This pamphlet is not intended for lawyers. I can therefore touch only
cursorily, as on so many other things, upon my theory of the legal
basis of a State.
I must, nevertheless, lay some stress on my new theory, which could be
maintained, I believe, even in discussion with men well versed in
jurisprudence.
According to Rousseau's now antiquated view, a State is formed by a
social contract. Rousseau held that: "The conditions of this contract
are so precisely defined by the nature of the agreement that the
slightest alteration would make them null and void. The consequence is
that, even where they are not expressly stated, they are everywhere
identical, and everywhere tacitly accepted and recognized," etc.
A logical and historic refutation of Rousseau's theory was never, nor
is now, difficult, however terrible and far-reaching its effects may
have been. The question whether a social contract with "conditions not
expressly stated, yet unalterable," existed before the framing of a
constitution, is of no practical interest to States under modern forms
of government. The legal relationship between government and citizen
is in any case clearly established now.
But previous to the framing of a constitution, and during the creation
of a new State, these principles assume great practical importance. We
know and see for ourselves that States still continue to be created.
Colonies secede from the mother country. Vassals fall away from their
suzerain; newly opened territories are immediately formed into free
States. It is true that the Jewish State is conceived as a peculiarly
modern structure on unspecified territory. But a State is formed, not
by pieces of land, but rather by a number of men united under
sovereign rule.
The people is the subjective, land the objective foundation of a
State, and the subjective basis is the more important of the two. One
sovereignty, for example, which has no objective basis at all, is
perhaps the most respected one in the world. I refer to the
sovereignty of the Pope.
The theory of rationality is the one at present accepted in political
science. This theory suffices to justify the creation of a State, and
cannot be historically refuted in the same way as the theory of a
contract. Insofar as I am concerned only with the creation of a Jewish
State, I am well within the limits of the theory of rationality. But
when I touch upon the legal basis of the State, I have exceeded them.
The theories of a divine institution, or of superior power, or of a
contract, and the patriarchal and patrimonial theories do not accord
with modern views. The legal basis of a State is sought either too
much within men (patriarchal theory, and theories of superior force
and contract), or too far above them (divine institution), or too far
below them (objective patrimonial theory). The theory of rationality
leaves this question conveniently and carefully unanswered. But a
question which has seriously occupied doctors of jurisprudence in
every age cannot be an absolutely idle one. As a matter of fact, a
mixture of human and superhuman goes to the making of a State. Some
legal basis is indispensable to explain the somewhat oppressive
relationship in which subjects occasionally stand to rulers. I believe
it is to be found in the _negotiorum gestio_, wherein the body of
citizens represents the _dominus negotiorum_, and the government
represents the _gestor_.
The Romans, with their marvellous sense of justice, produced that
noble masterpiece, the _negotiorum gestio_. When the property of an
oppressed person is in danger, any man may step forward to save it.
This man is the _gestor_, the director of affairs not strictly his
own. He has received no warrant--that is, no human warrant; higher
obligations authorize him to act. The higher obligations may be
formulated in different ways for the State, and so as to respond to
individual degrees of culture attained by a growing general power of
comprehension. The _gestio_ is intended to work for the good of the
_dominus_--the people, to whom the _gestor_ himself belongs.
The _gestor_ administers property of which he is joint-owner. His
joint proprietorship teaches him what urgency would warrant his
intervention, and would demand his leadership in peace or war; but
under no circumstances is his authority valid _qua_ joint
proprietorship. The consent of the numerous joint-owners is even under
most favorable conditions a matter of conjecture.
A State is created by a nation's struggle for existence. In any such
struggle it is impossible to obtain proper authority in circumstantial
fashion beforehand. In fact, any previous attempt to obtain a regular
decision from the majority would probably ruin the undertaking from
the outset. For internal schisms would make the people defenceless
against external dangers. We cannot all be of one mind; the _gestor_
will therefore simply take the leadership into his hands and march in
the van.
The action of the _gestor_ of the State is sufficiently warranted if
the common cause is in danger, and the _dominus_ is prevented, either
by want of will or by some other reason, from helping itself.
But the _gestor_ becomes similar to the _dominus_ by his intervention,
and is bound by the agreement _quasi ex contractu_. This is the legal
relationship existing before, or, more correctly, created
simultaneously with the State.
The _gestor_ thus becomes answerable for every form of negligence,
even for the failure of business undertakings, and the neglect of such
affairs as are intimately connected with them, etc. I shall not
further enlarge on the _negotiorum gestio_, but rather leave it to the
State, else it would take us too far from the main subject. One remark
only: "Business management, if it is approved by the owner, is just as
effectual as if it had originally been carried on by his authority."
And how does all this affect our case?
The Jewish people are at present prevented by the Diaspora from
conducting their political affairs themselves. Besides, they are in a
condition of more or less severe distress in many parts of the world.
They need, above all things a _gestor_. This _gestor_ cannot, of
course, be a single individual. Such a one would either make himself
ridiculous, or--seeing that he would appear to be working for his own
interests--contemptible.
The _gestor_ of the Jews must therefore be a body corporate.
And that is the Society of Jews.