maine, Sir H., International Law (4th edition, 1879).
Bryce, J., Holy Roman Empire (8th edition, 1883).
Dunning, W. A., History of Political Theories Ancient and Mediæval (1902).
Grotius, De Jure Belli ac Pacis (1625).
Ritchie, D. G., Natural Rights (1895).
Austin, J., Lectures on Jurisprudence (4th edition, 1879).
Jellinek, G., Das Recht des Modernen Staates (1900).
Dyer, L., Machiavelli and the Modern State (1904).
Woolsey, T., America’s Foreign Policy (1898).
CHAPTER VII. THE FORM OF THE STATE
1. THE CLASSIFICATION of States according to their Form; Aristotle’s Divisions. — 2. Later Classifications; Montesquieu, Rousseau, Bluntschli, etc. — 3. Practical Classification of Existing States. — 4. The Constitution; Written and Unwritten Constitutions. — 5. Origin of Written Constitutions. — 6. The Distinction between States with Written and those with Unwritten Constitutions an Illusory Basis of Division. — 7. Scope of the Constitution. — 8. Amendment.
1. The Classification of States according to their Form; Aristotle’s Divisions. Although all states must possess the essential requisites of territory, population, unity, and sovereign organization, they nevertheless differ widely in respect to the extent of their territory, the number of their population, and the peculiar nature of their organization. It is natural, therefore, to attempt to group them under some system of orderly classification; indeed, from the time of Aristotle onwards, almost all writers on Political Science have indicated some such classification. To subdivide states according to the extent of their territory, for instance, into classes each containing so many thousand square miles, would obviously be of very little significance; to divide them according to population would be equally easy and valueless. The evident basis of classification is that of the organization of the state; in other words, states are divided according to the structure of their governments. Some writers have held that we ought not to speak of a classification of states, since all are identical in their essential attributes. They prefer to classify instead the different “forms of government” seen in the state. The objection does not seem well taken. The differences in structure of government constitute the basis of classification, but we may on that basis either speak of the various “forms of government” or “forms of the state.”
The starting-point for all later discussion is found in the celebrated classification given by Aristotle in his “Politics.” He divides the forms of government according to the number of persons in whom the controlling power is vested. Where the power is vested in a single person the government is a monarchy. Power vested in the hands of a few constitutes an aristocracy. Where the general body of the citizens rule, we have a polity. Thus far the classification had already been indicated by Herodotus, but Aristotle proceeds further in distinguishing between what he calls the “normal” and the “perverted” forms of the state. The normal states are those which aim at the good of the community as a whole; the perverted forms are those which exist for the benefit of the ruler or the ruling class. The terms mentioned above are reserved for the first class; thus a monarchy is a government by a king for the good of the whole community, while an aristocracy or a polity is a government by the enlightened few or by the citizens at large for the same end. Of the perverted forms a tyranny means the government by a tyrant for his own ends, an oligarchy the government of the minority in their own interest, while a democracy signifies the selfish government of the “mob.” It is to be observed that in translating Aristotle’s terminology literally, the word democracy is shifted out of its modern meaning and becomes a term of opprobrium; some writers have therefore preferred to avoid a literal translation and to use “democracy” for the normal or beneficent form, and to substitute “ochlocracy” to mean mob-rule.
The classification thus offered was intended by Aristotle to bear a peculiar significance in that it typified not only the divisions of governments, but also indicated a series of forms, representing what might be considered the natural evolution of government. An original kingship was presumed to change into an aristocracy and then through successive stages of oligarchy and tyranny into democracy. “The first governments,” says Aristotle, “were kingships, probably for this reason, because of old when cities were small, men of eminent virtue were few. They were made kings because they were benefactors, and benefits can only be bestowed by good men. But when many persons equal in merit arose, no longer enduring the preëminence of one, they desired to have a commonwealth and set up a constitution. The ruling class soon deteriorated and enriched themselves out of the public treasury; riches became the path to honour, and so oligarchies naturally grew up. These passed into tyrannies, and tyrannies into democracies: for love of gain in the ruling classes was always tending to diminish their number, and so to strengthen the masses, who in the end set upon their masters and established democracies.”
Some writers in their analysis of the Aristotelian classification have put forward as the “natural” order of succession, — monarchy, tyranny, aristocracy, oligarchy, polity, and lastly democracy. The last in its turn may again change into monarchy and hence form a recurring cycle. The process may be explained in detail thus: —
Starting for instance at a given point in the cycle, we find a government in existence as a hereditary monarchy. With the degeneration of the character and aims of the successive monarchs, it passes into a tyranny, and is no longer directed towards the public good. The united efforts of the more powerful magnates of the community overthrow the monarch and set up an aristocratic government. This again degenerates, loses the public spirit which at first inspired it, and lapses into an oligarchy. Against this régime the citizens as a whole break into successful revolt and establish a “polity,” or in modern terminology a democracy. Pushed to an extreme the democracy is converted into the oppression of the rich by the masses, and thus becomes an ochlocracy (Aristotle’s democracy). The intolerable confusion that results is brought to an end by the emergence of an all-powerful warrior-statesman who establishes himself as a king. Thus the cycle has run its course and begins again.
The theory of political change laid down by Aristotle appears, to a large degree, corroborated by the history of the Greek city states in the centuries preceding the Peloponnesian War; indeed it was as an interpretation of their recurrent experience that Aristotle, who was essentially an inductive and practical writer, offered this view of political permutations. Even in recent history examples are found of a more or less complete political progression of this sort. The French despotic monarchy of the eighteenth century was overthrown by the revolutionary movement (1789-92), which in its inception was largely under the guidance of the enlightened minority, and whose initial stages might therefore be looked upon as the overthrow of despotism by aristocracy. In the second phase of the revolution the aristocracy, as represented by the property-holding voters of the constitution of 1791 (an oligarchy, in the minds of the Jacobin extremists), were overthrown, and the republic established, resting theoretically on universal suffrage and complete democracy. The turbulent anarchy into which this democratic régime degenerated (1793-99) was brought to an end by the emergence of a military monarch in the person of Napoleon Bonaparte. The links of the progression are not precisely complete, but yet offer an analogy in some degree corresponding to the Aristotelian cycle. The last-mentioned phase, the suppression of anarchic disorder by the establishment of a military autocracy, is one that has shown itself specially liable to recur. Yet when all is said, it cannot be argued that the Aristotelian cycle is to be looked upon as a necessary or even as a normal course of political change. Even Aristotle, who regarded it as normal, shows by his discussion of the means of preventing revolutions that he did not consider it as inevitable. Least of all does it hold true of the condition of the modern political state. Nor is the classification of states into monarchies, aristocracies, and democracies to be looked upon as a satisfactory and sufficient division as applied to the modern world. In the first place, the terms monarchy and democracy open the way at once to great confusion. If a democracy means, as Aristotle’s polity does, a system in which the political power lies in the mass of the people, Great Britain is to be classed as such, and falls into the same category as the United States, notwithstanding the obvious formal difference between these two governments. If, on the other hand, having regard to the existence of a titular sovereign, Great Britain is classed as a monarchy, it falls into the same class of government as Russia or Persia, an absurdity equally glaring. It is thus seen that the Aristotelian division offers no adequate treatment of constitutional or limited monarchies, which are nevertheless as prominent as any existing form of government. The classification is inadequate, too, in other ways. It fails to take account of the difference between a federal and a non-federal or unitary government, — a distinction which, as we shall presently see, is of the greatest importance in connection with modern states. Nor does it make any distinction between governments according to the differences of the constitutional relation of legislature and executive. This also, as we shall see, is of the greatest importance.
2. Later Classifications; Montesquieu, Rousseau, Bluntschli, etc. Imperfect, however, as the Aristotelian formula is, it was nevertheless accepted as one of the cardinal tenets of political science. Not until quite modern times do we find it subject to serious modification or expansion. Montesquieu, whose “Esprit des Lois” (1748) will fall under consideration in the succeeding chapter, proposed a division into republican, monarchial, and despotic governments. Republican government was that “in which the people as a body or even a part of the people has the sovereign power; monarchial, that in which a single person governs, but only by fixed and established laws; whereas in despotic government a single person without any law or rule, conducts everything according to his will and caprice.” Rousseau offers a division of governments into monarchies, aristocracies, and democracies, subdividing aristocracies into natural, elective, and hereditary. He admits also the existence of mixed forms of government, as in the anarchical kingdom of Poland. Many other writers of the eighteenth and earlier nineteenth centuries offer variations of the classification of Aristotle, all of which, however, are open to the same objection of inadequacy as applied to the complex organization of modern states. Bluntschli presents a unique addition to the list of governments in the shape of theocracy, a normal form to which there corresponds a perverted form, “idolocracy.” The former name is applied to states “in which no human authority has been recognized, in which the supreme power has been attributed either to God, or to a God or to some other superhuman being, or to an Idea. The men who exercise rule are not regarded as its possessors, but as the servants and vice-gerents of an unseen ruler. Its perversion may be called Idolocracy.” Such a classification seems quite fallacious. For even granting the validity of this fourth class, it lies crosswise of the other three, and is not exclusive of them. We might have a theocracy that had the form of a monarchy, an aristocracy, or a democracy. Other writers have attempted more elaborate methods of division, which are intended to account for all the various historical forms of the state. Of this nature is the classification of Von Mohl (a German publicist of the earlier nineteenth century); he distinguishes patriarchal, theocratic, despotic, classic, feudal, and constitutional states. Very little examination is needed to see that such classes overlap each other in all directions; indeed attempts of this sort to effect a division that is at once logical and chronological, run the danger of drifting into mere description.
More modern writers undertake a division of states which shall take account not merely of the general location of supreme legal power, but also of the salient features of the organization and structure of the government. Indeed, while accepting Aristotle’s division as true as far as it extends, it seems necessary in classifying the states of the modern world to take account of certain especial features of organization the existence of which introduces a fundamental difference between forms of government. Chief amongst these is the distinction between unitary and federal governments. In a unitary government the organs of local authority (provincial and county bodies, etc.) exist by virtue of an express creation, or by tacit recognition from the central government. The latter has power, legally, to terminate their existence or alter their form. The governments of France, Great Britain, and Italy are unitary. The governments of the United States and Germany, on the other hand, are federal. Here both the central and local authorities derive their power from an antecedent source, and neither is legally competent to destroy the other. A further distinction is found in the difference between what is called parliamentary, responsible, or cabinet government, and the form known as non-responsible or non-parliamentary. In the former the executive is virtually appointed by, and holds office during the pleasure of, the legislative body. This is the case in England and in France. In the latter the executive is not appointed by the legislature, and cannot be dismissed by it. Of this character is the government of the United States, of the separate states of the Union, Cuba, etc.
3. Practical Classification of Existing States. In attempting a somewhat elaborate practical classification of states, it seems advisable to make no attempt to include all the historic forms which have appeared in the evolution of the state (city states, feudal monarchies, etc.), but to confine ourselves to actually existing types. It is better also to leave on one side those communities of the modern world, such as China, whose imperfect organization hardly admits of their being called states in the strict sense. In dealing with historic and imperfect forms of the state, no more accurate classification than the original category of Aristotle can be applied without degenerating into mere description. It is well, therefore, to take the primary classification as of general validity, and to supplement it with a more exact category of modern states. In the light of what has been said, the division shown in the table on the following page may be suggested.
The basis of division in this plan proceeds in the first place from the fundamental distinction between despotic and democratic states. In the former the supreme legal power is in the hands of one person; in a democratic state it is in the hands of the majority of the people, or their representatives. This seems the most fundamental of all distinctions; it corresponds to the complete contrast offered by the legal organization of such states as Russia, Turkey, and Persia on the one hand, and those of France, the United Kingdom, and the United States on the other. It seems unfortunate to use the word despotic to indicate the former class, since in the legal sense every state may be said to be despotic. But the term monarchical, or even tyrannical, only leads to worse confusion, and ready-made terminology is seldom felicitous. As a second grouping we have the subdivision of democracies into limited monarchies (governments in which the nominal headship of a personal sovereign is preserved) and republics, in which the chief executive, both titular and real, is the appointee of the people. For evident reasons there is no similar division of despotic monarchies. The further divisions between unitary and federal governments, and between responsible and non-responsible forms, have already been explained. There can evidently be no federal or responsible subdivisions under the despotic group.
[note: Footnotes 1-7 in above illustration are now Footnotes 93-99 ]
4. The Constitution; Written and Unwritten Constitutions. The form of any particular state is called its constitution. In America it is natural to think of the word “constitution” as indicating a written document. But in the wider sense of the term it refers to the fixed fundamental law of any state, whether expressed in a written constitution or otherwise. The following definition is offered by Professor Woolsey: “The collection of principles according to which the powers of the government, the rights of the governed, and the relations between the two are adjusted is called a constitution.” Compare the definition of the distinguished English jurist, Mr. E. Dicey: “All rules which directly or indirectly affect the distribution or the exercise of the sovereign power in the state.” Of these principles or rules, some may exist in written form in a constitutional document, but others may be of equally binding force though resting for their sanction only on long-standing custom. This is seen particularly in looking at the constitution of England. Some of the most important parts of it are matters, not of statutory enactment, but of customary usage; and this customary usage is to be regarded sometimes as having the aspect of law enforceable by the courts, sometimes merely as an understanding or convention, whose observance is only guaranteed by the force of tradition and of public opinion. The cabinet system, for example, by which the ministers of the executive are selected with the approval of the majority of the House of Commons from among the members of the two houses of Parliament representing a particular political party or group of parties, is the central feature in the practical operation of the British government; it is purely a matter of convention, not of law.
