sneer at the impracticability of their ideas, we may shudder at the thought as to where the success of their efforts may lead, we may pity those who either driven by hunger or swayed by their emotions follow such leaders, but we should not, unless we are perfectly sure of our ground, speak of them as paid agents of the German government.

Official Germany does not wish anything better than that we should believe that the Maximalists are traitors, and that because of this belief we should forsake the new Russian Republic. Thus forsaken Russia will continue to be a victim of Germany in the future as she has been her victim in the past.

Even grave mistakes committed in Russia at such a critical time should not prevent the United States from keeping ever in mind the thought that the Russian masses have made a long and brave fight for political emancipation and that the freedom which they seek has as high an ideal as has ever been held by any people.

THE JURISTIC CONCEPTION OF THE STATE

BY W. W. WILLOUGHBY

Johns Hopkins University

A society of human individuals viewed as a politically organized unit is termed a state. The state, which, in its various activities and forms of organization, furnishes the material for political science, may be regarded from a number of standpoints. It may be studied sociologically as one of the factors as well as one of the results of communal life; it may be examined historically for the purpose of ascertaining the part which it has played in the life of humanity, its varying phases of development being traced and their several causes and results determined; it may be considered as an entity, to the existence and activities of which are to be applied the ethical criteria which the moralist and philosopher establish; it may be psychologically surveyed in order to make plain the manifestations of will, emotion and judgment which support and characterize its life; it may be regarded from the purely practical standpoint to determine how it may be most efficiently organized and operated; and, finally, it may be envisaged and studied simply as an instrumentality for the creation and enforcement of law. It is with the state, as viewed in this last aspect, that analytical political philosophy is concerned.

The point of departure of the analytical jurist is that in all communities which have reached any degree of definite political organization, public affairs, whether domestic or international, are not carried on in a haphazard manner, without system or fixed principles, but are governed by bodies of rules logically related to one another and all depending, as deductive conclusions, upon certain assumptions regarding the juristic nature of the state, of its sovereignty, of its law, and of the relations which it bears towards other bodies politic as similarly viewed.

Thus analytical political philosophy starts with certain primary assumptions or definitions from which, by deductive reasoning, it determines those principles which give a systematic and logical character to constitutional and international jurisprudence.

It will thus be seen that analytical political theory is a purely formalistic inquiry. Its task is not to seek substantive truth, but to provide conceptions and to furnish an apparatus of thought by the employment of which public law thinking may be systematized and its various propositions brought into legal harmony with one another. By the methods which it employs, a given constitutional system may be analyzed and the fundamental conceptions upon which it is based revealed. Or, working in the other direction, these fundamental conceptions being given, the constitutional doctrines which are logically deducible from them may be stated.

What has been said with reference to constitutional concepts applies with equal force in the field of international jurisprudence. There, too, an analytical examination of the generally accepted principles of the relations of one state to another shows that they are founded upon certain primary conceptions as to the juristic nature of states viewed as the subjects of international law, certain conceptions, that is, as to their equality of status and the rights and powers connoted by their existence as severally independent political entities.

Considered negatively, it will be seen that analytical political theory is not curious regarding the historical origin of political authority among men, nor of the historical circumstances surrounding the birth of any particular sovereignty. It does not inquire as to the ethical right of the state to exist, nor as to its ethically legitimate sphere of authority, nor concerning the purposes which political government may be made to subserve, nor as to the elements which go to increase or diminish the strength and importance of a given state. It is indifferent to all questions as to the relative merits of different forms of government or of different administrative systems. It takes political institutions as it finds them, and views them in a single aspect,

namely, as legal institutions, and, as thus viewed, seeks to ascertain the essential qualities exhibited by them.

The point from which the analytical political philosopher starts is that a politically organized group of individuals may be conceived of as constituting an essential unity, and that the entity thus created may be regarded as a person in the legal sense of the word; that is, as a being, existing in idea, possessing legal rights and obligations as distinguished from those of the individuals who, concretely viewed, make up its body politic, and that, as such a personality, it is, through organs of its own creation, capable of formulating and uttering a legal will with reference to matters within the jurisdiction conceded to it.

Regarded as a legal person the prime characteristic of the state is that there is posited of it a will that is legally supreme. By its express command, or by its tacit acquiescence, it is thus viewed as the ultimate source of legality for every act committed by its own agents or by any persons whomsoever over whom it claims authority. This supreme legally legitimizing will is termed sovereignty. The idea connoted by it is one purely of legal competence or jurisdiction. No element of actual power (as distinguished from will), or of moral right, or of political expediency, is involved.

The starting point for this conception of the state is indeed antithetical to that taken by the moralist, if, in truth, two points of view which have no relation to one another can be said, under any conditions, to be antithetical.

There is little dispute among ethical writers of the present day that all theories of moral obligations must begin with the individual; that, though his rights and duties may be stated in social terms, fundamentally he is self-legislative, determining for himself the ethical quality of his own acts and of the acts of others with whom he is brought into relation. This, of course, does not mean that his judgments may be arbitrary ones, for, when ethically justified, they are governed by the general principles which his own reason supplies and from which, therefore, he cannot escape. And if, as a result of this, he is forced to seek his own welfare in the welfare of the social whole, it still remains

true that, in the last analysis, the determination of the individual's good remains the beginning and end of all ethical speculation. And this, of course, holds true when the relation of the individual to political authority is considered from the ethical point of view.

When, however, from the ethical we turn to the purely juristic inquiry as to the legal relations which unite the state and the individual, we start with the state-with the center rather than the periphery. In other words, beginning at the center, we view the supreme political person as the sole source of political or legal rights, both for itself and its governmental organs, and for all the persons, natural and artificial, who are subject to its authority. Only thus, it is found, can the principles of public and private right which are recognized in practice be harmonized with one another and brought into a systemized whole. In other words, it is only when the juristic conception of the state has been determined that the nature of law, and of civil liberty, clearly appear, and that criteria are provided for determining the constitutional status of all political units, whether they be parish or school districts or kingdoms like Prussia, or a vast empire like that of Great Britain.

This unlimited legal competence which is predicated of the sovereign state connotes the authority to determine the legal rights and duties which shall exist so far as it is itself concerned, and to fix the territorial limits within which it will not permit, without its consent, the enforcement of other legal rights and duties which owe their existence to another sovereignty. This postulated legal omnipotence also carries with it the authority to declare, without reference to territorial limits, what persons shall be deemed to owe an allegiance to the state in question and an obedience to the commands which it utters. It thus results that all areas of land and water, and all persons, whatever their other political relations and affiliations, are potentially subject to the legal control of any given state. That is, it is possible by a mere exercise of its sovereign will to bring them within a control, the legal validity of which its own courts cannot question.

As long as there are a number of states, each with a legally